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 mind to bear on the adjudication of the case; that is, a mind open to persuasion by the evidence and the submissions of counsel.

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 the litigant for apprehending that the judicial officer, for whatever reasons, was not, or will not, be impartial.

That is one side of the coin. The other is this:

A criminal trial is not a game where one side is entitled to claim the benefit of any omission or mistake made by the other side, and a judge's position in a criminal trial is not merely that of umpire to see that the rules of the game are observed by both sides. A judge is an administrator of justice, he is not merely a figurehead; he has not only to direct and control the proceedings according to recognised rules of procedure but to see that justice is done.

The same applies to civil proceedings: a judge is not simply a 'silent umpire'. A judge is not a mere umpire to answer the question “how's that?”  LORD DENNING once said:

'Fairness of court proceedings requires of the trier to be actively involved in the management of the trial, to control the proceedings, to ensure that public and private resources are not wasted, to point out when evidence is irrelevant, and to refuse to listen to irrelevant evidence.'

A supine approach towards litigation by judicial officers is not justifiable either in terms of the fair trial requirement or in the context of resources. One of the oldest tricks in the book is the practice of some legal practitioners, whenever the shoe pinches, to withdraw from the case (and more often than not to reappear at a later stage), or of clients to terminate the mandate (and more often than not at the suggestion of the practitioner), to force the court to grant a postponement because the party is then unrepresented. Judicial officers have a duty to the court system, their colleagues, the public and the parties to ensure that this abuse is curbed by, in suitable cases, refusing a postponement. Mere withdrawal by a practitioner or the mere termination of mandate does not, contrary to popular belief, entitle a party to a postponement as of right. A balancing act by the judicial officer is required because there is a thin divided line between managing a trial and getting involved in the fray. Should the line, on occasion, be overstepped, it does not mean that a recusal has to follow or the proceedings have to be set aside. If it is, the evidence can usually be reassessed on appeal, taking into account the degree of the trial court's aberration.”

The emphasis is on the need for judicial officers to adopt a robust approach.

The courts should therefore, where bias is alleged, bear in mind the possibility of lack of bona fides on the part of the applicant. Above all, it should be borne in mind that the applicant bears a weighty onus in proving not only his reasonableness but that of his apprehension. In Zimbabwe, the correct legal position is that highlighted in Matopo and Others v Magistrate Bhili and Attorney General HH84-10. At p7 …, UCHENA J stated -

“The need for firm control of proceedings is called for, as a supine approach will result in avoidable backlogs. The need for efficient court management by judicial officers must, however, give in to the delivery of quality justice, which must be seen to be done. In short, a judicial officer must be firm and fair, allowing genuine applications for postponement, and turning down those made for dilatory purposes.”

In casu, the question which falls for determination is whether or not the respondent's apprehension of bias on the part of the court is reasonable and whether or not the respondent himself is reasonable.

The respondent has been a self-actor throughout the litigation process. As pointed out…, he is one of the few self actors who articulates themselves very well. In that regard, I find that he was not reasonable in apprehending bias as he understands the legal principles and also that, despite all his flimsy excuses, I had been bending backwards to accommodate him in the circumstances where I should possibly not have. As of the 5^th May 2009 he had been aware that the day of hearing was nigh, but, on the 18^th, 25^th and 26^th of October 2010 has been throwing all tricks in order to avoid the matter being heard. This is born out of by the following facts;

(1) His failure to appear in order to apply for a postponement on the 18^th October 2010.

(2) His assertion that he only became aware of the hearing on the 24^th October 2010; though this does not help him much as he had already filed his heads of arguments as way back as the 5^th May 2009.

(3) His appearance in court on the 25^th and 26^th October 2010 without his file or documents on the anticipation that his request for postponement would be acceded to.

I also hold the view that bearing in mind that the court has not even looked at the merits of the case, therefore, his apprehension is also unreasonable.

It is clear from the authorities that the double requirement approach places a heavy burden on the part of the litigant who alleges bias. In my mind, the respondent has dismally failed to pass this tough test, which, for all intents and purposes, is designed to curb abuse of such a noble principle.

This, to me, is an abuse of the legal system.

In my mind, the fact that the court pointed out these ills based on facts in an interlocutory application of this nature does not, and will not, influence the court in hearing submissions on the merits of this matter.

I come to this conclusion bearing in mind the need for good case management, fairness, and the need to curb the unnecessary increase of backlogs in our courts. See Matopo and Others v Magistrate Bhili and Attorney General HH84-10. I further make this conclusion with full knowledge that justice should not only be done but be seen to be done at all times.

As set out above, on two occasions, the court has bent backwards to allow the respondent to appear in court so as to present his case but all those efforts have been met with one flimsy excuse after another, all, in my view, designed to avoid a hearing. I am, therefore, persuaded to accede to the applicant's submissions…, that this matter should be heard without further ado. The following order is therefore made, that:-

(1) This matter be and is hereby set down for hearing on 25^th November 2010 at 1415 hours.

(2) …..,.

(3) …,. 

I must state that for some time now the respondent has tenaciously pursued applications in this court demanding the recusal of my brother judges who have dealt with this matter, namely, CHEDA J and KAMOCHA J. 

When this matter was set down for argument before KAMOCHA J, on 26 January 2011, he filed a chamber application (HC129/2011) in which he made serious allegations against both the learned Judge and the Assistant Registrar and sought an order that the matter be transferred to Harare as he was no longer ''comfortable'' with the matter being dealt with in Bulawayo. While he could not be allowed to have the matter transferred to Harare, he succeded in having KAMOCHA J recuse himself resulting in the matter being placed before me. Even then, when the matter was set down before me for 14 February 2011, the respondent submitted a letter, dated 10 February 2011, arguing that as he had noted a further appeal against the order of KAMOCHA J dated 26 January 2011, he expected the hearing of the matter to be stayed until the finalisation of his latest Supreme Court appeal. It is useful to note the latest order that he purported to appeal against. It reads:

''The matter be and is hereby postponed sine die for it to be placed before another judge.''

Just what was there to appeal against in that order is not easy to fathom, so is the issue of how the respondent felt he could commandeer the entire justice system to his whims and caprices as to allow him to have a matter transferred to Harare because he is ''no longer comfortable'' to have his matter under the Assistant Registrar of this court, poses a serious challenge to the mind. 

The applicants were discharged from the force by the Commissioner General of the Zimbabwe Republic Police after they were found to be unsuitable for police duties following their conviction under the Police Act [Chapter 11:10] for contravening section 34 of the Schedule to the Police Act [Chapter 11:10]. A Board of Inquiry was convened in terms of section 50(3) of the Schedule to the Police Act [Chapter 11:10] and it was properly constituted for that purpose. The Commissioner General acted in terms of the law. The applicants sought to argue that the Board was composed of members, or a member, who was biased against these applicants. It is noted that it is a requirement of the law, in terms of section 50(1) of the Schedule to the Police Act [Chapter 11:10] that:-

“An officer who is a material witness or has a personal interest in the matter shall not be appointed to such a Board.”

The applicants did not object to being heard by the officers who constituted the Board of Inquiry and their allegations of bias have no basis at all. The applicants failed to place any facts before the court to establish the alleged bias. The applicants only make reference to an incident where one of the Board officers was seen conversing with the Board Chairperson as an indication that the Board was biased. The issue of bias cannot be inferred. It has to be proved and established by the wronged party. In any event, the main task of the Board was to look into the summary of the career history of the applicants and make appropriate recommendations. Their recommendations were not final. The decision on the matter, once the findings of the Board were compiled, vested in the Commissioner General of Police in terms of section 50(3) of the Schedule to the Police Act [Chapter 11:10]. I am satisfied that there does not appear to have been any bias in this matter, whether real or imagined, against the applicants….,.

This is an application for referral to the Constitutional Court of an application by the first respondent for my recusal in terms of Section 175(4).

The background of the matter is that the first respondent made an application that I recuse myself from hearing the application for rescission of judgment made by the Judicial Service Commission, (the applicant herein).

The grounds for the application for recusal were that:

Firstly, a serving judge is likely to be sympathetic with the applicant as it is the employer of judicial officials in Zimbabwe. The reason for a serving judge to be so sympathetic is given as that the Judicial Service Commission, being the employer, was ordered in the judgment sought to be  rescinded to pay damages to the first respondent in the sum of $100,000= and therefore such an amount would make me sympathetic to the financial concerns of the applicant. Secondly, that abuse of office by a former employee of the Judicial Service Commission, resulting in the suit by the first respondent against the Judicial Service Commission, would render a serving judge sympathetic with their employer as such a scenario is likely to paint the Judicial Service Commission in a bad light in regard to the training of its officers. Thirdly, that the Judicial Service Commission, being composed of the Judge President, the Chief Justice and the Deputy Chief Justice having sat and decided that the judgment in HC3033/12 should be rescinded, a serving judge is likely to be persuaded by such a decision having been taken by her superiors. Fourthly, that the speed with which the matter was set down raised fears on the part of the first respondent that there is a peculiar interest in the matter by all the parties concerned - including the judicial officials.

I dismissed the application for recusal as I found it to be baseless and to be devoid of merit.

All the grounds raised by the first respondent do not pass the test of a reasonable apprehension of bias in the mind of a litigant as enunciated in numerous decided cases. The principles are dealt with in depth in the case of Matapo and Others v Bhila N.O. and Another 2010 (1) ZLR 32; there is an emphasis that the apprehension itself must be reasonable. In this case, it was held…,:

''that an application for recusal must be based on a reasonable litigant's apprehension of bias and the apprehension must itself be reasonable. Mere apprehensiveness 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 scrutinise the apprehension to determine whether it is to be regarded as reasonable. In adjudging 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.''

To suggest that a serving judge, who took an oath of office, would worry or be concerned about what the Judicial Service Commission becomes liable or not liable to pay to an individual defies logic and is farfetched. Again, to say that a serving judge would worry about what image the numerous officers employed by the Judicial Service Commission portray so as to paint their employer in bad light to the extent that the judge becomes partial is, in fact, so grossly unreasonable and desecrates the independence of the Judiciary. Why would a serving judge, a Constitutional appointee, be worried about the misdeeds, if any, of the employees of the Judicial Service Commission as an organisation to the extent that she lacks objectivity on issues brought before her for determination? This again is farfetched and unreasonable an assertion. The third reason that the Judge President and the Deputy Chief Justice, as well as the Chief Justice, who are part of the Judicial Service Commission, sat and deliberated that the matter be brought for rescission and that therefore a serving judge would then be persuaded by their decision lacks merit. A judge, sitting in court, applies the law to the facts before her and makes a decision in accordance with the legal principles enunciated in our law. To say that a judge would sit in court and make a decision on the basis that the aforementioned judges of the superior courts are part of the Judicial Service Commission and therefore that would mean their mere decision to challenge the judgment would entail that a serving judge would then be persuaded to blindly find in favour of the Judicial Service Commission, is unfounded and totally baseless.

Counsel for the first respondent withdrew the fourth ground on the expeditious setting down of the matter and I would not address it herein although it is equally unfounded and illogical. Judges are expected to decide cases that are brought before them impartially without fear or favour according to facts and law and not according to subjective personal views. It is thus far-fetched that a judge would disregard legal principles and the facts before her so that she finds in favour of her purported ''employer.''…,.

On the application that the issue of my recusal be referred to the Constitutional Court in terms of Section 175(4) of the Constitution I have alluded to the case of the President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) South African Law Reports 147.

In this case, the application for recusal was being sought against certain judges who were believed to have been members of a political party that the first and second appellants also belonged to and that the President of the court had a long standing advocate-client relationship with the first appellant. It is important at this juncture to distinguish the South African case from the one before me as there is nothing that has been shown on the reasonable apprehension of bias against myself sitting in this matter as a judicial officer. The application in this matter has a blanket apprehension of bias as against all the serving judges in this jurisdiction. The court in that case had to decide whether the matter was a Constitutional matter or one connected with a decision on a Constitutional matter.

The court held in that regard that a judge who sat in a case in which she or he was disqualified from sitting because, seen objectively, there existed a reasonable apprehension that such a judge might have been biased, acted in a manner that was inconsistent with the Constitution.

