Modise and Others v Tafu and Others (11935/2016 ; 14038/2019) [2023] ZAGPPHC 2069 (22 March 2023)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2023 >> [2023] ZAGPPHC 2069 | Noteup | LawCite sino index ## Modise and Others v Tafu and Others (11935/2016 ; 14038/2019) [2023] ZAGPPHC 2069 (22 March 2023) Modise and Others v Tafu and Others (11935/2016 ; 14038/2019) [2023] ZAGPPHC 2069 (22 March 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2023_2069.html sino date 22 March 2023 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO. 11935/2016 and CASE NO. 14038/2019 (1) REPORTABLE: NO (2) OF INTEREST TO THE JUDGES: NO (3) REVISED. DATE: 22/03/2023 SIGNATURE: PD. PHAHLANE In the application of: FREDRICK LEONARD GOITSEMANG MODISE         Applicant In re the consolidated matter between: TSHEPISO MODISE                                                      First Applicant & 2 OTHERS and REVEREND TAFU                                                         First Respondent AND 34 OTHERS And in re the consolidated matter between: FREDRICK LEONARD GOITSEMANG MODISE         Plaintiff and MICHAEL SANDLANA                                                 First Defendant AND 2 OTHERS JUDGMENT PHAHLANE, J [1]        On 2 March 2023, Mr. Leonard Modise brought an application for my recusal, following the court’s order and judgment dismissing an application for leave to appeal brought on behalf of both Mr. Leonard Modise and Mr. Tshepiso Modise. [2]        Before dealing with the recusal application, I deem it necessary that one should have a background of facts in order to appreciate the circumstances which led to the court being required to consider recusing itself by Mr. Leonard Modise. [3]        It is not in dispute that the respondents approached the Deputy Judge President of this Division in a letter dated 18 March 2022 requesting him to allocate a case management judge for the consolidated matters under case numbers 11935/2016 and 14038/2019. In the beginning of May 2022, I was then appointed by the Deputy Judge President as the case manager and directed to deal with the matter, including the interlocutory applications that might ensue in the process. [4]        On 12 May 2022 my registrar wrote an email to all parties informing them that I have been allocated the matter to case manage, and to enquire if the parties would be available to attend the case management meeting on 27 May 2022 at 10am. A case management meeting was then set up for 9 June 2022. All the parties were present, and I gave directions in respect of the dates on which the parties were to make discoveries; request and serve further particulars, if any, in preparation for trial; as well as the proposed dates for the exchange of witness’ statements. I also indicated to the parties that not only was I allocated the matters to case manage, but I had been directed to deal with the whole matter, including any interlocutory applications that might ensue in the process. [5]        The parties did not object thereto, and it was agreed that a further case management meeting would be held on 14 October 2022 at 9am. Nothing relating to the merits of the case was canvassed or entertained during this meeting. Save to say that Mr. Tshepiso Modise had not by this time filed his witnesses’ statements, the other parties had complied with the directive. It was agreed at this meeting that the matter was ripe for hearing as it appears on the agenda for the day where it is noted that “ the parties are agreed that the matter is ready for trial ”. [6]        A further consideration related to the timeline for the preparation of the trial bundle, and a trial date for 13 February 2023 was set and agreed to by all parties concerned. As with the first meeting, I again indicated to the parties during this meeting that I would be sitting as the trial judge during the proceedings, and there was still no objection from any of the parties. [7]        On 2 December 2022 the respondents sent correspondence to my office requesting to have an urgent case management meeting regarding issues which in their opinion are connected to this matter but are before other courts. This correspondence was not replied to as I was of the view that it would not have been proper to entertain such issues which did not fall under the scope of the issues to be dealt with before me and as agreed to by all parties concerned. [8]        On the morning of 13 February 2023 when the matter was to proceed for trial, I was notified by Mr. Leonard Modise’s counsel of the allegations of corruption against me that were making rounds on social media, apparently for quite some time. I was also warned of the presence of the media in the court room and that I should recuse myself if I do not want to be embarrassed before the cameras, and that an application in terms of Rule 37A would be made on behalf of both Mr. Leonard Modise and Mr. Tshepiso Modise. It became apparent at that moment that the respondents were an application on the morning of the