Bias - Nemo judex in sua causa

Test for bias

A fair hearing also demands that adjudicators who make administrative decisions must be impartial and unbiased. Thus if the matter is being decided by a tribunal, it will be a reviewable irregularity if there was bias on the part of one or more of the members of the tribunal against one of the parties involved.


The onus rests upon the person alleging bias to establish this allegation on review. He can do so either by showing–

  • that bias was clearly actually displayed; or
  • that, in the circumstances, there was a real possibility of bias.


In cases where a party is alleging not actual bias but instead an apprehension of bias, the courts have used one of two tests to decide this issue. The first test is the real likelihood of bias test and the second is the reasonable suspicion of bias test.


In some cases, our courts have used the test of whether there was a real possibility (likelihood) of bias on the part of the decision maker. In the case of Bailey v Health Professions Council 1993 (2) ZLR 17 (S) the court applied the real danger or real possibility of bias test. See also Mukarati v Director of Housing & Community Services HH-281-90 and Guild v Minister of Lands & Ors HH-891-15.


In other cases, our courts have applied the reasonable suspicion of bias test. In the Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd HH-58-01 the court applied the test of whether there was a real apprehension of favour, affection or ill-will. This case involved an application by a party to the proceedings for the recusal of a High Court judge who was to hear a case. The respondent sought relief under the Companies Act against the applicant, a newspaper company. The applicant applied for the recusal of the judge on the grounds of his “association” with a newspaper which was not party to the proceedings but which allegedly had an interest in the outcome. The judge had worked for the newspaper for a five-month period before his appointment to the bench. The matter was initially raised with the judge in chambers, where a written application was made. The judge held that that before making the application, the applicant should have clarified from the judge what his association was and only then if necessary have proceeded with an application for recusal. Whatever personal feelings a judge might have about an application for recusal, it is in the general interests of the judiciary for an individual judge to recuse himself where a reasonable apprehension of “favour, affection or ill-will” is perceived. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not accede too readily to suggestions of appearance of bias. The attitude of the respondent in an application for recusal should be neutral, although there may be circumstances where the application is opposed on the grounds of being far-fetched or calculated to delay the proceedings. For any interest to suffice to disqualify a judicial officer, there must be a link, direct or indirect, between the interest or conduct complained of and one or the other of the parties in litigation. Even in cases involving reasonable apprehension of bias this link, be it in a less direct form, must be proved. In determining the possibility of bias, one does so from the point of view of the court seized of the challenge or in the eyes of the reasonable litigant. In this case, there could be no reasonable apprehension of bias, and the application was dismissed.


In the case of Chiura v PSC & Anor 2002 (2) ZLR 562 (H) the court used the test of whether reasonable, right-thinking persons would regard the two persons alleged to be biased as unlikely to be impartial when they deliberated on the matter in hand. See also the SA case of BTR Industries Ltd v Metal & Allied Workers Union 1992 (3)SA 673 (A)


The danger of bias or the suspicion of bias must be a real one and must not be remote, fanciful, flimsy, far-fetched or entirely speculative. There is a need to establish a link between the conduct alleged to form the basis of the allegation of bias and one of the parties to the litigation.


Baxter at pp 558-561 has suggested that these two tests should be combined and the question should be asked as to whether there was there reasonable suspicion that there was a real likelihood of bias. This combines the reasonable suspicion test and the real likelihood of bias tests. In the case of Austin & Anor v Chairman, Detainees’ Review Tribunal 1986 (4) SA 281 (ZS), the Supreme Court seemed to use this combined test because it asked the question whether right-minded people would have entertained the likelihood of bias or the belief that the tribunal in question favoured unfairly one party and not the other.


The reason why proceedings will be interfered with not only when it is proved that an adjudicator was definitely biased, but also when there was reasonable suspicion that there was a real likelihood of bias is that emphasis is laid upon the need to ensure that justice is seen to be done. Also it is often very difficult indeed to prove that bias was actually displayed. In applying the test of reasonable suspicion of real likelihood of bias, the courts will ask the question whether the reasonable layperson would have considered that in the circumstances there was a real chance that the adjudicator would act in a biased fashion. The reasonable layperson would not analyze the facts as painstakingly as a lawyer, but on the other hand, the reasonable person would not consider that there was a real likelihood of bias if the possibility of bias was an entirely remote or fanciful one or was only a matter of vague conjecture based upon flimsy evidence.


