REPORTABLE
Case number: 185/99
IN THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
In the matter between:
S SAGER
APPELLANT
and
N SMITH
RESPONDENT
CORAM:
SMALBERGER ADCJ, HARMS, OLIVIER,
STREICHER JJA and MTHIYANE AJA
DATE OF HEARING:
12 MARCH 2001
DELIVERY DATE:
29 MARCH 2001
Recusal - test - reasonable apprehension of bias - application of test - whether
comments made by magistrate in the course of ruling on recusal meets test.
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JUDGMENT
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MTHIYANE AJA

MTHIYANE AJA:
[1] This appeal raises the question whether certain comments made by a magistrate
and his conduct during a trial justified a reasonable apprehension that he was biased
against the respondent (defendant) thus warranting his recusal.
[2] The appellant (plaintiff), an interior designer, instituted action against the
defendant in the Magistrates’ Court, Cape Town, for payment of the sum of
R36 350,91.  The claim was based on an alleged breach of an agreement in terms of
which the plaintiff had undertaken the interior decoration and furnishing of the
defendant’s holiday apartment at Saunders’s Rocks, in Bantry Bay.  The defendant
had already paid an amount in excess of R250 000,00 in respect of the contract price,
but refused to pay the balance of R36 350,91, alleging that the plaintiff’s services had
not been rendered in a proper, efficient and workman-like manner.  The defendant also
alleged in his plea that some of the goods and materials delivered by the plaintiff were

defective.
[3] During the course of the trial the magistrate turned down two applications for
his recusal.  He eventually found for the plaintiff, and after allowing for certain
deductions he awarded her a reduced sum of R26 123,46, other relief and costs.  A
counter-claim by the defendant for an alleged overpayment was dismissed with costs.
[4] The defendant appealed (and the plaintiff cross-appealed) to the Cape Provincial
Division (Comrie J et Van Heerden AJ) against the magistrate’s judgment on the
merits, and his refusal to recuse himself.  At the hearing the appeal could not be dealt
with on the merits because the magistrate’s reasons had not been filed as required by
rule 51 of the magistrates’ courts’ rules.  By agreement between the parties only the
recusal point was dealt with.  It was agreed that if the point was decided against the
defendant the appeal on the merits would be postponed to a later date.
[5] The court a quo upheld the appeal in respect of the first application for recusal

but the second application was found to be ill-conceived.  With regard to the latter,
Comrie J came to the conclusion that what the magistrate had said in chambers and in
open court was not “sufficient in itself  to found a reasonable suspicion of bias against
the defendant”.  The learned judge found that the second application was merely
calculated to reinforce defendant’s earlier perception of bias.  This finding has not
been challenged and no further attention will be devoted to it in this judgment.  Suffice
it to say that in what follows any reference to the application for recusal should be
understood as referring only to the first application, unless otherwise indicated.
[6] The plaintiff appeals to this Court, with leave of the court a quo, against its
decision overturning the magistrate’s refusal to recuse himself.  In his judgment
Comrie J criticised the magistrate for commenting on the merits in the course of his
ruling.  Without going into the grounds on which the application for recusal was based
the learned judge came to the conclusion that:

“. . . by the very terms of his ruling . . . the magistrate disqualified himself
from further presiding over the trial.”
[7] Before turning to the main issue it is necessary to sketch briefly the background
events leading up to the application for recusal and the magistrate’s ruling thereon.
The trial ran for seven days and a number of witnesses (including the plaintiff) were
called to give evidence on the plaintiff’s behalf.  While the plaintiff was giving evidence
in chief the defendant’s attorney objected to the handing in of certain photographs,
contending that Magistrates’ Courts rule 24(10) had not been complied with.  He
raised two grounds of objection.  The first was that insufficient notice had been given
and the second was that the photographs were misleading in that they did not depict
the defects in the goods supplied by the plaintiff to the defendant.  After the matter
was argued briefly counsel for the plaintiff decided not to press for the handing in of
the photographs at that stage.  The matter was adjourned to another date and the

