On the 11th of July 2023, the Court of Appeal presided over an appeal brought by Debswana Diamond Company Limited (“Debswana”) against Infotrac (Pty) Ltd (“Infotrac”). The decision sought to be appealed was in respect of a High Court decision, in which the High Court had granted judgment in favour of Infotrac in the sum of One Hundred and Ten Million Pula (BWP110,000,000.00) against Debswana.
On the 31st July 2023, prior to the judgment being delivered on the substantive appeal, Infotrac filed an application, on urgency, seeking the recusal of the judges who had presided over the appeal citing a number of reasons that, it alleged, led to a ‘reasonable apprehension of bias’.
On the 20th of September 2023, the Court of Appeal delivered its Ruling in respect of the recusal application and, thereafter, delivered judgment on the substantive appeal.
The Application for Recusal
The Court of Appeal has held that the law on the recusal of members of the judiciary in Botswana is now settled. In brief, the court has reiterated the position that actual bias need not be proven, and that a mere apprehension of bias is sufficient. The Court, further, reiterated that the test for apprehended bias is an objective test and that the onus of establishing the apprehended bias rests upon the party alleging it.
In considering whether the application for recusal of the panel of Judges should be granted or not, the Court of Appeal applied the so-called “double reasonableness test” as more fully set out below.
The Court of Appeal cited and relied on the cases of GAOTSALOE v DEBSWANA DIAMOND COMPANY LIMITED [2019] 1 BLR 109, 110, 127 and 133 (CA); MOGALE v MOTOR VEHICLE ACCIDENT FUND {2016] 1 BLR 458 (CA); President of the REPUBLIC OF SOUTH AFRICA v SARFU 1999(4) SA 147 (CC), and held as follows:
“In determining whether the onus of establishing apprehended bias has been discharged, a court starts with a presumption of impartiality, namely that judges will carry out their oath of office. This presumption can be displaced by cogent evidence that passes the ‘double reasonability’ test, or a two-fold objective element: (i) the person considering the alleged bias must be reasonable and (ii) the apprehension of bias itself must be reasonable in the circumstances of the case.”
The Court held that the first requirement on the principles applicable to the recusal of judicial officers is that the alleged perception of reasonable bias must be determined from the objective perspective of a reasonable person, or an informed observer, and not from the subjective perspective of the party asking for recusal. The apprehension of bias must itself also be reasonable.
Infotrac’s initial complaint was that its Attorney had been harshly treated by way of questions posed and comments made during the hearing of the Appeal by one of the members of the Bench. Further complaints were subsequently made by Infotrac. The alleged harsh treatment of Infotrac’s Attorney, it was alleged, gave rise to a reasonable apprehension of bias on the part of the Judge in question.
In dealing with the issue, Judge Froneman stated:
“Any informed observer of the Botswana Court of Appeal would know that vigorous and sometimes robust debate and interaction between the bench and counsel is the very stuff of an appeal hearing, as is the case in many other jurisdictions.”
The Court of Appeal (in considering all relevant facts and applicable principles) came to the conclusion that an informed observer would not have considered the questions posed nor comments made as indicating any potential bias on the part of the Judge(s).
The Court of Appeal also dealt with the other complaints raised by Infotrac’s Managing Director and held that a reasonable person would not have attempted to influence the outcome of a pending appeal, especially by approaching other institutions (as Infotrac’s Managing Director had) other than the Court itself in an effort to thwart the outcome of an appeal.
The application for recusal was accordingly dismissed on the basis that it was without merit and accordingly dismissed, with costs.
