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.