trial. [9]        When the matter was called in court, an application in terms of Rule 37A was made on behalf of the applicants. This application was made from the Bar without a notice of motion or founding affidavit. The application was dismissed on the basis that there was an agreement, and never an objection that I would be presiding over the matter and further that there was no proper application before me. I then ruled that since this was an interlocutory application, the ruling is unappealable. [10]      I also informed the parties that the reasons for the order would be furnished later. The applicants requested reasons which were not provided for at the time, and the next day they proceeded to make a formal application for leave to appeal the interlocutory order granted by this court. At the time when the application for leave to appeal was made, Mr. Leornard Modise had already filed and uploaded what is referred to as “ conditional recusal application dependent on the outcome of the application for leave to appeal ”. The court was also informed by his counsel that a recusal application will be made later on behalf of Mr. Leornard Modise. [11]      I dismissed the application for leave to appeal and handed down a full judgment. An application seeking my recusal was thereafter brought, and I will now deal with the merits of that application. Mr. Leornard Modise is applying that I recuse myself and withdraw from presiding over the consolidated matters under case numbers 14038/2019 and 11935/2016, as foreshadowed by his counsel before the recusal application was launched. The application is opposed by the respondents. [12]      The recusal application is premised on the belief of a reasonable apprehension of bias, which Mr. Leornard Modise allege might result in him not getting a fair trial. The grounds for recusal and the entire application are based on the affidavit deposed to by a certain advocate Goodwill Papie Maluleke (“Mr. Maluleke”) which is attached to the founding papers, and which seemingly created all the rumours and allegations which I referred to above. [13]      Mr. Leornard Modise acknowledges in his founding affidavit that the allegations are clearly hearsay in nature because he has no personal knowledge of the allegations as it was reported to him by Mr. Maluleke that Mr. Twala, the respondents’ attorney, had told him that he was informed by Mr. Sandlana’s spokesperson that I have been bribed by Mr. Michael Sandlana to rule in his favour in the pending proceedings. [14]      He stated that because Mr. Maluleke has sworn to his version in an affidavit, he assumes that Mr. Maluleke as an officer of the court, would not make false statements in an affidavit and as such, ‘he must accept’ that Mr. Twala must have told Mr. Maluleke that the Judge had been bribed. He further stated that he apprehends that, given the nature of the allegations, whether found to be true or not, I will not be able to exercise an open mind when dealing with the proceedings or presiding over the matter, and submitted that even if the allegations were not true, I should still recuse myself. [15]      Mr. Leornard Modise further stated that the affidavit of Mr. Maluleke “is said” to have been delivered in the course of the fraud proceedings pending against Mr. Sandlana, and in that affidavit, Mr. Maluleke relates how he was told by Mr. Sandlana’s attorney that I had been tainted. Mr. Maluleke stated in his affidavit that he deems it appropriate to set out the “ relevant context ” which exposes paragraph 9 of the plea explanation given in a fraud matter brought against Mr. Sandlana, which he refers to as an unmitigated attempt by Mr. Sandlana to impact his integrity and implicate him in a crime that he was not involved in. [16]      According to Mr. Maluleke, the “relevant context” relates to what he says, is his in- depth knowledge to the truth relating to claims of leadership of the church, having served as a member of the council of elders in the IPHC Jerusalem faction, being the highest decision-making body in the church, and chaired by Mr. Sandlana. He also states that he was a close confidant of Mr. Sandlana. [17]      It is clear from the reading of Mr. Maluleke’s affidavit [1] that there is a serious fallout in a relationship between the two which is sparked, not only by the fact that Mr. Maluleke had left the church, but by a series of events which among others, involve a case being opened with the police. A lot of issues have been raised in this affidavit, which I do not wish to address, as they are irrelevant to the case before this court. [18]      Mr. Leornard Modise’s contentions are based on paragraphs 53 to 58 of Mr. Maluleke’s affidavit. The nub of these paragraphs relates to a report made to Mr. Maluleke that I have been ‘sanitized’. Of importance, Mr. Maluleke stated that one Friday morning around the month of November 2021 , Mr. Twala came to his chambers and found him in the company of a certain attorney [“Mr. X”]. Mr. X was asked to give