Chamber
applications
MAFUSIRE
J:
Case
1 above 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 Mr Gama, 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 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 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 Mr Gama 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,
Mr Gama 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 Mr Gama 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.
Mr
Gama 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)
CASE 2: 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), at p 491E – F, and President of the Republic of
South Africa & Ors v South African Rugby Football Union & Ors
1999 (4) SA 147, at p 168D - E.
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, as he then
was, put it as follows1:
“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 RSA, supra, at p 169 D. 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.
One,
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)2,
a case quoted with approval by the Constitutional Court of South
Africa in the President of RSA case, supra3,and
by HLATSHWAYO J in Associated Newspapers, supra4:
“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.”
Two,
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, and United States v
Morgan 313 US 409 (1941) at 421 (quoted at p 172G – H in President
of RSA, supra).
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, 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 p 172E – F in President of RSA).
Three,
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
R v Mutizwa, supra, recusal sought on the basis that the presiding
magistrate had a reputation for imposing stiff sentences was refused.
In
Associated Newspapers, supra, 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 the President of RSA, case, supra, 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.
Four,
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, supra, at p 239E – F.
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 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 Mr Gama 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, Mr Gama, in his letter, requested that I grant him
and Mr Makonyere 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, supra. In the President
of RSA case, supra, the Constitutional Court of South Africa put it
as follows5:
“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, Mr Gama, having made the formal application for my recusal from
Case 1, what are his grounds? Basically it is that I have already
prejudged 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 Mr Gama'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.
Mr
Gama complains I should not have called for the supplementary
affidavits.
First,
through 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, Mr Gama
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 Mr
Gama and Mr Makonyere had said yes. Therefore, Mr Gama 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 Mr Gama's case for my recusal.
(iii)
Analysis of the Applicants' case for recusal
In
President of RSA, supra, 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, supra, HLATSHWAYO J said6;
“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 Mr Gama'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 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 Mr Makonyere 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 Mr Gama 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 Mr Gama'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 Mr Gama, 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, Mr Chimuriwo, 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 Mr Chimuriwo's 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 facts7.
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)8,
a passage quoted with approval in Leopard Rock Hotel Co (Pvt) Ltd &
Anor v Walenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S)9
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.
(c)
CASE 1: APPLICATION FOR DIRECTIONS
(i)
The Interlocutory Chamber Application
Not
a single case has been made out for the inclusion, into the record of
appeal, the interlocutory chamber application that allegedly had been
filed in May 2012, allegedly seeking an order to exclude from the
record a certain supplementary affidavit by Mangenje. The two main
cases had been filed under references HC601/11 and HC9527/11. It
appears the interlocutory chamber application was filed under a
different case number altogether.
May
2012 was a good one year and some five months before I heard the two
main cases. There is no indication whatsoever what was done after the
interlocutory chamber application had allegedly been filed. Thus,
unless, someone made the effort to physically marry the court record
for which the interlocutory chamber application had been opened with
those of the two main cases, the matters would, in all probabilities,
have remained separated.
A
chamber application commences by way of an entry in the Chamber Book
in terms of Rule 241(1) of the rules of this court. It has to be
served on interested parties, unless it is one in respect of which
the exceptions in paragraphs (a) to (e) of Rule 241(1) apply. Rule
243 provides that a chamber application may be accompanied by heads
of argument. But this is merely directory or permissive, and not
peremptory. It seems that once the chamber application has been
entered into the Chamber Book the onus shifts to the Registrar. In
terms of Rule 245 the Registrar is required to submit it to a judge
in the normal course of events, but without undue delay. The use of
the word “shall” means it is peremptory that the Registrar acts
with expedition. Once the Registrar has submitted the papers to him,
the judge must consider the papers without undue delay. In terms of
Rule 3 “judge” means a judge sitting otherwise than in an open
court. The repeated reference to “without undue delay” in Rule
245 in relation to what the Registrar and the judge are required to
do means that chamber applications, even though not urgent, must be
dealt with expeditiously.
