CHEDA J: This is an
application for recusal. The main case deals with a request/prayer
for eviction of respondent from a property known as stand 464 Bulawayo
Township, Bulawayo which is situated at 123 George Silundika Street, Bulawayo
and costs on an attorney and client scale.
Briefly, the background of this matter is that on the 17th
September 2004 applicant entered into a lease agreement with respondent in
respect of a lease of the above property for 11 months from 1 September 2004 to
31 July 2005 which was renewable until 31 July 2006 and thereafter respondent
was to continue to lease the property on a monthly basis if he so wished. In January 2008 resolved to terminate the
lease agreement and gave respondent 3 months notice which effectively was to
terminate on the 30th of April 2008.
However, further negotiations were made culminating in the parties
mutually agreeing that Respondent vacates the property on the 30 September
2008. A memorandum to that effect was
proposed and signed by both parties. However,
respondent did not vacate the said property, a situation which resulted in
these proceedings. The reasons for such
failure are an integral part of the main proceedings before this court.
The above referenced cases were supposed to be heard together as they
involve the same issues and same parties as per this court's order of the 5th
March 2009.
Applicant applied for a notice of set down which was granted and the
matter was set down for hearing on the 12th October 2010. The notice of set down was served on respondent
the same day. Upon receipt of the said
notice of set down, respondent filed what he termed “Request for
Postponement”, which reads as follows:
“REQUEST FOR POSTPONEMENT
I refer to the
above matter and to your notice of set down dated 12/10/10 which was received
on the same day the 12/10/10 in the afternoon.
Please note that the notice period given (3 days) is inadequate and
inconsistent with the stipulated two weeks notice as per the rules of this Honourable
Court.
May I also advise
that I need to engage an Advocate for this matter which is so complicated due
to the number of points of law involved.
As a result I propose that this matter be removed from the roll for the
good of both parties.
By copy of this
letter the Honourable Judge who will preside over this case is respectfully
advised not to bother to read the case, since we are not ready for the matter
to be heard.
DATED AT BULAWAYO
THIS 14TH DAY OF OCTOBER 2010.
(SIGNED)
MCM
NYAMUDA
t/a
Ebunandini Restaurant
123
G. Silundika Street
BULAWAYO
TO: THE
REGISTRAR
HIGH
COURT OF ZIMBABWE
BULAWAYO
AND TO: JOEL PINCUS, KONSON & WOLHUTER
215
YORK HOUSE
8TH
AVENUE/H. CHITEPO STREET
BULAWAYO
(ESE/PM/Is)”
Respondent did not attend the
hearing on the 18th October 2010.
Advocate H. Moyo for applicant
applied for a default judgment on the basis that respondent should have
appeared in court to seek postponement.
While she was indeed entitled to apply for default judgment I did not
grant it for the following reasons:
(1) the respondent is a layman and a
self-actor,
(2) that the matter is very important to the
parties, and
(3) that
on many occasions such default judgments often result in applications for
rescission, which applications can be avoided as they waste both the litigants
and the courts' time.
Needless to say that Advocate Moyo was not happy with my
decision. The postponement was granted and
couched in the following terms:
“IT IS ORDERED THAT:
(1)
the matter be and is hereby postponed to the 25th
of October at 1415 hours.
(2)
applicant must serve respondent with a notice of set
down.
(3)
in the vent that respondent is in default for whatever
reasons the matter will proceed in his absence.
(4)
no other postponement will be allowed by this court,
and that
(5)
costs will be costs in the cause.”
On the day of the hearing, both parties were present. Respondent was however, not properly dressed,
as he was putting on a short-sleeved shirt with neither tie nor jacket. I must remark here that respondent is a
self-actor who has professionally drafted all his documents before the court
and is fully conversant with the rules of this court as evidenced by the
presentation of his case. In addition,
thereto, he has a very good command of English and seems to have mastered the
relevant legal terms used in this court.
In fact he is amongst very few self-actors who can articulate their
cases so well.
Above all, he struck me as a very intelligent man indeed. One can not certainly take away that skill
from him. Infact he is a rare self-actor.
For that reason I did not believe him when he stated that his failure to
dress properly was due to his ignorance as he struck the court as a very
educated man who was very familiar with the basic court procedure and court
etiquette.