In applying this test, the courts must take into account both particular facts suggestive of bias and the cumulative effect of factors such as the way in which the entire proceedings were handled, see R v Foya 1963(3) SA 459 (FS); Crow v Detained Mental Patients Special Board 1985(1) ZLR 202 (H) and Austin & Anor v Chairman, Detainees’ Review Tribunal & Anor 1986 (4) SA 281 (ZS)


However, “mere interest or even enthusiasm which an official may have in the discharge of his functions in pursuance of the object or purpose of his office is not bias.” Witham v Director of Civil Aviation. Even “an overly enthusiastic approach to the discharge of his functions” does not necessarily constitute bias in an official.” See Crow v Detained Mental Patients Board1985 (1) ZLR 202 (H).



Situations when reasonable suspicion of bias


Financial interest


There was a financial interest in the matter, even a slight one unless the interest is ridiculously slight or remote. See, for instance, Rose v Johannesburg Local Transport Board 1947 (4) SA 272 (W)at 287 and Dimes v Grand Junction Canal [1852] 3 HLC 759. In the Rose case the chairman of the Transportation Board was also the director of a large taxi company. The Board refused an application for an exemption certificate in respect of car-hire services... Despite his interest in the outcome of the proceedings the chairman refused to stand down. The court held  that the chairman’s pecuniary interest in excluding competitors would induce an apprehension of bias in a reasonable person


In Bam-Mugwanya v Minister of Finance and Provincial Expenditure, Eastern Cape, and Others 2001(4) SA 120 (CK) the tender board was considering the extension of contracts for the provision of bus services in the province. A member of a tender board had failed to recuse herself despite having a financial interest in a corporation which was directly interested in the extension of contracts for bus services.


The financial interest can be direct or indirect. It is direct if the person concerned has that interest himself or herself. It is indirect if persons such as the spouse, business partner or brother that person has that interest.


Frequently there are specific provisions in legislation prohibiting administrators from participating in proceedings when they have a financial interest. For example, s 48 of the Rural District Councils Act provides that a councillor may not take part in Council proceedings during which any contract, proposed contract or any other offence is being discussed if the councillor has any direct or indirect pecuniary interest in the contract.


In Decimal Invstms (Pvt) Ltd v Arundel Village (Pvt) Ltd & Anor HH-262-12 a rent dispute arose between the applicant and the first respondent and was referred to arbitration in terms of the lease agreement. The second respondent was appointed as arbitrator. The applicant claimed that the arbitrator had an interest in the cause. The court held that this was not proved. The arbitrator he was appointed for his expertise as a valuer. It could be said that a valuer has an interest in the cause merely because he gets more commission from high rentals, without showing how this would benefit him.


In Sigugu v Minister of Lands & Anor 2013 (1) ZLR 48 (H) the court found that the proceedings of a committee has been vitiated by the fact that the chairperson had a personal interest in the outcome of the proceedings.




Adjudicator friendly or hostile towards one of parties


There will be bias where one of the adjudicators is either related to or friendly with, one of the parties or is hostile to one of the parties as a result of past events or events during the hearing. See Cottle v Cottle[1939] 2 All ER 537.


In Bailey v Health Professions Council 1993 (2) ZLR 17 (S)  the court found that the apprehension of bias on the part of one member of the tribunal was well founded as there was a relationship of intense dislike between the applicant and that member but the apprehension of bias on the part of another member was fanciful. In the case of Chiura v PSC & Anor2002 (2) ZLR 562 (H) a public servant had been found guilty of a disciplinary offence and demoted. One member of the committee had previously found the applicant guilty of misconduct. Another was the applicant’s subordinate, who was tipped to take over her position. Reasonable, right-thinking persons would regard these two persons as unlikely to be impartial. The proceedings would therefore be set aside and the applicant reinstated.


Pre-deciding case


This would happen if there were advance indications of support or pre-deciding the case or an expression of a definite opinion about the outcome of the case before both sides of the evidence have been heard. Giving undertakings in advance of the hearing to support one side when the matter is heard is clear evidence of bias. So too to express a definite opinion about the outcome of a case before both sides of the story have been presented will be clear evidence of bias. See Solomon & Anor v De Waal 1972 (1) SA 575 (A) at 580.


