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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No: 16264/2019

In the matter between:

BOUNTY BRANDS (PTY) LTD                                                   Applicant

and

ARTHUR LIMBOURIS                                                       First Respondent

KAREN JANSEN VAN RENSBURG                                Second Respondent

STEPHEN BRYAN UPPINK                                            Third Respondent

OLIVIER MARTIN DAWBER                                            Fourth Respondent

GANE HOLDINGS (PTY) LTD                                          Fifth Respondent

COAST2COAST  CAPITAL (PTY) LTD                           Sixth Respondent

COAST2COAST  HOLDINGS (PTY) LTD                       Seventh Respondent

GARY JOHN SHAYNE                                                    Eighth Respondent

SHERIFF OF THE HIGH COURT OF SOUTH

AFRICA FOR THE WYNBERG SOUTH DISTRICT      Ninth Respondent

RULES BOARD  FOR COURTS OF LAW                    Tenth Respondent

MINISTER OF JUSTICE & CORRECTIONAL

SERVICES                                                                      Eleventh Respondent

JUDGMENT DELIVERED ON 27 JULY 2020

GIBSON, AJ

[1]               The First to Fourth Respondents have brought  an application  seeking my recusal in this matter.

[2]                The matter consists of various applications and counter applications, the precise details of which are not relevant for the purposes of this judgment, save to say that certain of the applications relate to the request for declaratory relief and others relate to claims for the payment of money.

[3]                On the 10^th of February 2020, being the date that the application had been set down for hearing, and prior to the commencement of the hearing, I requested a meeting with the parties' representatives for the purposes of discussing the manner in which the matter would proceed.

[4]                It is a Judge's prerogative to manage his or her court as he or she feels the matter should best be managed. Pursuant to the discussion with counsel in chambers and a further discussion in respect thereof in court, I decided that it would be most expeditious to deal with the largest of the monetary claims first. The argument in relation to this claim took place on the 10^th  and 11^th  of  February   2020 . At  the  conclusion  of  the  argument  relating  to  this  claim, I postponed the matter to 24 February 2020 for argument on the other applications, and reserved judgement on the first issue indicating that I felt confident that I would be in a position to provide the parties with my judgment prior to 24 February 2020 in order to allow the parties to consider how best to proceed with the remainder of the matter. Judgment on the first issue was handed down on the 20^th  of February 2020.

[5]               On the 24th of February 2020 I was approached in chambers by Mr Randall and Mr Cooke. Mr Randall (appearing for the First to Fourth Respondents) advised me that the First to Fourth Respondents required more time to consider my judgment and requested that the hearing set down for that day be postponed.

[6]               Mr Katz had previously excused himself from appearing on the 24^th  of February, indicating that he had a funeral and that Mr Cooke would continue with argument. Neither Mr Moosa nor Ms MacManus, who had argued the matter on the 10^th and 11^th of February 2020, attended the hearing, nor did they attend the meeting in my chambers. Mr Randall advised that they had not flown to Cape Town for the matter despite the fact that the Applicant had refused the request for an agreement to postpone the hearing of the matter.

[7]               Mr Cooke opposed the request for the postponement and advised that he was ready to proceed with the hearing. It appeared to me that, given that neither counsel who had previously appeared and argued for the First to Fourth Respondents were present or in Cape Town, there was an expectation of me (on the part of the First to Fourth Respondents) to grant the postponement, failing which to stand the matter down to enable Mr Moosa and Ms MacManus to fly to Cape Town from Durban in order to argue the matter. I was not obliged to grant the postponement or stand the matter down. I granted the postponement.

[8]               On the 11^th of March 2020 the First to Fourth Respondents launched an application for my recusal. The First to Fourth Respondents allege that a reasonable, objective and informed person would reasonably apprehend that I no longer have an impartial mind to bear on the adjudication of the balance of the application based on a combination factors. They argue that the following are to be included in the basket of factors to be considered: the fact that  a claim was separated from the various other applications and counter applications,  my general demeanour and disposition, and the judgment of the 20^th of February 2020.

[9]                The law pertaining to recusals is set out 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] ("SARFU") at para 48 where it is stated:

"The   question is whether a reasonable, objective and informed person would on correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bare on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of 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 the 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."

