Urgent
Chamber Application
MATHONSI
J:
In
the practice of law the world over it is an accepted principle that
legal practitioners are officers of the court. As such they assist
the court in dispensing justice and owe the court a duty to not only
bring to its attention legal pronouncements on the law that are
useful in the resolution of disputes but also to disclose to the
court the truth which, in any event, is the cornerstone of the
justice delivery system.
In
that regard legal practitioners, as members of the noble profession,
are expected to treat the court with respect and be diligent in the
discharge of their duties. They occupy a privileged position under
the wings of the court as perhaps the last bastion in the defence of
individual rights and liberties and therefore are not expected to
resort to obfuscation in their defence of accused persons brought
before the courts.
As
much as legal practitioners are allowed to be as tenacious as
possible in defending their clients they still have a duty towards
the court.
A
legal practitioner has the right to criticize the court's judgment
but the right to freedom of expression does not permit the making of
wild and unproven comments imputing corrupt or improper motives on
judicial officers as this would create a real and substantial risk of
impairing public confidence in the administration of justice. See In
re Chinamasa 2000 (2) ZLR 322 (S).
In
this application, the applicant seeks an order stopping criminal
proceedings in the magistrates court of Filabusi pending a review by
the High Court of refusal by the presiding magistrate, who is the
first respondent in the application, to recuse himself at the behest
of the applicant.
The
applicant was arraigned before the first respondent on a charge of
contempt of court in contravention of s182 of the Criminal Law Code
[Chapter 9:23]. The charge arose out of a court order issued by the
High Court on 20 November 2015 interdicting the applicant from
interfering with one Claver Masiiwa's control of certain property
the latter had purchased from a company known as Trianic Investments
(Pvt) Ltd.
Although
the court order was served on the applicant on 3 December 2015 he
allegedly violated the court order by continuing to interfere with
Masiiwa's control of the property and using the said property as
his own.
The
conduct complained of led to charges being preferred against the
applicant aforesaid.
He
initially appeared in court on 25 October 2016 but sought a
postponement to a later date. The matter was then remanded by consent
for trial on 10 November 2016.
When
the matter was called on that date the applicant's counsel
immediately launched an application for recusal of the trial
magistrate.
Without
leading any sworn evidence or producing any proof and indeed without
taking an oath himself, the legal practitioner launched a volley of
unmitigated and very serious accusations against the trial
magistrate.
(i)
Firstly he claimed that on 8 November 2016 the magistrate had been
spotted at Filabusi shopping centre conducting a conversation with
one Councillor Ngwenya in the presence of the complainant. He did not
indicate what was wrong with a magistrate conversing with a local
councillor.
(ii)
Secondly he stated that some time before, the trial magistrate had
presided over a civil case involving two parties namely Mhandu and
Mswela in which he found in favour of Mswela. He claimed that Mswela
is a friend of the complainant in the criminal case and that he had
since established that the magistrate was later “roped into the
mining business that Mswela had taken from Mhandu.”
The
legal practitioner did not even suggest that the decision of the
magistrate in that civil matter was wrong and whether it was ever
contested. He however suggested that the aspect of the magistrate
going into business with a former litigant was at the instance of the
complainant.
(iii)
Thirdly the legal practitioner claimed that upon the arrest of his
client on the charge he is facing the officer in charge had disclosed
to him that he was under pressure from “court officials” to take
the matter to court. As a result the docket had been processed and
taken to court in one day.
It
turned out that the accused person was taken to court on a summons.
At no time was he detained.
The
legal practitioner did not allude to any evidence to the effect that
it was the trial magistrate who had put the officer-in-charge under
pressure or that the magistrate had any interest in the matter.
It
was for the foregoing reasons that the legal practitioner asked the
magistrate to recuse himself.
Before
responding to the application the public prosecutor desired to
investigate what may have been wild and unguarded, if not
unsubstantiated accusations. He requested a 30 minute adjournment to
enable him to do so.
When
the court resumed, the legal practitioner did not even allow the
prosecutor to respond.
Turning
the entire proceedings into a circus, he made further accusations
against both the magistrate and the public prosecutor. He claimed the
while they were outside the court room after the short adjournment
the complainant had rushed to his vehicle where he was overheard
talking on the phone to an unknown person. He was saying to that
person; “we need to increase the amount of money, may you get
ready.”
The
legal practitioner suggested that the complainant was preparing to
increase the bribe money presumably paid to the magistrate and/or
prosecutor.
