IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO: 6444/2007
In the matter between:

and

{The Chairman of the Review Board)

JUDGMENT HANDED DOWN ON 21 JUNE 2010

Introduction

2. In May 2000 the applicant relocated to Plettenberg Bay from Johannesburg and acquired a dwelling situate at No. 3 Tillamook Road, Plettenberg Bay, erf 1581. Mr Gerhard Johannes and his wife Rene, at the time both attorneys at Werksmans Incorporated in Johannesburg, are the directors of the third respondent, the owner of the adjoining erf 1580, which serves as their holiday home. The applicant and the directors of third respondent accordingly are neighbours. The parents of Mrs Johannes and the applicant have been cordial neighbours since 1971.
3. At the stage that the applicant acquired the house it only had two small spare bedrooms, with a single shower and a bath. Between the applicant's late partner and herself they have five children, all of whom are adults and mostly married. The existing house was inadequate to accommodate the combined families over the holiday period and would have to be enlarged.
4. Erf 1581 (as well as erf 1580) is situated in a single residential zone in terms of the Plettenberg Bay Town Planning Scheme.
5. In February 2002 the applicant, after enquiries made at the second respondent, the Bitou Municipality, regarding the requirements for operating a bed and breakfast facility, caused building plans to be drawn up and submitted for the alteration of the house to accommodate the extended family and for use as a bed and breakfast.
6. On completion of the building work and at the applicant's request, the second respondent's building inspector not only approved the alterations, but also confirmed that the house met with the local requirements for a bed and breakfast.

7. The applicant registered her establishment with both the Bitou Municipality and the Plettenberg Bay tourist information centre, prior to her letting out rooms with effect from September 2002. The applicant had in fact moved out of the main part of the house into what had hitherto been quarters intended for a domestic servant, in order to facilitate the letting out of the third bedroom.

9. The alterations served to create a more substantial house. It facilitated the accommodation of the applicant's three grown-up children, as well as her deceased partner's two children and their families, who all tended to visit during the end of year festive season. During family visits, the applicant does not operate the bed and breakfast and the house is used solely for family accommodation.
10. The alterations provoked a response from the Johannessen's who considered that their sea view from their property had been negatively affected by the alterations and that the applicant had not adhered to undertakings given by her. This led to a break down in the harmony which had hitherto been in existence between the neighbours.
11. They brought a review application to set aside the approval of the building plans in the name of the third respondent, together with interdict proceedings. The interdict proceedings sought to preclude the applicant from utilising the house for the purposes of a bed and breakfast. As against the Bitou Municipality an interdict was sought directing it to ensure compliance on the part of the applicant with certain title deed conditions applicable to the property and with the provisions of the relevant zoning scheme regulations. On 8 November 2004, and by agreement between the parties, the interdict proceedings were postponed, subject to the right of the Johannessen's to re-enrol the matter for hearing in due course. This application remains in limbo.
12. The review application was argued before Mr Justice Foxcroft on 31 January 2005. In the final instance only a single ground of review was persisted with, namely the contention that the Bitou Municipality's building control officer was not properly qualified and had not been properly appointed. Mr Justice Foxcroft upheld this ground and the Bitou Municipality's approval of the building plans was set aside. The Bitou Municipality strongly defended its approval of the applicant's building plans before Mr Justice Foxcroft. It asserted that the building was neither unsightly nor objectionable, nor did it derogate from the value of the Johannessen's property, nor was there any other basis for the refusal thereof in terms of section 7(1) of the Building Standards Act.
13. The applicant thereafter during May 2005 caused the identical building plans to be re-submitted to the Bitou Municipality. Despite its earlier and strongly defended approval, the Bitou Municipality performed, what Mr Rosenberg, who with Mr Melunsky, appeared for theapplicant, described as a regrettable about face - it declined to grant approval of the building plans. The Bitou Municipality informed the applicant of its decision by way of a letter dated 13 July 2005. In a subsequent letter the reasons for the decision were given. Five grounds were furnished, four whereof were based upon alleged infringements of the title deed restrictions, while the fifth was based on an alleged infringement of the zoning scheme regulations.