It is important to note that the gist of the finding in the South African case, is that for the constitutionality or otherwise of the matter to arise, there first must be a reasonable apprehension of bias, and therefore such a judge would already have been found, at the recusal stage, to be disqualified to hear the matter but nevertheless proceeds to do so. Where the court has found, as in the case before me, that there is no reasonable apprehension of bias as the application for recusal would be baseless and devoid of merit, then the constitutionality or otherwise of the matter never arises. It is also important to note that the application for recusal in that case was dismissed. In conclusion, the court in the President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) South African Law Reports 147, stated thus…,:

''Under our new Constitutional order, judicial offices are now drawn from all sections of the legal profession, having regard to the Constitutional request that the Judiciary shall reflect broadly the racial and gender composition of South Africa. While litigants have a right to apply for the recusal of Judicial officers where there is a reasonable apprehension that they will decide the case impartially, this does not give them the right to object to their cases being heard by particular judicial offices simply because they believe that such persons will be less likely to decide the case in their favour, than would other judicial officers drawn from a different segment of society. The nature of the judicial function involves the performance of difficult and at times unpleasant tasks. Judicial offices are nonetheless requested to ''administer justice to all person alike without fear, favour or prejudice, in accordance with the Constitution and the law. To this end, they must resist all manner of pressure regardless of where it comes from. This is the Constitutional duty common to all judicial offices. If they deviate, the independence of the judiciary would be undermined and in turn the Constitution itself.''

In Zimbabwe, our current judicial officers are also drawn from all sections of the legal profession. Consequently, I find that the application before me that I refer this matter to the Constitutional Court is frivolous and vexations for the aforementioned reasons. 

Counsel for the applicant submitted that one Simon Muleya, the incumbent District Administrator, should be excused from presiding over the nomination process because he is biased.

The alleged bias is located in the fact that he allowed the meeting of 24 February 2011 to go ahead when he was aware that the process had already started.

Bias

The respondents contend that the Arbitrator was biased when he determined their matters as he had issued arbitral awards in default for the eviction of other tenants from Metro Centre. This factor was not brought to their attention by either the Arbitrator or the applicant. The Arbitrator determined their matters with existing negative awards he had made on the same facts. There was need for the Arbitrator to be consistent as the respondents were in the same category with the other tenants for which awards in default had been issued. It was submitted, on their behalf, that in terms of Article 18 of the Model Law, there should be equal treatment of parties and each party should be given a full opportunity to present its case before an Arbitrator. By not advising the respondents that he had issued default judgements, the Arbitrator did not treat the parties equally and fairly. It was further submitted that where bias is alleged, one does not need to prove actual existence of malice. The court is simply concerned with the honest view of the bystander.

The applicant's position is that it is not correct that the Arbitrator had already taken a position before hearing this matter. At the commencement of the hearing, it was established that two of the tenants were in default. This was in the presence of the respondents. The Arbitrator did not make any substantive awards against those in default prior to the hearing of this matter. This matter was heard on 2 March 2012 and the awards in default were only made on 13 March 2012.

The test as to when a person performing a judicial function should be disqualified to act on the grounds of interest or bias was discussed in Leopard Rock Hotel Co (Pvt) Ltd and Anor v Walenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S)…, where KORSAH J reviewed a number of cases on this issue. At page 273 G-H he quotes LORD GOFF in R v Gough (1993) 2 ALL ER 724 (HL)…, where he said:

“I turn next to the broader question of bias on the part of a member of the relevant tribunal. Here, it is necessary to put on one side the very rare case where actual bias is shown to exist. Of course, if factual bias is proved, that is an end of the case: the person concerned must be disqualified. But it is not necessary that actual bias be proved; and, in practice, the enquiry is directed to the question whether there was such a degree of possibility of bias on the part of the tribunal that the court will not allow the decision to stand. Such a question may arise in a wide variety of circumstances. These include, but are by no means limited to, cases in which a member of the tribunal has an interest in the outcome of the proceedings which falls short of direct pecuniary interest. Such interests may vary widely in their nature, in their effect and in their relevance to the subject matter of the proceedings; and there is no rule, as there is in the case of a pecuniary interest, that the possession of such an interest automatically disqualifies the member of the tribunal from sitting. Each case falls to be considered on its own facts.”

KOSAH JA then continued at page 274 C and stated:

“As the court always adopts the standard of the reasonable man in resolving factual issues, I understand the words: “the court will not allow the decision to stand” to imply that: “nothing is to be done which will create a suspicion in the mind of the reasonable man that there has been an improper interference with the course of justice.”

He then concluded, at page 275 A, by stating:

“A common theme which runs through the authorities is, therefore, that the test to be applied is an objective one. One does not enquire into the mind of the person challenged to determine whether or not he was or would be actually biased. Thus, the character, professionalism, experience or ability as to make it unlikely, despite the existence of circumstances suggesting a possibility of bias arising out of some conflict of interest, that he would yield to infamy, do not fall for consideration.”

Applying that test to this matter, the question would be; are there any circumstances which may engender a belief in the mind of a reasonable litigant that in the arbitral proceedings he would be at a disadvantage?

My view is that the answer to the above should be in the negative.

To suggest that the Arbitrator's mind would have been influenced by awards he made in default is to slight the Arbitrator's intelligence and experience. Regard to the award itself will show that the Arbitrator applied his mind and considered the submissions made before him by the parties before arriving at a decision. I do not understand why the Arbitrator could not have arrived at a different conclusion, to the awards in default, if the circumstances warranted.

It was the applicant's story that the President of the Board, Chief Superintendant Matange, had an interest in the matter and should have therefore recused himself….,.

This is an appeal against the entire judgment of the Labour Court handed down on 28 January 2011.

The facts of the matter are aptly summarised as follows in the respondent's heads of argument.

The appellant was employed as a Logistical Officer/Controller by the respondent. In December 2009, he was charged, found guilty and dismissed, on grounds of gross negligence and inefficiency that led to the respondent losing revenue. He lodged an internal appeal on 4 January 2010 but it was not heard. He then lodged a complaint with the Ministry of Labour, but the matter was not settled at conciliation, and it was referred to arbitration. The arbitrator found that there had been irregularities in the hearing. He ordered that the appellant be paid salary arrears and benefits to the date of his award, then determined the matter on the merits and upheld the dismissal. The appellant then appealed to the Labour Court which dismissed his appeal.

The appellant has now appealed to this Court.

However, counsel for the appellant concedes the point made by counsel for the respondent and confirms that the appellant has abandoned all of his grounds of appeal except the one that reads as follows;

“The Labour Court erred by holding that appellant had to show more than a possibility of bias whereas he had shown actual bias.”

The allegation of bias was directed at the Chairperson of the disciplinary authority before which the appellant appeared. The specific charge in respect of which the appellant was found guilty and dismissed was given as follows:

“It is also alleged that with/or without Great Milan's Knowledge you filled a Bill of Entry (ZIMRA Form 24) using a different name, Giband. This was against ZIMRA requirements, and is a case of fraud.”

The following facts are not in dispute.

The Bill Of Entry issued by the appellant indicated that the consignee was “Giband Industrial Company” and quoted their BP number as '0200077700.' The goods involved belonged to a different customer called Great Milan, which was obliged to pay presumptive tax to ZIMRA upon the goods entering Zimbabwe. Giband, on the other hand, was only obliged to pay VAT and not presumptive tax. There was suspicion that the appellant was bribed by an official of Great Milan to facilitate its non-payment of presumptive tax through use of Giband's name and BP number. There was also strong suspicion that this was just a tip of the iceberg.

As already indicated, the only issue raised in this appeal is whether the arbitrator, and the Labour Court by upholding his decision, erred in dismissing the appellant's allegations of bias and proceeded, instead, to consider the merits of the dispute.

The appellant argues that the Chairperson of the disciplinary hearing, one Chioneso Muvandi, was part of the team that investigated the offences allegedly committed by him. As a result, she was not only 'compromised' but clearly biased. Evidence of this bias is given as an advertisement that she caused to be published in a newspaper, before the hearing, to the effect that the appellant was no longer employed by the respondent. He argues that this was indicative of the Chairperson having pre-judged the matter and that, as a consequence, there was no possibility of her being fair at all in the circumstances. The appellant further argues that the Chairperson demonstrated actual bias by, among other things, denying him an opportunity to cross-examine the respondent's witness who stood as the complainant.

The court was referred to the case of Nyikadzino v Tsvangirai 2012 (1) ZLR 405 (II)…,., in which the appellant avers the rule in respect of bias, interest in the cause, and fairness is set out.

The arbitrator found against the respondent in respect of his dismissal, even though he agreed that there were some irregularities in the proceedings. The arbitrator's remedy for the irregularities alleged by the appellant was an order for the respondent to pay the appellant back pay and salaries. The order reads as follows;

“1. Due to the procedural irregularities in the hearing, respondent is ordered to pay applicant his full salary and benefits up to the date of this award (17 March 2010).

2. The dismissal is allowed to stand, as applicant really did show some inefficiency and dishonesty.”

It is not denied by the respondent that the Chairperson concerned was part of the team mandated to investigate the multiple charges levelled against the appellant. Nor is it disputed that she caused a notice to be published in a newspaper before the hearing, informing the public that the appellant was no longer employed by the respondent. The respondent, however, argues that, this notwithstanding, the appellant had failed to demonstrate actual bias on the part of the Chairperson of the disciplinary hearing. In any case, the respondent further argues, any possible irregularity in this respect was cured by the arbitrator's award of payment of salary and benefits to the appellant.

The Labour Court, in dismissing the appellant's appeal, in effect upheld the arbitrator's decision on this point.

The court addressed the question of whether or not, apart from the irregularity occasioned by the Chairperson's role in chairing the proceedings, the appellant had demonstrated actual bias against him, on her part. The Judge expressed the view that the adjudicator is required to execute his duties impartially, and, a 'showing' of bias is required to nullify proceedings already concluded. The court found that the appellant had failed to show any bias or prejudice. It held as follows in its judgment;

“Appellant queried why the arbitrator did not use that finding (of bias) to nullify the proceedings. In my view, the question is considered differently before and after a hearing. The adverts complained of may be taken to show bias. Indeed, I would, on that basis, have interdicted the official from hearing the matter. However, after a hearing has already been conducted the situation is different…,. A showing of bias is required to nullify proceedings already concluded. It is not enough to show a possibility of bias as is the case prior to the hearing. In casu, appellant failed to show bias or prejudice arising from such bias.”

I find little to fault in the Judge's reasoning.

The question of likelihood of bias can only, logically, be raised before or perhaps during the proceedings in question. In such cases, an affected party would normally be expected to request that the person suspected of such bias recuse him or herself from participation in the proceedings in question. There is no record that in casu such a request was made by the appellant in respect of the Chairperson of the disciplinary proceedings. Consequently, proceedings continued to finality. The appellant could only, after that, have relied on demonstrated bias to request that the proceedings be set aside. The court a quo found that he had failed to do so.

The appellant…, referred the court to the comments made by the learned judge in the case of Nyikadzino v Tsvangirai 2012 (1) ZLR 405 (II)…, to the following effect;

“Indeed, it harkens back to feudal form of justice that has no place whatsoever in any modern legal system. It should be blindingly obvious to any judicial officer that he cannot institute a claim or complaint and also adjudicate it himself. It follows that the summons issued by Chief Negomo is fundamentally flawed. For this reason alone, the proceedings pursuant to that summons constitute a nullity and must be treated as being void abinitio.”

Before the learned Judge made the comments cited by the appellant, he noted as follows;

“The citation in the summons of the plaintiff and the presiding officer as being one and the same person was an affront to every acceptable notion of justice and procedural fairness…,.”

I am not persuaded that this authority is applicable, on the facts, to the circumstances of this matter.

(i) Firstly, the impugned proceedings in Nyikadzino v Tsvangirai 2012 (1) ZLR 405 (II) were conducted by, and in, a court of law.

(ii) Secondly, the judicial officer concerned, that is Chief Negondo, personally served summons on the defendant in Harare, requiring him to attend his court at a named Business Centre. He himself and another person were cited as the plaintiffs. He then proceeded to hear the matter.

(iii) Thirdly, unlike in casu, the dispute in Nyikadzino v Tsvangirai 2012 (1) ZLR 405 (II) was not premised on any allegation of bias. The bone of contention there was the violation by Chief Negonde of procedures laid down by statute relating to the issue and service of summons; that is, where, how and by whom.

It was because of this and other irregularities that the proceedings in that case were nullified.

Bias

The applicant placed before the Administrative Court a number of articles authored by the Chairman of the Media and Information Commission in which he made certain remarks about the applicant. In particular, he referred to the applicant as an outlaw and indicated that its application would not be considered on the turn and that generally the applicant was conducting itself in an inappropriate manner.

In my view, the Chairman of the Commission should have appreciated that he would chair the Commission that would determine the application for registration by the applicant. Accordingly, he should have refrained from making comments that were likely to make the applicant apprehensive of not getting a fair hearing from the Commission chaired by him.

The actual bias in the mind of the Chairman of the Media and Information Commission against the applicant was not established on the evidence. But it was not necessary for the applicant to prove actual bias in one member of the Commission in order to get the decision of all the members vitiated. It was enough that there was a likelihood of bias in the evidence of the utterances made by the member who then took part in the deliberations of the Commission. It was shown that the utterances could have created an apprehension in the minds of reasonable men that justice would not be done.

