n South African Law Journal - The dialogue between the bench and the bar : implications for adjudicative impartiality

Volume 128, Issue 4
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



What is the role of the judge in the conduct of a trial? Can he or she engage counsel in legal argument and ask questions on legal issues without breaking the brittle bond of justice or be said to have 'descended into the arena'? Assuming that these actions are permissible, at what point will the judge's dialogue with counsel or line of questioning go beyond permissible limits? These are the questions with which this article grapples. Based on an analysis of the Constitutional Court decisions in (2) 2007 (1) SACR 566 (CC) and 2011 (3) SA 92 (CC), and several Supreme Court of Appeal and other Commonwealth decisions, the article explores the circumstances in which the recusal of judges has been sought, or judicial decisions have been challenged on appeal on the basis of an allegation that there have been violations of the principle of fair hearing as enshrined in the Constitution. The article draws on the 'apprehension of bias' jurisprudence to establish the utility of the presumption of impartiality and the hybrid test of double-reasonableness in contexts where a judge's conduct is in question. The article concludes that the dialogue between the bench and bar is a useful component of adjudication in our adversarial system and should be limited by the rules of impartiality only in very exceptional circumstances.

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