South Africa: North West High Court, Mafikeng

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M.M.V v Khan and Others (M 183/2021) [2021] ZANWHC 84 (3 December 2021)

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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: M 183/2021

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

M[....] M[....] V[....] Applicant

and

MAGISTRATE FATIMA KHAN 1^st Respondent

W[....] A[....] V[....] 2^nd Respondent

NICKY REDELINGHUYS ATTORNEY 3^rd Respondent

VERWES MAATSKAPLIKE DIENSTE

(D WOLMARANS) 4^th Respondent

DATE OF HEARING : 26 NOVEMBER 2021

DATE OF JUDGMENT : 03 DECEMBER 2021

FOR THE APPLICANT : ADV. HITGE

FOR THE RESPONDENTS : NO APPREARANCE

JUDGMENT

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 10h00 on 03 December 2021.

ORDER

(i) The application for review succeed.

(ii) The first respondent’s refusal to recuse herself as the presiding officer in case number 14/1/3-129/2020, Magistrate Court, Wolmaranstad (Children’s Court) is reviewed and set aside.

(iii) The appointment of Nicky Redelinghuys Attorneys in the proceedings under case number 14/1/3-129/2020, in terms of section 55 of the Children’s Act 38 of 2005, is reviewed and set aside.

(iv) The proceedings under case number 14/1/3-129/2020 Magistrate Court, Wolmaranstad (Children’s Court) is reviewed and set aside.

(v) The proceedings under case number 14/1/3-129/2020 must start de novo before a different presiding officer (Magistrate), other than Magistrate F.B Khan.

JUDGMENT

HENDRICKS DJP

[1] Mr. W[....] A[....] V[....](2^nd respondent) was married to Mrs. M[....] M[....] V[....](applicant). From this marriage relationship two minor children were born. Their names are not mentioned in order to protect their identities. They are now respectively twelve (12) years and nine (9) years old. Their marriage ended in divorce on 04^th June 2019. Flowing from the divorce, primary care and residence of these two minor children vest with the applicant. As a result of an incident that occurred between the applicant and the eldest child, the second respondent as the father launched an application in terms of section 151 of the Children’s Act 38 of 2005, in the Children’s Court, (Magistrate’s Court), Wolmaranstad for the removal of the minor children from the care and custody of the applicant and that their primary care should be vested in him. This matter served before Magistrate F.B. Khan on 11^th December 2020.

[2] The inscription on the court file of 11^th December 2020 reflect that an order was made in the following terms, namely, that the matter is postponed until 29^th January 2021 for the appointment of an attorney to act on behalf of the minor children; that the legal fees of such an attorney appointed must be paid by both parties; that the minor children will be in the custody and care of their father, Mr. V[....], from 11^th December 2020 until 24^th January 2021; that Mrs V[....]will be entitled to have telephonic contact with the minor children during the period of 11^th December 2020 until 24^th January 2021; that the minor children will be returned to the care and custody of Mrs. V[....]on 24^th January 2021. Mrs. Redelinghuys of Nicky Redelinghuys Attorneys was appointed as attorney for the minor children.

[3] Following from her appointment as the attorney acting for and on behalf of the children, Mrs Redelinghuys requested a deposit and to be placed in funds by Mr. and Mrs. V[....], who were allegedly responsible for her professional legal fees in equal share. This was met with resistance from the legal representative of Mrs. V[....]. Communique in this regard were exchanged. A candidate attorney from the firm of attorneys representing Mrs. V[....]was also refused access to the court file in this matter. The Magistrate allegedly attempted to telephonically contact Mrs. V[....]’s attorney, Ms Le Roux and then accused her of attempting to discuss the merits of the case with her in the absence of the legal representative representing the other party, Mr. V[....]. However, the Magistrate contacted Mrs. Redelinghuys and had a conversation with her. This prompted Mrs. V[....]’s legal team to launch an application for the Magistrate’s recusal. Receipt of the documents for the recusal of the Magistrate was refused by her. Even the Sheriff was refused to effect service of these documents on the Magistrate and was removed from the court building. The recusal application was also prohibited to be filed on the court file on 28^th and 29^th January 2021. The Magistrate insisted that the application for her recusal has to be launched viva voce.