See Liebenberg and Others v Brakpan Liquor Licensing Board & Anor 1944 WLD 52…,.; Metropolitan Properties (FCG) Ltd v Lannon [1969] 1 QB 577.

Accordingly, while I agree with the conclusion of the Administrative Court that the proceedings of the Media and Information Commission are voidable on the grounds of bias, I, however, do not accept the Administrative Court's conclusion that actual bias on the part of the Chairman of the Commission was proved on the evidence placed before it.

The onus rests upon the person alleging bias to establish the allegation….,.

In Musarira v Anglo American Corporation SC53-05, the following was highlighted:

“I would point out here that as long as a charge of misconduct is preferred by an employer against an employee there is always a certain element of institutional bias, as the employer is the offended party. However, this happens to be the situation in all misconduct cases. What is important is that the misconduct matters are dealt with in a manner that is fair and impartial and that the rules of natural justice are followed. The rules of natural justice in such a case are that the party concerned –

(a) Must be given adequate notice;

(b) Must be heard or be able to present his/her side of the story; and

(c) Should be allowed to call witnesses if he/she so wishes.”

Equally pertinent is the following statement that was made in Watyoka v ZUPCO SC87-05:

This matter was first placed before my brother MAFUSIRE J on 2 February 2017.

In ZESA v Maposa 1999 (2) ZLR 452 (SC)…, it was held that;

“Natural justice embraces the requirement that there must be fairness in the procedure.

Therefore, both parties must be treated equally. Each must be given a full opportunity to present his case. (this is a mandatory requirement under Article 18 of the Arbitration Act [Chapter 7:15]) and be afforded an opportunity of answering the case against him by meeting his opponent's evidence and contentions.

See FSI Holdings Ltd v Rio Tinto Zimbabwe Ltd & Anor 1997 (1) ZLR 31 (S).

It is also a rule of natural justice that the arbitrator must not be a judge in his own case; nor must he act with bias against a party. He should scrupulously disclose any interest he has in the dispute or might reasonably be thought to have.

See Leopard Rock Hotel Co (Pvt) Ltd v Walenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S) at 270 E–G; and, generally, CHRISTIE, Business Law in Zimbabwe at 474; BUTLER and FINSEN, Arbitration in South Africa at 165."…,.

That the arbitrator insisted on the attendance of the respondent's witness on the day the applicant closed its case is not evidence of bias, interest, and lack of impartiality in the matter. Matters are supposed to be brought to finality expeditiously.

If an application for recusal of a presiding officer in a matter is dismissed, it does not entitle the aggrieved party to refuse to participate in the matter. It should still participate, and, at the same time, make use of the legal remedies available to it to challenge the decision of the presiding officer.

It was contended by the applicant's legal practitioner that proceedings before the second respondent should be set aside because the second respondent was clearly biased against the applicant.

I do not agree for the simple reason that the bias manifested itself after conviction. However, the same cannot be said about proceedings before the first respondent in that these proceedings were tainted by the apparent irregularity.

I am not satisfied that there is evidence of bias on the part of the first respondent on the papers filed in this case.

While the decision to award the Chisipite immovable property to the third respondent can be impeached on the ground of gross unreasonableness, it does not show impartiality. It simply illustrates a failure to apply the mind to the relevant considerations…,.

This was meant to be a criminal appeal. It did not proceed. The appellant asked for my recusal. I obliged.

The matter was removed from the roll. My brother, MAWADZE J, and I, felt it unprofitable to get embroiled in the merits of an application for recusal. But, our decision in this regard should not be taken as having set a precedent. We avoided tussling with counsel purely so that justice might be seen to be done. The reasons for seeking my recusal were nebulous.

Here are the facts.

On 6 June 2017 the Regional Magistrate's Court at Masvingo convicted the appellant on two counts of rape. He was sentenced to fifteen years imprisonment three of which were suspended for five years on the usual condition of good conduct.

The appellant appealed to this court against both conviction and sentence. Pending the appeal, he applied for bail. I heard the application. By judgment no. HMA33-17, handed down on 4 July 2017 [“the bail judgment”], I dismissed the application. The major ground for dismissing the bail application was that the appeal had no prospects of success on the merits. Even though the applicant was not a flight risk, I judged that it was in the interests of justice that the operation of the judgment of the court a quo, and the execution of the sentence, should not be interfered with.

The appellant did not appeal the bail judgment.

Some few minutes before the start of the hearing of the appeal, counsel for both parties approached me in Chambers. Counsel for the appellant advised that the appellant was feeling very uncomfortable with me being part of the appeal panel. It was said that, in the bail judgment, I had expressed very strong views about the lack of prospects of success of the appeal. As such, he felt I was likely to remain un-moved by whatever else he might say on appeal.

The issue was being raised at the eleventh hour. Yet the appeal had been set down for hearing several months in advance. In fact, the hearing had been twice postponed. On no occasion had any intimation been given that my recusal would be sought. Counsel for the appellant explained that he himself had no issue. He had come prepared to argue the appeal. However, the appellant had, at the last minute, raised the matter and had insisted that he felt he would not get a fair hearing if I remained on the appeal panel.

In the event that I recused myself, counsel for the appellant suggested that a new panel could be reconstituted or that the record could be transferred to the Harare station. Counsel for the State saw no conflict or difficulty if I remained on the panel. However, she had no real objection to the appellant's request.

I intimated to counsel that I did not consider myself to be conflicted or in any way incapacitated as to warrant my recusal, but that, nonetheless, I did not want to be seen as wanting to cling onto the matter as if I had cultivated a special interest in it. I said I would discuss the matter with MAWADZE J.

In court, counsel made formal submissions on the request for recusal. The matter was removed from the roll.

We have said that our decision in the present matter should not be taken as having set a precedent because the request insinuates that justice is justice only when a litigant wins a case and that it is not justice when they lose. What the recusal application in this matter boils down to is that, if I had granted the application for bail, the appellant would have been quite happy to let me sit on the appeal panel. On that kind of logic, there is no reason why the State, if I had granted bail, should not have sought my recusal also.

The administration of justice simply does not function that way.

It is, of course, the right of every litigant to seek the recusal of a judicial officer who may be conflicted or whose impartiality is not guaranteed. A judicial officer should not unduly take a recusal application as a personal affront. Section 69(2) of the Constitution says that, in the determination of civil rights and obligations, every person has a right to a fair, speedy and public hearing within a reasonable time before an independent and impartial court, tribunal or other forum established by law: see Mangenje v TBIC Investments [Pvt] Ltd / TBIC Investments [Pvt] Ltd & Anor v Mangenje 2014 [2] ZLR 401 [H].

Recusal is the stepping aside, or disqualification, of a judicial officer from a case on the ground of personal interest in the matter, bias, prejudice, or conflict of interest. It is a rule of natural justice. No man should be judge over his own cause, or nemo judex in sua causa: see Council of Review, South African Defence Force & Ors v Monning & Ors 1992 [3] SA 482 [A]…, and President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors 1999 [4] SA 147…,. Thus, a judicial officer who has cultivated an interest in a matter before him or her, be it financial, personal or whatever else, is required by the rules of natural justice that he or she should recuse himself or herself: see 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 [H] and Mahlangu v Dowa & Ors 2011 [1] ZLR 47 [H].

However, recusal is not just there for the asking. It is important to realize that judicial officers have a duty to sit and decide cases before them and in which they are not disqualified. They should not too readily accede to suggestions of bias or other interest in the matter. The High Court of Australia put it this way in Re JRL: Ex parte CJL (1986) 161 CLR 342 [HCA]…,.:

“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearances 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.”

A judicial officer whose recusal has been sought has to decide the application in the first instance. If he or she refuses the recusal, and that decision is wrong, it can always be corrected on appeal: President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors 1999 [4] SA 147…,. In essence, therefore, this is an exception to the rule against someone becoming judge over their own cause.

By reason of their training, experience, conscience and intellectual discipline, it must be assumed that judges are able to administer justice without fear or favour, and capable of judging a particular controversy fairly on the basis of its own circumstances. It must be assumed that they are able to dis-abuse their minds of any irrelevant personal beliefs and pre-dispositions: President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors 1999 [4] SA 147…,.; also Mahlangu v Dowa & Ors 2011 [1] ZLR 47 [H]…,.

Furthermore, on being appointed, every judge takes and subscribes to the judicial oath “…, to do right to all manner of people after the laws and usages of Zimbabwe, without fear or favour, affection or ill-will”: see Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 [1] ZLR 226 [H]…,.

There is a presumption that judges will carry out their oath of office. That is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high: President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors 1999 [4] SA 147…,.

An apprehension of bias that is whimsical or morbid cannot be a ground for seeking recusal. Some examples may help:

(i) In S v Collier 1995 [2] SACR 648 [C] an application for the recusal of a magistrate on the ground that he was white was refused.

(ii) In S v Mutizwa 2006 [1] ZLR 78 [H] recusal sought on the basis that the presiding magistrate had a reputation for imposing stiff sentences was refused.

(iii) In Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 [1] ZLR 226 [H], an application for recusal by one set of shareholders in a newspaper printing and publishing company on the ground that the presiding judge had been a former temporary editor and columnist allegedly of a rival newspaper or competitor was refused on the basis that the applicant had not established any link between the judge and the other party in the main application who also happened to be a co-shareholder in the newspaper printing and publishing company.

(iv) In President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors 1999 [4] SA 147, recusal based on alleged professional and/or political and/or family ties between most of the justices of the Constitutional Court of South Africa and the appellant, who happened to be the then sitting president of the country, was refused.

(v) In Mahlangu v Dowa & Ors 2011 [1] ZLR 47 [H], the judge's recusal was sought on the basis that she was married to a member of the police force. The alleged link was that the respondents were also members of the police force. The judge's husband had little or no day to today dealings with the respondents who were either his superiors or subordinates. Recusal was refused.

(vi) In Mangenje v TBIC Investments [Pvt] Ltd / TBIC Investments [Pvt] Ltd & Anor v Mangenje 2014 [2] ZLR 401 [H], which was a simple and straightforward application for directions, I refused a request for my recusal which was predicated on my having dealt with some aspect of the dispute between the same parties, where it was clear that the request was morbid and impetuous.

It is hoped that the above exposition of the law on recusal, and the few examples given, will lead to a greater understanding of why this particular case shall not be taken as having set a precedent. The phenomenon of a two-judge High Court station dealing with all manner of cases, the situation obtaining at Masvingo currently, may be around for an unforeseeable future. A matter may have several facets, such as this one, requiring judges to make interim decisions or orders, before the main dispute is adjudicated upon. Therefore, every case will naturally have to be dealt with on its own merits.

The matter was removed from the roll, by consent, pending administrative arrangements by the Registrar, in consultation with the parties, to have the record transferred, or to have the matter re-set down.

Case 1..., is a chamber application for directions in terms of Rule 15(9) of the Supreme Court of Zimbabwe Rules. That rule reads:

“The preparation of a record under the provisions of Rules 22 and 34 shall be subject to the supervision of a Registrar of the High Court. The parties may submit any matter in dispute arising from the preparation of such record to a judge of the High Court who shall give such directions thereon as justice may require.”

Case 2 is an application for my recusal from Case 1 on the ground that I will not determine Case 1 impartially, allegedly because I have displayed bias towards the applicant, the respondent in Case 2 (hereafter referred to as “Mangenje”)….,.

(a) Background Facts

Mangenje was the successful party in the two cases under HC601/11 and HC9527/11 that I heard together in September 2013. To avoid confusion I shall henceforth refer to the two cases aforesaid as “the two main cases”, or simply, the “main cases”. Following my judgment on 30 October 2013 in the main cases, the two respondents in Case 1, the applicants in Case 2 (hereafter referred to as “TBIC Investments” and “Chidawanyika” respectively), appealed to the Supreme Court. A dispute arose between the parties as to whether the Registrar of this Court should include or exclude from the record of appeal certain two documents. The first of those documents was an interlocutory chamber application that TBIC Investments had allegedly filed in or about May 2012 (hereafter referred to as “the interlocutory chamber application”). That was about one year and some two or three months before I heard the main cases. The interlocutory chamber application sought an order that a certain supplementary affidavit that Mangenje had filed in one of the two main cases be expunged from the record. The second of those documents about which the parties are at loggerheads was a supplementary affidavit by TBIC Investments (hereafter referred to as “the supplementary affidavit by TBIC Investments”). It was allegedly filed in June 2013, allegedly in response to a certain affidavit that had been filed by the Registrar of Deeds in one of the two main cases. It is alleged that the Assistant Registrar of this Court responsible for the preparation of the records of appeal had in his first draft included the supplementary affidavit by TBIC Investments. He had then invited the parties' legal practitioners to come and inspect the draft record in terms of subrule (8a) of Rule 15 aforesaid.

