At the heart of the Zuma – Zondo Stand Off and the ANC Top 6 Meeting with Former President Jacob Zuma scheduled for today the 08th day of March 2021, is the often-dodged question of “recusal” of Presiding Officers and their duty to “disclose” when called upon to preside on matters in the line of their duties. This joint paper by the above authors seeks to discuss basic notes on the question of recusal, seeing as it is, that this question has become topical.

The entire debate on recusal arises from the old doctrine known as the “sua (nemo) in iudex in sua (propria) causa” loosely translated to mean “no one may act as judge in a case in which he has an interest.”

In practice, a litigant will challenge a presiding officer alleging that the latter has as personal interest in the matter before him, whatever the nature of such interest maybe, and on that basis the presiding officer is, with all due respect, asked to recuse his/herself from the matter.

In all such applications for recusal, the presiding officer must make a decision after weighing and balancing two basic obligations namely :-

a)    The presiding officer’s Constitutional duty to hear every case that comes before him (a manifestation of every person’s right to have their cases heard before a court and be dispensed with as promptly as possible). See President of the Republic of South Africa –v- South African Rugby Union & Others, 1999 (4) SA 147 (CC) [hereinafter referred to only as “the SARFU” decision.

b)    The presiding officer’s Constitutional duty to apply the law impartially, without fear, favor or prejudice (a manifestation of every litigant’s right to have their cases decided before an impartial tribunal). See South African Commercial Catering & Allied Workers Union & Others –v- Irvin & Johnson Ltd (Seafoods Division Fish Processing), 2000 (3) SA 705 (CC) [hereinafter referred to only as “the SACCAWU” decision.

A presiding officer faced with a recusal application is expected to deal with the application with integrity- that is with honesty to oneself and to the public that he serves.

It is important for the presiding officer to recognize that an application for recusal is not an attack on his standing or integrity as a presiding officer – rather, it is recognition that there may be situations where one is unable to put aside one’s own values and prejudice to the extent that one cannot be impartial. It is human nature. It is important to recognize that a presiding officer is not required to be neutral – but simply to be impartial

It is unachievable and undesirable for presiding officer to be neutral – if neutrality is understood to mean having no sympathies, ideal or opinions. This is so because judicial officers are humans, they are a product of their own life experiences and are bound to have opinions and sympathies crafted by their own life experiences.

The Canadian Supreme Court in R –v- S held that :-

“a judge free of the heritage of past experience would . . . lack the very qualities of humanity required of a judge. . . The wisdom required of a judge is to recognize, consciously allow for, and perhaps to question all the baggages and past attitudes and sympathies that fellow citizens are free to carry, untested to the grave”

In the United States of America, it was held in Menova –v-Illinois High School Association that:-

“since most judges come to the bench no earlier than their middle ages, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the law”

Closer back home where the ZUMA-ZONDO stand-off is played, our Constitutional Court in the SARFU decision held that a judicial officer:-

“who is so remote from the world that he or she has no views would hardly be qualified to sit as a judge”

It can thus be concluded that, therefore impartiality does not require the presiding officer to be neutral but rather it is :-

“a state of mind in which the judge is disinterested in the result and is open to persuasion by evidence and submissions”

The above is consistent with the approach adopted by our Constitutional Court as expressed in the SACCAWU decision where it was held that:-

“that quality of open-minded readiness to persuasion – without unfitting adherence to either party or to the judge’s own predictions, preconception and personal view – is the keystone of a civilized system of adjudication”

It therefore follows that in recusal applications the critical question for determination 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 upon the adjudication of the case, that is a mind open to persuasion by the evidence and submissions of counsel”

A similar test is applied in other comparable jurisdictions. Article 2.5 of the Bangalore Principles of Judicial Conduct provides that:-

“ A judge shall disqualify himself or herself from participation in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially”.

The above denotes a dual test in allegations of bias vis:-

a)    The perception must be reasonable, i.e it must be based on reasonable grounds. It is often said the averment should be that the presiding officer will be biased and not, may be biased.

b)    The person apprehending the bias must be a reasonable person in the position of the litigant.

In Zambia, the Judicial (Code of Conduct) Act, is more explicit. Section 6 (2) of the Act provides that :-

“A judicial officer shall not adjudicate in . . . any proceedings in which the officer’s impartiality might reasonably be questioned on the ground that:

a)    The officer has a personal bias or prejudice concerning a party or a party’s legal practitioner or personal knowledge of the facts . . . . .”

In the ultimate, therefore, the following should provide a basic guideline when dealing with recusal and calls for disclosure:-

a)    Would there be actual bias.

b)    Would there be a reasonable apprehension of bias.

c)     Is disclosure necessary in the circumstances of the matter.

‘While we can justifiably be distraught by the decisions of our courts, and while we are entitled, With All Due Respect, to disagree with the findings of our courts, an unwarranted attack on the standing of our courts, is an affront to the very Constitutional Independence on which the judicial institutions are premised.”

By Ms Delilah Mureriwa and Adv I Mureriwa