THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No 523/07

In the matter between:

BONGANI DUBE

First appellant
LODRICK ALLEN MKHIZE

Second appellant
NTOBEKO NDHLOVU

Third appellant

and

THE STATE

Respondent

Neutral citation: Dube v The State (523/07) [2009] ZASCA 28 (30
March 2009)

Coram:
Mthiyane, Lewis, Cachalia, Snyders et Mhlantla JJA

Heard:
13 March 2009

Delivered: 30 March 2009

Summary: Special entry ─ recusal on grounds of appearance of bias.

Test for bias ─ judicial officer's failure to recuse himself
tainted the appeal process ─ order set aside ─ appeal remitted
for rehearing.

ORDER
____________________________________________________________

On appeal from:  Bophuthatswana High Court (Mogoeng JP and Gura J
sitting as a court of appeal).
(a)
The appeal succeeds to the extent that the special entry is upheld;
(b)
The order of the court a quo is set aside and replaced with the
following:
'The appeal is remitted to the High Court for re-hearing before a
differently constituted Full Bench.'

JUDGMENT
___________________________________________________________

MHLANTLA JA (Mthiyane, Lewis, Cachalia and Snyders JJA

concurring)

[1] On 26 March 2002 at approximately 09h15 the First National Bank
in Koster was robbed of R119 000 by four armed men. The appellants
were subsequently arrested as suspects and charged in the Regional
Court, Rustenburg with one count each of robbery with aggravating
circumstances. They were convicted and sentenced to 16 years'
imprisonment each. Their appeal to the Bophuthatswana High Court,
before Mogoeng JP and Gura J against both conviction and sentence was
based on several grounds, including alleged irregularities in the
proceedings, and whether the identity of the appellants had been proved.
The appeal was dismissed on all bases. Mr Dube, the first appellant has

since died. The appeal to this court is with the leave of the court a quo.

[2] This appeal is based on a special entry relating to an alleged
irregularity in the court a quo, in terms of s 317 of the Criminal Procedure
Act 51 of 1977, as well as on the merits. Only the issue relating to the
special entry was argued before us.

[3] Accordingly this judgment deals only with that issue ─ whether the
Judge President should have recused himself mero motu because his wife,
a state advocate, represented the State in the appeal before the court; and
if so, whether his failure to recuse himself constituted an irregularity
which vitiated the appeal proceedings. In answering these questions it is
necessary to sketch briefly the background events leading to the
application for a special entry.

[4] According to counsel for the appellants, he and the correspondent
attorney learnt on the day of the appeal hearing that the Judge President
would be one of the judges presiding over the appeal. At that stage,
counsel was aware that Mrs Mogoeng, the Judge President's wife, was
arguing the appeal on behalf of the State. The appellants were not in court
during the hearing. Their counsel did not foresee any problems and never
considered the possibility of asking the Judge President to recuse himself
on the basis that his wife was representing the State. He did not, at the
time of arguing, believe that it was necessary to request a recusal because
he had been involved previously in a full bench appeal presided over by
Judge President Mogoeng  and at which Mrs Mogoeng represented the
State – S v Baletseng 2005 (2) SACR 28 (B). That appeal was decided in
favour of the appellants.

[5] After the appeal was dismissed in the present matter counsel met
the appellants in prison to discuss the judgment and outcome with them.
It was at that stage that the appellants enquired about the similarity of the
surnames between that of the Judge President and the state advocate.
Counsel thereupon informed them that the two were in fact husband and
wife. The appellants were not comfortable with this revelation. This
eventually led to the application for a special entry on the basis that the
appellants had a perception of bias on the part of the Judge President. The
application for a special entry was granted by the full bench.