It is alleged that Mangenje's attorney had objected to the inclusion of the supplementary affidavit by TBIC Investments. The Assistant Registrar had allegedly dropped it. The attorney for TBIC Investments and Chidawanyika had protested the exclusion of, not only the supplementary affidavit by TBIC Investments, but also the interlocutory chamber application. There was a deadlock. The Assistant Registrar referred the matter to me for directions. I called the parties for a meeting in my chambers. I wanted to understand the nature of their dispute. I saw them on 27 January 2014. In chambers, counsel for TBIC Investments and Chidawanyika, took the point that the referral of the matter to myself by the Assistant Registrar had been unprocedural, and, at any rate, premature, in that;

(i) Firstly, an application for directions in terms of Rule 15(9) of the Supreme Court Rules is made by the parties and not the Registrar; and

(ii) Secondly, that there were discussions that were underway between the parties, which, in all likelihood, would settle the issues, including that relating to the disputed documents.

Without going into details about the irregularity or otherwise of the referral of the dispute to me by the Assistant Registrar, the parties, with my guidance, agreed on a certain course of action which, it was felt, would expedite the matter. I proceeded to endorse it on the result sheet. It was as follows:

1. That counsel for TBIC Investments and Chidawanyika would submit certain documents to the Assistant Registrar by not later than close of business on Friday, 31 January 2014;

2 That thereafter the parties would meet before the Assistant Registrar to discuss and resolve any outstanding issues;

3. That if any issues remained unresolved then the matter would be referred to a judge for directions;

4. That the application for directions, if made, should be by the parties or one of them, via the Assistant Registrar.

I have gathered from the papers that the parties resolved some of the outstanding issues but remained deadlocked on the two documents aforesaid.

On 17 April 2014, Mangenje filed Case 1. It had no draft order. The matter was placed before BERE J. The Honourable Judge directed that a draft order be filed. Meanwhile, Mr Gama had taken formal objection, both by letter, and through the opposing affidavits by his clients, that in the absence of a draft order, Case 1 was defective and should therefore not be considered. But, apparently in response to the direction by BERE J, Mangenje's attorney had proceeded to file a draft order. Both parties filed supplementary affidavits, heads of argument and supplementary heads of argument. However, BERE J did not determine the matter. He felt I was best suited to deal with it owing to my prior involvement and therefore intimate knowledge of it.

It made sense. I obliged.

But, on perusal of the record I was distracted by the coarseness of the language in the papers filed of record. On 25 July 2014 I issued a complaint and an interim directive to the parties' attorneys in the following terms:

“4. I have looked at the matter briefly. I am disturbed by the tone of the documents placed before me. They are intemperate. They are scurrilous. They are full of buffoonery. They display a disturbing mutual lack of respect for, and courtesy to, the respective legal practitioners and the court. They distract attention from the main issue.

5. Both sets of affidavits, from the applicant and the respondents, are essentially hearsay. Legal practitioners have used their clients to take indecent digs at each other. Very little of the 'facts' purportedly ascribed to the clients is within their personal knowledge, information or belief. The central issue is in respect of procedural matters over which clients have little or no knowledge of.

6. I will not determine the matter in its present state. But I realize that it has been outstanding for far too long.

7. In the circumstances, I hereby direct, in the interim, that the parties should file supplementary affidavits deposed to either by their legal practitioners or their counsel who appeared before me when I heard the main matter in 2013. I recall that Advocates D. O'Chieng (sic) and R. Goba appeared. The supplementary affidavits should deal with what transpired in court on the day of the hearing concerning the production and/or admissibility of the disputed documents.

8. There are allegations and counter-allegations that the disputed documents had been or had not been part of the records that I dealt with at the time. There are allegations and counter-allegations that there was an application, on the day of the hearing, to admit one or other of the documents. There are allegations and counter-allegations that I admitted one or other of them. The supplementary affidavits should deal with all these aspects.

9. I also require an affidavit from the Registrar or his Assistant. It must deal with what documents comprised the two records when they were placed before me at the time. Among other things, the Consolidated Indices to those two records should be informative.”

I then went on to give deadlines for the filing of the further affidavits. The parties complied.

In addition to a supplementary affidavit by himself, on 6 August 2014, counsel for TBIC Investments and Chidawanyika wrote to proffer some form of apology for the coarse language but also directed attention to an earlier letter of his dated 18 July 2014. That letter had not been brought to my attention. I called for it. In it counsel for TBIC Investments and Chidawanyika had sought my recusal from Case 1 on the ground that since I had determined the main matters justice demanded that another judge should handle the application.

I refused to recuse myself on the ground that no cogent reason had been advanced.

Counsel for TBIC Investments and Chidawanyika wrote back on 3 September 2014 to say he would now make a formal application for my recusal. He filed it two weeks later.

Naturally, I have to determine Case 2 first. If I find that I have to recuse myself then Case 1 will have to be referred to another judge. But, if I refuse to recuse myself I will proceed to determine it.

(b) CASE2: APPLICATION FOR RECUSAL

(i) Summary of the law on recusal

In the context of judicial proceedings, recusal is the stepping aside, or disqualification, of a judicial officer from a case on the ground of personal interest in the matter, bias, prejudice, or conflict of interest. Recusal is a rule of natural justice; see Council of Review, South African Defence Force & Ors v Monning & Ors 1992 (3) 482 (A)..., and President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors 1999 (4) SA 147...,.

No man should be judge over his own cause, or nemo judex in sua causa.

In Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1) ZLR 226 (H), HLATSHWAYO J..., put it as follows...,.:

“Where a judicial officer has such an interest, be it financial, personal or whatever else, in the outcome of a case before him, or has conducted himself in such a way, that he could be regarded as having become, directly or indirectly, a party to the proceedings, the maxim, nemo judex in sua causa (no one shall be judge in his own cause) requires that he should recuse himself. He is automatically barred by operation of the law. But even where the judge is not automatically disqualified, he must still recuse himself upon application by a reasonable litigant who reasonably apprehends a possibility of bias on the part of the judge.”

See also S v Mutizwa 2006 (1) ZLR 78 (H) and Mahlangu v Dowa & Ors 2011 (1) ZLR 47 (H).

I highlight certain aspects of the rule on recusal. When you are a judge or judicial officer, and your recusal from a case is sought, only you can decide that application in the first instance. If you refuse recusal and that decision is wrong, it can always be corrected on appeal; President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors 1999 (4) SA 147...,. In essence, therefore, and contrary to the general rule, you become judge over your own cause. It seems an inevitable exception to the general rule. There are a number of reasons for that;

(a) Judges have a duty to sit and decide cases before them and in which they are not disqualified. They should not too readily accede to suggestions of bias or other interest in the matter. It was put this way by the High Court of Australia in Re JRL: Ex parte CJL (1986) 161 CLR 342 (HCA)...,, a case quoted with approval by the Constitutional Court of South Africa in President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors 1999 (4) SA 147...,,and by HLATSHWAYO J in Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1) ZLR 226 (H)....,.:

“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearances 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.”

(b) By reason of their training, experience, conscience and intellectual discipline, it must be assumed that judges are able to administer justice without fear or favour, and capable of judging a particular controversy fairly on the basis of its own circumstances. It must be assumed that they are able to disabuse their minds of any irrelevant personal beliefs and pre-dispositions; President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors 1999 (4) SA 147...,.; also Mahlangu v Dowa & Ors 2011 (1) ZLR 47 (H)...,; and United States v Morgan 313 US 409 (1941)..., (quoted at p172G – H in President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors 1999 (4) SA 147).

Furthermore, on being appointed, every judge takes and subscribes to the judicial oath “..., to do right to all manner of people after the laws and usages of Zimbabwe, without fear or favour, affection or ill-will.” See Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1) ZLR 226 (H)...,.

There is a presumption that judges will carry out their oath of office, and that is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high; R v S (RD) (1997) 118 CCC (3d) 353 (quoted at p172E–F in President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors 1999 (4) SA 147).

(c) It is in the general interest of the judiciary and the public for an individual judicial officer to recuse himself where a litigant perceives a reasonable apprehension of bias. The judicial officer should not unduly take a recusal application as a personal affront. It is one of the fundamental human rights and freedoms enshrined in our Constitution. Section 69(2) of the Constitution says that in the determination of civil rights and obligations, every person has a right to a fair, speedy and public hearing within a reasonable time before an independent and impartial court, tribunal or other forum established by law.

However, while the judicial officer considering the alleged bias must be reasonable, the perception or apprehension of bias must itself be reasonable also. So, in my view, an apprehension of bias that is whimsical or morbid cannot be a ground for seeking recusal.

In S v Collier 1995 (2) SACR 648 (C), an application for the recusal of a magistrate on the ground that he was white was refused.

In S v Mutizwa 2006 (1) ZLR 78 (H), recusal sought on the basis that the presiding magistrate had a reputation for imposing stiff sentences was refused.

In Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1) ZLR 226 (H), an application for recusal by one set of shareholders in a newspaper printing and publishing company on the ground that the presiding judge had been a former temporary editor and columnist, allegedly of a rival newspaper or competitor, was refused on the basis that the applicant had not established any link between the judge and the other party in the main application who also happened to be a co-shareholder in the newspaper printing and publishing company.

Finally, in President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors 1999 (4) SA 147, recusal based on alleged professional and/or political and/or family ties between most of the justices of the Constitutional Court of South Africa and the appellant, who happened to be the then sitting president of the country, was refused.

(d) In all cases of automatic disqualification or of reasonable apprehension of bias, there must be a link, direct or indirect, between the judicial officer and one of the parties to the litigation; Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1) ZLR 226 (H)...,.

In Mahlangu v Dowa & Ors 2011 (1) ZLR 47 (H), the judge's recusal was sought on the basis that she was married to a member of the police force. The alleged link was that the respondents were also members of the police force. The judge's husband had little or no day to to day dealings with the respondents who were either his superiors or subordinates. Recusal was refused.

(ii) Applicants' case for recusal

The initial ground for recusal proffered by counsel for TBIC Investments and Chidawanyika, in his first letter on the point, was that since I had determined the two main cases, justice demanded that another judge determine Case1, i.e. whether or not the disputed documents should be part of the record of appeal.

That was hardly saying I was or would be biased. That was no ground for seeking recusal.

In fairness to him, counsel for TBIC Investments and Chidawanyika, in his letter, requested that I grant him and counsel for Mangenje audience in my chambers so that he could provide further information.

That is the correct approach.

Before an application for recusal is made, the judicial officer should be informed of the fact and the grounds of the application to avoid embarrassment and to give him the time and opportunity to give his side of the story and for facts to be verified before the formal application is made; Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1) ZLR 226 (H).

In President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors 1999 (4) SA 147, the Constitutional Court of South Africa put it as follows...,.:

“The usual procedure in applications for recusal is that counsel for the applicant seeks a meeting, in Chambers, with the Judge or Judges in the presence of her or his opponent. The grounds of recusal are put to the Judge who would be given an opportunity, if sought, to respond to them. In the event of recusal being refused by the Judge the applicant would, if so advised, move the application in open Court.”

In casu, counsel for TBIC Investments and Chidawanyika, having made the formal application for my recusal from Case 1; what are his grounds?

Basically, it is that I have already pre-judged the matter. It is said it is inconceivable that in Case 1 I will find that the supplementary affidavit by TBIC Investments was part of the record when I determined the two main cases; or that it was before me; or that an application for that affidavit had been made and turned down with no reasons being proffered.

And what is counsel for TBIC Investments and Chidawanyika's evidence for saying this? Or, if it is his clients' apprehension that I will be biased, is it a reasonable apprehension?

A representative of TBIC Investments, one Killian Kapaso (hereafter referred to as “Kapaso”) was made to sign an affidavit. Paragraphs 8 and 9 of my 25 July 2014 interim directive were duplicated in toto. It will be remembered that this was the directive in which I had, inter alia, condemned the injudicious language of the parties in the papers filed of record and had pointed out, inter alia, that there had been allegations and counter-allegations that an application had been made and had been refused to admit one or other of the documents. Having condemned the respective parties' affidavits as hearsay evidence I had then called for supplementary affidavits by the parties' legal practitioners or their counsel together with that of the Assistant Registrar to testify on what exactly had transpired in court and what the consolidated indices to those records showed in respect of the documents that comprised the records of the two main cases.

Counsel for TBIC Investments and Chidawanyika complains I should not have called for the supplementary affidavits.

First, through Killian Kapaso, he elevates Mangenje to a “..., highly educated man” and then says Mangenje was in court on the day that I heard the two matters. It is argued that it was not hearsay what Mangenje had said in his affidavit. It is alleged that Mangenje had said in his affidavit that counsel for TBIC Investments and Chidawanyika had applied for the admission of the supplementary affidavit by TBIC Investments but that I had turned down that application. Yet, counsel for TBIC Investments and Chidawanyika then argues, at the start of the hearing I had accepted a supplementary affidavit by the Registrar of Deeds. Therefore, I was being selective because what was good for the one should have been good for the other.

