A JUDGE who did the unthinkable and flounced out of a formal court sitting, apparently irritated with counsel’s line of questioning, should have agreed to stand down when an application was subsequently brought for his recusal, the supreme court of appeal (SCA) has held. The five SCA judges found his refusal to recuse himself when he clearly should have stepped down meant the subsequent proceedings and his judgment were vitiated and a nullity.
Read judgment
THE judge who took the unprecedented step of irritatedly walking out of a court hearing while counsel was cross-examining a witness has since retired, but at the time of the incident, Moroa Tsoka was sitting in the Gauteng division of the high court, Johannesburg.
He was presiding in a case begun in October 2020 at the height of Covid precautions. It was heard via Zoom, with participating counsel robed and connected to the same virtual meeting, designed, as the SCA would later stress, ‘as closely as possible, to resemble proceedings in open court.’
The proceedings were also recorded, using both audio and video, with production of a daily transcription.
International dispute over contracts, software distribution
As to the dispute before Tsoka, it was a long and complicated matter involving allegations of interference by German software development giant, SAP SE, in a software distribution agreement which South African firm, Systems Applications Consultants (SAC), claimed it had concluded with a subsidiary of SAP.
For this, SAC wanted damages of about R24 billion at current exchange rates (including interest).
The issues are made more complex because German law applied in the case since the interference claimed by SAC was committed in Germany. Any judge assigned to the case would thus be required, with the help of foreign law experts, to apply German law. The two sides agreed that the merits of the claim would be decided first, and the damages to be paid, if any, could be decided subsequently.
Had the witness lied?
On Friday, 6 November 2020, the trial was on day 20 of what became a total of 74 days. Cassie Badenhorst SC, for SAP was cross-examining Mario Linkies, a key witness for SAC.
Badenhorst planned to argue later that Linkies had lied in his evidence, and so he needed to lay the groundwork. An email was being examined in which Linkies claimed one thing, but appeared to be saying in court that what he had written wasn’t true.
A transcript shows the judge not following or missing the point of the cross-examination. He intervenes increasingly often, even saying that the question asked by Badenhorst ‘has been answered repeatedly’. And when Badenhorst tries to explain the significance of the cross-examination and why it was crucial that Linkies answer the question he had been put, the judge interrupts again, mid-sentence, this time with a legally unprecedented comment.
‘When you’ve finished you’ll let me know. I’m taking a break,’ the judge says, and then stands up irritatedly, walks away and disappears from view.
Some minutes later he re-appears, takes his seat and announces, ‘I’m back’.
‘Lost confidence in judge’s impartiality’
At this point, Badenhorst placed on record what had just happened, and after a weekend adjournment, explained that he has been instructed by SAP SE to bring a recusal application.
His clients, who had by this stage watched the video, said that they had lost confidence in the judge’s ability to hear and decide the matter impartially.
The company’s senior legal counsel said it had never experienced a judicial officer ‘conducting himself or herself in the manner revealed from the transcript’: the company had always been permitted to present its case, whether as plaintiff or defendant, and the judicial officer involved had ‘always remain[ed] in attendance and presiding over the proceedings at all times’.
The conduct ‘displayed by the presiding judge’ in this case, ‘namely a unilateral and intemperate exit from the trial proceedings and a refusal to listen to what counsel for SAP SE wanted to ask of SAC’s principal witnesses, and suggesting that proceedings should continue in the absence of the judge, has never occurred’, he said.
His clients thus considered the judge’s conduct ‘alarming and intolerable’ and were concerned that the judge wouldn’t be impartial since he appeared to have closed his mind on a pivotal question. This was illustrated, said SAP SE, by his refusal to allow SAP SE’s counsel to put its case on this key issue to the witness. Then by instructing SAP SE’s counsel to let the court know when he had finished, declaring ‘I’m taking a break’ and then, as SAP SE saw it, ‘ “storming out of court” (by abruptly and in a visibly angry state abandoning his seat in front of the Zoom monitor and walking away so that he was no longer visible to those attending the proceedings and only returning after several minutes.)’
‘Visibly upset and acted in a rage’
SAP SE’s representatives agreed that it was clear to them the judge had become ‘visibly upset and acted in a rage’, after refusing to listen to the proceedings and evidence on a central issue in the case and that he had ‘extraordinarily’ suggested that counsel for SAP SE should carry on with his questions in the absence of the judge.
SAP SE’s attorney of record added that while the typed transcript fairly reflected what had been said, there was an inaccuracy in that the record indicated that the court had been ‘adjourned’ when the judge walked from the screen, but that this had not happened: there had been no adjournment at that time.
Faced with these views about his conduct and its effect, the judge dismissed the application for him to stand down from the case. In his recusal judgment he said, for the first time, that his actions had been wrongly interpreted and that he had left the court as he ‘urgently had to go to the bathroom.’
He added that while he had been irritated, he hadn’t stormed out of court in a rage, and that he had left the camera and microphone running so that if the witness had given the answer counsel required, that would ‘appear on the record’.
After the judge refused to stand down, the case continued for another 54 court days and eventually, a year later, Tsoka gave a written decision finding in favour of SAC’s claim, with SAP SE liable for any damages that would be established in a subsequent hearing.
SCA’s scathing findings
While Tsoka refused leave to appeal against both the outcome and the earlier recusal decision, the SCA later agreed to a hearing, and that court’s decision has now been delivered.
The decision, written by Visvanathan Ponnan with the unanimous agreement of his four colleagues who heard argument in the case, was scathing of Tsoka’s behaviour and his findings, particularly his refusal to recuse himself.
The court said that judges who sit in matters where an appearance of bias – and not only actual bias – disqualifies them from sitting, act unconstitutionally and in breach of their oath of office. That disqualification is ‘so complete’ that if they continue to sit after refusing to stand down, then the rest of the proceedings in such a case becomes null and void.
In other words, if the court found that Tsoka should have recused himself, then the rest of the case and the outcome would all, automatically, be invalid.
Judge ‘became irritated and summarily abandoned proceedings’
The SCA held that Tsoka erred ‘in several fundamental respects’. He had misunderstood what counsel was seeking to achieve in his cross-examination, and effectively stopped questioning crucial to establishing a key element of SAP SE’s defence to the claim under German law. Counsel was thus ‘incorrectly and prematurely cut off by the judge’.
In fairness to the witness, counsel had been required to give him a chance to deal with the issues, otherwise it would not have been proper to call the truthfulness of the witness into question.
The SCA said that when counsel tried to justify this line of questioning, the judge ‘became irritated and summarily abandoned the proceedings’ to ‘take a break’. How long that break would last, no one could tell, said the court, and yet the judge clearly expected the cross-examination to continue while he was away.
But while Tsoka seemed to think that the cross-examination could continue in his absence, it ‘plainly could not’, the SCA held. Without him, ‘there was no properly … constituted court’ and any proceedings that continued in his absence ‘would have been fatally flawed and not in accordance with the law.’
‘Urgent bathroom explanation’
All this was made worse by the judge’s explanation in his judgment on the application for his recusal when he justified his absence on the grounds that he ‘urgently needed to go to the bathroom’. But that ‘bathroom explanation’ wasn’t mentioned before, even though there were several opportunities to do so. It wasn’t raised when the recusal application was heard for example. There was ‘much to be said for the suggestion that [the excuse] is improbable’ and it thus further worsened the apprehension of bias.
Indeed, if an urgent bathroom break was the reason, said Ponnan, the judge would have adjourned the court, ‘as he had done on every other occasion, instead of simply leaving’ and expecting the matter to continue in his absence.
The mere fact that the judge noted he’d left the camera and microphone on, ‘unmuted’, confirmed his intention that the hearing should continue in his absence. But had the proceedings in fact continued, the absent judge wouldn’t have been able to make a proper assessment of the credibility of the witness.
Judge had ‘closed his mind’
The facts all showed that the judge had closed his mind to appreciating the extent to which the witness had shown that he was a liar – a key issue in the case. And, said the SCA, the high court’s judgment on the merits showed that ‘the judge was far too receptive’ to the witness’s evidence.
His findings were ‘confusing and contradictory’ and important concessions by the witness were virtually ignored. If the judge hadn’t interrupted counsel’s attempts to follow ‘a perfectly legitimate line of cross-examination’, he might have assessed the witness’s evidence differently, said the SCA.
But even if the judge was right and the question had indeed been ‘repeatedly asked and answered’, the way he acted led the court to the ‘inescapable impression’ that the judge ‘no longer took any interest in the further evidence on that issue’ and that his ‘mind was no longer open to conviction’.
Judges must strictly control impatience
Ponnan said he recognised that it could be difficult to preside over a case like this and, with its length and complexity, the burden on the judge would have been even heavier. But judicial officers had to avoid impatience where possible, and always ‘strictly control’ it or it could ‘blunt his judgment’ and create the impression of prejudice. Ponnan quoted an earlier SCA decision in which he had written that a judge could only carry out his important duty ‘if he also stands guard over himself, mindful of his own weaknesses (such as impatience) … and controls them.’
The issues of fact that had to be decided were involved, and it was therefore surprising that Tsoka had intervened as he did. He seemed anxious to make sure the case didn’t drag on unnecessarily and even tried to speed up the hearing. But in doing that he lost the chance to ‘hold the scale’ between the two sides.
It was an unprecedented event, and in acting as he did the judge violated several fundamental rules of ‘good judicial behaviour’. Stopping a legitimate avenue of cross examination and thus failing to keep an open mind, led to a ‘manifest failure of justice’.
‘Belated improbable explanation’
Given all these circumstances, a reasonable, objective and informed person in SAP’s position would recognise that the judge had shown that his mind was closed to the evidence and submissions of counsel. And the judge’s ‘belated improbable explanation’ for his ‘abrupt departure’ made matters worse.
Thus, a reasonable apprehension of bias could indeed be said to have existed, with the result that Tsoka’s judgment on the merits of the claim was nullified because he had continued to sit in a trial ‘where recusal was required’.
The result was that the court’s orders on recusal and on the merits were set aside, and costs of all the proceedings, including the wasted costs of the aborted trial, were awarded in favour of SAP SE.
What happens next?
It’s one for the history books – never before has a judge simply walked out in irritation with counsel, directing that the proceedings should continue in his absence – but the question of what happens next will be just as interesting.
The case has been hugely expensive to run. It was heard over 74 days, and the wasted legal costs will involve millions of rands. Then there are the costs associated with witnesses based in Germany and in the USA, and with the German law experts who had to be called since that was the law applicable to the case.
It would, of course, be open to SAC to ask for leave to appeal to the constitutional court (CC). But the SCA’s unanimous decisions seems pretty convincing on the standards that were infringed by Tsoka. And if the CC does not interfere with the SAC’s decision, the parties could find themselves starting from scratch.
Tsoka’s conduct – walking out and offering a belated justification that the SCA didn’t believe – could well form the subject of a complaint to the Judicial Service Commission (JSC). And even though the judge has retired, he could still face a sanction if the JSC hears such a complaint and finds against him.
Recusal
The case highlights the difficulties involved in a judicial decision whether to agree to recusal, and the enormous negative consequences that may result where a court makes the wrong decision.
And there’s this final puzzle. The SCA’s unanimous judgment makes clear just how egregious the judge’s behaviour was. There was nothing subtle about what he did, and it must have been obvious to everyone at the hearing. Given all this, it’s really difficult to understand why SAC opposed the recusal application in the first place.