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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case
CCT 16/98
THE PRESIDENT OF THE
REPUBLIC OF SOUTH AFRICA First Appellant
THE MINISTER OF SPORT AND TOURISM Second Appellant
THE DIRECTOR GENERAL OF THE NATIONAL Third Appellant
DEPARTMENT OF SPORT AND RECREATION
versus
SOUTH
AFRICAN RUGBY FOOTBALL UNION First Respondent
GAUTENG LIONS RUGBY UNION
Second Respondent
MPUMALANGA RUGBY UNION
Third Respondent
DR LOUIS LUYT Fourth Respondent
Heard on : 4 - 6 May 1999
Decided on : 7 May 1999
Reasons delivered on : 4 June
1999
JUDGMENT ON RECUSAL APPLICATION
THE COURT:
[1] On 7 May 1999, the ten
members of this Court[1] unanimously
dismissed an application brought by the fourth respondent, Dr Louis Luyt, for
the recusal of four members of the Court.
The following order was made:
“After considering the arguments addressed to us during the past three days we have come to a firm decision on the application for recusal and on the order to be made. The preparation and delivery of reasons for this decision would further delay the hearing of the appeal which has already been delayed by the time taken in dealing with the application. We will accordingly give reasons for our decision later. Our decision on the application, which is a unanimous decision of all the justices of this Court, is as follows:
1. The application for the recusal of the four members of this Court is a constitutional matter within the meaning of section 167 of the Constitution, and this Court accordingly has jurisdiction to decide the application.
2. The applicant has failed to establish that, objectively regarded, there are grounds for any of the four judges to recuse themselves.
3. Each of the four judges concerned agrees with this conclusion in so far as it applies to himself and declines to recuse himself.
4. The application for recusal is accordingly dismissed.
5. The wasted costs occasioned by the application for recusal are reserved.”
The reasons for the order appear from this
judgment.
The previous proceedings
[2] [ On 17 April 1998 De Villiers J, sitting in the Transvaal High Court, made an order reviewing and setting aside the decision of the President of the Republic of South Africa (the President) to appoint a commission of inquiry into certain financial and administrative aspects of the South African Rugby Football Union (SARFU) and related matters. He also set aside a proclamation which had been made by the President under the Commissions Act.[2] The reasons for the orders made by De Villiers J were given on 7 August 1998.[3] It is relevant to the recusal application that the learned judge made credibility findings adverse to the President,[4] the Minister of Sport and Recreation (the Minister) and the Director General of Sport and Recreation (the DG).
[3] The proceedings in the
High Court were launched by SARFU, the Gauteng Lions Rugby Union, the Mpumalanga
Rugby Union and the fourth
respondent.[5] The President was
cited as the first respondent, the Minister as the second respondent and the DG
as the third respondent. We
shall henceforth refer to the applicants in the
High Court as the respondents and to the respondents in the High Court as the
appellants.
[4] The President and the other two appellants initially
lodged an application in the High Court for leave to appeal to the Supreme
Court
of Appeal. They did so after the order had been made but prior to the
furnishing of reasons. However, before that application
was heard, they lodged
a notice of appeal in this Court and simultaneously applied for an order
condoning the late filing thereof.
SARFU and the other applicants opposed the
application for condonation contending that any appeal against the orders made
by De
Villiers J should be heard by the Supreme Court of Appeal and not by this
Court. The application for condonation was granted in
terms of an order made by
this Court on 2 December 1998. The reasons for that order appear from the
judgment of Chaskalson P.[6]
[5] In terms of the order of 2 December 1998, the hearing of the appeal
was to have begun on 23 March 1999. However, pursuant to
a request from the
respondents’ attorneys the hearing was postponed to 4 May
1999.
The recusal application
[6] Shortly before the
appeal was due to be heard, the fourth respondent lodged an application for
recusal in which he stated that
he had “a reasonable apprehension”
that every member of this Court would be biased against him, and that as a
result
he might not get a fair trial. In addition to various averments which he
made concerning all the members of this Court and on which
this apprehension was
said to be based, the fourth respondent went on to make specific averments
pertaining to the President and
Deputy President of the Court, and three of its
other members, Kriegler J, Sachs J and Yacoob J. The application for recusal
was
addressed only to these five members of the Court because, said the fourth
respondent, “after careful deliberation” he
had decided not to
include the other judges in his application, “but to leave it to the
conscience of such individual members”.
The details of the allegations
made against all the members of this Court will be referred to later. It is
sufficient for the moment
to say that the fourth respondent apprehended improper
motives on the part of all the members of this Court. If that apprehension
were
reasonable, all its members would have been under a duty to recuse themselves,
despite the fact that no formal application for
such relief was made.
[7] This was an unprecedented application for recusal, implicating each of
the judges of this Court, questioning their impartiality,
and impugning the
integrity of the Court as an institution. On the fourth respondent's own
showing, the circumstances on which
his suspicion that the Court was biased
against him had existed and been known to him for more than three months before
the application
was launched. As will appear from what is said later, the
averments made against the five judges whose recusal was specifically
sought,
were based on information which in almost all material respects was either known
to the fourth respondent, or was a matter
of public record and must have been
known to him or his legal advisors for some time prior to the launching of the
application.
[8] The recusal application was lodged with the
registrar on the afternoon of Thursday 29 April 1999. The first day of the
Court’s
term was Monday 3 May 1999. The appeal was due to commence on
Tuesday 4 May 1999 and nine court days had been reserved for the hearing.
The
appeal record consisted of more than 6500 pages, and close to a thousand pages
of written argument had been lodged with the
Court. All the judges had been
engaged in preparing for the appeal during the Court recess. The same no doubt
applied to the three
counsel and the attorneys representing the appellants.
[9] This Court sits en banc and all of its available members are
expected to sit in every case. Its quorum is eight of its
members.[7] If the five judges were
to have recused themselves the quorum would have been broken and the appeal
would not have been able to
proceed. The appellants had an appeal to this Court
as of right. Having elected to exercise that right, no other court had
jurisdiction
to hear the appeal.[8]
It is against this background that the application for recusal had to be
decided.
[10] At the very outset we wish to acknowledge that a
litigant and her or his counsel who find it necessary to apply for the recusal
of a judicial officer has an unenviable task and the propriety of their motives
should not lightly be questioned.[9]
Where the grounds are reasonable it is counsel's duty to advance the grounds
without fear. On the part of the judge whose recusal
is sought there should be
a full appreciation of the admonition that she or he should “not be unduly
sensitive and ought not
to regard an application for his [or her] recusal as a
personal
affront”.1[0]
The
correspondence which anticipated the recusal applications
[11] On 13
April 1999 the fourth respondent's attorney, Dr David Botha (Botha), addressed a
letter to the President of this Court,
Chaskalson P. Having regard to the
importance of this letter it is as well to set out its terms in full.
“We refer to the hearing in the appeal of this matter, which has been set down for 4 May 1999.
We address this letter to you on the instructions of Dr Luyt, being the Fourth Respondent in the aforesaid matter.
Our client has consulted us as a result of a strong perception which he entertains that he might not receive a fair hearing in the above matter, a view which appears to be shared publicly.
The matter has always been political, but since the order that the President appear personally to be examined and cross-examined and since the Court a quo has made the adverse credibility findings relating to the President, the matter has increasingly become a political issue.
The two main opposing litigants are the respective leaders of opposing political parties.
The position is further complicated by the fact that the President and individual members of this Honourable Court have all been appointed by President Mandela himself.
Under the circumstances our client is concerned that he might not get a fair hearing and in particular is concerned that some of the members of the Court might not be able objectively and impartially to adjudicate on the credibility of the President and relevant issues.
The client’s perception and fear in this regard arise not only from the aforegoing and other obvious considerations such as the tremendous standing that our President has, both nationally and internationally, but also from certain information that he has received and from allegations that have been made to him relating to the past involvement of some or more of the members of this Court with the President or his family, relating to the political affiliation and involvement of one or more of the members of this Court, relating to the personal relationships and social contact between the President and some of the members of the Court, and relating to animosity between a member of the Court and the client’s attorney of record.
Our client does not know whether the information and allegations referred to above are correct or not, and our client and ourselves are very conscious of the fact that information received, allegations made and rumours are often not true and often over-stated or distorted. Nevertheless, it is clearly in the interests of justice and in the interests of the country as a whole that these concerns be addressed.
Under the circumstances we are ethically and duty bound to write this letter on behalf of our client.
Much of the aforegoing falls within the peculiar knowledge of each of the members of this Court. It has therefore become important and in fact imperative that the correct facts be ascertained so that either our client’s fears can be allayed or that we can advise him on his further rights and on whatever further steps he may want to take.
Unfortunately, it is simply not practical to raise these concerns in chambers with every member of the Court, as would normally be done with a single Judge and under the circumstances it is with great hesitation and with due respect that this letter is written as the only practical way of addressing the problem.
In an attempt, however, to avoid publication and to avoid impairing the dignity of the Court, we have taken the liberty of addressing this letter to the President of this Honourable Court personally.
Under the circumstances our client respectfully requires clarity on and information about the aspects formulated below, from each of the members of this Honourable Court.
It is unfortunately unavoidable, that the undermentioned aspects are formulated in the form of questions. We therefore respectfully request that the undermentioned aspects be addressed by each of the members of this Court.
1. Whether the member has had any active and public affiliation or involvement with any political party in the past;
2.Whether the member actively assisted President Mandela or the ANC during the period of negotiations leading up to the acceptance of the interim constitution;
3. Whether there is any family or personal relationship between the member and President Mandela or any of the other Appellants;
4. Whether there is or has been any social contact between the member and President Mandela or any of the other Appellants and, if so, the nature and incidence thereof;
5.Whether the member has in the past acted as legal representative of or furnished legal advice to the President, his family or any of the other Appellants;
6. Whether there is any animosity between the member and our client’s attorney of record;
7. Whether the member has since the commencement of the present litigation publicly or privately expressed criticism of the Judge a quo relating to the handling of the matter or relating to any alleged bias on his part.
A copy of this letter will be handed to the State Attorney.”
[12] Chaskalson P responded in a letter of
15 April 1999 in which he said, inter alia:
“I have received your letter of 13 April. I will refrain from making any comment concerning the apparent purpose of the letter, or the innuendos implicit in what it says.
If the case has political overtones that is of no concern to the Court. Its duty is to decide the case in accordance with the law and the evidence and that is what it will do. The suggestion that your client has reason to believe that because he and Mr Mandela are leaders of political parties, and because the judges of this Court have been appointed by Mr Mandela, he might not get a fair hearing, and that under those circumstances members of this [C]ourt might not be able objectively and impartially to adjudicate on the credibility of the President, is improper and without substance.
The Constitutional Court is the highest court in the land. Its members were appointed in accordance with the provisions of the Constitution and the procedures prescribed by it. They are obliged to discharge their duties without fear, favour or prejudice - a duty which, since their appointment, they have performed. There is no basis for the slander of the Court contained in your letter.
