S v Dube and Others (523/07) [2009] ZASCA 28; 2009 (2) SACR 99 (SCA) ; [2009] 3 All SA 223 (SCA) (30 March 2009)

S v Dube and Others (523/07) [2009] ZASCA 28; 2009 (2) SACR 99 (SCA) ; [2009] 3 All SA 223 (SCA) (30 March 2009)

The Supreme Court of Appeal held that the failure of the Judge President to recuse himself when his wife appeared as counsel for the State constituted an irregularity that vitiated the appeal proceedings. The court found that a reasonable litigant would have entertained a reasonable apprehension of bias in these circumstances, regardless of whether actual bias was present. The fact that the appellants only became aware of the relationship after the hearing was immaterial; the perception of bias must be assessed from the perspective of the litigant, not counsel. The court emphasized that impartiality is a cornerstone of the judicial system and that justice must be seen to be done....

Citation
[2009] ZASCA 28
Parties
Appellant: Bongani Dube; Appellant: Lodrick Allen Mkhize; Appellant: Ntobeko Ndhlovu; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 March 2009
Case Number
523/07
Procedural Posture
Criminal Appeal / Appeal From Bophuthatswana High Court to Supreme Court of Appeal
Outcome
Appeal upheld to the extent that the special entry is sustained; the order of the court a quo is set aside and the appeal is remitted for rehearing before a differently constituted bench.
Judges
Mthiyane, Lewis, Cachalia, Snyders, Mhlantla
Legal Topics
Recusal of Judicial Officer, Reasonable Apprehension of Bias, Special Entry, Impartiality, Irregularity in Proceedings
Criminal Law Civil Procedure Recusal of Judicial Officer Reasonable Apprehension of Bias Special Entry Impartiality Irregularity in Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

Bongani Dube

Appellant

Lodrick Allen Mkhize

Appellant

Ntobeko Ndhlovu

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal From Bophuthatswana High Court to Supreme Court of Appeal

Legal Issues

  1. 1 Whether the Judge President should have recused himself due to his wife representing the State in the appeal.
  2. 2 Whether the failure to recuse constituted an irregularity that vitiated the appeal proceedings.
  3. 3 Whether a reasonable apprehension of bias existed in the circumstances.

Ratio Decidendi

The Supreme Court of Appeal held that the failure of the Judge President to recuse himself when his wife appeared as counsel for the State constituted an irregularity that vitiated the appeal proceedings. The court found that a reasonable litigant would have entertained a reasonable apprehension of bias in these circumstances, regardless of whether actual bias was present. The fact that the appellants only became aware of the relationship after the hearing was immaterial; the perception of bias must be assessed from the perspective of the litigant, not counsel. The court emphasized that impartiality is a cornerstone of the judicial system and that justice must be seen to be done....

Court Disposition

Appeal upheld to the extent that the special entry is sustained; the order of the court a quo is set aside and the appeal is remitted for rehearing before a differently constituted bench.

Orders

  • The appeal succeeds to the extent that the special entry is upheld.
  • The order of the court a quo is set aside and replaced with: 'The appeal is remitted to the High Court for re-hearing before a differently constituted Full Bench.'