magistrate was not called upon to make a ruling on the objection.
[8] On resumption some three or four months later, counsel for the plaintiff once
again sought to introduce the ‘offending’ photographs.  By then proper notice had
been filed as required by rule 24(10).  No proof of a notice of objection was
forthcoming. As a consequence rule 24(10(c) would apply.  It reads as follows:
“(c)
If the party receiving the notice fails within the period specified in
the notice to state whether he objects to the admission in evidence
of the plan, diagram, model or photograph referred to in the
notice, such plan, diagram, model or photograph, as the case may
be, shall be received in evidence upon its mere production and
without further proof thereof.”
Despite the absence of such notice the defendant’s attorney informed the magistrate
he was still opposing the handing in of the photographs.  At that point the magistrate
warned the defendant’s attorney against needlessly objecting and drew his attention to
the possible costs implication of such exercise.  This seemingly innocuous caution

triggered an unpleasant verbal exchange which was immediately followed by the
launching of an application for the magistrate to recuse himself.  I consider it necessary
to refer to the salient features of that exchange in extenso:
“Court: All right.  Well, you know the penalties when a photographer gets
called with regard to costs and so on.”
The defendant’s attorney assumed that he was being threatened and reacted as
follows:
“Mr Bielderman: Your worship, with respect, I will not be threatened.
Court: No, you won’t be threatened.  All right.
Mr Bielderman: Your worship, this case must be taken seriously.  At this
stage, with that comment in mind, I’d like to place on record, your
worship the last time we were in your chambers you made a statement
which has concerned my client tremendously, that you think we are
splitting hairs.  This is a serious case involving over R300 000 ultimately.
We’re dealing with high class clients.  I would ask you with absolute
respect to take this case seriously and consider the complaints of the
parties.  This is not a willy-nilly people clutching at straws and petty little
defences.  Here is a man that’s paid close to R250 000,00 in cash on this
plaintiff’s own version, sometimes ahead of the requirements and he was

then met with defective and shoddy workmanship and he’s not splitting
hairs.  And I’d like you to take that seriously and if the plaintiff must
prove their case, your worship, they are coming here and they’re
submitting without prejudice negotiations.  You’re admitting hearsay
evidence.  You now state that I know [what the] penalties [are] as far as
calling photographers are concerned.  There are rules of this Court, rules
of evidence, your worship, with respect.  I want to place on record the
defendant will not be threatened by that.”
[9] The magistrate responded:
“Court: As much as the defendant won’t be threatened, I believe it is
proper to point out to you that if you object to these photographs being
handed in merely because you - merely for the sake of or and if you
oblige the plaintiff to call the photographer, then as the law says and as
the rule says and as the commentary on the rule says, you may be
[mulcted] in costs.  And I’m pointing that out to you, your client is in
court, and my statement is now on record that I say I consider that you
are splitting hairs.  I do so consider that you’re splitting hairs and at the
end of the case when it comes to costs then those types of
considerations will come into play and if you want to take it as a threat
do so by all means.  I believe it’s proper for a judicial officer to point out
to counsel and to his client that when he does waste time on  frivolous
matters in court that there comes a day of reckoning at the end of the
case.  So there you have my threat, Mr Bielderman if you want to take it

as a threat.”
[10] At the request of the defendant’s attorney the matter was allowed to stand down
to enable him to take instructions.  On resumption he moved the application for the
magistrate’s recusal and submitted as follows:
“Mr Bielderman: Your worship, you may have noticed I’m somewhat
angered by the results of events in this court and I apologise if I appear
a bit abrupt.  But what does surprise me and my client, I’ve taken
instructions now, it would appear that nobody in this court is actually
listening to me.  I made it quite clear that Mrs Sager can testify on the
photographs and I will cross-examine her on those photographs.
Subsequent to that my learned friend then addresses and the court
threatens me or rather my client with a cost order if we are taking
technical points, but yet I had already said the photographs can go in and
I reserve my right to cross-examine on those photographs.  Based on
that, your worship, and your ruling earlier where my learned friend has
addressed you and she quoted authority, the Beyer’s case, saying if there
is a final agreement the first one’s novated, the new agreement then
without prejudice falls away.  You allowed that to come in although
they’re relying here on the first agreement.  She shot herself in the foot
with the argument.  Nobody actually listened to that point.  She

