JUDICIAL CONDUCT COMMITTEE
In the matter between:
ADVOCATE J H BRUWER - Complainant
and
JUSTICE CAMERON - Respondent
RULING ON 05 OCOBER 2020
Introduction
[1] Advocate Bruwer (the complainant) lodged a complaint against Justice Cameron (the respondent) in terms of section 14(1) of the Judicial Service Commission Act 9 of 1994 (the JSC Act). The Acting Chairperson of the Judicial Conduct Committee referred the complaint to me to be dealt with in terms of s 17 of the JSC Act.
[2] In determining the merits of the complaint, I had regard to the affidavit deposed to by the complainant, Justice Cameron’s response, the complainant’s reply and a further response by Justice Cameron.
Factual background
[3] The complaint arises from the communication Justice Cameron had with the Rector and Members of the Stellenbosch University law school (the University), Council and other persons associated with the University concerning his possible nomination as Chancellor at the time when he was part of the Constitutional Court panel considering an application for leave to appeal by Gelyke Kanse and Others. The University, the Chairperson of its Senate and Council were the respondents in that application. The individuals concerned approached him to accept nomination as Chancellor of the University.
[4] The complainant alleges that Justice Cameron failed to disclose the nature and extent of communication he had to Gelyke Kanse and their legal representatives. He contends that the omission was deliberate and was in clear violation of the Constitution, the common law and the Judicial Code of Conduct (the Code).
[5] The allegations on which the complaint is based are the following: In the high court Gelyke Kanse together with other applicants, had sought to challenge a language policy decision taken by the University in 2016. The high court dismissed their challenge. Aggrieved by the high court’s decision Gelyke Kanse and the applicants approached the Constitutional Court for leave to appeal. The application was set down for hearing on 8 August 2019. After the matter had been argued on 8 August 2019, but before judgment was handed down on 10 October 2019, the Rector telephoned Gelyke Kanse’s lead counsel, Advocate JC Heunis SC, on 26 August 2019, to discuss with him Justice Cameron’s candidacy for the position as Chancellor of the University. During this conversation the Rector said that he had been in contact with Justice Cameron on a number of occasions during the preceding two weeks.
[6] Advocate Heunis reported this development to the University’s lead counsel, Advocate Jeremy Muller SC, that very same morning.
[7] The following day, 27 August 2019, Gelyke Kanse’s attorney of record, Mr Danie Rossouw, sent a letter to Ms Lorinda van Niekerk, the University’s attorney of record, in which he recounted what had occurred. Mr Rossouw said the following in paragraph 5 of the letter:
‘We have no doubt that you will share our view that it was utterly inappropriate and irresponsible for the Rector, and any other SU employees or office-bearers, to have approached Justice Cameron as they did and that the fact that this was done may have particularly serious implications for the administration of justice in this matter.’
[8] Paragraph 7 of the letter reads as follows:
‘We would therefore greatly appreciate it if you would inform us at your earliest convenience
— exactly who were involved in approaching Justice Cameron, what was said to him, when the conversations took place and what the outcome of the various conversations was. Furthermore, we would appreciate being informed what, if anything, you propose should be done about the matter. It may, for example, be necessary for the two lead counsel to request a meeting with the Chief Justice and, thereafter, also one with Justice Cameron.’
[9] Subsequent to the letter having been sent, Advocate Muller told Advocate Heunis that Justice Cameron had requested that Gelyke Kanse applicants should indicate whether there would be an objection from them if he were to be nominated as a candidate for the position of Chancellor of the University.
[10] Pursuant to the request, on 29 August 2019, Advocate Heunis wrote a letter to Justice Cameron, with his counterpart’s knowledge and consent, in which he stated:
‘2. It so happens that a number of alumni who have links with Gelyke Kanse themselves considered nominating you as a candidate for that position but, in the final analysis, decided against it because we concluded that it would not be appropriate to approach you in that regard in view of the fact that you are a member of the Court who is seized of the matter involving Gelyke Kanse, on the one hand, and the University, on the other.
3. Be that as it may, this serves to inform you that there will be no objection by the parties which I represent in that case to your acceptance of a nomination as a candidate for the position of Chancellor of Stellenbosch University.’
[11] The complainant contends that the contents of Advocate Heunis’ letter did not mean, and was not intended to convey approval of such acceptance. Nor was it intended to convey approval of the contact between Justice Cameron and the Rector before the matter was heard, as well as after the matter had been heard, but before judgment was handed down. He says this contact took place without Gelyke Kanse’s knowledge.