them some privacy and Mr. Twala informed him that he was informed by the spokesperson of the church that a sitting judge has been bribed. [19]      These allegations are disputed by Mr. Twala in his answering affidavit in which he stated that he had never told Mr. Maluleke of any bribery and has never been to his chambers, but has been to the building in which his chambers are housed to brief other advocates. He avers that while Mr. Leonard Modise acknowledges the hearsay nature of the allegations, what he fails to note is that much of what he alleges constitutes, a "double hearsay" of a kind that any court would be loath to admit. He further avers that the grave allegations made by Mr. Leonard Modise in his founding affidavit lacks essential particulars, and are sorely wanting, because the purported affidavit deposed to by Mr. Maluleke has not been confirmed, and neither is there an affidavit by any of the individuals whose names have been mentioned in his affidavit - whose input would be essential - if serious weight were to be attached to his momentous allegations. Put differently, it was not competent for Mr. Leonard Modise to attach the affidavit of Mr. Maluleke in the absence of a confirmatory affidavit by Mr. Maluleke. [20]      It was argued on behalf of Mr. Leonard Modise that having received the information about the allegations of corruption, Mr. Leonard Modise could not turn a blind eye to the information because it would not be fair for him as a litigant, hence he saw it necessary to bring an application for recusal under these circumstances. It was submitted that although it cannot be established whether the allegations are true or not, the fact that those allegations are made in an affidavit by an officer of the court, Mr. Maluleke would not have made false statements in an affidavit. [21]      Mr. Epstein argued for the respondents that the recusal application is a fabrication and was not brought bona fide . Further that it is an absolute abuse of the court process based on the following reasons: 1)         That Mr. Leonard Modise has stated in his affidavit that he is aware of the gravity of this application and that it is not brought frivolously, yet his entire application is based on what Mr. Maluleke said in his affidavit, which is alleged to have been submitted in a case involving Mr. Sandlana. 2)         That it is not true that the said affidavit attached to Mr. Leonard Modise’s application has been given to the police because this aspect is disputed by Mr. Twala in his answering affidavit. 3)         That Mr. Maluleke has not confirmed that he is the deponent to an affidavit relied upon by Mr. Leonard Modise in his application – thus making it hearsay, 4)         That while Mr. Leonard Modise informs the court that Mr. Maluleke is a person known to him and does not know his whereabouts because he is in hiding, the court is not informed of the steps taken to find Mr. Maluleke so that he can come and confirm his affidavit and be cross-examined on it. 5)         That Mr. Leonard Modise relies on an affidavit of Mr. Maluleke who has perjured himself because it is inconceivable that in November 2021, when nobody knew that I would be sitting in this matter, and even before a letter was addressed to the DJP on 18 March 2022 to allocate a case management judge, that Mr. Twala would have met with Mr. Maluleke and told him that I have been sanitized. [22]      Relying on the case of S v Zuma and Another (Ruling and Reasons [for Recusal]) [2] Mr. Epstein argued that Mr. Leonard Modise failed to proof bias, or the apprehension of bias based on the correct facts, more particularly because the reports made appeared on the media. In emphasizing the importance of being properly informed as to the relevant facts when bringing an application for recusal, this court referred to the matter of South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another [3] in which the Constitutional Court in applying the test for recusal stated the following: “ The issue of recusal must be determined by taking stock of the objective facts, which can hardly be said to be found in the pages of the press. We have already determined and discussed the objective facts that are relevant to this recusal application and are aware of no reason why anything in the media should have any bearing on this enquiry. We could very easily find ourselves going down a treacherous rabbit hole if the media were to guide our objective assessment of facts in cases that seize us”. [23]      Considering the aforesaid, it is important to have regard to the timeline in respect of this matter. Although Mr. Maluleke deposed to his affidavit on 23 August 2022, he makes it clear that he was informed by Mr. Twala about the corruption allegations in November 2021. In this regard, counsel on behalf of Mr. Leonard Modise stated the following when the importance of the timeline was raised in relation to the period when the reports of corruption were made and the period when Mr. Maluleke deposed