[4] To start with the recusal application first. Because of the perceived bias displayed by the presiding Magistrate, an application was launched for her recusal. That the necessary documents (notice of motion and accompanying founding affidavit) can be issued, filed and served behoves no further argument. This can be done and need not only be done viva voce. This much is trite. Nothing further need to be said in this regard, save to state that the refusal of the Magistrate to accept service in this regard was unacceptable. So too, the removal of the Sheriff from the court building. This is unacceptable and unprofessional behaviour and same cannot be condoned.

[5] The test applicable to determine whether a judicial officer is disqualified from hearing a case by reason of bias was enunciated in the matter of President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 9; 1999 (4) SA 147 (CC), in which the following is stated:

“[45] From all of the authorities to which we have been referred by counsel and which we have consulted, it appears that the test for apprehended bias is objective and that the onus of establishing it rests upon the applicant. The test for bias established by the Supreme Court of Appeal is substantially the same as the test adopted in Canada. For the past two decades that approach is the one contained in a dissenting judgment by de Grandpré J in Committee for Justice and Liberty et al v National Energy Board:

“. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is ‘what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude’.”

In R. v. S. (R.D.) Cory J, after referring to that passage pointed out that the test contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. The same consideration was mentioned by Lord Browne-Wilkinson in Pinochet:

“Decisions in Canada, Australia and New Zealand have either refused to apply the test in Reg v Gough, or modified it so as to make the relevant test the question whether the events in question give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the judge was not impartial.”

An unfounded or unreasonable apprehension concerning a judicial officer is not a justifiable basis for such an application. The apprehension of the reasonable person must be assessed in the light of the true facts as they emerge at the hearing of the application. It follows that incorrect facts which were taken into account by an applicant must be ignored in applying the test.

[48] It follows from the foregoing that the correct approach to this application for the recusal of members of this Court is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”

[6] In S v Le Grange and Others 2009 (2) SA 434 (SCA), the following is stated:

“[13] The recusal application brought to the fore the question whether the learned Judge President’s conduct bore the appearance of bias. It is settled law that not only actual bias but also the appearance of bias disqualifies a judicial officer from presiding (or continuing to preside) over judicial proceedings. The disqualification is so complete that continuing to preside after recusal should have occurred renders the further proceedings a nullity. It is not necessary in this case to determine whether the presiding officer’s conduct, bearing and utterances would have provided a reasonable person in the appellants’ position with reasonable grounds to think that the court might be biased or whether, by the time the recusal application was made, sufficient had occurred to create that impression. That is so because by the time the appeal came to be argued before us the main contention advanced on behalf of the appellants ranged beyond the simple fact that the recusal application had been wrongly refused and that the proceedings which followed constituted a nullity. The principal thrust of the argument on appeal was that having regard to the manner in which the learned Judge President had conducted himself, the appellants had not had a fair trial. As it was put by Milne JA in S v Tyebela 1989 (2) SA 22 (A) at 29G, ‘[i]t is a fundamental principle of our law and, indeed, of any civilised society that an accused person is entitled to a fair trial. … This necessarily presupposes that the judicial officer who tries him is fair and unbiased and conducts the trial in accordance with those rules and principles or the procedure which the law requires.’ Where the offending questioning sustains the inference that in fact the presiding judge was not open-minded, impartial, or fair during the trial, this court will intervene and grant appropriate relief. (See S v Rall 1982 (1) SA 828 (A) at 833B, S v Meyer 1972 (3) SA 480 (A) at 484D). In such a case the court will declare the proceedings invalid without considering the merits.”

[7] In S v Tyebela 1989 (2) SA 22 (AD), the following is stated at page 29 G – H:

“It is a fundamental principle of our law and, indeed, of any civilised society that an accused person is entitled to a fair trial. S v Alexander and Others (1) 1965 (2) SA 796 (A) at 809 C – D; S v Mushimba en Andere 1977 (2) SA 829 (A) at 842B and 844H. This necessarily presupposes that the judicial officer who tries him is fair and unbiased and conducts the trial in accordance with those rules and principles or the procedure which the law requires.”

