Recusal applications are not legal strategy

Applications for recusal can be made to the presiding officer, the arbitrator or the judges seized with any matter. The test to be used in deciding whether a presiding officer must recuse themselves or not has been comprehensively dealt with by the Constitutional Court.

In President of The Republic of South Africa And Others V South African Rugby Football Union And Others, the apex court dealt with recusal applications that were brought before it. The Court held that the test for recusal on the ground of perceived bias was “apprehension of bias” rather than “suspicion of bias”.

Further, the Court held that “the test should be applied on the assumption that a reasonable litigant would take these considerations into account. A presumption in favour of judges’ impartiality must therefore be taken into account in deciding whether a reasonable litigant would have a reasonable apprehension that the judicial officer was or might be biased.” The Court explained that absolute neutrality on the part of a judicial officer could hardly, if ever, be achieved.

In Sepheka v Du Point Pioneer, the court highlighted that time and time again it has warned against litigants making “unfounded allegations of bias on the part of presiding officers tasked to decide disputes, without cogent proof to substantiate the allegation”.  In the context of employment law, this would be arbitrators tasked to do so under the dispute resolution processes of the LRA, and judges of the Labour Court. “Any allegation of bias, especially on the part of a Judge of the Labour Court, must be substantiated by a proper factual basis, must not be based on mere speculation and conjecture, and must be proved by the party alleging bias.”

The Constitutional Court in SARFU held that “the test for apprehended bias was objective and that the onus of establishing it rested upon the applicant. … the question was whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend that the Judge had not or would not bring an impartial mind to bear on the adjudication of the case, that was a mind open to persuasion by the evidence and the submissions of counsel.” (My emphasis)

The Constitutional Court in SARFU held further that an unfounded or unreasonable apprehension concerning a judicial officer was not a justifiable basis for such an application. “The apprehension of the reasonable person must be assessed in the light of the true facts as they emerge at the hearing of the application. It follows that incorrect facts which were taken into account by an applicant had to be ignored in applying the test.

The Apex Court, quoting a judgement from the High Court of Australia, held that “although it was important that justice had to be seen to be done, it was equally important that judicial officers discharged their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour… the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.” What was required of judges was that they should decide cases that came before them “without fear or favour according to the facts and the law, and not according to their subjective personal views.”

In Turnbull-Jackson v Hibiscus Coast Municipality and others, the court held that, “This would be the easiest stratagem for the unscrupulous to get rid of unwanted decision-makers: if I insult you enough – whatever enough may be – you are out. This is without substance. It proceeds from an assumption that officials with decision-making power would respond the same way to insults. It ignores the following: the training of the officials; their experience; possibly even their exposure to abuse and insults – from time to time – and the development of coping skills; and other personal attributes, all of which may render them impervious to, or tolerant of, insults. A finding of bias cannot be had for the asking. There must be proof; and it is the person asserting the existence of bias who must tender the proof.”

Recusal applications can be made in courts and in other forums, including the CCMA, bargaining councils and accredited agencies. When making an application for recusal the following points must be remembered-:

• The apprehension of bias will be tested to determine if a reasonable, objective and informed person would apprehend bias
• There is an existing presumption that the presiding officer is impartial
• The application must be substantiated on a proper factual basis, and not be based on mere speculation and conjecture, and must be proved by the party alleging bias
• Recusal applications are not granted merely because an application is made; proof is required
• It is not advisable to use an application for recusal as a strategy in litigation to get rid of unwanted decision makers

Rutendo Mandimutsira