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When Should A Judge Recuse Himself?

Source Lexis Nexis

This question arose in a decision heard in the High Court of Harare (that applies SA law) in the cae of Mangenje v TBIC Investments (Private) Limited and another; TBIC Investments (Private) Limited v Chidawanyika and another

Here is a very useful Summary of when recusal is appropriate:

In the context of judicial proceedings, recusal is the stepping aside, or disqualification of a judicial officer from a case on the ground of personal interest in the matter, bias, prejudice, or conflict of interest, or if he has conducted himself in such a way, that he could be regarded as having become, directly or indirectly, a party to the proceedings. In the latter event, the maxim nemo judex in sua causa (no one shall be judge in his own cause) requires that he should recuse himself. He is automatically barred by operation of the law. But even where the judge is not automatically disqualified, he must still recuse himself upon application by a litigant who reasonably apprehends a possibility of bias on the part of the judge. The apprehension of the reasonable person has to be assessed in the light of the true facts. Incorrect facts which an applicant takes into account have to be ignored. In determining the possibility of bias, there is no difference between whether one does so from the point of view of the court seized of the challenge or from the point of view of the reasonable litigant.

When the recusal of the judicial officer from a case is sought, only that judicial officer can decide that application in the first instance. If recusal is refused and that decision is wrong, it can always be corrected on appeal. In a sense, therefore, and contrary to the general rule, the judicial officer becomes judge in his own cause. It seems an inevitable exception to the general rule.

There are a number of reasons for that.

The first is that judges have a duty to sit and decide cases before them and in which they are not disqualified. They should not too readily accede to suggestions of bias or other interest in the matter, because by doing so they might encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

Secondly, by reason of their training, experience, conscience and intellectual discipline, it must be assumed that judges are able to administer justice without fear or favour, and capable of judging a particular controversy fairly on the basis of its own circumstances. It must be assumed that they are able to disabuse their minds of any irrelevant personal beliefs and predispositions. Furthermore, on being appointed, every judge takes and subscribes to the judicial oath “… to do right to all manner of people after the laws and usages of Zimbabwe, without fear or favour, affection or ill-will.” There is a presumption that judges will carry out their oaths of office, and that is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high.

Thirdly, it is in the general interest of the judiciary and the public for an individual judicial officer to recuse himself where a litigant perceives a reasonable apprehension of bias. The judicial officer should not unduly take a recusal application as a personal affront. However, while the judicial officer considering the alleged bias must be reasonable, the perception or apprehension of bias must itself also be reasonable. An apprehension of bias that is whimsical or morbid cannot be a ground for seeking recusal.

Fourthly, in all cases of automatic disqualification or of reasonable apprehension of bias, there must be a link, direct or indirect, between the judicial officer and one of the parties to the litigation.

Before an application for recusal is made, the judicial officer should be informed of the fact and the grounds of the application to avoid embarrassment and to give him the time and opportunity to give his side of the story and for facts to be verified before the formal application is made. The usual procedure is that counsel for the applicant seeks a meeting in chambers with the judge in the presence of his opponent. The grounds of recusal are put to the judge who would be given an opportunity, if sought, to respond to them. In the event of recusal being refused by the judge the applicant would, if so advised, move the application in open court.

A litigant and his counsel who find it necessary to apply for the recusal of a judicial officer has an unenviable task and that the propriety of their motives should not lightly be questioned. If counsel’s duty to his client demands it he must launch the application courageously and without fear of personal consequences. If the thing must be done, it must be done without timidity. Should counsel have a scintilla of doubt whether his application be contempt, he should seek the assistance of experienced counsel, not necessarily at his client’s expense.

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