[6] The test applicable to determine whether a judicial officer is
disqualified from hearing a case by reason of a reasonable apprehension
of bias was enunciated in President of the Republic of South Africa and
others v South African Rugby Football Union and others.1 In that case the
Constitutional Court said:
'It follows from the foregoing that the correct approach to this application for the
recusal of members of this court is objective and the onus of establishing it rests upon
the applicant. The question is whether a reasonable, objective and informed person
would on the correct facts reasonably apprehend that the judge has not or will not
bring an impartial mind to bear on the adjudication of the case, that is a mind open to
persuasion by the evidence and the submissions of counsel. The reasonableness of the
apprehension must be assessed in the light of the oath of office taken by the judges to
administer justice without fear or favour; and their ability to carry out that oath by
reason of their training and experience. It must be assumed that they can disabuse
their minds of any irrelevant personal beliefs or predispositions. They must take into
account the fact that they have a duty to sit in any case in which they are not obliged
to recuse themselves. At the same time, it must never be forgotten that an impartial
judge is a fundamental prerequisite for a fair trial and a judicial officer should not
hesitate to recuse herself or himself if there are reasonable grounds on the part of a

1 1999 (4) SA 147 (CC)  para 48. This test was considered with approval in SACCAWU  v Irvin &
Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC), and in Locabail (UK) Ltd v
Bayfield Properties Ltd and another [2000] 1 All ER 65  (CA) at 76F to 77A.

litigant for apprehending that the judicial officer, for whatever reasons, was not or
will not be impartial.'

[7] Where the claimed disqualification is based on a reasonable
apprehension, the court has to make a normative evaluation of the facts to
determine whether a reasonable person faced with the same facts would
entertain the apprehension. The enquiry involves a value judgement of
the court applying prevailing morality and common sense.2 A cornerstone
of our legal system is the impartial adjudication of disputes which come
before our courts and tribunals. What the law requires is not only that a
judicial officer must conduct the trial open-mindedly, impartially and
fairly but that such conduct must be manifest to all those who are
concerned in the trial and its outcome, especially the accused.3

[8] It is settled law that not only actual bias but also the reasonable
perception of bias disqualifies a judicial officer from presiding (or
continuing to preside) over judicial proceedings. Once this is established
the disqualification is so complete that continuing to preside after recusal
should have occurred renders the further proceedings a nullity.4 This dual
aspect is captured in the oft repeated words that justice must not only be
done, but must manifestly be seen to be done.5

[9] The Bangalore Principles of Judicial Conduct6 are a comprehensive
statement of ethical principles. The second value identified by these
principles is that of 'impartiality'. The principle is articulated as follows:

2 S v Basson 2004 (6) BCLR 620 (CC) para 53.
3 S v Roberts 1999 (4) SA 915 (SCA) para 25.
4 Take and Save Trading CC and others v Standard Bank of SA Ltd 2004 (4) SA 1 (SCA) at para 5.
5 R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 at 259, per Lord Hewart CJ.
6 The Bangalore Principles were adopted by the Judicial Group on Strengthening Judicial Integrity, at a
meeting of Chief Justices held in The Hague, Netherlands on 25-27 November 2002. The principles are
intended to establish standards for ethical conduct of judges and are designed to afford the judiciary a
framework for regulating judicial conduct.

'Impartiality is essential to the proper discharge of the judicial office. It
applies not only to the decision itself but also to the process by which the
decision is made'.

[10] 'Impartiality is the fundamental quality required of a judge and the core
attribute of the judiciary. It must exist both as a matter of fact and as a matter of
reasonable perception. If partiality is reasonably perceived, that perception is likely to
leave a sense of unease, grievance and of injustice having been done, thereby
destroying confidence in the judicial system. The perception of impartiality is
measured by the standard of a reasonable observer. The perception that a judge is not
impartial may arise in a number of ways, for instance, by a perceived conflict of
interest; by the judge's behaviour on the bench, or by the judge's out-of-court
associations and activities. A judge must therefore avoid all activity that suggests that
the judge's decision may be influenced by external factors such as the judge's personal
relationship with a party or interest in the outcome.'7

