There is an oblique reference to fear of bias from the courts martial.

There is no basis for this fear. An unsubstantial claim such as this cannot be ground to exclude the clear jurisdiction of all matters military from the courts martial. In my view, the establishment of Courts Martial is consistent with similar organisations mandated to discharge the security functions at national level. Security-sensitive material will be preserved if the appropriate courts martial handle matters properly within their domain.

The first preliminary point of law that was raised pertaining to both matters was that of the recusal of the presiding judge.

Recusal Application

No formal written application for recusal of myself as the presiding judge was made in this case, despite the requirement for such an application having been drawn to the attention of the applicant, or mover, of the recusal motion...,.

The necessity for such a formal application is self-evident given that certain issues raised informally in the preliminary stages of a recusal request could have fallen away, and more pertinent points assumed prominence. The formal application, like pleadings, “fixes”, or joins, issues so that the proceedings do not become a snowballing roller-coaster of complaints and allegations.

As matters stand now, the basis for the application can only be gleaned from the letter of the respondent dated 29 June 2009, addressed to the High Court Registrar, and the verbal submissions made in court on 23 July 2009, which, predictably, introduced new issues.

The relevant portion of the letter dated 29 June 2009 reads as follows –

“The Honourable Judge has always taken the view that this matter is capable of resolution, and has been encouraging parties to settle the same...,. In his effort to effect a settlement in the matter, the Honourable Judge has made it clear that he is inclined to take the position that since Dr. Kunonga's attempt to withdraw the Diocese of Harare, in September 2007, was uncanonical and unconstitutional, it was, to that extent, a nullity, and that in the circumstances it should be taken that Dr. Kunonga has, therefore, not left the Church of the Province of Central Africa, and remains the incumbent Bishop for the Diocese of Harare under the Church of the Province of Central Africa.

The judge has expressed the view that it was not useful to refer to events that occurred after 21 September 2007.

The Honourable Judge, among other things, enquired about Dr. Kunonga's age, in an apparent consideration of the fact that if he were to be reinstated in the Church of the Province of Central Africa, he could continue to serve as Bishop, and retire in the foreseeable future, the implication being that in the circumstances our client's discomfort with reinstating Dr. Kunonga may be shortlived.

Indeed, in all these discussions, the Honourable Judge referred to Dr. Kunonga as 'the incumbent Bishop'.

Our understanding of the Judge's position, in this regard, has been confirmed by the other party in this matter in their urgent application, case number HC 2792/09, which has also been referred to HLATSHWAYO J. Reference is made here to para 6 of Dr. Kunonga's founding affidavit in the urgent application.”

Paragraph 6 of Dr. Kunonga's founding affidavit in case no. HC 2792/09 reads –

“6. The issues in the Anglican Church have been the subject matter of much controversy since September 2007. Litigation is underway in various cases, and, in particular, pertinent to the issue at hand, is case no. HC 4327/08, in which the applicant has instituted a suit (by way of court application) seeking a declaration as appears on a copy of the draft order, which I attach as annexure “B”. The issues raised therein are still pending, before his Lordship Mr. Justice Hlatshwayo, who postponed the matter sine die because it was his Lordship's view that the parties must settle. The parties are to revert to him shortly, at least before the end of the week, to enable dialogue to be pursued in his Lordship's presence, both parties having accepted that his Lordship's perspective (made in light of the averments that were made in the application under reference), the only way in which the dispute in the Anglican Church can be resolved is to revert to the status quo as it pertained on 21 September 2007. It is not necessary that I relate to the reasons for such in this application, suffice to ask, and beg, this honourable court to refer to my affidavit in that matter, which I beg leave to be incorporated as part of this application.”

The respondent (Church of the Province of Central Africa) itself emphatically countered the above averment, in its notice of opposition, in a manner which should have put the whole matter of recusal to rest, thus -

“36. Ad paragraph 6

(a) The application HC 4327/08 has not been determined by HLATSHWAYO J. The respondent's position to the proposed settlement will be set out to the judge and all interested parties.

