The Department of Mercantile Law is extremely proud to share that the High Court of KwaZuluNatal in the recent decision of S v Zuma and Another (CCD 30/2018P) [2023] ZAKZPHC 10 (30 January 2023)  cited an article published by Dr Chuks Okpaluba, and Prof Maloka  titled, “Recusal of a judge in adjudication: An analysis of contemporary case law from South Africa, Botswana and the USA” (2021) JCLA 67-93. Justice Koen recused himself from the infamous “Zuma corruption Trial” and emphasised that public trust and confidence in the judicial process and overall  fairness of the courts was paramount. 

The relevant excerpts from the judgment read as follows:

'[25]       Two very important aspects arise whenever the subject of recusal arises: the first is the presumption of judicial impartiality, which has been described as a cornerstone of our legal system, and the second is the test to be applied to determine the circumstances in which a recusal application should succeed, or fail In the final analysis the question of recusal invariably turns on whether it is factually indicated.”

Referring to the cardinal rule of Judicial conduct the court stated that, 

“[34]       Previous decisions are helpful to demonstrate the application of the principle, but ultimately, every case turns on its own facts. The test and characteristics of the reasonable observer have to be applied to the specific factual situations in each case. The circumstances in which recusal should follow, judging on recent developments, are far from being exhausted, and hence the instances of possible recusal by far do not constitute a numerus clausus (closed list).”

Referring to the issue of Judicial bias, the court stated the following, 

“[35] Howie JA contextualised the test in Gaetsaloe v Debswana Diamond Co (Pty) Ltd, as being:‘. . . an objective one. Actual bias need not be shown, merely apprehended bias. After citing Canadian authority, the South African Constitutional Court, in President of the Republic of South Africa v South African Rugby Football Union explained that the test contains a two – fold objective element. The person considering the alleged bias must be reasonable and the apprehension of bias must itself be reasonable in the circumstances of the case." 

Congratulations, Professor Tumo Maloka!