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RTF formatLast Updated: 11 August 2004
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No 21/2003
In the matter between:
TAKE & SAVE TRADING CC 1st
Appellant
TIASO INVESTMENTS (PTY) LTD 2nd
Appellant
AHMED YACOOB MANSOOR NO 3rd
Appellant
AYISHA BIBI AMOJEE 4th
Appellant
AHMED YACOOB MANSOOR 5th
Appellant
and
THE STANDARD BANK OF SA LIMITED
Respondent
Coram: HARMS, SCOTT, CAMERON, MTHIYANE and CONRADIE JJA
Heard: 16 FEBRUARY 2004
Delivered: 27 FEBRUARY 2004
Subject: Recusal application during the course of proceedings – appealability – reasonable apprehension of bias.
JUDGMENT
HARMS JA/
HARMS JA:
[1] During the course of the plaintiff’s case in a trial,
and at a crucial stage when the last of the plaintiff’s witnesses
had to
be cross-examined, the defendants’ legal team withdrew without proffering
any reason. The defendants represented by
one of them (Mr Mansoor) then applied
for a postponement of the trial. The learned trial judge (PC Combrinck J in the
D&CLD)
debated the merits of the postponement application with him because
it seemed to the judge that the application was nothing but a
tactical move to
gain time. During the course of the debate the judge expressed in no uncertain
terms that he thought that there
was little merit in two aspects of the
defendants’ case and that the postponement would have amounted to an
exercise in futility;
the other defences depended on Mansoor’s evidence,
which he, the judge suggested, could give without the benefit of counsel.
Eventually, however, the judge granted a postponement. When the matter was again
enrolled, the defendants, now represented by another
counsel, applied by way of
notice of motion for the judge to recuse himself. He refused the application and
the subsequent one for
leave to appeal met the same fate. This Court eventually
granted leave.
[2] Everyone is entitled to a fair trial and that includes the
right to a hearing before an impartial adjudicator. This common law
right is now
constitutionally entrenched. Present a reasonable apprehension of bias, the
judicial officer is duty bound to recuse
him or herself. The law in this regard
is clear, having been the subject of recent judgments of both this Court and the
Constitutional
Court, and does not require any
restatement.[1] It is nevertheless
convenient for present purposes to quote the following extracts from a
Constitutional Court judgment for purposes
of emphasis and because they are
particularly germane to this
case:[2]
'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.’
‘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 the litigant for
apprehending
that the judicial officer, for whatever reasons, was not or will
not be impartial.'
[3] That is one side of the coin. The other is
this:[3]
‘A criminal trial is
not a game where one side is entitled to claim the benefit of any omission or
mistake made by the other
side, and a judge's position in a criminal trial is
not merely that of an umpire to see that the rules of the game are observed by
both sides. A judge is an administrator of justice, he is not merely a figure
head, he has not only to direct and control the proceedings
according to
recognised rules of procedure but to see that justice is done.’
The
same applies to civil proceedings: a judge is not simply a ‘silent
umpire’.[4] A judge ‘is
not a mere umpire to answer the question “How’s that?”’
Lord Denning once said.[5] Fairness of
court proceedings requires of the trier to be actively involved in the
management of the trial, to control the proceedings,
to ensure that public and
private resources are not wasted, to point out when evidence is irrelevant, and
to refuse to listen to
irrelevant evidence. A supine approach towards litigation
by judicial officers is not justifiable either in terms of the fair trial
requirement or in the context of resources. One of the oldest tricks in the book
is the practice of some legal practitioners, whenever
the shoe pinches, to
withdraw from the case (and more often than not to reappear at a later stage),
or of clients to terminate the
mandate (more often than not at the suggestion of
the practitioner), to force the court to grant a postponement because the party
is then unrepresented. Judicial officers have a duty to the court system, their
colleagues, the public and the parties to ensure
that this abuse is curbed by,
in suitable cases, refusing a postponement. Mere withdrawal by a practitioner or
the mere termination
of a mandate does not, contrary to popular belief, entitle
a party to a postponement as of right.