It is also argued that in the meeting in my chambers on 27 January 2014, when I had enquired whether counsel had in fact made the application to admit the supplementary affidavit by TBIC Investments, both counsel for TBIC Investments and Chidawanyika and Mangenje had said yes. Therefore, counsel for TBIC Investments and Chidawanyika argues, in the face of Mangenje himself and his own attorney both saying that such an application had been made, what then was the purpose of me calling for further supplementary affidavits if not to seek support for a pre-conceived notion that would commend itself to me? What was the purpose of asking the Assistant Registrar to refer to the consolidated indices to the two main cases if not to suggest that the affidavit by TBIC Investments had not been part of the record? That conduct, by myself, it is argued, leads a lay litigant to reasonably arrive at the conclusion that I have already taken the position that the affidavit by TBIC Investment was not before me when I heard the two main cases on 19 September 2013.

That, in a nutshell, is counsel for TBIC Investments and Chidawanyika's case for my recusal.

(iii) Analysis of the Applicants' case for recusal

In President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors 1999 (4) SA 147, the Constitutional Court of South Africa acknowledged that a litigant and his counsel who find it necessary to apply for the recusal of a judicial officer has an unenviable task and that the propriety of their motives should not lightly be questioned.

In Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1) ZLR 226 (H), HLATSHWAYO J said...,.;

“The learned author, E A L LEWIS, Legal Ethics, put the matter as follows:

'Though the attorney must attend to his client's reasonable belief that the Bench is not impartial, if he does not share that belief he should seek to persuade the client to his own way of thinking; but, while thus again emphasising the need for the utmost extreme caution, the writer would add that if duty to his client demands it, he must launch the application courageously and without fear of personal consequences. If the thing must be done, it must be done without timidity. Should the attorney have a scintilla of doubt whether his application be contempt he should seek the assistance of experienced counsel - not necessarily at his client's expense.'”

I agree.

I do not lightly question counsel for TBIC Investments and Chidawanyika's motive for seeking my recusal from Case 1. But, by calling for supplementary affidavits I had hoped to communicate to the attorneys - and I did spell it out - that they should not have got their clients to say things that could not possibly have been within their personal knowledge or information. For example, the affidavits by the clients were referring to correspondence and communication between their respective attorneys as if they themselves had written or received them. They were referring to communication from, or invitations by, or interactions with, the Assistant Registrar as if they themselves had been directly involved. They were referring to an inspection of the record of appeal and to the raising of certain objections. In Mangenje's case, the record was eventually endorsed after the Assistant Registrar had dropped the disputed documents. In Killian Kapaso's case, the record would not be endorsed until the documents were restored. It was as if the parties themselves, not their attorneys, had been directly involved. The parties were referring to what oral application had, or had not, been made in court as I heard the two main cases. They were referring to what exchanges I had had with counsel over the two disputed documents as if they themselves had appeared in person. So I called for affidavits by the persons that had been directly involved. I would not be asked to determine a matter on the allegations of persons that had been seated at the back benches.

Adv. Ochieng, Mangenje's counsel, did file a supplementary affidavit following my interim directive. Curiously, none by Adv. Goba was filed.

I had hoped that my enquiry to the attorneys during the meeting in my chambers in January 2014 whether such an application to admit the supplementary affidavit by TBIC Investments had indeed been made and my subsequent directive for supplementary affidavits, to include specific reference to the indices, would spur the parties to reflect closely and present accurate information.

The application for my recusal is predicated on a serious falsehood on a crucial aspect of Case 1. Whether counsel for Mangenje and/or his client thought that Adv. Goba did apply to have the supplementary affidavit by TBIC Investments admitted during the hearing of the two main cases, and whether counsel for TBIC Investments and Chidawanyika and his clients believe that to be the case, does not in the least alter the fact no such thing happened. There was no such application. I was actually surprised when it was brought to my attention that it was being said that I had refused an application for the admission of that affidavit. It was unbelievable to find the following in counsel for TBIC Investments and Chidawanyika's own supplementary affidavit:

“22. With the greatest respect, I was unable to understand why Advocate Goba was not given a chance to prove that the affidavit had been served.

23. I was in attendance together with a Director and the Managing Director of TBIC.

24. To tell the truth, I did not see his Lordship making any effort to locate TBIC's affidavit in the record, neither did the court ask Advocate Goba to furnish it with a copy of the affidavit.”

With respect, to apply for, and to refer to, are not the same thing.

With respect to counsel for TBIC Investments and Chidawanyika, Adv. Goba made no application to admit any document. He meant to refer to some affidavit. Adv. Ochieng sprang up and objected. He said the document that Adv. Goba meant to refer to had not been served on Mangenje. On my part, in spite of their volumes, I had painstakingly gone through the two records in the two main cases in preparation for the hearing, not once, but for each time that the matters had been set down. There had been two abortive sittings before, if I recall properly. None of the two disputed documents had been in either of the records. If they had been filed months in advance of the hearing, as alleged, still they had not been made part of the records that I dealt with. It was only after the dispute on those documents was referred to me that I saw them for the first time.

What transpired on the date of the hearing was this.

Counsel for the Registrar of Deeds..., applied, right at the outset, to have the supplementary affidavit by his client formally admitted. It had been part of the record. There had been filed together with that affidavit a formal written notice that such an application would be made at the hearing. There had been no objection to counsel for the Registrar of Deeds application. I admitted the affidavit by consent. Adv. Ochieng then moved for the applicant's case. When his turn came, Adv. Goba moved for the case of those of the respondents whom he represented. Sometime during his submissions he referred to some affidavit. Adv. Ochieng objected. I enquired as to where that affidavit was. Adv. Goba said it had been filed some time before the hearing. He was waiving some document as he spoke. I said there was no such document on file and that he could not refer to it if it was not part of the record. There was no further ado. Adv. Goba simply moved on to the next point. None of the parties, let alone the court, referred to this afterwards. Adv. Ochieng's description of the incident, in his supplementary affidavit, portrays the position more accurately. He wrote:

“8. I recall that during the course of the hearing, my friend GOBA advanced a submission in support of which he referred to the contents of an affidavit. I cannot remember what the submission was, only that I found it difficult to follow because I could not remember reading the averments that he mentioned. I then quickly looked through the record and could not find the affidavit. Thinking that I might have overlooked it somehow, and believing that he likely had a better knowledge of the record than I, I turned to my instructing attorney, Mr Makonyere, to confirm the position.

9. Mr Makonyere was sitting behind me in the very first row of the gallery. I do not expect that I actually spoke to him, but would have simply shrugged quizzically. He would likely have shrugged back or shaken his head to indicate that he knew no more than I. I then rose to object, saying that my learned friend was referring to material that I could not locate in the record and should not be permitted to do so.

10. His Lordship seemed to share my own recollection of the record, as he said words to the effect;

“Yes, I was about to query that too. Mr Goba, where in the record is this affidavit?”

I[n] reply, Mr Goba only described it by reference to its date and the name of the deponent and was unable to direct his Lordship to the relevant page in the record. His Lordship then invited me to develop my objection, and I said that I could take it little further than to repeat that the affidavit to which my friend referred formed no part of the record with which I was briefed and not unless it was in his Lordship's record should he be permitted to proceed.

11. Unable to find the affidavit in the record, his Lordship upheld the objection. My learned friend did not persist in or even complete the submission that he had begun, and he then continued with his address without further reference to the affidavit.”

The test for apprehension of bias is an objective one. The onus of establishing it rests on the applicant.

In the present case, the apprehension or perception of bias is predicated on false facts. The apprehension of the reasonable person has to be assessed in the light of the true facts. See President of the Republic of South Africa v South African Rugby Union 1999 (4) SA 147. Incorrect facts which an applicant takes into account have to be ignored.

In determining the possibility of bias, there is no difference between whether one does so from the point of view of the court seized of the challenge or from the point of view of the reasonable litigant. It was said by LORD GOFF, in Appel v Leo 1947 (4) SA 766 (W)..., a passage quoted with approval in Leopard Rock Hotel Co (Pvt) Ltd & Anor v Walenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S)..., that:

“Since, however, the court investigates the actual circumstances, knowledge of such circumstances as are found by the court must be imputed to the reasonable man; and, in the result, it is difficult to see what difference there is between the impression derived by a reasonable man to whom such knowledge has been imputed and the impression derived by the court, here personifying the reasonable man.”

No link, direct, or indirect, has been shown between Mangenje and myself. The nearest that has been inferred or insinuated is that I have been selective in my treatment of the litigants. As I have shown, this apprehension is based on untrue facts. Therefore it is unreasonable. In the circumstances, there is no basis for seeking my recusal in Case 1. The application in HC8211/14, Case 2 above, is hereby dismissed with costs….,.

(i)…,.

(ii) Case 2: HC8211/2014

The application for my recusal from Case1 (HC3244/2014) is hereby dismissed with costs.

This is an action instituted by the plaintiff claiming the following relief which is set out in the summons:

“1. An order declaring that:

(i) The purported sale between first and second defendants for the sale of 100% shareholding in second plaintiff, on or about 12th February 2009, and all actions flowing therefrom, including but not limited to the removal of directors and appointment of new directors; and

(ii) The sale and transfer of Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, commonly known as 3 Justice McNally Close, Mount Pleasant, Harare to 5th defendant represented by 4th defendant, are null and void;

(b) The minor children, Panashe Ralph Rushesha and Tivonge Sacha Rushesha, remain the sole shareholders in 2nd plaintiff; and

(c) The directors of 2nd plaintiff, as at 12 February 2009, remain directors unless lawfully removed or through resignation (sic).

2. An order that:

2.1 4th defendant, or, failing it, the Deputy Sheriff, takes all necessary steps to transfer Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, commonly known as 3 Justice McNally Close, Mount Pleasant, Harare, back into the name of the 2nd plaintiff;

2.2 4th defendant and all those claiming occupation through it vacate 3 Justice McNally Close, Mount Pleasant, Harare within fourteen (14) days from the date of judgment; and

2.3 2nd to 5th defendants, jointly and severally, the one paying the others to be absolved: pay for an assessment and report, within fourteen (14) days of such report, by an independent property expert appointed by the High Court, of 3 Justice McNally Close, Mount Pleasant, Harare of any structural changes or damage, other than fair wear and tear, caused to 3 Justice McNally Close, Mount Pleasant, Harare since 12th February 2009 and the costs of repairs or reconstruction; and

(ii) Pay 2nd plaintiff the amount recommended within thirty days of such assessment.

3. An order barring 6th defendant from transferring the property referred to in 6 (sic) above to any third party until transfer to 2nd plaintiff is concluded.

4. In any event, costs of suit on an attorney and client scale to be paid by 1st to 5th defendants, the one paying the others to be absolved.”

At the commencement of the trial, counsel for the fourth and fifth defendants moved an application for my recusation from presiding over the case.

Having heard argument, I dismissed the application with costs and gave brief reasons. I did indicate that my reasons would be contained in the judgment.

These are they.

The grounds of the application were contained in a letter dated 30 July 2012 addressed to “The Office of the Honourable Justice Zhou” and marked to the attention of “(the) Clerk to Justice Zhou”. The full text of the letter is as follows:

“RE: WEBSTER TONGOONA RUSHESHA & ANOTHER v ALEXIOUS MASHINGAIDZE DERA & 5 OTHERS CASE NO. HC6829/10

1. We refer to the above matter and confirm that we act for the 4th and 5th Defendants.

2. We have noticed that before his elevation to the bench, his Lordship acted against our clients, the 5th Respondent, in the matter of Thirdline Trading (Private) Limited and Onclass Investments v Boka Investments (Private) Limited and Tobacco Industry Marketing Board case number HC7324/10. In that case, his Lordship, in his capacity as the erstwhile legal representative of Third Line Trading and Onclass Investments, expressed a severe opinion on the manner in which our client conducts its business during the course of his argument.

3. Our clients are weary (sic) that his Lordship may still hold such opinion about them and we request that his Lordship recuses himself in the matter at hand and the matter be set (sic) for trial before another Judge.

4. Kindly place the matter before the Honourable Judge for consideration.”

For the record, I do not have a recollection of the case referred to in the letter quoted above or the facts thereof.

Where a judge or any other judicial officer is disqualified from hearing a case, a party to that case is entitled to apply for the recusation of the judge or judicial officer concerned. Such an application, which, in our law, is known by the Latin term as an exceptio recusationis must be founded upon reasonable cause, justa causa recusationis, which the applicant must prove. Trivial grounds cannot found a recusation: see President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 (CC)…,.; S v Radebe 1973 (1) SA 796 (A)…,.