This would also apply where a member of the tribunal makes a statement showing that he is prejudiced against a party: Patel v Witbank Council 1931 TPD 284.In this case a member of licensing committee had been heard prior to hearing saying he would move heaven and earth to prevent an Indian from acquiring a licence. The applicant was an Indian.


In the case of Associated Newspapers of Zimbabwe (Pvt) Ltd v The Minister of State for Information and Publicity 2005 (1) ZLR 222 (S) 252 the chairman of the Commission responsible for deciding whether newspapers should be registered had published a series of newspaper articles expressing hostile views towards a particular newspaper. He referred to the newspaper as an outlaw and indicated that its application would not be considered at all. This person then chaired the Commission hearing dealing with the application by the newspaper about which he had expressed these views. The newspaper’s application for registration was refused by the Commission. The Supreme Court found that, although it had not been proved that the chairperson was actually biased against the applicant newspaper, there was a reasonable apprehension of bias and set aside the determination by the Commission. It did not, however, direct that the chairperson should not sit when the matter was re-heard by the Commission.


Later the Commission reconsidered the matter as ordered by the Supreme Court but the same Chairperson sat as chairperson in this re-hearing. The matter was then taken back to the High Court and this time the High Court decided that the entire Commission was biased in respect of this matter. See Associated Newspapers of Zimbabwe v Media & Information Commission & Anor2007 (1) ZLR 272 (H)



Adjudicator aligning with a party


The body deciding a dispute aligns itself with one of the two parties to the dispute In the case of Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S)  MK Airlines had applied for a transport carrier licence from a Board that dealt with such applications. Affretair, a solely government owned company that had a monopoly in this field, objected to the granting of the permit to MK. The Board refused the application and when MK took the matter on review to the High Court the Board chairperson displayed bias against MK by aligning himself with Affretair. The Board chairperson and MK filed joint notice of opposition, with both these parties using the Civil Division of the Attorney-General’s office as their joint legal representative. The Board chairperson purported to speak for both the Board and Affretair. The chairperson displayed clear bias by this alignment of the Board with Affretair and seemed to regard the Board as Affretair’s ally against competition. In the case of Blue Ribbon Foods Ltd v Dube NO & Anor 1993 (2) ZLR 146 (S) the court observed that where a labour officer rules in favour of an employee and the employer takes the matter on review, the labour officer and the employee should not be represented by the same lawyer because this will create the impression that labour officer is acting in collaboration with the employee and that the labour officer is biased against the employer.


Adjudicator also prosecutor


The judge is also prosecutor or prosecution witness. This would be impermissible as it would be virtually impossible for the person who is presenting the prosecution case or testifying for the prosecution to then approach the case impartially in hearing defence evidence and in judging all the evidence. Whenever possible, a person who is not a member of the tribunal should be appointed to present the case against the person being charged with some disciplinary offence, so that the tribunal members can simply listen impartially to all of the evidence.


The Legislature may provide that the proceedings may take place without having a separate prosecutor, see de Wet v Patch 1976 (1) RLR 65 (G); 1976 (2) SA 316. (The judge was also the prosecutor or the prosecution witness.)


However, in the case of ZFC Ltd v Geza 1998 (1) ZLR 137 (S) the Supreme Court pointed out that that although normally it is not permissible during tribunal proceedings for a person to be both a prosecutor and a judge in the same matter, inroads can be made into this principle where authorised by statute or contract. In the present case the chairman of the disciplinary tribunal had not acted both as prosecutor and judge. He had acted more as an evidence gatherer than as an investigator. The auditor had carried out the investigation and the auditor’s report was then placed before the disciplinary tribunal. Additionally, the applicable code of conduct, which was both a statute and a contract in this case, provided for a very flexible approach and nothing that was done was contrary to the disciplinary procedures provided for in the code of conduct. The matter was fully investigated and the employee was given the opportunity to respond to the allegations.


Prior knowledge of case


There was prior knowledge of the case. In a disciplinary matter, it would not normally be permissible for a person to judge a case where he has some prior knowledge of the circumstances leading to the charge being brought, but the statutory provisions may sometimes permit such a person to sit. Even where the statutory provisions do allow this, however, bias would still be present if the adjudicator approached the case with a closed mind and was not prepared to modify his initial impressions in the light of the evidence which emerged. See de Wet v Patch 1976 (1) RLR 65 (G) and Turner v Jockey Club of SA 1974 (3) SA 633 (A)


See also Moch v Nedtravel (Pvt) Ltd 1996 (3) SA 1 (A) and Wildlife Society of South Africa & Ors v Minister of Environment 1996 (3) SA 1095 (TK).



