The applicants were arraigned for trial before the first respondent, a Regional Magistrate sitting at Harare Magistrate's Court. The first respondent will, in this judgment, be referred to as the “magistrate”. The second respondent is the Attorney General of Zimbabwe. He is the prosecuting authority whose officer is prosecuting in the applicants' trial.
The applicants were, on 27 April 2010, arraigned before the magistrate to answer charges of contravening section 185(1)(b) of the Criminal Law (Codification and Reform Act) [Chapter 9:23]. They are alleged to have attempted to escape from Chikurubi Prison.
The case did not take off at the scheduled time. It was adjourned to 11:30am.
When it resumed, at 11:30am, counsel for the first, fourth, fifth, and sixth applicants, who had been in attendance when the case was adjourned to 11:30am, was now not in attendance. The first applicant sought a postponement because their legal practitioner was not in court.
The magistrate turned down the application, and ordered the first applicant to give his Defence Outline.
The fourth, fifth, and sixth applicants also applied for a postponement, on the grounds that their legal practitioner was not in attendance, and that they were staying in a cell without sufficient light and had not been able, for that reason, to prepare their Defence Outlines. They also alleged that prison officers had taken their court documents and only returned some of them.
Their applications for a postponement were, again, not granted. The magistrate ordered the applicants, who were all now not represented, to give their Defence Outlines.
Counsel representing the first, fourth, fifth, and sixth applicants, arrived when the first applicant was giving his Defence Outline.
He applied for the recusal of the magistrate because he had presided in the cases of S v Donald Tapera Gwekwerere and S v Assan Chikwanda, who were participants in the applicants' alleged attempted escape from prison. They pleaded guilty and were convicted by the magistrate who sentenced them to terms of imprisonment.
He submitted, that, the applicants reasonably believe that the magistrate's knowledge of their case, gained from his presiding over the Gwekwerere and Chikwanda cases, will make it impossible for him to impartially assess their evidence in view of the fact that Gwekwerere and Chikwanda will testify for the State in the applicants' trial.
The magistrate dismissed the applicants' application for recusal and ordered that the trial should proceed.
The applicants then filed this urgent application, seeking an order staying the proceedings before the magistrate pending their review by this court....,.
Appearance of bias due to the Magistrate's prior exposure to information on the applicants' case
The applicants' stronger ground for believing that they may not have a fair trial before the magistrate is based on his having presided over and convicted their alleged accomplices in the attempted escape from prison.
Counsel for the applicants' submitted, that, the magistrate presided over the applicants' accomplices' trial. Those accomplices were convicted on their own pleas for their participation in the applicants' alleged attempt to escape from prison. They were sentenced, and are now going to be called as State wittiness's against the applicants.
He submitted that this creates a reasonable appearance of bias as the magistrate is most likely to believe the accomplices when they testify that an attempt to escape from prison occurred, than to believe the applicants' if they were to say it did not.
Counsel for the second respondent submitted that the magistrate is a trained judicial officer who cannot be influenced by his being exposed to the facts of this case by his having previously handled the applicants' accomplices' trials which resulted in his convicting them on their own pleas. He submitted that the magistrate will be guided by rules of evidence.
It is common cause that the magistrate presided over the cases of S v Donald Tapera Gwekwerere and S v Assan Chikwanda, It is also common cause that the evidence of these convicted accomplices will be led at the applicants' trial. The magistrate convicted them after believing that their pleas of guilty confirmed their participation in the attempted escape from prison.
The case of the applicants will depend on whether or not the magistrate will believe the convicted accomplices when they say they were acting in common purpose with the applicants' when they executed their part in the attempted escape for which he has already convicted them.
The applicants perceive, that, the fact of the alleged attempted escape is established in the magistrate's mind by the information he obtained from presiding over Gwekwerere and Chikwanda's trials. They are apprehensive, that, he is unlikely to disbelieve Gwekwere and Chikwanda if they, in their testimonies, say there was an attempted escape, as he has already convicted them for their participation in it. That, if their apprehension is reasonable, will restrict them to denying having participated in the attempt to escape from prison.
This, in my view, demonstrates how the information on their case the magistrate already has will prejudice them if their trial is to be before the same magistrate.
The applicant's situation is different from the one which was in Dancarl Diamonds (Pty) Ltd v Williams NO (Vize Toetredend) 2001 (4) SA 1123 NC where VAN DER WALT J…, held that:
“Accordingly, where a judge, during liquidation proceedings, finds that the respondent has committed breach of contract, and the question arises, in separate proceedings, between the same parties and in respect of the same facts, whether that breach was such that it constituted a repudiation of the contract in question, the determination of the judge in connection with the breach of contract per se is res judicata, and he is not obliged, by reason of possible bias, to recuse himself from the later proceedings, in which the only further question that arises is whether the breach amounted to repudiation.”
In Dancarl Diamonds (Pty) Ltd v Williams NO (Vize Toetredend) 2001 (4) SA 1123 NC it was held that the fact that a judicial officer previously “made a decision about substantially the same dispute between the same parties and that he must therefore be biased when he presides over the same parties' dispute for the determination of a further issue arising from the one already decided is answered by the principle of res judicata putting that judicial officer in the same position as any other judicial officer.
In such a case, there would be no reason for the judicial officer to recuse himself, because once a matter is res judicata it cannot be decided again on the same issue. The decision made will stand whether or not the same judicial officer presides to determine an issue arising from its off shoot Therefore, the same judicial officer, or any other judicial officer of competent jurisdiction, can preside.