He
said after that phone call the complainant had rushed to the public
prosecutor's office.
He
was not done.
He
went on to claim that he had observed the office-in-charge he had
spoken about earlier, hovering around the magistrate's chambers. To
him the magistrate had summoned the officer-in-charge for a reprimand
presumably for having revealed to the accused person that the
magistrate had exerted pressure on him to bring the docket to court.
It
is needless to say that all these allegations were refuted by both
the public prosecutor and the magistrate.
The
prosecutor stated that on the day the complainant was alleged to have
met the magistrate he was nowhere near Filabusi. He was at his farm
in Chegutu. He drew attention to the fact that no link had been
established between the complainant and Mswela or Mhandu, pointing
out that the court could not be expected to recuse itself on flimsy
and baseless allegations.
The
magistrate refused to recuse himself giving sound reasons. He stated
in his ruling that he did not know the complainant. He pointed out
that he was not engaged in any mining business and that even if the
complainant had been overhead making the statement complained of in a
telephone conversation that statement was meaningless.
After
that determination, the trial could not commence because the legal
practitioner for the accused person stated that he had three more
applications to make. He did not disclose the nature of those
applications and did not make any of them.
The
matter was then postponed to 23 November 2016 presumably to allow the
applicant to make the three applications.
On
16 November 2016 the applicant filed a review application in this
court, HC2883/16, contesting the refusal of the magistrate to recuse
himself. Only one ground of review is raised in that review
application namely that;
“The
respondents (the magistrate and the prosecutor general - not the
public prosecutor seized with the matter in Filabusi) have shown bias
against the applicant in the proceedings on CRB338/16 and therefore
should recuse themselves from the trial.”
Apart
from the fact that it is well-nigh impossible for the Prosecutor
General to recuse himself from his constitutional mandate of
prosecuting suspects, no bias is shown throughout the three page
founding affidavit of the applicant upon which the review application
is based.
Instead
it regurgitates the allegations made by counsel in the magistrates
court from the bar, almost word for word.
A
day before the trial was set to resume, the applicant then filed this
urgent application for a stay of the criminal proceedings pending
review.
The
applicant is asking this court to intervene in uncompleted
proceedings of a lower court where that court has issued an
interlocutory order which he is not happy with.
The
general rule is that a superior court should intervene in such
proceedings only in exceptional circumstances of proven gross
irregularity vitiating the proceedings and giving rise to a
miscarriage of justice which cannot be redressed by any other means
or where the interlocutory decision is clearly wrong as to seriously
prejudice the rights of the litigant. See Attorney General v Makamba
2005 (2) ZLR 54 (S) 64C– E.
A
superior court should be slow to intervene in unterminated
proceedings in a court below and should generally speaking confine
the exercise of its power to rare cases where grave injustice must
otherwise result or where justice might not be obtained by any other
means. See Ismail and Others v Additional Magistrate, Wynberg and
Another 1963 (1) SA 1 (A) at page 4; Ndlovu v Regional Magistrate,
Eastern Division and Another 1989 (1) ZLR 264 (H) 269C, 270G.
The
case of Masedza and Others v Magistrate, Rusape and Another 1998 (1)
ZLR 36 (H) is on all fours with the present matter.
In
that case the applicants had become aware of certain facts during the
course of their trial. They applied for the recusal of the magistrate
who refused. The trial was then postponed to enable the magistrate's
decision to be taken on review. They then applied for the stopping of
the criminal proceedings pending review on an urgent basis just like
what the present applicant has done.
In
dismissing the urgent application for stay of criminal proceedings
because the application had no merit, DEVITTIE J made the following
remarks at 37F- G which I fully associate myself with:
“In
determining the power of a superior court to intervene in
unterminated criminal proceedings a distinction must be drawn between
an appeal and a review. Herbstein and van Winsen, Civil Practice of
the Supreme Court of South Africa, 4th edition page 932 explain the
distinction:
'The
reason for bringing proceedings under review or appeal is usually the
same, to have the judgment set aside.
Where
the reason for wanting this is that the court came to a wrong
conclusion on the facts or the law, the appropriate procedure is by
way of appeal. Where, however, the real grievance is against the
method of the trial, it is proper to bring the case on review.
The
first distinction depends, therefore, on whether it is the result
only or rather the method of the trial which is to be attacked.
