Dube v The State

On 26 March 2002, First National Bank in Koster was robbed of R119,000 by four armed men. The appellants were arrested and charged with robbery with aggravating circumstances in the Regional Court, Rustenburg. They were convicted and sentenced to 16 years' imprisonment each. They appealed to the Bophuthatswana High Court before Mogoeng JP and Gura J against both conviction and sentence. The appeal was dismissed. The irregularity arose because the Judge President's wife, Mrs Mogoeng, a state advocate, represented the State in the appeal. Counsel for the appellants was aware of this relationship during the hearing but did not object, based on a previous case (S v Baletseng) where the same situation occurred without issue. The appellants only learned of the relationship after the judgment was delivered when they met with counsel in prison. They expressed discomfort with this situation, leading to an application for a special entry on grounds of perceived bias.

• Whether the Judge President should have recused himself mero motu because his wife represented the State in the appeal
• Whether the failure to recuse constituted an irregularity that vitiated the appeal proceedings
• What is the proper test for determining reasonable apprehension of bias in judicial proceedings
• Whether the awareness of counsel (as opposed to the appellants) of the relationship affects the bias inquiry
• Whether sitting with another judge cures the appearance of bias

The appeal succeeded to the extent that the special entry was upheld. The order of the court a quo was set aside and replaced with an order remitting the appeal to the High Court for re-hearing before a differently constituted Full Bench.

A judicial officer must recuse himself or herself mero motu where circumstances exist that would cause a reasonable, objective and informed litigant to reasonably apprehend bias, such as where the judicial officer's spouse is acting as legal representative for one of the parties. The failure to recuse in such circumstances constitutes an irregularity that vitiates the proceedings, rendering them a nullity. The test for bias is objective and focuses on the perception of the litigant, not counsel. The fact that a judicial officer sits with other judges does not cure the irregularity where there exists a reasonable apprehension of bias. Where a close relationship exists between a judicial officer and a legal representative, and it is not feasible to bring in other judicial officers or legal representatives, the relationship must be disclosed and the parties' consent obtained and recorded before the hearing commences.

The Court observed that it is not possible to define or list all factors that may give rise to apprehension of bias, as the question will depend on the circumstances of each case. The Court noted that the judgment does not establish a rule that in every case where a judge is related to a legal representative he or she will be disqualified, but rather that each case must be evaluated with due regard to the SARFU principles. The Court also observed that any doubt must be resolved in favor of recusal, and that judicial officers must be sensitive and consider of their own accord whether anything could influence them or be perceived as bias. The Court referenced the Bangalore Principles of Judicial Conduct as a comprehensive statement of ethical principles, emphasizing that impartiality is essential not only to the decision itself but also to the process by which the decision is made. The Court noted that in some U.S. states, disqualification is mandatory when a judge's spouse is acting as a lawyer in the proceeding, though consent procedures may be available.

This case is significant in South African law for clarifying the application of recusal principles in circumstances where a judicial officer has a close personal relationship with a legal representative appearing before them. It reinforces that the test for bias focuses on the perception of the litigant (not counsel), and that even sitting with other judges does not cure the appearance of bias. The judgment provides important guidance on judicial ethics and the duty of judges to consider recusal mero motu when circumstances might give rise to a reasonable apprehension of bias. It emphasizes that justice must not only be done but must manifestly be seen to be done, and that judges must be sensitive to factors that could be perceived as bias. The case is also significant for recognizing that while not every relationship will require recusal, the more intimate the relationship, the greater the need for recusal or disclosure and consent.