HIGH COURT OF LESOTHO
N.O. LIQUIDATORS APPLICANT
LESOTHO BANK (in liquidation)
HON. JUSTICE S.N. PEETE
20th JUNE, 2002
counsel for applicant Ms Makhera has made an application that I
recuse myself from hearing this application; her main ground being
that because of some remarks I made in chambers in her and Mr
Phoofolo's presence, I will not be impartial in deciding this matter.
I should also point out that this court has not approached this
recusal application as in any way adversely reflecting upon the
integrity of this court. Indeed, I should add,
Makhera as a duty bound officer of this court was entitled to make
such an application.
15th April 2002 my Brother Monapathi J. granted an interim order in
favour of applicant couched as follows:-
IS ORDERED THAT:
with the forms and provisions of the Rules of the High Court and
dealing with the matter as one of urgency as contemplated in terms
of Rules 8 (22) of the Rules of the High Court.
a Rule Nisi do issue returnable on the 22nd April 2002, calling upon
the Respondent to show cause why an order in the following terms
should not be issued
Declaring that the Lease Agreement marked "B" annexed to
the Applicants' Founding Affidavit, to be cancelled.
Sheriff of this Honourable Court or his deputy, be ordered to
immediately attach and take into his possession the following motor
vehicle at the premises of the Respondent or wherever it may be found
and to retain the same in his custody pending the final determination
of this Application.
effect to this order, the Sheriff is authorized to enter upon the
premises of the Respondent at 676 Race Course, New Europa, Maseru,
and if entry is resisted to engaged the assistance of the Lesotho
2.3 That the Sheriff or his deputy be authorized and directed to take
into his possession the vehicle wherever the same may be found and
hand it over to Applicant.
2.4 That Rule 1,2 and 2.2 shall operate as an interim interdict with
immediate effect pending the final adjudication of this application.
2.5 That the Respondent pays the costs of this Applicant on the scale
as between attorney and client.
2.6Granting further or alternative relief. "(My emphasis)
interim court order was served upon the respondent on the 19th April
2002 and a notice of intention to oppose was filed on the same day by
the respondent and on the 6th May 2002 an answering affidavit was
also filed the main defence of respondent being that she has long
completed paying rentals in terms of the Lease Agreement and also
submitting that the application is a disguised action because there
is a dispute of fact over outstanding rentals. The respondent also
filed notice of anticipation to the 13th May 2002, on which day the
applicant also filed a replying affidavit.
accordingly permitted both counsel to argue their case during
vacation on the 17th June, 2002.
going into court, I invited both counsel, Ms Makhera, for the
applicant and Mr. Phoofolo, for the respondent to my chambers mainly
to clarify the locus standi of the applicant KPMG/Harley and Morris
Joint Venture Liquidators of Lesotho Bank; this was consequential to
the judgment of my Sister Hlajoane J. in CIV/APN410/01 wherein
KPMG/Harley and Morris Joint Venture Liquidators had lodged a similar
application. Her Ladyship Hlajoane J. had ruled that the Minister had
acted ultra vires in appointing applicant as liquidators of Lesotho
Bank before the coming into operation of the Lesotho Bank
(liquidation) Act No.2 of 2001. Apparently on the 29th January 2001
the Minister had purported to appoint applicant as liquidators,
whereas the Act no.2 came into force on the 31st January 2001 - the
date of its publication in the gazette. She ruled that the
appointment was a nullity, void ab origine. The matters in this
application are different because the Minister subsequently appointed
applicants as liquidators on 31st January, 2001.
this had been clarified by both counsel, and still in chambers I made
a remark about the method employed by applicant in securing
repossession of leased vehicles ex parte before the respondents could
be heard. I also made -so Ms Makhera argues - a comment that I would
personally not grant such applications without granting audience to
the other party. Ms Makhera, in her hurriedly prepared heads of
argument in support of her application from the bar submits that-
"2. In the premises, client's interests will not be served as
His Lordship has prejudged the matter without hearing either party
especially the Applicant
3. My client is apprehensive that His Lordship will not hear the
matter objectively and with an open mind.