14. The applicant thereafter noted an appeal to the Review Board, in terms of the provisions of section 9(1) of the Building Standards Act, by way of a letter dated 17 August 2005. By way of a letter dated 22 March 2006 the third respondent opposed the appeal. The letter of objection dated 13 March 2005 which had been submitted to the Bitou Municipality in opposition to the re-submission of the building plans was an annexure to the letter opposing the appeal.

"(a) Appellant can succeed in the appeal only if each and every reason raised by Respondent for its refusal to approve is decided in Appellant's favour; Appellant has failed in this regard.
(b) Of particular importance is Appellant's intention, frequently admitted, to use the buildings built in terms of the proposed building plans as bed and breakfast facilities.
(c) Review Board Members, having inspected same, accept such admission as correct, and reject the belated submission that the design and construction are consistent with an extension to a (domestic) single dwelling.
(d) This deviation from the Title Deeds is fatal to the Appeal.
(e) Review Board Members unanimously reject the Appeal."

17. It is this finding which the applicant now seeks to review.
18. Mr Rosenberg submitted that in coming to its conclusion the Review Board heard and/or misdirected itself in the following respects:

(a) Upon a proper construction of the title deed condition in question (condition D.4.(b)), it does not preclude use of portion of the house for a bed and breakfast;
(b) In any event, if the title deed conditions precluded a bed and breakfast use, this does not form a valid or sufficient basis to withhold approval of the building plans; and
(c) the Bitou Municipality have consented to the bed and breakfast use.

The standard of review

	which provides for a review of arbitration proceedings under auspices of the Commission for Conciliation, Mediation and Arbitration

"(A)n administrative decision will be reviewable if, in Lord Cooke's words, it is one that a reasonable decision-maker could not reach."

23.        Mr Rosenberg, if I understood him correctly, was careful to point out that the review was not a review based on lack of reasonableness.
24. I shall, nonetheless, endeavour to remain mindful of prof Hoexter's warning about overzealousness in setting aside an administrative decision which do not coincide with my own opinion.

"Judicial review is in essence concerned not with the decision, but with the decision-making process. Review is not directed at correcting a decision on the merits. Upon review the court is in general terms concerned with the legality of the decision, not with its merits. The function of judicial review is to scrutinise the legality of administrative action, not to secure or to substitute a decision by a Judge in the place of the decision of an administrator."
27. It is against this background that I turn to consider the grounds of review advanced by the applicant. Before doing so it would be appropriate the legislative framework against which the application is to be considered.

The legislative framework

30. Mr Rosenberg emphasised that throughout the interdict and review papers the Bitou Municipality and the third respondent accepted that prior to the alterations in question, the applicant's house was undeniably a dwelling, despite the fact that she utilised three bedrooms for the bed and breakfast. Following from that it was submitted that the subsequent addition of two en-suite bedrooms did not alter the basic character of the building which remained that of a dwelling.
31. Condition D.4. (b) reads as follows
"This erf... shall be used only for the purpose of erecting thereon one dwelling..."

32. Mr Rosenberg submitted with regard to condition D4(b) that, provided that what has been erected on the property is a dwelling, there is nothing to indicate that, for example, the condition would prevent an architect working from home or a householder letting out any part of the house, be it to a lodger or a bed and breakfast guest.

"In seeking to interpret the restriction with which we have to deal, I propose in the first instance to confine my attention to the question of the meaning of the words themselves, used in their ordinary sense, and later to consider what assistance, if any, towards their interpretation can be obtained from the context, or from such surrounding circumstances as can properly be taken account off."

"This is a residential quarter, and its continuance as such is sought to be ensured by these conditions, by the prevention of congestion whether of houses or families. 'Dwelling-house' or 'dwelling', in my opinion, must be read in their ordinary meaning of habitation for one family."

"Does the clause mean that there is to be one dwelling house in the ordinary acceptation of this word in which the owner or occupier lives as his home ?"

"one house in its narrow and ordinary sense in which the owner or occupier lives with his household."

And in reference to a dwelling house continued

"when we speak of a person's residence we do not conjure up in our minds a huge block of buildings used for residential purposes, but a dwelling house in the ordinary sense of the word.