If a judge considers that because of a personal relationship with a litigant, or for any other reason, he or she is unable to adjudicate on a matter impartially, such judge is under a duty to recuse himself or herself. The judges of this Court are well aware of this duty.
If a litigant has grounds for applying for the recusal of a judge the litigant is entitled to make an application for recusal in the ordinary way. If the litigant is uncertain of particular facts which, if true, would found a legitimate application for recusal, the litigant may ask the judge for clarification of the facts. I do not consider, however, that any judge, let alone the entire Constitutional Court, should ever be asked to respond to interrogatories or to answer questions such as those demanded in your letter.
Justice Kriegler is the only member of the Court, other than myself, who is in chambers today. I have shown a copy of your letter to him. I shall do the same to the other members of the Court when I see them which may not be before the end of the month. I shall tell each of them that it is my considered opinion that they should not reply to your letter, and that they should be willing only to clarify facts which may be put to them, which may be relevant to the concern expressed by your client, and about which your client is uncertain. I will request them to respect my opinion and to act in accordance with it. Lest it be thought that this is because I wish to conceal any information concerning myself, I would be glad if you would bring the following to the attention of Dr. Luyt.”
Chaskalson P went on in the letter to set out
certain facts relating to his past political associations and his relationship
with
the President. We shall refer later to those matters when we come to
consider the specific allegations made against Chaskalson P.
[13] Botha
addressed a further letter to Chaskalson P on 16 April 1999. He stated:
“We acknowledge receipt of your letter dated 15 April 1999, the contents of which we have conveyed to our client.
Our client is extremely concerned about the accusation of an ulterior purpose contained in paragraph 1 of your letter and respectfully requires amplification of exactly what the ‘apparent purpose’ is alleged to be.
Our client is further extremely concerned about the finding and accusation that our letter of 13 April 1999 constitutes a slander of the Court and about the accusation that the said letter contains innuendos. Our client respectfully requires to be informed of why the letter is regarded as a slander of the Court and clarification of the innuendos referred to.
Both our client and ourselves are further extremely concerned about the finding and accusation of impropriety on the part of either ourselves or our client or both, in the second paragraph of your letter, and respectfully require clarification hereof.
We further respectfully require your directions as to whether we should address separate letters to the individual members of the Court, in the circumstances where you have now indicated that your advice to your colleagues will be not to respond to our letter.
Could your also respectfully clarify the position raised under numbered paragraph 7 of our letter of 13 April 1999.
Could you lastly respectfully provide the date of the wedding referred to?
A copy of this letter will also be delivered to the State Attorney.”
Chaskalson P responded through his secretary
to the effect that he did not intend to engage in further correspondence on the
matter.
On 21 April 1999 Botha addressed further letters to the nine other
members of this Court in which he requested them to answer certain
of the seven
interrogatories referred to in his letter to Chaskalson P of 13 April 1999.
Further specific questions were addressed
to some of the judges.
[14] On 28 April 1999, the Director of this Court addressed a letter to
Botha in which he stated the following:
“Your letters of 21 April addressed to the justices of the Constitutional Court have been forwarded to them. The President of the Court has asked me to inform you that:
(a) the justices have told him that they do not consider it appropriate to respond to the interrogatories put as questions 1 to 7 of the letter of 13 April;
(b) the other matters raised in your letters of 21 April specifically with Justices Langa, O'Regan, Sachs and Yacoob are matters of public record. Justice Yacoob was a member of the Technical Committee of the Constitutional Assembly, and not of the ANC. Although the justices concerned do not necessarily agree with the way in which their previous relationship with the ANC and individuals mentioned in your letter have been described, they confirm it to be correct in all material respects.
(c) save as set out herein, the justices do not intend to respond to your letter of 21 April.”
The
allegations
[15] The allegations and complaints made by the fourth
respondent may conveniently be divided into the following seven categories:
15.1 The allegations made collectively with regard to all ten members of the Court;
15.2 The allegations made collectively with regard to four of the five judges whose recusal was sought, namely Chaskalson P, Langa, DP, Sachs J and Yacoob J;
15.3 The specific allegations made with regard to Chaskalson P;
15.4 The specific allegations made with regard to Langa DP;
15.5 The specific allegations made with regard to Sachs J;
15.6 The specific allegations made with regard to Yacoob J; and
15.7 The specific allegations made with regard to Kriegler J.
We set out below the detail of those allegations.
Allegations and complaints made with regard to all the members of the
Court
[16] The allegations and complaints by the fourth respondent
against all the members of the Court were:
16.1 After the President and the other appellants initially decided to appeal to the Supreme Court of Appeal they changed their minds and sought to appeal to this Court. “This created the impression that the President had decided that it would be best for him to take the matter to the Court appointed by him”;
16.2 The decision by this Court to hear the appeal which is predominantly factual “created the impression that the President's wishes were being accommodated”;
16.3 The President wishes his name to be cleared prior to the forthcoming elections and that “[t]he order by this Honourable Court that the appeal be heard on an expedited basis created the impression that this was done to accommodate the wishes of the President”;
16.4 The impression created was that this Court would not have acted as it did “if there was a chance of an adverse finding against the President”;
16.5 The Court ordered that the respondents’ heads of argument were to be filed on a date when “to the knowledge of the Court, two of respondents' counsel were involved in the protracted and still running Boesak trial, and which would make it virtually impossible for them to properly attend to the matter”. The impression created was that the respondents' position and rights were being ignored and those of the President being accommodated;
16.6 The respondents opposed the appellants' condonation application on “good grounds” yet were ordered to pay their own costs of the application. The impression created was that “the ordinary principles were discarded in favour of the President”;
16.7 In these circumstances the respondents were forced to apply for a postponement of the appeal and, although that succeeded, Botha was ordered to show cause why the wasted costs should not be paid by him de bonis propriis. “This created the impression that there was some animosity against Respondents' attorney of record and that ulterior considerations might be operative”;
16.8 “All of the considerations aforesaid created the impression of partiality on the part of this Court in favour of the President”;
16.9 This matter is unique because it is the first time in the history of South Africa that an incumbent president has been ordered to testify and be cross-examined;
16.10 The opposing litigants included the respective leaders of opposing political parties;
16.11 The adverse credibility findings against the President, the Minister and the DG, and their relevance to the outcome of the appeal;
16.12 The iconic status of the President both in South Africa and internationally and his personification of the liberation struggle;
16.13 The difficulty any court would have in making any adverse credibility finding against the President;
16.14 The wide vilification of De Villiers J which achieved media prominence in the wake of his findings against the President and that the sources thereof included senior members of the African National Congress (ANC) and officials in the office of the President. The fourth respondent points in this context to the submission made by the President's counsel in their heads of argument on the merits of the appeal that the order was made “at the instance of a litigant who symbolised the old order, by a judge of the old order who was reputed to have been one of its most ardent supporters”;
16.15 That no steps were taken by the Government or the President to repudiate the vilification of De Villiers J;
16.16 An adverse credibility finding by this Court against the President would incur the wrath of the President. In this regard they point to the following evidence given by the President in the High Court:
“Let me say, judge, I never imagined that Dr Luyt would be so insensitive, so disrespectful, so ungrateful as to say of the President of this country that when I gave my affidavit and signed it under oath, I was telling lies. I was not being honest because that is what he says. I never imagined that he would do a thing like that.” (original emphasis)
16.17 Each of the members of this Court was appointed by the President “personally under circumstances where he himself exercised a discretion to elevate the member concerned to the highest Court in the land”; and that “it is difficult to conceive that the honour bestowed on” the members of the Court would be answered by an adverse credibility finding “on the bestower of such honour”.
Additional allegations made
collectively with regard to Chaskalson P, Langa DP, Sachs J and Yacoob
J
[17] The additional allegations made by the fourth respondent
collectively with regard to Chaskalson P, Langa DP, Sachs J and Yacoob
J are the
following:
17.1 Four judges have “had extremely close ties with the ANC ”, and a finding against the appellants would be adverse to the interests of the ANC and the President;
17.2 An adverse credibility finding against the President would have serious political implications for the government, and the ANC as a political party, especially as the appeal was being heard on the eve of the national elections.
Specific allegations made with
regard to Chaskalson P
[18] The specific allegations and complaints
made with regard to Chaskalson P are the following:
18.1 The manner in which Chaskalson P responded to the letter from Botha of 13 April 1999 and in particular, the accusations that the letter had been written with an “ulterior purpose”,1[1] constituted a slander of the Court, contained innuendos and was improper and without substance has created “a clear impression and perception of a bias against me”;
18.2 The reluctance of Chaskalson P to circulate the letter of 13 April to the other members of the Court and the advice he would give them not to respond thereto, was contrary to “the normal practice” and gave rise to a concern of bias on the part of Chaskalson P;
18.3 Chaskalson P represented the President during the Rivonia trial in 1963/4;
18.4 Chaskalson P represented “President Mandela’s then wife” on various occasions during the 1960's and 1970's;
18.4 There is a longstanding relationship of advocate and client;
18.5 At a function given by the Legal Resources Centre in honour of Chaskalson P on the occasion of his retirement as its national director, the President made an impromptu speech in honour of Chaskalson P;
18.6 Chaskalson P attended a private dinner at the home of the President;
18.7 The President was a guest of honour at the wedding of the younger son of Chaskalson P towards the end of 1998;
18.8 Chaskalson P's elder son has been added to the President's legal team in this appeal;
18.9 “The facts therefore point to a longstanding relationship between the Chaskalson and Mandela families and a close personal relationship between Justice Chaskalson and President Mandela”;
18.10 “It is further clear that there is the highest mutual respect between Justice Chaskalson and the President”;
18.11 Chaskalson P has always had close ties with the ANC “or related organisations”. At a mass political rally in Soweto after the President's release from prison at which the President spoke to a crowd of approximately 100 000 people, Chaskalson P apparently sat on the stage next to the President;1[2]
18.12 Chaskalson P acted as an advisor to the ANC during the constitutional negotiations on the interim Constitution;
18.13 The failure by Chaskalson P to have disclosed these facts of his own volition “gives rise to a clear perception and concern on my part that the matter might not be dealt with in the ordinary way, strictly according to ordinary legal principles and the evidence”;
18.14 The President personally and acting in the exercise of an unfettered discretion appointed Chaskalson P as President of this Court;
18.15 “He [Chaskalson P] further, during the course of the hearing in November 1998, of the application for condonation, from the bench criticised the Judge a quo by saying that the said Judge had obviously not read the Constitution. When it was pointed out to him that he was mistaken, he reacted by saying that he had not yet read the full judgment, but only the abridged version thereof ”;
18.16 The refusal by Chaskalson P to provide the date of his son's wedding “created the impression that he was not prepared to voluntarily provide all facts that might be relevant to found a legitimate application for a recusal, and that the ties between himself and President Mandela might be much closer than portrayed”;
18.17 The apparent adoption by the fourth respondent of the views contained in a passage at 139 from a book entitled “One Miracle is Not Enough” written by Mr R Van Schalkwyk, a former high court judge. The passage, in which there is a reference to Chaskalson P, reads as follows:
“He is undoubtedly a fine jurist and he may have the ability to put aside his political inclinations when called upon to decide social issues, but the perception remains that the Constitutional Court under the leadership of its president is an ANC or ANC-sympathetic institution.”
