- November 3, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
The Bank of Namibia brought an application for the first respondent to be placed under a provisional order of winding up in the hands of the Master of the High Court of Namibia. This application is opposed by Trustco Bank Namibia Ltd, which is the first respondent, and Trustco Group Holdings Ltd which is the second respondent.
The parties exchanged papers and the matter proceeded until such a time when the court was requested by the applicant to recuse myself from the matter. The court advised the parties to bring a formal application that will allow for all parties to ventilate the issues properly which application was then brought by the applicant. The first and second respondents indicated that they do not intend to per se oppose the application but still wish to file some papers in an effort to assist the court. This application however resulted in a number of other applications being launched, including an application to strike out and a condonation application.
In their answering affidavit, the respondents explain that they are not opposing the application for recusal and will abide by the court’s decision regarding the merits of the applicant’s application for recusal. It was further indicated that it is pertinent that both the first and second respondents provide necessary and prudent facts to the court in consideration of the applicant’s application for the recusal of Justice Rakow as to assist the court in adjudicating the merits of the application for recusal.
In the affidavit by Dr van Rooyen who is a director of both Trustco Bank Namibia Limited and Tustco Group Holdings Limited, he pointed out that the so-called reasonable apprehension that Justice Rakow will be unable to impartially adjudicate the issues in dispute in the main application is unfounded. The determination and handing down of the 3 November 2022 order appears to be the sole factual basis on which reliance is placed by the applicant in support of its application for the recusal of Justice Rakow. This order was the result of prima facie factual findings by the judge based on the affidavits that served before her in the Collexia Application. It strictly dealt with whether the requirements for an interim interdict were met and not whether the main application was authorized or with the merit of the main application.
RAKOW J:
[12] It is contended that the law as stated by the applicant is an incorrect oversimplification of the applicable test to the application for recusal and that the applicant in any case failed to meet the onus and legal requirements for recusal. In adjudicating applications for recusal, judges must take into account the fact that they have taken an oath and have a duty to sit in any case in which they are not obligated to recuse themselves.
[13] The test is an objective one and 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. It was also pointed out that the applicant does not say Justice Rakow is actually bias but that there can be a perception of bias. It is further denied that Justice Rakow expressed any view anywhere, let alone strong views on the decision by the applicant to apply to the court for the provincial winding-up of Trustco Bank.
The condonation application
[15] Rule 1 of the Rules of Court defines ‘file’ as ‘to file with the registrar’ and rule 2(1) explains this filing to happen at the office of the registrar during the following hours:
‘The offices of the registrar must, except on Saturdays, Sundays, and public holidays, be open from 9h00 to 13h00 and from 14h00 to 15h00 for the purpose of issuing any process or filing any document.’
[16] The answering affidavit of the first and second respondent was filed at 16h16, 1 hour and 16 minutes after the closure of the registrar’s office at 15h00.
[18] As this was pointed out by the applicant, the first and second respondents on 15 September 2023 requested the applicant’s legal practitioners to indicate what prejudice they suffered as a result of the 1 hour and 16 minutes late delivery of the answering affidavit and the additional time they might require for the delivery of the replying affidavit.
[19] Instead of responding to the rule 32(9) engagement letter of the first and second respondent, the applicant proceeded to file a rule 32(10) report some three hours after the letter was forwarded to the applicant’s legal practitioners. It is therefore submitted that there was no proper engagement in terms of rule 32(9).
[20] This application is opposed by the applicant because it does not address the issue of prospects of success and ought to be dismissed.
The strike-out application
[21] On 13 September 2023, the legal representatives of the applicant informed the legal practitioners of the first and second defendant that their answering affidavit was filed late and that the allegations in paragraphs 10.7, 10.17, 12.8, and 18 of the answering affidavit are scandalous, vexatious or irrelevant and defamatory and prejudicial of the applicant. This will result in the applicant applying for the striking out of these paragraphs in the affidavit.
Legal considerations
Origin of the right to bring a recusal application
[26] The right to bring a recusal application has been recognized in our law for a number of years but more recently, the right is specifically guaranteed in the Namibian Constitution. Article 12(1)(a) of the Namibian Constitution guarantees a fair and public hearing by an independent, impartial, and competent Court or Tribunal to all persons in the determination of their rights and obligations. Judges take the oath or make an affirmation of office in terms of which they swear or affirm to defend and uphold the Constitution and fearlessly administer justice to all without favour or prejudice and in accordance with the laws of Namibia. The independence and impartiality of the judiciary are further guaranteed by Article 78(2) of the judiciary.
[27] Regarding the independence and impartiality of the judiciary, O’Linn J said the following in S v Heita 1992 (NR) 403 (HC) 407J-408A.
‘Sub article (2) makes it absolutely clear that the independent Court is subject only to the Constitution and the law. This simply means that it is also not subject to the dictates of political parties, even if that party is the majority party. Similarly, it is not subject to any other pressure group.’
[29] A judicial officer therefore has an obligation to hear each and every case that comes before him or her and a further duty to administer justice impartially without fear, favour, or prejudice to all matters that come before him or her. One of the core values attached to this duty is for the judicial officer to act with impartiality. Impartiality is understood to mean the following:
‘Impartiality (also called evenhandedness or fair-mindedness) is a principle of justice holding that decisions should be based on objective criteria, rather than on the basis of bias, prejudice, or preferring the benefit to one person over another for improper reasons.’
