On 2 November 2009, the applicant
was arrested by the first respondent on allegations of contravening section
184(1)(c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The
allegations were that he had obstructing the course of justice by attempted to
interfere with the Attorney General of Zimbabwe in the discharge of his duties.
On 3 November 2009, the
applicant filed an urgent chamber application in case no. HC5369/09 seeking, in
the interim, his release from police custody. In the final relief, he sought a
declarator that his arrest and detention were unlawful. The application was, on
my instructions, set down for hearing on 4 November 2009 at 8.30am. The
applicant, however, appeared before the Magistrates Court and was granted bail
before the date of hearing of the urgent chamber application. The interim
relief had therefore been overtaken by events.
Despite
the fact that I could no longer grant the interim relief sought, I directed the
conversion of the urgent chamber application into an ordinary court application
and that the respondent file its opposing papers to the final relief sought in
terms of the Rules applicable to court applications.
The
applicant is now before me pursuant to that order.
The
court application was set down for hearing on the opposed roll of 24 February
2010. Before the parties addressed the court on the merits of the matter, counsel
for the applicant requested my audience in chambers. It is then that he
applied, on behalf of the applicant, for me to recuse myself from hearing the
matter. The basis for the application is that my husband is a senior officer in
the police force. The applicant expressed an apprehension that I would be biased
in favour of the respondents on the basis that the application relates to my
husband's subordinate and superiors respectively. The applicant assumed that
because of my marriage I may have had prior knowledge of facts that would
influence me in ruling in favour of the respondents.
Counsel for the respondents opposed the
application on the basis that my husband is not a party to the proceedings
directly or indirectly. Although he is the Chief police spokesperson, he does
not interact with the first respondent who is in the Criminal Investigation
Department. He also did not have an interest in the outcome of the proceedings.
The apprehension of bias was therefore far-fetched and unreasonable.
The
test to be adopted in determining whether or not a judicial officer should
recuse him or herself is well settled and is set out in Leopard Rock Hotel Co.
(Pvt) Ltd & Anor v Wallenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S).
The
test is a two-fold objective test (double reasonableness) that the person
considering the alleged bias must be reasonable, and the apprehension of bias
itself must also be reasonable in the circumstances of the case. (See Masedza
& Ors v Magistrate, Rusape & Anor 1998 (1) ZLR 36 (HC); Associated
Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd
2001 (1) ZLR 226 (H); S v Mutizwa 2006
(1) ZLR 78; Austin & Anor v Chairman, Detainees' Review Tribunal & Anor
1988 (1) ZLR 21 (SC); Coop and Others v South African Broadcasting Corporation
and Others 2006 (2) SA 212 (W); South African Commercial Catering and Allied
Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish
Processing) 2000 (3) SA 705 (CC); President of The Republic of South Africa and
Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC); S
v Shackell 2001 (4) SA 1 (SCA); Sager v Smith 2001 (3) SA 1004 (SCA);
Government of the Republic of South Africa and Others v N and Others 2006 (6)
SA 566).
The
test is, in my view, aptly stated in President of The Republic of South Africa
and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC)….,
where it was held that -
“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. The reasonableness
of the apprehension must be assessed in the light of the oath of office taken
by the Judges to administer justice without fear or favour and their ability to
carry out that oath by reason of their training and experience. It must be
assumed that they can disabuse their minds of any irrelevant personal beliefs
or predispositions. They must take into account the fact that they have a duty
to sit in any case in which they are not obliged to recuse themselves. 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
litigant for apprehending that the judicial officer, for whatever reasons, was
not or will not be impartial.”
In
considering this application, I have taken heed of the warning in the plethora
of cases cited above that the applicant has a right to have confidence in the
judiciary. Where an applicant makes an application of this nature, the court
should not take it as an affront.
As
stated in Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond
Insurance Co (Pvt) Ltd 2001 (1) ZLR 226 (H)…, what defines the reasonableness
of the applicant and the apprehension itself is the nature of the link or
association between the judicial officer and the parties in the litigation.