With reference to the views of Mr Van Schalkwyk the fourth respondent states that:
“As appears from the aforesaid, my apprehension that the President's sympathy with the ANC constitutes a reasonable ground for bias, is not groundless or frivilis [sic] causa. Justice Chaskalson's independence is indeed questioned by none other than a former Judge of the High Court of South Africa.”1[3]
Specific
allegations and complaints made with regard to Langa DP
[19] The
specific allegations and complaints made with regard to Langa DP are the
following:
19.1 He was an active member of the ANC;
19.2 He was a founder member of the Release Mandela Committee in Natal;
19.3 He served as an ANC representative in the Convention for a Democratic South Africa;1[4]
19.4 He served as an advisor on the talks that led to the Groote Schuur and Pretoria Minutes;1[5]
19.5 He “served as a member of the Regional and National Reception Committees which prepared for the Liberation Movement's leaders release from prison and return from exile”;
19.6 “I have also reason to infer that Justice Langa, like some of the other members of this Honourable Court, had attended private dinners with President Mandela at his house”;
19.7 The failure by Langa DP of his own volition or in response to the letter addressed to him to have disclosed any of the “aforegoing facts”.
Specific allegations and
complaints made with regard to Sachs J
[20] The specific allegation
and complaints made against Sachs J are the following:
20.1 He held a position of leadership in the ANC;
20.2 He was a member of the National Executive Committee of the ANC;
20.3 He was a member of the Constitutional Committee of the ANC;
20.4 He “was a close friend and confidant of the late ANC President, Oliver Thambo [sic]”;
20.5 He “helped Thambo [sic] in the drafting of the ANC's Code of Conduct”;
20.6 “Whilst in exile and actively involved in the struggle, he received severe personal injuries at the hands of the previous order”;
20.7 “According to information received by me, Justice Sachs and his wife also on more than one occasion attended a private dinner at President Mandela's house”;
20.8 Sachs J had extremely close ties with the ANC and was actively involved in a position of leadership in the ANC;
20.9 There is a close personal relationship between Sachs J and President Mandela.
20.10 The failure by Sachs J of his own volition or in response to the letter addressed to him to have disclosed any of the “aforegoing facts”.
20.11 The participation by Sachs J as one of four members of an internal ANC commission of inquiry which sat in 1989 in order to investigate the death of Thami Zulu, one of its officials who had been detained in one of its camps during 1988. The commission's report to the ANC expressed a divided opinion on whether the length of detention was excessive. Sachs J was questioned on the report when he appeared before the Judicial Service Commission in October 1994 as a candidate for appointment as a justice of this Court. Sachs J stated that he was unable to persuade his colleagues on the commission that the period of detention had in fact been excessive. Sachs J explained his decision not to submit a minority report on the basis that a consensual report, reflecting divided views, would more likely persuade the ANC to adopt a code of conduct. Some members of the Judicial Service Commission, according to newspaper reports attached to the supplementary affidavit, were critical of this conduct of Sachs J. The fourth respondent submits with regard to this matter that:
“Justice Sachs was prepared to go along with the majority of the commission, thereby down playing the evidence and extent of human rights violations insofar as it concerned the death of Zulu.
He was prepared to refrain from filing a minority report in accordance with his viewpoints at the time in favour of political objects. His failure to file such a report was done either by way of protection or in furtherance of the cause of the ANC. The objective impression created thereby is that political considerations held sway over the evidence, the actual position and his duty as a member of the commission.”
The fourth respondent went on to state that this conduct of Sachs J strengthened his concern of bias by him and was “extremely relevant to
. . . his ability to adjudicate on this matter”. He concluded that the failure by Sachs J to have disclosed those facts “further strengthens the reasonable suspicion on my part that he will be biased”.1[6]
Specific allegations and complaints made
with regard to Yacoob J
[21] The specific allegations and complaints
made with regard to Yacoob J are the following:
21.1 He was a member of the ANC;
21.2 He played a key role in assisting the ANC in the transition to democracy;
21.3 He was a member of the ANC's Technical Committee on Fundamental Rights during the negotiations leading up to the acceptance of the interim Constitution;
21.4 He was involved for the defence in numerous political trials;
21.5 He has had close ties with the ANC and was actively involved in the ANC;
21.6 The failure by Yacoob J of his own volition or in response to the letter addressed to him to have disclosed any of the “aforegoing facts”.
Specific allegations made with
regard to Kriegler J
[22] The main allegations made against Kriegler
J concerned an alleged animosity between him and the fourth respondent's
attorney.
The specific allegations are the following:
22.1 There has been “a serious fall out between Justice Kriegler and the said Botha and strong animosity is displayed by Justice Kriegler towards my said attorney”;
22.2 “I am concerned that this animosity might lead to a subconscious bias against me, especially in the circumstances where the said Botha and I have remained close friends. The position is further complicated in that, although Justice Kriegler and I for many years had a fairly close relationship in the course of which he on numerous occasions attended rugby matches at Ellis Park as my guest, this for the past 18 months or so has no longer been the case. Attempts by me to speak to him personally, in his then capacity as Chairman of the IEC,1[7] were unsuccessful and created the impression in my mind that he was not prepared to speak to me”;
22.3 “The circumstances set out above have given rise to the impression in my mind that Justice Kriegler has permitted his animosity towards my attorney of record to negatively impact on our own relationship and I am in the circumstances concerned that this might lead to a subconscious bias against me in the forthcoming appeal”;
22.4 “During the hearing of the application for condonation Justice Kriegler reacted to a submission by Respondent's counsel that the appeal did not involve any important constitutional issue by saying: ‘How can it not involve an important constitutional issue? You say the President of the country perjured himself !’ My strong perception was that the remark aforesaid was made with extreme sarcasm which created the concern in my mind that the proposition of ‘perjury by the President’ was regarded by Justice Kriegler as a preposterous one”;
22.5 After the resignation of Kriegler J as Chairperson of the IEC, the fourth respondent alleges that, in his capacity as leader of the Federal Alliance, on a number of occasions he publicly stated that Kriegler J still owes the country the real explanation of what actually led to his resignation. This was reported in the media. He alleges further that he is concerned that his public criticism of Kriegler J might result in the judge’s bias against the fourth respondent;
22.6 The letter of 15 April 1999 from Chaskalson P to Botha created the impression that it carried the approval of Kriegler J and that created the impression in the mind of the fourth respondent that Kriegler J supported “the accusations and/or findings of an ulterior purpose, of a slander and innuendos, and of impropriety”, contained in Botha's letter of 13 April 1999;
22.7 According to information received by the fourth respondent, Kriegler J and his former wife on more than one occasion attended a private dinner at the President's house. On the assumption that this is correct, there is a close personal relationship between the President and Kriegler J;
22.8 “Justice Kriegler, also recently (as reported in the newspapers) publicly expressed the very high regard and esteem in which he holds the President”;
22.9 The mere fact that the foregoing facts were not disclosed by Kriegler J, either of his own volition or pursuant to the letter addressed to him by Botha, in itself gives rise to the reasonable concern on the part of the fourth respondent that he might be biased.
The
Justices' statement of facts
[23] Before the matter was called on 4
May 1999, Chaskalson P handed to counsel for both sides a statement in which the
members of
the Court against whom specific allegations were made, commented on
those allegations. That statement was read by Chaskalson P in
open Court when
the matter was called. It reads as follows:
“The fourth respondent’s application for the recusal of five judges of this Court was lodged with the Court on Thursday 29 April 1999. The founding affidavit contains averments concerning some of the judges which had not been put to them. This statement corrects some factual inaccuracies in paragraphs 9 to 13 of the affidavit relating to the averments concerning the five judges. It also supplies some supplementary information.
1. It is a matter of public record that Justices Langa, Mokgoro, O’Regan, Sachs and Yacoob were, prior to their appointment to the Court, members of the African National Congress (ANC). All these judges severed their ties with the ANC before or immediately upon their appointment to the Court. No other member of this Court has ever been a member of the ANC. No member of this Court is a member of any political party.
2. The application relating to Justice Chaskalson (Paragraph 9 of affidavit)
2.1 The relationship of advocate and client
At no stage during his professional career at the bar, which lasted from 1956 to 1994 was Justice Chaskalson briefed by President Mandela or his firm. The last occasion on which he appeared as an advocate for President Mandela or his wife was over 25 years ago. The occasions referred to by Justice Chaskalson in his letter of 15 April on which he represented either President Mandela or Mrs Mandela were the following. He was briefed as a junior advocate in the defence team which represented the President and 7 other persons at the ‘Rivonia Trial’ in 1963/4. In about 1969 or 1970 he was briefed as one of a team of counsel to represent 19 accused persons, one of whom was Mrs Mandela. During the course of the trial the prosecution was stopped. Later the prosecution was reinstated. Justice Chaskalson did not form part of the defence team in the second trial which was the subject matter of the reported decision in S v Ndou 1971 (1) SA 668(A). In 1972 he was briefed as senior counsel on appeal to argue against the conviction of Mrs Mandela on a charge of contravening the terms of a ‘banning order’. The decision is reported as S v Mandela 1972 (3) SA 231(A). In 1974 he was again briefed as senior counsel to argue an appeal against a conviction of Mrs Mandela relating to another alleged breach of her ‘banning order’. That case is reported as S v Mandela 1974 (4) SA 878(A). In neither case did he appear for Mrs Mandela at the trial.
2.2 The wedding
The date of the wedding referred to in paragraph 9.6 was 23 November 1997. The President was not ‘a guest of honour’. He was one of more than 300 persons invited to the wedding. He attended the religious ceremony but not the reception which followed the ceremony.
2.3 The personal and family relationship
The relationship between Justice Chaskalson and President Mandela was correctly described in Justice Chaskalson’s letter of 15 April as follows:
‘I have had contact with the President on state occasions and have attended state dinners and functions in his honour or at which he has been present. My contact with him on such occasions has been largely formal and polite. Mr Mandela attended a function given in my honour by the Legal Resources Centre, when I retired as national director of the Centre. Although he was not a scheduled speaker, he asked to say a few words and spoke, before leaving the gathering. That was about five years ago and was before he had become President.
Although my relationship with Mr Mandela is cordial, we have never been social friends, and do not visit each other. Mr Mandela has been in my house on one occasion only, when, at my younger son’s request, I invited him to my son’s wedding. He attended the religious ceremony held in the garden of my house, but left before the reception. I have had dinner on one occasion at Mr Mandela’s house -- when he invited to dinner a mutual friend from London whom he had not seen since his release from prison. That was approximately five years ago. I cannot recollect whether that was before or after his appointment as President.’