[8] In S v Basson 2007 (1) SACR 566 (CC), the following is stated on page 590 – B:

“23. The impartiality of judicial officers is an essential requirement of a constitutional democracy and is closely linked to the independence of courts. Section 165 (2) of the Constitution states:

“The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”

In President of the Republic of South Africa and Others v South African Rugby Football Union and Others (SARFU) this Court held that a judge who sits in a case in which she or he is disqualified from sitting because, seen objectively, there exists a reasonable apprehension that the judge may be biased, acts in a manner inconsistent with section 34 of the Constitution and in breach of the requirements of section 165 (2) and the prescribed oath of office. It went on to lay down the following test for recusal:

“The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”

25. As far as criminal trials are concerned, the requirement of impartiality is also closely linked to the right of an accused person to a fair trial, which is guaranteed in section 35(3) of the Constitution. This right has been analysed by this Court in a number of cases. The Court has stated that criminal trials have to be conducted in accordance with notions of basic fairness and justice. The nature of the right to a fair trial as a comprehensive and integrated right has been emphasised. The fairness of a trial is clearly under threat if a court does not apply the law and assess the facts of the case impartially and without fear, favour or prejudice. The requirement that justice must not only be done, but also be seen to be done has been recognised as lying at the heart of the right to a fair trial. The right to a fair trial requires fairness to the accused, as well as fairness to the public as represented by the state.

26. The impartiality of a judicial officer is crucial to the administration of justice. So too is the perception of his or her impartiality. These principles are recognised in many foreign democracies. Thus, in Van Rooyen and Others v The State and Others (General Council of the Bar of South Africa Intervening) this Court cited with approval the following reasoning of Le Dain J in the Canadian Supreme Court in the case of Valente v The Queen:

“Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception.”

28. Similar concerns were expressed by this Court in S v Jaipal as follows:

“It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime.”

29. In SARFU, the Court identified two different approaches for determining “the appearance of bias”. The focus of the one is “real likelihood of bias” and of the other “a reasonable suspicion or apprehension of bias”. The Court accepted, relying on earlier authority of the Appellate Division (as the SCA then was) that it was not necessary for a litigant who complained of bias to establish that there was a real likelihood of bias. The Court then went on to consider the distinction between “suspicion” and “apprehension” and, to avoid the potentially inappropriate connotations that the word “suspicion” might engender, preferred the phrase “reasonable apprehension of bias” to “reasonable suspicion of bias”.”

[9] In SACCAWU v Irvin & Johnson Ltd [2000] ZACC 10; 2000 (3) SA 705 (CC) the following is stated in paragraphs [11] to [17].

“[11] Although the events that led to the present proceedings took place before those in Nomoyi, the dismissed workers came to trial some five weeks later. The industrial court refused their application for unfair labour practice relief in its entirety. Their appeal was set down for hearing in the Labour Appeal Court on 31 August 1999 before Conradie and Nicholson JJA and Mogoeng AJA. The application for the recusal of Conradie and Nicholson JJA was based on the Labour Appeal Court’s judgment in Nomoyi. Before considering the grounds of that application in more detail, it is necessary to set out the basis on which the law requires that they be assessed.

The Test For Recusal

[12] In Sarfu, this Court formulated the proper approach to recusal as follows:

“... The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”

[13] Some salient aspects of the judgment merit re-emphasis in the present context. In formulating the test in the terms quoted above, the Court observed that two considerations are built into the test itself. The first is that in considering the application for recusal, the court as a starting point presumes that judicial officers are impartial in adjudicating disputes. As later emerges from the Sarfu judgment, this in-built aspect entails two further consequences. On the one hand, it is the applicant for recusal who bears the onus of rebutting the presumption of judicial impartiality. On the other, the presumption is not easily dislodged. It requires “cogent” or “convincing” evidence to be rebutted.

