Recusal re: Approach, Presumption of Judicial Impartiality, Nemo Judex in Sua Causa and the Doctrine of Necessity

HH139-09 : THE STATE vs KISIMUSI E DHLAMINI AND GANDHI MUDZINGWA AND ANDRISON MANYERE
Ruled By: BHUNU J

At the commencement of the hearing, counsel for the respondents raised an objection in limine seeking my recusal, primarily on the basis that the allegations made in paragraphs 6.3 to 6.4 of the opposing papers, concerning the way I handled the matter place me in an invidious position such that I cannot make an objective ...

HB132-11 : THE STATE vs GRESHAM DUBE
Ruled By: KAMOCHA J and NDOU J

When something like this happens at a small station like Plumtree Magistrates Court a magistrate from another station should be called to deal with the matter for justice not only to be done but to be seen to be done.A magistrate from another station would not have imposed such an outrageous sentence in the circumstances. ...

HMA17-18 : AUBREY CUMMINGS [2] vs THE STATE
Ruled By: MAWADZE J and MAFUSIRE J

This was meant to be a criminal appeal. It did not proceed. The appellant asked for my recusal. I obliged. The matter was removed from the roll. My brother, MAWADZE J, and I, felt it unprofitable to get embroiled in the merits of an application for recusal. But, our decision in this regard should not be ...

This was meant to be a criminal appeal. It did not proceed. The appellant asked for my recusal. I obliged.

The matter was removed from the roll. My brother, MAWADZE J, and I, felt it unprofitable to get embroiled in the merits of an application for recusal. But, our decision in this regard should not be taken as having set a precedent. We avoided tussling with counsel purely so that justice might be seen to be done. The reasons for seeking my recusal were nebulous.

Here are the facts.

On 6 June 2017 the Regional Magistrate's Court at Masvingo convicted the appellant on two counts of rape. He was sentenced to fifteen years imprisonment three of which were suspended for five years on the usual condition of good conduct.

The appellant appealed to this court against both conviction and sentence. Pending the appeal, he applied for bail. I heard the application. By judgment no. HMA33-17, handed down on 4 July 2017 [“the bail judgment”], I dismissed the application. The major ground for dismissing the bail application was that the appeal had no prospects of success on the merits. Even though the applicant was not a flight risk, I judged that it was in the interests of justice that the operation of the judgment of the court a quo, and the execution of the sentence, should not be interfered with.

The appellant did not appeal the bail judgment.

Some few minutes before the start of the hearing of the appeal, counsel for both parties approached me in Chambers. Counsel for the appellant advised that the appellant was feeling very uncomfortable with me being part of the appeal panel. It was said that, in the bail judgment, I had expressed very strong views about the lack of prospects of success of the appeal. As such, he felt I was likely to remain unmoved by whatever else he might say on appeal.

The issue was being raised at the eleventh hour. Yet the appeal had been set down for hearing several months in advance. In fact, the hearing had been twice postponed. On no occasion had any intimation been given that my recusal would be sought. Counsel for the appellant explained that he himself had no issue. He had come prepared to argue the appeal. However, the appellant had, at the last minute, raised the matter and had insisted that he felt he would not get a fair hearing if I remained on the appeal panel.

In the event that I recused myself, counsel for the appellant suggested that a new panel could be reconstituted or that the record could be transferred to the Harare station. Counsel for the State saw no conflict or difficulty if I remained on the panel. However, she had no real objection to the appellant's request.

I intimated to counsel that I did not consider myself to be conflicted or in any way incapacitated as to warrant my recusal, but that, nonetheless, I did not want to be seen as wanting to cling onto the matter as if I had cultivated a special interest in it. I said I would discuss the matter with MAWADZE J.

In court, counsel made formal submissions on the request for recusal. The matter was removed from the roll.

We have said that our decision in the present matter should not be taken as having set a precedent because the request insinuates that justice is justice only when a litigant wins a case and that it is not justice when they lose. What the recusal application in this matter boils down to is that, if I had granted the application for bail, the appellant would have been quite happy to let me sit on the appeal panel. On that kind of logic, there is no reason why the State, if I had granted bail, should not have sought my recusal also.

The administration of justice simply does not function that way.

It is, of course, the right of every litigant to seek the recusal of a judicial officer who may be conflicted or whose impartiality is not guaranteed. A judicial officer should not unduly take a recusal application as a personal affront. Section 69(2) of the Constitution says that, in the determination of civil rights and obligations, every person has a right to a fair, speedy and public hearing within a reasonable time before an independent and impartial court, tribunal or other forum established by law: see Mangenje v TBIC Investments [Pvt] Ltd / TBIC Investments [Pvt] Ltd & Anor v Mangenje2014 [2] ZLR 401 [H].

Recusal is the stepping aside, or disqualification, of a judicial officer from a case on the ground of personal interest in the matter, bias, prejudice, or conflict of interest. It is a rule of natural justice. No man should be judge over his own cause, or nemo judex in sua causa: see Council of Review, South African Defence Force & Ors v Monning & Ors 1992 [3] SA 482 [A]…, and President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors1999 [4] SA 147…,. Thus, a judicial officer who has cultivated an interest in a matter before him or her, be it financial, personal or whatever else, is required by the rules of natural justice that he or she should recuse himself or herself: see Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd2001 [1] ZLR 226 [H]; S v Mutizwa2006 [1] ZLR 78 [H] and Mahlangu v Dowa & Ors 2011 [1] ZLR 47 [H].

However, recusal is not just there for the asking. It is important to realise that judicial officers have a duty to sit and decide cases before them and in which they are not disqualified. They should not too readily accede to suggestions of bias or other interest in the matter. The High Court of Australia put it this way in Re JRL: Ex parte CJL(1986) 161 CLR 342 [HCA]…,.:

“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearances of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

A judicial officer whose recusal has been sought has to decide the application in the first instance. If he or she refuses the recusal, and that decision is wrong, it can always be corrected on appeal: President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors1999 [4] SA 147…,. In essence, therefore, this is an exception to the rule against someone becoming judge over their own cause.

By reason of their training, experience, conscience and intellectual discipline, it must be assumed that judges are able to administer justice without fear or favour, and capable of judging a particular controversy fairly on the basis of its own circumstances. It must be assumed that they are able to dis-abuse their minds of any irrelevant personal beliefs and predispositions: President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors1999 [4] SA 147…,.; also Mahlangu v Dowa & Ors 2011 [1] ZLR 47 [H]…,.

Furthermore, on being appointed, every judge takes and subscribes to the judicial oath “…, to do right to all manner of people after the laws and usages of Zimbabwe, without fear or favour, affection or ill-will”: see Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd2001 [1] ZLR 226 [H]…,.