2.4 Ties with the ANC
Some nine years ago, before he was appointed to the bench, Justice Chaskalson attended a gathering at the FNB stadium to mark the release of the President from prison. The President and those of his co-accused in the Rivonia trial who were in Johannesburg were seated on the stage with members of their families. After the Rivonia accused had been seated on the stage Justice Chaskalson was one of the people invited to join them on the stage and did so. He was later introduced to the crowd as one of the advocates who had defended the Rivonia accused. Apart from having acted as counsel for members of the ANC and other organisations (including the PAC, the SACP, the Liberal party and others) on various occasions at criminal trials, and having acted as constitutional adviser to the ANC during the negotiations referred to in his letter of 15 April, there are and have been no ties between Justice Chaskalson and the ANC or ‘related organisations’.
3. The application concerning Justice Langa (paragraph 11 of the affidavit)
Justice Langa has never attended a private dinner at the home of the President.
4. The application concerning Justice Kriegler (paragraph 10 of the affidavit)
4.1 Justice Kriegler bears respondent’s attorney no animosity. They and their wives were friends but the association came to an end with Justice Kriegler’s divorce in 1996. Publication of the letter referred to by Dr Botha would be embarrassing to third parties, but Justice Kriegler would not object if this is necessary in the interests of justice.
4.2 Once the current litigation rendered continued public association with three of the respondents potentially contentious, Justice Kriegler suspended visits to the presidential suite at Ellis Park.
4.3 Justice Kriegler made it a general rule to attend to no electoral business at the Court and no judicial business at the IEC offices. Nevertheless he did deal at the Court and at his home with some telephone enquiries from Dr Luyt concerning electoral matters.
4.4 Justice Kriegler was unaware of any comment by Dr Luyt on his resignation from the IEC. Comments of the kind did not offend him: More serious criticism was, in any event, made by others, including senior members of the African National Congress.
4.5 Justice Kriegler has never attended a private dinner at the President’s house.
4.6 Justice Kriegler has publicly expressed his appreciation and respect for the President. This was in the context of his resignation from the IEC and related to the President’s support for the IEC and his attitude towards the resignation.
5. Application concerning Justice Sachs (paragraph 12 of the affidavit)
Justice Sachs has never dined in private at the home of the President. Justice Sachs has been divorced for twenty years.”
We shall
refer to this statement as “the Justices’
statement”.1[8]
[24] Counsel for the fourth respondent informed the Court that:
“Of course those facts have been stated now by the President and the individual members of this Court and of course for the purposes of argument we will accept the facts as stated, unhesitatingly.”
Because the fourth respondent accepted
the facts set out in the Justices' statement, many of the allegations relied
upon by the fourth
respondent to ground the recusal application, set out in
paras 16 - 22 above, fell away. In the remainder of this judgment, we will
deal
mainly with those allegations which remain.
Withdrawal of the
application against Kriegler J
[25] During the course of the
argument, the application against Kriegler J was withdrawn by the fourth
respondent. It is not necessary
therefore to consider these allegations and
complaints save to state that, as demonstrated by the withdrawal, they lacked
substance.
The law relevant to this application
[26] The
Court debated with counsel the appropriate procedure to be followed in a case in
which there were applications for the recusal
of half of the members of the
Court as well as further allegations and complaints made against all ten of its
members. Counsel were
agreed that the applications should be heard
simultaneously by the whole Court. That was the procedure we
followed.
[27] Counsel were also asked to deal with the question whether
an application for recusal was a “constitutional matter”
within the
meaning of section 167(3) of the
Constitution,1[9] and if so, what
procedure should be followed in hearing the application. Counsel for the fourth
respondent contended that the doctrine
of recusal is part of the common law and
that each of the five judges whose recusal was sought was required to deal with
the application
in so far as it applied to him personally. Although the judges
would be entitled to consult their colleagues on the issues raised
in argument,
the decision on the applications against each of the judges should in each
instance be theirs alone.
[28] [ In Council of Review, South African Defence Force, and Others v Mönnig and Others Corbett CJ said:2[0]
“The recusal right is derived from one of a number of rules of natural justice designed to ensure that a person accused before a court of law should have a fair trial.”
The right to a fair trial has now
been entrenched in our Constitution. Section 35(3) of the Constitution which
deals with criminal
proceedings provides that “every accused person has a
right to a fair trial”. Section 34 of the Constitution which applies
to
other proceedings provides:
“Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”
These provisions must be read with section 8(1)
of the Constitution which provides that:
“The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.”
It follows that section 34, which is part of the Bill of Rights,
applies to the judiciary. Moreover, the common law, which is “law”
within the meaning of section 8(1), is also subject to section 34 and in terms
of section 39(2) must be developed in accordance with
its
provisions.2[1]
[29] Section
165(2) of the Constitution requires courts to apply the law “impartially
and without fear, favour or prejudice”
and the oath of office prescribed
by schedule 2 of the Constitution requires each judge to swear that he or she
“will uphold
and protect the Constitution . . . and will administer
justice to all persons alike without fear, favour or prejudice, in accordance
with the Constitution and the law”.
2[2]
[30] A judge who sits
in a case in which she or he is disqualified from sitting because, seen
objectively, there exists a reasonable
apprehension that such judge might be
biased, acts in a manner that is inconsistent with section 34 of the
Constitution, and in breach
of the requirements of section 165(2) and the
prescribed oath of office. We have no doubt, therefore, that the application
for recusal
raised a “constitutional matter” within the meaning of
section 167(3), and that it was the duty of this Court to give
collective
consideration to the question whether the judges concerned should recuse
themselves.
[31] Judges have jurisdiction to determine applications for
their own recusal. If a judge of first instance refuses an application
for
recusal and the decision is wrong, it can be corrected on
appeal.2[3] But no provision exists
in any law for an appeal against a decision of this
Court.2[4] As the ultimate court of
appeal in constitutional matters, this is the only court which has the power to
set aside one of its judgments
or to correct an error made by
it.2[5] Whether such a power
exists, and if so, in what circumstances it would be exercised, need not be
decided in the present case, for
this Court clearly has a duty to act
constitutionally. If one or more of its members is disqualified from sitting in
a particular
case, this Court is under a duty to say so, and to take such steps
as may be necessary to ensure that the disqualified member does
not participate
in the adjudication of the case.
[32] If one judge, in the opinion of
the other members of the Court, incorrectly refuses to recuse herself or
himself, that decision
could fatally contaminate the ultimate decision of the
Court, and the other members may well have a duty to refuse to sit with that
judge. As it was put by Centlivres JA in R v Milne and
Erleigh2[6]:
“In my view there can be no doubt that if a Judge, who ought not, because he is biassed [sic], to preside at a criminal trial, nevertheless does so he commits . . . an irregularity in the proceedings every minute he remains on the bench during the trial of the accused.”
Thus, in In
re Pinochet2[7] the
decision of a panel of the House of Lords was set aside because one of its five
members should have recused himself having regard
to his interest in the
decision. It follows that if a judge incorrectly refuses to recuse herself or
himself the remaining members
of a panel should not sit with that judge as the
proceeding would be irregular.
[33] In the course of his argument
counsel for the fourth respondent recognised that this might well be so. He
stated:
“In the first place we submit it is an individual decision of the particular presiding officer concerned. Only in the event of a particular presiding officer against whom the application is aimed or directed, deciding not to recuse himself, we submit, does it become a matter for the court as a whole to objectively determine whether on the objective test he ought to recuse himself.”
When asked to deal with this issue, Counsel
for the appellants submitted that if a particular judge were to place on record
that he
or she was in fact biased in favour of one of the litigants, there would
be an obligation on such judge to withdraw from the case.
If, however, the case
was concerned only with a reasonable apprehension of bias, the decision should
be the decision of the court
and not the individual judge.
[34] It is
not necessary to decide what the position would have been in the present case if
one or more of the judges whose recusal
was sought took the view that no grounds
existed for his recusal, but the majority of the Court took a different view.
Counsel were
in agreement that the whole Court should participate in the hearing
and that the judges should consider the application individually
and
collectively. This is how the matter was dealt with and in the result the
judges whose recusal was sought, and the remainder
who were asked to look to
their conscience, considered their own positions individually, and also
considered the application as a
whole, collectively, and concluded unanimously
that none should be recused.
The test for bias
[35] A
cornerstone of any fair and just legal system is the impartial adjudication of
disputes which come before the courts and other
tribunals. This applies, of
course, to both criminal and civil cases as well as to quasi-judicial and
administrative proceedings.
Nothing is more likely to impair confidence in such
proceedings, whether on the part of litigants or the general public, than actual
bias or the appearance of bias in the official or officials who have the power
to adjudicate on disputes.
[36] In the present case counsel for the
fourth respondent emphasised that his client did not seek to rely on the
presence of actual
bias on the part of any member of this Court. Rather he
relied on “the appearance of bias”. For a number of years there
has
been controversy in the courts of England and some Commonwealth countries as to
the proper formulation of the test to be applied
in recusal cases involving the
appearance of bias. There have been two contending formulations. One is the
presence of “a
real likelihood of bias” and the other “a
reasonable suspicion or apprehension of bias”. This subject was canvassed
in some detail by Hoexter JA in BTR Industries South Africa (Pty) Ltd and
Others v Metal and Allied Workers' Union and
Another.2[8] After a review of
the authorities, the learned judge said:
“ . . . I conclude that in our law the existence of a reasonable suspicion of bias satisfies the test; and that an apprehension of a real likelihood that the decision maker will be biased is not a prerequisite for disqualifying bias.”2[9]
[37] In
the BTR judgment itself and in other South African and foreign judgments,
the formulation of the test for recusal on the ground of perceived
bias has used
the expression “apprehension of bias” as an equivalent for
“suspicion of bias”. Thus, the
following passage from the
BTR judgment:3[0]
“The law does not seek . . . to measure the amount of his [the judicial officer’s] interest. I venture to suggest that the matter stands no differently with regard to the apprehension of bias by a lay litigant. Provided the suspicion of partiality is one which might reasonably be entertained by a lay litigant a reviewing Court cannot, so I consider, be called upon to measure in a nice balance the precise extent of the apparent risk. If suspicion is reasonably apprehended, then that is an end to the matter.”
[38] [ In In re Pinochet3[1] Lord Browne-Wilkinson also regarded the terms as being synonymous. He said:
“As I have said, Senator Pinochet does not allege that Lord Hoffmann was in fact biased. The contention is that there was a real danger or reasonable apprehension or suspicion that Lord Hoffmann might have been biased, that is to say it is alleged that there is an appearance of bias not actual bias.”
In Livesey v The New South Wales Bar
Association the High Court of Australia
stated:3[2]
“It was common ground between the parties to the present appeal that the principle to be applied in a case such as the present is that laid down in the majority judgment in Reg v Watson; Ex parte Armstrong.3[3] That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. . . . Although statements of the principle commonly speak of “suspicion of bias”, we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning.”