[12] The complainant further alleges that subsequently, on 2 September 2019, the Registrar of the Constitutional Court inter alia informed the parties’ attorneys of record that Justice Cameron had asked that it be drawn to the parties’ attention that─
[12.1] while the litigation was pending and before the hearing on 8 August 2019, he was approached by various persons to accept a nomination as Chancellor, which he declined because of the pending litigation and other reasons;
[12.2] the approaches continued and, after the hearing, he indicated that he might reconsider, subject to an indication from Gelyke Kanse and its senior counsel that there would be no objection;
[12.3] Advocate Heunis so indicated by letter dated 29 August 2019;
[12.4] arising from the aforegoing, the parties were invited to examine and consider─
[12.5] the e-mail correspondence between Justice Cameron and the Rector, and between Justice Cameron and a member of the University’s Council, Advocate Meiring;
[12.6] the names of the parties who approached Justice Cameron, which would be furnished on request.
[13] He points out that this letter was written after Justice Cameron had accepted the nomination as Chancellor of the University, which fact, the complainant points out, was not conveyed to Gelyke Kanse’s legal representatives. They only learned of them when they were contacted by the Rector, who advised them that there had been frequent contact between him and Justice Cameron after the matter was heard and before judgment was delivered.
[14] The complainant concedes that Gelyke Kanse did not respond to the invitation to examine and consider what was on offer. But he explains, this was due to the fact that there was no reason to question the integrity of the process and that of the parties involved in the absence of any knowledge about what he calls ‘the secret events’ that preceded the Justice Cameron’s nomination as Chancellor.
[15] He says it was only when the judgment was handed down on 10 October 2019 that, based on its shortcomings, he had reason to believe that Justice Cameron was prejudiced. The suggestion is that it could be inferred from the judgment that the communication between the Rector and Justice Cameron both before the hearing and after the hearing of the matter created a reasonable apprehension in him that Justice Cameron was biased in favour of the University.
[16] As a result of investigation that was undertaken in particular of the correspondence between the University and Justice Cameron, Gelyke Kanse’s attorney became aware of ongoing contact between him and the Rector after the matter was heard, but before judgment was handed down. In particular, the complainant refers to an arrangement between the Rector and Justice Cameron to meet at the OR Tambo International Airport on 17 September 2019. These developments, the complainant contends, were never disclosed to Gelyke Kanse by Justice Cameron before the request regarding his candidature was conveyed by Adv Muller to Gelyke Kanse’s lead counsel. I must pause here to state that the arrangement between the Rector and Justice Cameron occurred after 29 August 2019 and thus could not have been disclosed by Justice Cameron before Advocate Muller approached Advocate Heunis regarding his candidature.
Contravention of the Code of Judicial Conduct
[17] The complainant says that Justice Cameron’s conduct was in breach of Articles 5, 6, 9, 10(1)(e), 11(1)(a), 11(1)(b) and 13 of the Code. He accordingly submits that:
’44.1 Cameron J wilfully – or in an act of gross negligence ─ contravened various articles of the Code of Judicial Conduct and the Judicial Service Commission Act, No. 9 of 1994, as is fully expounded above.
44.2 The conduct of Cameron J was incompatible with or unbecoming the holding of judicial office, and was prejudicial to the independence, dignity, efficiency and effectiveness of the Courts, specifically of the Constitutional Court.
44.3 If some or all of the other Judges had been aware of Cameron J’s unlawful conduct and refrained from acting against him in the interests of justice and also with a view to protecting the honour and dignity of the Court (as they ought to have done), those concerned should likewise be censured.
44.4 Cameron J’s insistence that Gelyke Kanse should, on his behalf, make a decision of crucial legal ethical importance, was extremely unfair: It exerted enormous pressure on Gelyke Kanse in its capacity as a party to the matter before Cameron J and the rest of the Court.
44.5 Besides, Gelyke Kanse’s reaction to Cameron J’s request can by no means be regarded as condonation of his conduct, which could not even have been condoned by the Constitutional Court itself, nor can it exonerate him, and possibly other Justices, vis-à-vis me or, for that matter, any other South African citizen.
44.6 Cameron J, in his position as Chancellor-elect of SU, was in terms of an age-old principle of natural justice prohibited from further acting as a Justice in the Gelyke Kanse matter, let alone delivering the Court’s unanimous judgment: Nemo iudex in sua causa.’
Justice Cameron’s response
[18] In his response Justice Cameron states:
‘7.1 I was first approached by the Rector to accept nomination as Chancellor. I refused outright, because there was a pending case before the Constitutional Court, in which the University was a party.