There is a presumption that judges will carry out their oath of office. That is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high: President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors1999 [4] SA 147…,.

An apprehension of bias that is whimsical or morbid cannot be a ground for seeking recusal. Some examples may help:

(i) In S v Collier 1995 [2] SACR 648 [C] an application for the recusal of a magistrate on the ground that he was white was refused.

(ii) In S v Mutizwa2006 [1] ZLR 78 [H] recusal sought on the basis that the presiding magistrate had a reputation for imposing stiff sentences was refused.

(iii) In Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd2001 [1] ZLR 226 [H], an application for recusal by one set of shareholders in a newspaper printing and publishing company on the ground that the presiding judge had been a former temporary editor and columnist allegedly of a rival newspaper or competitor was refused on the basis that the applicant had not established any link between the judge and the other party in the main application who also happened to be a co-shareholder in the newspaper printing and publishing company.

(iv) In President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors1999 [4] SA 147, recusal based on alleged professional and/or political and/or family ties between most of the justices of the Constitutional Court of South Africa and the appellant, who happened to be the then sitting president of the country, was refused.

(v) In Mahlangu v Dowa & Ors 2011 [1] ZLR 47 [H], the judge's recusal was sought on the basis that she was married to a member of the police force. The alleged link was that the respondents were also members of the police force. The judge's husband had little or no day to today dealings with the respondents who were either his superiors or subordinates. Recusal was refused.

(vi) In Mangenje v TBIC Investments [Pvt] Ltd / TBIC Investments [Pvt] Ltd & Anor v Mangenje2014 [2] ZLR 401 [H], which was a simple and straightforward application for directions, I refused a request for my recusal which was predicated on my having dealt with some aspect of the dispute between the same parties, where it was clear that the request was morbid and impetuous.

It is hoped that the above exposition of the law on recusal, and the few examples given, will lead to a greater understanding of why this particular case shall not be taken as having set a precedent. The phenomenon of a two-judge High Court station dealing with all manner of cases, the situation obtaining at Masvingo currently, may be around for an unforeseeable future. A matter may have several facets, such as this one, requiring judges to make interim decisions or orders, before the main dispute is adjudicated upon. Therefore, every case will naturally have to be dealt with on its own merits.

The matter was removed from the roll by consent, pending administrative arrangements by the Registrar, in consultation with the parties, to have the record transferred, or to have the matter re-set down.

HHB40-09 : ERICK TANGWARA vs BHEKISIPO FUYANA
Ruled By: CHEDA J

On the 6th day of February 2009, the applicant filed an urgent chamber application whose relief was couched as follows:- “TERMS OF FINAL ORDER SOUGHT The Provisional Order granted in this matter be and is hereby confirmed in the following terms:- 1. The Applicant be and is hereby given possession of a Nissan Maxima Motor vehicle Reg No: AAX 4540. 2. Respondent to ...

On the 6^th day of February 2009, the applicant filed an urgent chamber application whose relief was couched as follows:-

“TERMS OF FINAL ORDER SOUGHT

The Provisional Order granted in this matter be and is hereby confirmed in the following terms:-

1. The Applicant be and is hereby given possession of a Nissan Maxima Motor vehicle Reg No: AAX 4540.

2. Respondent to pay costs of this suit at Attorney-Client Scale.

INTERIM RELIEF GRANTED

Pending the confirmation or discharge of this provisional order, the Applicant is granted the following interim relief:-

1. The motor vehicle Nissan Maxima Reg No: AAX 4540 be delivered to or impounded by the Deputy Sheriff, Bulawayo and taken to her offices there to be kept pending the finalization of the application for review under case No: HC121/09.

SERVICE OF ORDER

Service of this Urgent Chamber Application and Provisional Order shall be done by the Deputy Sheriff, Bulawayo upon the Respondent.”

The historical background of this matter is that the respondent was a complainant against the applicant in a criminal case, No. HC592/08, which was dealt with at Bulawayo Magistrate Court. The said proceedings are presently under review under Case No. HC121/09. He was charged with fraud and was convicted of the same. While awaiting sentence, and was in custody, he was visited by the trial magistrate (Mrs. Phathekile Msipa), prosecutor, the complainant and his wife. This visit resulted in him ceding his vehicle, a Nissan Maxima Registration number AAX 4540 to the complainant as restitution.

The proceedings at the prison and the subsequent sentence that he received prompted him to make an application for review referred to above.

While awaiting the outcome of the review, it is the applicant's position that the respondent began looking for a buyer so that when the review proceedings are finalized the vehicle in question would have been disposed of.

After perusal of this application, I ordered that the respondent be served and the matter was argued on the 5^thofMarch 2009.

The respondent file a notice of opposition.

His contention is that there was no urgency in this matter, and, as such, the applicant should have proceeded by an ordinary application. His reasons are that the cause of action arose on the 2^ndof December 2008 and the respondent has been in possession of the vehicle ever since. The applicant filed an application for review on 26January 2009 and filed the urgent chamber application on 6 February 2009 which was served on him more than three months after. It is for that reason that he is of the view that there is no urgency.

The circumstances under which the applicant surrendered the motor vehicle to the respondent, while awaiting sentence, if proved to have been irregular would no doubt result in the respondent returning the car to the applicant. In my view, he is aware of that as evidenced by his frantic efforts to dispose of the motor vehicle with haste. It is for that reason that the applicant sought to prevent the disposal of the motor vehicle pending the finalization of the review application.

For that reason alone the matter became urgent and this application was therefore justified.

The respondent has argued that the applicant's surrender of his motor vehicle to him was above board as it was done freely and voluntarily. To buttress his argument, it is his submission that even the applicant's legal practitioner, Mr. Munjanja, relied on the said restitution in mitigation.

I don't see how the submission by Mr. Munjanja, that the vehicle in question is now in the hands of the complaint, can be proof of a voluntary surrender in the absence of an explanation. Mr Munjanja was merely confirming that the respondent was now in possession of the motor vehicle and not the circumstances surrounding the possession.

It is also his argument that he has already disposed of the motor vehicle to his brother who is based in the United Kingdom. He is of the view that the applicant's review application will fail as the surrender of the motor vehicle was voluntarily made.

This is yet to be proved and must be weighed against the potential prejudice to the applicant. The court cannot rely on his mere say-so.

The circumstances surrounding the “surrender” of the vehicle as compensation for the motor vehicle are, to say the least, surreptitious. In addition to this, the respondent's haste in the disposal of the vehicle is questionable. The trial magistrate's name has been mentioned and is being implicated in some wrongdoing. If her involvement in this matter is found to have been outside the call of duty, the proper administration of justice would have been seriously compromised. In order to clear herself of wrongdoing the Chief Magistrate should investigate her role in this matter without delay.

