Judicial Bias and Recusal in South Africa

The Balancing Act of Judicial Recusal

The Gqeberha High Court dismissed a second application by Luxolo Kruisjan requesting that Judge Bulelwa Pakati (“Pakati J”) recuse herself from his case. This decision follows an earlier rejection of his first application two weeks prior. Kruisjan, along with four co-accused, faces charges for the 2019 murders of two elderly women, aged 87 and 97, at a retirement village.

Central to Kruisjan’s application is the alleged bias of Pakati J and her perceived preferential treatment towards the state prosecutor, Marius Stander, particularly in handling evidence related to his confession. Stander dismissed the recusal application as a delay tactic, emphasising that the co-accused raised no similar concerns. Kruisjan’s attorney, Nash Vandayar, argued that the judge’s decisions reflect a pattern of bias, but Pakati J disagreed, further finding no basis for an appeal. This article explores the concept of judicial recusal, assessing its principles through Kruisjan’s application.

Recusal of judicial officers is fundamental to maintaining judicial integrity and public trust in the legal system. Rooted in the principle that no individual with a personal interest or bias should adjudicate a matter, the South African legal framework does not explicitly regulate judicial recusal in the Criminal Procedure Act (CPA).¹ Consequently, common law rules and constitutional principles govern these applications. The Code of Judicial Conduct (CJC), established under section 12 of the Judicial Service Commission Act,² delineates the ethical standards expected of judges.

Judicial impartiality is encapsulated by the maxim that justice must not only be done but must also be seen to be done, as famously articulated in R v Sussex Justices, ex parte McCarthy.³ This principle sustains the rule that no judicial officer with an interest in a case may adjudicate it, aiming to uphold public confidence in the judiciary’s objectivity. In this instance, Kruisjan contended that Pakati J displayed preferential treatment toward senior state advocate Stander, thereby creating a perception of bias. Under South African law, judges are presumed impartial unless a reasonable suspicion of bias is substantiated by objective evidence rather than conjecture or insubstantial claims.

The CJC specifies conditions for recusal. Article 13 requires that a judge recuse themselves where there exists a real or reasonably perceived conflict of interest or a suspicion of bias based on objective facts. In Council of Review, South African Defence Force v Mönnig,⁴ the court clarified that a reasonable perception of bias must be anchored in objective standards, not subjective feelings.

Kruisjan asserted that Pakati J demonstrated favouritism towards Stander over his own attorney, Vandayar, arguing that a reasonable person would perceive bias upon reviewing the court record. The recusal application followed Pakati J’s decision to admit Kruisjan’s confession after a trial-within-a-trial. While this decision could arguably evoke a perception of prejudice, a successful recusal application must demonstrate more than mere dissatisfaction with unfavourable rulings, as seen in S v Malindi.⁵

The reasonable person test is critical in recusal applications. This test determines that recusal is justified if a reasonable person, based on objective facts, might suspect judicial bias. S v Herbst⁶ emphasised the need for an unbiased adjudicator attentive only to proven facts. It affirmed that an adverse decision alone does not signify bias unless it is shown to be unfounded or influenced by extraneous factors.

Vandayar argued that Pakati J’s rulings created an appearance of bias, particularly given her decisions regarding the confession evidence and the perceived unequal treatment of the attorneys. However, the Constitutional Court in S v Basson⁷ held that evidence of bias must be cogent and convincing to overturn the presumption of impartiality. Although Kruisjan cited a “difference in attitude,” Pakati J deemed his allegations unsubstantiated and dismissed them as a delay tactic, thus upholding the presumption of impartiality.

A recusal application should ideally be filed at the beginning of a trial to avoid unnecessary disruption and uphold the smooth administration of justice. In R v Silber,⁸ Schreiner JA held that such applications should be respectful and adhere to principles of decorum. Although Kruisjan’s application was submitted after several trial proceedings, it lacked the substantive reasoning and courtesy required, reinforcing Stander’s assertion that it was intended to delay the trial.

With no explicit recusal provisions in the CPA, common law rules and constitutional standards govern such cases. The presiding judge must assess whether the grounds for recusal meet the objective test of reasonableness rather than relying on subjective perceptions. Pakati J’s dismissal of Kruisjan’s application and subsequent application for leave to appeal reflect her conclusion that his claims lacked substance.

South African law strongly presumes judicial impartiality, as demonstrated in S v Maseko,⁹ where the court held that judicial conduct must not suggest partiality to a reasonable observer. For recusal to be justified, compelling evidence of bias is required. Maseko reinforces that the recusal criterion is objective; the judicial officer’s conduct must clearly uphold impartiality to guarantee the accused’s fair trial.

In Kruisjan’s case, he argued that Pakati J’s behaviour signalled bias, particularly in her interactions with Vandayar versus Stander. However, Pakati J determined that no reasonable observer could deduce bias solely from her rulings and courtroom management. By ruling that an appeal would likely be unsuccessful, she underscored the objective presumption of impartiality, as required under Basson.

Section 34 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) guarantees the right to have disputes resolved by an impartial tribunal, necessitating that judges avoid actual or perceived bias to maintain public confidence. In S v Rall,¹⁰ the court emphasised that a judge must remain detached and refrain from influencing proceedings through undue intervention. Similarly, Maseko affirmed that judicial conduct must avoid raising doubts about trial fairness.

Kruisjan alleged that Pakati J’s conduct compromised fairness, yet her judicial decisions, such as the trial-within-a-trial, adhere to standard practice, with her discretion supported by Maseko‘s objectivity standards. Unless Pakati J’s actions reasonably suggested partiality, they do not justify recusal.

Improper refusal of recusal may create grounds for appeal or review, as noted in S v Burns.¹¹ However, Pakati J’s dismissal of the recusal and leave to appeal applications followed careful consideration, aligning with S v Suliman,¹² which advises against unwarranted recusals. Her decision emphasises that justice must proceed without frivolous delays or tactics.

Judicial recusal is essential to safeguarding legal system integrity and judicial impartiality. Through precedents such as Mönnig, Herbst, and Maseko, South African law enforces a robust presumption of impartiality, overturnable only by substantial evidence of bias. In Luxolo Kruisjan’s case, Judge Pakati upheld these legal standards, dismissing the applications for recusal and appeal due to insufficient grounds. Her decision reflects a judicial officer’s duty to balance impartiality with efficiency, ensuring fair trials without unwarranted disruptions.

Written by Theo Tembo