contradicted herself, quoted authority which shoots her case down.
Your worship, on that basis, I’m instructed to bring an application for
your recusal and I beg leave to put my client in the witness box to make
the application and to give his evidence under oath regarding the
application.”
[11] After this brief address the defendant was called to give evidence, whereupon
he advanced three grounds for his belief that the magistrate was biased against him.
He summed up his complaints as follows:
“[O]n a previous occasion in court [1] the magistrate was falling asleep.
The magistrate said today that [2] this is a frivolous matter.  Every
argument that you bring [3] we’re splitting hairs.  I think the magistrate
has prejudged the whole issue.” [Emphasis added]
The defendant went on to say that he did not think that he would get a fair hearing.
[12] After argument the magistrate refused the application for recusal and ruled as
follows:
“
Ruling
My ruling on the application is as follows.  I cannot recall the precise

context in which I said that the complaints regarding the plaintiff’s work
raised by Mr Bielderman in cross-examination amounted to a splitting of
hairs.  Taken on their own, the complaints would be seen by any
objective observer to be trivial.  However, taken together and against the
background of the matter, the obvious high standard of the furnishings
and the expense involved, it may well be that the defendant was or is
entitled to cancel the contract, one of the issues which I still have to
decide once the evidence of the interior designers which the defendant
proposes calling is before me.
I do not consider that on all the factors placed before me there is a
reasonable suspicion that I have prejudged the matter and the application
for my recusal is refused.  I make no order as to costs.”
[13] After the ruling the defendant’s attorney informed the magistrate that he would
cross-examine any “person trying to present those photographs” although he was “not
admitting that they are correct”, notwithstanding the provision of rule 24(10)(c).  The
trial proceeded and the photographs were duly handed in.
[14] Against this background I turn to consider whether the comments made by the
magistrate in the course of his ruling and his conduct during the trial justified a

reasonable apprehension that he was biased against the defendant.
[15] In 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 [30] the
Constitutional Court decided that an application for the recusal of a judge raises a
“constitutional matter” within the meaning of s 167 of the Constitution in that, in terms
of s 34 of the Constitution, everyone has a right to a fair public hearing in a court.
Having found that it was a constitutional matter the Constitutional Court at para [48]
formulated the proper approach to recusal as follows:
“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 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.”
What is said in respect of a judge applies equally to a magistrate.  In South African
Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Ltd
(Seafoods Division Fish Processing) 2000(3) SA 705 (CC) (“SACCAWU”) at paras
[11] to [17] the Constitutional Court further elaborated on that test.  It follows that the
test of “a reasonable apprehension of bias” replaces that of “a reasonable suspicion
of bias” previously favoured by this Court.  See S v Roberts 1999(4) SA 195 (SCA)
at paras [32] and [34].  The difference would appear to be one of semantics rather than
substance.
[16] In the application of the test two fundamental premises are of importance.  The

basic starting point of the enquiry is that the court presumes that judicial officers are
impartial in adjudicating disputes.  See SARFU at para [41].  The onus to rebut that
presumption is on the person alleging bias or the appearance of it.  See SACCAWU
at para [12].  The second is that absolute impartiality is an unattainable ideal, given that
judicial officers are only human.  See SARFU at para [42].  It is quite normal for a
presiding judge to form a prima facie view on the issues during the hearing of a matter.
But this is not necessarily indicative of bias.  As was stated by Schreiner JA in R v
Silber 1952(2) SA 475 (AD) at 481 F - H:
“[b]ias, as it is used in this connection, is something quite different from
a state of inclination towards one side in the litigation caused by the
evidence and the argument, and it is difficult to suppose that any lawyer
could believe that recusal might be based upon a mere indication, before
the pronouncement of judgment, that the court thinks that at that stage
one or the other party has the better prospects of success.  It
unavoidably happens sometimes that, as a trial proceeds, the court gains
a provisional impression favourable to one side or the other, and,
although normally it is not desirable to give such an impression outward

