Kirby rejects recusal in adoption appeal
Mpho Mokwape | Tuesday May 13, 2014 11:12
The child’s biological father who is one of the respondents recently requested Kirby’s recusal saying the judge might prejudice the case by being biased. The father argued that Kirby should disqualify himself because he was the judge who granted the leave to appeal in the matter.
Dismissing the application for his recusal last Friday, Kirby said there were no facts on the allegation that he might have an interest in the proceedings or show legal bias in the case. He said that although he is sensitive to the perceptions of bias from the biological father, the application should have had some factual basis to substantiate how he was going to interfere with the proceedings.
He termed the application requiring him to recuse himself from the panel of judges as an unusual one. This is because the complaint is against a single judge of the Court of Appeal who has heard and granted an application for leave to appeal in a civil case. He found it strange that such a judge is required to recuse himself from the subsequent bench only because of the content of his ruling granting leave.
“As far as I am aware, this is the first case of such nature to come before this court,” he said.
Kirby stressed that while it is a matter of personal conscience as to whether or not a judge should recuse himself, he has taken the view that the application should be heard before a full three-judge panel for objectivity.
“An application for leave to appeal is a preliminary matter, a gateway hearing at which a single justice is mandated to determine whether an aspiring appellant should be permitted to argue his or her appeal at a substantive hearing before a three judge panel,” he explained.
He said that after hearing arguments on an application, the presiding judge makes his or her ruling on the prospects of success and states the reasons thereafter. This may result in a finding that prospects are strong or that the grounds are at least reasonably arguable, or that there are no prospects of success.
He explained that the fact that a judge finds strong prospects of success on the appeal in an application for leave, is not itself a ground for recusal from sitting in the substantive appeal.
Judges, Isaac Lesetedi and Monametsi Gaongalelwe shared the same sentiments with Kirby.
“We too agree that there is no merit in the application and that there is no way the respondent will be prejudiced in the case as the interest is on the child and his welfare,” said the judges.