[4] A balancing act by the judicial
officer is required because there is a thin dividing line between managing a
trial and getting
involved in the fray. Should the line on occasion be
overstepped, it does not mean that a recusal has to follow or the proceedings
have to be set aside. If it is, the evidence can usually be reassessed on
appeal, taking into account the degree of the trial court’s
aberration.[6] In any event, an appeal
in medias res in the event of a refusal to recuse, although
legally permissible, is not available as a matter of right and it is usually not
the
route to follow because the balance of
convenience[7] more often than not
requires that the case be brought to a conclusion at the first level and the
whole case then be appealed.[8]
[5] This approach, which has been followed for many years by this Court, may
at first blush appear to be in conflict with the statement
that a biased (or
apparently biased) judge commits ‘an irregularity in the proceedings every
minute he remains on the
bench’.[9] That statement was
contextualised in S v
Khala[10]:
‘The
circumstances of the litigant complaining of the conduct of the Judge during the
trial itself, differ materially from those of
one who relies on outside factors
which he cannot judge on the strength of personal observation - factors
which raise questions such as: Could senior Defence Force officers be unbiased
in judging an attack on the legality of
actions and policies of the Defence
Force?[11] Or the president of the
industrial court, in a lengthy dispute before him between labour and management,
be unbiased despite having
in mid-litigation participated in a seminar arranged
by management's industrial relations consultants and in which management's
lawyers
all presented papers?[12] Or
more mundanely, would the magistrate be prepared to make an adverse credibility
finding against an important State witness if
that witness is his own wife? -
merely as examples. Schreiner JA pointed out the differences between the two in
R v Silber 1952 (2) SA 475 (A) at 481C-H, a matter similar to the present
one in that the application for recusal was not made at the outset of the trial
but
when it was well on its way. There too
“the grounds relied upon for suggesting bias were not facts outside the course of proceedings such as are ordinarily put forward as reasons why the judicial officer in question should not try the case. The grounds related purely to what had happened in the course of the trial. Neither counsel has been able to find any reported case in which an application for recusal has been made in the course of a trial on the ground that the judicial officer has shown bias by his conduct of the proceedings. And this is not surprising, since the ordinary way of meeting any apparent bias shown by the court in its conduct of the proceedings would be by challenging his eventual decision in an appeal or review. Bias, as it is used in this connection, is something quite different from a state of inclination towards one side in the litigation caused by the evidence and the argument, and it is difficult to suppose that any lawyer could believe that recusal might be based upon a mere indication, before the pronouncement of judgment, that the court thinks that at that stage one or the other party has the better prospects of success. It unavoidably happens sometimes that, as a trial proceeds, the court gains a provisional impression favourable to one side or the other, and, although normally it is not desirable to give such an impression outward manifestation, no suggestion of bias could ordinarily be based thereon. Indeed a court may in a proper case call upon a party to argue out of the usual order, thus clearly indicating that its provisional view favours the other party, but no reasonable person, least of all a person trained in the law, would think of ascribing this provisional attitude to, or identifying it with, bias.”
S v Rall 1982 (1)
SA 828 (A) sets out guidelines to ensure that in seeing that justice is done the
Judge also ensures that justice is seen to be done. It
is unnecessary to repeat
them here. The question is whether the trial Judge's questioning of [the
litigant] strayed outside of those guidelines at all and if so, could
reasonably
create the appearance, not at some passing stage in the course of the trial but
in making an overall assessment, that
his approach to the defence evidence was
not objective and impartial.’
[Underlining added.]
[6] Context,
it has been said somewhat hyperbolically, is everything in
law.[13] This case is not an
exception. The plaintiff bank, the present respondent, claimed payment of some
R10m in two actions that have
been consolidated. The main cause of action is
against the first appellant, a close corporation, and is based on an overdraft
account.
The other appellants were cited as sureties. The mentioned Mansoor, the
sole member of the close corporation, apart from being a
surety, is being held
liable for the same amount in terms of s 64 (liability for reckless or
fraudulent carrying-on of the business
of a close corporation) and/or s 65
(liability in a case of abuse of the separate juristic personality of a close
corporation) of
the Close Corporations Act 69 of 1984.
[7] The close
corporation and Mansoor were valued clients of the bank and had special
privileges. The close corporation was entitled
to draw against uncleared effects
and it could make payment to third parties by way of electronic transfer.
Mansoor, as sole member,
ran the close corporation and he was the designated
operator of its electronic bank facility. He was also in control of an account
at Nedbank which was purportedly being held by one A Mohamed trading as Highway
Distributors. (One of the factual issues flowing
from the claim based on the
Close Corporation Act’s provisions is whether Mohamed is the same person
as Mansoor but this aspect
of the matter has no bearing on the
appeal.)