to his affidavit: “ Let’s accept that there is something wrong with Mr. Maluleke’s version. That is not the test. He may have gotten the dates wrong. Whether he lied or whether he was mistaken about the date, that cannot be objectively correct. I accept what Mr. Epstein has shown me because I was not involved in the matter, and I would not know. And now that I have seen this, it appears that November 2021 cannot be correct. But then again, we still have a report. So, a reasonable litigant gets an affidavit. My learned friend says advocates lie. Of course, advocates lie. But this is the person who has interest in justice. So, he is not just a lay person… Despite the chronological problems and discrepancies that my colleague has shown, a proper case has been made for her ladyship to recuse herself”. [24]      If one considers Mr. Leonard Modise’s perception of apprehension of bias and the concession made by his counsel that there is something wrong with Mr. Maluleke’s version, as well as the acknowledgment of chronological problems and discrepancies, it is imperative that one should not lose sight of the applicable test and principles in recusal applications, as well as the onus rested on Mr. Leonard Modise to establish the apprehension of bias. Thus, an applicant who alleges bias or an apprehension of bias bears the onus of proving such bias or apprehension of bias. [25]      The test for recusal has been well established over time, and both the Supreme Court of Appeal and the Constitutional Court have set out the legal requirements that have to be met by a litigant claiming an apprehension of bias. The test as to whether there is a valid apprehension of bias includes a “double reasonableness test” based on a consideration of the correct facts. In other words, if the factual foundation is wanting, then the fortiori the apprehension is misplaced and that will end the enquiry. In this regard, the Constitutional Court in the matter of The President of the Republic of South Africa and others v South African Rugby Football Union and others [4] (“ SARFU ”) describes the test as follows: “ The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge had not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel”. [26]      The court in SARFU , further held that an unfounded or unreasonable apprehension concerning a judicial officer was not a justifiable basis for such an application and emphasised that the apprehension of the reasonable person must be assessed in the light of the true facts as they emerge at the hearing, and any incorrect facts which were taken into account by the applicant must be ignored in applying the test [5] . [27]      In applying the above test and principles, one cannot conclude that Mr. Leonard Modise passes the test of being a reasonable, objective and informed person because he was clearly misguided by Mr. Maluleke and the information contained in the very affidavit which forms the basis of his application. This is so because in his replying affidavit, he confirms that he agrees with Mr. Twala that Mr. Maluleke’s affidavit was delivered in the context of Mr. Sandlana’s criminal proceedings. It is not clear when these criminal proceedings were instituted and how properly informed was Mr. Leonard Modise when those facts became known to him, given the fact that the information was already in the media when he launched this application. [28]      It therefore follows that Mr. Leonard Modise fails the test for recusal as applied by the constitutional court in the case of South African Human Rights Commission stated supra . He also fails the test as outlined in SARFU , because he had already stated that he does not know whether what he was told by Mr. Maluleke is the truth, and acknowledged that the information is hearsay. Accordingly, the requirement that the apprehension of the reasonable person must be assessed in the light of the true facts has not been fulfilled. Furthermore, the court in SARFU stated that any incorrect facts which were taken into account by the applicant must be ignored in applying the test. [29]      It therefore follows that the incorrect facts relating to the allegations of bribery cannot stand as it has become clear that the allegations were made in November 2021, when this case was not even allocated a judge or considered for case management, taking into account, the concessions made by Mr. Leonard Modise’s counsel that the date of November 2021 does not tally with the date of 12 May 2022 when my registrar confirmed that I had just been allocated the matter to case manage, and also conceding that there are chronological problems and discrepancies. [30]      In Sepheka v Du Point Pioneer [6] the court stated that: “ Time and time again it has warned against litigants making unfounded allegations of bias on the part of presiding officers tasked to decide disputes, without cogent proof to substantiate the allegation… Any allegation of bias, on the part of a judge must be substantiated by a proper factual basis, must