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.
