H v S.H - Ex tempore (44450/2020) [2023] ZAGPJHC 1385 (23 November 2023)

H v S.H - Ex tempore (44450/2020) [2023] ZAGPJHC 1385 (23 November 2023)

The court found that the applicant failed to discharge the double requirement of reasonableness in the recusal test. The grounds advanced were based on the judge's factual findings and procedural management of the case, not on any conduct or statements that would lead a reasonable, objective person to apprehend bias. The judge's references to the absence of bank statements and the allocation of evidentiary burdens were matters of law and fact, not evidence of partiality. The application was procedurally irregular, having been launched orally and at the last minute without proper notice or supporting affidavit. The presumption of judicial impartiality was not displaced, and the application...

Citation
[2023] ZAGPJHC 1385
Parties
Applicant: H; Respondent: SH
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
23 November 2023
Case Number
44450/2020
Procedural Posture
Recusal Application / Application for Recusal of Presiding Judge in Leave to Appeal Proceedings
Outcome
Application for recusal dismissed with costs.
Judges
Ingrid Opperman
Legal Topics
Recusal of Judge, Reasonable Apprehension of Bias, Costs Award, Rule 43 Orders
Civil Procedure Recusal of Judge Reasonable Apprehension of Bias Costs Award Rule 43 Orders

Case Brief

Summary, issues, holding and outcome

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Parties

H

Applicant

SH

Respondent

Procedural Posture

Recusal Application / Application for Recusal of Presiding Judge in Leave to Appeal Proceedings

Legal Issues

  1. 1 Whether the applicant has established a reasonable apprehension of bias warranting the recusal of the presiding judge.
  2. 2 Whether the procedure adopted for the recusal application was proper and fair.
  3. 3 Whether the judge's prior findings and comments in the main judgment create a perception of bias.

Ratio Decidendi

The court found that the applicant failed to discharge the double requirement of reasonableness in the recusal test. The grounds advanced were based on the judge's factual findings and procedural management of the case, not on any conduct or statements that would lead a reasonable, objective person to apprehend bias. The judge's references to the absence of bank statements and the allocation of evidentiary burdens were matters of law and fact, not evidence of partiality. The application was procedurally irregular, having been launched orally and at the last minute without proper notice or supporting affidavit. The presumption of judicial impartiality was not displaced, and the application...

Court Disposition

Application for recusal dismissed with costs.

Orders

  • The application for the recusal of this court from the application for leave to appeal is dismissed with costs.