Naturally,
the method of trial will be attacked on review only when the result
of the trial is regarded as unsatisfactory as well. The giving of a
judgment not justified by evidence would be a matter of appeal and
not a review, upon this test. The essential question in review
proceedings is not the correctness of the decision under review but
its validity.'
Where,
in unterminated proceedings an interlocutory decision is sought to be
set aside on grounds that the court has made a wrong decision in the
proper discharge of its functions the appropriate procedure is by way
of appeal. The general principle is that an appeal will be
entertained only after conviction.”
See
S v John 2013 (2) ZLR 154 (H).
The
applicant has sought the recusal of the trial magistrate because of
perceived bias.
Indeed
it is trite that in an application for recusal the court is not
concerned with actual bias but with whether an appearance of bias
would be created in the mind of a reasonable person aware of the
relevant facts. See S v Bailey 1964 (4) SA 514 (C); Masedza and
Others v Magistrate, Rusape and another, supra at 44D.
None
of the allegations were proved or even substantiated.
They
were made in the most callous manner by a legal practitioner
displaying a lamentable disrespect and a complete disdain of the
integrity of the court to which he is an officer. He did not even
have the courtesy to appraise the court as to the source of his
information.
A
legal practitioner cannot just shoot up and make fanciful accusations
against a judicial officer which he has not investigated and knows
very well that he cannot prove in order to sow the seed of
uncertainity in the proceedings, play to the gallery embarrassing the
court in public and in the process scandalize the court oblivious of
the damage to public confidence in the administration of justice all
in the name of delaying the proceedings for the benefit of a
contemptuous litigant with no respect for the courts.
It
is unacceptable and should in fact be penalized.
I
have no doubt that even the review application that has been filed,
to the extent that it relies on the single ground of bias, has not
the slightest chance of succeeding.
I
therefore cannot exercise my discretion in favour of the applicant to
stop unterminated criminal proceedings. There are simply no grounds
for the magistrate to recuse himself.
Mr
Muzvuzvu was unfortunate to appear as a correspondent on behalf of
Mugiya and Macharaga the legal practitioners of the applicant who are
based in Harare. He and myself exchanged missiles on the conduct of
Norman Mugiya at the magistrates court in Filabusi which is far from
satisfactory and is clearly contemptuous of the court.
I
also desired to know whether the applicant was entitled to seek
shelter under the wings of this court if he is facing contempt of
court charges for failing to obey a lawful order issued by this
court.
Mr
Muzvuzvu acknowledged the difficulty that he had been put into by his
correspondents and to his credit offered to withdraw the application.
In
my view a litigant should not be allowed to file a frivolous and
vexatious application as a fishing expedition, just to test the
waters. Upon realizing that the waters run deep, he then beats a
hasty retreat. If the application is devoid of merit it is
susceptible to being dismissed.
While
still at it I must mention in passing that section 85(1) of the
constitution allows any person acting in their own interests to
approach the court alleging that a fundamental right or freedom
contained in chapter 4 has been infringed. Subsection (2) of section
85 provides that an approach to the court in terms of subsection (1)
of s85 shall not be denied only on the basis that the person has
contravened a law.
In
my view those constitutional provisions do not detract from the
time-honoured legal position that people are not allowed to come to
court seeking assistance if they are guilty of contempt of an order
of the same court.
It
occurs to me that if a litigant who is contemptuous of an order of
this court were allowed to seek the court's assistance when he has
not complied with the court order then the court risks compromising
its integrity and being reduced to a circus.
I
conclude therefore that this case is distinguishable from that
contemplated by s85(2) of the constitution which relates to the
enforcement of a fundamental human right.
It
certainly is not a fundamental human right of the applicant to
disobey a lawful order of this court.
If
he wants protection from this court he must bring himself fully under
the authority of the court not to pick and choose what the court
should do.
This
is a matter in which I would have considered awarding costs against
Norman Mugiya de bonis propriis if the respondents had appeared.
However,
although I had directed the applicant to serve the notice of set down
upon the respondents owing to the exigency of the application which
was filed a day before the resumption of trial, Mr Muzvuzvu did not
produce proof of service of the notice of set down. As it is I am
unable to say whether the respondents were aware of the set down
date.
But
even without opposition the application is glaringly without merit
and cannot be granted. In the result, the application is hereby
dismissed with no order as to costs.
Mugiya
and Macharaga Law Chamber C/o Muzvuzvu & Mguni Law Chambers,
applicant's legal practitioners
