In reply the application deny that they were or should have been aware of the recommendation
allegedly made by first respondent during May 1995, in that no public reference to such
recommendation was made by the first respondent either in the Parliamentary debate on his
department or elsewhere. In this regard it appears from the minutes of the first meeting of the task
group that such recommendation was contained in a letter written by first respondents to third
respondent. Applicants admit that on 13 th July 1995 fourth applicant was invited to be a member
of the Task Group, but allege that this was the first intimation any of the applicants had
concerning the establishment thereof. They point out that despite their wealth of experience and
knowledge of the Transkei Coast line neither first nor second applicants were invited to
participate in the affairs of the Task Group. They allege further that the action taken by first
respondent in order to enforce compliance with S.39 of the Decree was only taken after institution
of these proceedings. They aver that the unlawful development-taking place in the coastal
conservation zone has actually increased since the institution of these proceedings and furnish
details again supported by photographic evidence of illegal building activities which occurred at
various places along the wild coast during the month of October to December 1995 immediately
prior to the feeling of replying affidavit and in respect of which first respondent has taken no
action. They deny therefore that the application constitutes an abuse of the proceedings of the
court.
At the commencement of the hearing of the application 1 was informed that an agreement had
been reached between applicants and the second and third respondents, who were concerned that
the litigation should be resolved and that proper communication between themselves and
applicants should be restored. The terms of that agreement are not relevant to the determination of
this application. The application then proceeded against first and fourth to seventh respondents.
Although I was informed by both Mr. Gauntlet who with Mr. Vahed appeared for applicants and
Mr. Moerane who with Mr. Pakade appeared for the first respondent that fourth to seventh
respondent had, to the best of their knowledge not entered an appearance to oppose the
application, I have since discovered whilst in the course of preparing this judgement just such a
notice not forming part of the indexed papers. Fourth to seventh respondents did not however file
any opposing papers nor were they represented at the hearing of the application. In the
circumstances it can be taken that they abide by the decision of the court.
Application for Recusal.
Before commencement of argument Mr. Moerane informed me that he had instructions to apply
for my Recusal from the case. He stressed that making the application he was acting on the
specific instructions of Government Attorney, Mr. Jika, and that the application involved no
imputation upon my integrity. After hearing argument in this regard I refused the application for
my Recusal and indicated that my reasons for so doing would follow. These then are my reasons:
The law in respect of the test for bias has recently been settled in the case of BTR Industries
South Africa Ltd. and others v Metal and Allied Workers’ Union and another 1992 (3) SA 673
(A). At 694 F-695B Hoexter JA stated:
In R v Chondi and another 1933 OPD 267 Krause JP made the following observations (at 271)
which in this country are as pertinent now as they were some 60 years ago:
“It is a matter in of the gravest public policy that the impartially of the courts of justice should not
be doubted, or that the fairness of a trial should not be questioned; other wise the only bulwark of
the liberty of the subject, in these times of revolutionary tendencies would be undermined.”