NAMES: LEFA PHETHEDI MALEPE
STUDENT NUMBER: 59011254
LEGAL PHILOSOPHY (LJU4801)
PORTFOLIO
25 OCTOBER 2022
, QUESTION 1
1.1
According to Tsele1 Judicial impartiality means that a judge must be open to
persuasion, without rigidly adhering to personal, and often preconceived views
about an issue. A judge is required to bring an open mind to the adjudication
process. Judge should also judge the matter in a fair and just manner without
involving his or her personal feeling. The values or principles of his or her religion
should not influence in making a decision on the matter. This principle of judicial
impartiality operates to protect the legitimate performance of the judicial function
according to the articulated judicial decision-making method, protecting the integrity
of the judicial decision by protecting the judge from distorting influences, pressures,
threats, interferences or inducements.
1.2
South African law use the concept of reasonable apprehension of bias in the context
of determining whether the present or past conduct of a presiding officer
compromises his/her position in relation to the fair and impartial discharge of his/her
duties.2 In the case where a judicial office creates a reasonable impression that s/he
may be biased, a litigant may ask the judge to recuse him-/herself from hearing or
deciding the matter.
1.3
The test for reasonable apprehension of bias is an objective one, applied on a case-
by-case basis. This test was extensively articulated by the Constitutional Court in
South African Rugby Football Association v President of the Republic of South
Africa.3 The principle behind it is closely related to the idea that justice should not
only be done but should be seen to be done. In practice, bias is a demanding legal
test for an appellant to satisfy and any allegations against a Judge must be
sufficiently evidenced and detailed.
1
Tsele M “Rights and religion; bias and beliefs: Can a judge speak God?” (2018) Journal for Juridical Science 1-25.
2
Shackell v S 2001 (4) SA (SCA):par. 9.
3
South African Rugby Football Association v President of the Republic of South Africa 1999 (4) SA 147(CC).
STUDENT NUMBER: 59011254
LEGAL PHILOSOPHY (LJU4801)
PORTFOLIO
25 OCTOBER 2022
, QUESTION 1
1.1
According to Tsele1 Judicial impartiality means that a judge must be open to
persuasion, without rigidly adhering to personal, and often preconceived views
about an issue. A judge is required to bring an open mind to the adjudication
process. Judge should also judge the matter in a fair and just manner without
involving his or her personal feeling. The values or principles of his or her religion
should not influence in making a decision on the matter. This principle of judicial
impartiality operates to protect the legitimate performance of the judicial function
according to the articulated judicial decision-making method, protecting the integrity
of the judicial decision by protecting the judge from distorting influences, pressures,
threats, interferences or inducements.
1.2
South African law use the concept of reasonable apprehension of bias in the context
of determining whether the present or past conduct of a presiding officer
compromises his/her position in relation to the fair and impartial discharge of his/her
duties.2 In the case where a judicial office creates a reasonable impression that s/he
may be biased, a litigant may ask the judge to recuse him-/herself from hearing or
deciding the matter.
1.3
The test for reasonable apprehension of bias is an objective one, applied on a case-
by-case basis. This test was extensively articulated by the Constitutional Court in
South African Rugby Football Association v President of the Republic of South
Africa.3 The principle behind it is closely related to the idea that justice should not
only be done but should be seen to be done. In practice, bias is a demanding legal
test for an appellant to satisfy and any allegations against a Judge must be
sufficiently evidenced and detailed.
1
Tsele M “Rights and religion; bias and beliefs: Can a judge speak God?” (2018) Journal for Juridical Science 1-25.
2
Shackell v S 2001 (4) SA (SCA):par. 9.
3
South African Rugby Football Association v President of the Republic of South Africa 1999 (4) SA 147(CC).