(b) HLATSHWAYO J has not made a determination in that matter, and it is improper that the deponent herein would refer to the remarks that were made by HLATSHWAYO J off the record in an attempt to settle the matter.  HLATSHWAYO J has not ruled that the parties should revert to the status quo pertaining on 21 September 2007. If, indeed, he has ruled so, the applicant is requested to provide proof of this at the hearing of this application. The respondent has never agreed to that proposition. The respondent notes that there is now agreement that Dr. Kunonga's actions were uncanonical, and unconstitutional, and that the Diocese of Harare, and, as such, its assets, never left the respondent.”

When next I met the lawyers in Chambers I clarified the position by making the following points -

(a) That I had not made any determination in the matter but had merely invited the parties, “as a base and point of departure”, to focus on the concession made that the attempted withdrawal of the Harare Diocese from the Province of Central Africa was ineffectual. Subsequent developments could then be taken on board, but not as starting points, as there was great divergence of opinion pertaining to them.

(b) That the respondent's reply to the applicant's para 6 sets out the correct position in fact, and at law, and that, generally, recusal would be expected where the judge has made statements outside court expressing prejudice against one of the litigants, and, rarely, where the comments are made in court, unless the utterances are completely outrageous.

(c) That any references that could have been made in “without prejudice” consultations in Chambers to an “incumbent Bishop” were not made in a manner determinative of the matter but just to avoid continuously referring to “Dr. Nolbert Kunonga”, in the same manner that reference was constantly made in those discussions to “incoming Bishop”, “substitute”, or “caretaker Bishop.”

(d) That regarding the age of Dr. Kunonga, I had inquired whether the appointment as Bishop was for life, and was advised it was subject to a mandatory retirement age of sixty-five years, whereupon, and quite naturally, I asked how old the “incumbent Bishop” was, and was told sixty-two or sixty-three, quite relevant information which the parties, in their negotiations, could utilize whichever way they pleased.

(e) That, at any rate, intimations, or indications, made by a judge, in assisting parties to find common ground, are not binding on the parties. I also alluded that not being a member of either of the so-called factions of the Anglican Church, nor a Christian for that matter, but regarding myself as a rationalist or atheist, I viewed their dispute quite dispassionately.

It appeared that both parties were satisfied with the above explanation, and that the issue of recusal had been laid to rest. Indeed, the parties proceeded to make arrangements for the continuation of the settlement efforts, with the assistance of the same presiding judge. It was, therefore, surprising that the respondent proceeded to file heads of argument regarding the application for recusal, stating -

“It is regrettable that this application must be persisted in but application HC 2792/07 makes it inevitable.”

The settlement efforts continued for over a month; between 29 June 2009, when the letter requesting recusal was authored, until 20 July 2009, when the parties declared that negotiations had failed, and insisted that the formal process, including the recusal application, be resumed.

I explained to counsel for the applicant in the main matters that he need not make any submissions at all as the matter of recusal, strictly speaking, was one between the Bench and the side making the application, unless he intended to make an exceptional contribution akin to a point of order in Parliamentary parlance. (See Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Company (Pvt) Ltd 2001 (1) ZLR 226 (H)...,.) – a position he fully appreciated but wished only to submit that, in his view, the continuation with the recusal application was not bona fide as the issue had been settled in Chambers. See Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H) where SMITH J, in dismissing an application for his own recusal from that case, said -

“I am satisfied that the application is not bona fide. Trinity (the applicant) has not satisfied me that the grounds for this application are not frivolae causae. I am also satisfied that I will be able to deal with the matter in an impartial, and unbiased, manner.” 

Although, of course, and with respect, the issue of the judge's own subjective belief that he would not be biased is increasingly regarded as irrelevant (Leopard Rock Hotel Co. (Pvt) Ltd & Anor v Walenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S)...,.), I do associate myself with the notion, however, that the application itself should be bona fide.