The question, therefore, is, will the applicant suffer any irreparable harm if the provisional order is not granted?

In my view, indeed, the applicant will indeed suffer such harm and no adequate remedy will be available to him. It is therefore in the interest of justice that this motor vehicle should not be disposed of at this stage.

The following order is made:-

INTERIM RELIEF GRANTED

Pending the confirmation or discharge of this provisional order, the Applicant is granted the following interim relief:-

1. The motor vehicle, Nissan Maxima Reg. No. AAX 4540, be delivered to or impounded by the Deputy Sheriff, Bulawayo and taken to her offices there to be kept pending the finalization of the application for review under Case No. HC121/09.

SC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X
Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

I. INTRODUCTIONIn August 1999, three nationals of the United States of America, Gary George Blanchard, Joseph Wendell Pettijohn, and John Lamonte Dixon, were jointly indicted with the commission of two offences:(i) The first was a contravention of section 7(1)(a) of the Aircraft (Offences) Act [Chapter 9:01], as read with section ...

I. INTRODUCTION

In August 1999, three nationals of the United States of America, Gary George Blanchard, Joseph Wendell Pettijohn, and John Lamonte Dixon, were jointly indicted with the commission of two offences:

(i) The first was a contravention of section 7(1)(a) of the Aircraft (Offences) Act [Chapter 9:01], as read with section 360(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], in that on 7 March 1999 they had attempted to place aboard an aircraft dangerous goods, namely, various revolvers, pistols, rifles, knives, and ammunition.

(ii) The second was a contravention of section 37(2) of the Law and Order (Maintenance) Act [Chapter 11:07], in that on the same day they were in unlawful possession of arms of war and offensive materials, consisting of a variety of pistols, revolvers, rifles, firearms, ammunition, knives, teargas, and electric shock devices.

The trial, which was protracted, was presided over by ADAM J and assessors, in the High Court, at Harare. Judgment was delivered on 10 September 1999. The three accused were convicted on both Counts. On 13 September 1999, the learned judge sentenced them to six months' imprisonment with labour on the first Count; and, on the second, to twenty-one months' imprisonment with labour, of which period nine months were conditionally suspended for five years, and six months were to run concurrently with the sentence imposed on Count One.

The effective punishment of six months' imprisonment with labour was then back-dated to 7 March 1999, being the day when the incarceration of the accused as remand prisoners began.

The judgment, on both conviction and sentence, is now reported, sub. nom. S v Blanchard & Ors, in 1999 (2) ZLR 168 (H).

On 15 September 1999, a statement, made by the applicant, then the Attorney-General for Zimbabwe, and presently the Minister of Justice, Legal and Parliamentary Affairs, was published in The Herald newspaper under the headings: “US gunmen's sentence causes outrage, Attorney-General's office expresses shock at court's trivialisation of offence.”

The article that followed reported that:

“The Attorney-General's Office is shocked and outraged by the effective six month jail term imposed on the three Americans convicted for illegal possession of weapons and attempting to take them on board an aircraft. It intends to appeal to the Supreme Court against the sentence which it said had trivialised the seriousness of the crime. In a statement yesterday, the Attorney-General, Mr Patrick Chinamasa, said the sentence handed down by High Court Judge, Justice Adam, 'induces a sense of shock and outrage in the minds of all right-thinking people.'

He said Gary George Blanchard, Joseph Wendell Pettijohn, and John Lamonte Dixon were convicted of offences which were treated as serious by all civilised countries worldwide, including America, which was in the forefront of fighting terrorism and gun-running.

'By imposing sentences which do not match the seriousness of the offences, Justice Adam has in effect trivialised crimes of unlawful possession of arms and has seriously erred in doing so.

The Attorney-General's Office is left bemused by the meaninglessness of it all.

The nation should know and be told that the leniency of the sentences constitutes a betrayal of all civilised and acceptable notions of justice and of Zimbabwe's sovereign interests.

Mere unlawful transiting of firearms through the territory of Zimbabwe is in itself a serious and gross violation of the sovereign and security interests of Zimbabwe.'

Mr Chinamasa said the attitude taken by the court, in meting out sentences which did not match the severity of the crimes committed, came against the backdrop of repeated complaints made to him by his Law Officers of hostility and verbal abuse directed at them and their submissions by the Bench during proceedings. All these developments erode the office's confidence in the administration of criminal justice.”

Reaction to the article led to the issuance of a citation for contempt of court. It was served on the applicant on 28 September 1999. In its amended form the citation reads:

“TAKE NOTICE THAT on the 28th day of September 1999 The Honourable Mr Justice Adam caused a citation to be issued against you whereby YOU ARE TO APPEAR in person before the High Court of Zimbabwe in Harare on the 1st day of October 1999 at 10:00am or soon thereafter to show cause why an Order of Contempt should not be made for the wilful and intentional contemptuous statement issued by you, which statement you caused to be published or alternatively was published in the issue of the 15th September 1999 of THE HERALD, as appears more fully from the attached copy entitled 'US gunmen's sentences causes outrage'.”

II. THE PROCEDURE ADOPTED BY THE HIGH COURT

The hearing of the proceedings initiated by the citation was assigned to BLACKIE J. He immediately appointed a legal practitioner in private practice to appear as amicus curiae to present the complaint against the applicant.

On 1 October 1999, the learned judge held a pre-hearing conference at which the parties agreed to a time-frame for the filing of a Defence Outline by the applicant and written heads of argument by both him and the amicus curiae. The matter was then postponed for a week.

At the commencement of the proceedings, on 8 October 1999, the amicus curiae particularised the passages in the reported words of the applicant which were considered to contain the contempt alleged against him. These were:

(a) The statement that the sentence handed down “induces a sense of shock and outrage in the minds of all right-thinking people.”

(b) The statement that: “By imposing sentences which do not match the seriousness of the offences, Justice Adam has, in effect, trivialised crimes of unlawful possession of arms and has seriously erred in doing so. The Attorney-General's Office is left bemused by the meaninglessness of it all. The nation should know and be told that the leniency of the sentences constitutes a betrayal of all civilised and acceptable notions of justice and of Zimbabwe's sovereign interests.'”;

(c) The statement that: “All these developments erode the office's confidence in the administration of criminal justice.”

Thereafter, counsel for the applicant, acting in terms of section 24(2) of the Constitution of Zimbabwe, requested the court to refer to the Supreme Court for determination a number of questions in respect of which it was contended that the proceedings were in contravention of the Declaration of Rights.