(Emphasis added)

"The condition which calls for construction here differs in no material respect from those with which the Appellate Division had to deal. There does not appear to be any ground which would justify this Court in departing from the narrow and ordinary sense and in giving to the words any wider meaning than that given in the decisions cited above. I come to the conclusion that the respondent cannot on any of the four plots erect anything but a house in the narrow and ordinary sense of that word - namely, a house in which the owner or occupier would live with his family."
42. What Herbstein J has stated, I respectfully view as confirmation for the conclusion I have drawn in paragraph 40 above.

46. Mr Oosthuizen submitted that an overnight visitor to a guesthouse would hardly refer to the guesthouse as his place of residence. This may be so, but to my mind the question is whether Mrs Meara would refer to it as her residence, and the answer to that must be yes.

49. It was submitted by the third respondent that a bed and breakfast establishment and/or guest house is an establishment which provides accommodation on a commercial basis to paying guests who are not members of the single family. The building plans clearly show that the dwelling unit does not consist of a self contained inter leading group of rooms.

50. Thus it was contended that a use of the dwelling for purposes of a bed and breakfast establishment and/or guest house constitutes a contravention of the relevant provisions of the Plettenberg Bay Townplanning Scheme, until such time as Erf 1581 has been rezoned appropriately and the restrictive conditions of title have been removed in terms of the appropriate legislation.
51. The response to these contentions by the applicant was as follows:

(b) The Review Board, never addressed the point (and it was not a ground relied upon by the Bitou Municipality for refusing the application). Had the point been considered, the finding would and should have been that there are no rooms in her house which have a separate entrance or kitchen, and that they are all inter-leading within the meaning of that word as contemplated in the relevant definition contained in the scheme regulations.

53. In addition, the intention of the applicant, when adding the bedrooms and extending the kitchen, was to create a more substantial dwelling for a two-fold purpose. The extended premises could comfortably accommodate the applicant's family during which she does not operate the bed and breakfast. When not required for the applicant's family, the additional rooms are available to be utilised for bed and breakfast purposes.

54. The Bitou Municipality, in the review proceedings, endorsed the aforegoing construction of condition D.4.(b) where Mr L Gericke stated as follows:

"First respondent (i.e. the Municipality) points out to the above Honourable Court that only one dwelling has been constructed on erf 1581. Title deed condition D.4.(b) envisages that a single dwelling be erected on the property. The addition of the additional bedrooms to the existing dwelling did not alter its character as a dwelling house."

"The latter applies to a building which has been erected in accordance with the approval given (that is inter alia 'for a purpose , . . shown on the approved plans') and which is subsequently used for a purpose 'other than the purpose shown on the approved plans'. In such a case the proviso may be invoked to establish that the building is suitable for such other unauthorised use."

58. In my view the plans do reflect the purpose as required by the Building Standards Act, and bearing it mind that the occupancy class H4 -Hospitality - was not yet in existence, the applicant cannot be criticised for not stating that the alterations would be used for the purposes of a bed and breakfast establishment.
59. As stated above, the Bitou Municipality, before the Review Board, reversed its position and there adopted an approach which gave a broad reach to the condition, so as to prohibit the letting out of any room in a dwelling house by the occupier, whether to a lodger or in the course of a bed and breakfast facility. Mr Rosenberg submitted that this is not what the condition stipulates, nor is there any indication that this was the Administrator's intention. I agree.

63. In the premises the use of the property, also for a bed and breakfast business, is not contrary to, or even excluded by the condition D.4.(b). A dwelling is one in which the owner or occupier may receive guests, whether they are paying or not. In the premises the construction contended for by the applicant is neither strained, nor misconceived.

65. In the alternative Mr Rosenberg submitted that when considering an application to build, the nature or character of the structure in question is the crucial determinant. The Building Standards Act, in essence, purports to regulate what may be built, and to lay down building standards in this regard.