After the explanations, and clarifications, in Chambers, which were apparently accepted, and after the applicants, in its notice of opposition, had pointed out the correct position at law pertaining to the misconstrued privileged utterances, there remained very little ground upon which a reasonable apprehension of bias could be based, a mere suspicion of bias not being enough. See (Leopard Rock Hotel Co. (Pvt) Ltd & Anor v Walenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S), and cases quoted with approval therein, especially R (Donoghue) v County Cork JJ [1910] 2 IR 271..., where LORD OBRIEN CJ said –

“By 'bias', I understand a real likelihood of an operative prejudice, whether conscious or unconscious. There must, in my opinion, be reasonable evidence to satisfy us that there was a real likelihood of bias. I do not think that the mere vague suspicions of whimsical, capricious, and unreasonable people should be made a standard to regulate our action here. It might be a different matter if suspicion rested on reasonable grounds – was reasonably generated – but, certainly, mere flimsy, elusive, morbid, suspicions, should not be permitted to from a ground of decision.”

Even in its supplementary heads of argument, the applicant in the recusal matter (respondent in the main matters) betrays the lack of any subjective apprehension of bias on its part, let alone the required objective standard...,.

Regarding my participation in the abortive settlement..., my attention was not drawn to any particularly sensitive documentation, discussions, or processes that could jeopardize my impartiality. The settlement attempt never got beyond the initial stages where the parties essentially restated their positions – submissions which were no different from those they would make in presenting their heads of argument, or making closing remarks. The exchanges of letters were copied to the court for information only, and contained either notification to the judge that negotiations were continuing, or had finally failed, or that applications would be made to file certain additional documents, which was subsequently done.

The actual negotiations were not conducted by, or before, the judge, but by the parties themselves, outside the court. Once the principle, and the need, for settlement was understood, and accepted, by all concerned, the judge remained simply available to the parties should they need the court's assistance, or directions. In the same vein, the meeting with the lawyers, and their principals, in the judge's Chambers, was arranged, with the consent of all concerned, with a view to enable the principals to hear directly from the judge concerning what had been identified in Chambers as the need, and apparent basis, for a possible settlement, and to react thereto. Accordingly, the parties contributed on the need for good faith in the settlement effort, identities, and capacities, of the negotiating principals, and the option to stay all pending court cases, and processes, while negotiations continued....,.

A sample of the correspondence exchanged by the parties' lawyers, and copied to the judge's clerk, may be of assistance in showing the role envisaged, and actually played by the judge...,.

Finally, this might be as good an opportunity as any to reflect on whether our Rules, and practices, regarding recusal, enhance, or detract, from impartiality as a fundamental value inherent in judicial function.

Firstly, regarding our Rules, the adoption of the objective test, and increasing rejection of the subjective self-assessment, goes a long way in fostering public confidence in the administration of justice, and, in my view, appears to be well ahead of The Bangalore Principles of Judicial Conduct (which was adopted by the Judicial Group on Strengthening Judicial Integrity, and noted in the UN Commission on Human Rights, as revised at the Round Table Meeting of Chief Justices at the Hague, 2002) which appears to embrace both the subjective and the objective approaches. Principle 2.5 thereof provides guidelines as to circumstances in which judges shall disqualify themselves from a case, thus -

“2.5 A judge shall disqualify himself, or herself, from participating in any proceedings in which the judge is unable to decide the matter impartially, or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where –

2.5.1 the judge has actual bias, or prejudice, concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings;

2.5.2 the judge previously served as lawyer, or was a material witness, in the matter in controversy, or

2.5.3 the judge, or a member of the judge's family, has an economic interest in the outcome of the matter in controversy:

Provided that disqualification of a judge shall not be required if no other tribunal can be constituted to deal with the case, or because of urgent circumstances, failure to act would lead to serious miscarriage of justice.”

The European Court of Human Rights has established the principle that “any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw” (see Indra v Slovakia EC t HR judgment of 1 February 2005, Application 46845/99...,.) – an approach which is similar to ours.