[30] It must further be understood that neutrality and impartiality must be distinguished. A judicial officer is required to be impartial but he or she is not required to be neutral, for neutrality means having no sympathies, ideas, or opinions. In S v Shackell 2001 (4) SA 1 (SCA); Brand AJA said the following when formulating principles that were crystalized in the President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC) (1999 (7) BCLR 725) (SARFU); and South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC) D (2000 (8) BCLR 886) (‘the SACCAWU case’).
‘(W)hat is required of a Judge is judicial impartiality and not complete neutrality. It is accepted that Judges are human and that they bring their life experiences to the Bench. They are not expected to divorce themselves from these experiences and to become judicial stereotypes. What Judges are required to be is impartial, that is, to approach the matter with a mind open to persuasion by the evidence and the submissions of counsel.’
Onus and what needs to be shown in a recusal application
[31] The Supreme Court in the matter of the Minister of Finance and Another v Hollard Insurance Co of Namibia Ltd and Others 2019 (3) NR 605 (SC), said the following regarding the point of departure in deciding any recusal application:
‘The departure point is that a judicial officer is presumed to be impartial in adjudicating disputes and that the presumption is not easily dislodged. A mere apprehension of bias is therefore not sufficient to rebut the presumption.’
[32] The Constitutional Court of South Africa in the matter of President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC) (1999 (7) BCLR 725) judgment formulated the test for recusal as follows:
‘The test for recusal is “whether a reasonable, objective and informed person would on the correct facts reasonably apprehended that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case. The test is “objective and …. the onus of establishing it rests on the applicant.’
[33] In S v Shackell 2001 (4) SA 1 (SCA), Brand AJA formulated four principles to be applied in recusal matters, crystalized from the SARFU and SACCAWU cases:
‘- First, the test is whether the reasonable, objective, and informed person would on the correct facts reasonably apprehend that the Judge will not be impartial.
– Secondly, the test is an objective one. The requirement is described in the SARFU and SACCAWU cases as one of ‘double reasonableness’. Not only must the person apprehending the bias be a reasonable person in the position of the applicant for recusal but the apprehension must also be reasonable. Moreover, apprehension that the Judge may be biased is not enough. What is required is an apprehension, based on reasonable grounds, that the Judge will not be impartial.
– Thirdly, there is a built-in presumption that, particularly since Judges are bound by a solemn oath of office to administer justice without fear or favour, they will be impartial in adjudicating disputes. As a consequence, the applicant for recusal bears the onus of rebutting the weighty presumption of judicial impartiality. As was pointed out by Cameron AJ in the SACCAWU case (para [15]) the purpose of formulating the test as one of ‘double-reasonableness’ is to emphasise the weight of the burden resting on the appellant for recusal.
-Fourthly, what is required of a Judge is judicial impartiality and not complete neutrality. It is accepted that Judges are human and that they bring their life experiences to the Bench. They are not expected to divorce themselves from these experiences and to become judicial stereotypes. What Judges are required to be is impartial, that is, to approach the matter with a mind open to persuasion by the evidence and the submissions of counsel.’
[36] The Supreme Court in the matter of the Minister of Finance and Another v Hollard Insurance Co of Namibia Ltd and Others 2019 (3) NR 605 (SC), in para 25, stated as follows regarding recusal:
‘The departure point is that a judicial officer is presumed to be impartial in adjudicating disputes and that the presumption is not easily dislodged. A mere apprehension of bias is therefore not sufficient to rebut the presumption.’
[37] An applicant who seeks recusal of a judicial officer as a burden of proving a reasonable likelihood of bias and such burden is not a light one. This point was succinctly laid down in Maletzky v Zaaruka (I 492/2012; I 3274/2011) [2013] NAHCMD 343 (19 November 2013). (three matters that were heard together) where the learned Damaseb, JP stated as follows at para 26:
‘An accusation of judicial bias or partiality is therefore one not lightly to be made or countenanced. It must be supported by either cogent evidence or be founded on clear and well recognized principles accepted in a civilized society governed by the rule of law. If judicial bias or partiality is too readily inferred, it opens the door to all manner of flimsy and bogus objections being raised to try and influence the judicial process by shopping around for the so-called correct judge – in effect litigants or those with causes before the court seeking to decide who should sit in judgment over them.’
Regarding the complying with rule 32(9) and 32(10)
[39] In Mukata v Appolus (I 3396/2014) [2015] NAHCMD 54 (12 March 2015), Justice Parker held that the above provisions in rule 32(9) and 32(10) were, on account of the language used by the rule-maker, peremptory in nature and effect. The learned Judge said the following:
‘I conclude that the provisions of rule 32 (9) and (10) are peremptory, and non-compliance with them must be fatal. I, therefore, accept Mr. Jacob’s submission that the summary judgment is fatally defective because the applicant has failed to comply with rule 32 (9) and (10). Consequently, the application is struck from the roll.’
Wherefore the court held the following:
-
- That the conduct forming the basis for the application for recusal is the perceived bias that Justice Rakow might have when hearing the main application. The burden to proof the possibility of such a bias rests with the applicant.
- That the applicant chose to stop communications with the first and second respondents mid process and then file a rule 32(10) report. To abruptly stop correspondence and file a rule 32(10) report, without replying to any of the questions raised by the first and the second respondent cannot be correct and should not be condoned.
- Further, that there is no ‘prospects of success’ in the matter for the first and the second respondent as they are not opposing the application. In this instance, I am going to accept that they indeed explained the delay and grant them condonation.
In this instance, the Court made the following order:
-
- The recusal application of the applicant is dismissed.
- The applicants application to strike out is hereby struck.
- The condonation application of the first and second respondent is granted.