Because of the inappropriate connotations
which might flow from the use of the word “suspicion” in this
context, we agree
and share this preference for “apprehension of
bias” rather than “suspicion of bias”. This is also the
manner
in which the Supreme Court of Canada formulates the
test,3[4] where its use is in no way
inconsistent with the judgments of the Supreme Court of Appeal in
BTR3[5] or
Moch.3[6]
[39] Before looking at the manner in which this test is applied, it
is necessary to mention two considerations built into the test
itself. These
are the nature of the judicial office and the character of the bias in this
context.
The nature of the judicial office
[40] In
applying the test for recusal, courts have recognised a presumption that
judicial officers are impartial in adjudicating
disputes. This is based on the
recognition that legal training and experience prepare judges for the often
difficult task of fairly
determining where the truth may lie in a welter of
contradictory evidence. This consideration was put as follows by Cory J in
R. v. S. (R.D.):3[7]
“Courts have rightly recognized that there is a presumption that judges will carry out their oath of office. . . . This is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high. However, despite this high threshold, the presumption can be displaced with 'cogent evidence' that demonstrates that something the judge has done gives rise to a reasonable apprehension of bias.”
In their
separate concurrence, L'Heureux-Dube and McLachlin JJ
say:3[8]
“Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: United States v Morgan, 313 U.S. 409 (1941) at p. 421. The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect: R. v. Smith & Whiteway Fisheries Ltd. (1994), 133 N.S.R. (2d) 50 (C.A). at pp. 60-61.”
These views, though expressed more
comprehensively than has been done in judgments of our courts, are entirely
consistent with the
approach of South African courts to applications for the
recusal of a judicial officer.3[9]
[41] 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
such a reasonable litigant would have
a reasonable apprehension that the
judicial officer was or might be
biased.4[0]
The character
of the bias
[42] Absolute neutrality on the part of a judicial
officer can hardly if ever be achieved. This consideration was elegantly
described
as follows by Cardozo
J:4[1]
“There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them - inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs. . . . In this mental background every problem finds it[s] setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own.
. . . .
Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the [person], whether [she or he] be litigant or judge.”
It is appropriate for judges to bring their
own life experience to the adjudication process. As it was put by Cory J in
R. v. S. (R.D):4[2]
“It is obvious that good judges will have a wealth of personal and professional experience, that they will apply with sensitivity and compassion to the cases that they must hear. The sound belief behind the encouragement of greater diversity in judicial appointments was that women and visible minorities would bring an important perspective to the difficult task of judging.”
Similar considerations were expressed in
their concurring judgment by L'Heureux-Dube and MacLachlin
JJ:4[3]
“[Judges] will certainly have been shaped by, and have gained insight from, their different experiences, and cannot be expected to divorce themselves from these experiences on the occasion of their appointment to the bench. In fact, such a transformation would deny society the benefit of the valuable knowledge gained by the judiciary while they were members of the Bar. As well, it would preclude the achievement of a diversity of backgrounds in the judiciary. The reasonable person does not expect that judges will function as neutral ciphers; however, the reasonable person does demand that judges achieve impartiality in their judging.
It is apparent, and a reasonable person would expect, that triers of fact will be properly influenced in their deliberations by their individual perspectives on the world in which the events in dispute in the courtroom took place. Indeed, judges must rely on their background knowledge in fulfilling their adjudicative function.”
[43] [ In a multicultural, multilingual and multiracial country such as South Africa, it cannot reasonably be expected that judicial officers should share all the views and even the prejudices of those persons who appear before them. In S v Collier,4[4] before the commencement of a criminal trial in the magistrate's court, the accused insisted that he be tried by a black magistrate. The white magistrate before whom the matter was called refused to recuse himself. In dismissing an appeal against that decision, Hlophe J said:4[5]
“Equally, the apparent prejudice argument must not be taken too far; it must relate directly to the issue at hand in such a manner that it could prevent the decision-maker from reaching a fair decision. . . . Professor Baxter gives a commonly cited example, namely the mere fact that a decision-maker is a member of the SPCA does not necessarily disqualify him from adjudicating upon a matter involving alleged cruelty to animals. By the same token, the mere fact that the presiding officer is white does not necessarily disqualify him from adjudicating upon a matter involving a non-white accused. The converse is equally true. Otherwise no black magistrate or Judge could ever administer justice fairly and evenhandedly in a matter involving white accused.
For the reasons set out above, the argument that the white magistrate erred in refusing to recuse himself upon being asked to do so at the appellant's trial is both unfortunate and untenable. The fact that he is a white person, does not disqualify him from presiding in a case involving an accused belonging to a different race.”4[6]
[44] [ In the case of a judge of the highest court of the land, other considerations may be taken into account. In Laird v Tatum4[7] Rehnquist J quoted with approval the following passage from an article by John P Frank:4[8]
“Supreme Court Justices are strong-minded men, and on the general subject matters which come before them, they do have propensities; the course of decision cannot be accounted for in any other way.”
The
learned Justice continued:
“The fact that some aspect of these propensities may have been publicly articulated prior to coming to this Court cannot, in my opinion, be regarded as anything more than a random circumstance that should not by itself form a basis for disqualification.”
Application of the
test
[45] From all of the authorities to which we have been referred
by counsel and which we have consulted, it appears that the test
for apprehended
bias is objective and that the onus of establishing it rests upon the applicant.
The test for bias established by
the Supreme Court of
Appeal4[9] is substantially the same
as the test adopted in Canada. For the past two decades that approach is the
one contained in a dissenting
judgment by de Grandpré J in Committee
for Justice and Liberty et al v National Energy
Board:5[0]
“. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is ‘what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude’.”
In R. v. S.
(R.D.)5[1] Cory J, after
referring to that passage pointed out that the test contains a two-fold
objective element: the person considering the
alleged bias must be reasonable,
and the apprehension of bias itself must also be reasonable in the circumstances
of the case. The
same consideration was mentioned by Lord Browne-Wilkinson in
Pinochet5[2]:
“Decisions in Canada, Australia and New Zealand have either refused to apply the test in Reg v Gough5[3], or modified it so as to make the relevant test the question whether the events in question give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the judge was not impartial.”
An unfounded or unreasonable apprehension
concerning a judicial officer is 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 must
be ignored in applying the test.
[46] It was submitted by counsel for
the fourth respondent that in the case of an application for the recusal of a
judge or judges
of the highest court of the land, those judges should more
readily accede thereto than would be the case in a lower court. The reason
for
this, so he submitted, was that the highest court should set an example to the
lower courts. The argument is unsound. In the
first place this Court, having
eleven members, is intended by the Constitution to be representative of the
people of South Africa.
Thus, section 174 (2) of the Constitution provides that
“. . . the judiciary [should] reflect broadly the racial and gender
composition of South Africa . . .”. Given the intricate procedure to
appoint a balanced and representative bench, each of
the available judges of
this Court is obliged, unless disqualified, to participate in the adjudication
of every case which comes
before this Court. We are in full agreement with the
following observation made by Mason J in a judgment given by him in the High
Court of Australia:5[4][46]
“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge 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.”
We also agree with a further observation made
by Mason J 5[5] in the same case
that:
“It needs to be said loudly and clearly that 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.”
[47] Rehnquist J also referred to the duty
which a member of the United States Supreme Court has to sit where not
disqualified, a
duty equally as strong as the duty not to sit where
disqualified. He said:5[6]
“I think that the policy in favour of the ‘equal duty’ concept is even stronger in the case of a Justice of the Supreme Court of the United States. There is no way of substituting Justices on this Court as one judge may be substituted for another in the district courts.”
In
the case of this Court, the President may appoint an acting judge on the
recommendation of the Minister of Justice, acting with
the concurrence of the
President of the Constitutional Court and the Chief
Justice.5[7] Were the quorum of the
Court to be broken by recusal, it would be necessary to make such appointments
if that were constitutionally
permissible. If it were not, there would be no
quorate court to hear the appeal. Assuming that the recusal of members of this
Court
would enable acting judges to be appointed under section 175 (1) of the
Constitution,5[8] it would obviously
be undesirable, particularly in a case such as the present, for the President to
have to appointed acting judges
to make up the quorum. An objection to
“political appointments” would be heightened were this procedure to
be followed.
In the appointment of acting judges, there would be no role for
the Judicial Service Commission and no need for consultation with
the leaders of
parties represented in the National Assembly. The consideration referred to by
Rehnquist J is thus apposite to the
recusal of a member or members of this
Court.
[48] It follows from the foregoing that the correct approach to
this application for the recusal of members of this Court is objective
and the
onus of establishing it rests upon the applicant. The question is whether a
reasonable, objective and informed person would
on the correct facts reasonably
apprehend that the judge has not or will not bring an impartial mind to bear on
the adjudication
of the case, that is a mind open to persuasion by the evidence
and the submissions of counsel. The reasonableness of the apprehension
must be
assessed in the light of the oath of office taken by the judges to administer
justice without fear or favour;5[9]
and their ability to carry out that oath by reason of their training and
experience. It must be assumed that they can disabuse their
minds of any
irrelevant personal beliefs or predispositions. They must take into account the
fact that they have a duty to sit in
any case in which they are not obliged to
recuse themselves. At the same time, it must never be forgotten that an
impartial judge
is a fundamental prerequisite for a fair trial and a judicial
officer should not hesitate to recuse herself or himself if there are
reasonable
grounds on the part of a litigant for apprehending that the judicial officer,
for whatever reasons, was not or will not
be impartial.
Applying the
law to the facts
[49] Counsel for the fourth respondent based his
argument for the apprehension of bias on the cumulative effect of the facts and
complaints made against the judges concerned. He submitted that each of them
might not in itself be a cause for the apprehension
but that each should be
placed in a “basket” and weighed together in the determination of
the reasonableness of the apprehension.
We have no difficulty with that
approach subject to the “basket” only receiving those facts which
are correct and which
may contribute to a reasonable apprehension of
bias.
The initial correspondence
[50] Before considering
the facts which were ultimately relied on by the fourth respondent in seeking
the recusal of Chaskalson P,
Langa DP, and Sachs and Yacoob JJ it is appropriate
to discuss the manner in which the application was brought before this Court.
The usual procedure in applications for recusal is that counsel for the
applicant seeks a meeting in chambers with the judge or
judges in the presence
of her or his opponent. The grounds for recusal are put to the judge who would
be given an opportunity, if
sought, to respond to them. In the event of recusal
being refused by the judge the applicant would, if so advised, move the
application
in open court. In this case the procedure adopted by the fourth
respondent departs radically from the accepted practice.
