The
applicant was, all along, being represented by his legal practitioners, who
have since renounced agency a day or so before this matter was heard.
The
applicant then appeared, in person, in Chambers, and asked that I be recused
from hearing the said application as I might not be able to objectively deal
with this matter as I am aware of a pending administrative issue involving
himself, Mr. Mlotshwa, the High Court Registry Clerk, and Mrs. N.Tachiona, a
legal practitioner.
I
can confirm that various reports which touch on the applicant and Mr. Mlotshwa
have been received by myself, and are currently under investigations.
What
falls for determination before me is whether or not I should recuse myself in
this matter.
It
is the duty of a judge and/or court to dispense equal justice without fear,
favour, or prejudice, at all times.
In
order for a judicial officer to recuse himself in a matter where the
possibility of bias is being alleged by a litigant, two essential requirements
must be met, namely -
(1)
That the bias must be in connection with the litigant in question; and
(2)
Must be of such a nature that a real likelihood exists that the judicial
officer would have a bias in favour of the litigants from kindred or other
cause.
The
principle was clearly laid down in S v Bam 1972 (4) SA 41..., where KATZE J
stated -
“It
should always be borne in mind that an applicant, or his representative, who
finds it necessary to apply for the recusal of a judicial officer, is
confronted with an unenviable task, and the propriety of his motives should not
lightly be questioned.”
While
a judicial officer is trained to dispense justice without bias, fear, or
prejudice, human nature, being what it is, should not rigidly cling to the oath
of office and completely shut out from his mind the likelihood of bias on his
perception of a litigant. Where such likelihood exists, a judicial officer
should consider the motives of the application. Where the application is actuated
by the best motives, it should, no doubt, recuse him or herself.
In
considering the issue of recusal, the judicial officer should always take into
account the circumstances of the case, and, above all, ascertain what
impression they would create upon a reasonable citizen, and in the eyes of the public
– see Head and Fourtuin v Woolaston N.O. and De Villiers N.O. 1926 TPD 549
where STRATFORD J..., stated –
“If I understand the authorities aright (sic),
the disqualification arises whereas the judges relation to the parties is such,
or his interest in the case is such, or his knowledge of the facts, or
antecedents of the parties, is such as would tend to bias his mind at the
trial. In short, any condition of things which, reasonably regarded, is liable to
destroy his impartiality should disqualify him.”
The
same principle was adopted in Sladie v The Pretoria Rent Board 1943 TPD 246.
In
casu, the applicant's objection is with regards to a matter which has come to
my attention after this matter had been set down. From his submissions, it
appears that new circumstances that touch on the administration of the High
Court, Bulawayo are unfolding, to an extent that his legal practitioner has
abandoned him, as has now been instructed by Mr. Mlotshwa, who is also implicated
in some wrongdoing involving both him and the applicant. I make no comments on
that decision...,.
The
first requirement is accordingly established, as laid down in S v Bam 1972 (4)
SA 41..., that the likelihood of bias in favour of the litigants from whether
kindred, or other, cause apply. The administrative issue referred to involving
the applicant being the “other cause.”
The
applicant, indeed, has reason to be apprehensive in view of his alleged
misdemeanours, and my investigations of the issue in question. In my opinion, a
reasonable citizen, and the eyes of the public, will see the existence of bias –
which is what should be avoided by all judicial officers.
It
is, therefore, my considered opinion that in the present circumstances, justice
demands that a judicial officer who finds himself in these circumstances should
not hesitate to recuse himself in order to allow the wheels of justice to glide
along without let-up or hinderance.
In light of the above, the applicant's application
succeeds.