[10]      In summary, there is a presumption of judicial impartiality, it is my duty to sit in any case in which I am not obliged to recuse myself and, for this application to be successful the First to Fourth Respondents must:

•                   prove  that  a  reasonable,  objective  and  informed  person  would consider the judge to be unable to bring a mind open to persuasion to the matter; and

•                   prove that the apprehension is, in and of itself, reasonable, and

•                   rebut the presumption that the judge can disabuse his or  her mind of any irrelevant personal beliefs or predispositions .

[11]             The Supreme Court of App al deals with application of this in S v Dube [2009] 3 All SA 223 (SCA) at paras 7 and 10:

"Where the claimed disqualification is based on a reasonable apprehension , the court has to make a normative evaluation of the facts to determine whether a reasonable person faced with the same facts would entertain the apprehension. The enquiry involves a value judgement of the court applying prevailing morality and common sense."

and

"Impartiality is the fundamental quality required of a Judge and the core attribute of the Judiciary. It must exist both as a matter of fact and as a matter of reasonable perception. If partiality is reasonably perceived,   that   perception   is   likely   to  leave   a  sense   of unease, grievance   and   of  injustice   having   been  done,   thereby  destroying confidence in the Judicial system. The perception of impartiality is measured by the standard of a reasonable observer. The  perception that a judge is not impartial may arise in a number of ways, for instance, by a perceived conflict of interest; by the Judge's behaviour on the bench, or by the Judge's out-of-court associations and activities. A Judge must therefore avoid all activity that suggests that the Judge's decision may be influenced by external factors such as the judge's personal relationship with a party or interest in the outcome."

[12]            Dealing with an application for recusal requires a great deal of introspection. It demands that the presiding officer considers his / her conduct in a dispassionate manner, an almost Herculean task. I am required to analyse my conduct given the basket of facts giving rise to the application for  my recusal. I have taken this very seriously and have considered the matter at great length.

[13]           The first criticism of my conduct which  is alleged to  have given rise to the apprehension of bias was my addressing Mr Katz once or twice by his first name, and in chambers, mentioning I hadn't seen him for a very  long  time. According to the First to Fourth Respondents , this called into question the nature of my relationship with Mr Katz.

[14]           The legal community in Cape Town is small. During the course of my many years of practise as an attorney of this Court , I have dealt with and come into contact with many Advocates practicing at our bar and, like most of my colleagues, refer to them by their first names.  Save for being acquainted  with Mr Katz, I have not seen him for many years and have never had any "relationship" with him of any nature as alluded to by the First to Fourth Respondents. A judge is human. From time to time humans err. I accept that addressing him by his first name was inappropriate. This was certainly not intentional and in no way influenced my decision.

[15]             In addition, the First to Fourth Respondents allege that my separation of issues gave rise to a reasonable apprehension of bias. The very reason why I requested that the attendance of the legal representatives for all parties in my chambers prior to the commencement of argument in the matter was to discuss the most efficient manner in which to deal with the matter. The initial application calls into question the constitutionality of an attachment order.  The monetary claim was separated so as to release it from being tied into a constitutional  debate  which  would  potentially  continue  for  many  years.  In addition, I was of view that a matter consisting of so many varied applications would become extremely confusing if a road map were not prepared for the manner in which it was to be navigated. Mr Moosa argues that this was ill considered. He may or may not be correct, however the separation of issues was motivated by the maxim that justice delayed is justice denied, and definitely not by any bias in favour of the Applicant. I had hoped it would provide the parties with swifter access to justice in relation to a monetary claim.

[16]            Another complaint which formed part of the "basket" of what is to be considered in this application for my recusal is that I appeared not to consider Mr Moosa's argument and looked too frequently in the direction of Mr Katz, seeking his for his approval or guidance. Stefan Rabe, on behalf of  the applicant in the initial application and the respondent  in this matter,  together with other witnesses, dispute that I am guilty of such conduct.

[17]            On Plascon-Evans ( Plas con-Evans v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623  A)  I must accept Mr Rabe's version.  That having been said,  I do not dispute that I looked around the room from time to time, however, I was certainly not seeking approval from Mr Katz or any other patron in my court. Whilst I may have looked in the direction of Mr Katz during Mr  Moosa's argument I similarly looked in the direction of Mr Moosa from time to time, when Mr Katz was arguing and, indeed, noticed other reactions in the room during the course of argument.