7.2 However, further approaches ensued later, from others connected with the University. They asked me to reconsider my refusal.
7.3 Eventually, I stated that I could consider nomination only if the legal representatives of Gelyke Kanse indicated that they had no objection to my being nominated.
7.4 Those who approached me contacted senior counsel representing Gelyke Kanse to establish his and his clients’ views.
7.5 In response, counsel wrote to me directly, unequivocally stating that the parties he represented had “no objection” to my accepting nomination as Chancellor.
7.6 Despite this assurance, for the rigorous protection of both the Court and myself, I then made available to all parties the relevant correspondence and contacts, in case any objection might be forthcoming.
7.7 The Registrar of the Constitutional Court, acting on my behalf and on behalf of all the members of the Court, wrote to the parties, offering full disclosure of the contacts and correspondence.
7.8 The parties were invited to “examine and consider” all contacts and correspondence between me and those attached to or otherwise involved with the University who had sought my nomination.
7.9 The applicants did not avail themselves of this offer. This was even though it afforded them the chance to raise any objection to my participation in the case.
7.10 If the applicants had availed themselves of this opportunity, and raised any objection based on the information tendered, I would have been able to consider either recusing myself from the Court, or declining nomination as Chancellor.
7.11 However, the applicants neither considered the documents nor voiced any objection.
7.12 Suddenly, however, after the Court’s judgment was handed down, the applicants sprang into action. Only when the result went against Gelyke Kanse, its legal representatives asked to see the correspondence and documents that had been tendered to them five weeks earlier.
7.13 Gelyke Kanse says (as does the complainant), disingenuously and insultingly, that it realised that there was cause for concern only after receiving the judgment because its quality was so poor.’
[19] The law is clear, Justice Cameron argues, in these circumstances, it is not in the interests of justice to allow a litigant (or anyone else) to raise as supposed basis for recusal where, having had full access to the facts, it has failed to avail itself of its entitlement to raise an objection before judgment is given.
[20] Justice Cameron says he did not seek or desire the Chancellorship of Stellenbosch University. He sets out the following chronology of the events preceding the complaint, which is either common cause or is not seriously disputed. The Rector of the University, Professor W J S de Villiers, first approached him on 2 July 2019. He sent an email to his personal assistant at the Constitutional Court, Ms Elizabeth Moloto, requesting his cell-phone number.
[21] The Rector then contacted him, and asked him to accept nomination as Chancellor. He says he immediately expressed his reluctance. His reasons stemmed, inter alia, from considerations of race, gender and location. It genuinely seemed to him that the University would best be served by an outstandingly qualified black woman Chancellor, preferably one who lived in or near Stellenbosch considering that home is in Gauteng.
[22] The Rector asked him nevertheless to consider his request and he agreed to do so. After careful reflection, he wrote to the Rector on 2 August 2019, definitively declining nomination and citing the pending litigation in Gelyke Kanse as a reason that made it impossible for declining nomination.1
[23] The Rector accepted his decision without ado, on 10 August 2019.2 The matter was at an end. The University on 14 August 2019 published a call for nominations for Chancellor. The closing date was 4 September 2019.
[24] Justice Cameron goes on to say that members of the Stellenbosch University law school, Council and community made further approaches to him. In particular, on 16 August 2019, a member of Council, Mr Jean Meiring, acting on behalf of other Council members, implored him at a private function in Johannesburg not to close my mind. He followed up with an expansive letter.
[25] Justice Cameron states further, that on 17 August 2019 he attended a memorial observance for a deceased friend at Betty’s Bay. At the memorial, he encountered Mr Chris Otto, who raised his nomination for the chancellorship. He mentioned that, given the pending litigation, he could consider accepting nomination only if Gelyke Kanse indicated that they had no objection.
[26] On 21 August 2019, Justice Cameron wrote to the Rector informing him that, in the light of numerous renewed approaches, he was reconsidering the nomination – but it was an indispensable precondition that Mr Jan Heunis SC, counsel representing the applicants, should give an indication that he was not opposed.3
[27] On 23 August 2019 Mr Koos Bekker, a well-known businessperson interested in the affairs of the University, called him from the United Kingdom. Again, he told Mr Bekker that he could not accept nomination unless Gelyke Kanse indicated that it did not object. Mr Bekker said that he would contact Mr Heunis.