[14] The second in-built aspect of the test is that “absolute neutrality” is something of a chimera in the judicial context. This is because judges are human. They are unavoidably the product of their own life experiences, and the perspective thus derived inevitably and distinctively informs each judge’s performance of his or her judicial duties. But colourless neutrality stands in contrast to judicial impartiality - a distinction the Sarfu decision itself vividly illustrates. Impartiality is that quality of open-minded readiness to persuasion - without unfitting adherence to either party, or to the judge’s own predilections, preconceptions and personal views - that is the keystone of a civilised system of adjudication. Impartiality requires in short “a mind open to persuasion by the evidence and the submissions of counsel”; and, in contrast to neutrality, this is an absolute requirement in every judicial proceeding. The reason is that –

“A cornerstone of any fair and just legal system is the impartial adjudication of disputes which come before courts and other tribunals. . . . Nothing is more likely to impair confidence in such proceedings, whether on the part of litigants or the general public, than actual bias or the appearance of bias in the official or officials who have the power to adjudicate on disputes.”

[15] The Court in Sarfu further alluded to the apparently double requirement of reasonableness that the application of the test imports. Not only must the person apprehending bias be a reasonable person, but the apprehension itself must in the circumstances be reasonable. This two-fold aspect finds reflection also in S v Roberts, decided shortly after Sarfu, where the Supreme Court of Appeal required both that the apprehension be that of the reasonable person in the position of the litigant and that it be based on reasonable grounds.

[16] It is no doubt possible to compact the “double” aspect of reasonableness inasmuch as the reasonable person should not be supposed to entertain unreasonable or ill-informed apprehensions. But the two-fold emphasis does serve to underscore the weight of the burden resting on a person alleging judicial bias or its appearance. As Cory J stated in a related context on behalf of the Supreme Court of Canada:

“Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity.”

[17] The “double” unreasonableness requirement also highlights the fact that mere apprehensiveness on the part of a litigant that a judge will be biased — even a strongly and honestly felt anxiety — is not enough. The court must carefully scrutinise the apprehension to determine whether it is to be regarded as reasonable. In adjudging this, the court superimposes a normative assessment on the litigant’s anxieties. It attributes to the litigant’s apprehension a legal value, and thereby decides whether it is such that is should be countenanced in law.”

See also: S v Dube and Others 2009 (2) SACR 99 (SCA).

[10] The question whether or not a presiding officer should recuse himself/herself, is objective. In evaluation of the actions of the presiding officer the question is firstly whether a reasonable, objective and informed person would on the facts reasonably apprehend that the presiding officer has not or will not bring an impartial mind to bear on the adjudication of the case. Secondly, the requirement of reasonableness which simply means that both the person who apprehends the bias and the apprehension of the bias itself, must be reasonable.

See also: • Take & Save Trading CC and Others v The Standard Bank of SA Ltd 2004 (4) SA 1 (SCA)

• South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Limited Seafoods Division Fish Processing [2000] ZACC 10; 2000 (3) SA 705 (CC)

[11] Section 22 of the Superior Court Act 10 of 2013 provides:

“Grounds for review of proceedings of Magistrates’ Court

22. (1) The grounds upon which the proceedings of any Magistrates' Court may be brought under review before a court of a Division are-

(a) absence of jurisdiction on the part of the court;

(b) interest in the cause, bias, malice or corruption on the part of the presiding judicial officer;

(c) gross irregularity in the proceedings; and

(d) the admission of inadmissible or incompetent evidence or the rejection of admissible or competent evidence.

(2) This section does not affect the provisions of any other law relating to the review of proceedings in Magistrates’ Courts.”

(emphasis added)

Sub-sections (b) and (c) are relevant to this case at hand. The grounds upon which the proceedings of a Magistrate’s Court may be brought under review, are also grounds upon which a magistrate may be required to recuse himself/herself from a case.

See: Erasmus, Superior Court Practice, Volume 1, Part A- Commentary on the Superior Courts Act, Act 10 of 2013.