[51] Here, the
opening move was the Botha letter of 13 April
1999.6[0] The seven questions put
to each of the members of the Court constituted an interrogatory for which no
factual basis was laid. Some
of the questions were patently misdirected in
respect of at least some of the
judges.6[1] No member of the Court
or counsel who appeared in this matter has ever come across or heard of such a
procedure, whether in this
country or in any other jurisdiction. The degree to
which it departs from the usual procedure adopted in applications for recusal
is
marked. The only explanation which was furnished by Botha, in his letter, was
the number of judges involved. The number of members
on this Court would in no
way have precluded Botha and his counsel from adopting the usual procedure, if
not through a meeting in
chambers, at least by way of a letter addressed to the
judge concerned in which the specific averments were set out. This was only
done after the judges had refused to respond to the interrogatories. When
specific requests for verification of particular information
were belatedly
made, they were answered.
[52] Botha's letter carried the innuendo that
the integrity of each of the members of the Court was open to question and that
the
Court as a whole was biased in favour of President Mandela. It will be
recalled that the fourth respondent relies on the response
to this letter by
Chaskalson P as a ground for his recusal. It was also put up as a ground for
the recusal of Kriegler J because
he had been consulted by Chaskalson P prior to
it having been written. The response of Chaskalson P in his letter of 15 April
1999
was quite justified. He understandably questioned the letter having been
addressed to all the members of the Court. After they
had read the letter, the
remaining members of the Court agreed fully that it would not have been
appropriate for them to respond
to the letter. No reasonable litigant, having
the benefit of the advice of an attorney and counsel, would have questioned the
impartiality
of Chaskalson P or of any member of this Court on the basis of the
response by Chaskalson P in his letter of 15 April 1999. The
letter is
therefore not a factor grounding a reasonable apprehension of
bias.
[53] We turn now to consider the allegations and complaints of the
fourth respondent under the seven headings referred to in para
15 above. In
doing so we will refer to those allegations which, during argument, were
abandoned by the fourth respondent.
The allegations made against all
the members of the Court
[54] The first allegation is that the
decision, that this was the appropriate Court to hear the appeal of the
President, created
the impression in the mind of the fourth respondent that:
54.1 the President's wishes were being accommodated;
54.2 this Court would not have acted as it did if there was a chance of an adverse finding against the President.
In effect,
the fourth respondent alleged that the ten members of this Court had created the
impression that they had already decided
to uphold the appeal of the President
at a time when the record had not been filed and before argument on behalf of
any of the parties
had been heard. Having so decided, the further consequence
of this impression was that they made interlocutory rulings aimed at
upholding
the President's appeal. The suggestion that a court, without having seen the
record or heard argument, would engineer
its interlocutory rulings to favour a
decision it had already taken, is extraordinary and contemptuous. What is more,
it was allegedly
based on a series of incorrect propositions concerning this
Court and the nature of its constitutional jurisdiction and procedures.
A
detailed judgment in the condonation application was delivered in which the
reasons for the order made by this Court were set
out.6[2] Fourth respondent's
counsel did not point to any reasoning in the judgment which was alleged to be
incorrect.
[55] Indeed, the judgment appears to have been ignored by
the fourth respondent and his legal advisors. The only submission was
that it
was unique for this Court to hear an appeal in which the issues were largely
factual. This submission is not correct. This
Court has heard appeals in which
there have been substantial factual
disputes.6[3] In any event, there
can be no doubt that this Court is obliged to determine factual disputes where
they relate to constitutional
issues. When this was explained to Mr Maritz, he
conceded that the impression contended for by the fourth respondent was indeed
incorrect and he abandoned the point. It follows that the alleged impression of
the fourth respondent was founded on incorrect information.
The alleged
impression and the reliance placed on it in this application carried serious
imputations which called into question
the integrity of each of the members of
this Court. On the objective facts, such impression is unfounded and the fourth
respondent's
legal advisors acted irresponsibly in relying on it. We have no
hesitation in rejecting these allegations and complaints as incorrect
and
therefore incapable of grounding a reasonable apprehension of
bias.
[56] It is then alleged that because the President wished to have
his name cleared prior to the general elections on 2 June 1999,
the
“expedited date” on which the appeal was set down created the
impression that the wish of the President was being
accommodated. The original
date of set down was not an expedited date. It was set down in the ordinary
course. Counsel was apparently
unaware that matters are ordinarily set down in
this Court within two or three months after a date for a hearing is sought.
This
allegation is similarly without any merit and cannot therefore ground a
reasonable apprehension of bias.
[57] The fourth respondent then claimed
that the date by which his counsels’ heads of argument were to be filed
was fixed by
the Court in the knowledge that two of his three advocates were
involved in another protracted matter which would have made it
“practically
impossible” for them to have attended to the matter.
This was the basis for the impression of the fourth respondent that the
members
of this Court were ignoring the position of the respondents and accommodating
the interests of the President. It was pointed
out to counsel, during argument,
that in the condonation application, the members of the Court were aware that
some counsel for the
fourth respondent were then involved in a long trial, but
that nothing was said at the time to suggest that the trial would continue
into
1999.
[58] The question was raised during argument in the condonation
application as to the order to be made if condonation were to be
granted, and as
to the times to be fixed by the Court in its order for the hearing of the appeal
and the lodging of heads of
argument.6[4] Counsel for the
appellant indicated that there had been difficulties in the past in reaching
agreement on dates, and that in the
circumstances the Court should fix dates to
suit its own convenience without regard to the convenience of counsel. Counsel
for the
fourth respondent did not object to this, nor did they suggest at the
time or when the order was made on 2 December 1998 that there
was a period of
time when they would not be available to give attention to the heads of
argument. It was only some six weeks later
that this issue was raised for the
first time. The dates were fixed with regard to the time estimates made by
counsel at the conclusion
of the argument in the condonation application. This
allegation must similarly be rejected as being without any merit and therefore
not capable of grounding a reasonable apprehension of bias.
[59] The
fourth respondent complained that the order that each of the parties was to pay
their own costs of the condonation application
created the impression that
“the ordinary principles were discarded in favour of the President”.
The reasons for this
costs order were set out in some detail in the unanimous
judgment delivered by Chaskalson P on 2 December
1998.6[5] It is unnecessary to
repeat them now. No attempt was made by the fourth respondents’ counsel
to engage with these reasons.
Suffice it to say that if the fourth respondent
harboured the impression alleged by him it was quite
unreasonable.
[60] The next complaint of the fourth respondent relates
to the costs order made with regard to the belated application for the
postponement
of the hearing of the appeal. The order called upon Botha to show
cause why those costs should not be paid de bonis propriis, ie
out of his own
pocket, rather than that the respondents should be responsible therefor. It was
alleged by the respondent that this
order created the impression that there was
animosity on the part of the members of this Court against Botha. The
application was
launched after considerable delay and was opposed by the
appellants.6[6] In the absence of
any real prejudice to the appellants the majority of the members of this Court
decided to grant the indulgence
sought by the respondents over an objection by
the appellants, without the necessity of having a hearing and thereby avoiding
further
wasted costs. It did not appear that the belated request for the
postponement was the fault of any of the respondents but rather
that of their
attorney. It appeared therefore to be fair and equitable to call on the
attorney to show cause why he, rather than
his clients, should not bear those
wasted costs. Botha did not respond to the invitation given him to deal with
this matter. At
this stage it is sufficient to state that in our opinion to
base an allegation of animosity against the attorney is unreasonable.
[61] The allegations and complaints which follow relate to the
political context in which the fourth respondent submits the issues
have to be
determined. He refers to the unique feature of this case in which an incumbent
president was ordered to testify and submit
to cross-examination. To that is
added the position of the fourth respondent as the leader of the recently
established Federal Alliance
Party and the political significance of the
credibility finding made by De Villiers J against the President, the Minister
and the
DG; the status of the President as a national and international icon and
the difficulty any South African court would have in making
an adverse
credibility finding against the President. The context of this complaint is
broadened by the reference to the vilification
of the learned judge a quo in the
aftermath of his judgment and especially his credibility findings adverse to the
President. The
fourth respondent refers in this regard to the fact that
criticism came from senior members of the ANC including officials in the
office
of the President, and the failure by the President or the Government to
repudiate that criticism and the evidence of the President
referred to in para
16.16 above. Reference is also made to the submission made by the
appellant’s counsel in their heads of
argument in which De Villiers J is
called a “judge of the old order who was reputed to be one of its most
ardent supporters”.
[62] Nothing in the preceding
paragraph is relevant in any way in this case to the recusal of any of the
members of this Court.
The nub of the complaint is that if this Court fails to
set aside the finding of the learned judge in the court a quo, a consequence
would be the “wrath of the President”. To that is added the
allegation that “[e]ach of the members of this Honourable
Court was
appointed by the President . . . personally under circumstances where he himself
exercised a discretion to elevate the
member concerned to the highest court in
the land”. The fourth respondent draws the conclusion that “[i]t is
difficult
to conceive that the honour bestowed on . . . the members of this
Honourable Court will be answered by an adverse credibility finding
on the
bestower of such honour”. He alleges in this context that an adverse
credibility finding by this Court would have serious
political implications on
the government and the ANC and that the hearing of the appeal is on the eve of
the elections.
[63] During argument, it was pointed out to counsel for
the fourth respondent that the allegation that any judges of this Court were
appointed “personally” by the President in terms of his own
discretion was fallacious. The correct position is the following.
The members
of this Court, other than Yacoob J, were appointed in terms of the interim
Constitution.6[7] Chaskalson P was
appointed by the President in terms of the provisions of section 97(2)(a) which
read as follows:
“There shall be a President of the Constitutional Court, who shall . . . be appointed by the President in consultation with the Cabinet and after consultation with the Chief Justice.”
At that time, the
Cabinet, apart from having ANC members, also included members of the National
Party as well as the Inkatha Freedom
Party. It follows from the provisions of
section 233(3) that the concurrence of the Cabinet was necessary for such
appointment to
be made and from the provisions of section 233(4) it follows also
that this appointment could only take place in good faith after
consulting the
Chief Justice6[8] and giving serious
consideration to his views.6[9]
Ackermann, Goldstone and Madala JJ were appointed in terms of the provisions of
section 99(3) which provides that:
“Four judges of the Constitutional Court shall be appointed from among the judges of the Supreme Court by the President in consultation with the Cabinet and with the Chief Justice.”
It follows that the
concurrence of both the Cabinet and the Chief Justice were necessary for such
appointments to have been made by
the
President.7[0] Langa DP, and
Kriegler, Mokgoro, O'Regan and Sachs JJ were appointed in terms of the
provisions of section 99 (4) and (5) of the
interim
Constitution.7[1] They were thus
appointed by the President from a shortlist of ten nominees, furnished by the
Judicial Service Commission7[2],
with the concurrence of the Cabinet and after consultation with the
Chaskalson P. Yacoob J was appointed to fill the vacancy created by the
appointment of Mahomed DP
as Chief
Justice.7[3] Yacoob J was
appointed by the President in terms of section 174 (4) of the
Constitution.7[4] It follows that
he was one of four nominees appearing on a list prepared by the Judicial Service
Commission and that the concurrence
of the Cabinet was necessary as was
consultation with Chaskalson P and the leaders of parties represented in the
National Assembly.