[11] It is helpful to refer to other jurisdictions to ascertain how the rule
is applied. In some states of the United States of America, the rule is
mandatory when a judge's spouse or relative to the third degree is a party.
The Code of Judicial Conduct in Arkansas for example provides that a
judge should disqualify himself or herself in a proceeding in which his or
her impartiality might reasonably be questioned, including but not limited
to instances where: he or she has a personal bias or prejudice concerning
a party or personal knowledge of disputed evidentiary facts concerning
the proceeding, where he or she or his or her spouse, or a person within
the third degree or relationship to either of them, or the spouse of such
person is acting as a lawyer in the proceeding. A judge disqualified in
terms of the Code, may, instead of withdrawing, disclose on the record
the basis of his disqualification. If based on such disclosure and if the

7 Section 52 of the Commentary on the Bangalore Principles.

parties and lawyers independently of the judge's participation all agree in
writing that the judge's relationship is immaterial or that his financial
interest is not substantial, the judge may participate in the proceeding.
The agreement has to be incorporated in the record of the proceedings.

[12]  In this country a judicial officer was held to be disqualified in a
case where his wife was called as a witness.  In S v Sharp8 the
complainant was the magistrate's wife. He presided in a trial where his
wife testified. The court on review held that the magistrate had a direct
personal   interest  in  the  outcome  of  the  proceedings  and  that  it  was
difficult to conceive of a more obvious example necessitating recusal.

[13] The rule is clear: generally speaking a judicial officer must not sit
in a case where he or she is aware of the existence of a factor which
might reasonably give rise to an apprehension of bias. The rationale for
the rule is that one cannot be a judge in one's own cause. Any doubt must
be resolved in favour of recusal. It is imperative that judicial officers be
sensitive at all times. They must of their own accord consider if there is
anything that could influence them in executing their duties or that could
be perceived as bias on their part. It is not possible to define or list factors
that may give rise to apprehension of bias – the question of what is proper
will depend on the circumstances of each case.

[14] In situations where the judge has a relationship with a party or a
legal representative appearing before him or her, it is always appropriate
for the judge to consider the degree of intimacy between him or herself
and the person concerned. The more intimate the relationship, the greater
the need for recusal. In the case such as the present, where there is a close

8 2002 (1) SACR 360 (Ck) para 21.

relationship between the presiding officer and one of the legal
representatives, it appears to be undesirable if not improper for such
judicial officer to sit in the matter. No general rule as to the kinds of
relationship that should require recusal need be laid down, however,
given the clarity of the test in SARFU.

[15] There may, of course, be instances where it is difficult to avoid
closely connected people working in a matter. The preferred route would
then be to bring in other judicial officers or legal representatives from
different jurisdictions. If it is not feasible then the relationship must be
brought to the attention of the parties and their consent canvassed before
the commencement of the hearing. If such consent is given it must be
entered into the record.

[16] I turn now to consider the circumstances relating to the special
entry in this appeal. Counsel for the respondent submitted that the
perception of bias could not be established because counsel for the
appellants had been aware of the relationship between the Judge President
and the state advocate. This argument in my view is without merit. The
test set out in SARFU does not relate to counsel but to the litigant. It is the
litigant who must entertain a reasonable apprehension of bias for the
disqualification to be sustained. Although counsel was aware of the
relationship concerned before the hearing, it is common cause that he had
not discussed the issue with the appellants. The appellants learnt for the
first time about the relationship when the judgment on appeal was shown
to them. Consequently the fact that their counsel, on the basis of what had
occurred in Baletseng, did not object to the sitting of the Judge President,
is irrelevant to the present enquiry. In that case the relationship of the
Judge President and his wife was not raised. It is not clear what would

have happened if it had been.

[17] In making the special entry, the learned Judge President was alive
to this issue: He said:
'Be that as it may, we are inclined to allow the special entry irrespective of whether it
is the applicants or Mr Shapiro or both who have the perception that the Presiding
Judge or both judges are biased against the applicants. We do so because we believe
that a perception by a layperson that a husband and wife may, in the secrecy of their
bedroom, inadvertently or deliberately find themselves talking about the case in which
they are involved cannot be said to be frivolous or ridiculous. An application for the
recusal of a presiding officer in the position of the Presiding Judge in this matter
cannot be said to be absurd or an abuse of process and an average right-thinking
person would, in all likelihood, sympathise with a person in the position of the
applicants in this matter.'

