Unopposed
Roll
MAKONI
J:
On
the day of hearing this matter, I issued an order in the following
terms:
“1.
The decision of the 2nd
Respondent of dismissing the Applicants' application for recusal in
Case No. CRB12586/15 be and is hereby set aside.
2.
That the proceedings in case number CRB12586/15 commence de
novo
before another Magistrate.
3.
That there be no order as to costs.”
I
indicated that reasons will follow later. These are they.
The
applicants were arraigned before the magistrate court facing one
count of fraud. The trial commenced. The state closed its case. The
defence applied for discharge at the close of the state case.
On
7 April 2016 the second respondent dismissed the application and
ordered that the applicants commence the defence case.
Instead
the applicants applied for a postponement of the matter on the basis
that they needed to consider the decision to dismiss their
application and whether they needed to invoke the review procedure.
The
application was dismissed on the basis that the applicants ought to
have known the matter could proceed to the defence case.
The
matter was kindly deferred to 14 April 2016.
In
the meantime the applicants filed an application for review of the
decision of the second respondent.
On
14 April 2016, the applicants made an application for a postponement
of the matter on the basis that they had filed an application for
review and an urgent chamber application for stay of the criminal
proceedings pending the determination of the application for review.
The
application was dismissed on the basis that the pending applications
were not an order of court staying proceedings.
The
matter was postponed to 25 April 2016.
On
that date, the second applicant appeared with a letter from his
doctor that he was not feeling well. He applied for a postponement
which application was dismissed.
The
matter was finally postponed to 27 April 2016.
On
27 April 2016, the applicant's legal practitioner was engaged in
the bail and motion courts at the High Court. He sent a letter to
that effect with the applicants.
The
court refused to accept the letter but stood the matter down to
11:15.
At
11:15 another legal practitioner appeared and applied for a
postponement to 5 May 2016 at 14:15hrs as that was the only time
available.
The
matter was however postponed to 3 May 2016.
On
that date another lawyer appeared and applied for a postponement to
15 May 2016 at 14:15hours.
The
court again refused.
The
public prosecutor indicated to the applicants that they could proceed
to make the application for recusals to the magistrate as indicated
in their letter of 26 April 2016. The legal practitioner then
requested to meet the trial magistrate and the prosecutor in chambers
where the legal practitioner indicated his intention to apply for the
recusal of the magistrate.
The
application was dismissed and the applicants filed the present
application.
The
applicants grounds for review can be summarised as:
(1)
gross unreasonableness of the decision of the magistrate in
dismissing the application for recusal.
(ii)
Bias on the part of the magistrate which would result in a gross
violation of the applicant's inalienable right as enshrined in
section 69(1) and 70(1)(a).
The
application was served on the respondents and none of them opposed
the application.
The
order was granted, on the unopposed motion roll it was made clear
that the application was being granted for the sole reason of the
notice of opposition filed by the second respondent.
Since
the application was not opposed, it will not be necessary for me to
look at the law relating to recusal of a presiding officer and the
review of unterminated proceedings.
I
felt compelled to write this judgment after having perused the notice
of opposition filed by the trial magistrate to the application for
review of his decision to dismiss the application for discharge. This
was cited by the applicant, in the present matter to show bias on the
part of the presiding magistrate.
It
was the applicant's contention that after having had sight of the
notice of opposition, they had grounds for suspecting that justice
will not be administered in an impartial and unbiased manner.
In
para 8(iv) the second applicant states the following:
“I
submit that the use of the following words in the above mentioned
paragraphs of the ruling dismissing applicants discharge application,
have led the 1st
applicant to entertain a genuine apprehension that the matter would
not be impartially adjudicated.”
The
applicants complain that:
(i)
The trial magistrate went beyond merely standing by his ruling.
(ii)
The conclusive views expressed by the second respondent on the guilty
of the accused before his defence case were the basis for his
apprehension on bias.
(iii)
Both the trial magistrate and the prosecution were represented by the
same legal practitioners in opposing the application for review and
the urgent chamber applications.
I
had occasion to deal with the propriety of a trial magistrate
deposing to an opposing affidavit in Makandi
Tea and Coffee Estate (Pvt) Ltd v The Attorney General of Zimbabwe
N.O and Gapara N.O
HH595/15.
