South Africa Case Law

Communicare NPC v Acting Magistrate Burgins and Others (14664/2022)

Communicare NPC v Acting Magistrate Burgins and Others (14664/2022) [2023] ZAWCHC 117 (24 May 2023)

Court

Western Cape High Court, Cape Town

Case number

14664/2022

Judges

Binns-Ward, Mangcu-Lockwood

The court found that the first respondent, Ms Burgins, had published and associated herself with hostile opinions about the applicant on social media prior to presiding over the eviction application. These posts demonstrated a passionate and adverse interest in the applicant's affairs, including allegations of corruption and calls for deregistration. The court held that these circumstances gave rise to a reasonable apprehension of bias, and that Ms Burgins was under an ethical and legal duty to recuse herself. Her failure to do so rendered the proceedings before her a nullity. The court furth…

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• Judicial Bias
• Recusal
• Superior Courts Act Review
• Code Of Judicial Conduct
• Impartiality
• Eviction Proceedings

Sekgobela and Another v NG Pretorius N.O and Another (15/2021)

Sekgobela and Another v NG Pretorius N.O and Another (15/2021) [2021] ZALMPPHC 38 (28 July 2021)

Court

Limpopo High Court, Polokwane

Case number

15/2021

Judges

EM Makgoba, LGP Ledwaba

The court found that the marital relationship between the First Respondent and the prosecutor who processed the docket did not, in itself, give rise to a reasonable apprehension of bias. The First Respondent's wife was not the prosecutor conducting the trial, and her involvement was limited to administrative processing of the docket. The First Respondent credibly denied any prior knowledge of the case beyond the charge sheet, and the Applicants failed to provide evidence to the contrary. The court distinguished the present case from S v Dube and Others, where the prosecutor was directly invol…

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• Recusal Of Judicial Officer
• Reasonable Apprehension Of Bias
• Impartiality
• Review Proceedings

S v Molete (192/2014)

S v Molete (192/2014) [2015] ZAFSHC 37 (26 February 2015)

Court

Free State High Court, Bloemfontein

Case number

192/2014

Judges

G.J.M. Wright, M.H. Rampai

The High Court declined a pre-sentence review, set aside the magistrate’s recusal, and remitted the matter for sentencing.

• Recusal Of Judicial Officer
• Review Before Sentence
• Magistrates Courts Procedure
• Impartiality
• Criminal Conviction
• Sentencing Procedure

Director of Public Prosecutions v Holzen NO and Another (28126/07)

Director of Public Prosecutions v Holzen NO and Another (28126/07) [2010] ZAGPJHC 180 (1 September 2010)

Court

South Gauteng High Court, Johannesburg

Case number

28126/07

Judges

P.A. Meyer, P. Coppin

The High Court found that the presiding magistrate's findings during the bail application, particularly regarding the strength of the case and the credibility of witnesses, were material and not mere passing remarks. These findings created reasonable grounds for the state to apprehend that the magistrate would not be impartial in the extradition enquiry, as the same evidence would be presented. The magistrate's conduct during the recusal proceedings, including his comments and attitude towards the prosecutor, further fueled suspicion of bias. The court held that the state discharged its onus…

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• Extradition Act 67 Of 1962
• Judicial Recusal
• Impartiality
• Review Of Magistrate Decision

S v Dube and Others (523/07)

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

Court

Supreme Court of Appeal

Case number

523/07

Judges

Mthiyane, Lewis, Cachalia, Snyders, Mhlantla

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 impar…

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• Recusal Of Judicial Officer
• Reasonable Apprehension Of Bias
• Special Entry
• Impartiality
• Irregularity In Proceedings

S v Shackell (380/99)

S v Shackell (380/99) [2001] ZASCA 72; [2001] 4 All SA 279 (A); 2001 (4) SA 1 (SCA); 2001 (2) SACR 185 (SCA) (30 May 2001)

Court

Supreme Court of Appeal

Case number

380/99

Judges

Nienaber, Olivier, Brand

The Supreme Court of Appeal held that the appellant failed to discharge the onus of showing a reasonable apprehension of bias on the part of the trial judge, despite the tragic circumstances relating to the judge's son. The Court found that the expert opinion regarding the scratch marks was speculative and not based on properly admitted evidence, and thus could not support the trial court's finding of a cover-up. The appellant's version of events, though containing some improbabilities, was reasonably possibly true and did not support a conviction for murder. However, on his own version, the…

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• Recusal Of Judicial Officer
• Culpable Homicide
• Expert Evidence
• Impartiality
• Sentencing Principles