The questions, subsequently re-drafted and re-presented to the Court, were these:

“1. Whether the High Court and/or counsel appearing amicus curiae, can, before the High Court, present allegations of contempt of court in the light of the provisions of section 76 and section 18(2) of the Constitution.

2. Whether the choice and assignment to deal with this matter, by the Judge who passed the sentence which was commented upon in the alleged contemptuous statement of the presiding judge, and the selection of counsel to appear amicus curiae by the assigned judge, violates the Attorney-General's right to appear before an independent and impartial court established by law as provided in section 18 of the Constitution.

3. Whether the order issued by the High Court, on 1 October 1999, which order was issued in the presence of the Attorney-General, and, in respect of which the Attorney-General, when invited, elected to make no submissions:

(a) Violates the Attorney-General's right not to be compelled to give evidence as provided for in section 18(8) of the Constitution, given that he was ordered to file a Defence Outline;

(b) Violates the Attorney-General's right to be given adequate time to prepare his defence as provided for in section 18(3) of the Constitution, in circumstances where the Attorney-General, at no stage, applied for or requested an extension of time, nor did he, at any time, object to the time limits set out in the said order, and, in circumstances where the Attorney-General requested a postponement to 6 October 1999 and then 8 October 1999, to enable him to travel to Zambia on Government business, both requests being granted;

(c) Violates the Attorney-General's rights to examine witnesses as provided for in section 18(3)(e) of the Constitution, in circumstances where he was ordered to file argument relating to the facts and the law before the hearing.

4. Whether the procedure in terms of which the Registrar can issue a court application, which is not supported by any affidavit as to facts, as is provided in Order 43 Rule 389, violates the Attorney-General's right to a fair trial as is provided for in section 18 of the Constitution.

5. Whether the citation issued on 28 September 1999, which calls upon the Attorney-General to show cause why an order of contempt should not be made, violates the presumption of innocence of the Attorney General and unfairly places the onus to prove innocence on the Attorney-General in contravention of section 18 of the Constitution.

6. Whether the contempt proceedings, as particularised, violate the Attorney-General's freedom of expression, that is to say, his right to hold opinions and to express such opinions without interference as is provided for in section 20 of the Constitution.”

After reserving his decision on the questions raised, BLACKIE J ruled that it had not been shown to his satisfaction that question 1 concerned a breach of the Declaration of Rights; and that questions 3 and 4 were frivolous and vexatious within the meaning attributed to the phrase in Martin v Attorney-General & Anor 1993 (1) ZLR 153 (S)…,.

He therefore declined to refer these three questions. His Lordship's detailed reasons for so concluding are to be found at 297B-298A and 299E-300D of the judgment, which is reported in 1999 (2) ZLR 291 (H).

However, the request to refer questions 2 and 6 (as modified in the judgment), as well as question 5, was acceded to.

Added thereto was the further question of whether a person charged with contempt of court falls under the protections provided to a person charged with a criminal offence under section 18 of the Constitution.

The learned judge recast the questions in the following manner:

“1. Whether a charge of contempt of court is a charge of a criminal offence entitling the person charged to the protections afforded by the provisions of section 18 of the Constitution.

2. If the answer to question 1 is in the affirmative:

(a) Whether the procedure whereby a person charged with contempt of court is tried by the court which complains about the contempt violates the right of a person, in terms of section 18 of the Constitution, to be tried by an independent and impartial tribunal.

(b) Whether the citation issued on 28 September 1999, which called upon the accused person to show cause why an order of contempt should not be made against him, violates the presumption of innocence on the part of an accused person in contravention of section 18 of the Constitution.

3. Whether the law of contempt of court, as contained in the common law of Zimbabwe, is such as cannot be shown 'to be reasonably justifiable in a democratic society', and, therefore, is incompatible with the provisions of section 20 of the Constitution.”...,.

VI(A) WHETHER THE PROCEDURE WHEREBY A PERSON CHARGED WITH CONTEMPT OF COURT IS TRIED BY THE COURT WHICH COMPLAINS ABOUT THE CONTEMPT VIOLATES THE RIGHT OF A PERSON, IN TERMS OF SECTION 18(2) OF THE CONSTITUTION, TO BE TRIED BY AN INDEPENDENT AND IMPARTIAL COURT

The contention advanced by the applicant is that the High Court, which he is accused of having scandalised, is the very one which is to determine whether the statements he made were contemptuous of it; it will thus be acting as judge in its own cause.

Expressed differently, the injured party is not, in the circumstances, an independent judicial body. It cannot impartially adjudicate when it itself has been offended against and has issued the citation. Consequently, any proceedings brought before the High Court would amount to a contravention of the applicant's rights under section 18(2) of the Constitution. A fair hearing would be denied him.

The contention, which must be assessed against the factual situation, and not hypothetically, raises the question of whether there is a real or substantial risk of BLACKIE J, or any judge of the High Court (other than ADAM J, for there was never any prospect of him being chosen as the adjudicator) being unable to disabuse his or her mind of extraneous and prejudicial information or attitudes which they are not entitled to consider in reaching a decision.

I am satisfied that only the remotest possibility exists of a judge, imbued with basic impartiality, legal training, and the capacity for objective and un-emotional thought, being consciously or subconsciously influenced by extraneous matter.

I would repeat what was said in Banana v Attorney-General 1998 (1) ZLR 309 (S)…, 1999 (1) BCLR 27 (ZS)…,….,:

“To accept that there is a real or substantial risk of a judge's mind becoming so clogged with prejudice by what he has read or heard about an accused, would mean that it would be impossible to find an impartial judge for a high profile case; and that such an accused could never receive a fair trial. The result would be nothing less than judicial abdication. The proposition needs merely to be stated to convince of its unsoundness.”

I regard the decision to assign the matter to BLACKIE J as entirely proper. He was not the author of the judgment criticised by the applicant. He had not been involved at any stage of the proceedings brought against the three accused. It was not his personal dignity, respect, and professional ability that had been injured. To suggest, therefore, that BLACKIE J (or any other judge for that matter) is incapable of dealing with the proceedings in an impartial and objective manner since the criticism levelled directly at a colleague affected the authority of the High Court in the administration of justice, is wholly unconvincing....,.

In In re: Muskwe 1992 (1) ZLR 44 (H), 1993 (2) SA 514 (ZH) ADAM J held that the right of an accused person, under section 18(2) of the Constitution, to be tried by an independent and impartial court established by law, had been denied in a situation in which the magistrate at whom the contemptuous conduct had been directed, presided over the contempt proceedings which followed.

For this involved the magistrate being arbiter in his own cause.

The Canadian case of R v Cohn (1985) 10 CRR 142 (Ont. CA)…., is to the same effect…,.: see also Uncedo Taxi Service Association v Maninjwa & Ors 1998 (6) BCLR 683 (E)…, 1998 (3) SA 417 (E)…,; MILTON, South African Criminal Law and Procedure 3ed, Vol II…,.

