It is the right of the public to have their cases decided by persons who are free not only from fear
but also from favour in the end the only guarantee of impartially on the part of the courts is
conspicuous impartially. To insist upon the appearance of a real likelihood of bias would I think
cut at the very root of the principle deeply embedded in our law that justice must be seen to be
done. It would impede rather than advance the due administration of Justice. It is a hallowed
maxim that if a judicial officer has any interest in the out come of the matter before him, he is
disqualified no matter how small the interest may be. See in this regard the remarks of lush J in
Sergeant and others v Dale (1877) 2 QBD 558 at 567. The law does not seek in such a case to
measure the amount of this interest. I venture to suggest that the matter stands no differently with
regard to the apprehension of bias by a lay litigant. Provided the suspicion of partially is one
which might reasonably be entertained by a lay litigant a reviewing court cannot so I consider be
called upon to measure in a nice balance the precise extent of the apparent risk. If suspicion is
reasonably apprehended then that is an end to the matter. I find my self in complete agreement
with what was forcibly stated by Edmund Davies LJ in the Metropolitan properties case supra at
314C-D:
“With profound respect to those who have propounded the real likelihood test I take the view that
the requirement that justice must manifestly be done operates with undiminished force in cases
where bias is alleged and that any development which appears to emasculate that requirement
should be strongly resisted.’
With these remarks in mind I turn to consider the merits of the application. The relief sought by
applicants is inter alia the first respondent to enforce the provisions of the Decree, more
especially in relation to the illegal building of cottages and roads in the coastal conservation zone:
and (ii) a declarator to the effect that the provisions of the Environment Conservation Act 73 of
1989 apply to the area comprising the former Transkei in so far as they are not inconsistent with
the provisions of the decree. It is perhaps also relevant to reiterate that third and fourth applicants
are lawful occupants of cottages on the wild coast and that both are members of the Cottage
Owners Association. I am not now nor have I been a member of the Cottage Owners Association
or of the Wildlife Society.
The basis of the application for my Recusal is that I to am the owner of a cottage on the wild
coast and that this fact may cause the first respondent reasonably to entertain the suspicion that I
will be biased against it. I have deliberately placed the word ‘lawful’ in parenthesis as the
gravamen of Mr. Moerane’s submission appears to be that because the legality of the occupation
of certain cottages on the Wild Coast is under scrutiny not only by first respondent but also by the
well-known Health Commission into unlawful land dealings in the Eastern cape my right title to
the cottage which I occupy may well be under threat. In these circumstances a reasonable
perception might be created that I could not apply my mind objectively to the issues raised by the
application. I do not intent to enter in to a debate as to the legality or otherwise of my occupation
of the cottage in question which to the best of my knowledge was constructed more than 60 years
prior to the promulgation of the decree although I have no reason to doubt such legality. In my
view Mr. Moerane’s argument bears the seeds of its own destruction. Having regard tot the nature
of the main relief sought herein namely the enforcement of the provisions of the decree against
illegal occupiers and builders of cottages it seems to me that the only parties who could remotely
have cause to complain about possible partiality are the applicants. Were my occupation of the
cottage to be illegal in terms of the decree the mandamus sought by applicants would obviously
be inimicable to my own interests.
In any event leaving the argument as to legality aside, I have no doubt what so ever that the mere
fact that I am the occupier of a cottage on the Wild Coast in the absence of anything more such as