[28] Justice Cameron explains that it was in the light of these intercessions that he had agreed to reconsider. Though he recognised the high honour and public trust that being elected Chancellor entailed, his preponderant reason was a sense of obligation in seeking to offer service to the University.
[29] He says he could not wait for the delivery of the judgment before accepting nomination as the closing date for nominations was 4 September 2019, and it could not be changed. This was earlier than any likelihood of the pending judgment in Gelyke Kanse being finalised.
[30] He did not approach the University’s legal representatives. He let his position be known to the members of Council and the Stellenbosch community who approached me, as well as to the Rector. He had no knowledge of contacts between those parties and persons until the Report by Judge Fourie.
[31] On 29 August 2019, a letter from Mr Jan Heunis arrived in his chambers at the Court. As mentioned, Mr Heunis was lead counsel, acting for all the applicants. Justice Cameron alleges that Mr Heunis was also in his own right a party to the litigation. In his capacity as chairperson of Gelyke Kanse, he was the first applicant. And as chairperson of the University’s Convocation, he was the third applicant. But these allegations are denied by Mr Heunis. He denies that he was ever the Chairperson of Gelyke Kanse. He says in his capacity as President of the University’s Convocation he was mandated to be third applicant in the proceedings by an Annual General Meeting of the Convocation itself and was therefore not a party to the litigation in his personal capacity.
[32] The letter from Mr Heunis was addressed to him personally. It was directed to him under cover of an email to his personal assistant, Ms Elizabeth Moloto, which was headed ‘Urgent letter to Justice Cameron’. To Ms Moloto, Mr Heunis described the letter as ‘urgent and important’. The contents of the letter as set out by the complainant have been dealt somewhere in ruling and it is not necessary to repeat here what the letter says.
[33] Justice Cameron says he accepted Mr Heunis’s assurance in good faith and at face value. He understood the letter, as did everyone else concerned, to fulfil his condition for accepting nomination in the light of the pending Gelyke Kanse litigation. He contends that this is the only fair and sensible interpretation and argues that it is opportunistic for the complainant to claim that the letter ‘did not mean, and was not intended to convey, approval of such acceptance’. He says this claim flies in the face of the letter’s express language.
[34] Justice Cameron alleges that the day he received the letter, he instructed his personal assistant to respond to Mr Heunis. She should indicate that he would –
‘… write more formally, through the Registrar, to inform the parties of the approaches to [me] regarding the Chancellorship.’
[35] On that day, he also wrote to his colleagues in the Constitutional Court who, together with him, constituted the panel in the case:
‘Dear Colleagues
As you can see, I have been approached to accept nomination as Chancellor of Stellenbosch University.
Gelyke Kanse here indicates through its counsel, Mr Heunis SC, that it has no objection.
For the Court’s rigorous protection, I consider it prudent that I formally disclose the approaches to me and invite the parties, should they wish, to see the correspondence.
Unless I hear to the contrary, I shall do that tomorrow.’
[36] On 30 August 2019, in reliance on Mr Heunis’ letter of the previous day, Justice Cameron also wrote to the Rector indicating that he was available to be nominated as Chancellor. He further informed the Rector that he would be visiting Stellenbosch University in a fortnight, on Thursday, September 12; he would be there briefly to open an exhibition at the University’s gallery. He asked the Rector if he would be around and whether it was possible to see him briefly while he was there.4
[37] The Rector told him that he would be abroad at the time of his visit to the University and that, on his return from Europe on 17 September 2019, he would be at OR Tambo International Airport, and suggested that they meet for lunch then.5
[38] On 31 August 2019 he received a letter from the Registrar of the University concerning the practicalities of the nomination process.
[39] On 1 September 2019 Justice Cameron wrote to the judges of the Court as follows:
‘Dear Colleagues, Here, as signalled on Thursday last week [29 August], is my proposed disclosure to the parties. Unless guided otherwise, and subject to welcome suggestions on formulation, I will send this out by end of the morning tomorrow.’
[40] On Monday, 2 September 2019, on his behalf, and the Court’s, the Registrar tendered a full disclosure of the contacts and correspondence regarding the nomination to the parties.
[41] In the email the parties were invited to examine and consider all contacts and correspondence between Justice Cameron and those attached to or otherwise involved with the Stellenbosch University who had sought his nomination: The email reads:
‘Justice Cameron has asked that the following be drawn to the parties’ attention:
1. While the litigation was pending and before the hearing on 8 August 2019, he was approached by various persons to accept nomination as Chancellor of the University, which he declined because of the pending litigation and other reasons.