It
seems that a party that sleeps on his application in a court
application, as opposed to a chamber application, may not have it set
down. There is an elaborate procedure set out in the rules as to what
a party seeking set down of a court application should do. However,
in a chamber application, it seems that where a party has filed it
the application must automatically proceed to determination. However,
even though the rules cast the duty on the Registrar and the judge to
ensure that a chamber application, once filed, is determined without
undue delay, this does not mean that the applicant can just file the
application and go to sleep. Human systems are not infallible.
Documents can go missing or become misplaced. It remains the
applicant's duty to be vigilant. He must follow up on his
application. The law helps the vigilant, not the sluggard.
In
the present case, there is no indication whatsoever what follow-up
action was taken after the interlocutory chamber application had
allegedly been filed. No one is saying anything about this. And, as I
have pointed out in Case 2 above, that document was not part of the
record when I determined the two main cases. Therefore it cannot be
made part of the record of appeal.
(ii)
The Supplementary Affidavit by TBIC Investments
It
is said that this affidavit was filed some three months before I
heard the two main cases. But, again, as I have demonstrated in Case
2 above, it was also not part of the record when I determined those
cases. Therefore, it also cannot be made part of the appeal record.
However,
I direct a different course in respect of this affidavit.
Evidence
has been placed before me that that affidavit had been lodged with,
and date-stamped by, the Registrar on 17 June 2013. It was filed in
the court record bearing the reference number HC601/11, i.e. one of
the two main cases. There is some evidence that the affidavit had
been served on the Civil Division of the Attorney-General's Office
and Mangenje's attorneys on 17 June 2013 and 19 June 2013
respectively. Thus, even though no one has told me what became of the
affidavit, in the normal course of events it ought to have been part
of the record when I heard the two main cases on 19 September 2013.
Rule
15(5) 0f the Supreme Court Rules reads:
“The
record shall contain an index of the names of witnesses whose
evidence is included in the record and all proceedings and documents
which are included in the record. In addition, there shall be a list
of evidence, proceedings and documents omitted from the record. Such
index and such list shall appear at the beginning of the record.”
(my emphasis)
In
the final analysis therefore, I direct that the supplementary
affidavit by TBIC Investments in HC601/11, more accurately described
as “1st
Respondent's Affidavit In Response to 4th
Respondent's Affidavit”, and which was attached to a document
titled “Notice of Filing 1st
Respondent's Affidavit in Response to Chief Registrar of Deeds'
Affidavit”, be omitted from the record of appeal proper, but that
it be included on the list of the evidence, proceedings and documents
omitted from the record, which list must appear at the beginning of
the record.
(d)
Disposition
Cases
1 and 2 above, namely, HC 3244/2014 and HC 8211/2014 respectively,
are hereby disposed of as follows;
(i)
Case 1: HC3244/2014
1.
The Registrar of this court, or his assistant responsible for the
preparation of the records of appeal, shall:-
1.1
Exclude from the record of appeal altogether, a certain chamber
application which is Annexure “OA7” to the Respondents'
opposing papers in HC3244/14, which was prepared and signed by
Madzivanzira, Gama & Associates on 30 April 2012 and issued with
this court on or about 2 May 2012, referring to case number
HC9527/11, but which does not appear to have been allocated a case
number;
1.2
Omit from the record of appeal proper, the supplementary affidavit by
TBIC Investments in HC601/11, more accurately described as “1st
Respondent's Affidavit In Response to 4th
Respondent's Affidavit”, and which was attached to a document
titled “Notice of Filing 1st
Respondent's Affidavit in Response to Chief Registrar of Deeds'
Affidavit”, but shall include it on the list of the evidence,
proceedings and documents omitted from the appeal record, and which
list must appear at the beginning of that record.
2.
There shall be no order as to costs.
(ii)
Case 2: HC8211/2014
The
application for my recusal from Case1 (HC3244/2014) is hereby
dismissed with costs.
24
September 2014
Gama
& Partners, applicant's legal practitioners in Case1,
respondent's legal practitioners in Case 2
Robinson
& Makonyere, respondents' legal practitioners in Case 1,
applicants' legal practitioners in Case 2
1.
At p 236D – F
2.
At p 352E – F
3.
At p 176B – C
4.
At 233C – E
5.
At p 177H – I
6.
At p 232B
7.
President of the Republic of South Africa v South African Rugby
Union 1999 (4) SA 147
8.
At p 735
9.
At p 277A - B