There is no direct link whatsoever between the respondents and myself. The
alleged link is through my husband - who is not a party to the proceedings
directly. The indirect link that has been referred to between my husband and
the respondents arises from an employment relationship with the respondents.
Can
a marriage of a judicial officer to a police officer be elevated to an indirect
link to the respondents? Put differently, it appears to me that the question is
therefore whether or not a reasonable person would have apprehension of bias
arising from such a marriage and the apprehension would be reasonable under the
circumstances.
The
link is, in my view, so far removed to even be considered as an indirect link
between the respondents and the judicial officer. Whilst my husband may be a
senior officer in the police force, he does not, as rightly submitted by counsel
for the respondents, have any involvement in the first respondent's day to day
discharge of his responsibilities. The fact that he is a junior to the second
and third respondents, again, in my view, has no bearing on this matter.
I
do not believe that any reasonable person would entertain an apprehension that
a judicial officer would be biased in favour of the police simply by virtue of
a marriage to a police officer. A litigate must, in my view, advance more
information to want the apprehension. A sizeable number of matters before the
court, both criminal and civil, relate to the police. I do not see any
distinction between the present matter and any of those matters where the
police are litigants. The apprehension expressed by the applicant would mean
that the judicial officer would have to recuse him/herself from almost if not
all the cases where the police and its officers are litigants. Such an
apprehension would be unreasonable. The apprehension is even more unreasonable
given that the court was seized with the initial urgent chamber application. It
appears to me that all the facts enquired to determine the application were already
in the urgent chamber application. The court had already considered those facts
when it determined the matter and converted the urgent chamber application to
an ordinary court application. The nature of the facts that the court would
have been privy to by the virtue of her marriage were not apparent from the
applicant's submission.
A
case to the point is that of Government of the Republic of South Africa and
Others v N and Others 2006 (6) SA 566 (D). In an application for the recusal of
the presiding judge on the ground that his daughter was in the employ of the
correspondent attorneys of one of the parties, the Judge refused to recuse
himself on the basis that his daughter's role was far removed from the actual
litigation….,.
Another
case is that of S v Collier 1995 (2) SACR 648 (C). In dismissing an appeal
against a decision in a lower court in which an accused insisted that he be
tried by a black magistrate alleging that a white magistrate would be biased
against him, HLOPHE J is quoted in The Republic of South Africa and Others v
South African Rugby Football Union and Others 1999 (4) SA 147 (CC)…., to have
said -
“Equally,
the apparent prejudice argument must not be taken too far; it must relate
directly to the issue at hand in such a manner that it could prevent the
decision-maker from reaching a fair decision…,. PROFESSOR BAXTER gives a
commonly cited example, namely, the mere fact that a decision-maker is a member
of the SPCA does not necessarily disqualify him from adjudicating upon a matter
involving alleged cruelty to animals. By the same token, the mere fact that the
presiding officer is white does not necessarily disqualify him from
adjudicating upon a matter involving a non-white accused. The converse is
equally true. Otherwise no black magistrate or Judge could ever administer
justice fairly and evenhandedly in a matter involving white accused.”
As
stated in the cases that I have referred to above, an applicant, on raising the
question of bias, should take into consideration that a judicial officer takes
an oath of office to uphold the law, impartially and without fear or favour. I
take the oath seriously. This should be weighed against any apprehension of
bias. Whatever decision I would take in the main matter would be based on the
law supported with the facts filed of record and not those that the applicant
may perceive the court is aware of. It appears that the applicant has not
discharged the onus placed on him of rebutting the weighty presumption of
judicial impartiality. It is my view that the ground upon which the application
for recusal is premised does not give rise to a reasonable apprehension of bias
by a reasonable applicant. I am satisfied that, despite my marriage to a senior
police officer, I will be able to deal with the matter in an impartial and
unbiased manner.
Accordingly, the application is dismissed.
