It is the Judge President’s wish that his answers will be published completely so as not to leave any room for misunderstanding that may arise from a partial publication of answers to such an important issue.
“Mr. Goeieman suggests that there is a perception that appointment of legal practitioners as acting judges creates (a) conflict of interest and (b) causes loss of trust in the judiciary.
(a) Conflict of interest
In the context of the judiciary, the term “conflict of interest” does not accurately define the problem. The more accurate expression is cast in the prohibition: “No man shall be judge in his own cause”– also known as disqualifying bias. Whether or not a judge labours under a disqualifying bias cannot be determined in the abstract but only by reference to the facts of a particular case. Disqualifying bias would normally involve financial interest by the judge in the case, or the perception of partiality or bias in favour or against a party to the case. Financial interest could be either that of the judge personally or a person related to him or her. As for the perception of partiality or bias, the test applied is that of the “well-informed, thoughtful and objective observer”– rather than the „‟hypersensitive, cynical and suspicious person”. If the well-informed and thoughtful observer – looking at the particular case – is likely to form the view that the judge would not be impartial, then a judge should not sit on the case. Applying these principles I do not think that well-informed and thoughtful people in our society share your concern that appointing legal practitioners as acting judges is inimical to the inviolable principle of an independent and impartial judiciary.
(b) Loss of trust in the judiciary
The public should not lose trust in the judiciary because legal practitioners are asked to act as judges. Every effort is being made by my office to see to it that private legal practitioners do not sit on cases in which their practices have an interest. The first admonition I give to acting judges when they are sworn in is that if they come across any case in which there is even the slightest hint of „‟conflict of interest‟‟ it must be raised with me or the next most senior judge in my absence. When that happens I would discuss the circumstances giving rise to the potential conflict with the judge concerned and if I am satisfied that it raises the potential for conflict, the file would be re-assigned to another judge. Human nature being what it is, I also have the responsibility to ensure that judges do not avoid the responsibility of sitting on cases for the flimsiest of reasons. You will be surprised at the number of files that are returned to my office daily for re-allocation to other judges because of the perception of bias.
If a party to a case has any reasonable and just cause to think that they would not get a fair hearing from a judge based on the principles stated above, it is their duty to inform their lawyer immediately so that an assessment is made whether or not to seek the recusal of the judge for any reason recognized by law. If they are not legally represented, such matter must be raised with the registrar of the court who would normally discuss it with me or the presiding judge and if a sound basis exists for the complaint, the judge will be replaced.
(c) Appreciation of enquiry
I do appreciate the opportunity afforded by your enquiry to shed light on a very important matter such as this and congratulate your paper for the initiative in raising it. It is so important for the media to strive to provide proper information to the public so that they fully understand the functioning of our constitutional democracy.”
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