The grounds upon which the recusation of a judge may be sought include the following:

(i) Interest in the cause, whether that interest is direct or indirect;

(ii) Close relationship or friendship to one of the parties;

(iii) Where the case involves a colleague attached to the same Bench;

(iv) Enmity or hostility towards a party;

(v) Prior professional interest of the judge;

(vi) Expression of opinions indicative of bias.

See ERASMUS 'Superior Court Practice'…,.

In the instant case, recusal was sought on the basis of an alleged opinion expressed in a matter in which the fourth respondent was a party and represented the other parties therein as an advocate then. The so-called opinion could only have been a submission made in Court based on the facts before it, as counsel is expected to make submissions and not expressions of opinion.

The content of the submission was not disclosed.

Even after being challenged by counsel for the plaintiff to state its content, counsel for the fourth and fifth defendants could only say that the “opinion” was expressed in an urgent chamber application which was being argued before UCHENA J.

The relevance of that opinion to the instant matter was neither alleged nor disclosed.

The opinion was not made in connection with the instant matter.

Above all, it was not made by me as a judge; but, even if that were the case, the law is clear, that, it is no ground for recusation that a judicial officer expressed an opinion at a previous stage in another case.

In the case of R v Heilbron 1922 TPD 99…, the court said:

“It would be perfectly impossible to conduct the administration of justice in the proper way if judges and magistrates were to be recused because, at some prior time, they had expressed unfavourable opinions as regards persons who subsequently come before them; that cannot be a ground of recusation, and, in my belief, it is not one of the proper grounds on which a person should be recused.”

The law recognises, that, sometimes, lay persons do entertain the mere possibility of bias on the part of a judicial officer. But, that is insufficient to ground an application for recusation in the absence of an extrajudicial expression of opinion in relation to the case or in the absence of the other recognised grounds: see R v T 1953 (2) SA 479 (A)…,.

I am therefore satisfied that the application was without merit.

Counsel for the plaintiffs submitted, that, the Court should order counsel for the fourth and fifth defendants to pay the costs of the application for recusation de bonis propriis, on the ground that the application scandalised the Court.

The application was indubitably vexatious, and, in the ordinary course, would have readily attracted a punitive order of costs. However, an application for recusation necessarily places a legal practitioner who is making it in an unenviable position, and, in my view, should not be looked at as any other application.

A bona fide application for recusation, presented in proper language, should not readily trigger an enquiry into the motives or propriety of the legal practitioner's conduct. Authorities show that a Court should not exhibit unnecessary sensitivity in dealing with an application for recusal: see ERASMUS 'Superior Court Practice'…,.

In the instant case, the application was misconceived as it was not based on any facts which were presented to the Court other than a mere reference to an opinion: but, it was made respectfully without scandalising the Court.

I am accordingly persuaded that the lawyer should not be penalised for making the application.

On the test for recusal, counsel for the applicant relied on Mcmillan & Ors v Provincial Magistrate, Harare & Ors 2004 (1) ZLR 17 H; Goy and Masimba v R & Jackison WO 1963 R & N 318 (FS)….,.

The other point advanced by the applicant, in support of his request, is the issue of recusal of all sitting judges of the High Court - including myself….,.

I must start by saying that this is an unprecedented omnibus application for the recusal of all currently sitting judges of the High Court because questions of impartiality of the judges have been raised. Initially, the applicant's intention was to seek my recusal. On the advice of his counsel, who, “for personal reasons,” was not prepared to make the submissions which would have to be made in the application, he chose to make the current application for referral. I would want to make the same observation that was made in President of the Republic of South Africa & Ors v South Africa Rugby Football Union and Ors 1999 (4) SA 147 (CC)…, wherein the court remarked thus, citing with approval Moch v Nedtravel (Pty) Ltd t/a American Express Travel Services 1996 (3) SA 1 A…,.:

“Where the grounds are reasonable it is counsel's duty to advance the grounds without fear. On the part of the judge whose recusal is sought there should be a full appreciation of the admonition that she or he should 'not be unduly sensitive and ought not to regard an application for his [or her] recusal as a personal affront.'”

I associate myself fully with the above remarks. A legal practitioner should not be constrained to advance sound grounds for recusal. As judges, we are obliged to discharge our duties impartially and would not hold it against a legal practitioner who would be representing a litigant who would have sound grounds for one's recusal.

The Law on Recusal

I will start by examining the South African position as it pertains there. In particular, President of the Republic of South Africa & Ors v South African Republic Rugby Football Union & Ors 1999 (4) SA 147 (CC).

It is on all fours with the present matter.

In that case, which was an appeal from a decision of the High Court, the fourth respondent lodged an application for recusal in which he stated that he had “a reasonable apprehension” that every member of the Constitutional Court would be biased against him and that, as a result, he might not get a fair trial. The fourth respondent later limited his application to five members of the Constitutional Court. The basis for his application was that the five Constitutional Court judges had political affiliations as well as personal relationships and social contacts with President Mandela who had appointed them to their positions on the bench.

The test for bias was laid down in paragraph 38 which would be whether there is a reasonable apprehension of bias. The court went on to find that two considerations were to be built into the test itself and these are:

(1) The character of the judicial officer i.e the test for the reasonable apprehension of bias by a litigant would take into account the presumption in favour of a judge's impartiality.

(2) The character of bias - i.e that no person, judges included, is free of personal convictions and philosophies which help shape their outlook on life. These convictions would have to be curtailed by the need for impartiality on the part of the judge.

After reviewing a number of authorities…, the court determined the test for judicial bias as follows:

“It follows from the foregoing that the correct approach to this application for the recusal of members of this court is objective and the onus of establishing it rests upon the applicant. 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 dis-abuse 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 a litigant, for apprehending that the judicial officer, for whatever reasons, was not, or will not, be impartial.”

The position in our law is settled that the test for bias is an objective one. See MacMillan & Ors v Provincial Magistrate, Harare and Others 2004 (1) ZLR where the court quoted with approval the following passage in S v Roberts 1994 (4) SA 915 (SCA);

“Bias, in the sense of judicial bias, has been said to mean 'a departure from the standard of even-handed justice which the law requires from those who occupy judicial office.'

…,. What the law requires is not only that a judicial officer must conduct the trial open-mindedly, impartially and fairly but that such conduct must be manifest to all those who are concerned in the trial and its outcome, especially the accused…,.

Apart from that, it is subject to the common law bias test.

It is settled law that not only actual bias but also the appearance of bias disqualifies a judicial officer from presiding (or continuing to preside) over judicial proceedings. The disqualification is so complete that continuing to preside after recusal should have occurred renders the further 'proceedings' a nullity…,.”

The same point was made in Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1) ZLR 226 (H)…, where it was stated;

“In our jurisdiction, the test for bias was stated in Leopard Rock Hotel Co (Pvt) Ltd & Anor v Wallem Construction (Pvt) Ltd (supra) at 278A as an objective one, i.e. whether 'there exist circumstances which may engender a belief in the mind of a reasonable litigant that in the arbitral proceedings he would be at a disadvantage.'”

It was further stated at 239E:

“Thus, the test contains a two–fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable.”

The last point was restated and explained further by UCHENA J…, in Matapo & Ors v Bhila & Anor 2010 (1) ZLR 321 H with particular reference to the headnote…, wherein it is written:

“…, that an application for recusal must be based on a reasonable litigant's apprehension of bias and the apprehension must itself be reasonable. Mere apprehensiveness on the part of a litigant that a judge will be biased – even a strongly and honestly held anxiety – is not enough. The court must scrutinize the apprehension to determine whether it is to be regarded as reasonable. In adjusting this court superimposes a normative assessment on the litigant's anxieties. It attributes to the litigant's apprehension a legal value and thereby decides whether ti is such that it should be countenanced in law.”

See also JSC v Ndlovu & Ors HB172-13 and Mangenje v TB TC Investments (Pvt) Ltd & Anor HH150-14.

The applicant in casu is not relying on the presence of actual bias but rather on the appearance of bias given the circumstances, as he outlined, including the fact that the judges will have to make findings regarding the conduct of the Head of the Judiciary….,.

The question to ask is whether the applicant has established reasonable apprehension of bias and whether the apprehension itself is reasonable.

The applicant's apprehension is that all sitting judges of the High Court, who are subordinates to the Head of the Judiciary, will not be able to criticize or uphold the conduct of their head. The independence of a judge is particularly protected in terms of the Constitution. Section 164(1) of the Constitution provides:

“The courts are independent and are subject only to this Constitution and the law which they must apply impartially, expeditiously act without fear, favour or prejudice.”

The Constitution also provides principles guiding the judiciary in the exercise of their judicial authority. Of note is section 165(2) and (3) which read:

“(2) Members of the Judiciary, individually and collectively, must respect and honour their judicial office as a public trust and must strive to enhance their independence in order to maintain public confidence in the judicial system.

(3) When making a judicial decision, a member of the judiciary must make it freely and without interference or undue influence.”

Over and above that, 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 dis-abuse their minds of any irrelevant personal beliefs or predispositions. See President of the Republic of South Africa & Ors v South African Republic Rugby Football Union & Ors 1999 (4) SA 147 (CC).

Further to the above, judges “are assumed to be people of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of the circumstance.” See United States v Morgan 1941 USSC 123, quoted in R v S (RD) 1997 118 CCC; quoted with approval in President of the Republic of South Africa & Ors v South African Republic Rugby Football Union & Ors 1999 (4) SA 147 (CC)….,.

When asked why he sought referral to the Constitutional Court, which is also manned by subordinates of the Chief Justice, counsel for the applicant responded that it was a better of the two evils and did not expand on that. He further submitted the Constitutional Court will not be looking at its recusal but of that of the High Court. It appeared he had no cogent reason to proffer….,.

The applicant has failed to establish reasonable apprehension of bias.

The appellant makes even more serious allegations that the respondent's Group Human Resources director and others were busy issuing food hampers to labour officers, arbitrators and registrars of labour courts, including Mr Muna, on or about the time that he was allegedly misled into filing a review instead of an appeal.

In his answering affidavit, in the application for leave to appeal to this Court, the appellant states:

“18. Firstly, applicant approached the Labour Court with appeal papers against the arbitrator's award, the papers were manipulated by the Assistant Registrar. Respondent used and still uses that manipulation as its chief argument. It later emerged that the same respondent, through the office of the deponent, was issuing hampers to the same Assistant Registrar and other administrative authorities.”

And in his heads of argument, the appellant focused on this issue in the following manner:

“In casu, the Respondent patronized and colluded with Court officers to mount controversy on Appellant's papers which in turn Respondent sought and still seeks to rely upon in having the matter thrown away on a legal technicality. I refer to page 54 and 55 of the appeal record SC38/14, wherein the Respondent's Group Human Resources Director and others were discussing and subsequently issuing food hampers to Labour Officers, Arbitrators and Registrars of the Labour Court to induce an obvious outcome.”

The appellant then attached copies of e-mail messages exchanged between employees of the respondent, as follows:

A. From: Innocent Magaya

Date: 20 September 2011 08:15

Lloyd Chinanhamabwe

Tabeth Melusi

Subject: RE: HAMPERS

…, got three hampers for the labour office, so who are the recipients?

B. From: Lloyd Chidanhamabwe

Date: Tuesday, September 20, 2011 8:08

Innocent Magaya

Tabeth Melusi

Subject: HAMPERS

Further to our discussion on Labour Court Registrars Hampers last week. Its just a reminder on the issue. Their names are Muna and Mutadzo….,.

C. From: Tabeth Melusi

Date: Tuesday, September 20, 2011 9:04Am

Augustine Sekayi; Lloyd Chidanhamabwe; Ngoni Gamba, Innocent Magaya, Takudzwanashe Munyanga

Subject: Bulawayo Hampers

Augustine,

May you please process the two hampers as per e-mail below for Innocent. The hampers are worth $45= each. Taku…, payment of $135= including another hamper for Arbitrator - (named) here in Harare will be delivered to your place today. Lloyd please go ahead and organize 2 hampers as per instruction.

Please note that you need to prepare 5 hampers including 4 from the previous week.

Regards.

And each of these food hampers was by no means a trifling parcel but consisted of significant grocery items as follows:5x2kg flour, 6 x 400g peanut butter, 6 x 500g mixed jam, 3 x 2 litres Mazoe Orange Crush and 1 x 5kg Roller Meal.

The appellant pointed out that his appeal at the Labour Court was heard on 19 September 2011 and judgment was reserved. The flurry of e-mails quoted above occurred the very next morning, 20 September, following the hearing, raising suspicion in his mind that the “gifts” were intended to influence the outcome of his appeal. He was unsure, however, as to when the giving out of the hampers had commenced or how widespread the practice was. There was no evidence or allegation that the presiding judge a quo or the arbitrator concerned had received any of these hampers. It appears that this alleged interference affected only that aspect of his appeal pertaining to the challenge of the arbitral award.