67. In this context Mr Rosenberg submitted that LUPO and the zoning scheme regulations framed in terms thereof serve to regulate and control land use. In short, building plans cannot be refused on the basis that from time to time future use may be unlawful.
68. Mr Oosthuizen submitted that it is clear that the applicant uses the building as a guesthouse even if she uses the house solely for the family's accommodation during the Christmas festive period.
69. Mr Oosthuizen submitted that the local authority is obliged to refuse a plan approval application submitted to it, if not satisfied that the application in question complies with the requirements of the Building Standards Act and any other applicable law.

"The refusal of approval under section 7(1)(a) is mandatory and not only when the local authority is satisfied that the plans do not comply with the Act and any other applicable law, but also when the local authority remains in doubt. The plans may not be clearenough. For instance, no original ground levels may be shown on the drawings submitted to it for approval, with the result that the local authority is uncertain as to whether a height restriction imposed with respect to original ground levels is exceeded. In those circumstances the local authority (a) would not be satisfied that the plans breached the applicable law, but equally (b) would not be satisfied that the plans are in accordance with the applicable law. The local authority would therefore have to refuse to grant its approval of the plans. Thus, the test imposed by section 7(1)(a) requires the local authority to be positively satisfied that the parameters of the test laid down are met."

"[27] The zoning scheme regulations referred to in para [23] and elsewhere in this judgment would obviously be 'any other applicable law' referred to in s 7(1)(a) of the National Buildings Act. The building plans submitted for approval would have to comply with both the provisions of the National Buildings Act and the relevant zoning scheme regulations. Once such building plans are drawn, these will be submitted to the local authority by the building control officer, together with such recommendations the building-control officer may make."

"(1) The occupancy of any building shall be classified and designated according to the appropriate occupancy class given in column 1 of Table 1 and such classification shall reflect the primary function of such building..."

"Occupancy where unrelated persons rent furnished rooms on a transient within a dwelling house or domestic residence with sleeping accommodation for not more than 16 persons within a dwelling unit."

77. Logically, it must follow from this that the local authority had to take cognisance of the intended use to which the building is to be put, as reflected on the submitted plans.

78. Mr Oosthuizen further submitted that if regard is had to the package of planning legislation, which is aimed at harmonising the utilisation of land and the development of erven areas, it would be myopic to interpret section 7 of the Building Standards Act as requiring the local authority to approve a plan, even though the local authority knows that the building work, if approved, will be used in a manner contrary to certain other relevant and applicable planning legislation. He submitted that it would be far more sensible to interpret section 7, and particularly the obligation to consider whether the proposed building contravenes the Act or any other law, as entitling a local authority to give consideration also to the extent to which the proposed building complies or otherwise contravenes legislative measures such as LUPO.
79. Consequently it was submitted that the Bitou Municipality did not err by taking into account the fact that the applicant would be utilising the buildings she intended constructing for the running of a guesthouse.
80. He submitted that a local authority is obliged, in carrying out its duties under sections 7(1)(a) and 7(1)(b) of the Building Standards Act, to have regard to other laws including the provisions of the Townships Ordinance, LUPO and any conditions which, under those legislative enactments, have to be met by the owner of land

"I am of the view that it is incumbent on the Municipality to consider whether the plans objectively comply with the zoning and building regulations and that the subjective intention on the part of the person who submits the plans is irrelevant. I accordingly conclude that Applicants have not established a prima facie case that they are likely to succeed on this ground."
82. In this regard Mr Rosenberg pointed out that when the applicant's family stays with her, then she is not letting out any rooms and there can be no question of a contravention of the title deed condition. If the operation of the bed and breakfast establishment is unlawful, steps must be taken to prevent such unlawful use. It is not the purpose of the National Building Standards Act to also regulate and control the actual use of buildings - this is the provenance of the land use and town planning legislation and title deed restrictions.
83. It seems to me that once it is accepted that the plans as submitted falls within the definition of dwelling, then it must follow that the use reflected thereon, as bedrooms or kitchens, is adequately reflected.
The fact that the dwelling would then be utilised for a bed and breakfast would be irrelevant.