HHH84-10 : ALBERT MATAPO and OTHERS vs MAGISTRATE BHILA and THE ATTORNEY GENERAL
Ruled By: UCHENA J

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.

Generally, this court does not encourage the bringing of unterminated proceedings for review.

There are, however, circumstances which may justify the reviewing of un-terminated proceedings. This means, this court will not lightly stay proceedings pending review.

An application of this nature can only succeed if the application for review has prospects of success.

In the case of Masedza & Ors v Magistrate, Rusape & Anor 1998 (1) ZLR 36 (HC) DEVITTIE J…, said:

“If an allegation of bias has been proved the proceedings, are a nullity. Therefore, it would be unjust to require that the accused go through the motions, if he is convicted, (sic) of the sentencing process, followed by an appeal or review in respect of proceedings proved to be abortive at the stage of the application for recusal.

Thus, in S v Herbst 1980 (3) SA 1026 (C), where the facts showed that the magistrate's conduct of the proceedings might have created the impression 'in the mind of the right-minded layman that he was unfavourably disposed towards the applicant', the court intervened in unterminated proceedings by setting aside the proceedings and referring the matter for hearing de novo before another magistrate. It was not necessary, the court stated, to show that the magistrate was in fact biased.”

The probability of the proceedings being a nullity justifies the stopping of the proceedings pending a determination of their validity by the Reviewing Court. It would be prejudicial to the accused, and a waste of time and resources, for the trial court to carry on with a trial which is likely to be declared a nullity.

The success of the application for review depends on whether or not the application for recusal was one which the magistrate should have granted.

Judicial officers generally recuse themselves on their own motion (sua sponte), or on application by a party, on realizing the presence of facts disqualifying them from presiding over a case.

If the judicial officer does not recuse himself in such circumstances, a party who applies for the judicial officer's recusal, and his application is turned down, is most likely to succeed if he applies for the stay of the proceedings pending review.

The present case does not fall into that class of cases where the reason for recusal is easily identified. It falls in the class of cases where the reasons for recusal are not actual bias i.e. bias against a party, personal knowledge about the case, personal interest, or a close relative's interest in the case, etc.

The intended review in this case involves an appearance of bias, which is the applicants' perception of how the magistrate is conducting their case, based on how he handled preliminary applications in their case, his exposure to information about their case, and his refusal to recuse himself.

Appearance of bias from the dismissal of applicants' applications

Counsel for the applicants submitted that the magistrate's dismissal of the applicant's applications for postponement when their counsel failed to appear in time at 11:30am, and his requiring them to immediately give their Defence Outlines in spite of their having been represented, and that they had not had time to prepare Defence Outlines as prison officers had confiscated their State papers and returned them with some statements missing, reflects an extraordinary eagerness of his and the second respondent to fast track the trial. He submitted that this raises a reasonable apprehension of bias in the applicants.

Counsel for the second respondent submitted, that, the prosecutor who represented the second respondent at the trial before the magistrate had opposed the applicants' applications for postponement. He therefore submitted, that, the magistrate exercised his judicial function in determining an interlocutory issue placed before him by the parties.

It is true that the applicants may perceive the handling of their applications as an indication of the magistrate's bias against them. That, however, is not enough to indicate prospects of success on review.

An application for recusal must be based on a reasonable litigant's apprehension of bias and the apprehension must itself be reasonable.

In the case of Silwana & Anor v Magistrate, District of Piketberg & Anor 2003 (5) SA 597 (C)…, FOXCROFT J said:

“In decisions in recent years, Judges have been reminded that one should not be unduly sensitive about applications for recusal. As HOWIE JA (as he then was) said in S v Roberts 1999 (4) SA 915 (SCA) (1999 (2) SACR 243) para [26] at 923B-C:

'It is settled law that not only actual bias but also the appearance of bias disqualifies a judicial officer from presiding (or continuing to preside) over judicial proceedings. The disqualification is so complete that continuing to preside after recusal should have occurred renders the further 'proceeding' a nullity.'”

Council of Review, South African Defence Force & Ors v Mönnig & Ors 1992 (3) SA 482 (A) is referred to, and also the remarks in S v Malindi & Ors 1990 (1) SA 962 (A)…, where CORBETT CJ said that:

'The common law basis of the duty of a judicial officer, in certain circumstances, to recuse himself, was fully examined in the cases of S v Radebe 1973 (1) SA 796 (A) and South African Motor Acceptance Corporation (Edms) Bpk v Oberholzer 1974 (4) SA 808 (T).

Broadly speaking, the duty of recusal arises where it appears that the judicial officer has an interest in the case or where there is some other reasonable ground for believing that there is a likelihood of bias on the part of the judicial officer: that is, that he will not adjudicate impartially.

The matter must be regarded from the point of view of the reasonable litigant and the test is an objective one. The fact that, in reality, the judicial officer was impartial or is likely to be impartial is not the test. It is the reasonable perception of the parties as to his impartiality that is important.'”

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)…, the South African Constitutional Court, per CAMEROON AJ, dealing with the concept of apprehension of bias, said:

“The court in Sarfu further alluded to the apparently double requirement of reasonableness that the application of the test imports. Not only must the person apprehending bias be a reasonable person, but, the apprehension itself must, in the circumstances, be reasonable.

This two-fold aspect finds reflection also in S v Roberts 23, decided shortly after Sarfu, where the Supreme Court of Appeal required both that the apprehension be that of the reasonable person in the position of the litigant and that it be based on reasonable grounds.

It is no doubt possible to compact the 'double' aspect of reasonableness in as much as the reasonable person should not be supposed to entertain unreasonable or ill-informed apprehensions. But, the two-fold emphasis does serve to underscore the weight of the burden resting on a person alleging judicial bias or its appearance.

As CORY J stated in a related context on behalf of the Supreme Court of Canada:

'Regardless of the precise words used to describe the test, the object of the different formulations is to emphasise that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity.'

The 'double' unreasonableness requirement also highlights the fact that mere apprehensiveness on the part of a litigant that a judge will be biased, even a strongly and honestly felt anxiety, is not enough.

The court must carefully scrutinise the apprehension to determine whether it is to be regarded as reasonable. In adjudging this, the court super-imposes a normative assessment on the litigant's anxieties. It attributes to the litigant's apprehension a legal value, and, thereby, decides whether it is such that it should be countenanced in law.”

The magistrate's handling of the applications for postponement must be tested against the reasonableness of the applicants and the reasonableness of their apprehension of bias.

The magistrate was aware that the applicants' case was coming before him for trial. He knew their legal practitioner had been in court in the early part of that morning. The rescheduled time for the trial of the applicants' case had arrived. The legal practitioner was no longer in attendance - without having been excused. The State wanted to proceed with the trial.

The fact that the trial was scheduled to take off means the applicants' legal practitioner must have prepared their Defence Outlines. He would have done so with instructions from the applicants. There was therefore no impropriety in the magistrate's order that the applicants should give their Defence Outlines. They were expected to be ready with their Defence Outlines as they knew that the trial date was approaching. They could simply give their Defence Outlines as per the instructions they had given to their legal practitioner.

Though the second and third applicants were not represented, they too knew of the trial date, and should have been prepared to give their Defence Outlines on the trial date.

The first, fourth, fifth, and sixth applicants' allegations, about the disabling prison conditions, could not justify a postponement as their legal practitioner was free to prepare the Defence Outlines, and could easily have asked the State for the alleged confiscated papers.

The magistrate was entitled to make a value judgment on the applications for postponement as they were marred by appearances of delaying tactics. The applicants' apprehension of bias on this aspect is not reasonable and cannot therefore be countenanced in law.

A judicial officer is expected to manage his court in the interest of justice and the efficient administration of justice. The circumstances in which the applications for postponement were dismissed must therefore be carefully considered.

A judicial officer can, in a proper case, insist that a scheduled trial must take off. That would not, in the absence of other apparent motives, be an indication of a reasonable appearance of bias to a reasonable litigant.

In the case of Take & Save Trading CC & Ors v Standard Bank of South Africa Ltd 2004 (4) SA 1 (SCA) HARMS JA, commenting on a situation similar to the one arising in this application, said:

“Everyone is entitled to a fair trial and that includes the right to a hearing before an impartial adjudicator. This common law right is now constitutionally entrenched. Present a reasonable apprehension of bias, the judicial officer is duty bound to recuse him or herself. The law in this regard is clear, having been the subject of recent judgments of both this court and the Constitutional Court, and does not require any restatement. It is nevertheless convenient, for present purposes, to quote the following extracts from a Constitutional Court judgment for purposes of emphasis and because they are particularly germane to this case:

'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.

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 the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.

That is one side of the coin. The other is this:

A criminal trial is not a game where one side is entitled to claim the benefit of any omission or mistake made by the other side, and a judge's position, in a criminal trial, is not merely that of an umpire to see that the rules of the game are observed by both sides. A judge is an administrator of justice, he is not merely a figure head, he has not only to direct and control the proceedings according to recognised rules of procedure, but to see that justice is done.

The same applies to civil proceedings: a judge is not simply a 'silent umpire'. A judge is not a mere umpire to answer the question 'how's that?''

LORD DENNING once said:

'Fairness of court proceedings requires of the trier to be actively involved in the management of the trial, to control the proceedings, to ensure that public and private resources are not wasted, to point out when evidence is irrelevant, and to refuse to listen to irrelevant evidence.'

A supine approach towards litigation by judicial officers is not justifiable either in terms of the fair trial requirement or in the context of resources.

One of the oldest tricks in the book is the practice of some legal practitioners, whenever the shoe pinches, to withdraw from the case (and more often than not to re-appear at a later stage), or, of clients to terminate the mandate (more often than not at the suggestion of the practitioner), to force the court to grant a postponement because the party is then unrepresented.

Judicial officers have a duty to the court system, their colleagues, the public and the parties to ensure that this abuse is curbed by, in suitable cases, refusing a postponement. Mere withdrawal by a practitioner or the mere termination of a mandate does not, contrary to popular belief, entitle a party to a postponement as of right.

A balancing act by the judicial officer is required because there is a thin dividing line between managing a trial and getting involved in the fray. Should the line, on occasion, be overstepped, it does not mean that a recusal has to follow or the proceedings have to be set aside. If it is, the evidence can usually be re-assessed on appeal, taking into account the degree of the trial court's aberration.”

I entirely agree with HARMS JA's comments on the judicial officers' responsibilities in the management of cases that come before them for trial or in preparation for trial. I would only add that this equally applies to magistrates, who, in fact, preside over more cases than judges.

The need for firm control of proceedings is called for as a supine approach will result in avoidable backlogs.

The need for efficient court management by judicial officers must however give in to the delivery of quality justice, which must be seen to be done.

In short, a judicial officer must be firm and fair, allowing genuine applications for postponement, and, turning down those made for dilatory purposes.

I am, in this case, satisfied that the magistrate was merely exercising firm control of the proceedings in circumstances where he was justified to suspect delaying tactics on the part of the applicants and their legal practitioner.

The applicants' suspicion of bias is not justified as they had come to court for trial, and must have, by then, prepared their Defence Outlines through their legal practitioner who could only do so on their instructions.

I therefore cannot stay the proceedings on the alleged appearance of bias due to the magistrate's refusal to grant the applicants a postponement because their legal practitioner had not come to court at the agreed time.

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.

HB100-17 : ELIZABETH SHAVA vs PRIMROSE MAGOMORE N.O. and NATIONAL PROSECUTING AUTHORITY
Ruled By: MATHONSI J

It is becoming fashionable for accused persons appearing before a magistrate who have their applications made in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] for a discharge at the close of the State case to approach this court on an urgent basis seeking an order interdicting the continuation of the trial while they pursue a review of the decision dismissing the application for a discharge at that stage.

The net effect of such an approach is really to render ineffectual the jurisdiction of the Magistrates Court to try offenders and to sit in judgment over such matters.

There can be no doubt that while it is a necessary feature of every adversarial system of justice that there should be a higher court in the hierarchy of the courts to correct judicial errors - that procedure should not be abused: see Mukwemu v Magistrate Sanyatwe N.O. and Another 2015 (2) ZLR 417 (H)…,.

It does not detract from the time honoured principle of our law that this court will only exercise its discretion to interfere with unterminated criminal proceedings where there were gross irregularities in the proceedings or where it is apparent that an injustice may occur if this court does not intervene. Otherwise, this court is generally loathe of exercising its powers of review before the termination of a criminal case.

The applicant was arraigned before a magistrate in Gweru on an assault charge in contravention of section 89(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was alleged, that, on 13 February 2017, she had assaulted her 70 year old neighbour, Emely Moyo, at the gate of her plot, being Plot 10 Treetops, Gweru over a boundary dispute. She pleaded not guilty to the charge and stated, in her Defence Outline, that she had not assaulted the complainant as alleged. Instead, it was the complainant, a woman 22 years her senior, who had assaulted her. She is only 48 years old.

