Recusal of a judge in adjudication: Recent developments in South Africa and Botswana
Authors: Chuks Okpaluba and Tumo C Maloka
Affiliations: LLB LLM (London) PhD (University of the West Indies); Research Fellow, Centre for Human Rights, University of the Free State, South Africa; BA LLB LLM (UCT) LLD (UFH), Associate Professor, Department of Mercantile and Labour Law, University of Limpopo
Source: Journal of Comparative Law in Africa, Volume 9 Issue 1, p. 67 – 93
Both at common law and under contemporary constitutional jurisprudence, the principle is that a judge who finds himself or herself in a situation where their personal interest(s) in the case in court will lead a dispassionate and independent observer to reasonably suspect that they will be biased or reasonably apprehended to be so, must not sit and hear the case. Even before the commencement of the hearing, the judge is expected to disclose their interest(s) in the case or association with one of the parties to both sides in the case so as to hear their views on the matter. Otherwise, a party who might be prejudiced by the outcome should, as early as possible in the proceedings, apply to the judge to recuse himself or herself from adjudicating the case. Sometimes, the judge might have entered the adjudication without any personal baggage, but one of the parties apprehends bias on account of the utterances or conduct of the judge in the proceedings, and the party affected must apply for the recusal of the judge from the trial or proceedings. Recent developments have shown that the circumstances in which recusal is permissible are far from being exhausted, hence the category of possible recusal cases is not closed. The cases that have arisen in the last ten years in Botswana and South Africa are very extensive in terms of volume and the variety of the issues that they raise and therefore they provide the material around which this article is constructed.