The Third Ground: The Bitou Municipality's Consent to the Bed and Breakfast Use

"I cannot agree with these contentions. It is true that the conditions have the force of law, but rights there under may validly be waived by all persons entitled thereto. See Alexander v Johns (supra) and the cases following thereon which are quoted above. In waiving the contravention, the Council did not purport to do more than waive its own private right. I cannot see on what basis I can compel the Council to exercise its rights if it does not want to do so. I can also see no basis upon which the Council could be compelled to reject building plans merely because the execution of such plans would infringe the servitutal rights of others. In this regard it must be emphasized that the approval of building plans by the Council does not grant an unqualified right to erect a building pursuant to such approval. The conditions of approval cover a whole page. And include the following:

'(b) Approval of the plans does not absolve the erector or Owner from compliance with any condition in the title deeds of the property upon which the work to which the plans relate is to be executed.""
87. Mr Oosthuizen contended that it was inconceivable that the applicant would have submitted building plans for the purpose of a bed and breakfast. Such plan approval was unnecessary because of an alleged consent by the local authority. It seems to me that this is not the applicant's stance - she accepts that she had to submit plans, but she suggests that the plans could not be refused on the basis that she could not use the premises as a bed and breakfast as the Bitou Municipality had already consented thereto.
88. Clause 2.7.1 of the Bitou Municipality's own zoning scheme regulations stipulates that the letting of rooms by any occupier of a dwelling house shall not constitute an infringement of the property's single residential zoning status.
89. Section 2.7 of the Scheme Regulations provide as follows:

"2.7 SAVING FOR SPECIAL PURPOSES
Without prejudice to any powers of the Council derived from any other law, nothing in this scheme shall be construed as prohibiting or restricting the following or enabling the Council to prohibit or restrict the following:

2. 7.1. The letting, subject to the Council's Regulations relating to lodging and boarding-houses, by any occupier of a dwelling house, of any part of the house otherwise than as a tenement."

91. It was submitted by the applicant that section 2.7.1 intends and permits the use of parts of a house for the business of providing accommodation to outsiders. Whether such accommodation is short term or long term is irrelevant as far as the section is concerned. What is important is that the letting must be by the occupier of the dwelling house. There is no limit on the extent to which an occupier may make available portions of his or her dwelling house for accommodation purposes, save as contained in the municipality's regulations relating to lodging and boarding houses and presumably in any other relevant regulations of the municipality.

92. It was presumably under the aegis of this section that the Bitou Municipality permitted scores of bed and breakfast establishments to operate. The applicant went as far as to state that it was the policy of Bitou Municipality to permit the operation of bed and breakfast establishments (up to three bedrooms) from properties zoned single residential. Mr Rosenberg also stressed that the Bitou Municipality levied rates on the basis that rooms were being let out.
93. The Bitou Municipality could relax the title deed and township approval conditions and, in fact, did do so. It was therefore not open to the Bitou Municipality to now adopt a different position.
94. Accordingly, and on this ground also the review has to succeed.

The other additional grounds upon which the appeal could have been dismissed
95. Both Mr Rosenberg and Mr Oosthuizen addressed me on these additional grounds. It will be recalled that the Review Board dismissed the applicant's appeal on a single ground.
96. Mr Rosenberg submitted that it is no assistance for the chairperson or the Review Board to contend that there were other grounds, not relied upon by the Review Board in its findings, justifying the dismissal of the appeal.
97. It should be noted that the first respondent did not take issue with the allegation that the Review Board's decision to dismiss the appeal was confined to a single issue, namely that the use of the house for the purposes of a bed and breakfast operation constituted an infringement of title deed condition D.4.(b). The alleged contraventions of title deed condition D.4.(c) and conditions E.2 and E.4 were not relied upon before the Review Board at all.
98. Only the alleged encroachment over the building line restriction of 1,57 metres contained in condition D.4.(d) could be of any possible relevance. The chairperson did not regard the encroachment as being so inconsequential as to require the applicant's counsel to deal with them.

100. In the premises I am satisfied that the decision by the Review Board was:

into account irrelevant considerations;
(c) not rationally connected for the purpose for which it was taken and/or the purpose of the empowering legislation and/or the information before the Review Board;
(d) unlawful.

101. In the premises the review has to succeed.
102. It is, however, not the only basis upon which the applicant is entitled to have the decision set aside.

