IN
CHAMBERS
MAKARAU
JCC: Under
case no CCZ 10/2022, the applicants applied to intervene in certain
ongoing proceedings brought by the first respondent against the
second and third respondents. The
essence of the order sought in these ongoing proceedings is a
declaration that the second respondent failed to fulfil a
constitutional obligation, the precise nature of which is yet to be
determined.
I
shall hereafter refer to these ongoing proceedings as “the main
matter”.
The
application for intervention was placed before me for determination.
Before the hearing of the application, the applicants made an
application for my recusal.
After
hearing submissions from the parties and counsel, I dismissed the
application for recusal with no order as to costs. I indicated that
reasons for the order would follow in a written judgment.
This
is the written judgment.
The
application for recusal was filed by the first applicant who alleged
that he was bringing it in his own right and on behalf of the other
applicants. He deposed to the founding and only affidavit in the
matter.
In
purporting to act on behalf of the other applicants, the first
applicant relied on the authority that he had been granted by the
other five, purportedly authorising him to file the application for
intervention in the main matter.
Authority
to bring the application for recusal on behalf of the other
applicants was not furnished, an observation correctly made by the
second respondent.
As
a consequence, for want of authority on the part of the first
applicant to represent them, the other applicants were not before me.
In
addition, the applicant purported to act for two companies
incorporated in the British Virgin Islands and a third incorporated
in Zambia. These are the third, fourth and fifth applicants
respectively.
Being
foreigners, the three companies ought to have furnished security for
costs in accordance with the rules of court.
Not
having done so, the three companies were, in addition to the want of
authority on the part of the first applicant, also not properly
before me.
The
application was however not defeated by the above non-compliance with
the rules of procedure as the first applicant could bring and
motivate the application in his own right.
Background
The
first applicant is the founder member of the sixth applicant which is
described in the founding affidavit as a networking association of
persons who share a common interest to promote, protect and uphold
unwavering respect for constitutionalism. However, the sixth
applicant's constitution was not attached to the affidavit to show
the ambit of its powers and in particular, that it has the power to
participate in proceedings such as were before me.
There
is an intricate relationship between the second applicant and the
three foreign companies. For the purposes of this application, it was
not necessary for me to unpack the layers of shareholding that link
the four companies to each other and to the first applicant.
Clearly,
the first applicant has an interest in varying degrees, in the other
five applicants.
As
the basis for the application, the applicants relied on two decisions
of the High Court that were handed down in 2005 and in 2007
respectively. I was the presiding judge in respect of both matters.
Both
High Court applications were dismissed on the preliminary issues that
arose before the merits of the applications could be related to. It
is thus common cause that in both matters, the merits of the
applications were neither argued nor pronounced on.
Notwithstanding
that, the applicants are of the firm belief that it was because of
the two decisions that the State was able to acquire the second
applicant and other companies in which the first, third, fourth and
fifth applicants held investments.
The
application was opposed by the second and third respondents.
They jointly submitted that recusal had been sought on an improper
basis because the matters that fell for determination in the High
Court were distinct from the application for intervention that was
before me. It was their further contention that the applicants had
failed to rebut the presumption of judicial impartiality that
attaches to each judicial officer.
Although
the first respondent had not filed any papers in the application, he
was granted an opportunity to make submissions in respect of the
issue that was before the court, which opportunity he used to solidly
support the position of the applicants.
Whilst
I stand by the observations made by this Court in
Mupungu
v Minister of Justice, Legal and Parliamentary Affairs & Ors
CCZ
07/21
that an application for recusal is in essence a conversation between
the apprehensive litigant and the court and in which conversation the
other party can listen in, I was grateful for the points and
observations made by the second and third respondents and their
counsel.
In
coming to my decision, I however did not seek to rely on these.
I
also did not make a definitive ruling on the issue raised by the
applicants that the second respondent was not properly before me, he
being represented by a private law firm as opposed to being
represented exclusively by the office of the Attorney-General.
I
left that issue open for determination in the main matter if at all
that becomes necessary.
As
indicated above, at the centre of the application for recusal are two
matters determined in 2005 and 2007 respectively.
The
first matter was THZ
Holdings Limited v ZIMRE Holdings and Another
HC542/05 whose hearing was consolidated by consent with that of ZIMRE
Holdings Limited v the Zimbabwe Stock Exchange and Another
HC632/05. The two matters concerned approval of an amendment to the
rights offer by ZIMRE Holdings Limited, a company in which THZ
Holdings Limited had an interest. The first applicant had interests
in THZ Holdings Limited.
A
preliminary point arose in both matters as to the capacity of the
first applicant herein, Mutumwa Dziva Mawere, to depose to an
affidavit on behalf of THZ Holdings Limited, a company incorporated
in the United Kingdom. It was contended by ZIMRE Holdings Limited and
correctly so in my view, that the deponent to the founding affidavit
was disabled from doing so by virtue of the provisions of the
Presidential Powers (Temporary Measures) (Reconstruction of State
Indebted Insolvent Companies) Regulations 2004, the applicable law at
the time. The order of the High Court accordingly upheld the
preliminary point and dismissed the application by THZ Holdings
Limited on that basis.
The
second matter was SMM
Holdings Limited v The Minister of Justice Legal and Parliamentary
Affairs
HC12064/05.
