the rules of court and to hear the matter as one urgency, given the self created and self induced nature of the urgency with which the application had been brought. I accordingly struck the matter from the roll with costs. [15] Having set out what occurred in that application and the ruling made, I turn to refer to the applicable legal principles concerning recusal. Principles governing recusal applications [16] The applicant contends that he has a reasonable likelihood or apprehension of bias if I were to preside in the review application. The principles applicable to recusal were, with respect, recently succinctly summarised by the South African Constitutional Court in Bernert v Absa Bank in the following way: ‘The apprehension of bias may arise either from the association or interest that the judicial officer has in one of the litigants before the court or from the interest that the judicial officer has in the outcome of the case. Or it may arise from the conduct or utterances by a judicial officer prior to or during proceedings. In all these situations, the judicial officer must ordinarily recuse himself or herself. The apprehension of bias principle reflects the fundamental principle of our Constitution that courts must be independent and impartial. And fundamental to our judicial system is that courts must not only be independent and impartial, but they must be seen to be independent and impartial. The test for recusal which this Court has adopted is whether there is a reasonable apprehension of bias, in the mind of a reasonable litigant in possession of all the relevant facts, that a judicial officer might not bring an impartial and unprejudiced mind to bear on the resolution of the dispute before the court.’ [17] The court in Bernert then referred to the proper approach to an application for recusal articulated in one of its previous decisions in SARFU and Others v President of South Africa & Others as: ‘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
[30] Previously occupying that position of an entity which is not before this court or having a direct or substantial interest in the interlocutory or review application, would also not in my view give rise to a apprehension of bias on the part of the applicant reasonably held. Case No A 311/2012 [31] There is reference to the fact that I had recused myself in another matter involving a certain Terence Noble where Standard Bank was a party and my recusal was sought. It is not explained how the mere fact of my recusal in another matter which is not stated as having any bearing upon this matter can give rise to a reasonable apprehension of bias being reasonable or being reasonably held. Legal Assistance Trust [32] The applicant further contends in his founding affidavit that he would ‘not obtain a fair before Smuts, J as a result of publicly known serious allegations of inter alia money laundering and tax evasion against you (Smuts, J).’ These allegations are not specified in his affidavit. Nor is their relevance to the review application anywhere explained. [33] They would appear to refer to the allegations made in the memorandum filed in the interlocutory application, placed in the court file where the following is stated by Ms Erica Beukes, in the memorandum: ‘Erica Beukes investigated Smuts, the Legal Assistance Trust, and the Legal Assistance Centre and found that he was running a massive money laundering scam and tax evasion through the LAT and LAC.’ [34] That organisation contends that the Legal Assistance Trust (LAT) which operates and funds the Legal Assistance Centre (LAC) was illegal because the trust was not registered when it was constituted in 1988. It is correct that I was the founder of the LAT and founding director of the LAC and that the former raised funds for the latter. The organisation asserts that, as a consequence of the alleged illegalities surrounding the
[51] It is also clear that this issue raised by the applicant would not give rise to a reasonable apprehension of bias or one being reasonably held. Conclusion [51] I have in some detail referred to the primary basis for this application for recusal – accepting the answering affidavit in the interlocutory application. Even though they were not raised in argument, I have also referred to the other grounds raised in the founding affidavit. I have found that the none of the grounds advanced, considered on their own or even together, gives rise to a reasonable apprehension of bias on my part in the context of the double requirement of reasonableness set out above. [52] I accordingly dismiss the applicant’s recusal application with costs __________ DF SMUTS Judge APPEARANCE FOR THE APPLICANT: N.L. Januarie In Person FOR THE 1ST RESPONDENT: Mr Boonzaier Instructed by: Government Attorney FOR THE 2ND RESPONDENT: Mr Phatela Instructed by: Dr Kauta & Hoveka Inc.