The Constitutional Court has found that the conduct of a Johannesburg high court judge, who left a formal court sitting for a few minutes without first adjourning proceedings, did not create a reasonable apprehension of bias.
As a result, the apex court on Wednesday set aside a judgment of the Supreme Court of Appeal (SCA) passed in 2024, which had set aside judge Moroa Tsoka’s order of November 13 2020 refusing to recuse himself in an application made by SAP.
The SCA had also set aside the judgment Tsoka delivered in December 2021 on the case between Systems Applications Consultants (SAC) and SAP SE, stating that since Tsoka stayed on the trial when he should have recused himself, the whole process became legally void.
In his judgment passed on Wednesday, acting deputy chief justice Mbuyiseli Madlanga said in 2008, SAC had instituted proceedings against SAP in the Johannesburg high court.
The matter concerned a contractual dispute involving the existence or otherwise of a software distribution agreement between SAC and a subsidiary of SAP, SAP Systems Integration (Sapsi), and a claim for damages by SAC against SAP.
On October 12 2020 the hearing of the merits of the initial dispute commenced and the hearing was conducted over the Zoom virtual conference platform during the Covid-19 pandemic.
At the outset, let me point out that the trial judge’s conduct of leaving the hearing without first adjourning the proceedings and saying that questioning should continue in his absence is most regrettable
— Mbuyiseli Madlanga, acting deputy chief justice
On November 6 2020 SAP’s counsel cross-examined Mario Linkies, a key witness for SAC and the co-lead of Sapsi’s security consulting division in 2004-2005, about a specific e-mail, dated September 21 2004. This e-mail turned out to be a key point of dispute, Madlanga said.
During cross-examination, a line of questioning on the contents of this e-mail persisted for a while and Tsoka intervened and directed SAP’s counsel to desist from the line of questioning, saying, “May we proceed please and then you can argue that point. The question has been answered repeatedly.”
SAP’s counsel attempted to justify his line of questioning.
Tsoka questioned its necessity in the light of the questions that had already been asked. Eventually Tsoka said: “When you’ve finished, you’ll let me know. I’m taking a break.”
Tsoka proceeded to leave the virtual courtroom without first adjourning the proceedings, leaving the parties in silence. About two-and-a-half minutes later, Tsoka returned, after which SAP’s counsel raised concerns with him about his conduct.
The next day, SAP filed an application for the recusal of Tsoka as it believed it would not receive a fair trial. Tsoka dismissed the recusal application and the trial continued.
Tsoka delivered judgment on December 7 2021 and found against SAP, and declared SAP to be liable for such damages as SAC could prove.
SAP then applied to the trial judge for leave to appeal to the SCA against the recusal and merits judgments. Tsoka dismissed both applications for leave to appeal.
The SCA granted leave to appeal on July 13 2022 in respect of both high court judgments. Both appeals were argued.
In its judgment in 2024, the SCA dealt with the appeal against the recusal judgment. The SCA held that the trial judge’s conduct created a reasonable apprehension of bias in that:
- he prevented SAP’s counsel from cross examining Linkies in respect of his credibility; and
- the trial judge “irritatedly” left the hearing for a period without first adjourning proceedings and directed that the hearing continue in his absence.
The SCA then held that Tsoka’s judgment on the merits of the initial dispute was a nullity.
Madlanga said the complaint was one of reasonable apprehension of bias, not actual bias.
“At the outset, let me point out that the trial judge’s conduct of leaving the hearing without first adjourning the proceedings and saying that questioning should continue in his absence is most regrettable,” he said.
It seems to me that a true characterisation of what the trial judge did in the present matter is that it was not a manifestation of bias but rather a circumstance of absolute frustration with what was plainly annoying conduct by SAP’s counsel
— Madlanga
Madlanga said the trial judge’s conduct was clearly irregular. However, not all instances of irregular judicial conduct amounted to bias — something more was required.
“That ‘something more’ is, of course, that an informed, objective and reasonable litigant would conclude that the judge was failing to bring an impartial mind to bear on the adjudication of the matter.”
Madlanga said it was clear that the trial judge, through his ruling, merely wanted to move the proceedings on, with the possibility of SAP’s counsel arguing the point at a later stage.
“Judges are not ‘silent umpires’. Judges are required to manage the trial actively, direct the trial process, point out when evidence is irrelevant and refuse to listen to it, and — if examination or cross-examination of witnesses exceeds reasonable bounds — curtail it.”
Madlanga said Tsoka’s statement “[w]hen you’re finished, you’ll let me know [;] I’m taking a break,” and leaving the hearing without first adjourning proceedings were plainly irregular.
However, although a reasonable, informed and objective litigant would realise the impropriety of the trial judge’s conduct, properly contextualising the conduct, the litigant would conclude that the trial judge was merely irritated and frustrated and likely needed to “cool off”.
That was not enough to translate to a reasonable apprehension of bias, said Madlanga.
“It seems to me that a true characterisation of what the trial judge did in the present matter is that it was not a manifestation of bias but rather a circumstance of absolute frustration with what was plainly annoying conduct by SAP’s counsel.”
The appeal against the merits of the initial dispute before the SCA remained undecided, Madlanga added.
“It seems to me that an appropriate order is remittal to the Supreme Court of Appeal for the merits to be argued afresh.”
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