[12] If a judicial officer in a Magistrate’s Court refuses to recuse himself/herself from the matter under circumstances where one or more of these grounds are present, proceedings to review the judicial officer’s decision can be brought. The refusal of a judicial officer to recuse himself/herself from a matter may also constitute a ground of appeal.

[13] The conduct of a judicial officer (Magistrate or Judge) outside court may satisfy the test for a reasonable apprehension of bias, where such conduct reasonable created an impression of a predisposition in favour of one of the parties. This much is clear from the conduct of the presiding Magistrate in this case when she contacted Mrs. Le Roux telephonically and thereafter accused her of attempting to discuss the merits of the case in the absence of the legal representative presenting the other party. So too, because the presiding Magistrate contacted Ms. Redelinghuys and had a conversation with her in the absence of Mrs. Le Roux and/or Mrs. V[....]. This conduct is to say the least unbecoming of a judicial officer. This in my view constitute sufficient grounds for the recusal of the presiding Magistrate.

[14] Apart from the recusal issue or rather the refusal of recusal, is there also the issue of the appointment of an attorney to act for and on behalf of the minor children, presumably in terms of section 55 of the Children’s Act 38 of 2005 read with the Legal Aid South Africa Act 39 of 2014. Section 55 of the Children’s Act of 38 of 2005 states:

“(1) Where a child involved in a matter before the children's court is not represented by a legal representative, and the court is of the opinion that it would be in the best interests of the child to have legal representation, the court must refer the matter to the Legal Aid Board referred to in section 2 of the Legal Aid Act, 1969 (Act 22 of 1969).

(2) The Board must deal with a matter referred to in subsection (1) in accordance with section 3B of that Act, read with the changes required by the context.”

(emphasis added)

[15] In an application brought in terms of section 22(4)(b), 23, 24, 26(1)(b) or 28 of the Children's Act, the Court may subject to section 55 of the Children's Act appoint a legal practitioner to represent the child at the court proceedings. Sections 3 and 4(1)(a) read with Regulation 24 of the Legal Aid of South Africa Regulations (published under GN745 in GG41005 of 26 July 2017) regulate the appointment of a legal representative for a child involved in proceedings in the Children's Court. In terms of Regulation 29 of the Legal Aid Board Regulations, the prospective client has no right to elect the specific legal practitioner to represent him/her in the matter.

[16] The Legal Aid Board may appoint a legal representative for children involved in Children's Court proceedings. The Children's Court is not empowered to order that legal representation must be provided, but may only refer the matter to the Legal Aid Board for consideration, who will then consider whether it is necessary to assign a legal representative to the child and appoint the representative of the Board's choice. The exceeding of its powers by a Magistrate's Court constitutes grounds for review in terms of Section 22(1)(c) of the Superior Courts Act.

[17] The jurisdiction and powers of a Magistrate presiding in the Children's Court, are statutorily limited, as a Magistrate's Court (unlike the High Court) lacks inherent jurisdiction. Put differently, the Magistrate's Court is a "creature of statute" and exercises no inherent jurisdiction and may only exercise the powers conferred upon it by statute. Should the Court exceed its jurisdiction, the consequence is that such an order is null and void. The Magistrate, sitting as presiding officer of the Children's Court, simply lacked any powers to mero moto, or even on application by a party, appoint a legal representative (curator ad litem) for the children involved in the application under section 151 of the Children's Act. There is no ambiguity in section 55 of the Children's Act, and the appointment of a legal representative to a child must be effected by the Board of Legal Aid South Africa.

[18] As submitted by Adv. Hitge on behalf of the applicant, it is common cause that the Magistrate did not refer the matter to the Legal Aid Board but instead took it upon herself to appoint an attorney (Third Respondent), who is personally known to her. The procedure for appointment of legal representatives for children is statutorily entrenched in the Legal Aid South Africa Act 39 of 2014 and specifically in Regulation 24 of the Regulations issued in terms of the aforestated Act, for purposes of complying with section 55 of the Children's Act. Adv Hitge further submitted that the single page record of proceedings contains:

· No indication of the identity of the specific legal representative selected by the Magistrate;

· No selection criteria applied by the Magistrate;

· No indication that the legal costs / fees implications had been considered;

· No indication of the availability of the proposed legal representative;

· No investigation into the financial means of the Applicant and the Second Respondent prior to the purported appointment, regarding their ability to afford the unilaterally imposed attorney, Mrs. Redelinghuys.

