South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Limited (Seafoods Division Fish Processing)

Members of the South African Commercial Catering and Allied Workers Union (SACCAWU) employed by Irvin & Johnson Ltd were dismissed following participation in protest marches at the employer’s premises in June and August 1995. Separate groups of dismissed employees pursued unfair labour practice relief in the Industrial Court. In earlier, related litigation (the Nomoyi matter), the Labour Appeal Court (LAC), constituted by Conradie and Nicholson JJA, made findings confirming dismissals arising from the August protests. When the later appeal by another group of dismissed workers (the Nkatu appeal) came before the LAC, the applicants sought the recusal of Conradie and Nicholson JJA on the basis that their prior findings in Nomoyi created a reasonable apprehension of bias. The LAC refused the recusal application and later issued a negative certificate under Rule 18. The applicants then sought leave to appeal to the Constitutional Court against the refusal of recusal.

Leave to appeal against the refusal of the recusal application was refused; the application was dismissed.

This case reinforces the constitutional test for judicial recusal in South African law, confirming the high threshold for establishing a reasonable apprehension of bias. It clarifies that prior judicial findings in related litigation do not, without cogent evidence, justify recusal, and affirms the discretion of courts to prevent piecemeal appeals. The judgment is significant for labour litigation and for the constitutional regulation of judicial ethics and court procedure.