Counsel for the respondent did not deny that the respondent had distributed food hampers, as alleged, but simply submitted that the practice had long since ceased and should have no relevance to the current proceedings.

However, in my view, the above allegations, though untested, are of a very serious nature. The approach by the courts, in circumstances of alleged financial bias, is that the existence of the slightest financial interest in a matter by an adjudicator would nullify the proceedings. The learned author, LAWRENCE BAXTER, in his seminal work, Administrative Law, Juta & Co Ltd, 1984 explains this apparently stricter test for bias where pecuniary interest is involved as follows:

“Where pecuniary interest is alleged it is usually said that, if shown to exist, the 'smallest' or 'slightest' pecuniary interest will be sufficient to vitiate the decision. This has led many commentators to argue that the test for bias in cases of pecuniary interest, as opposed to other cases of bias, is stricter than usual. There seems to be no need to adopt such a distinction: it is perfectly consistent to interpret the cases as stipulating that the slightest pecuniary interest will give rise to an apprehension by the reasonable man of a real likelihood of bias.”

I can find no reason why this principle cannot apply to the current case - provided all the allegations are properly proved.

Had such proof been available, and the administrator shown to have had an indirect financial interest in the outcome of the matter, having been promised or received the food hamper for the purpose of subverting the appellant's case, any reasonable person, under such proven circumstances, would perceive a real likelihood of bias on his part in the carrying out of his responsibilities. However, such critical proof and linkage between the administrator's actions and the respondent's conduct remained too elusive on the record for this court to make a definitive determination.

Furthermore, the matter was not helped by the appellant's own inconsistent submissions. For example, in his heads of argument the appellant, in one paragraph, maintains that what was placed before the court below was an appeal and the court grossly erred in treating it as a review, but, in the very next paragraph claims that his papers were manipulated to turn his intended appeal into a review.

Be that as it may, the allegations and circumstances of this case are of such a serious nature that they cannot simply be glossed over. For any party to seek to influence Labour Court officials in such a blatantly vile manner to decide matters in its favour or misdirect litigants for its benefit as was allegedly done here is abhorrent in the extreme. It strikes at, suffocates and fouls the very source and wellspring of justice. Accordingly, one is left with no choice but to refer this matter to the appropriate authority, the Judicial Service Commission, to investigate and make the necessary decisions….,.

1….,.

2….,.

3….,.

4….,.

5. This judgment and the record are referred to the Judicial Service Commission for it to investigate and take appropriate action on matters raised herein.

The position is settled that not only actual bias but also the appearance of bias disqualifies a judicial officer from presiding over judicial proceedings. Actual bias, or partiality, need not be shown as long as the court is satisfied, from the conduct of the presiding officer, either by his words, his action or inaction or his handling of the proceedings that he displayed a real likelihood that he might not be able to act judicially. See MacMillan & Ors v Provincial Magistrate, Harare & Ors 2004 (1) ZLR 17 (H).

The test for bias is an objective one. It is not necessary to show personal animosity towards the employee. If a reasonable person, in their position, would have thought that he would not have a fair trial in the circumstances, that would be enough – Foya & Matimba v R. & Jackson N.O. 1963 R&N 318 (FS), 322.

In Metropolitan Properties Co. (F.G.C.), Ltd v Lannon & Others (1968) (3) All ER 304, 310A-D, LORD DENNING, with typical lucidity, stated as follows:-

“It brings home this point; in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself…,. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand…,. There must be circumstances from which a reasonable man would think it likely or probable that the justice or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did…,.”

The deceased signed and executed a Will on 14 December 1990. The Will was prepared by the first appellant who is a legal practitioner and a former friend of the deceased. In terms of the Will, the first appellant is the executor of the deceased's estate and the second appellant is the main beneficiary.

The second appellant is the wife of the deceased and the main beneficiary in terms of the Will…,.

Shortly after the signing of the Will, the second appellant left the matrimonial home and commenced divorce proceedings against the deceased. According to the pleadings in the divorce case, it was common cause that the marriage had broken down irretrievably….,.

When the second appellant left the matrimonial home she went to live at the first appellant's house and later moved to his farm just outside Bulawayo. The deceased and the first appellant were the best of friends and this development soured that friendship….,.

The first appellant…, initially agreed to withdraw as executor upon the request of the respondents. The second appellant objected and the first appellant withdrew his resignation as the executor.

On the 6^th day of February 2009, the applicant filed an urgent chamber application whose relief was couched as follows:-

“TERMS OF FINAL ORDER SOUGHT

The Provisional Order granted in this matter be and is hereby confirmed in the following terms:-

1. The Applicant be and is hereby given possession of a Nissan Maxima Motor vehicle Reg No: AAX 4540.

2. Respondent to pay costs of this suit at Attorney-Client Scale.

INTERIM RELIEF GRANTED

Pending the confirmation or discharge of this provisional order, the Applicant is granted the following interim relief:-

1. The motor vehicle Nissan Maxima Reg No: AAX 4540 be delivered to or impounded by the Deputy Sheriff, Bulawayo and taken to her offices there to be kept pending the finalization of the application for review under case No: HC121/09.

SERVICE OF ORDER

Service of this Urgent Chamber Application and Provisional Order shall be done by the Deputy Sheriff, Bulawayo upon the Respondent.”

The historical background of this matter is that the respondent was a complainant against the applicant in a criminal case, No. HC592/08, which was dealt with at Bulawayo Magistrate Court. The said proceedings are presently under review under Case No. HC121/09. He was charged with fraud and was convicted of the same. While awaiting sentence, and was in custody, he was visited by the trial magistrate (Mrs. Phathekile Msipa), prosecutor, the complainant and his wife. This visit resulted in him ceding his vehicle, a Nissan Maxima Registration number AAX 4540 to the complainant as restitution.

The proceedings at the prison and the subsequent sentence that he received prompted him to make an application for review referred to above.

While awaiting the outcome of the review, it is the applicant's position that the respondent began looking for a buyer so that when the review proceedings are finalized the vehicle in question would have been disposed of.

After perusal of this application, I ordered that the respondent be served and the matter was argued on the 5^th of March 2009.

The respondent file a notice of opposition.

His contention is that there was no urgency in this matter, and, as such, the applicant should have proceeded by an ordinary application. His reasons are that the cause of action arose on the 2^nd of December 2008 and the respondent has been in possession of the vehicle ever since. The applicant filed an application for review on 26 January 2009 and filed the urgent chamber application on 6 February 2009 which was served on him more than three months after. It is for that reason that he is of the view that there is no urgency.

The circumstances under which the applicant surrendered the motor vehicle to the respondent, while awaiting sentence, if proved to have been irregular would no doubt result in the respondent returning the car to the applicant. In my view, he is aware of that as evidenced by his frantic efforts to dispose of the motor vehicle with haste. It is for that reason that the applicant sought to prevent the disposal of the motor vehicle pending the finalization of the review application.

For that reason alone the matter became urgent and this application was therefore justified.

The respondent has argued that the applicant's surrender of his motor vehicle to him was above board as it was done freely and voluntarily. To buttress his argument, it is his submission that even the applicant's legal practitioner, Mr. Munjanja, relied on the said restitution in mitigation.

I don't see how the submission by Mr. Munjanja, that the vehicle in question is now in the hands of the complaint, can be proof of a voluntary surrender in the absence of an explanation. Mr Munjanja was merely confirming that the respondent was now in possession of the motor vehicle and not the circumstances surrounding the possession.

It is also his argument that he has already disposed of the motor vehicle to his brother who is based in the United Kingdom. He is of the view that the applicant's review application will fail as the surrender of the motor vehicle was voluntarily made.

This is yet to be proved and must be weighed against the potential prejudice to the applicant. The court cannot rely on his mere say-so.

The circumstances surrounding the “surrender” of the vehicle as compensation for the motor vehicle are, to say the least, surreptitious. In addition to this, the respondent's haste in the disposal of the vehicle is questionable. The trial magistrate's name has been mentioned and is being implicated in some wrongdoing. If her involvement in this matter is found to have been outside the call of duty, the proper administration of justice would have been seriously compromised. In order to clear herself of wrongdoing the Chief Magistrate should investigate her role in this matter without delay.

The question, therefore, is, will the applicant suffer any irreparable harm if the provisional order is not granted?

In my view, indeed, the applicant will indeed suffer such harm and no adequate remedy will be available to him. It is therefore in the interest of justice that this motor vehicle should not be disposed of at this stage.

The following order is made:-

INTERIM RELIEF GRANTED

Pending the confirmation or discharge of this provisional order, the Applicant is granted the following interim relief:-

1. The motor vehicle, Nissan Maxima Reg. No. AAX 4540, be delivered to or impounded by the Deputy Sheriff, Bulawayo and taken to her offices there to be kept pending the finalization of the application for review under Case No. HC121/09.

In an application for the recusal of a judicial officer, what must be proved is the mere possibility of bias, not actual bias. What is important when considering the circumstances of each case is the impression or perception that is created in the mind of right thinking people - not the applicant's subjective impression of bias.

The test is an objective one.

“A judicial officer should not be unduly sensitive and ought not to regard an application for his recusal as a personal affront. A judge whose recusal is sought should bear in mind that what is required, particularly in dealing with the application for recusal itself, is conspicuous impartiality. The Judge must ensure that justice is done. It is equally important that he should also ensure that justice is seen to be done. After all, it is a fundamental principle of our law and public policy. He should therefore so conduct the trial that his open mindedness, his impartiality and his fairness are manifest to all those who are concerned in the trial and its outcome.

The approach of our courts to an application for recusal has been set out in a number of cases and the principle which they seek to enshrine is that no reasonable man should, by reason of the situation or the action of a judicial officer, have grounds for suspecting that justice will not be administered in an impartial and unbiased manner. However, the mere possibility of bias apparent to a layman would not be sufficient to warrant the recusal of a judicial officer.”

The authorities which set out these cardinal principles were reviewed in the leading case on recusal of Standard Chartered Finance Zimbabwe Limited v Georgias & Anor 1998 (2) ZLR 547 (H).

It is my considered view that in an application of this nature, a presiding officer is faced with the difficult and unenviable task of being a Judge in one's own cause. It involves revisiting the record of proceedings in the trial court, and combing through it, and objectively assessing the proceedings in order to determine whether there is anything that the presiding officer said or did which can be perceived as being unjustifiably favorable to one of the parties at the expense of the other. The enforcement of the rules of procedure of the court is subject to strict guidelines which nevertheless are applied, to a certain extent, at the discretion of the presiding officer.

Judicial discretion is the power of a court to take some step, grant a remedy, or admit evidence or not as it thinks fit. Many rules of procedure and evidence are in discretionary form or provide for some element of discretion.

In this case, a determination will have to be made as to whether the decision to exclude documents that the plaintiff intended to produce in evidence before the court a quo, which documents had not been discovered in terms of the rules, and which the defendant objected to on the basis that it would be prejudiced, was motivated by bias.

The plaintiff is a self actor who brought an application for my recusal, as the presiding Judge, in a civil claim for the payment of USD$3,700= being the cost of repairs to his Toyota Sprinter motor vehicle which was negligently damaged by the first defendant on 17 December 2011. The motor vehicle was insured by the second defendant at the material time. The plaintiff also claimed payment of consequential damages in the sum of USD$9,750=99 being the cost of hiring a replacement vehicle during the period 18 December 2011 to June 2012.

Trial commenced on 6 February 2014. The defendants applied for absolution from the instance at the close of the plaintiff's case and their application was granted in a judgment dated 27 February 2014, HH92-14…,. The court found that;

“…, There is insufficient evidence before the court to support the plaintiff's averment that he hired a vehicle to use, with the first defendant's knowledge and consent. In any event, it was not up to the first defendant to consent to such an arrangement once the second defendant became seized with the matter. First defendant was insured against accident and damage. She referred the plaintiff's claim to her insurers who were processing it. No evidence was led that the plaintiff approached the second defendant and advised that if his car was not repaired immediately he would hire a vehicle to use for business and to take his children to school. No evidence was led that the second defendant authorized the plaintiff to hire a vehicle for his use whilst his damaged vehicle was being repaired. Unfortunately, no evidence was placed before the court to support the plaintiff's claim about his vehicle being valued at USD$6,300=99. Independent verification of this averment would have enabled the court to assess whether the second defendant's offer to pay the plaintiff USD$3,500= and write off the vehicle is fair and reasonable in the circumstances.

There is insufficient evidence, generally, on a balance of probabilities, to establish a prima facie case in favor of the plaintiff and against the defendants. The plaintiff failed to discharge the onus on him to prove his case. If follows that absolution from the instance is granted in favor of the two defendants. The plaintiff shall pay the defendants costs.”