[18] Counsel for respondent contended that the appellants' submissions
would be persuasive if the Judge President had been sitting alone. I do not
agree with this submission. In R v Bow Street Stipendiary Magistrate, Ex
parte Pinochet Ugarte (no 2)9 a majority of the court, including Lord
Hoffman, had issued an order against Senator Pinochet. He subsequently
brought a petition to set aside the order on the basis that Amnesty
International (AI) was a party to the appeal; that AI was joined in order to
argue a particular result and that Lord Hoffman, a member of the
Appellate Committee that had heard the appeal, was a director of a
charity closely allied to AI. Lord Nolan held that in any case where the
impartiality of a judge was in question, the appearance of the matter was
just as important as the reality. The House of Lords held that Lord
Hoffman's links were such as to give the appearance that he might have
been biased against the applicant; that he had an interest in the outcome

9 [1999] 1 All ER 577; [1999] 2 WLR 272.

of the proceedings and was accordingly disqualified from sitting as a
judge in those proceedings. The previous order of the House of Lords was
set aside. Similarly in this case, the proceedings are tainted regardless of
the fact that the Judge President heard the matter with another judge and
irrespective of the fact that the Judge President did not conduct himself at
the hearing in a manner that gave rise to a reasonable suspicion of bias.

[19] It seems to me that a reasonable litigant would have been justified
in entertaining a reasonable perception of bias on the part of the Judge
President given that he is married to counsel for the State. This does not
of course mean that bias on the part of the Judge President was
established. Nor does this judgment seek to lay down a rule that in every
case in which a judge is related to a legal representative he or she will be
disqualified from presiding or sitting. It is as I have said, a question that
will have to be evaluated from case to case with due regard to the
principles laid down in SARFU and other pertinent cases.

[20]  For the above reasons the failure of the Judge President to recuse
himself when his wife presented argument for the State in the court below
constituted an irregularity which vitiated the appeal proceedings. In the
result the appeal succeeds to the extent that the special entry must be
upheld. The order of the court a quo must be set aside and the appeal
referred back for re-hearing before a differently constituted bench.

[21] In the result the following order is made:
(a)
The appeal succeeds to the extent that the special entry is upheld.
(b)
The order of the court a quo is set aside and replaced with the
following:
'The appeal is remitted to the High Court for re-hearing before a

differently constituted Full Bench.'

_______________

N Z MHLANTLA

JUDGE OF APPEAL

Appearances:
For Appellant:
P I Shapiro

Instructed by:

Ms Ester Resnik, Observatory, Johannesburg

Giorgi & Gerber Attorneys, Bloemfontein

For Respondent:
G S Maema

Deputy Director of Public Prosecutions, Mafikeng

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

30 March 2009

STATUS: Immediate

B DUBE AND OTHERS & THE STATE  CASE NO 523/07

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

The SCA granted an application in favour of the appellants for a special entry
which related to the question whether the Judge President of the
Bophuthatswana High Court who presided over an appeal against the appellants
should have recused himself. The Judge President had sat with another judge in
an appeal in which the advocate who represented the State was his wife.

The complaint was that because of the close relationship between the Judge
President and his wife, he would not have brought an impartial mind to bear on
the adjudication of the case before him.

The SCA accepted that it was not only the actual bias that would disqualify a
judicial officer from sitting in a case but also a reasonable perception of bias.
The court however accepted that in the present case no actual bias had been
proved against the Judge President but considered that the reasonable
perception entertained by the appellants was sufficient.

The court accordingly granted the application and made an order remitting the
matter to the Bophuthatswana High Court for a re-hearing of the appeal before a
re-constituted Full Bench.

- - ends --