[8] Mansoor drew a number of cheques, totalling R9 970 947, against
the account of Highway and deposited them on 9 August 2001, a
public holiday, at
an electronic banking facility (an autobank) into the account of the close
corporation. Almost immediately he,
in tranches, transferred R9 983 952.93 from
the latter account into the banking accounts of Metro Cash and Carry. These
payments
were made as consideration for cigarettes bought by the close
corporation, allegedly as broker on behalf of Highway. The seller required
cash
before delivery and only after the amounts had been deposited in its accounts,
did it release the cigarettes to Mansoor or his
agent.
[9] The cheques of
Highway were dishonoured because of a lack of funds soon after delivery of the
cigarettes. Somewhat brazenly, one
would have thought, Mansoor instructed the
bank to ‘reverse’ the payments by debiting the account of the seller
and crediting
that of the close corporation. Surprisingly, the bank began to
comply with the instruction; less surprisingly, the seller –
sans
R10m worth of cigarettes – objected and the bank, not surprisingly, then
refrained from complying with the instruction.
[10] The main defence against
the bank’s claim is that the bank was instructed by Mansoor to reverse the
entries and that it
failed to do so. Shortly after the trial began, the judge
raised the question whether this was at all a defence. He ordered argument
but
refrained, for reasons that are not apparent, from making a ruling on the issue
before the completion of the evidence.
[11] Ms Bolstridge, an employee of
the bank, was called to explain how electronic banking works. The
appellants’ counsel objected
to her evidence on the basis that it had to
be pleaded – a silly objection – but the judge allowed the evidence
provisionally.
She told the court what it already knew namely that an electronic
transfer amounts to an immediate transfer of money by a client
from one account
to another. Because of the appellants’ objection, the bank’s counsel
decided not to ask the witness
whether a reversal is possible. This did not
satisfy appellants’ counsel: he did not want to cross-examine the witness
at all
because, he said, the fact that a reversal is not possible had to be
pleaded – another untenable objection especially since
the appellants had
not alleged any obligation on the bank to heed the instruction.
[12] In
order to break the deadlock the judge requested the bank’s counsel to ask
of the witness whether an electronic payment
could be reversed and he told the
appellants’ counsel that he would be given time to prepare on this issue.
Ms Bolstridge then
testified about an inter-bank agreement under the auspices of
the Automatic Clearing Bureau which provides that without the
beneficiary’s
consent an electronic transfer cannot be reversed.
[13] The judge thereafter informed the witness that he was going to postpone
the case for a week. When he gave the date and time to
counsel, the
appellants’ lead counsel informed the court that he was not available and
was withdrawing as counsel – an
event that places a question mark behind
the request for time to prepare for cross-examination.
[14] At the resumed
hearing Mansoor appeared in person on behalf of himself, the close corporation
and the other defendants. Since
the previous hearing his junior counsel and
attorneys had also abandoned ship and, as mentioned, he applied for a
postponement. Understandably,
the court asked him why he was no longer
represented since, as he said, money was not an issue between him and his legal
team. He
did not know. The judge thought that it was because counsel had lost
faith in the case which, he said, was not surprising considering
the evidence
that had been led. On the question whether the bank could reverse the entries,
the judge enquired of Mansoor whether
the evidence was going to be disputed.
Mansoor thought it might be; he said he did not know. There is, possibly, an
expert –
of whom no notice had been given but who had been consulted by
counsel – who could testify that the banks did not have such
an agreement.
(If true, it places a question mark behind counsel’s objection.) Mansoor
wished, in the middle of the trial,
to explore the area by consulting some
professors at law.
[15] The other evidence to which the judge referred that
seemed to him to have been incontrovertible was a letter by the
appellants’
attorneys, which had already been proved and in respect of
which no version had been put, in which there was an unqualified admission
of
liability by the close corporation and an undertaking to pay the amount claimed
in full. In order to test the purpose of the postponement
in the light of the
undertaking the court asked Mansoor some questions to determine what evidence he
proposed to lead on this aspect.
Mansoor was either not able or not prepared to
answer the questions. Nothing was made of this part of the judge’s
interrogation
during oral argument before us.
[16] The argument for the
appellants before us is quite simple: The questions crucial to a decision of the
bank’s claim are
(i) did Mansoor give the instruction to reverse the
transfer and (ii) if so, could it have been carried out? These, said counsel,
are factual disputes (the only factual issue in relation to (ii) being whether
there was an interbank agreement or not). The judge’s
attitude evinced a
strongly held belief that these questions could not be answered in favour of the
appellants, which view was expressed
before the cross-examination of Ms
Bolstridge and, obviously, before the appellants had presented their evidence.