manifestation, no suggestion of bias could ordinarily be based thereon.
Indeed a court may in a proper case call upon a party to argue out of the
usual order, thus clearly indicating that its provisional view favours the
other party, but no reasonable person, least of all a person trained in the
law, would think of ascribing this provisional attitude to, or identifying it
with, bias.”
See also SACCAWU at para [13] and S v Khala 1995(1) SACR 246 (A) at 252 G - J.
[17] The test to be applied is an objective one, requiring not only that the person
apprehending the bias must be a reasonable person but also that the complaint must
be reasonable.  See S v Roberts loc cit.  This two-fold feature of the required objective
standard has been described in SARFU and SACCAWU as the double requirement of
reasonableness.  In SACCAWU it was said the double reasonableness requirement
highlights the fact that mere apprehension on the part of a litigant that a judge will be
biased - even a strongly and honestly felt anxiety - is not enough.  See paras [14] and
[16].  The statement in the judgment of the court a quo that “[t]he existence of such

suspicion is a matter of subjective perception by the complainant party” is accordingly
contrary to the principles laid down in the above cases, requiring that the
apprehension must be that of a reasonable person.
[18] With the above in mind I turn to consider the complaints which formed the basis
of the defendant’s application for recusal.  They may be divided into four classes.
They relate to (1) the rulings made by the magistrate in the course of the trial, (2) the
admission of the photographs, (3) the refusal to attend an inspection in loco and (4)
the comments that defendant’s attorney was splitting hairs and wasting time on
frivolous matters.
[19] I have not included the complaint alluded to by the defendant in his evidence
when he said that “on a previous occasion the magistrate was falling asleep”.  In the
appeal before us no argument was advanced in support of this complaint.  I consider
that the stance adopted by the defendant’s counsel was the correct one because there

was in my view no merit in the point.  Although it is not necessary to decide the matter
it is interesting to note briefly how the problem has been dealt with in other
jurisdictions.  In (1997) 71 Australian Law Journal 745, a case note was published
which said that the English Court of Appeal had held that when a judge fell asleep, it
was the duty of counsel to wake him or her up, not just to note an appeal point for
later.  The same result was reached in Queensland in Stathooles v Mt Isa Mines Ltd
[1997] 2 Qd R106 at 113.  See (2001) 75 Australian Law Journal 4 - 5.
[20] Turning to the first complaint relating to the rulings in the course of the trial,
there can be no doubt that the magistrate acted even-handedly in the way in which he
dealt with the objections.  This is borne out by the record and counsel for the
defendant could not advance any argument to the contrary.  There is no merit in the
complaint.
[21] As to the photographs, I do not consider the remarks made by the magistrate

in relation thereto to be indicative of bias.  At the stage at which the defendant’s
attorney objected to their introduction in evidence proper notice had been filed as
required by rule 24(10) and no notice of objection had been received from the
defendant.  The objection raised by the defendant’s attorney was futile and
obstructive, and the magistrate was justified in drawing the attorney’s attention to the
possibility of his client being mulcted in costs.  The warning was not a threat, as the
attorney chose to interpret it.  The role of a judicial officer in civil proceedings is not
necessarily that of a “silent umpire”.  See Greenfield Manufacturers (Temba) (Pty)
Ltd v Royton Electrical Engineering (Pty) Ltd 1976(2) SA 565 (A) at 570 E - F.  The
magistrate certainly acted within his rights in his attempt to bring the defendant’s
attorney into line.  As was said by this Court, “‘n Regter is geregtig, en dit kan ook
afhangende van omstandighede sy plig wees, om die gedrag van amptenare van die
Hof te kritiseer maar dan moet dit geregverdig wees en nie onoordeelkundig gedoen