I am in full agreement with these submissions made by Adv. Hitge.

[19] No explanation had been proffered by any party and more importantly by the Magistrate, as to who would have contacted Mrs. Redelinghuys to inform her of the purported appointment. The Magistrate's ex post facto explanation in her judgment in the Recusal Application that the Magistrate attempted to expedite matters and local attorneys may not be interested in Children's Court cases, are irrelevant considerations for attempting to exercise powers which the Children's Court lacks in the first place. The Magistrate clearly exceeded her powers by making a direct appointment of an attorney of her own choice and disregarded the prescribed procedure contained in section 55 of the Children’s Act read with Legal Aid South Africa Act 39 of 2014. Accordingly the appointment of the Third Respondent (Mrs. Redelinghuys) constitutes a gross irregularity in the proceedings of the Children's Court and must be set aside in terms of section 22(1)(c) of the Superior Courts Act.

[20] Much as the learned Magistrate may have had good intentions to appoint an attorney to act for and on behalf of the minor child and to guard or look after their interest, the manner in which she went about doing so was incorrect. As such the appointment of Ms. Redelinghuys as an attorney for and on behalf of the minor children must be reviewed and set aside, this despite any or all good intentions the learned Magistrate may have had. This put paid to the appointment of the said attorney, Mrs. Redelinghuys.

[21] There are some aspects that are worthy of been mentioned. At first it was totally unbecoming for the Magistrate to refuse the legal representative access to the court file without just cause. Although it may be that it is a file of the Children’s Court and could understandably contain some sensitive information, that in itself is no valid reason not to grant access to the court file. Same could have been supervised, even by the Magistrate herself, if need be. Court files are public documents.

[22] So too was it uncalled for, for the Magistrate to refuse that any document be filed in the court file. Documents, in particular court documents, are filed with the Clerk of the court in the Magistrate’s courts (District and Regional). Seeing that the court file was under the strict supervision and control of the Magistrate, she should have allowed the filing of any court document in the court file. Refusal to do so was unnecessarily obstructive. To reiterate, the Magistrate had no right to disallow the filing of any court document. A Notice of Application for Recusal of the Magistrate is a court document, that ought to have been allowed to be filed, in the court file. A recusal application must be attended to by any presiding officer (Magistrate or Judge) and a verdict on such an application must be given on record with reasons for the granting or refusal of same. Actual bias is not required but only a mere perception of bias.

[23] The following need to be taken into account, in determining whether there was a justifiable perception of possible bias. The fact that the Magistrate refused to accept court documents to be filed in the court file. The refusal of the Magistrate to recuse herself from the case without any good acceptable reason(s) proffered for such a decision. The fact that the Magistrate on her own accord appointed a private attorney to act for and on behalf of the minor children without prior consultation and prior consent of any of the parties, for the account of both parties as parents. This is in contravention of the Legal Aid Act as well as the Children’s Act as alluded to earlier. Although no evidence was presented, there is no need to consider whether the recusal in rem ought to be granted at this stage already or whether it should be waited and see if any further injustice will occur. In my view, there are sufficient grounds for the setting aside of the order(s) and rulings made by the presiding Magistrate and to order that the matter (enquiry) should start de novo before a different presiding Magistrate.

Order

[24] Consequently, the following order is made:

(i) The application for review succeed.

(iv) The proceedings under case number 14/1/3-129/2020 Magistrate Court, Wolmaranstad (Children’s Court) is reviewed and set aside.

(v) The proceedings under case number 14/1/3-129/2020 must start de novo before a different presiding officer (Magistrate), other than Magistrate F.B Khan.

______________

R D HENDRICKS

DEPUTY JUDGE PRESIDENT OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

I agree

_______________

M E MAHLANGU

ACTING JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG