The problems of proving actual or apparent bias : an analysis of contemporary developments in South Africa

Abstract

The major problem associated with allegations that a judge was biased or perceived to have been prejudiced is the inability of the complainant to prove the facts of adjudicative partiality. It is often impossible to determine with any measure of precision the state of mind of an adjudicator who has rendered a verdict. Thus, actual bias is an elusive proposition. Accordingly, the courts take the position that an appearance of impartiality is in itself an essential component of procedural fairness. Even so, the threshold of finding perceived bias is as high as where actual bias is alleged. Whenever an allegation of bias or a reasonable apprehension of bias is made, the adjudicative integrity not only of the individual judge but of the entire administration of justice is called into question. The court must, therefore, consider the matter very carefully before making a finding.