not be based on mere speculation and conjecture, and must be proved by the party alleging bias”. [31]      In Turnbull Jackson v Hibiscus Coast Municipality and others (Ethekwini Municipality as amicus curiae) [7] the court held that: “ Before I conclude, I am moved to caution against wanton gratuitous allegations of bias – actual or perceived – against public officials. Allegations of bias, the antithesis of fairness, are serious. If made with a sufficient degree of regularity, they have the potential to be deleterious to the confidence reposed by the public in administrators. The reactive bias claim stems from unsubstantiated allegations of corruption and incompetence. These are serious allegations, especially the one of corruption. Yes, if public officials are corrupt they must be exposed for what they are: an unwelcome, cancerous scourge in the public administration. But accusations of corruption against the innocent may visit them with the most debilitating public opprobrium. Gratuitous claims of bias like the present are deserving of the strongest possible censure.” [32]      A presumption exists that judicial officers are impartial in adjudicating disputes. A fair and just legal system is founded upon the impartial adjudication of disputes that come before the courts. An unfounded or unreasonable apprehension of bias is not a justifiable basis for recusal and the assessment of bias must be in light of the true facts as they emerge during the hearing of the proceedings, and incorrect facts must be ignored. What is required of judges is that they should decide cases without fear or favour, according to the facts and the law, and not according to their subjective personal views. [33]      As alluded, Mr. Maluleke’s affidavit spells out a very serious tension and animosity between himself and Mr. Sandlana, which this court fail to understand why an affidavit which was already making rounds on social media, and which seem to be used or sneaked in through the backdoor, as it relates to the issues to be decided by the court in the pending proceedings, considering what Mr. Maluleke stated – and that being the fact that he has an in-depth knowledge to the truth relating to claims of leadership of the church. [34]      Considering the circumstances under which the application was brought, and the incorrect facts relied upon by Mr. Leornard Modise in his application for recusal, those incorrect facts must be ignored. I am therefore inclined to agree with Mr. Epstein’s submission that - based upon the contents of Mr. Leonard Modise’s founding affidavit, there is no basis upon which reasonably an objective or informed person or court would conclude that there is a reasonable apprehension of bias. Consequently, there is absolutely no merit in the allegation that an apprehension of bias has been established. In my view, there can be no reasonable person on the basis of these allegations who could ever have such an apprehension of bias. I therefore find that no case has been made out for my recusal, and the application falls to be dismissed. [35]      The court in Bennet Susan Hilary and Another v The State [8] stated that: “ [113] More and more recusal applications are brought as a tactical device or simply because the litigant does not like the outcome of an interim order made during the course of the trial. The lack of discernment with which recusal applications are being launched or threatened is cause for concern. [115] The risk of recusal applications being used as a strategic tool is that far from securing the integrity of the court, continual unfounded aspersions on judges may bring about a loss of faith in the judiciary as a whole and bring it into disrepute. [116] One would like to believe that where a judge’s character is seriously impugned, and clearly defamatory statements are made at a personal level”. [36]      A glance at the short history of the court case as it ensued between the parties and the state of affairs is regrettable. At this stage I find it appropriate to indicate some concerns regarding how the proceedings have been conducted. It has become apparent throughout the proceedings that the respondents had been disadvantaged and not afforded the level of professionalism which one would have expected from an opponent as it relates to the preparation of their case. I found it unacceptable that the entire legal team of Mr. Leornard Modise did not find it meet and right to afford their opponent the curtesy of providing them with proper documentation to prepare thoroughly for their case. [37]      As I indicated earlier in this judgment, the respondents had throughout the proceedings been kept in the dark, and this relates to the fact that time and time again, Mr. Epstein ad his team, would only be provided with documents, minutes before the matter is called and placed on record or while the court is in session, regarding an application which the applicants would be presenting at that very moment. Mr. Epstein had during his address on