2. The approaches continued and, after the hearing, he indicated that he might reconsider subject to an indication from Gelyke Kanse and its Senior Counsel, Dr Jan Heunis, SC, that there would be no objection.
3. Dr Heunis so indicated on behalf of Gelyke Kanse by letter dated Thursday 29 August 2019.
4. Arising from paras 1 and 2, the parties are invited to examine and consider—
(i) the email correspondence between Justice Cameron and the Rector of the University, Professor de Villiers, and between Justice Cameron and a member of its Council, Adv Jean Meiring, and
(ii) the names of the persons who approached Justice Cameron, which will be furnished on request.’
[42] Justice Cameron contends that at no stage before judgment was delivered did Gelyke Kanse or any of the other applicants, including Mr Heunis and his attorney Mr Rossouw, request the details they were invited to ‘examine and consider’.
[43] On 25 September 2019, he was elected Chancellor of Stellenbosch University. In terms of the University’s statute, the Electoral College comprised 42 votes. Of these, amongst five candidates who were nominated, all except two were cast in favour of his election.6
[44] Justice Cameron says he took Gelyke Kanse’s failure to examine and consider the correspondence to indicate that Mr Heunis had acted on due instruction, and also that he had acted in good faith, in assuring him, before judgment, and while the litigation was pending, that there was ‘no objection’ to his being nominated as Chancellor.
[45] However, if this was indeed so, that changed once judgment was handed down, against Gelyke Kanse, on 10 October 2019. As soon as judgment was delivered, for the first time the applicants and their legal representatives sprang into action. They now demanded to see the details that had been tendered to them five weeks earlier.
[46] For this reason, the Constitutional Court asserted that, as judgment had now been handed down, Gelyke Kanse no longer had any entitlement to the correspondence previously tendered to it. However, at his insistence, all the information in question was thereupon afforded to Gelyke Kanse through the University, in the week after judgment was delivered on 10 October 2019.
[47] Justice Cameron contends that five weeks earlier, from 2 September 2019, or any time before judgment, Gelyke Kanse and the other applicants had both an entitlement and a duty to examine and consider the correspondence between him and those seeking his nomination. He argues that had they done this, they would have been fully cognisant of all facts, in addition to those Mr Heunis and Mr Rossouw were aware of, anyhow, before the letter to me of 29 August 2019. He goes on to say Gelyke Kanse would have known not only what had transpired between him and the Rector and others, but that, relying on and trusting in the honesty of its senior counsel, he engaged in good faith contact with the Rector, the Registrar and other University officials in connection with his nomination.
[48] Had it done so, Justice Cameron argues, it would also have seen that a meeting was envisaged between him and the Rector at OR Tambo International Airport, on 17 September 2019. Gelyke Kanse and its legal representatives might have objected to any and all of this. It might have done so after the hearing, and before judgment was delivered. It would have been entirely at liberty to do so. Instead, Gelyke Kanse and its legal representatives abstained from examining and considering the details tendered until after judgment.
[49] Justice Cameron maintains that Mr Heunis, knowing, as did Mr Rossouw, according to his own account, that the Rector had approached him while the litigation was pending, wrote to him recording that Gelyke Kanse and its co-litigants had ‘no objection’ to my nomination.
[50] Justice Cameron argues that, had Gelyke Kanse at the appropriate time signified any objection at all, he could, in consultation with his colleagues, have considered whether to—
50.1 withdraw from the panel determining the case; and / or
50.2 withdraw his willingness to be nominated as Chancellor.
[51] With regard to the allegations that he commented publicly on the case, between Gelyke Kanse and the University Justice Cameron says during the interview with the publication concerned he expressly declined to comment on the ground that it would be inappropriate while the case was pending.
[52] As regards the complaint based on the allegation that he breached Article 11(1)(b) of the Code Justice Cameron say while he was interviewed on radio in relation to his election as Chancellor, he did not enter into any debate about the case.
Mr Bruwer’s reply
[53] In the reply the complainant says the fact that Justice Cameron was approached by the Rector of the University to accept nomination as Chancellor was not disclosed to his colleagues and the legal representatives of the parties; not even those of the University itself. He states that Justice Cameron never disclosed to Gelyke Kanse that some of the respondents in the Gelyke Kanse matter had been in contact with him over the Chancellorship over a period of time. The complainant says Justice Cameron only disclosed this to his Constitutional Court colleagues on 29 August 2019, following receipt of Mr Heunis’ letter of that date.