4. There is a real likelihood of bias on the part of his Lordship and
my client stands to be prejudiced.
5. Justice must not only be done but must also be seen to be done. "
support of her submission she cited the case of Lesotho Electricity
Corporation v Forrester 1979 (2) LLR 440 at 455 where Schutz A.J.A.
at page 455 had this to say-
".... I would add it is in the interests of justice that recusal
applications should be brought as soon as possible. Particularly this
is so where an application is based on some remark that it is
impossible to reconstruct with the passage of time. In reaching the
conclusion that I have I do not overlook the broad principle upon
which applications of this kind proceeds, which is to the effect that
if a Judge does or says something which would justifiably lead a
reasonable litigant to believe that he will not receive an unbiased
hearing the Judge should recuse himself whether he is in fact biased
or not. Justice must be seen to be done. It goes almost without
saying that in a relatively
small capital like Maseru judicial officers have to be particularly
careful of what they say about pending cases, that the need for their
aloofness should be respected by members of the public. A1so, it is
inconsistent with the duty of a Judge to take the possibly convenient
course of retiring from difficult litigation merely because one of
the litigants asks him to do so. "
the learned Judge of Appeal opined at page 454 "Ordinarily
matters of recusal are matters for the conscience of the judge
concerned" In this application for my recusal, I should state
that there are no aspersions -direct or indirect - upon my integrity.
In S. v
Bam, 1972 (4) SA 41 it was held by Kotze J. that-
".....bias which disqualifies a judicial officer from trying a
case must be in connection with the litigation in question and must
be of such a nature that a real likelihood exists that the judicial
officer would have a bias in favour of one of the litigants from
kindred or any other cause."
it is worth mentioning that I do not know the respondent at all;
remarks I am alleged to have made were indeed probably made because I
was of view that the audi alteram principle demands generally that
where the lessee or hire purchaser is still in a prima facie lawful
possession, he ought not to be deprived such possession ex parte
without giving him a hearing. Repossession by the deputy sheriff is
secured ex parte as if it is a case of spoliation. Whilst my remarks
did not reflect any bias on my part in
the respondent - who- I hasten to add- would not succeed at the end
of the day if she failed to prove payment of rentals, Ms Makhera
found it necessary to apply for my recusal because she says she has a
reasonable suspicion that a likelihood of bias exists - S. v Sonday -
1995 (1) SA 497.
case of Richter v Keyser N.O. en 'n ander - 1962 (2) SA 276 it was
held that an unsolicited expression of opinion by a judicial officer
on the merits of the case in chambers could entitle the other party
to apply for recusal.
here point out that Mr Phoofolo in opposing the application for my
recusal also dutifully pointed out that the remarks that I made in
chambers were not only relevant but were based upon the respondent's
main submissions that the application was a disguised action.
view our procedure permits that when a judge in chambers hears an ex
parte application and with prayers as tabled, the judge may be
inclined to grant with immediate effect only the prayer for the
dispensation of rules and may in his discretion order that on the
return date, which can be set soonest, the respondent should show
cause why the other prayers should not be made final. This was the
approach I would have followed if I was seized with the application
for interim order as presently couched. I would have been perfectly
entitled to do so under Rule 8 (22) of the High Court Rules 1980.
Adoption of such an approach in no way prejudges the final
determination of the respective rights of the parties. To have
expressed my concern about the modus of the application did not mean
that I had already made up my mind
dismiss the main application at end of the day. Under our law, the
onus to prove payment of indebtedness rests generally upon the
debtor-of course the plaintiff/applicant having established a prima
facie case. It would be presumptuous of me to finally dismiss the
main application despite clear proof that respondent had not
discharged her indebtedness under the lease agreement.
case of S. v Sonday - 1995 (1) SA 497 it was held per Thring J. that
despite an expression of opinion before the hearing of a case,
"When during the subsequent course of argument in court, such
prima facie views are put to counsel, two things, and not
infrequently, do result therefrom. First, the essential issues in the
case are addressed and properly ventilated and debated between the
court and counsel. Secondly, quite often the prima facie views of the
court are changed by argument and final views emerge which are quite
different from what the court's prima facie views were. I might add
that this in an advantage which is enjoyed by our system by virtue of
our practice of allowing free-ranging oral argument, based, as it is,
on British procedure."