word nie.”  See Rondalia Versekeringskorporasie van S.A. Bpk v Lira 1971(2) SA
586 (A) at 589 H.  The defendant also fails on this point.
[22] Counsel for the defendant did not make any point concerning the magistrate’s
refusal to conduct an inspection in loco and indicated that he was not relying on it.  He
acted wisely in doing so.  It is apparent from the record that there was never an
outright refusal by the magistrate to attend an inspection.  He intimated that he was not
prepared to go “at this stage” i e at the commencement of the proceedings.  He made
it clear, however, that if justice required it he would consider going on an inspection
during the course of the trial.  This was consistent with the magistrate’s attitude
throughout that he would apply an objective mind to the relevant facts once they were
all before the court.
[23] That brings me to the complaint that the magistrate accused the defendant’s
attorney of splitting hairs and wasting time on frivolous matters.  The magistrate does

not deny that he said this.  In his ruling he stated that he could not recall the context
in which he said it.  Counsel for the defendant argued that when he made this comment
the magistrate was referring to the merits of the defendant’s case.  He submitted that
he was not entitled to do this; that he went too far and consequently that he prejudged
the matter.
[24] In my view the magistrate’s remarks in this regard may be suspectible to two
interpretations.  First, the magistrate was giving vent to his frustration with the way in
which the defendant’s attorney was conducting the trial, in particular his cross-
examination.  Second, the magistrate may well have been commenting on the merits.
On either basis there is no room for the contention that he had prejudged the matter.
As to the first point, the defendant’s attorney was indeed impeding the smooth
progress of the trial by raising pointless objections.  His objection to the handing in of
letters which had preceded the conclusion of an agreement between the parties and the

photographs in regard to which proper notice had been filed, took the trial nowhere
and amounted to a waste of time.
[25] However, even if one assumes in favour of the defendant that when the
magistrate alluded to the splitting of hairs, he was referring to the merits this does not
avail the defendant.  There are two reasons for this.  First, the magistrate’s comments
per se do not indicate partiality.  They were also subject to qualification.  The
magistrate clearly stated that if the complaints were taken in isolation they would
appear to be trivial, but when taken together and against the background of the matter,
the obvious high standard of the furnishings and expense involved, it might well be that
the defendant was entitled to cancel the contract.  He went on to say that this was one
of the issues he still had to decide after hearing the evidence of the defendant’s
experts.  The magistrate was at pains to indicate that he was keeping an open mind and
would ultimately decide the matter on the objective evidence placed before him.  It is

interesting to note that there is no difference of substance between what the magistrate
said on the quality of the complaints and what was said by the defendant’s attorney
in his opening address.  He certainly did not say that the defendant’s claim was a trivial
matter as suggested by the defendant in his evidence.  In any event a magistrate is not
necessarily disqualified from presiding in a case merely because he has expressed a
prima facie opinion on certain aspects of that case.  The second reason why the
comments on the merits do not avail the defendant is that it was never part of his case
that what was said by the magistrate in the course of his ruling justified an application
for his recusal.  No application for recusal was based on his remarks.  It seems to me
that if the magistrate had refused the first application for recusal without commenting
on the merits that would have been the end of the matter, because the second
application was found by the court a quo to be without substance, and it can be
inferred from the judgment that but for the magistrate’s remarks in his ruling the first

application for recusal would also not have been upheld.
[26] In my view the magistrate neither said nor did anything to give rise to a
reasonable apprehension that he was biased against the defendant.  Nor would any
reasonable person in the position of the defendant have had reason to entertain such
a belief on a proper appreciation of the facts.  In the result the defendant failed to make
out a case for recusal and the magistrate was entitled to refuse the application.
[27] On the question of costs, the history of the matter indicates that in the courts
below the plaintiff was only represented by one counsel.  No argument was advanced
in this Court as to why it was considered necessary at this juncture to brief two
counsel.  I do not consider the matter to be sufficiently complex to warrant the
appointment of two counsel at the expense of the defendant.
[28] In the result the following order is made:
a.
The appeal succeeds, with costs.

b.
The order of the court a quo is set aside and the following is substituted
in its stead:
“The appeal on the recusal issue is dismissed with costs.”
c.
The matter is referred back to the court a quo for the hearing of the
appeal on the merits.
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K K MTHIYANE
ACTING JUDGE OF APPEAL
SMALBERGER ADCJ )Concur
HARMS JA
)
OLIVIER JA
)
STREICHER JA
)