Manner in which body conducts proceedings


Reasonable suspicion of bias may be inferred from the manner in which the Chairperson conducts the proceedings. Thus if he or she conducts the proceedings in a way that clearly shows he or she is favouring the one side over the other, this may lead to an inference that the Chairperson had pre-determined the outcome of the proceedings. In Austin & Anor v Chairman Detainees’ Tribunal & Anor 1988 (2) ZLR 21 (S) the court had this to say–


The Tribunal ought .  .  . to forswear all manifestations of bias and by its deeds and utterances be seen to be fair. In this case, a statement made by the Chairman of the Tribunal gave the impression that the appellants were not being allowed to tell their story in full and one member of the Tribunal persistently asked questions in a manner tending to show hostility towards the appellants.


In Sigugu v Minister of Lands & Anor 2013 (1) ZLR 48 (H) the applicant had been allocated a farm by means of an “offer letter” from the first respondent, the responsible Minister, in 2002. She took occupation of the farm, prepared the land, moulded bricks for farm buildings and purchased equipment in anticipation of commencing farming activities. In 2005 the Provincial Lands Committee held a meeting chaired by the second respondent. The meeting decided to consolidate the applicant’s farm with the farm allocated to the second respondent and further resolved that the applicant should vacate her farm.  The court held that the second respondent should never have chaired the meeting. The basic tenet of our common law is that nemo debet esse judex in propria sua causa. This time-honoured precept is codified in s 27(1)(b) of the High Court Act [Chapter 7:06] and in s 3(1)(a) as read with s 5 of the Administrative Justice Act [Chapter 10:28]). This is so for the obvious reason that the proceedings of a public body or committee should be free from the possibility of bias and the attendant risk of its incumbents serving their own personal interests. The decision to consolidate the applicant’s farm with the second respondent’s farm was vitiated by a fundamental irregularity. It was tainted ab initio and must therefore be declared a nullity.


Referral back


Where the decision has been made by a biased person, the review court will set aside the decision and will normally refer the matter back for a re-hearing before an unbiased decision-maker.


The question arises as to what the effect is upon the proceedings of a tribunal if one member of the tribunal is biased. Rose Innes in his book Judicial Review of Administrative Tribunals in South Africa at p 186 has this to say–


The bias, or appearance of bias, of one member of a tribunal which consists of several members is sufficient to vitiate the whole proceedings. The mere presence of an interested or otherwise disqualified person as a member of a quasi-judicial tribunal at the hearing or at the decision, whether or not he influenced the other members, and even if the decision of the tribunal is reached by a vote and the vote of the biased member could not affect the result, or even if he abstained from the voting, or retired from the board when the discussion and consideration of the decision took place, is a reviewable irregularity. The reason is that an applicant before an administrative tribunal is entitled to the ear of every member of the tribunal, and to the decision of them all, and there is a likelihood or it may appear where one member is biased that he may persuade or influence the others. In addition, the process of collaborate decision, the member mutually assisting one another by their individual experience and arguments, to which an applicant is entitled, cannot properly take place where any member is biased.


The author derives these principles from cases such as Hack v Venterspost Municipality 1950 (1) SA 172 (W) and Jeffries v Komgha Divisional Council 1958 (1) SA 233 (A). This proposition of Rose Innes should apply even more strongly where the person who is biased is the Chairperson of the tribunal.


The question arises as to what course the court should adopt if it has set aside the determination of a tribunal on the basis of bias. Normally the court would order that the matter be re-heard by an entirely re-constituted tribunal consisting of unbiased members. If only a limited number of members drawn from the complement originally sat, it may be possible to order that other members who did not sit should re-hear the matter, provided of course that the remaining members can constitute at least the required quorum if there is a provision for a quorum. However, in a situation where there are not sufficient remaining members to constitute any required quorum, additional members of the tribunal would have to be appointed before the matter could be re-heard. The appointment of new members could take a considerable amount of time as could the finding of eligible persons to sit on an entirely re-constituted tribunal. There may even be situations where it is not possible to re-constitute the tribunal because there are not sufficient eligible persons available to be appointed. In such cases the review court may have to consider the possibility of making the decision itself in appropriate circumstances.


