Judges must keep their cool

When lawyers fight on behalf of their clients about who should pay their legal fees, things can get ugly. When the lawyers are from Durban and they appear before a Johannesburg judge, the sparks may well fly. In such cases it is important that the presiding judge keeps a cool head. Unfortunately that did not happen in the case of Stainbank v South African Apartheid Museum at Freedom Park and Another.

This is why yesterday the Constitutional Court handed down judgment in a case in which it had to consider whether acting judge Ebersohn acted in a biased manner when he considered an urgent application by Stainbank in the motion court to stay the taxation of the bill of costs. The cost related to various court proceedings relating to the question of how owned the “Apartheid Museum” trade mark.

Ebersohn AJ directed Stainbank’s attorney to appear in open court and the following exchange ensued:

COURT: Now why on earth, why on earth should this Court be burdened to be here at five pm today? Why should the matter not be set down for ten o’clock tomorrow morning, like all urgent applications are? If it is, unless it is a question of a murder being, about to happen, then you can deviate from the normal rules regarding set down, but now to set the matter down to five pm, that means that lady must miss her bus. Why was it set down for five oclock?

MR CARLS: MLord, the primary reason behind the set down for five oclock was that there was a concern about the matter being called before the taxation has been set down at 10:30 tomorrow. That is primarily the reason. . . [intervenes].

COURT: Ja, but, now you see, very conveniently the notice of set down of the taxation was deleted from the papers.

MR CARLS: With respect. . . [intervenes].

COURT: It is not in the papers.

MR CARLS: With respect, MLord, not a point of convenience. It might have been an oversight.

COURT: No, . . [intervenes].

MR CARLS: Those papers were literally prepared within . . . [intervenes].

COURT: The Court regards it as convenience, because then the Court would have seen that it was 10:30. Then I could have started becoming agitated.

MR CARLS: As the Court pleases.

COURT: I am not here to fight with you. I believe your counsel will be flying to, I do not know why you get counsel from Durban.

The judge refused to hear the matter that afternoon, and ruled that it should be enrolled for hearing on the following day at 10h00. In light of the fact that the taxation of the bill of costs was set down for the following day at 10h30, the judge directed that taxation should not proceed until the urgent application was disposed of. He also requested the applicant‘s attorney to bring that direction to the attention of the taxing master.

When the proceedings commenced, counsel for the Stainbank applied for the postponement of the application. He argued that the applicant needed to file a replying affidavit to respond to the first respondent‘s papers. During the presentation of argument in respect of the postponement application, the judge – perhaps still upset about the previous evening’s altercation – made several remarks that constituted the basis of the subsequent application for his recusal on the basis that the acting judge was biased. 

While the applicant‘s counsel was presenting argument, the judge interjected to remark that:

I take offence that attorneys behind my back elect to approach the Court and upon my clerk enquiring from your attorney why 17h00, the response was that it suited the counsel who comes from Durban.

Later, when the Stainbank’s counsel informed the judge that the instructions from his attorney were that the court had on the previous day made an order that taxation would not proceed, the judge made this remark:

Your attorney is lying. . . . He is lying about what you now said. I said to him I refuse to enrol the matter. I said to my clerk, after he left my chambers, I said to my clerk he must advise the taxing master that she is not to proceed with the taxation until this application has been heard.

Stainbank’s counsel – perhaps because he is a less emotional sort of chap than a certain Cape Town advocate who recently said rather nasty things about Judge Bozalek’s mother – then apologised for the error. The application for a postponement was refused and the application to stay the taxation proceeded.

After further discussion the judge invited the parties to present argument after the lunch adjournment on whether the court should order costs from the applicant‘s attorney‘s own pocket de bonis propriis. Stainbank’s counsel informed the court that the parties required to see him in chambers to which the judge remarked, “[d]id I get misquoted again?” The High Court adjourned once more. When it resumed, the applicant applied for the recusal of the judge on the basis of either actual bias of a reasonable apprehension of bias, a decision that usually is not (and should not) lightly be taken.

Counsel for Stainbank contended that because the judge had called his attorney a “liar” in court and had also invited submissions on costs from the attorney‘s own pocket in circumstances where costs had not been sought by the first respondent, he would not be able to impartially adjudicate the matter. The judge gave a judgment from the bench in which he dismissed the application for recusal:

The fact that the attorney gave instructions to the applicant‘s counsel . . . which instructions were false . . . caused the Court to remark that then he was lying. The counsel . . . then apologised and that was the end of that matter. Every reasonable person in court then realised that it was an unfortunate misunderstanding between counsel and his instructing attorney.

If the attorney is aggrieved, he only has himself to blame. This Court has not judged the matter yet and there is no possibility of bias on the part of this Court against the applicant and/or his attorney. The application for recusal is refused.

The High Court refused to stay the taxation and made a punitive order for costs reasoning as follows:

Regarding costs [the applicants attorney] did not comply with the rules of the Division regarding the bringing of an urgent application, his instructions to counsel regarding the recusal application was an open attempt to bully the judge and bordered on contempt of court. He, furthermore, delayed in bringing the urgent application until such time when he knew that there would not be sufficient time for the first respondent to file answering papers. He also, unilaterally and without consulting with the judges clerk, and seeking the judges permission thereto, unilaterally enrolled the matter for 17h00 which is not a normal time inconveniencing the court, its staff and the first respondent and their legal team. The attorney will therefore be mulcted with costs in the event of his client not paying the taxed costs of the first respondent.

The Constitutional Court, in a unanimous judgment written by justice Khampepe, applied the well developed test namely whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that a judge has not or will not bring an impartial mind to the adjudication of the dispute, that is, a mind open to persuasion by the evidence and the submissions of counsel. The Court once again emphasised that there is a presumption in favour of the impartiality of the court which will not easily be dislodged. It also recalled the dicta in its Wouter Basson recusal judgment where it held that in considering whether the remarks give rise to a reasonable apprehension of bias, a judge should not be held to an ideal standard that would be difficult to attain.

In the end the Constitutional Court rejected the appeal founded on allegations of bias – but it was a close run affair. Given the fact that Stainbank’s attorney “was not without blemish” the court had some hard words for the acting judge. Even allowing for the pressures of a busy urgent court like the North Gauteng High Court, the absurdity of the set down, and the inept manner in which Stainbank’s attorney prepared the application (given his 22 years” experience), the judge‘s conduct during the proceedings was found to be “unacceptable”. As the Constitutional Court stated:

The remark made by the judge that the applicant‘s attorney was lying is most unfortunate. It displays a lack of courtesy that is required from a judge in the execution of his judicial duties, no matter how trying the circumstances are. Bearing in mind that there is no suggestion that the applicant himself was responsible for this, it is understandable that he may have formed a subjective impression that the judge was biased against him. In the end, although this case comes close to satisfying the reasonable apprehension of bias test, considering all the factors, it falls short of dislodging the presumption of impartiality. In the circumstances, the appeal founded on bias cannot succeed.

Reading this judgment one becomes aware of the pressures under which both judges and lawyers operate in our courts – especially in busy divisions such as the South Gauteng High Court. Hopefully the judgment will serve as a warning to judges not to lose their cool – even in extreme circumstances – as this might well give rise to an apprehension of bias on their part.

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