This, appellants
argued, created a reasonable apprehension of bias because the
judge had effectively judged the case even before the bank’s
case had been
closed.
[17] As counsel for the appellants), Mr Shaw QC (who did not appear
at the trial), rightly accepted, unless these questions raise
live issues, which
can sustain the appellants’ case, the appeal has to fail at the outset. I
am satisfied that they have no
bearing on the outcome of the case for a simple
reason. One may assume in the appellants’ favour that the instruction had
been
given. One may even assume in their favour that there is no inter-bank
agreement preventing the reversal of electronic transfers.
All that being
assumed, how can a bank retransfer an amount transferred by A into the account
of B back into the account of A without
the concurrence of B? Mr Shaw could not
suggest any ground on which this can be done; there simply is none. Once
transferred, the
money or credit belongs to B and the bank has to keep it at
B’s disposal. And, as Mr Shaw rightly accepted, a deadly legal
point
forcefully made by the court during argument cannot give rise to an apprehension
of bias in the eye of the ‘reasonable,
objective and informed’
litigant in possession of ‘the correct facts’.
[18] In view of
this, certain possibly injudicious remarks by the judge, including that that the
legal team, in the absence of any
other explanation, had withdrawn because
‘there is a loss of faith in the client’ in context meant, as
appears from the
whole surrounding debate and also from the judgment on the
postponement application, that he believed that the team could not carry
out
Mansoor’s mandate either in relation to the admission of liability or the
reversal point. In the context the implication
that the appellants could not
succeed on these points, irrespective of further evidence, was therefore fully
justified and would
never found a well-informed or reasonable apprehension of
bias.[14]
[19] The
appeal is dismissed with costs.
___________________
L T C HARMS
JUDGE OF APPEAL
AGREE:
SCOTT JA
CAMERON JA
MTHIYANE JA
CONRADIE
JA
[1] President of the Republic of
South Africa and others v South African Football Union and others [1999] ZACC 9; 1999 (4)
SA 147 (CC); S v Roberts 1999 (4) SA 915 (SCA); Sager v Smith 2001
(3) SA 1004 (SCA); SA Commercial Catering & Allied Workers Unionand
others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000
(3) SA 705 (CC).
[2] President
of the Republic of South Africa and others v South African Football Union and
others [1999] ZACC 9; 1999 (4) SA 147 (CC) para
48.
[3] R v Hepworth 1928 AD
265 277 per Curlewis JA.
[4]
Greenfield Manufacturers (Temba) (Pty) Ltd v Royton Electrical Engineering
(Pty) Ltd 1976 (2) SA 565 (A)
570E-F.
[5] Jones v National
Coal Board [1957] EWCA Civ 3; [1957] 2 All ER 155 (CA)
159B.
[6] R v Roopsingh 1956
(4) SA 510 (A) 515B-H; Hamman v Moolman 1968 (4) SA 340 (A) 344H;
Rondalia Versekeringskorporasie van SA Bpk v Lira 1971 (2) SA 586 (A)
590H; Solomon and another NNO v De Waal 1972 (1) SA 575 (A)
581A.
[7] Cf Smith v
Kwanonqubela Town Council 1999 (4) SA 947 (SCA) para
16.
[8] Cf R v Silber 1952
(2) SA 475 (A) 481E; SA Commercial Catering & Allied Workers Union v
Irvin & Johnson Ltd (Seafoods Division Fish Processing) [2000] ZACC 10; 2000 (3) SA 705
(CC) para 4-5.
[9] R v Milne and
Erleigh (6) 1951 (1) SA 1 (A) 6H; Moch v Nedtravel (Pty) Ltd t/a American
Express Travel Service [1996] ZASCA 2; 1996 (3) SA 1 (A)
9B-G.
[10] 1995 (1) SACR 246 (A)
252c-253b.
[11] The allusion is
to Council of Review, South African Defence Force, and others v Mönnig
and others 1992 (3) SA 482
(A).
[12] This refers to BTR
Industries South Africa (Pty) Ltd and others v Metal and Allied Workers’
Union and another 1992 (3) SA 673
(A).
[13] R v Secretary of
State for the Home Department, ex parte Daly [2001] UKHL 26; [2001] 3 All ER 433 (HL)
447a quoted in
Aktiebolaget Hässle and another v Triomed
(Pty) Ltd 2003 (1) SA 114 (SCA) para
1.
[14] Cf Rowe v Assistant
Magistrate Pretoria and another 1925 TPD 361 365-366.