003050
social matter directly related to the case does not disqualify the judge from
sitting. Opinion, which
is acceptable,
should
be distinguished
from
bias,
which is unacceptable.”45
128. The
Court
considers
that, to ensure
impartiality,
any
Court
must
offer sufficient
guarantees to exclude any legitimate doubt.2®° However, the Court observes that the
impartiality of a judge is presumed
this presumption.
and undisputable evidence is required to refute
In this regard, the Court shares the view that “the presumption of
impartiality carries considerable weight, and the law should not carelessly invoke the
possibility of bias in a judge’*’
reasonable apprehension
and
that “whenever
of bias is made,
an allegation
of bias or a
the adjudicative integrity not only of an
individual judge but the entire administration of justice is called into question. The
Court must, therefore, consider the matter very carefully before making a finding’2®
129. In the instant case, the Court notes that Judge Dotse’s statements were made on
the basis of his assessment of the facts of the matter. The Court is of the view that,
although
the said statements
considered
as an
were
appropriate
unfortunate,
judicial
comment
and went
they
beyond
however
did
what
can
be
not give
an
impression of preconceived opinions and do not reveal bias.
130. Justice Dotse statements concurred with the unanimous decision of the Ordinary
Bench in referring the determination of his matter to the High Court.
131. The Court notes that even though Justice Dotse wrote the lead Judgment,rendered
by the Review Bench which was constituted of eleven (11) Judges, JudgeDetse
was
only one (1) out of eleven
(11) Judges on that Bench.
The Court is of the
opinion that a single judge’s remarks cannot be considered sufficient to taint the
25 Commentary on The Bangalore Principles of Judicial Conduct, § 60.
26 Findlay v UK (1997) 24 EHRR 221 § 73. See also Nsongurua J Udombana, ‘The African Commission on
Human and Peoples’ Right and the development of fair trial norms in Africa’ 2006 African Human Rights
Law Journal Vol 6/2.
27 Wewaykum Indian Band v Canada 2003 231 DLR (4th) 1 (Wewaykum).
28 Okpaluba and Juma “The Problems of Proving Actual or Apparent Bias: An Analysis of Contemporary
Developments in South Africa” PELJ 2011
(14) 7 at 261.
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