[54] The complainant further alleges that Justice Cameron was required to make full disclosure which would also have required of him to advise the parties that he had ‘long been the nominated scribe in Gelyke Kanse application’. He says the practical effect of his failure to disclose the role he was to play as the Court’s scribe, is that Gelyke Kanse stepped into a trap which was carefully crafted.
[55] Mr Heunis deposed to a confirmatory affidavit which was attached to the complainant’s reply. The purpose of this affidavit is, among others, to correct certain assertions in Justice Cameron’s response which, according to Mr Heunis, were inaccurate and to confirm that the protracted and frequent discussions by email, telephonically and in person with the respondents in Gelyke Kanse matter were without Advocate Muller’s knowledge (Counsel for the University) and Heunis’ knowledge.
Further response by Justice Cameron
[56] Justice Cameron filed a further response, the purpose of which, he says, is to correct the untruthful claims and assertions of purported fact with which the reply is replete; and to address the suggestion that he withheld information and sought to entrap Gelyke Kanse and Heunis.
[57] He denies in his further response that he had frequent and protracted contact with the Rector before the hearing in Gelyke Kanse. He says he had one substantive telephone conversation only with the Rector in July 2019, in which he asked him, and he agreed, to consider his possible nomination as Chancellor.
[58] As regards contact with the Rector after the hearing of Gelyke Kanse matter, Justice Cameron rejects as false the allegations that he deliberately journeyed to OR Tambo International Airport to have lunch with him on 17 September 2019; that they had a meal together; probably discussed the outcome of the pending Gelyke Kanse judgment and even that he and the Rector discussed strategy in relation to the pending judgment and Chancellorship. He says he did not specially arrange a meeting with the Rector at the airport. He was on his way to Germany and his flight to London was due to depart at 19h25 on the same day that the Rector arrived from abroad. He says he arrived somewhat earlier in order to meet the Rector. He says their combined transit through the airport was convenient, but uncalculated.
[59] He states that he met the Rector and his wife at about 15h30 in the foyer of the Intercontinental Hotel and the meeting lasted some 20 or 30 minutes. The Rector’s wife was present throughout.
[60] The sole purpose of the meeting, he says, was to exchange appropriate courtesies in relation to the upcoming Chancellorship election, since it seemed probable that he would be elected.
Discussion
[61] The gist of the complaint is that Justice Cameron, because of his prior discussions with individuals associated with the University, which was one of the respondents in Gelyke Kanse matter in the Constitutional Court should have recused himself. The complaint, as developed in the reply is that he failed to make a full disclosure of the nature and extent of his interaction with the Rector of the University and members of the University community, who approached him to accept nomination as Chancellor. The complaint is anchored on Articles 5; 6; 9; 10(1)(e) and 13 of the Code. The complainant further alleges that Justice Cameron breached Article 11(1)(a) of the Code in that he commented publicly on the merits of the case after hearing, but before judgment was handed down. This complaint arises from an interview published in the Afrikaans-language Sunday newspaper, Rapport, on 29 September 2019.
[62] A further complaint is based on Article 11(1)(b) of the Code. The allegation is that Justice Cameron breached this Article which prohibits the giving of interviews after judgment has been handed down and thereby entering into a public debate about the case. He is alleged to have commented about the case during the radio interviews. The date and the particulars of the radio stations are not provided, however.
Recusal and disclosure of interest complaint
[63] Section 34 of the Constitution provides that ‘everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court . . .’ Section 165(2) of the Constitution requires the courts to apply the Constitution and the law impartially and without fear, favour or prejudice. Judicial Officers are therefore required in adjudicating disputes before them to apply the law impartially, without fear, favour or prejudice.
[64] Thus a Judicial Officer who sits on a case in which he or she should not be sitting because, seen objectively, either he or she is either actually biased or there exists a reasonable apprehension that he or she might be biased, acts in a manner that is inconsistent with the Constitution.
[65] In this regard the Constitutional Court in Bernert v ABSA [2010] ZACC 28; 2011
(3) SA 92 (CC) at para 28 held that the apprehension of bias ‘may arise from the conduct of utterances by a Judicial Officer prior to or during proceedings. In all these situations, the Judicial Officer must ordinarily recuse himself or herself’.
[66] The court went on to state that the test for recusal is whether there is a reasonable apprehension of bias, in the mind of a reasonable litigant in possession of all the relevant facts that a judicial officer might not bring an impartial and unprejudiced mind to bear on the resolution of the dispute before the Court (para 29).