This
was a review application in which the second applicant sought to have
reviewed the decision of the respondent in that matter to issue a
reconstruction order against it. The application was filed outside
the time limited by the rules of court for a review application. As a
consequence, the review was not properly before the court and was
accordingly dismissed on that basis. This made it unnecessary to
determine the merits of the application.
The
issue that then fell for determination in the application for recusal
was whether or not the High Court orders detailed above disabled this
court from determining the application for intervention by the
applicants in the main matter.
The
Law
The
law of recusal is settled. It is the law against bias.
Quite
apart from the constitutional guarantees in favour of the right to a
fair trial before an independent and impartial court provided for in
section 69 of the Constitution, the common law practised in this
jurisdiction has long recognised and applied the law against bias.
The constitutional provision may be viewed to have been enacted in
abundance of caution so as to locate the law against bias in the
supreme law of the land. It is an additional safeguard to that which
the common law has long provided.
The
law against bias seeks to balance two equal positions at law. These
are the duty of every judge to sit and determine all matters
allocated to him or her unless, in the interests of justice, recusal
is necessary.
Expressing
himself on the two competing positions, in South
African Commercial Catering and Allied Workers Union and Others v
Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 (3)
SA 705 (CC), 2000 (8) BCLR 886
Cameron AJ had this to say:
“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.'”
Recusal
is therefore not to be had for the mere asking. It has to be validly
taken.
In
President
of the RSA and Others v South African Rugby Football Union and Others
1999
(4) SA 147 (CC), 1999 (7) BCLR 725,
the
following approach was recommended when considering applications for
recusal:
“It
follows from the foregoing that the correct approach to this
application for the recusal of members of this Court is objective and
the onus of establishing it rests upon the applicant. 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 Judge 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.”
This
is the approach that guided me in this matter.
Analysis
The
two matters that came before the High Court in 2005 and 2007
respectively were both disposed of on preliminary points. This is
common cause.
The
law against bias prohibits a judicial officer who has already
expressed himself or herself on the merits of the matter at hand, in
or out of court, from sitting in determination of such merits. It
prohibits a judicial officer who will not bring an open mind to bear
on the matter to be determined to sit in adjudication of such a
matter. Mere exposure, without comment, to the merits of the matter
is not an adequate and valid basis for seeking recusal.
Per
contra,
the prohibition does not extend to judicial officers who make
findings on preliminary issues only.
This
is so because, borrowing the language of Ngcobo CJ in President
of the RSA and Others v South African Rugby Football Union and Others
(supra),
a judicial officer who limits himself or herself to disposing of a
matter on procedural issues remains of a
mind open to persuasion by the evidence and the submissions of
counsel on the merits.
The
above position at law applies where the court that disposed of the
matter previously on preliminary issues is called upon to determine
the matter on the merits. Such a court is not disabled from
proceeding to pronounce itself on the merits of the matter at a
future date.
In
addition to the above position and in any event, I was not called
upon to determine the merits of the two applications that were
determined in the High Court in 2005 and 2007 respectively. I would
have no jurisdiction to do so as this Court can only determine
constitutional issues.
It
appears, with respect, that the first applicant conflated the causes
of actions that were before the High Court in 2005 and 2007
respectively and the cause of action that he seeks to intervene in.
The
two applications in the High Court were all brought on common law
causes of action. The application that he and the other applicants
seek to intervene in can only raise constitutional issues. The two
are as similar as chalk is to cheese. They call for different
jurisdictions which jurisdictions are triggered differently.
Different legal considerations are brought to bear in the
determination of each.
It
also occurred to me that the merits of the conduct of the second
respondent, the purported cause of action in which the applicants
sought to intervene, did not and could not have arisen in the two
applications that were before the High Court in 2005 and 2007
respectively.
This
is so because the law creating the special jurisdiction of this Court
under which the conduct of the President can be reviewed was not in
place then, it being a creature of the Constitution adopted in 2013.
Any
remarks by the High Court in 2005 or 2007 regarding the
constitutional validity of any action that the President may have
taken in relation to the interests of the applicants, if any were
made by that court, would have been grossly irregular as the High
Court then did not have the special jurisdiction that this Court has
now been endowed with. It still does not have such jurisdiction.
Notwithstanding
the above, I anxiously perused the two judgments to establish
whether, in an unguarded moment, the High Court may have adverted to
the merits of the matter that fall to be determined in the
application for intervention or in the application against the second
and third respondents in the main matter.
I
was satisfied that it did not.
Indeed,
the first applicant, who has been most uncomplimentary and openly
contemptuous of my reasoning capacity and legal acumen, agreed with
me on this single score that the High Court did not go beyond the
preliminary issues. He gratuitously went on to suggest that my
conduct in the High Court should be investigated for failing to deal
with the merits of his grievances as both applications were on
matters of immense importance to him and others who had invested in
the second applicant.
Disposition
Regarding
costs, I saw no reason for departing from the general position not to
award costs in a constitutional matter.
This
was so notwithstanding the invective language that the first
applicant employed in both his written application and oral
submissions which provoked the second and third respondents into
entreating the court to make a punitive award of costs.
The
language did not distract the court from the issue at hand.
The
above therefore constitute the reasons for the order made on 9 March
2022 dismissing the application with no order as to costs.
Dube,
Manikai & Hwacha, 2nd
and 3rd
respondents legal practitioners
