Criminal
appeal
MAFUSIRE
J:
[1] 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.
[2] 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.
[3] 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 HMA 33-17, 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.
[4] Some
few minutes before the start of the hearing of the appeal, Counsel
for both parties approached me in Chambers. Mr Hungwe,
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 unmoved by whatever else he might say on appeal.
[5] 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. Mr Hungwe
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.
[6] In
the event that I recused myself, Mr Hungwe
suggested that a new panel could be reconstituted, or that the record
could be transferred to the Harare station. Ms Busvumani,
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.
[7] 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.
[8]
In court, Counsel made formal submissions on the request for
recusal. The matter was removed from the roll.
[9] 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.
[10] 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
[11] 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
and President
of the Republic of South Africa & Ors v South African Rugby
Football Union & Ors.
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;
S
v Mutizwa
and Mahlangu
v Dowa & Ors.
[12] However,
recusal is not just there for the asking. It is important to realise
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:
“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.”
[13] 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 RSA, supra, at
p 169 D. In essence therefore, this is an exception to the rule
against someone becoming judge over their own cause.
[14] 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 predispositions: President
of RSA, supra,
at p 177D - E; also Mahlangu,
supra,
at p 50C – F.
[15] 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, supra,
at p 232D – F. 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 RSA, supra,
at p 172E – F.
[16] 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
an application for the recusal of a magistrate on the ground that he
was white was refused.
(ii)
In Mutizwa
above, recusal sought on the basis that the presiding magistrate had
a reputation for imposing stiff sentences was refused.
(iii)
In Associated
Newspapers,
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 the President
of RSA
case above, 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,
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
above, 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 mas morbid and
impetuous.
[17] 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.
[18] 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.
14
February 2018
Mawadze
J: I agree ___________________________
Kadzere,
Hungwe & Mandevere,
legal practitioners for the applicant
National
Prosecuting Authority,
legal practitioners for the respondent
1.
2014 [2] ZLR 401 [H]
2.
1992 [3] SA 482 [A], at p 491E – F
3.
1999 [4] SA 147, at p 168D – E
4.
2001 [1] ZLR 226 [H]
5.
2006 [1] ZLR 78 [H]
6.
2011 [1] ZLR 47 [H]
7.
(1986) 161 CLR 342 [HCA], at p 352E – F
8.
1995 [2] SACR 648 [C]