I relied on the authority of
Leopard
Rick Hotel (Pvt) Ltd v Warrent Construction (Pvt) Ltd
19944 (1) ZLR 255 (S) 278B-F where the following was stated:
“Such
belief in the mind of the reasonable litigant is bound to be
heightened by the fact that not only has the arbitrator refused to
recuse himself, but he has descended into the arena of battle by
actively participating in the proceedings for his removal and making
common cause with the party maintaining that he should not recuse
himself.”
The
court continued at 279B-F:
“In
my view, in circumstances such as these, an arbitrator, umpire, judge
or other adjudicating body has one of two choices. The first is that
he could file an affidavit setting out facts which he considers may
be of assistance to the court. So long as such facts are stated
colourlessly, on-one could object, but if the affidavit should err
plainly in support of one of the parties it might expose the
adjudicator to the odium of the court.
It
is most undesirable that any arbiter or other adjudicator of a
dispute should appear to be pitching camp with, or rendering
assistance to, one of the contestants to the dispute before him. For
the other party is likely to gain that impression that the arbiter
and his adversary are conspiring against him. And such an impression
would reinforce his belief that the arbiter is biased against him.
See the remarks of McNally
JA
in Blue
Ribbon Foods Ltd v Dube NO & Anor
1993 (2) ZLR 146 (S) at 148.
When
the arbiter makes common cause with one of the parties in such
proceedings, any facase of justice is shattered; the arbiter is seen
to have descended into the arena with the possible consequential
blurring of his vision by the dust of battle. Unconsciously, he
deprives himself of the advantage of calm and dispassionate
observation.
The
second choice of the arbitrator or umpire when served with notice of
motion for his removal, or to set aside his award, is to take no
action and abide by the court's decision.”
In
casu,
the applicants can be excused for believing that the respondent had
pitched camp with or rendering assistance to the one of the
contestants, who is the State, in this matter.
Both
respondents were represented by the same legal practitioners which
created the impression, in the minds of the applicants, that the
respondents were conspiring against them.
The
second respondent expressed some very strong views regarding the
culpability of the applicants before they had presented their defence
case.
The
applicants can be excused for believing that were the trial to
continue before the same magistrate, it was for purposes of going
through the motions of a trial when the arbitor had already made up
his mind.
At
p3 of the cyclostyled judgment in Makondi
Tea Estates supra
it made the following remarks:
“The
proper approach in this matter would have been for the second
respondent to set out facts which he considered would be of
assistance to the court and end there; in the alternative, he would
have asked a representative of the first respondent to file the
opposing affidavit rather than file an affidavit where he clearly
supports one side.”
I
would add the third option, is to take no action and abide by the
court's decision.
It
might be comforting for magistrate to know that reviews are dealt
with on the basis of what is contained in the record which they
compile during the course of proceedings. The court will merely be
enquiring whether there were any irregularities in the course of the
proceedings which would warrant interference. The opposing affidavit
by the magistrate does not add much value to the review proceedings
except in so far as it clarifies facts.
It
is for the above reasons that I decided to set aside the second
respondent's decision not to recuse himself.
The
other reasons proffered by the applicants such as dismissal of
applications for postponement.
(i)
On the basis that the applicants needed to prepare for their defence
case after the application for discharge was dismissed is devoid of
merit. The applicants must have been prepared because an application
can either be granted or refused.
(ii)
That the second applicant was sick. The medical report he produced
did not suggest that he was not fit to stand trial but that he be
allowed to sit down during the proceedings.
(iii)
That the applicant's legal practitioners had matters in the High
Court. There is a possibility that the legal practitioner might have
double booked himself. The best course would have been for him to
instruct another legal practitioner rather than send the applicants
with a letter to the court.
In
the result, the decision by the second respondent to refuse an
application for his recusal, in the face of the notice of opposition
he deposed to, is so unreasonable that no reasonable authority could
ever have come to it. I will therefore make the following order.
(1)
The decision of the second respondent of dismissing the applicants
application for recusal in case number CRB12586/15 be and is hereby
set aside.
(2)
The proceedings in case number CRB12586/15 commence de
novo
before another magistrate.
(3)
There be no order as to costs.
Mahuni
Gidiri Law Chambers, applicants
legal practitioners