Secondly, regarding practice, the impression gained from reported cases that judges appear reluctant to recuse themselves, where so requested, may be misleading, as the reported cases are the contested ones, whereas, in practice, judges routinely recuse themselves mero motu, sometimes without even the parties' knowing, and oftentimes at the slightest prompting from any of the parties.

Thus reported cases constitute a tiny fraction of the recusal cases.

However, there still does exist a tension which should not be ignored, between acceding too readily to requests for recusal, on the one hand, and the duty to sit where one is not disqualified, on the other.  

As was noted in Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Company (Pvt) Ltd 2001 (1) ZLR 226 (H)..., the judge's duty to sit where he, or she, is not disqualified, is as compelling as the duty not to sit where disqualified. In this regard, the opinion of MASON J in the High Court of Australia, judgment Re JRL: Exp CJL (1986) 161 CLR 342 (HCA)..., bears repeating here –

“Although it is important that justice must  be seen to be done, it is equally important that judicial officers discharge their duties to sit, and do not, by acceding too readily to suggestions of appearance of bias, encourage parties' to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

The applicant was, all along, being represented by his legal practitioners, who have since renounced agency a day or so before this matter was heard.

The applicant then appeared, in person, in Chambers, and asked that I be recused from hearing the said application as I might not be able to objectively deal with this matter as I am aware of a pending administrative issue involving himself, Mr. Mlotshwa, the High Court Registry Clerk, and Mrs. N.Tachiona, a legal practitioner.

I can confirm that various reports which touch on the applicant and Mr. Mlotshwa have been received by myself, and are currently under investigations.

What falls for determination before me is whether or not I should recuse myself in this matter.

It is the duty of a judge and/or court to dispense equal justice without fear, favour, or prejudice, at all times.

In order for a judicial officer to recuse himself in a matter where the possibility of bias is being alleged by a litigant, two essential requirements must be met, namely -

(1) That the bias must be in connection with the litigant in question; and

(2) Must be of such a nature that a real likelihood exists that the judicial officer would have a bias in favour of the litigants from kindred or other cause.

The principle was clearly laid down in S v Bam 1972 (4) SA 41..., where KATZE J stated -

“It should always be borne in mind that an applicant, or his representative, who finds it necessary to apply for the recusal of a judicial officer, is confronted with an unenviable task, and the propriety of his motives should not lightly be questioned.”

While a judicial officer is trained to dispense justice without bias, fear, or prejudice, human nature, being what it is, should not rigidly cling to the oath of office and completely shut out from his mind the likelihood of bias on his perception of a litigant. Where such likelihood exists, a judicial officer should consider the motives of the application. Where the application is actuated by the best motives, it should, no doubt, recuse him or herself.

In considering the issue of recusal, the judicial officer should always take into account the circumstances of the case, and, above all, ascertain what impression they would create upon a reasonable citizen, and in the eyes of the public – see Head and Fourtuin v Woolaston N.O. and De Villiers N.O. 1926 TPD 549 where STRATFORD J..., stated –

 “If I understand the authorities aright (sic), the disqualification arises whereas the judges relation to the parties is such, or his interest in the case is such, or his knowledge of the facts, or antecedents of the parties, is such as would tend to bias his mind at the trial. In short, any condition of things which, reasonably regarded, is liable to destroy his impartiality should disqualify him.”

The same principle was adopted in Sladie v The Pretoria Rent Board 1943 TPD 246.

In casu, the applicant's objection is with regards to a matter which has come to my attention after this matter had been set down. From his submissions, it appears that new circumstances that touch on the administration of the High Court, Bulawayo are unfolding, to an extent that his legal practitioner has abandoned him, as has now been instructed by Mr. Mlotshwa, who is also implicated in some wrongdoing involving both him and the applicant. I make no comments on that decision...,.