[67] In this regard, the Constitutional Court cited with approval President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1999] ZACC 9; 1999 (4) SA 147 (CC) at para 48 in which the following was said regarding the proper approach to an application for recusal:
‘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.’
[68] The question is whether there would be a reasonable apprehension of bias, in the mind of a reasonable litigant in possession of all the relevant facts that Justice Cameron might not bring an impartial and unprejudiced mind to bear on the resolution of a dispute between the University and Gelyke Kanse.
In other words, the question is, having regard to all the relevant facts and circumstances, whether a reasonable person in the position of the complainant would have concluded that Justice Cameron was either biased, or that there existed a reasonable apprehension that he might been biased towards the University. It is not suggested in the complaint that Justice Cameron was actually biased. But, it does not matter because it is settled law that not only actual bias, but also the appearance of bias disqualifies a Judicial Officer from presiding or continue to preside over the judicial proceedings.7
[69] A Judicial Officer should not hesitate to recuse himself or herself if there are reasonable grounds on the part of a litigant for apprehending that the Judicial Officer, for whatever reason, will not be impartial.
[70] The question is whether Justice Cameron, having regard to the particular circumstances of this case, should have recused himself from the matter and not to take any further participation in it. This requires a closer examination of the facts, as provided by the complainant and Justice Cameron as to what happened before this complaint was lodged bearing in mind that the complainant was party to the litigation between Gelyke Kanse and the University. In doing so, one needs to analyse what happened, when it happened and how it happened.
[71] The common cause facts are set out in the chronology of events preceding the hearing and after hearing of Gelyke Kanse matter as summarised in Justice Cameron’s evidence. Justice Cameron was approached by the Rector of the University on 2 July 2019 to ask him to accept nomination as Chancellor of the University. He expressed his reluctance. The Rector nevertheless asked him to consider his request. On 2 August 2019, Justice Cameron after careful reflection wrote to the Rector definitively declining nomination citing, among others, the pending litigation in the Gelyke Kanse matter which made it impossible for his nomination to proceed. This was accepted by the Rector.
[72] The Gelyke Kanse matter was heard on 8 August 2019. At that stage he had declined nomination. The question is whether he should have disclosed to the parties and the Court that before the hearing he had had discussions with the Rector about his possible nomination as Chancellor. The complainant contends that Justice Cameron ‘already was legally obliged to divulge the details of his secret contacts – during a period of more than a month – with the First Respondent . . .’
[73] It is correct that in terms of Note 13(iv) of the Code if a Judge is of the view that there are no grounds for recusal, but believes that there are facts which, if known to a party, might result in an application for recusal, such facts must be made known timeously to the parties, either by informing counsel in chambers or in an open court, and the parties are to be given adequate time to consider the matter.
[74] The facts which he would have to disclose at that stage were that on 2 July 2019 the Rector of the University approached him to ask him to accept nomination as Chancellor, that he was reluctant to accept it; that the Rector asked him to consider his request; that he reflected on it and thereafter he wrote to the Rector to decline the nomination, citing among others, the pending litigation in Gelyke Kanse.
In my view, these facts objectively assessed, would not provide a sufficient basis for an obligation to disclose to arise, unless it can be shown that he entertained the idea to reconsider the request when he was approached again. In any event, the question whether or not he was obliged to make disclosure of the communication he had with the Rector before the hearing of the matter should not be evaluated in isolation.
The evaluation must take account of all this evidence. We know that on 2 September 2019 that after receiving Mr Heunis’ letter of 29 August 2019 Justice Cameron made a full disclosure of the contacts and correspondence regarding the nomination to the parties. He invited the parties to examine and consider all contacts and correspondence between him and those attached to or otherwise involved with the University, who had sought his nomination. There was no response to this invitation by the parties. This disclosure included Advocate Heunis’ letter of 29 August 2019.
[75] As I have already stated the complainant was not a party in the litigation between Gelyke Kanse and the University. But the fact of the matter is that Justice Cameron reconsidered the nomination and signified his acceptance of the nomination after receiving Mr Heunis’ letter confirming that Gelyke Kanse parties would not object to his being nominated. Having regard to the context and the purpose for which the letter was generated there can be no room for the contention that Justice Cameron’s interpretation of the letter was unreasonable and that the complainant’s interpretation is reasonable. It follows therefore that the complainant’s contention that Gelyke Kanse as a result of absence of full disclosure ‘stepped into a trap which was carefully crafted’, should be rejected.
