TOOLS OF THE TRADE – JUNE 2024

RECUSAL OF AN ADJUDICATOR OR ARBITRATOR

Introduction

When an adjudicator or an arbitrator is requested to recuse himself or herself, the request will normally be made by one of the parties. Obviously if both parties concur, then, correctly, the course of action must be to comply with the request and to step down since confidence in the adjudicator^[1] will have been lost. Where only one of the parties requests the recusal and the other party does not support the request, the adjudicator must make the decision based upon his or her own conscience guided by the legal principles applicable to the recusal process.

Two leading South African cases provide a useful analysis of the law regarding recusals. The first case is South African Human Rights Commission obo, South African Jewish Board of Deputies v Masuku and Another 2022 (4) SA 1 (CC) [2022] (Masuku), and the second is The President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 9; 1999 (4) SA 147 (CC); 1999 (7) BCLR 725 (CC) (SARFU).

The Question of Recusal

Both of the above cases dealt extensively with the question of recusal.

Before considering these two judgments, it is apposite to consider the contractual regime under which the adjudicator or arbitrator has been appointed. Under the Association of Arbitrators (Southern Africa) NPC’s (AoA’s) Standard Procedure Rules,^[2] Article 11, captioned ‘Disclosures by and Challenge of Arbitrators’, stipulates:

‘When a person is approached in connection with his or her possible appointment as an arbitrator, he or she shall disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. An arbitrator, from the time of his or her appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties and the other arbitrators unless they have already been informed by him or her of these circumstances.’

In the NEC 3’s adjudicator contract, clause 1.2 thereof provides:

‘The adjudicator notifies the Parties as soon as he becomes aware of any matter which may present him with a conflict of interest.’

The NEC 4 Dispute Resolver’s Contract has a similar provision in clause 1.3.

The obligation to maintain the state of impartiality is thus paramount, albeit the requirement of disclosure of circumstances which might give rise to a perception of bias, without any objection being raised following the disclosure, has the effect of indemnifying the adjudicator from any further recusal request based on such circumstances.

To return to the judgments. In SARFU the court stated:

‘A cornerstone of any fair and just legal system is the impartial adjudication of disputes which come before the courts and other tribunals. This applies, of course, to both criminal and civil cases as well as to quasi – judicial and administrative proceedings. Nothing is more likely to impair confidence in such proceedings, whether on the parts 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’.^[3]

Presumption of Impartiality

Inherent in the question of recusal is the presumption of impartiality. The courts have stated that the presumption of impartiality is implicit, if not explicit, in the office of a judicial officer.^[4] The presumption of impartiality has the effect ‘… that a judicial officer will not lightly be presumed to be biased’.^[5]

The court elaborated on this aspect in SARFU by quoting the following remarks of Cory J in R v S (RD) (1997) 118 CCC (3d) 353 with approval:

‘Courts have rightly recognized that there is a presumption that Judges will carry out their oath of office. . . . This is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high. However, despite this high threshold, the presumption can be displaced with “cogent evidence” that demonstrates that something the Judge has done gives rise to a reasonable apprehension of bias.^[6]

SARFU emphasises that the presumption in favour of impartiality must always be taken into account when conducting the enquiry into whether a reasonable apprehension of bias exists.^[7]

It is trite that the test for recusal is the reasonable apprehension of bias test.^[8] Article 13 of the Code of Judicial Conduct for judges^[9] provides, among other things, that:

‘A judge must recuse him- or herself from a case if there is a —

(a) real or reasonably perceived conflict of interest or

(b) reasonable suspicion of bias based upon objective facts,

and shall not recuse him- or herself on insubstantial grounds.’

(Emphasis added)

In Masuku, the Constitutional Court considered it apposite to reaffirm the test for recusal^[10] by citing its previous finding in SARFU as follows:

‘It follows . . . 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.^[11]’

(Emphasis added)

Masuku summarises the position as follows:^[12]

‘The test for recusal is objective and constitutes an assessment of whether a reasonable litigant in possession of all the relevant facts would have a reasonable apprehension that the judge is biased and unable to bring an impartial mind to bear on the issues in dispute. The application of the test requires both that the apprehension of bias be that of a reasonable person in the position of the litigant and that it be based on reasonable grounds. This test must, thus, be applied to the true facts on which the recusal application is based.’

(Emphasis added)

This test, thus, must be applied to the true facts on which the recusal application is based.^[13]

The question of reasonable apprehension of bias brings with it its own difficulties. Clearly the facts of each case would need to be considered and the onus would be on the applicant to persuade a court, adjudicator or arbitrator, that a reasonable apprehension of bias exists. Ultimately the test must be judged against the question as to whether or not the judicial officer can bring his or her mind to the case with impartiality.

Clearly an adjudicator does not come to a matter like a monk in splendid isolation devoid of contact from the outside world. In order to satisfy the test for recusal the courts have stated:

‘There must be an articulation of a logical connection between the matter and the feared deviation of the course of deciding the case on the merits. The bare assertion that a Judge has an ‘interest’ in litigation or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making is articulated.’^[14]

The judgment in Masuku concluded the discussion on this topic by emphasising:

‘Ultimately, then, the test for reasonable apprehension of bias requires more than mere association with a matter. The relevant connection must call into question the ability of the judge to apply their mind in an impartial manner to the case before them.’^[15]

In conclusion

From the judgments to which I have referred, it is clear that the onus falls on the applicant to produce cogent evidence in support of the apprehension of bias. If the adjudicator is satisfied that no such evidence has been brought before him or her, and, more importantly perhaps, is satisfied that there is no other evidence of which only the adjudicator is aware, this being a matter for the adjudicator’s conscience, then the adjudicator should refuse the request for recusal. The adjudicator should be able to proceed with the reference if he or she can answer the question, can I still be fair to the parties and give an impartial decision in the light of the concerns raised or is there a possibility that my decision will be swayed in favour of the one party?

Not only may the recusal application be ill-founded, but it may also have been brought as a tactical stratagem. For whatever reason, the one party may have decided that it is no longer in its interest to have the particular adjudicator decide the matter and seeks the recusal of the adjudicator in the hope of getting a more favourable outcome before a different adjudicator. The adjudicator also has a duty to both parties and the prejudice which may be occasioned by simply consenting to the request for recusal may be significant for the other party. There is also the question of fees. None of the standard form contracts addresses what happens to an adjudicator’s fees if the request for recusal is successful and the adjudicator elects to recuse himself or herself. The NEC forms of contract generally require the adjudicator to complete the adjudication before submitting fee accounts. If a considerable amount of work has been carried out by the adjudicator, is he or she still entitled to those fees or are they now unrecoverable? Must an adjudicator return fees already received if his or her decision is to step down? I would suggest that it may be advisable to provide, in the adjudicator’s terms and conditions, provisions to deal with this situation even though it is likely to be a rare occurrence.

Hopefully, the above comments will be of assistance should the reader find himself or herself faced with a request for recusal.

Chris D Binnington, Pr Eng

Director AoA

6 May 2024

^[1]

To avoid the necessity to refer to both adjudicator and arbitrator repeatedly, I shall limit the reference to adjudicator, i.e., unless the context dictates otherwise.

^[2]

Rules for the Conduct of Arbitrations 2021: Standard Procedure Rules.

^[3]

SARFU at para 35.

^[4]

Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC).

^[5]

Ibid., at para 33.

^[6]

SARFU at para 40.

^[7]

Ibid., at Para 41