Recusal of judges: When can a judge recuse him or herself?

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April 1, 2021

The doctrine of recusal has recently been placed in the spotlight after former president Jacob Zuma brought such an application at the Commission for Enquiry into State Capture, chaired by Deputy Chief Justice Raymond Zondo. The recusal of a judge is a serious matter and should not be considered lightly. This article will briefly consider the origin and constitutional basis of the doctrine of recusal with reference to some of the pertinent judgments dealing with this issue.

The doctrine of recusal has its origin in the rules of natural justice, which requires that a person accused before a court should have a fair trial. This common law position has since been entrenched in the Constitution of the Republic of South Africa (“the Constitution”). Section 34 of the Constitution gives everyone in South Africa the right “to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.” Section 35 of the Constitution is similar in that it guarantees a fair trial for persons accused of committing a crime.

Furthermore, section 165(2) of the Constitution requires courts to apply the law impartially and without fear, favour, or prejudice. The oath of office prescribed by schedule 2 of the Constitution requires each judge to swear that he or she will uphold and protect the Constitution and will administer justice to all persons alike without fear, favour, or prejudice, in accordance with the Constitution and the law. The above is also reflected in Article 13 of the Code of Conduct for Judges. The Code of Conduct states that a judge must recuse him- or herself if there is a real or reasonably perceived conflict of interest, or if there is a reasonable suspicion of bias based upon objective facts. It furthermore states that a judge shall not recuse him- or herself on insubstantial grounds.

The Constitutional Court has stated in President of the Republic of South Africa & Others v South African Rugby Football Union & Others that there exists an anterior presumption that a judge is unbiased. This presumption exists due to the oath that judges take upon being appointed, as well their training and experience, which should enable a judge to not let personal feelings or interests interfere with his or her duties as a judge. The person who alleges that a judge may not act impartially must accordingly prove the reasonable grounds upon which such allegations are based.

The test to be applied when considering a recusal application contains a two-fold objective element: firstly, the person considering the alleged bias must be reasonable; secondly, the apprehension of bias itself must also be reasonable in the circumstances. The Constitutional Court has stated that “the apprehension of the reasonable person must be assessed in the light of the true facts as they emerge at the hearing of the application” and that incorrect facts advanced by the applicant in a recusal application must be ignored when applying this test. The Constitutional Court has aptly summarised all of the foregoing by stating that “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 just administration of justice, which demands an unbiased and impartial judiciary, is a cornerstone of our Constitution and democracy. The law accordingly provides a mechanism for a judge to be recused in matters where he or she does not meet the requirement of impartiality. However, it is clear from the above that mere allegations and speculation will not be sufficient in a recusal application.

Reference List:

  • R. v. S. (R.D.)51
  • Code for Judges
  • Ex parte Goosen & Others 2019/2137
  • President of the Republic of South Africa & Others v South African Rugby Football Union & Others CC

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)