The State led evidence from six witnesses, including three eye witnesses and the complainant, who testified as to how the applicant had caused the complainant to be summoned to the gate before dragging her out causing her to fall. While on the ground, she allegedly punched the complainant in the face twice before onlookers came to her rescue. The medical doctor who attended to the complainant later that day, but compiled a report two days later, also testified. So did the attending police detail who received a report of assault and arrested the applicant.

At the close of the State case, the applicant made an application for discharge on the basis that the State had failed to establish a prima facie case for her to answer. This was because the State witnesses had given “different versions on factual narrations”. Simply put, the basis of the application was that the witnesses were unreliable and had been discredited during cross examination to an extent that no reasonable court could act upon their evidence.

The trial court was un-impressed.

In dismissing the application, the trial magistrate kept her eyes on the ball. She stated:

“It is common cause that there are discrepancies in the testimonies of the State witnesses. The question, however, is whether or not those discrepancies are material or fatal such that one can safely say the State did not manage to prove a prima facie case against the accused. The complainant stated that the accused spat saliva on her face, grabbed her by the collar, pushed her, and she fell down. She also stated that the accused then assaulted her with clenched fists. That evidence was corroborated by the second State witness who stated the same. Not only that, the third and fourth State witnesses stated that the accused grabbed the complainant by the collar, pushed her, and she fell down. They also stated that the accused assaulted the complainant with clenched fists. This is what is material (to) the charge of assault that the accused is facing. The court was convinced that the State has managed to prove a prima facie case against the accused and she has a case to answer.”

The applicant would not accept that outcome.

In HC959/17 she made an application for the review of the magistrate's ruling on exactly ten grounds - none of which are real grounds for review. For instance, she would want the decision set aside on the ground that;

(i) The magistrate “erred on both the law and facts in failing to discharge” her;

(ii) The magistrate “erred both on law and facts and exercised (her) discretion incorrectly”;

(iii) The court erred in ruling that the discrepancies in the State case were not fatal and that the court erred in ruling that the State had proved a prima facie case when it had not.

It occurs to me that the applicant simply does not agree with the decision of the magistrate and has sought to have it reviewed on what are essentially grounds of appeal as opposed to review.

She is clearly entitled to approach this court on appeal but cannot be entitled, on that basis alone, to halt unterminated criminal proceedings which is what she seeks to do in the present application.

Pending the review application, the applicant has come before me on a certificate of urgency seeking interim relief, the stay of the criminal trial in case no. GWP263/17. This is to enable her to prosecute the review of the decision dismissing her application for discharge at the close of the State case.

The second respondent conceded the application.

Counsel for the second respondent submitted that the complainant was not a credible witness because she had admitted, under cross-examination, that she had previously been convicted of assaulting the applicant in respect of the same fight. In addition, it was common cause that there was bad blood between the two of them arising out of their business competition. The other State witnesses are known to the complainant and therefore could not be relied upon.

Christmas having come quite early in the year for counsel for the applicant, he submitted that the applicant has a reasonable apprehension that the trial magistrate is biased against her because;

(i) Firstly, she decided the matter without regard to the submissions made in the written application for discharge.

(ii) Secondly, when an application for review was made to this court, the magistrate refused to postpone the trial proceedings sine die to enable the applicant to prosecute the review application. She elected, instead, to postpone the matter to 21 April 2017 threatening to continue with the trial in the absence of a court order stopping it.

I have already commented on the reasoning of the trial magistrate in rejecting the application. To her, there was sufficient evidence led by the State on the alleged assault to establish a prima facie case for the applicant to answer.

The applicant wanted no other outcome of the application except a discharge because the witnesses were discredited. She simply did not agree with that finding, and, for that reason, the trial should be stopped and the matter taken to be tried by this court.

Regarding the alleged bias, it is significant to note;

(i) Firstly, that this is not relied upon as a ground for review in HC959/17 but appears to be an afterthought.

(ii) Secondly, it is common cause that there has been no application made to the judicial officer for her recusal on the ground that she has exhibited traits of bias.

It means, therefore, that, one can scarcely ignore the possibility that it is being thrown in here out of desperation by a person who cannot accept, that, in the duel obtaining in adversarial criminal proceedings a decision may be made for or against a party.

You do not throw the judicial officer out through the window for arriving at a decision adverse to you. A judicial officer is not biased merely because he or she has made a decision against one party in favour of the other.

I did not accede to the concession made by counsel for the prosecution because I was of the view that it was made without thorough and due consideration of the facts of the matter.

HB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O.
Ruled By: 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 section 182 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 Claver 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 that while they were outside the courtroom, 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)…,.

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)…,.; Ndlovu v Regional Magistrate, Eastern Division and Another 1989 (1) ZLR 264 (H)…,.

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…, 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 un-terminated 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 1998 (1) ZLR 36 (H)…,.

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....,.

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....,.

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.

HH765-15 : JOSPHAT MUKWEMU vs MAGISTRATE SANYATWE N.O. and THE PROSECUTOR GENERAL
Ruled By: MATHONSI J

If it had not been that it goes to the very root of the Declaration of Rights contained in Chapter 4 of the Constitution of Zimbabwe, in particular the right of every person to choose and be represented by a legal practitioner of their choice before any court of law, tribunal, or forum, it would have been comic indeed.

On 17 July 2015, at about midday, a commuter omnibus was making its way to Guruve along Mvurwi-Kanyemba road after allegedly picking up a passenger at an undesignated zone, when the applicant, a Municipal Police Officer at Mvurwi Town Council, pounced.

He allegedly emerged from the tall grass wielding some spikes which he threw in front of the moving commuter omnibus.

Sensing danger, as the spikes no doubt would have slit his tyres into smithereens, the driver is said to have swerved but lost control of the vehicle which overturned and was extensively damaged.

For his troubles, the Municipal Police Officer was charged with contravening a section of the Road Traffic Act [Chapter 13:11] and enlisted the services of Charles Warara, a legal practitioner, to conduct his defence.

After a false start, the trial was set to commence on 18 August 2015 before the first respondent sitting at Guruve Magistrates' Court. Charles Warara could not attend court for some reason or the other but sent his associate, Raymond Wenyeve, to appear in court and apply for a postponement to enable the accused person's lawyer to attend.

The magistrate would have none of it.

Although Raymond Wenyeve had been recalled from leave to do the honours and had no prior knowledge of the case, the first respondent dismissed the application for a postponement and directed that the trial commence immediately.

He would not hear of a referral of the matter to the Constitutional Court on the ground that the applicant's right to a fair trial and to be represented by a legal practitioner of his choice was being violated.

And commence the trial did - even under those circumstances; and, at the end of the day, it was remanded to 25 August 2015 for continuation of trial - a date unilaterally set by the first respondent.

