Abstract
This article takes a critical look at the divergent approaches of courts in constructing the meaning of actual and apparent bias in adjudicative contexts. It argues that while proving actual bias on the part of an adjudicator may not always be easy and parties often revert to apprehended bias, an allegation of bias in any adjudication process is a matter that courts take very seriously. This notwithstanding, the courts have failed to consistently demarcate the necessary elements and threshold of proof that complainants must overcome to secure a successful challenge of decisions based on adjudicative impartiality. Upon critical evaluation of the decisions on the subject so far rendered, this article suggests that the pattern which has seemingly emerged is that which weighs the allegations of bias against the presumption of impartiality and the requirements of the double reasonableness test.
Highlights
The major problem associated with allegations that a judge was biased or perceived to have been prejudiced is the inability of the complainant to prove the facts of adjudicative partiality
The facts of De Lacy represent an excellent illustration of what an Australian Chief Justice once described as "fanciful and extravagant assertions and demands" in the pretext that justice
When the facts in this case are assessed with regard to the presumption of judicial impartiality and the double requirement of reasonableness, could a fair-minded, reasonable observer have reasonably apprehended that the court, or the presiding judge, or both were biased in rendering a judgment that reversed the award made by the trial judge? Given the nature of the allegations the appellants made against the judges who rendered the judgment whereby a whopping R60m evaporated before their very eyes, neither the appellants nor their counsel could have been described as being anything like objective bystanders
Summary
The major problem associated with allegations that a judge was biased or perceived to have been prejudiced is the inability of the complainant to prove the facts of adjudicative partiality. With one of the parties in court.[8] It may be that the adjudicator has pecuniary interest in the subject matter of dispute;[9] or that she has uttered words or in some other manner exhibited an obviously prejudicial attitude that may alert a party thereby prejudiced of the danger that he might not obtain even-handed justice from the judge.[10] In the absence of any of these conceivable factors, bias or impartiality falls to be determined from the circumstances of the case Such a determination cannot be founded on an adjudicator's error of interpretation, or on her application of the law to the facts before court.[11] The bare fact that a judge has ruled against an applicant is not evidence sufficient to show the state of the judge's mind. The facts of De Lacy represent an excellent illustration of what an Australian Chief Justice once described as "fanciful and extravagant assertions and demands" in the pretext that justice
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