- The Law of Contract in South Africa - 3rd Ed. - 1996, page 481;
Abraham v Cassiem 1920 CPD 568; Standard Bank of SA Ltd v Sacks -
1923 TPD 352; Italtile Products (Pty) Ltd v. Touch of Class
be a "perception" may not be graced with reasonableness,
and before a decision maker is disqualified, the suspicion of bias on
his part must be one which might be entertained by a reasonable
litigant. R. v Sonday (supra), at page 504 (E-F). My comments merely
related to the manner in which the repossession was being gained ex
parte and whether this did not tarnish the audi principle. Ms Makhera
could indeed have convinced me otherwise when arguing her case in
open court. She has however acquired "a perception" that I
had already prejudged the final determination of the case. A
preliminary observation in chambers by a judge and during the course
of judicial duty about the way an application is brought does not
necessarily lead to a conclusion that the court will not discharge
its duty impartially and that the applicant would be disadvantaged.
however of the view that although the likelihood of bias may be no
greater as it is non-existent, yet to a reasonable mind, remarks -
though not ill- intended, could have created a ground for a
perception that I had already prejudged the whole case. As Schutz AJA
said in Forrester's case, (supra) at p.455 the test is objective (a
reasonable litigant) and it is not relevant whether the judge "is
in fact biased or not."
Phoofolo cited the case of R.v.T. 1953 (2) SA 479 where Centlivres C.
J. held that there is no rule of practice to the effect that where a
judge has expressed an opinion in the course of judicial duties about
the case, such judge ought to recuse himself. I am however inclined
to err on the side of caution and follow the more recent and
authoritative remarks by Schutz AJA in Forrester's case (supra).
Industries South Africa (Pty) Ltd v. Mental and A1lied Workers' Union
& Another 1992 (3) SA 673 a full Bench of the Appellate Division
held that the test to be adopted in recusal applications involving
the appearance of bias is whether there exists a reasonable suspicion
of bias on the part of the decision maker and that an apprehension of
a real likelihood that the decision-maker will be biased is not a
prerequisite for disqualifying bias. The very objects which the
"reasonable suspicion" test are calculated to achieve would
be frustrated by grafting onto it the further requirement that that
the probability of bias must be foreseen ... If suspicion is
reasonably apprehended, then that is the end of the matter.
to be the modern practice therefore that the "reasonable
suspicion" rather than "real likelihood" test should
apply: a judge should recuse himself if there is reason to fear
partiality on his part - whether such bias exist or does not. See
also S. v Malindi and Others - 1990 (1) SA 962; S. v Radebe 1973 (1)
SA 796. In the Malindi's case (supra) it was held that "The fact
that in reality the judicial officer was impartial or is likely to be
impartial is not the test. It is the reasonable perception of the
parties as to his impartiality that is important".
in mind the comments of Krause JP in R. v Chondi and Another 1930
"It is a matter of the gravest public policy that impartiality
of the Courts of Justice should not be doubted or that the fairness
of a trial should not be questioned; otherwise the only bulwark of
the liberty of the subject... would be undermined",
having duly considered the submissions of counsel in this matter and
without reflection upon the wont impartiality and integrity of this
court, I come to the conclusion that I recuse myself as I hereby do.
Applicant : Ms Makhera
Respondent : Mr Phoofolo
however add a word of caution. Paucity or rarity of recusal cases in
Lesotho shows that recusal applications should not be lightly
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