In Dancarl Diamonds (Pty) Ltd v Williams NO (Vize Toetredend) 2001 (4) SA 1123 NC the dispute which had been decided was between the same parties as those who were in the dispute to be decided. In this case, the dispute decided by the magistrate is between S v Gwekwerere and S v Chikwanda, while the one to be decided in the trial before the magistrate is the one between the State and the applicants. The two disputes are therefore not between the same parties.
The applicants' apprehension of bias cannot, therefore, be defeated by the principle of res judicata.
In this case, the issue of there having been an attempt to escape from prison is not res judicata between the applicants and the State. It has never been decided between them but will be one of the issues to be proved either way for the applicants' conviction or acquittal.
It is, however, a decided issue between the accomplice witnesses, the State, and the magistrate.
That is why it is inconceivable how the magistrate can be expected to properly assess Gwekwerere and Chikwanda's evidence in the applicants' trial when their participation in the attempted escape from prison has already been decided in their own trial.
The fear that he will be biased towards believing them is therefore real and must lead to his recusal.
There is no doubt in my mind that justice will not be seen to be done when a magistrate who has convicted the accomplice has to determine whether that accomplice is telling the truth when he comes before him as a witness to tell the same story - but now for the purpose of securing the unconvicted accomplices' conviction.
It is accepted that the magistrate is a trained judicial officer, and that there is a presumption of judicial impartiality in his favour. The presumption arises from his judicial oath of office that he will deliver justice without fear or favour. That cannot, however, convince the applicants to believe that he will dispassionately assess the evidence of witnesses he previously believed and convicted having accepted that they correctly confessed their part in the crime the applicants are facing.
In the case of Silwana & Anor v Magistrate, District of Piketberg & Anor 2003 (5) SA 597 (C), a magistrate who issued a search warrant for the accused, and, thereby, got prior information on the commission of the offence, could not be allowed to preside over the accused's trial. FOXCROFT J, commenting on the undesirability of a magistrate who issued the search warrant to preside over the same accused's trial…, said:
“An accused person in the position of the applicants would certainly have reason to fear that a magistrate might well remember what was said in the affidavit when the witness who testified in advance of the search warrant does not testify at the trial.
Dealing with the practical difficulties raised by the magistrate, it is, in my view, necessary for a magistrate in a different town to sign search warrants in situations like the present one. Alternatively, if a local magistrate has signed a search warrant, after seeing an affidavit of this kind, he or she should not sit in a case, and a magistrate should be brought from a neighbouring jurisdiction. In my view, there is merit in the review brought to this court and there will be an order in terms of para 1 of the notice of motion.”
What is of paramount importance, in this case, is the applicants' apprehension of bias based on their knowledge that the magistrate presided over the facts of the case they are facing with the only difference being that he presided over their alleged accomplices' case.
Can the applicants' apprehension be said to be unreasonable?
I do not think so, especially when consideration is given to the convicted accomplices' coming to testify before the magistrate who convicted them in their own trials.
The river of justice must be allowed to flow clear and clean. It should not be turned muddy by reasonable perceptions of bias emanating from a judicial officer's insistence to preside over cases where his or her presiding does not help in ensuring that justice is seen to be done.
The appearance of justice must not be blurred by appearances of what may, to the applicants and the general public, reasonably seem to be an unfair trial. This should be avoided especially at a court where other judicial officers can preside over the case without raising perceptions of bias.
The words of advice quoted by HARMS JA…, in Take & Save Trading CC & Ors v Standard Bank of South Africa Ltd 2004 (4) SA 1 (SCA) must constantly remind us that:
“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.”
As already said, the test is on the reasonable litigant's reasonable fear that he will not have a fair trial.
In this case, the applicants are, at their trial, going to face their alleged convicted accomplices. They are to do so before the magistrate to whom the accomplices have already confessed their participation in the alleged attempted escape. The magistrate has already convicted the accomplices on their confessed participation.
Can he be expected to preside with a mind open to persuasion by evidence or submissions by counsel as to whether or not there was an attempt to escape from prison when he has already convicted the accomplices for that offence?
This means all the applicants can say is that they were not involved. It will be difficult for them to say there was no attempt to escape from prison.
In their minds, they must be finding it difficult to believe that the magistrate who has already convicted Gwekwerere and Chikwanda for that offence would believe them if they were to proffer a defence that there was no attempt to escape from prison.
The applicant's further apprehension is on the magistrate not believing them, and, instead, believing those he has already convicted.
Their apprehension is therefore based on facts. It is reasonable. They must, if the record of proceedings to be reviewed supports their allegations, be given a chance to a fair trial before a magistrate who has not already dealt with the facts of the allegations they are facing.
I must conclude by echoing CAMERON AJ's words of guidance in the case of South African Commercial Catering & Allied Workers Union & Ors v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC)…, where he said:
“Courts considering recusal applications asserting a reasonable apprehension of bias must accordingly give consideration to two contending factors:
On the one hand, it is vital to the integrity of our courts and the independence of judges and magistrates that ill-founded and misdirected challenges to the composition of a Bench be discouraged. On the other, the courts' very vulnerability serves to underscore the pre-eminent value to be placed on public confidence in impartial adjudication. In striking the correct balance, it is 'as wrong to yield to a tenuous or frivolous objection' as it is 'to ignore an objection of substance'”.
I am therefore satisfied that the applicants' application for the review of the magistrate's refusal to recuse himself has prospects of success.
The applicants' application for interim relief is granted.
Pending determination of this matter, the applicants are granted the following relief-
1. That, pending the hearing of this matter on review, the applicants be and are hereby granted stay of the criminal proceedings before the first respondent.