It is pertinent to note that when he appeared in court on the 25th
October 2010, he did not bring his file with him. One of the terms of the order of the 18th
October 2010 was that the matter was to proceed on the 25th October
2010 without fail. However, respondent,
still appeared in court without his file or documents in readiness for hearing.
On the 25th October 2010 during the hearing, respondent
interjected when applicant was making submissions. He applied for a postponement on two grounds
that:
(1)
he wanted to seek legal
representation, and
(2)
he had not had time to go through his
papers as the notice of set down was handed to him on the evening of the 24th
October 2010.
Advocate Moyo in response,
contradicted him and sated that respondent was not being truthful to the court
because service was effected by the instructing legal practitioner, Mr Pineas Madzivire who happened to have
been present in court.
In order to clarify this issue I asked the legal practitioner, Mr Pineas Madzivire to take the witness
stand and give evidence. His evidence
was that on the 18th of October 2010, he proceeded to respondent's
place of business and found one Sebastian Nyamuda (the Manager for respondent)
who refused to accept service for and on behalf of respondent, his reason for
refusal was that he was not authorised to receive documents for and on behalf
of a third party. Mr Madzivire took the documents back to his
office whereupon he was advised by the senior partner to go back and re-serve
on whoever was present. He went back and
again found Sebastian who for the second time refused to accept service. He then left the notice of set down on Sebastian's
desk. It was also his evidence that
while he was at respondent's offices he saw three other people sitting there
and one of them he now recognized as the respondent. Respondent cross examined him but he stuck to
his evidence. I found him to have been a
truthful witness who had no reason to lie to the court.
After cross-examination, respondent also took the witness's stand. He stated that his failure to attend court on
the 18th of October 2010 was because he was under the impression
that his “Request for postponement” was enough to excuse him from attending
court. With regards to service of the
notice of set down for the 25th of October 2010 he stated that he
was not present in the premises as he was in Harare and only arrived on the
evening of the 24th of October 2010 when the hearing was on the 25th
October 2010 at 1000hours. On Mr Madzivire's averments that he was in
fact present he denied this and went further to state that Mr Madzivire must have seen his brother
When questioned as to why he did not bring his file or documents with
him when he knew that the matter was set down for hearing on the 25th
October 2010 he stated that he was of the view that the matter was going to be
postponed as he wanted to seek legal representation. Although he told the court that Mr Madzivire must have seen his brother, he
made no efforts to lead evidence from his brother to counter that assertion. His
brother's evidence was in my opinion necessary as it could have helped the
court to see whether or not they looked alike.
Advocate Moyo argued that the
matter should proceed as respondent was aware of all the issues involved since
he drafted all his papers and even filed his heads of arguments as far back as
May 2009. She further argued that the
time required for legal representation would have been adequate from the time
he was served with a notice of hearing on the 12 October 2010 to date.
After hearing the evidence led in court I made the following findings:
(1)
that respondent had been deliberately
avoiding the hearing, hence, his non-attendance on the 18th of
October 2010 thereby seeking a postponement by filing his notice of intention
to do so but failing to come to court to apply for the said postponement.
(2)
on this day he was vague when asked
as for how long the postponement to seek legal advice should be. He had been equally vague with regards to the
time he required to look for legal representation in his “Request for
postponement” filed of record.
(3)
He was casual in his dressing on the
25th of October 2010, when he was aware that he was coming to court.
(4)
he was present when Mr Madzivire effected service on Sebastian
on the 18th of October 2010.
(5)
that he was not genuine when he
stated that he wanted the matter postponed in order to seek legal advice as he
had always been aware of the pending hearing but chose not to take any steps
whatsoever in securing the said legal representation in the time. He failed to do so between the 18th
and 25th October 2010 when he had the opportunity to do so.
Mr Madzivire is a legal
practitioner and an officer of this court.
He has no personal interest in this matter other than that of his
client. He has no reason to lie that
respondent was present when he was not because it was not a requirement to
effect personal service anyway.
Therefore, the mention of respondent's presence does not enhance the
effect of service at all, but, was in my view mentioned to buttress the truthfulness
of his averments and nothing else.
I find that respondent was an untruthful witness as it is clear to me
that he has been trying to avoid this matter being heard. He lied that he was not present on the 18th
of October 2010 yet Mr Madzivire saw him. It is Mr Madzivire's
evidence that although he did not know him then and was seeing him for the
first time, he is the same person whom he saw when he effected service on the 18th
of October 2010. I found respondent not
to have been a credible witness as far as this aspect of the case is concerned
and I, therefore, reject his explanation in relation to his application for
postponement.