Bias

(a) The review application was instituted on 21 May 2007. On 23 August 2007 the chairperson, acting through attorneys Messrs Nongogo Nuku Incorporated, caused the record of the proceedings to be filed. Some eight months after the record had been filed, answering affidavits were filed on behalf of the chairperson and the third respondent on 29 April 2008.
(b) These answering affidavits, together with a further confirmatory affidavit, were presented under cover of a filing notice emanating from Messrs Werksmans, described as being the attorneys of the first, second and third respondents, it was not apparent why Messrs Werksmans, the third respondent's attorneys, were now also acting on behalf of the chairperson, in the stead of Messrs Nongogo Nuku Incorporated.

104. Mr Rosenberg submitted that the chairperson's affidavit and that of Mr Gerhard Johannes filed on behalf of the third respondent, revealed the following disconcerting features:
(a) Both affidavits appear to have been produced in the office of Mr Johannes. This much is apparent from the computer file reference which appears at the top of each page of both affidavits.

105.       Mr Rosenberg further pointed out that the chairperson's affidavit was notable for:
(a) the extent to which it seeks to justify the Review Board's decision on grounds other than those put up in its decision as handed down; and
(b) the fact that the chairperson in effect joins forces with the third respondent in the latter's purported application for a demolition order.

106. I pause to point out that the application for a demolition order was not pursued.
107. Mr Rosenberg pointed out that it would be wholly inappropriate for the chairperson to adopt a stance on an unrelated issue, namely that of a demolition order, and seek to persuade the Court to grant such a claim.
108. At the hearing before the Review Board which spanned two days, the chairperson interrupted Mr Rosenberg to advise him that it was not necessary to deal at all with the question of encroachment. It is therefore surprising and of concern that the chairperson felt motivated to adopt advance encroachment arguments which involve insignificant margins.

109. Mr Rosenberg submitted that the level of co-operation demonstrated between the chairperson and the third respondent was most unusual. Added to this it was singularly inappropriate that the chairperson should have extended himself to joining the third respondent in seeking demolition of the alterations to the applicant's house. The applicant states that at the time of the appeal she had no reason to suspect that the chairperson might have been biased, but that her position had subsequently altered. She had regard to the lengthy time taken after the conclusion of the hearing to produce the cryptic and unreasoned finding of the Review Board and, taking into account the unusual and inappropriate level of co-operation between the chairperson and the third respondent, she now had an apprehension or suspicion that such inappropriate proximity was not necessarily confined to the period after the handing down of the Review Board's finding.

110. Mr Rosenberg relied upon section 6(2)(a)(iii) of the Promotion of Administrative Justice Act, 32 of 2000, namely that administrative action falls to be reviewed in the event of the administrator being biased or reasonably suspected of bias. The requirements for a reasonable suspicion of bias is as follows:

(b) the suspicion must be that of a reasonable person in the position of the litigant;
(c) the suspicion must be based on reasonable grounds;

"The perception of bias may quite possibly be enhanced by another factor which appeared to the Court to be somewhat unusual.

Unlike what normally occurs in review matters of this nature, the tribunal (the Board) has in this case offered extremely strenuous opposition to the review proceedings. I have great difficulty in understanding why.

It is almost standard practice that an independent tribunal such as the Tender Board would in review proceedings comply with the requirements of rule 53 of the Uniform Rules of Court by making available the record of its proceedings and its reasons and such other documentation as the Court may need to adjudicate upon the matter and, if necessary, to file an affidavit setting out the circumstances under which the decision was arrived at. It seems, however, unusual to me that an independent tribunal such as the Tender Board should file such comprehensive and lengthy papers and offer such stringent opposition by employing senior counsel and the like to argue their case. More often than not independent tribunals, having done their duty in terms of the provisions of rule 53, take the attitude that they abide the decision of the Court and leave the other matters to the interested parties to dispute before the Court...
Regrettably this attitude of the Board in this case may well be to some extent support for a suggestion that they are not entirely independent and disinterested."

[85] The perception of bias is strengthened to some degree by the strenuous opposition put up by the first and second respondents to this application. The RAB is an adjudicative tribunal. All its members are members of the International Association of Refugee Law Judges. They are administrators tasked with quasi-judicial functions.

