The problems of proving actual or apparent bias: an analysis of contemporary developments in South Africa
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127498 , vital:36017 , https://doi.org/10.17159/1727-3781/2011/v14i7a2616
- Description: This article takes a critical look at the divergent approaches of courts in constructing the meaning of actual and apparent bias in adjudicative contexts. It argues that while proving actual bias on the part of an adjudicator may not always be easy and parties often revert to apprehended bias, an allegation of bias in any adjudication process is a matter that courts take very seriously. This notwithstanding, the courts have failed to consistently demarcate the necessary elements and threshold of proof that complainants must overcome to secure a successful challenge of decisions based on adjudicative impartiality. Upon critical evaluation of the decisions on the subject so far rendered, this article suggests that the pattern which has seemingly emerged is that which weighs the allegations of bias against the presumption of impartiality and the requirements of the double reasonableness test.
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- Date Issued: 2011
The dialogue between the bench and the bar: implications for adjudicative impartiality
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/129078 , vital:36215 , https://hdl.handle.net/10520/EJC53998
- Description: What is the role of the judge in the conduct of a trial? Can he or she engage counsel in legal argument and ask questions on legal issues without breaking the brittle bond of justice or be said to have 'descended into the arena'? Assuming that these actions are permissible, at what point will the judge's dialogue with counsel or line of questioning go beyond permissible limits? These are the questions with which this article grapples. Based on an analysis of the Constitutional Court decisions in State v Basson (2) 2007 (1) SACR 566 (CC) and Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC), and several Supreme Court of Appeal and other Commonwealth decisions, the article explores the circumstances in which the recusal of judges has been sought, or judicial decisions have been challenged on appeal on the basis of an allegation that there have been violations of the principle of fair hearing as enshrined in the Constitution. The article draws on the 'apprehension of bias' jurisprudence to establish the utility of the presumption of impartiality and the hybrid test of double-reasonableness in contexts where a judge's conduct is in question. The article concludes that the dialogue between the bench and bar is a useful component of adjudication in our adversarial system and should be limited by the rules of impartiality only in very exceptional circumstances.
- Full Text: false
- Date Issued: 2011
Pecuniary interests and the rule against adjudicative bias: the automatic disqualification or objective reasonable approach?
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/129093 , vital:36217 , https://hdl.handle.net/10520/EJC122974
- Description: This article deals with the issue of bias arising from pecuniary interest of a judge. Essentially, it asks the question: when does the pecuniary interest of a judge diminish his/her ability to apply his/her mind impartially to the dispute before him/her. To answer this question, the article undertakes a synthesis of the various rules and tests applied across Commonwealth jurisdictions and then compares them with the South African approach as outlined in two recent cases, namely Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC) and Ndimeni v Meeg Bank Ltd (Bank of Transkei) 2011 (1) SA 560 (SCA). Broadly, the article discusses the key aspects of the automatic disqualification approach preferred by the English courts, the Canadian objective reasonable approach and the realistic possibility approach recently adopted by the Australian courts. The article concludes that the South African approach that places emphasis on the objective reasonable test, complemented by the realistic possibility approach, may be most suitable, given the nature of complaints so far dealt with by the courts and the full propriety of the injunction in section 34 of the Constitution.
- Full Text: false
- Date Issued: 2011