Fisher v Etchell and Another (15938/2020) [2021] ZAGPJHC 765 (1 December 2021)

Fisher v Etchell and Another (15938/2020) [2021] ZAGPJHC 765 (1 December 2021)

The court found that, while the applicant did not prove actual bias, the conduct of the magistrate during the protection order proceedings, as reflected in the available record and uncontested allegations, was sufficient to create a reasonable apprehension of bias in the mind of a reasonable litigant. The double reasonableness test was satisfied. The magistrate's interruptions, differential treatment, and certain remarks could reasonably be interpreted as partiality or impatience, especially towards an unrepresented litigant. The absence of an answering affidavit and the incomplete record required the court to accept the applicant's version where not contradicted. The magistrate's refusal...

Citation
[2021] ZAGPJHC 765
Parties
Applicant: Mary Fisher; Respondent: Magistrate Louise Etchell; Respondent: Gabby Lobban
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
1 December 2021
Case Number
15938/2020
Procedural Posture
Review Application / Unopposed Motion Court; Review of Magistrate's Refusal to Recuse
Outcome
Application for review granted; magistrate's refusal to recuse set aside; matter remitted for hearing de novo before a different magistrate.
Judges
G Nel
Legal Topics
Recusal of Judicial Officer, Reasonable Apprehension of Bias, Section 34 Constitution, Review of Magistrate Decision
Civil Procedure Constitutional Law Recusal of Judicial Officer Reasonable Apprehension of Bias Section 34 Constitution Review of Magistrate Decision

Case Brief

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Parties

Mary Fisher

Applicant

Magistrate Louise Etchell

Respondent

Gabby Lobban

Respondent

Procedural Posture

Review Application / Unopposed Motion Court; Review of Magistrate's Refusal to Recuse

Legal Issues

  1. 1 Whether the magistrate's refusal to recuse herself was reviewable for reasonable apprehension of bias.
  2. 2 Whether the applicant established a reasonable apprehension of bias under the double reasonableness test.
  3. 3 Whether the proceedings in the magistrate's court were conducted in a manner inconsistent with section 34 of the Constitution.

Ratio Decidendi

The court found that, while the applicant did not prove actual bias, the conduct of the magistrate during the protection order proceedings, as reflected in the available record and uncontested allegations, was sufficient to create a reasonable apprehension of bias in the mind of a reasonable litigant. The double reasonableness test was satisfied. The magistrate's interruptions, differential treatment, and certain remarks could reasonably be interpreted as partiality or impatience, especially towards an unrepresented litigant. The absence of an answering affidavit and the incomplete record required the court to accept the applicant's version where not contradicted. The magistrate's refusal...

Court Disposition

Application for review granted; magistrate's refusal to recuse set aside; matter remitted for hearing de novo before a different magistrate.

Orders

  • The Magistrate's Judgment and Order dated 9 July 2020, dismissing the applicant's application for recusal, is set aside in its entirety.
  • The protection order application instituted by the applicant against the second respondent in the Randburg Magistrates Court under case number 1263/2019 is to be heard de novo by Senior Magistrate NM Karikan, Civil and Family Court, Randburg.