[86] .... Thirdly, and most importantly for the purposes of the present discussion, the strenuous opposition conducted by the RAB, the adjudicative functionary, on behalf of one of the parties to the appeal before it, the Department of Home Affairs, the successful party, compromises its independence and adds force to the applicant's legitimate or reason or reasonable apprehension of bias."

113. that both affidavits appear to have been produced in the office of Messrs Werksmans;

115. It seems to me that I can accept the above as facts. Had they been incorrect, no doubt these respondents would have responded thereto and answered them. Given the seriousness of the conclusions the applicant sought to draw from these facts, if they were untrue, or ifthere was an adequate explanation for them, leave could have been sought - and probably would have been granted - to answer these allegations. The respondents did not seek to do so.
116. It was argued that what the applicant does not show is the link between this unfortunate conduct and the decision made by the Review Board.

"There is no doubt, as has been said in a long line of cases, that it is not merely of some importance, but of fundamental importance, that justice should both be done and be manifestly seen to be done. The question is not whether in this case this gentleman, went with the justices, made any observation or offered any criticism which he could not properly make or offer; the question is whether he was so related to the case by reason of the civil action as to be unfit to act for the justices in the criminal proceedings. The answer to that question depends not on what actually was done, but on what might appear to be done. The rule is that nothing is to be done which creates even a suspicion that there has been an improper interierence with the courts of justice."

"Looking then at what I have called 'presumptive bias,' in my opinion the test of real likelihood and reasonable suspicion are distinct, and the invalidation of proceedings on one ground, or the other, or both, will depend upon the evidence. Discovery of documents and the production of the record of the tribunal may disclose such an association between one party and the tribunal that a real likelihood of bias is established, no matter how fairly the proceedings may seem to have been conducted. In such a case it will be the opinion of the Court, and not the objectively assumed response of an observer of those proceedings, which will be the decisive factor. But if there is no evidence of such a connection between one party and the tribunal as to justify real likelihood of bias the manner of conducting the proceedings may in itself create a reasonable suspicion of bias, founded upon nothing but the outward aspect of the determination under review."

Again at p. 688 he said:

"The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial."

(emphasis by Deane J).
123. There is no doubt in my mind that had the chairman collaborated with the third respondent in the manner set out above prior to the decision made by Review Board, that such decision would be set aside on the basis that the chairman was disqualified to hear the matter.
124. I also have little doubt that if some association was established between the third applicant, its directors and the chairman of the Review Board, then the same result would follow.

"[T]he correct approach to this application for the recusal of members of this Court is objective and the onus of establishing it rests upon the applicant. 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, that is a mind open to persuasion by the evidence and the submissions of the counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial."

'(T)he existence of a reasonable suspicion of bias satisfies the test; and. . . an apprehension of a real likelihood that the decision maker will be biased is not a pre-requisite for disqualifying bias. 

'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, that is a mind open to persuasion by the evidence and the submissions of counsel.

The test is objective and the onus of establishing it rests on the applicant."
128.       The question is not whether there was indeed bias, the question is whether the applicant has a reasonable suspicion of bias.

129. Both the directors of the third respondent, as well as the chairman of the Review Board are, or were, legal practitioners. It may be said that they ought to have been even more attuned to the perception that would be created by collaboration in opposing the application. Be that as it may, I am of the view that a lay person in the position of the applicant may very well have a reasonable apprehension of bias with regard to the decision handed down by the Review Board in view of the subsequent conduct of the respondents in opposing the review application. It seems me that a Review Board, being taken on review, should remain particularly astute to being objective and impartial.
130. In my respectful view, the applicant has made out a case of bias in respect of the decision made by the Review Board.
131. She is accordingly entitled on that basis alone, to have the decision set aside.
132. Given this finding and where the appeal is to be remitted to the Review Board it should be a Review Board differently constituted, that is, excluding the first respondent. I am of the view that any reasonable litigant in the position of the applicant would have a legitimate reason for concern where it appears that there is co-operation between the decision-maker and a party who had appeared before the decisionmaker in the review process.

133.       In the premises I grant an order