In Associated Newspapers of Zimbabwe v Media & Information Commission & Anor2007 (1) ZLR 272 (H) the problem arose that the entire body responsible for registering newspapers was found to be biased in relation to refusal of the application by a newspaper for registration. The Supreme Court had ordered a re-hearing by the Commission after finding that there was a reasonable suspicion of bias  in respect of the Chairperson. The matter was re-heard by the Commission with the impugned Chairperson still sitting. Again the application was refused. The matter was then taken back to the High Court said that under the Administrative Justice Act the applicant could have applied for an order in terms of s 4(2)(c) for Minister to be directed to take such administrative action as would put in place conditions and legal frame work for application to be considered and determined fairly.




Correction of earlier irregularities by tribunal


The tribunal itself can correct earlier breaches of natural justice. Thus the original failure to comply with natural justice principles can be corrected by the tribunal itself setting aside entirely its original decision reached in disregard for aspects of natural justice and holding a new hearing during which the principles of natural justice are scrupulously adhered to. See Mukarati v Director of Housing & Community Services HH-281-90; Health Professions Council v McGown 1994 (2) ZLR 329 (S); De Villiers & Ors v Sports Pools Ltd & Anor 1976 (1) RLR 283 (G); Controller of Road Motor Transportation v President, Administrative Court HH-207-85 and Abbey Estates v Property Renting 1981 ZLR 39 (G)


However, it seems that if no hearing is originally held, a subsequent hearing does not necessarily rectify the original breach because there is a natural inclination to adhere to the original decision. The subsequent hearing will only correct the original breach if it is clear that the administrative authority was prepared to disregard completely its original decision and take a fresh decision based upon the information that emerged at the subsequent hearing.



Action that review court will take where irregularities


What action will the review court take if it finds that there were breaches of the principles of natural justice? The usual remedy where there have been reviewable irregularities during the course of a hearing is for the review court to set aside the decision reached by the tribunal and to refer the matter back for a re-hearing conducted in accordance with correct procedures. The court will specify how the tribunal should conduct the re-hearing so as to avoid repeating these procedural irregularities.


Sometimes, however, the review court will not order a re-hearing but will simply substitute its own decision in the matter.


In the case of Director of Civil Aviation v Hall 1990 (2) ZLR 354 (S), the court said that a court will not normally interfere in the sphere of practical administration by substituting its own decision for that of an administrative and specialist tribunal or official vested by the lawmaker with a discretion. It will only do so where–


  • the end result is a foregone conclusion and a referral back to the tribunal or official would be a waste of time; or
  • further delay would cause unjustifiable prejudice to the applicant; or
  • the tribunal or official has exhibited bias or incompetence to such a degree that it would be unfair to require the applicant to submit to the same jurisdiction again; or
  • the court is in as good a position as the tribunal or official to make the decision itself.


See also Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S).


Similarly, in the South African case of) Administrator, Transvaal & Ors v Traub 1989 (4) SA 731 (A) the court stated that the usual remedy is to refer to matter back to the decision-maker unless this would be a waste of time as the outcome is a foregone conclusion or such bias was displayed that it would be unfair to refer it back or the tribunal or official had displayed such incompetence that it would be unfair to refer it back See also Controller of Road Motor Transportation v President, Administrative Court HH-207-85.


The case of Associated Newspapers of Zimbabwe v Media & Information Commission & Anor2007 (1) ZLR 272 (H) A court will not interfere in the sphere of administrative actions or decisions except in very exceptional situations, but it will normally interfere in the administrative sphere in the following circumstances: (a) where the end result is a foregone conclusion and a referral back would be a waste of time; (b) where further delay would cause unjustifiable prejudice to the applicant; (c) where the statutory tribunal or functionary has exhibited bias or incompetence to such a degree that it would be unfair to require the applicant to submit to the same jurisdiction again; and (d) where the court is in as good a position to make the decision itself. In casu, no evidence had been placed before the court, and thus there was no way the court could know, that there had been due compliance by the applicant with the provisions of AIPPA in order to qualify for the grant of a certificate of registration. That knowledge would peculiarly be in the ambit of the Commission as the administrative authority for purposes of issuing a certificate of registration.



