In South African law, the recusal of a judge refers to the process by which a judge is disqualified from presiding over a case due to potential bias, conflict of interest, or any reason that may impede their impartiality. The core principle behind judicial recusal is to uphold the integrity and fairness of the judicial process, ensuring that justice is not only done but also seen to be done. This concept is rooted in the need for an objective standard of judicial conduct, whereby a reasonable person would perceive the judge as unbiased and impartial.

Principles of Recusal in South African Case Law

Objective Standard

The law of recusal in South Africa is grounded in an objective standard. This standard requires that the court assess whether a reasonable person, with knowledge of the relevant facts, would apprehend bias in the judge’s ability to be impartial. This apprehension must be based on substantial grounds and not merely on unfounded suspicions. The importance of maintaining impartiality and fairness within the judiciary cannot be overstated, as it ensures public confidence in the judicial process.

Key Case:

• President of the Republic of South Africa v. South African Rugby Football Union (SARFU) [1999] ZACC 11

In this landmark case, the Constitutional Court of South Africa provided significant guidelines on judicial recusal, emphasizing that the test is whether a reasonable, objective, and informed person would perceive a risk of bias.

Personal Interest and Prior Involvement

Judges must recuse themselves if they have any personal interest in the case or if their prior involvement with the matter could reasonably lead to a perception of bias.

Key Cases:

• BTR Industries South Africa (Pty) Ltd v. Metal and Allied Workers Union [1992] ZASCA 85:

This case underscored the necessity for judges to avoid any personal interest that might compromise their impartiality.

• Ex Parte Goosen [2019] ZAGPJHC 154:

Reinforced the principles of judicial neutrality by highlighting the importance of avoiding conflicts of interest.

Association with the Case

Judges must avoid any association with the case, the parties, or their legal representatives that could be perceived as biased or partial. The association must be significant enough to contaminate the expectation of a fair and unbiased decision.

Key Case:

• Bernert v. Absa Bank Ltd [2010] ZACC 28

In Bernert, the court dealt with the issue of two judges having a prior association with one of the parties, Absa Bank. Bernert contended that this association could lead to bias. However, the court ruled that unless the subject matter of the litigation directly arose from this association, there was no obligation for the judges to disclose it.

Contrasting Case:

• Mulaudzi v. Old Mutual Life Insurance Company (South Africa) Limited and Others [2017] ZASCA 88

In this case, the Supreme Court of Appeal (SCA) found that the judge, Hlophe JP, had a personal relationship with Mulaudzi’s attorney, which raised concerns about his impartiality. Hlophe JP’s actions, including assigning the case to himself without justification and issuing a brief judgment without reason, contributed to a reasonable apprehension of bias. The SCA concluded that the order issued by Hlophe JP was flawed, and the case was remitted to a different judge to ensure fairness.

Analysis of AfriForum v. Economic Freedom Fighters and Others [2024] ZASCA 82

In the 2024 case of AfriForum v. Economic Freedom Fighters and Others, AfriForum applied for the recusal of Acting Justice Keightley. The basis for this application was remarks she made during a 2018 case concerning Afrikaans at the University of South Africa, where she suggested that AfriForum’s legal actions were ideologically driven and outdated. AfriForum argued that these comments demonstrated an inability to adjudicate their appeal impartially.

Court’s Decision

The SCA dismissed AfriForum’s recusal application, concluding that AfriForum failed to meet the objective test for recusal. The court highlighted the following points:

• Presumption of Judicial Impartiality: The court noted that there is a presumption of judicial impartiality, and Keightley’s remarks, when viewed in context, did not demonstrate actual bias or a reasonable apprehension of bias.
• Timing of the Application: The court observed that the recusal application was made years after the initial remarks, which weakened AfriForum’s case and suggested that their request was strategic rather than substantive.

Implications

This case demonstrates the difficulties and potential prejudice that may befall a litigant seeking the recusal of a judge. The high threshold for proving bias means that most recusal applications fail unless they present concrete evidence of biased behaviour or a problematic association with the case.

Conclusion

The principles of judicial recusal in South African law are designed to maintain the integrity and impartiality of the judiciary, ensuring public confidence in the judicial process. The case of AfriForum v. Economic Freedom Fighters and Others illustrates the challenges involved in recusal applications and the importance of meeting the high threshold of evidence required to prove bias. Litigants must carefully consider whether to bring a recusal application and ensure they have substantial grounds and concrete evidence to support their claims.

Considerations for Recusal Applications

• Concrete Examples of Biased Behaviour: Present clear instances of the judge’s biased behaviour or statements.
• Problematic Association: Ensure a substantial and likely problematic association between the judge and the case.
• Dissatisfaction is Insufficient: Mere dissatisfaction with a judge’s decisions is not enough.
• Timeliness: Raise the issue of bias as early as possible in the proceedings.

By adhering to these considerations, litigants can better navigate the complexities of recusal applications and uphold the principles of fairness and impartiality in the judicial process.