We have already pointed out that the President, in
appointing judges, does not do so personally but as head of the executive branch
of government. Chaskalson P, in his letter of 15 April 1999, had drawn Bothas's
attention to the fact that the members of the Court
had been “appointed in
accordance with the provisions of the Constitution and the procedures prescribed
by it.” Notwithstanding
that, neither fourth respondent, nor his legal
advisors, took the precaution of ascertaining what those provisions or
procedures
were before launching the recusal application. Indeed, when they
were drawn to the attention of counsel for the fourth respondent,
during
argument, they seemed to be unaware of them.
[64] Apart from the
fallacious reasoning which underlies these allegations and the complaint the
fourth respondent builds on it,
the suggestion that any judge has feelings of
personal gratitude towards the President for their appointment is without any
foundation
or justification.
[65] The foregoing allegations and
complaints were made in respect of each of the members of this Court. It is the
basis for the
fourth respondent “after careful deliberation” having
left the matter of recusal “to the conscience of” Ackermann,
Goldstone, Madala, Mokgoro and O’Regan JJ (and presumably Kriegler J as
well). This averment suggests that these are matters
that should indeed trouble
the consciences of these judges. For the reasons set out above, those
individual members and this Court
collectively dismiss each of the foregoing
allegations and complaints. They carry no weight for the recusal of any member
of this
Court.
Considerations arising from the public criticism of De
Villiers J
[66] The fourth respondent referred to the public
criticism of De Villiers J concerning his handling of the application in the
court
a quo and the findings made by him. He claimed that this public criticism
would make it difficult for members of this Court to find
against the
appellants.
[67] The correctness of the judgment given by De Villiers J
has been challenged in the appeal in the present case, and issues have
been
raised in argument concerning the impressions said to have been created by
rulings given by him in the case. These are issues
which arise for
consideration in the appeal, and we refrain from making any comment on them in
this judgment. However, during the
course of argument Chaskalson P informed
counsel for the first respondent that all the members of this Court deplored
the fact that
De Villiers J had been denigrated in the media and in particular
by government officials.
[68] Success or failure of the government or
any other litigant is neither grounds for praise nor for condemnation of a
court. What
is important is whether the decisions are good in law, and whether
they are justifiable in relation to the reasons given for them.
There is an
unfortunate tendency for decisions of courts with which there is disagreement to
be attacked by impugning the integrity
of the judges, rather than by examining
the reasons for the judgment. Our courts furnish detailed reasons for their
decisions, and
particularly in constitutional matters, frequently draw on
international human rights jurisprudence to explain why particular principles
have been laid down or applied. Decisions of our courts are not immune from
criticism. But political discontent or dissatisfaction
with the outcome of a
case is no justification for recklessly attacking the integrity of judicial
officers.
[69] The basis for the public attacks made against De Villiers
J, which impugned his motives, and many of the allegations and complaints
made
against members of this Court in this recusal application are symptomatic of the
tendency to which we refer in the preceding
paragraph. The judiciary as an
institution is one of the principal defenders of the Constitution, with a
uniquely important role
in its interpretation and application. During the
present period of institution-building, unjustified and unreasonable attacks on
individual members of the judiciary, whatever their background or history, are
especially to be deplored.
Political associations of judges prior to
their appointment to the bench
[70] That a judge may have engaged in
political activity prior to appointment to the bench is not uncommon in most if
not all democracies
including our own. Nor should it surprise anyone in this
country. Upon appointment, judges are frequently obliged to adjudicate
disputes
which have political consequences. It has never been seriously suggested that
judges do not have political preferences
or views on law and society. Indeed, a
judge who is so remote from the world that she or he has no such views would
hardly be qualified
to sit as a
judge.7[5] What is required of
judges is that they should decide cases that come before them without fear or
favour according to the facts
and the law, and not according to their subjective
personal views. This is what the Constitution requires.
[71] In this
application much reliance was placed by the fourth respondent on the association
of some of the members of this Court
with the ANC prior to their appointment to
the bench. It is necessary therefore to give further consideration to this
specific complaint.
[72] The core values of our new order are reflected
in the provisions of section 1 of the
Constitution.7[6] None of those
values was recognised by the old order which was replaced by the
Constitution.7[7] Where we used to
have a supreme Parliament, we now have a supreme
Constitution.7[8] The
Constitutional Court has been given the responsibility of being the ultimate
guardian of the Constitution and its values. Section
167(4) thus confers
exclusive jurisdiction to this Court in a number of crucial political areas
which include the power to decide
disputes between organs of state in the
national and provincial sphere, to decide on the constitutionality of any
parliamentary or
provincial Bill, to decide on the constitutionality of any
amendment to the Constitution and to decide whether Parliament or the
President
has failed to fulfil a constitutional
obligation.7[9] And, in terms of
section 167(4), this Court makes the final decision whether an Act of
Parliament, a provincial Act or conduct
of the President is
constitutional.8[0]
[73] It
follows that the drafters of the Constitution necessarily envisaged that this
Court would be called upon to adjudicate finally
in respect of issues which
would inevitably have important political consequences. It is not surprising
then that there are special
provisions in the Constitution for the appointment
of the members of this Court.8[1]
Presumably that is the reason for the Constitution making provision for a
relatively large court of eleven members with a quorum
of eight
members.8[2]
[74] Having
regard to the foregoing features of the jurisdiction of this Court, it would be
surprising if respect and support for
the core values of the Constitution by
candidates for appointment to all of our courts, and particularly the
Constitutional Court,
were not taken into account by the Judicial Service
Commission when preparing a list of nominees for submission to the President.
It would be equally surprising if the President and the Cabinet failed to do so.
Barely five years into the new order it is all
but inevitable that in the
professional or public lives of such candidates their antipathy and opposition
to the evils and immorality
of the old order, to a greater or lesser extent,
would have manifested themselves. The public hearings of the Judicial Service
Commission
reflect this reality. In a very different but no less relevant
context, in R v Milne and
Erleigh,8[3] Centlivres JA
said:
“The mere fact that a Judge holds strong views on what he conceives to be an evil system of society does not, in my view, disqualify him from sitting in a case in which some of those evils may be brought to light. His duty is to administer the law as it exists but he may in administering it express his strong disapproval of it.”
[75] As mentioned earlier,
all judges are expected to put any party political loyalties behind them on
their appointment and it is
generally accepted that they do so. In South
Africa, so soon after our transition to democracy, it would be surprising if
many candidates
for appointment to the bench had not been active in or publicly
sympathetic towards the liberation
struggle.8[4] It would be ironic
and a matter for regret if they were not eligible for appointment by reason of
that kind of activity.
[76] In our opinion it follows that a reasonable
apprehension of bias cannot be based upon political associations or activities
of
judges prior to their appointment to the bench unless the subject matter of
the litigation in question arises from such associations
or activities. In this
case that is not alleged by the fourth respondent.
Allegations and
complaints made collectively with regard to Chaskalson P, Langa DP, Sachs J and
Yacoob J
[77] The remaining allegations and complaints which are
made collectively with regard to Chaskalson P, Langa DP, Sachs J and Yacoob
J
all relate to their former individual association with the ANC and the
President. We shall consider these together with the allegations
made
specifically against those judges.
Specific allegations and complaints
made with regard to Chaskalson P
[78] Numerous allegations are
levelled at Chaskalson P by the fourth respondent and we shall consider them in
turn. The first is
that the manner in which he responded to the letter from
Botha of 13 April 1999 created a “clear impression of bias against
me”. This was apparently exacerbated by the refusal to circulate the
letter to the other members of the Court. This complaint
has been fully
considered in paras 50 to 52 above. It is unnecessary to say more than if the
response of Chaskalson P did create
an impression of bias it was neither
reasonable nor justified.
[79] Then there are the allegations of a
“longstanding relationship of advocate and client”. We have never
heard of
a recusal application founded upon such a relationship prior to a
judge’s appointment to the bench in South Africa. There
have been
countless cases in our history where judges have adjudicated disputes in which a
party had been a client prior to their
appointment. This is not surprising
having regard to the nature of the relationship between advocate and client in
our dual bar
system which prohibits a client from having direct access to an
advocate without the intervention of an
attorney.8[5] In the normal course
the client does not select the advocate but leaves it to the attorney to do so.
Of course, where judges, in
their former capacity as advocates either advised or
acquired personal knowledge relevant to a case before the court, it would not
be
proper for them to sit in such matter. Neither of these two circumstances is
present in this case. The relationship of advocate
and client between the
President and Chaskalson P ended some 35 years ago. The relationship of
advocate and client between the President’s
former wife and Chaskalson P
ended more than 25 years ago. That such a relationship provides any ground for
the recusal of Chaskalson
P is fanciful and devoid of merit.
[80] The
following allegations relate to an alleged personal relationship between
Chaskalson P and the President. It is quite common
in any country for leading
members of the legal profession to come into professional contact with political
leaders. In some cases
that contact might well progress from a professional to
a personal relationship. On the facts which are common cause for the purposes
of this application, that did not happen in the case of the President and
Chaskalson P. Their relationship has at all times been
and remains a cordial
and formal one. They have never been social friends and do not visit each
other. During the nine years since
the President's release from prison, and in
the entire period before he went to prison, Chaskalson P has made a social visit
to the
home of Mr Mandela on one occasion only. That was some years ago, at the
time when the attorney who had acted for the President
in the Rivonia trial
visited South Africa from London where he had lived for over 30 years.
Chaskalson P had been one of the junior
counsel briefed to represent the
President in that trial. The President invited the attorney and Chaskalson P to
have dinner with
him at his house. Chaskalson P stated that he could not
recall whether this was before or after Mr Mandela had been appointed as
President.
[81] The next specific allegation made against Chaskalson P
relates to the President having attended a function held in honour of
Chaskalson
P when, in 1994, he retired as the national director of the Legal Resources
Centre. He was its first national director
and occupied that post for some
fifteen years. Having regard to the significant role played by the Legal
Resources Centre during
the fifteen years of its existence it was not surprising
that Mr Mandela wished to associate himself with this event. It was a formal
and public occasion. According to the facts provided by Chaskalson P and
accepted by the fourth respondent, the President was not
a scheduled speaker but
asked permission to say a few words. That occasion took place before Chaskalson
P was appointed President
of this Court. The circumstances relating to that
function could in no way lead any reasonable person to apprehend that Chaskalson
P, in his adjudication of this case, would have a bias in favour of the
President or against the fourth respondent. The same conclusion
must be drawn
with regard to the dinner at the home of the President.
[82] Then there
is the attendance by the President in November 1997 at the religious ceremony
during the wedding of the younger son
of Chaskalson P. The President was
invited as one of over 300 guests at the request of the groom. Had the
invitation to attend
the wedding been extended to the President in consequence
of a personal friendship with Chaskalson P, it might have been relevant
to
establish such a relationship. In this case, it is clear from the accepted
facts that there was no such relationship and the
wedding incident takes the
matter no further.