Waiver of natural justice


Clearly, if a person is offered the chance to exercise one of the rights recognized as being part of the principles of natural justice and he declines to avail himself of this right, then he has waived his right e.g. if he is offered the chance to call witnesses and he says he does not wish to call any witnesses, see Zulu v Pharmanova (Pvt) Ltd S-66-92 In this case the Labour Relations Board had rejected an application to dismiss an employee and ordered her reinstatement. The employer appealed to the Labour Relations Tribunal but a dissenting member of the Board (one who had favoured the employer) was now a member of the Tribunal. The parties were invited to object. The employee knowingly waived her right to object because she did not want a further postponement and delay. The Tribunal decided unanimously against her. The court held that a party can waive her right to natural justice, such as the right to an impartial hearing. She had done this and she could not turn around almost two years later and complain. Her right was to an opportunity of a fair and unbiased hearing, which she had been given.


A far more difficult question is whether a person should be taken to have waived his entitlement to the protection of natural justice, where the failure to exercise certain rights is the result of ignorance on the part of the person concerned that he possessed such rights. Logically, waiver would seem not to be possible unless there is awareness of rights. In the case of Chidziva & Ors v Zisco Ltd 1997 (2) ZLR 368 (S), the minority judgment stressed that a person can only abandon his rights if he has full knowledge of his rights.The minority of the court held that the workers were not aware of their rights and their legal implications. However, the majority of the court held that by accepting the benefits under the retrenchment package the workers had waived their rights arising out of any failure to follow correct procedures in retrenching the workers.


In the case of Bailey v Health Professions Council 1993 (2) ZLR 17 (S) the legal representative of the Council had argued that the applicant could not now complain about bias as he had acquiesced in the composition of the Council despite the fact that one member of the Council was biased against him. There had been no oral hearing and the court pointed out that Bailey neither knew nor was informed about the composition of the Council until he was informed in writing of the Council’s decision. He could thus not have be said to have acquiesced in the composition of the Board and thereby be said to have waived his rights.  


Thus, it would seem that, for instance, in a case where a person is facing a serious disciplinary charge and is not legally represented, in the interest of fairness the tribunal should be obliged to apprise the accused person of his rights. To place the responsibility for asserting his rights upon a person who is under pressure and may be totally ignorant about his rights is unrealistic. For this reason, the ruling in the case of University of Ceylon v Fernando[1960] KB 223 has been subjected to severe criticism. This case concerned a disciplinary hearing of the case of a student. He had not asked to cross-examine witnesses against him as he had been unaware that he had a right to do so. He was held to have waived his right.


This case concerned a disciplinary hearing of the case of a student. He had not asked to cross-examine witnesses against him as he had been unaware that he had a right to do so. He was held to have waived his right. For a discussion of this point see 1960 MLR 252, 1973 Journal of Public Teachers of Law 252 and 1978 Natal University Law Review 176. In these articles, it is argued that it is unreasonable to expect an unrepresented person to take the initiative in asserting his rights. In the context of criminal cases, there have been a number of recent judgments in which the courts have said that where accused are unrepresented and there have been undue delays in bringing the cases to trial, the accused are entitled to look to the magistrate to ensure that their rights were not infringed by the machinery of the State. This applies even where the accused, because of ignorance of their rights, have not raised the issue of undue delay. See S v Tao 1997 (1) ZLR 93 (H) and S v Musindo 1997 (1) ZLR 395 (H)


See also: Behr & Oberholzer v Liquor Licensing Board 1955 (2) SA577 (T) 589 at 589; Bell v van Rensburg NO 1971 (3) SA 693 (C) at 725; Kemana v Mangope & Ors 1978 (2) SA 322 (T); Bulawayo Bottlers v Minister of Labour 1988 (2) ZLR 129 (H)The proceedings of the hearing were void and a nullity and the party attending hearing could not be taken to have waived right to object to a nullity; ABBM Printing & Publishing v Transnet Ltd 1998 (2) SA 109 (W).




Whether proof of prejudice required


It would seem that if there was a reviewable irregularity during the hearing by a tribunal, it is not necessary for a party to the proceedings who is complaining about this irregularity on review to prove that he actually suffered prejudice as a result of the irregularity before the court will set aside the proceedings, see Abbey Estates v Property Renting 1981 ZLR 39 (G). But see also De Villiers & Ors v Sports Pools Ltd & Anor 1976 (1) RLR 283 (G).