[76] It is correct that the invitation to examine and consider the disclosure, was not subject to any specific time frame and that notionally it could be responded to at any time but, in my view, any would have to be within a reasonable time. Any contrary interpretation would defeat the whole purpose of the disclosure which was to afford the parties, in particular Gelyke Kanse an opportunity to consider its options, which could include asking Justice Cameron to recuse himself from participating in the preparation of the judgment or asking for the proceedings to be started afresh. This is what a reasonable litigant who entertained reasonable apprehension of bias would have done. A reasonable litigant would not spring into action and begin complaining about bias only after the judgment had gone against him.8
[77] In conclusion a complaint based on the allegations of contravention of Articles 5, 6, 9, 10(1)(e) and 13 of the Code should be dismissed.
Complaint based on Articles 11(1)(a) and (b) of the Code
[78] The complainant alleges that Justice Cameron in breach of Articles 11(1)(a) commented publicly on the merits of the case after the hearing, but before the judgment was handed down. This complaint is based on an interview he had with Rapport newspaper on 29 September 2019.
[79] In terms of Article 11(1)(a) a Judge must, save in the discharge of judicial office, not comment publicly on the merits of any case pending before, or determined by, that judge or any other Court. I have read the newspaper article, on which reliance is placed and it does not support the allegation on which this complaint is based.
[80] As regards the charge based on violation of Article 11(1)(b) there is no factual support for it and should similarly fail. Particulars of the radio station on which the alleged interview took place as well as the content of that interview are not disclosed.
[81] In the result the complaint is dismissed as it is lacking in substance.
D H Zondi JA
Member of JCC
Footnotes:
1 (as translated by Cameron J):
Good day, Wim
I hope that you and your spouse have enjoyed a memorable trip to Italy and elsewhere, and especially that the heatwave in Europe merely accentuated the summer beauty for you.
Since our discussion two weeks ago, it has unfortunately become incontestably clear that any possibility of considering the Chancellorship is not practically conceivable now.
Right now I am sitting surrounded by the documentation in the case, which we are hearing next week, and, whatever the outcome, my position in its adjudication would be hopelessly compromised if I accepted the nomination. Equally my position as nominee would probably be subjected to justified questioning while the case is still pending.
It’s a pity that our arresting discussion of the identity and other issues bearing on the Chancellorship must end in this terse way, but I cannot see any realistic way in which we can pursue the conversation.
It does not need emphasis that I am honoured and also touched to have been approached. With good wishes
2 (as translated by CameronJ):
Dear Edwin
Many thanks for your message and apologies for the delayed reply. I returned yesterday from a rather challenging and gruelling but beautiful hike in the Fish River Canyon to conclude my 60th birthday … all worth the effort and exertion.
I am in the nature of things disappointed about you and the Chancellorship but understand your position entirely; I am nevertheless glad that you weighed and thought it about it thoroughly.
Be assured of my continued support for a future link with the University of Stellenbosch when the timing is more appropriate.
With great appreciation.
3 (as translated by Cameron J):
Dear Wim
Before and after these messages [the preceding emails of 2 July and 10 August 2019] I have also been approached by members of the Law Faculty, and by Jean Meiring, Michiel le Roux and Chris Otto. This morning Edwin Hertzog also called and messaged.
I am rethinking. And have talked with my life partner Nhlanhla.
This morning I told Michiel that as indispensable precondition we would have to obtain an indication from Jan Heunis, not necessarily of support, but at least of non-opposition. He is working on that.
We have until 4 September. With good wishes.
4 (as translated by Cameron J):
Dear Wim
In the light of the positive developments I am now in fact available for nomination, and thank you and others for the trust you place in me and for the opportunity that might eventuate.
On Thursday afternoon 12 September I will be briefly in Stellenbosch to open an exhibition at your gallery.
Might you be available for a half-hour if I pop in? Best wishes
5 (as translated by Cameron J):
Dear Edwin
This is fantastic news for the institution as a whole, but naturally also for me personally!
I know that Jean Meiring is busy with the “nuts and bolts” of the nomination process to get everything ready by the closing date (4 September at 12h00).
I leave for Europe on Tuesday for visits to universities, foundations, donors and alumni and will unfortunately return only on 16th September – I do have a USAf meeting on the 17th at OR Tambo airport and could meet then for lunch. I look forward to hearing from you.
Best wishes
6 Report by Judge Burton Fourie, Annexure EC14, para 8, Chronology.
7 Mulaudzi v Old Mutual Life Assurance Company (South Africa) and Others; NDPP and Another v Mulaudzi [2017] 3 All SA 520 (SCA) para 49.
8 Bernert v ABSA para 70.
