seeming fair
Clients often complain that they lost their
court case because the judge was biased. When
are they to be taken seriously?
MOST lawyers have heard their unsuccessful
clients complain, after their case was lost,
about the judge who decided against them. If
the complaint is merely that the judge was an
idiot, then lawyers leave the matter at that,
with a few sympathetic murmurs of assent —
perhaps because the law has indeed been an
ass, but at least as often because it con-
veniently deflects attention away from some
inept advice.
But it is different if the client’s moans
relate to bias: too many of these, and the
public loses all faith in the judges and
reverts to the medieval procedure (sanctioned
by the courts in those days, believe it or
not) of trial by battle. Modern variations are
already currently practised in some parts of
South Africa, and they are very nasty.
For this reason, the courts jealously protect
their image and will always strike down a
biased decision. But how does one prove bias
in the modern age? Society has come a long way
since the astonished response of a 17th-
century English judge to a truly huge bribe:
“It is too much”.
The test nowadays is simply whether one of the
litigants has a “reasonable apprehension of
bias”, and it is irrelevant whether or not the
judge is, in fact, biased.
This test was settled by the Appellate
Division (AD) in a case brought by members of
the Metal and Allied Workers’ Union against
BTR Sarmcol. They had been dismissed for
striking and applied to the industrial court
for their reinstatement. Their case was heard
by Pierre Roux, SC, deputy president of the
industrial court.
During a break in the proceedings, he was
invited to address a seminar hosted by BTR’s
industrial relations advisers and, in the face
of the union’s objections, he attended. It was
a decision that owed more to braggadocio than
to common sense because, after he had found
against the union, the Durban Supreme Court
set aside his decision and the AD confirmed
this.
The interesting point is that no one suggested
that Roux had been biased; the courts simply
held that the union’s members could quite
reasonably have suspected him of bias because
he had shared a platform with BTR’s advisers.
The high value placed on appearances is
illustrated in a recent AD case in which a
certain Ms Moch appealed against an order of
sequestration. It arose out of the sometimes
surly and fractious relationships of
Johannesburg’s legal world.
The judge was Dennis Fine, a respected and
capable senior counsel, then acting as a judge
of the supreme court. Moch’s attorney was A
Levin.
Moch’s sequestration was partly argued and,
when it reconvened before Fine, she brought an
application for his recusal. In essence, she
claimed a “strained relationship” between her
attorney and Fine, apparently because her
attorney had cross-examined Fine at a Bar
Council inquiry and Fine had told another
attorney that he “was going to get Levin one
day”.
Fine was, understandably, outraged and he said
so; he found the application for his recusal
“scandalous” and the conduct of those
responsible for it “reprehensible and
improper”. He treated the application, as the
AD later noted, as “an assailment of his
personal dignity”.
But the AD sits in the more dispassionate and
rarified atmosphere of Bloemfontein, far away
from the ruckus of Johannesburg litigation
courts. It stated that a “judicial officer
should not be unduly sensitive and ought not
to regard an application for his recusal as an
affront”.
It also found that once Fine had chosen the
course of treating the application for his
recusal on the basis of “the sufficiency of
the evidence” and found Moch “to be a perjurer
who had deliberately intended to deceive him”,
his position had become “an intolerable one”,
because she was a witness in her own
sequestration proceedings and he should
therefore have withdrawn. The appeal was
therefore upheld.
The judgment is to be welcomed as a strong
affirmation of the principle that not only is
justice required to be done, but that it must
be seen to be done. And however sympathetic
one is for Fine, he need not feel too
aggrieved at the result; he is in excellent
company. In the last century, the British
House of Lords set aside a judgment handed
down by the Lord Chancellor also in
circumstances where there was no suggestion of
actual bias.
The principle is that public perceptions of
bias are important, and any litigant is
entitled to call to account a court that does
not defer to them.