[83] It follows that the facts relied upon by the
fourth respondent do not establish that there was a “longstanding
relationship
between the Chaskalson and Mandela families and a close personal
relationship between Justice Chaskalson and President Mandela”.
There is
no factual basis for that allegation and it must therefore be
dismissed.
[84] The final allegation relating to a personal relationship
concerned the addition of Mr Matthew Chaskalson, the elder son of Chaskalson
P,
to the legal team representing the appellants in this appeal. Mr Chaskalson has
built a successful practice as a constitutional
law expert at the Johannesburg
Bar and is the co-author of one of the leading works on the subject. He has
appeared as counsel in
numerous cases in this Court. We would also mention that
it has been accepted practice in our courts for many decades that close
family
members appear before each other and it has never before been suggested that it
was inappropriate.8[6] Where a
court consists of a number of judges, there is even less ground for objection.
Mr Chaskalson was introduced as the second
junior counsel in the appeal but had
already appeared as the third counsel in the condonation application. His name
appeared on
the record when argument was lodged in the latter application and no
objection was raised to this at the time or in the correspondence
which preceded
the recusal application. It was not suggested that this in itself was a reason
for Chaskalson P to recuse himself.
The first and only reference to Mr
Chaskalson is in the founding affidavit of the fourth respondent where reliance
is placed on
his brief in this matter in support of the alleged relationship
between the families of Chaskalson P and the President. That is
clearly without
substance and it is not without significance that this complaint was not
referred to by the fourth respondent’s
counsel in his argument.
[85] Although the fourth respondent sought to rely on what he called in
his affidavit “the highest mutual respect between Justice
Chaskalson and
the President”, his counsel accepted that this consideration probably
applied to all judges in any of our courts.
Most judges in most countries will
have high respect for the head of state and that is usually reciprocal. This
can hardly be a
complaint or a factor forming a basis for a recusal
application.
[86] Then we come to allegations relating to alleged
“close ties” between Chaskalson P and the ANC. The contact between
Chaskalson P and the ANC appears from para 2.4 of the Justices
statement.8[7] In particular,
attention is drawn to the context in which Chaskalson P appeared on the stage
with Mr Mandela at a rally soon after
Mr Mandela’s release. That
appearance was a direct consequence of Chaskalson P having been a junior member
of the Rivonia
trial defence team some 35 years before. It was accepted by the
fourth respondent that Chaskalson P has never been a member of the
ANC
“or any related organisation”. The other contacts with the ANC
arose solely from his role as a professional advisor
at the time of the
constitutional negotiations. In any event, those contacts ceased when
Chaskalson P was appointed to this Court.
[87] It follows from the
foregoing, that had any reasonable person known what became the accepted facts
in this application, with
regard to the relationship between Chaskalson P and
the President, his family and the ANC, such person would have no reasonable
basis
to apprehend that Chaskalson P would be biased against the fourth
respondent or that he would not bring an impartial mind to bear
on the issues in
this appeal.
[88] The fourth respondent also relies on his alleged
perception that there was an unfair reference by Chaskalson P that the learned
judge in the lower court had not read the Constitution. During argument it was
accepted by counsel for the fourth respondent that
an inappropriate remark of
the nature referred to by the fourth respondent had not been
made.
[89] There is no merit in the allegation by the fourth respondent that
Chaskalson P was obliged of his own volition to have disclosed
any of the
foregoing. Judicial officers are obliged to disclose only such facts as might
reasonably be relevant to a recusal application.
It follows that the
non-disclosure of irrelevant facts cannot be a basis for a reasonable
apprehension of bias. In any event Chaskalson
P dealt fully with his
relationship with the President and the ANC in his letter of 15 April 1999. The
complaint that Chaskalson
P did not, in response to the Botha letter of 13
April, disclose the date of his son’s wedding and that this failure gave
rise
to the suspicion of closer ties with the President is both petty and
fanciful apart from being unreasonable.
[90] It remains to refer to the
fourth respondent’s supplementary affidavit in which he relies on the
views expressed about
Chaskalson P by Mr R Van Schalkwyk. Mr Trengove correctly
objected to the admission of this affidavit and it was received provisionally.
The opinion of Mr Van Schalkwyk is clearly as irrelevant as would be the
opinion of any other member of the public. The fact that
the author happens to
be a former member of the High Court bench takes the matter no further. In any
event the reasons for the opinion
expressed by Mr Van Schalkwyk are not provided
by the fourth respondent.
[91] The allegations and complaints made
against Chaskalson P, on the correct facts now accepted by the fourth
respondent, would
not cause a reasonable and informed person reasonably to
apprehend that Chaskalson P would be biased against the fourth respondent
or
reasonably to apprehend that he would not bring an impartial mind to bear on the
issues in this appeal. In all the circumstances
Chaskalson P, with the
concurrence of the nine other members of this Court, refused to recuse
himself.
Specific allegations and complaints made with regard to Langa
DP
[92] The fourth respondent now accepts that Langa DP has on no
occasion attended a private dinner at the home of the President.
All the
remaining allegations and complaints directed at Langa DP relate to his
association with the ANC prior to his appointment
to this Court. In this regard
we refer to paras 70 - 76 above and to the fact that Langa DP severed his ties
with the ANC before
or immediately upon his appointment to the Court.
[93] We would also point out that the association of Langa DP with the
ANC was a matter of public record in October 1994 when it
was disclosed to the
Judicial Service Commission at the time it interviewed candidates for
appointment to this Court. Even prior
thereto the activities of Langa DP
referred to by the fourth respondent, by their nature, were widely known. The
complaint that
Langa DP should have disclosed his association with the ANC is
without merit both because it was a matter of public knowledge and
because it
was not a ground on which a reasonable person would have apprehended bias.
[94] With the concurrence of all the members of this Court, Langa DP
refused to recuse himself.
Specific allegations and complaints
relating to Sachs J
[95] It was accepted by the fourth respondent
that there was no personal relationship between Sachs J and the President and
that
he has never dined in private at the home of the
President.
[96] For the same reasons as apply to Langa
DP,8[8] the association of Sachs J
with the ANC is also a matter of public record. Unlike Langa DP, however, Sachs
J held office in structures
of the ANC and became a member of its National
Executive Committee. Having regard to the fact that Sachs J also severed his
ties
with the ANC before or immediately upon his appointment to this Court, that
association takes the matter no further. For the same
reasons set out in paras
70 - 76, we are of the opinion that prior political association, of the kind
here in issue, is not a basis
upon which a reasonable person would apprehend
bias in a case such as the present, notwithstanding that the credibility of the
President,
the Minister and the DG are likely to be in
issue.
[97] Perhaps the most inappropriate allegation made in the whole
of this unfortunate application is that relating to the severe injuries
which
Sachs J suffered in Maputo at the hands of the South African security forces.
As is well known, Sachs J lost his right arm
and sight in an eye in consequence
of a bomb placed under his car. The allegation that Sachs J would by reason
thereof be biased
against the fourth respondent or in favour of the President
reflects adversely on those who make that allegation and provides no
basis for
recusal. This is a tasteless allegation which is rejected. The less said about
it the better.
[98] The final matter raised against Sachs J, in the
supplementary affidavit, is his conduct with regard to the 1989 ANC commission
of inquiry of which he was a
member.8[9] This issue was
canvassed by the Judicial Service Commission and was not considered to be a
ground disqualifying Sachs J from appointment
to this Court. He was one of the
ten candidates on the shortlist presented by the Judicial Service Commission to
the President.
The President, acting with the concurrence of the Cabinet, and
after consulting the leaders of the parties represented in the National
Assembly, appointed Sachs J to this Court. It is difficult to appreciate the
relevance of that incident to the question of bias
or impartiality in this case.
[99] Again, there was no reason for Sachs J to have disclosed of his
own volition any of the facts referred to by the fourth respondent.
It follows
from what we have already said that there was no good reason for Sachs J to have
recused himself and with the concurrence
of all the members of the Court he
refused to do so.
Specific allegations and complaints with regard to
Yacoob J
[100] The allegations and complaints made with regard to
Yacoob J are no different from those made against Langa DP with regard to
an
association with the ANC. With the concurrence of all the members of this
Court, Yacoob J refused to recuse himself.
The allegations and
complaints made with regard to Kriegler J
[101] We have already
recorded the withdrawal by the fourth respondent of the application for the
recusal of Kriegler J.
The approach of the
appellants
[102] The appellants' counsel informed the Court that his
clients considered it inappropriate to make submissions on the factual
allegations made with regard to the recusal application. They limited their
submissions to questions of law and to the inconvenience
their clients would
suffer if the effect of the application would be to break the quorum of eight
members able to hear the appeal.
Costs
[103] In our order we
reserved the question of the costs of this application. This will be considered
in the judgment on the merits
of the
appeal.
Conclusion
[104] The application for recusal was
dismissed on 7 May 1999 for the reasons stated above. In conclusion we would
add the following.
Under our new constitutional order, judicial officers are
now drawn from all sectors of the legal profession, having regard to the
constitutional requirement that the judiciary shall reflect broadly the racial
and gender composition of South Africa. While litigants
have the right to apply
for the recusal of judicial officers where there is a reasonable apprehension
that they will not decide a
case impartially, this does not give them the right
to object to their cases being heard by particular judicial officers simply
because
they believe that such persons will be less likely to decide the case in
their favour, than would other judicial officers drawn from
a different segment
of society. The nature of the judicial function involves the performance of
difficult and at times unpleasant
tasks. Judicial officers are nonetheless
required to “administer justice to all persons alike without fear, favour
or prejudice,
in accordance with the Constitution and the
law”.9[0] To this end they
must resist all manner of pressure, regardless of where it comes from. This is
the constitutional duty common
to all judicial officers. If they deviate, the
independence of the judiciary would be undermined, and in turn, the Constitution
itself.
Chaskalson P, Langa DP, Ackermann J, Kriegler J,
Goldstone J, Madala J, Mokgoro J,
O’Regan J, Sachs J and Yacoob
J.
For the appellants: W Trengrove SC, A Bham and M Chaskalson instructed
by the State Attorney (Pretoria).
For the respondents: MC Maritz SC, M Helberg SC and JG Cilliers instructed
by Rooth and Wessels.
[1] At the time of the hearing, there was a vacancy on the Court which resulted from the untimely death of Didcott J during October 1998.
[2] Act 8 of 1947.
[3] The judgment ran to over 1000 pages. An abridged version is reported as SARFU and Others v President of the Republic of the RSA and Others 1998 (10) BCLR 1256 (T).
[4] It is not necessary in this judgment to consider the nature or detail of these findings. This will be dealt with in the judgment on the appeal.
[5] Dr Luyt acted both in his personal capacity, and as president of SARFU and Gauteng Lions Rugby Union.
[6] President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (2) SA 14 (CC); 1999 (2) BCLR 175 (CC).
[7] Section 167(2) of the Constitution.
[8] See the judgment of this Court in the condonation application, above n 6.
[9] S v Bam 1972 (4) SA 41
(E) at 43H - 44A.
1[0] Moch v
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