Apprehension of bias and the spectacle of the fair-minded observer: a survey of recent commonwealth and South African decisions on pre-judgment
- Okpaluba, Chuks, Juma, Laurence
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2014
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/126107 , vital:35850 , http://specjuris.ufh.ac.za/apprehension-bias-and-spectacle-fair-minded-observer-survey-recent-commonwealth-and-south-african
- Description: A perusal of contemporary Commonwealth case law reveals that allegations of bias or apprehension of bias tend to revolve around the pecuniary or other interests of the Judge arising from kinship, previous relationship, or association with party or counsel.1Apparent bias could also be inferred from the judge‘s conduct or utterances, especially, his/her criticisms or cumulative criticisms of a party during proceedings or in adjudication.2In other instances, a judge‘s previous knowledge or association with the case in court, or of an important witness, may disqualify him/her from sitting or passing judgment in the case.3
- Full Text:
- Date Issued: 2014
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2014
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/126107 , vital:35850 , http://specjuris.ufh.ac.za/apprehension-bias-and-spectacle-fair-minded-observer-survey-recent-commonwealth-and-south-african
- Description: A perusal of contemporary Commonwealth case law reveals that allegations of bias or apprehension of bias tend to revolve around the pecuniary or other interests of the Judge arising from kinship, previous relationship, or association with party or counsel.1Apparent bias could also be inferred from the judge‘s conduct or utterances, especially, his/her criticisms or cumulative criticisms of a party during proceedings or in adjudication.2In other instances, a judge‘s previous knowledge or association with the case in court, or of an important witness, may disqualify him/her from sitting or passing judgment in the case.3
- Full Text:
- Date Issued: 2014
Pecuniary interests and the rule against adjudicative bias: the automatic disqualification or objective reasonable approach?
- Okpaluba, Chuks, Juma, Laurence
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/129093 , vital:36217 , https://hdl.handle.net/10520/EJC122974
- Description: This article deals with the issue of bias arising from pecuniary interest of a judge. Essentially, it asks the question: when does the pecuniary interest of a judge diminish his/her ability to apply his/her mind impartially to the dispute before him/her. To answer this question, the article undertakes a synthesis of the various rules and tests applied across Commonwealth jurisdictions and then compares them with the South African approach as outlined in two recent cases, namely Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC) and Ndimeni v Meeg Bank Ltd (Bank of Transkei) 2011 (1) SA 560 (SCA). Broadly, the article discusses the key aspects of the automatic disqualification approach preferred by the English courts, the Canadian objective reasonable approach and the realistic possibility approach recently adopted by the Australian courts. The article concludes that the South African approach that places emphasis on the objective reasonable test, complemented by the realistic possibility approach, may be most suitable, given the nature of complaints so far dealt with by the courts and the full propriety of the injunction in section 34 of the Constitution.
- Full Text: false
- Date Issued: 2011
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/129093 , vital:36217 , https://hdl.handle.net/10520/EJC122974
- Description: This article deals with the issue of bias arising from pecuniary interest of a judge. Essentially, it asks the question: when does the pecuniary interest of a judge diminish his/her ability to apply his/her mind impartially to the dispute before him/her. To answer this question, the article undertakes a synthesis of the various rules and tests applied across Commonwealth jurisdictions and then compares them with the South African approach as outlined in two recent cases, namely Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC) and Ndimeni v Meeg Bank Ltd (Bank of Transkei) 2011 (1) SA 560 (SCA). Broadly, the article discusses the key aspects of the automatic disqualification approach preferred by the English courts, the Canadian objective reasonable approach and the realistic possibility approach recently adopted by the Australian courts. The article concludes that the South African approach that places emphasis on the objective reasonable test, complemented by the realistic possibility approach, may be most suitable, given the nature of complaints so far dealt with by the courts and the full propriety of the injunction in section 34 of the Constitution.
- Full Text: false
- Date Issued: 2011
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