Investor judge ‘not affected in Absa case’

December 10 2010 at 05:49am
By Wiseman Khuzwayo

Business Report

Absa head offices in Johannesburg CBD. Photo by Simphiwe Mbokazi

There was no realistic possibility that the shareholding of a judge in a hearing involving Absa would influence his decision in a matter against the bank, the Constitutional Court ruled yesterday in a case in which Rico Bernert, a businessman, is suing for damages of R78 million.

An appeal by Absa against a judgment at the North Gauteng High Court, which found that Bernert was entitled to damages, at the time unquantified, was allowed by the Supreme Court of Appeal (SCA).

Bernert appealed to the Constitutional Court on the basis that one of the judges on the panel, Azhar Cachalia, owned 1 000 shares of Absa’s stock, with a value of approximately R138 000.

At the time, the total number of issued shares in Absa was 718 210 000, with a value of about R100 billion.

Prior to the hearing, Bernert’s attorney, Louis Nel, met with the presiding judge, Robert Nugent, and the banking group’s lawyers.

Judge Nugent informed Nel that one of the five judges due to sit in the appeal was a shareholder in Absa and expressed the opinion that the outcome in the case would have no influence on the bank’s share price.

Nel agreed, but Judge Nugent did not ask Nel to inform Bernert of the shareholding. Nel informed Bernert of this only after the hearing, although on the same day.

According to Bernert, there was no time to do so prior to the hearing of the appeal because the hearing was about to start. He added that he decided to wait for the outcome of the case as judgment in his favour would have rendered it unnecessary to ask for recusal.

In a unanimous judgment, Chief Justice Sandile Ngcobo held that where there is a possibility that the outcome of the proceedings will affect the shareholding of a judge in a company that is a litigant before the court, that judge must recuse himself or herself.

Having regard to the value, nature and extent of Cachalia’s shareholding in this case, it was held that there was no realistic possibility that the outcome could affect his shareholding or that his shareholding would influence his decision.

The Star

Comments by Sonny

Is this case not similar to the one in which Judge John Hlope stood to be impeached?

Has double standards not slowly crept into the Judiciary?

Soon the Supreme Court of Appeals will also be traditional!

What would happen is the Judges whole family had shares in ABSA and this was not

revealed?

Is Justice not grey or slightly tainted?