As he had came to court without his file and/or documents, on the 25th
October 2010, I was of the view that he should be given a second chance to read
and bring his documents the following day, that is, 26th October
2010and possibly seek legal representation.
I, therefore, again exercised my discretion and postponed the matter to
the 26th October 2010 to which he agreed to.
On the 26th of October 2010 the parties appeared and this
time he was properly dressed, but, again he had no file or documents and sought
a further postponement on the following grounds:
(1)
that since I had made a finding that
he was not truthful in his evidence with regards to Mr Madzivire's attendance at his premises on the 18th
October 2010 he was of the opinion that I was going to be biased against him in
the event that I heard this case on the merits, and
(2)
that he still wanted legal
representation in the person of an Advocate.
I will deal with the issue of legal representation first. A litigant has a legal right to instruct a
legal practitioner of his choice at his own expense. This is his constitutional right. Respondent as a self-actor has always been aware
that all pleadings have been closed and as such is fully aware of the disputed facts
and issues involved, hence the contents of his heads of arguments filed of
record. It is trite that a litigant
should be allowed to exercise his right to legal representation, but, my view
is that this right should not be used to frustrate a legitimate due process.
These courts have time without number emphasized that litigation must
come to an end at some point. In my view
a postponement of a case should be done when the applicant for such
postponement has a just cause for doing so, not merely to use it as a matter of
course. After all a legal right can
never be absolute but is subject to the convenience and rights enjoyed by
others. Asked why he had not instructed
a lawyer to date or at least from the 18th of October 2010 when he
first indicated that he wanted to instruct an Advocate, his response was that
he presently had no money and also that he required at least two months to do
so. This type of attitude towards
litigation is not acceptable, particularly when he admitted that he has been
using this property to conduct his restaurant business from October 2008 to
date without paying rentals even token rentals for that matter. In as much as a postponement can be granted
to allow legal representation, such postponement should not be granted were it
is clear that it is designed to postpone the day of reckoning. It is under those circumstances that further
postponement should not be granted.
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 18th 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
magistrates' 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, at 558 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 HH 84/10 (not yet
reported).
This principle was also illuminated in Yoffe v Koppies District Licensing Board 1948 (3) SA 748 at 752
where Van Den Heever J. P 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 respondent
objects to the present court continuing with hearing the parties on the
merit. 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 sametime 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 at 482 E-H
CENTILIVRES, C. J. 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.” (my emphasis)
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 at 603 – 604 quoted with
approval in Matapa's case (supra) 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,
J. A. (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, C. J. 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.” (my emphasis)
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), at p 714 to 715 the South African
Consitutional court per CAMEROON, A.J.A. 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 if SA Ltd 2004 (4) SA 1 Harms HA 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 his 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 figure head, 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 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 HH 84/10 at p 7 (not yet reported) 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 respondent's apprehension of bias on the part of the court is reasonable
and whether or not respondent himself is reasonable. Respondent has been a self-actor through-out
the litigation process. As pointed out
above 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 5th May 2009 he had been aware that the day of hearing was nigh,
but, on the 18th, 25th and 26th 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 18th October 2010.
(2) his
assertion that he only became aware of the hearing on the 24th
October 2010 though this does not help him much as he had already filed his
heads of arguments as way back as the 5th May 2009.
(3) his
appearance in court on the 25th and 26th 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
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 v Magistrate Bhili and Attorney
General (supra). I further make this
conclusion with full knowledge that justice should not only be done but be seen
to be done at all times.
Advocate Moyo also submitted that in the event that a postponement is
granted, respondent should be placed on terms, with regards to a date of hearing,
payment of costs on a higher scale and that respondent should not be heard
before settling the said costs.
As set out above, on two occasions,
the court has bent backwards to allow 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
applicant's submissions through its legal representative 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 25th November 2010
at 1415 hours
(2) respondent
be and is hereby ordered to pay wasted costs for the 18th, 25th
and 26th October 2010 at attorney and client scale.
(3) respondent
be and is hereby ordered to settle applicants costs before the hearing date
failing which he should not be heard.
(4) that
the matter shall proceed on the 25th November 2010 irrespective of
whether or not respondent has secured a legal representative.
Joel Pincus, Konson &
Wolhuter, applicant's legal practitioners
