referred to the document issued by the Director of the Commission, which is a summons. In order to support this contention counsel referred this court to the following paragraphs of the judgment: ‘(i) paragraph 3 where the court a quo correctly stated that the ‘defence objected to the production of evidence of bank statements obtained from the bank with summons issued under the Anti-Corruption Commission Act’ . . . .; (ii) paragraph 22 where the court a quo refers to a summons issued in terms of s 21(5) of the Act by the Director of the Commission where Mr Knouwds was required to appear before an authorized officer; (iii) paragraph 25 where the court stated that the “crux of the matter is the validity or otherwise of the search and seizure warrants issued by the Director of the Commission which ultimately led to the recovery of various bank statements and those from accused’s bank accounts and other relevant evidence to the case”; and (iv) paragraph 39 where the court a quo stated that “the Director of the Commission had a genuine belief . . . that an offence had been committed . . .” and that “the warrants are clear as to what official needed to conduct such searches . . . .”.’ Mr Small conceded that there was no explanation in the recusal application judgment for the reproduction of a search warrant instead of a summons, if one were to accept his contention that the court a quo ruled on the admissibility of evidence
In Munuma this court stated that ‘in order to succeed an applicant will have to show not only that the apprehension is that of a reasonable person but that it is also based on reasonable grounds. The requirement of reasonableness is therefore In Munuma it was pointed out that there is a ‘clear distinction between instances where the bias arises as a result of outside factors and instances where a litigant complains of the conduct of the judge during the trial itself’ and this court remarked with reference to certain authorities that the instances where bias was claimed as a result of the conduct of the judge during the trial itself, were indeed rare. In Take and Save Trading CC & others v Standard Bank of SA Ltd 2004 (4) SA 1 (SCA) at p 5 Harms JA emphasised that during a trial a ‘balancing act by a judicial officer is required because there is a thin dividing line between managing a trial and getting involved in the fray’. He expressed the view at para 4 that ‘an appeal in medias res in the event of a refusal to recuse, although legally permissible, is not available as a matter of right and it is usually not the route to follow because the balance of convenience more often than not requires that the case be brought to a conclusion at the first level and the whole case then be appealed’. The Judge of Appeal continued to state at para 5 that this approach may at first blush appear to be in conflict with the statement that a biased (or apparently biased) Judge commits ‘an irregularity in the proceedings every minute he remains on the bench’. According to him this statement was contextualised in S v Khala at
and well recognised principles accepted in a civilized society governed by the rule of law. If judicial bias or partiality is to be readily inferred, it opens the door to all manner of flimsy and bogus objections being raised to try and influence the judicial process by shopping around for the so-called correct judge – in effect litigants or those with causes before the Court seeking to decide who should sit in judgment over them.’ It was submitted that the court a quo correctly applied the test of recusal and that the appeal be removed from the roll. In view of the authorities referred to above propounding the view that it is rare to successfully raise the exceptio recusationis as a result of the conduct of a presiding officer during trial proceedings, this view appears to me to be the general rule, and does not exclude the possibility of exceptions. In my view, the facts in the Munuma matter is an example of such an exception. In that matter the appellants who had been arraigned on several charges including high treason applied for the presiding judge to recuse himself but he refused to do so. During the trial the appellants unsuccessfully challenged the jurisdiction of the court to hear the matter. In dismissing alibi defences raised by the appellants the judge a quo made certain credibility findings against some of the appellants. The appellants were at the conclusion of the trial convicted and sentenced. The question on appeal was whether the fact that the judge a quo had refused to recuse himself had resulted in an irregularity so gross that it would vitiate the proceedings.