Pecuniary interests and the rule against adjudicative bias: the automatic disqualification or objective reasonable approach?

Okpaluba, Chuks; Juma, Laurence

Title: Pecuniary interests and the rule against adjudicative bias: the automatic disqualification or objective reasonable approach?
Creator: Okpaluba, Chuks
Creator: Juma, Laurence
Date Issued: 2011
Date: 2011
Type: text
Type: article
Identifier: http://hdl.handle.net/10962/129093
Identifier: vital:36217
Identifier: 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.
Format: 22 pages
Format: pdf
Language: English
Relation: Journal for Juridical Science
Relation: Juma, L. and Okpaluba, C., 2011. Pecuniary interests and the rule against adjudicative bias: The automatic disqualification or objective reasonable approach? Journal for Juridical Science, 36(2), pp.97-118.
Relation: Journal for Juridical Science volume 36 number 2 97 118 January 2011 0258-252X
Rights: University of the Free State
Rights: Use of this resource is governed by the terms and conditions of the Sabinet Terms and Conditions Statement (https://www.sabinet.co.za/terms-conditions)

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