The first requirement is accordingly established, as laid down in S v Bam 1972 (4) SA 41..., that the likelihood of bias in favour of the litigants from whether kindred, or other, cause apply. The administrative issue referred to involving the applicant being the “other cause.”

The applicant, indeed, has reason to be apprehensive in view of his alleged misdemeanours, and my investigations of the issue in question. In my opinion, a reasonable citizen, and the eyes of the public, will see the existence of bias – which is what should be avoided by all judicial officers.

It is, therefore, my considered opinion that in the present circumstances, justice demands that a judicial officer who finds himself in these circumstances should not hesitate to recuse himself in order to allow the wheels of justice to glide along without let-up or hinderance.

The allegations by the applicant relating to alleged bias do not appear to have been responded to.

I do not understand the comment in the record to the effect that the applicant should be grateful that he still had a job to mean that the Commission was biased against him. Rather, the remark if read within the context of the paragraph, reveals that the first respondent's members considered the offence to have been very grave. The first respondent does not make reference to the record in its findings, but, I cannot accept that this proves that the members did not have the record before them in determining the appeal. The first respondent states that the appeal was on the record and I cannot find anything on the papers before me to suggest otherwise. Sight must not be lost of the fact that the first respondent is not a court of law and, therefore, the detail that would be expected from a court of law would be somewhat lacking in the record produced of the proceedings conducted by the Commission set up under the Police Act.

On 2 November 2009, the applicant was arrested by the first respondent on allegations of contravening section 184(1)(c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegations were that he had obstructing the course of justice by attempted to interfere with the Attorney General of Zimbabwe in the discharge of his duties. On 3 November 2009, the applicant filed an urgent chamber application in case no. HC5369/09 seeking, in the interim, his release from police custody. In the final relief, he sought a declarator that his arrest and detention were unlawful. The application was, on my instructions, set down for hearing on 4 November 2009 at 8.30am. The applicant, however, appeared before the Magistrates Court and was granted bail before the date of hearing of the urgent chamber application. The interim relief had therefore been overtaken by events.

Despite the fact that I could no longer grant the interim relief sought, I directed the conversion of the urgent chamber application into an ordinary court application and that the respondent file its opposing papers to the final relief sought in terms of the Rules applicable to court applications. 

The applicant is now before me pursuant to that order.

The court application was set down for hearing on the opposed roll of 24 February 2010. Before the parties addressed the court on the merits of the matter, counsel for the applicant requested my audience in chambers. It is then that he applied, on behalf of the applicant, for me to recuse myself from hearing the matter. The basis for the application is that my husband is a senior officer in the police force. The applicant expressed an apprehension that I would be biased in favour of the respondents on the basis that the application relates to my husband's subordinate and superiors respectively. The applicant assumed that because of my marriage I may have had prior knowledge of facts that would influence me in ruling in favour of the respondents.

Counsel for the respondents opposed the application on the basis that my husband is not a party to the proceedings directly or indirectly. Although he is the Chief police spokesperson, he does not interact with the first respondent who is in the Criminal Investigation Department. He also did not have an interest in the outcome of the proceedings. The apprehension of bias was therefore far-fetched and unreasonable.

The test to be adopted in determining whether or not a judicial officer should recuse him or herself is well settled and is set out in Leopard Rock Hotel Co. (Pvt) Ltd & Anor v Wallenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S).

The test is a two-fold objective test (double reasonableness) that the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. (See Masedza & Ors v Magistrate, Rusape & Anor 1998 (1) ZLR 36 (HC); Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1) ZLR 226 (H); S v Mutizwa 2006 (1) ZLR 78; Austin & Anor v Chairman, Detainees' Review Tribunal & Anor 1988 (1) ZLR 21 (SC); Coop and Others v South African Broadcasting Corporation and Others 2006 (2) SA 212 (W); South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC); President of The Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC); S v Shackell 2001 (4) SA 1 (SCA); Sager v Smith 2001 (3) SA 1004 (SCA); Government of the Republic of South Africa and Others v N and Others 2006 (6) SA 566).

The test is, in my view, aptly stated in President of The Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC)…., where it was held that -

“The question is whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend that the Judge has 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. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”

In considering this application, I have taken heed of the warning in the plethora of cases cited above that the applicant has a right to have confidence in the judiciary. Where an applicant makes an application of this nature, the court should not take it as an affront.

As stated in Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1) ZLR 226 (H)…, what defines the reasonableness of the applicant and the apprehension itself is the nature of the link or association between the judicial officer and the parties in the litigation. There is no direct link whatsoever between the respondents and myself. The alleged link is through my husband - who is not a party to the proceedings directly. The indirect link that has been referred to between my husband and the respondents arises from an employment relationship with the respondents.

Can a marriage of a judicial officer to a police officer be elevated to an indirect link to the respondents? Put differently, it appears to me that the question is therefore whether or not a reasonable person would have apprehension of bias arising from such a marriage and the apprehension would be reasonable under the circumstances.

The link is, in my view, so far removed to even be considered as an indirect link between the respondents and the judicial officer. Whilst my husband may be a senior officer in the police force, he does not, as rightly submitted by counsel for the respondents, have any involvement in the first respondent's day to day discharge of his responsibilities. The fact that he is a junior to the second and third respondents, again, in my view, has no bearing on this matter.

I do not believe that any reasonable person would entertain an apprehension that a judicial officer would be biased in favour of the police simply by virtue of a marriage to a police officer. A litigate must, in my view, advance more information to want the apprehension. A sizeable number of matters before the court, both criminal and civil, relate to the police. I do not see any distinction between the present matter and any of those matters where the police are litigants. The apprehension expressed by the applicant would mean that the judicial officer would have to recuse him/herself from almost if not all the cases where the police and its officers are litigants. Such an apprehension would be unreasonable. The apprehension is even more unreasonable given that the court was seized with the initial urgent chamber application. It appears to me that all the facts enquired to determine the application were already in the urgent chamber application. The court had already considered those facts when it determined the matter and converted the urgent chamber application to an ordinary court application. The nature of the facts that the court would have been privy to by the virtue of her marriage were not apparent from the applicant's submission.

A case to the point is that of Government of the Republic of South Africa and Others v N and Others 2006 (6) SA 566 (D). In an application for the recusal of the presiding judge on the ground that his daughter was in the employ of the correspondent attorneys of one of the parties, the Judge refused to recuse himself on the basis that his daughter's role was far removed from the actual litigation….,.

Another case is that of S v Collier 1995 (2) SACR 648 (C). In dismissing an appeal against a decision in a lower court in which an accused insisted that he be tried by a black magistrate alleging that a white magistrate would be biased against him, HLOPHE J is quoted in The Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC)…., to have said -

“Equally, the apparent prejudice argument must not be taken too far; it must relate directly to the issue at hand in such a manner that it could prevent the decision-maker from reaching a fair decision…,. PROFESSOR BAXTER gives a commonly cited example, namely, the mere fact that a decision-maker is a member of the SPCA does not necessarily disqualify him from adjudicating upon a matter involving alleged cruelty to animals. By the same token, the mere fact that the presiding officer is white does not necessarily disqualify him from adjudicating upon a matter involving a non-white accused. The converse is equally true. Otherwise no black magistrate or Judge could ever administer justice fairly and evenhandedly in a matter involving white accused.”

As stated in the cases that I have referred to above, an applicant, on raising the question of bias, should take into consideration that a judicial officer takes an oath of office to uphold the law, impartially and without fear or favour. I take the oath seriously. This should be weighed against any apprehension of bias. Whatever decision I would take in the main matter would be based on the law supported with the facts filed of record and not those that the applicant may perceive the court is aware of. It appears that the applicant has not discharged the onus placed on him of rebutting the weighty presumption of judicial impartiality. It is my view that the ground upon which the application for recusal is premised does not give rise to a reasonable apprehension of bias by a reasonable applicant. I am satisfied that, despite my marriage to a senior police officer, I will be able to deal with the matter in an impartial and unbiased manner.

Accordingly, the application is dismissed.

This matter was set to be heard by my brother BHUNU J on 24 January 2011 at 09.00 hours but could not because the first respondent had filed its opposing papers shortly before 09.00 hours. BHUNU J then postponed it sine die to enable the applicants to file a replying affidavit by 31 January 2011, and, thereafter, the parties were to file supplementary heads of argument by 3 February 2011. Subsequently, the matter was set down for hearing on 4 February 2011 but was then postponed to 14 February 2011 when it found its way to me for the simple reason that BHUNU J is dealing with a criminal trial in which one of the accused persons, Dominic Mubayiwa, is a former Chief Executive Officer of the first respondent and was involved in concluding the Memoranda of Understanding between the parties which are the subject of the dispute between them.

His second point is that the matter should be postponed in order to allow another judge to preside over his case.

His reason is that since I had already found that he was not truthful when he told the court that he was not present on the 18^th of October 2010 when service of the notice of set down was effected, it means that I am already biased against him as I have made a character classification of him.

Our law allows recusal where the judicial officer has a bias which interferes with his impartiality. The reason for this approach is to provide a safe escape or exit for those judicial officers who find themselves in situations where the conclusion of the existence of bias is inescapable. This is based on purity of motive in the performance of judicial work.

A test of judicial bias was laid down in Slade v The Pretoria Rent Board 1943 TPD 246 where it was stated that the test of judicial bias is not whether there has been actual bias, but whether there is a real likelihood of bias, or whether a reasonable man, in all the circumstances, might suppose that there was an improper interference with the course of justice. In S v De Vries 1964 (2) SA 110 it was held that disqualification arises whenever the judge's or magistrate's relation to the parties is such, or his interest in the case is such or his knowledge of the facts of the case or of the antecedents of the parties is such would tend to bias his mind at the trial. Further, in Head and Fortuin v Woolaston, N.O. and De Villiers N. O. 1926 TPD 549…., STRATFORD J stated -

“I agree that possibility of bias, and not actual bias, is all that the plaintiffs have to prove, but they must prove facts from which the possibility can be inferred”.

It is now settled law that the allegation of bias must be proved. See Masedza and Others v Magistrate Rusape and Another 1998 (1) ZLR 36 (11C) referred to in Matapo v Magistrate Bhila and Attorney General HH84-10….,.

This principle was also illuminated in Yoffe v Koppies District Licensing Board 1948 (3) SA 748…., where VAN DEN HEEVER JP stated -

“Obviously the facts from which that possibility may be inferred must be special to the particular case not a general consideration on the ground of which vaguely bias be conjectured.”

In casu, the respondent objects to the present court continuing with hearing the parties on the merits.  The fact of the matter is that the court's finding was based on viva voce evidence where the demeanour of the witnesses came into sharp focus. Whereas the next stage of the case relates to the merits. In my view, as the decision will be based on papers filed of record and not oral evidence the court is not disqualified to hear the main arguments. As the authorities have already made it clear, that, the test is the reasonable likelihood of bias and not mere conjecture.

A judicial officer's training leaves him reasonably equipped to keep an open mind throughout the adjudication of a matter before him at the same time being guided by the judicial oath of office of dispensing justice without fear or favour, affection or ill will. In R v T 1953 (2) SA 479…, CENTILIVRES CJ had this to say -

“Thus, there is nothing to prevent a Judge who has refused provisional sentence on the ground that the probabilities as disclosed in affidavits are in favour of the defendant, from hearing the principal case, nor is there anything to prevent a Judge who has granted absolution from the instance from sitting in a further case between the same parties where the facts alleged are the same as those alleged in the previous case…., it is sufficient to say that there is no rule in South Africa which lays down that a Judge in cases other than appeals from his judgments is disqualified from sitting in a case merely because in the course of his judicial duties he has previously expressed an opinion in that case. There would be as little justification for such a rule as for a rule which laid down that a Judge, who in a judgment expressed his opinion as to the correct interpretation of an Act of Parliament, could not sit in a subsequent case between different parties where the same question of interpretation was involved.” ….,.

It is now settled law therefore that the test for bias is the reasonableness of a litigant.

In the case of Silwana and Another v Mnagithate, District of Piketberg, and Another 2003 (5) SA…, quoted with approval in Matapo v Magistrate Bhila and Attorney General HH84-10, FOXCROFT J ably stated –

“In decisions in recent years, Judges have been reminded that one should not be unduly sensitive about applications for recusal. As HOWIE JA (as he then was) said in S v Roberts 1999 (4) SA 915 (SCA) (1999 (2) SACR 243),…., and also the remarks in S v Malindi and Others 1990 (1) SA 962 (A) at 969 G where CORBETT CJ said that:

'The common law basis of the duty of a judicial officer in certain circumstances to recuse himself was fully examined in the cases of S v Radebe 1973 (1) SA 796 (A) and South African Motor Acceptance Corporation (Edams) Bpk v Oberholzer 1974 (4) SA 808 (T). Broadly speaking, the duty of recusal arises where it appears that the judicial officer has an interest in the case or where there is some other reasonable ground for believing that there is a likelihood of bias on the part of the judicial officer: that is, that he will not adjudicate impartially. The matter must be regarded from the point of view of the reasonable litigant and the test is an objective one. The fact that in reality the judicial officer was impartial or is likely to be impartial is not the test. It is the reasonable perception of the parties as to his impartiality that is important.'”…,.

In the case of South African Commercial Catering & Allied Workers Union & Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC)…., the South African Constitutional Court per CAMEROON AJA dealing with the concept of apprehension of bias stated -

“The court, in Sarfu, further alluded to the apparently double requirement of reasonableness that the application of the test imports. Not only must the person apprehending bias be a reasonable person, but the apprehension itself must, in the circumstances, be reasonable. This two-fold aspect finds reflection also in S v Roberts, 23 decided shortly after Sarfu, where the Supreme Court required both that the apprehension be that of the reasonable person in the position of the litigant and that it be based on reasonable grounds. It is no doubt possible to compact the 'double' aspect of reasonableness in as much as the reasonable person should not be supposed to entertain unreasonable or ill-informed apprehensions. But the two-fold emphasis does serve to underscore the weight of the burden resting on a person alleging judicial bias or its appearance. As CORY J stated in a related context on behalf of the Supreme Court of Canada:

'Regardless of the precise words used to describe the test, the object of the different formulations is to emphasise that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity.'

“The 'double' unreasonableness requirement also highlights the fact that mere apprehension on the part of a litigant that a judge will be biased – even a strongly and honestly felt anxiety – is not enough. The court must carefully scrutinise the apprehension to determine whether it is to be regarded as reasonable.  In adjudicating this, the court superimposes a normative assessment on the litigant's anxieties. It attributes to the litigant's apprehension a legal value and thereby decides whether it is such that it should be countenanced in law.”

The court called on judicial officers to perform a delicate balancing act; that of making a finding of the existence of reasonableness in the apprehension of bias against a surprise approach but judicial officers at the mere mention of the word bias. In the test case of Take and Sure Trading CC and Other v Standard Bank SA Ltd 2004 (4) SA 1 HARMS JA observed that -

“Everyone is entitled to a fair trial and that includes the right to a hearing before an impartial adjudicator.  This common-law right is now constitutionally entrenched. Present a reasonable apprehension of bias, the judicial officer is duty bound to recuse him or herself. The law in this regard is clear, having been the subject of recent judgments of both this court and the Constitutional Court, and does not require any restatement. It is, nevertheless, convenient for present purposes to quote the following extracts from a Constitutional Court judgment for purposes of emphasis and because they are particularly germane to this case.

The question is whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend that the judge has not, or will not, bring an impartial