this application, and during the previous application, asked the court to take note of how all the applications have been brought and how this specific application was brought, as the applicant have waited more than two months to file his replying affidavit, only to do same the day before the application was presented and provided with the heads of argument when counsel for the applicant stood up to address the court. I am alive to the fact that the attitude of the applicant had clearly indicated a stubborn and misguided approach to the legal process that borders on a vexatious attitude. [38]      Regarding this application, what is rather concerning is that firstly, Mr. Leornard Modise’s legal team brought an application by relying on the affidavit of a legal practitioner who has not only committed perjury, as Mr. Epstein had argued, but also brought the bench and the entire judiciary into disrepute. One would have expected Mr. Leornard Modise’s legal team to be meticulous in preparation of their case, rather than being ignorant and rely on the information of a legal practitioner who propagated an unfounded; dishonest; and untrue rumour which have brought the court and the administration of justice into disrepute, and which in my view requires full investigation by the relevant authorities, including the Legal Practice Council. What is more concerning is that the entire legal team was fully aware of these allegations and the duration of their existence on social media, and none of them brought this to the attention of the JP or DJP; or to myself before the 13 th of February. Neither was the matter reported to the relevant authorities, which in this case would be the JSC. [39]      It seems to me that the application was brought as an adjunct to the unsuccessful attempt to have the matter postponed, firstly on the contrived basis that I have been a case manager although no objection had been raised to that effect, and secondly that after leave to appeal was dismissed and a postponement was refused, the timing and the manner with which this application was brought, coupled with the continuous threats made, had the consequence of making sure that the trial did not proceed for the three weeks which had been allocated. [40]      It also seem that whatever forces were at play, were cynical in raising these spurious and unsubstantiated allegations, and one would have expected the applicant and his counsel to have known better, than to place any stall on such allegations, but instead chose, to be self-serving in a contrived manner, to be deprecated to use it for their own end. [41]      Having regard to the comments I have made, and the patent anomalies which ought to have been realized and which would have been apparent to any careful legal practitioner, it seems to me that the practitioners have failed to give proper attention and either made common cause with a case for their client and lost their independence to act in a professional manner, alternatively failed to act in a professional manner in the best interests of Mr. Leornard Modise. [42]      It is on this basis that I direct that a copy of this judgment should be referred to the LPC for the investigation of the practitioners concerned. The attorney and counsel whose names have been withheld at the foot of this judgment should be made available by the respondent’s attorney and counsel to the LPC. [43]      With regard to the issue of costs, Mr. Epstein argued that the recusal application is vexatious and submitted that the application be dismissed with costs against the applicant, on the attorney and client basis, including the costs of three counsels. As a rule, the costs should follow the order. [44]      In the circumstances, the following order is made: 1.         The application for recusal is dismissed. 2.         The applicant is ordered to pay the costs of the application on an attorney and client scale, and such costs shall include the costs of three counsels. PD. PHAHLANE JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA For the Plaintiff/1 st Applicant          : Name withheld Instructed by                                     : Name withheld For the 2 nd Defendant/Applicant   : Advocate MS Mangolele SC. : MPOYANA LEDWABA INC. For the 1 st & 3 rd Defendant             : Advocate Epstein SC. /33 rd Respondent                               With Advocates: M Osborne; P Khoza Instructed by                                     : S. TWALA ATTORNEYS INC. C/O HARCK STUPEL & ROSS ATTORNEYS Date of Hearing        : 16 February 2023 Date Delivered         : 22 February 2023 [1] From paragraph 11 [2] (CCD 30/2018P) [2023] ZAKZPHC 8 (30 January 2023). [3] [2022] ZACC 5 ; 2022 (4) SA 1 (CC) paras 75 and 90. [4] [1999] ZACC 9 ; 1999 (4) SA 147 CC; 1999 (10) BCLR 1059 (CC) at para 48. [5] At para [45]. [6] (J267/18) [2018] ZALCJHB 336; (2019) 40 ILJ 613 (LC) (9 October 2018). [7] 2014 (11) BCLR 1310 (CC) at para 35. [8] case number SS40/2006 (12 October 2020) sino noindex make_database footer start