Whether natural justice applies to work of investigator or investigating body



In the case of Moyo v President, Board of Inquiry & Ors 1996 (1) ZLR 319 (H) a police inquiry board conducted an inquiry into whether a police officer was an unsuitable person to remain in the force. It conducted an inquiry and recommended to the Commissioner that the officer be found to be unsuitable to remain in the force. The High Court held that although a police inquiry board’s task was not to make a decision but to collect evidence and make a recommendation to the police Commissioner who would make a decision as to whether the applicant was suitable to remain in the Force, this did not mean that the Board was not obliged to observe the precepts of natural justice. Bodies which collect evidence upon which the decisions affecting the rights of individuals are made have a duty to act fairly. They must observe the rules of natural justice, unless there are special circumstances to the contrary or the enactment expressly excludes them. They must inform the person involved of the complaints made against him and give him an opportunity to make relevant statements with regard to those allegations.


On the other hand in the case of Motsi v A-G & Ors 1995 (2) ZLR 278 (H), the High Court decided that the principles of natural justice did not apply in respect of an investigation carried out into alleged corruption by a company. Under the Prevention of Corruption Act when a Minister has declared a person to be a specified person in terms of the Act he must appoint an investigator to carry out an investigation into that person. (s 7(2). The investigator must report the results of his or her investigation to the Minister. Clearly the Minister will be influenced in his final decision as to whether to continue with the order or to lift it. The Minister had appointed the investigator using his powers in terms of the Prevention of Corruption Act. The court decided that the principles of natural justice only applied to judicial and quasi-judicial adjudication. An investigator is not an adjudicator and the principles of natural justice therefore did not apply. The investigation could thus not be impugned on the basis that as the investigator was a director of the complainant company, he could thus have been biased.


The correctness of this decision is open to doubt. The categorisation of administrative decisions into quasi-judicial and purely administrative has largely fallen away as a result of the acceptance of the doctrine of legitimate expectation. In any event, it would seem that a person under investigation is entitled to expect that the investigation will be carried out objectively and impartially. The final decision-maker will often make the final decision based on the results of the investigation. If the investigation is not carried out fairly, a wrong final decision may be made. It is particularly unfair that a person who is clearly biased against the person being investigated or in respect of whom there is a reasonable suspicion of bias be allowed to conduct an investigation. The principles of natural justice should thus apply to investigations.


As regards the application of the audi principle to the proceedings of an investigatory body de Ville in Judicial Review of Administrative Action in South Africa at p 242 has this to say–

It is now accepted that the advice, findings or recommendations of an investigatory body can adversely affect the rights or legitimate expectations of a person. The audi rule is therefore applicable to the proceedings of such an enquiry where a person or body can suffer prejudicial consequences because of the report or recommendations of the statutory body concerned.”


The South African courts have recognised that preliminary or intermediate decisions can have a significant or even devastating effect on an individual involved. See Du Preez v Truth and Reconciliation Commission 1997 (3) SA 204 (A) and Director: Mineral Development, Gautang Region v Save the Vaal 1999 (2) SA 709 (SCA)


But it should be noted that some earlier South African cases adopted the same approach as in the Motsi case. For example in the case of South African Defence and Aid Fund v Minister of Justice (1967) it was held that bodies which investigate and report, but do not take decisions themselves, do not in principle have to comply with the audi rule. Such compliance, the court ruled, would be required only if the Act itself expressly provides for compliance with the audi rule or when there is a direct causal relationship between the report and the eventual decision (affecting a person’s rights).


Under s 7 of the Commission of Inquiry Act [Chapter 10:07] Commissioners are obliged to make a full, faithful and impartial inquiry into the matters specified.




Circumstances in which natural justice may not be applicable


In some circumstances aspects of natural justice principles may not be applicable. See de Wet v Patch 1976 (1) RLR 65 (G); 1976 (2) SA 316 (R) and Austin & Anor v Chairman, Detainees’ Review Tribunal & Anor 1986 (4) SA 281 (ZS).


When decision of administrator final

As to when the decision of an administrative tribunal or official is final and when it can be reconsidered, see Cinamon v Independence Mining (Pvt) Ltd 1980 ZLR 247 (A); Lapham v Minister of Mines & Ors 1989 (2) ZLR 56 (H) and Chigwerere v Chairman, PSCHH-151-89.