ANYONE BUT YOU, M’LORD: THE TEST FOR RECUSAL OF A JUDICIAL OFFICER

Abstract

It is trite that judicial officers should perform their adjudicative functions in a trial or hearing without bias or predisposition in favour of any party. Judicial officers must act independently and impartially in discharging their duties (see Van Rooyen v The State 2002 5 SA 246 (CC) par 31). Should this not be the case, a party can move an application for the recusal of the presiding officer. Lately, there have been a number of these applications, including the successful application for the recusal of Ngoepe JP on the first day of the
rape trial of Jacob Zuma, former Deputy President of South Africa. According to media reports, the reason cited for the recusal was “to protect the credibility of the judiciary” (see “Zuma Judge Steps Aside to Defuse Bias Charges” 2006-02-14 Business Day). Ngoepe JP is alleged to have said:
“The legal points for the recusal are not sound and do not hold. However, this is no ordinary matter and is a high-profile case. These considerations invite me to look beyond the personal fears of [Zuma] and take a broader view.”
But what are the legal requirements that must be satisfied for a successful application for the recusal of a judicial officer? Before a discussion of the test for recusal, the question of which sources regulate the doctrine of recusal will be briefly discussed.