The plaintiff appealed against this judgment on 18 March 2014. The grounds of appeal were that the trial court had erred and misdirected itself by disbelieving his evidence, by not accepting that the respondents had admitted that his complaints were genuine, by noting the judgment on the day of hearing before arguments, and by granting absolution from the instance.

The respondents did not appear before the Supreme Court on 6 March 2015 when an order in default of their appearance was granted in which the appeal was allowed with costs, the decision of absolution from the instance was set aside, and the matter was remitted back to the court a quo for the continuation of the trial.

During the course of prosecuting his appeal, the plaintiff had addressed a letter to the Judge President of the High Court in which he expressed dissatisfaction with the contents of the transcript of the record of proceedings before the trial court. He made allegations that the record of proceedings had been corruptly tampered with, and that it was not a true reflection of what had transpired in court. The trial Judge was asked to comment on the allegations. Part of the comments, which form part of the record, read as follows;

“Mr. Mangwiro, being a layman, was not fully conversant with the High Court Rules. The court went out of its way to explain a few basics to him such as the fact that as plaintiff he must lead evidence in chief, produce any documentary evidence and be subjected to cross examination. The record speaks for itself on what transpired during the recording of his evidence in chief. It is absurd to state that the court 'objected to the production of all evidence not discovered in terms of the rules'. It demonstrates a patent inability to comprehend basic court procedures. The defendant made an application for the exclusion of each and every document which was not formally discovered. Mr. Mangwiro was allowed to respond. The court made a ruling after hearing both parties. If the court misdirected itself in any way, it would have been up to the Supreme Court to set aside the court's finding.

I would like to respectfully point out that the merits of the appeal were not fully ventilated by the Supreme Court. A perusal of the Supreme Court order of 6 March 2015 will show that it was granted in default of appearance by the defendants. The Supreme Court did not, to my knowledge, give reasons for its default judgment.

It is therefore clear, in my view, that the allegations levelled against my person by Mr. Mangwiro are malicious and mischievous. To suggest that I could have access to recorded tapes and that I tampered with the tapes and deleted evidence and replaced it with something that did not take place in court is, again, a reflection of Mr. Mangwiro's lack of appreciation and knowledge of High Court procedures.

The Judge's assistant is the custodian of all recording equipment, including tapes, during trial. After trial, the tapes are handed over to the transcriber who prepares the record of proceedings, on request, and on payment of the requisite fee. Mr. Mangwiro is challenged to kindly produce the evidence that he has that I personally, or through an agent, caused the alleged tampering with the electronic record of proceedings. He is challenged, further, to produce what evidence he has of my alleged corrupt intentions.

This attempt to besmirch my character and tarnish my good name and that of Ms Takawadii, a senior legal practitioner, is a result of figments of Mr. Mangwiro's imagination. The allegations that he makes are baseless and without foundation, and are not buttressed by any viable evidence. The allegations are serious and calculated to throw doubt on the moral fiber of a High Court Judge.

The idea that a Judge and a senior legal practitioner could sit down and systematically tamper with evidence is ridiculous. I doubt that either Ms Takawadii or I possess the requisite technical skills required in ICT to erase and re-arrange the electronic record. When regard is had to the quantum of the plaintiff's claim, it is apparent that very little financial gain would accrue to a corrupt-minded person…,.”

Nothing further was heard from the applicant until 21 August 2015 when he again wrote to the Judge President to complain against the conduct of the High Court Registrar, in allegedly blocking him from being allocated a date for trial continuation. The applicant pointed out that justice delayed was justice denied.

The letter was referred to the trial Judge, on 9 September 2015, with a request that the applicant be assisted with early trial dates as requested.

The matter was set down for trial continuation, as directed by the Supreme Court, on 6 October 2015. On the day of the hearing, the first defendant appeared in person and advised that, due to the short notice, her legal practitioner was not in attendance. She also advised that the second defendant had been placed in liquidation and that she needed to contact the liquidator and collect the court papers in order for her to mount her defence which had been previously handled by the second defendant as her insurers. Despite vigorous opposition by the applicant, the court granted the first defendant a postponement of the matter to the following day in the interests of justice.

The following day, the application for my recusal was placed before me by the applicant.

I say application because it is in writing, but note that it is not a proper application in terms of Order 32 of the Rules of this court. There is no founding affidavit or sworn statement before the court. The basis of the “request' for recusal is that the applicant noted that the court conducted itself in a partial manner during the presentation of his case in February 2014. The applicant felt that the court could not change its mind after having found that the defendants had no case to answer. Reference was made to the response to the letter of complaint which is set out above, and the applicant averred that the court had prejudged him because he is a layman. The court was accused of being an interested party, and of “fuming” in its response to the applicant's complaint that the Judge had tampered with the electronic record of proceedings. The court was accused of having a “platform to suppress genuine complaints in your effort to revenge.” The applicant alleged that the court has “a possibility of taking a defensive stance against the allegations raised, thereby rendering impartial judgment ineffective.”

Counsel for the first defendant, in response to the 'request' that the presiding Judge recuse herself, told the court that he had no meaningful submissions to make. He was constrained by the manner and form of the application, and merely submitted that, in his view, the trial court could not be accused of exhibiting bias towards the applicant just because it found his evidence insufficient to establish his claim.

In response, the applicant submitted that the Supreme Court had made a finding that the trial court was biased. On being asked to produce the reasons for the Supreme Court order, the applicant submitted that, in allowing the appeal, the Supreme Court had agreed with all the submissions and allegations in his heads of argument.

It has been held that;

“In an application to a judge to recuse himself, the test to be applied is not easily defined. Some cases favor the view that the test is whether, as a matter of fact, there is a real possibility of bias. Others accept that it is sufficient that there is a reasonable belief that a real likelihood of bias exists. However, there is no real difference between these approaches, since, unless there is a real likelihood of bias, a reasonable or right thinking man would not believe that there was such likelihood. In deciding whether this test has been satisfied, it is necessary to look, not only at the facts known by the applicant, but at all the relevant facts.

The applicant must show a reasonable fear, based on objective grounds, that the trial will not be impartial. It should also be remembered that Judges are trained and experienced in the administration of the law. The mere possibility of bias apparent to a layman is not itself sufficient to warrant the recusal of a judicial officer. On the other hand, a Judge should not regard an application for recusal as an affront. He should bear in mind that what is required is conspicuous impartiality.” Standard Chartered Finance Zimbabwe Limited v Georgias & Anor 1998 (2) ZLR 547 (H)…, headnote.

In the case of Leopard Rock Hotel Company (Private) Limited & Anor v Walenn Construction 1994 (1) ZLR 255…, it was held…, that;

“In E R (Donoghue) v County Cork JJ [1910] 2 IR 271 at 275 LORD O'BRIEN 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 form a ground of decision.'”

And, after a careful perusal of relevant cases, concluded that "the test to be applied is the objective test; the possibility, in fact, of bias", and not actual bias.

See also Divine Homes (Private) Limited v The Sheriff & 2 Ors HH120-04 where the applicant made spurious allegations against the trial Judge and his clerk.

In the case of Maydeep Investments (Private) Limited and Merspin v Cecil Madondo & 3 Ors HB34-05, the Judge acceded to an application for his recusal because he had previously determined two separate matters between the same parties on the same issue. This is what the Judge said at pages 2-3 of the cyclostyled judgment;

“…,. An impartial judge is a fundamental pre-requisite for the fair trial, and, as such, a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigator for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial; President of the Republic of South Africa & Ors v South African Rugby Union & Ors 1999 (4) SA 147 (CC) at 171; Sager v Smith 2001 (3) SA 1004 (SCA) at 1009; S v Malindi 1990 (1) SA 629 (A); S v Radebe 1973 (1) SA 796 (A); and Sihube Bus Co (Pvt) Ltd and Anor v Golden Ndlovu & Anor HB45-04.

The fact that in reality the judge was impartial or is likely to be impartial is not the test. It is the reasonable perception of the parties as to her or his impartiality that is important. In other words, not only actual bias but also the appearance of bias disqualifies a judicial officer from presiding or continuing to preside over judicial proceedings; Council of Review SA Defence Force v Monnig 1992 (3) SA 482 (A); Silwana v Magistrate for District for Piketberg [2003] 2 ALL SA 350 (C); and S v Robert 1999 (4) SA 915 (SCA) at 923.”

See also Roy Leslie Bennet v Emmerson Dambudzo Mnangagwa (in his capacity as Speaker of the Parliament of Zimbabwe) SC75-05, where Bennett requested the recusal of the Chairperson of the Committee on the grounds that he had moved the motion for the establishment of the Committee on Privileges on this matter and therefore had an interest or was biased against him. The Committee ruled that no grounds of bias or conflict of interest had been established to warrant the Chairperson recusing himself from the proceedings.

The question for determination is whether, as a matter of fact, there is a real possibility that the Judge will be biased against the plaintiff or the applicant, in this matter, either because of the decision to absolve the defendants from the instance or because of the allegations of tampering with the electronic record of proceedings for corrupt intentions.

The test is an objective one.

Would any right thinking member of society have reason to believe that there would be a real likelihood of bias in the circumstances of this case?

We must look at all the relevant facts. A perusal of the record of proceedings will show that the trial court did not so associate itself with one of the two opposing parties such that there is a real likelihood of bias or that a reasonable person would believe that it would be biased. The impression created in the mind of the applicant, that he would not have a fair trial, appears to be subjectively based on two things;

(a) The sustaining of the objections by the defence to the admission of documents which had not been discovered in terms of the Rules, which led to the granting of absolution from the instance; and

(b) Allegations that the record of proceedings had been tampered with for corrupt purposes.

In my view, no right-thinking member of society would find that there was a real likelihood of bias against the applicant just because the defendants were absolved from the instance. Absolution from the instance is a question of law. The Supreme Court did not base its order on a finding of any misdirection on the part of the court a quo. Such a finding would have assisted us to assess whether the trial court was motivated by bias, which is defined as an unfair preference for or dislike of something; a distortion of results; or the influence of somebody or something unfairly. Sustaining an objection to the admission of documents which have not been discovered in terms of the Rules cannot be said to be an unfair preference or dislike of the applicant. The rules of evidence exist for a reason, to regulate proceedings and to avoid ambushing the other side to its prejudice. The applicant did not deserve special exemption from the rules of evidence. In fact, the court could be said to have exhibited bias towards him when it explained court procedure to him.

It has been held that the mere possibility of bias apparent to a layman is not itself sufficient to warrant the recusal of a judicial officer. However, the allegations of tampering with the record of proceedings, and of corruption, which attempt to implicate not only the trial Judge, but counsel for the defendants who conducted the defence, and the Judge's assistant at the material time, in my view, transcend the mere possibility of bias apparent to a layman.

These allegations are, by any stretch of the imagination, an 'affront' to the dignity of the court and to the character of the trial Judge.

While the record of proceedings demonstrates 'conspicuous impartiality', in my view, the allegations made by the applicant need to be fully ventilated.

The applicant must tender what evidence he has, that the electronic record of proceedings was tampered with. The allegations are calculated to bring through administration of justice into disrepute, and, in these circumstances, it would be imprudent for the trial Judge to continue with the trial. There is no doubt in my mind that a right thinking member of society would not have any reason to believe that the allegations of tampering with the record which were made by the applicant, are true, or even possibly true. This is because the allegations are clearly baseless and without foundation.

The question that is exercising my mind is whether the allegations would give rise to an 'impression' that justice could no longer be seen to be done in this case.

Clearly, the applicant's loss of confidence in the abilility of the trial Judge to be impartial, although subjective, has tainted the proceedings in this matter. It is not the mere application for recusal that is an affront in these circumstances; it is the spurious nature of the allegations made by the applicant and the fact that the Supreme Court did not have an opportunity to test the veracity of the allegations because the appeal was granted in default of appearance by the respondents.

As it is, the allegations stand, they form part of the record of proceedings before the Supreme Court. Given this scenario can it be said that we still have conspicuous impartiality in this matter? What perception has been created by the applicant's allegations of record tampering?

It has been held that the court must look at the impression that will be given to other people, not at whether there was a real likelihood that one side was favored at the expense of the other. “Even if he was as impartial as could be, nevertheless, if right minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit, and if he does, his decision cannot stand.” Metropolitan Properties Ltd v Lannon [1968] 3 All ER 304….,.

Justice must be rooted in confidence.

In my view that confidence has been destroyed in the circumstances of this case, not by any real likelihood or real possibility of bias, but by the allegations that the record of proceedings was tampered with which allegations have not been ventilated, or verified, and which remain extant. Even though a right thinking person understands that no real bias has been proved by the applicant's allegations, which remain untested, it is the mere possibility of bias which has tainted these proceedings. The appearance of bias in an inescapable conclusion that will remain in the mind of a right-thinking person until the allegations of record tampering are dealt with on the merits.

For these reasons, the application for recusal is allowed with costs to remain in the cause.