[18]           None of these incidents prevented me from considering the matter or, in fact, engaging in some detail and at length with Mr Moosa in respect of his argument. I certainly considered all arguments on their merits when making my judgement.

[19]           Mr Moosa criticises the manner in which Mr Kantor and Mr Katz conducted themselves at the end of the hearing and the manner in which I controlled the court. I share his view that the argument became somewhat chaotic at the end of the hearing, and that there was a time when counsel should have conducted themselves with greater propriety. This only served to validate my initial concerns relating to who should be arguing and when, given the multiplicity of applications and counter-applications in the matter. As is apparent from the record, I considered Ms McManus' objections and did not allow either Mr Kantor or Mr Katz to continue entirely unchecked. In addition, the manner in which I dealt with the issue of the costs in the judgement should, to some extent, have allayed the disquiet experienced by the First to Fourth Respondents.

[20]           The First to Fourth Respondents also criticise the substance of my judgment of the 20^th of February 2020. A judgment is not written for the attorneys or counsel in a matter, but rather for the parties to  the matter,  in  order to explain the thought process applied in adjudicating the matter. Whilst I may not have referred to every matter discussed in the heads of argument  of the First to Fourth Respondents , this does not mean their arguments were not considered. To the extent that they  take issue with this  judgment, their remedy is by way of application for leave to appeal which they have brought, not an application seeking my recusal.

[21]           The First to Fourth Respondents have argued that I made a credibility finding in the judgment and that this is a sufficient ground for my recusal. There is no credibility finding against the First to Fourth Respondents . The allegation relates to the affidavit deposed to by Gary John  Shayne,  the  Eighth Respondent which is incorporated in their papers. I indicated that this affidavit was carefully worded and seemed to be an attempt to deliberately mislead the court. An affidavit is a written account of its deponent's evidence.  The comments I made were not definitive but, in any event, are not in respect of the First to Fourth Respondents ' evidence, but deal with the evidence of  Mr Shayne. Mr Shayne has not taken issue with the comments in my judgment.

[22]           The greatest difficulty I have with this application for my recusal is the conduct of the First to Fourth Respondents of the 24^th of February 2020 and  their legal advisors. As appears from page 228 of the record, I had indicated to the parties that I felt confident that I would be in a position to provide my judgment prior to the 24^th of February 2020,  the  date  agreed  to proceed  with the hearing of the remainder of the matter.  It therefore should have  come as no surprise that I, in fact, did hand down my date prior to 24 February 2020.

[23]           The First to Fourth Respondents state that discussions relating to bringing an application for my recusal had commenced prior to the handing down of the judgment. Accordingly, their conduct on the 24^th· as well as the fact that they waited until after the application for postponement to bring this application, perplexes me.

[24]          As provided in paragraphs 5 and 6 above, neither Mr Moosa nor Ms McManus appeared in Cape Town to attend to argument in this matter. It would have been the opportune time to raise the issue of their clients' apprehension and to mention the recusal application. This led me to believe that the First to Fourth respondents were so convinced that they would be successful in their application for the postponement that they did not deem it necessary. This· was an issue which I raised with Mr Moosa who gave evidence from the bar to the effect that this was not the case but rather that they were all so convinced that they would be unsuccessful, that they did not wish to incur the costs of their attorneys and senior and junior counsel attending the application for postponement. His evidence was that he was not aware that I had indicated that I would provide a judgment prior to the 24th of February and that the outcome of the application to postpone the matter was unexpected by all the parties save for him. The fact that I granted the postponement,  in  the  circumstances,  should  have  dispelled  much  of  the disquiet felt by the First to Fourth Respondents.

[25]           In considering the basket of factors which are to be taken into account in adjudicating this matter, I do not consider the First to Fourth Respondents to have met the hurdles imposed in SARFU and to  have  rebutted  the presumption of judicial impartiality. Accordingly I order as follows:

The application for my recusal is dismissed with costs,  such costs to include the costs of two counsel.

GIBSON, AJ

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