As it turns out, the lead counsel for the accused person, Charles Warara, could not attend court on that date as well forcing the unfortunate Raymond Wenyeve to retrace his steps back to Guruve Magistrates Court.

Once at that court, the ubiquitous Raymond Wenyeve launched another bid to have the matter referred to the Constitutional Court on the basis of a violation of the accused person's fundamental right to a fair trial and denial of legal presentation of his own choice.

He also made an application for the first respondent to recuse himself on suspicion of bias.

While making his application, he must have made remarks which infuriated the magistrate, who not only dismissed the application, but also ordered his immediate arrest for contempt of court - even as the legal practitioner was busy addressing the court.

Raymond Wenyeve was handcuffed by a prison officer and detained until his release at lunch time.

Now, that is some piece of work by any standards.

The conduct of the judicial officer brings to contention the remarks of FALI NARIMAN: Judges' Are They Like Emperors, where he said:

“That Judges must have modesty and humility, that they must know their limits, and that they must not behave like emperors is sound advice.”

The learned author concluded, in that article, by saying:

“No, we don't need judges who behave like emperors. What we do need are those; whom the lust of office does not kill; whom the spoils of office cannot buy; who possess opinions and a will; who have honour and will not lie…,.; who live above the fog in public duty and in private thinking.”

A judicial officer must create an environment in his court which is not only conducive to fairness, fair trial, and justice, but also be seen to be upholding the rights of accused persons.

In his court, justice must not only be done - it must also be seen to be done.

Where legal practitioners, performing their duties of representing accused persons in court, no matter how tenacious they are in the pursuit of their client's rights, are arrested while sheltering under court privilege, then all pretensions at fairness are thrown out through the window. In fact, the whole process of the administration of justice is turned into a mockery, and, in its place, is substituted the law of the jungle - that only might prevails.

A judicial officer must always guard against the excesses of power, against the abuse of judicial authority to settle personal scores.

Counsel for the second respondent submitted that she had indeed confirmed with the public prosecutor handling the criminal trial that the first respondent had ordered the arrest of a legal practitioner representing his client in a court of law.

She was also of the view that it was the first of its kind, rendering her powerless to even begin to oppose the application.

As far back as 1859, JOHN STUART MILL had made the point in his book, On Liberty, that:

“The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection (…,.); the only purpose for which power can be rightfully exercised over any member of a civilised community against his will is to prevent harm to others.”

We live in a tolerant society that recognises the Constitutional right of accused persons to be represented by counsel of their choice in defence of criminal charges.

There should never come a time when the business of representing others becomes a hazardous exercise because a legal practitioner may be dragged away from the bar kicking and screaming while conducting a defence at the whim of a judicial officer.

We must be able to draw the line somewhere and say: this cannot be done!

This case also brings into the fore the offence of contempt of court. It is sometimes referred to as “scandalising the court” or “murmuring judges.”

Given its parentage in the 18th Century, it is unsurprising that this form of contempt tends to deny an accused person the usual Constitutional protections that should be guaranteed. It also creates judicial uncertainty and courts have generally found it difficult to articulate the ingredients of the offence. For one thing, one struggles to grasp both the actus reus and mens rea elements of the offence.

In the present case, a legal practitioner was making submissions before the court to the best of his ability when he offended the magistrate.

Acting as both the prosecutor, judge, and executioner, the magistrate ordered that the legal practitioner be handcuffed and detained. There was no recourse to any other authority thereby sealing the fate of the hapless legal practitioner.

Indisputably, it is a necessary feature of every system of adversarial administration of justice that there should be a higher court in the hierarchy to correct judicial errors and to curb the excesses of judicial officers like the first respondent. Such errors should be capable of being corrected, reversed or varied at a higher level.

I state the obvious when I say, that, in an adversarial system, litigants should have an unrestricted right of appeal or review to serve as a check on the exercise of judicial power in cases where litigants are aggrieved.

Our system provides the applicant with a remedy, that of seeking a review of the proceedings in this court where the applicant is aggrieved. The applicant chose that route and filed an application for review in HC8260/15 which application is now pending and is yet to be determined.

Even after the drama involving the arrest of a legal practitioner, while discharging his duties in court, the first respondent's attention was drawn to the fact that the proceedings had been brought before this court on review. He was asked to defer the criminal trial until the determination of the review application in HC8260/15.

Predictably, the first respondent refused.

Instead, he has directed that the trial resumes on 24 September 2015 - never mind the pending review application.

The applicant has now been forced to bring this urgent application for a stay of the criminal proceedings before the first respondent who is itching to proceed tomorrow.

In that review application, the applicant argues that he has a reasonable apprehension that the first respondent is biased and that his conduct throughout the proceedings means that there is no way the applicant can have a fair trial. For that reason, before the trial resumes, he deserves to be heard by this court on that application.

In my view, the dispassionate manner in which a judicial officer is supposed to conduct proceedings is missing in this matter.

In fact, the first respondent appears determined to try the applicant without further ado and will pull all the stops to achieve that - as if an accused person has no rights at all and as if life itself depends on the trial proceeding.

This is a criminal matter in which the offence was allegedly committed on 17 July 2015. The trial was ordered to commence on 18 August 2015 - exactly one month later. There has been no delay whatsoever, and, as such, one wonders what informs the decision of the judicial officer to proceed with the trial with indecent haste at the expense of justice and fairness.

In order to succeed in securing a stay of proceedings pending the review application, the applicant must establish those factors which would entitle him to a temporary interdict, namely;

(i) A prima facie right;

(ii) An injury actually committed or reasonably apprehended;

(iii) The absence of similar protection afforded by any other ordinary remedy; and

(iv) A balance of convenience favouring the grant of the interdict.

For interdict, it is when the respondents are barred from proceeding with the trial; Boadi v Boadi & Anor 1992 (2) ZLR 378; Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (S).

I am satisfied that all the above requirements have been met and that this is an appropriate case for a stay of the proceedings in the Criminal Court to allow the applicant to pursue the remedy of review which is available to him at law.

Accordingly, the provisional order is hereby granted in terms of the draft order as amended.

HH135-17 : SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA vs THE STATE and MAPFUMO FRANCIS (NO)
Ruled By: 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 applicants 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 14:15 hours.

The court again refused.

The public prosecutor indicated to the applicants that they could proceed to make the application for recusal 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 paragraph 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 guilt 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 Rock Hotel (Pvt) Ltd v Warrent Construction (Pvt) Ltd 1994 (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, no-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 Makandi Tea and Coffee Estate (Pvt) Ltd v The Attorney General of Zimbabwe N.O. and Gapara N.O. HH595-15 I 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 magistrates 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....,.

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.

HHH595-15 : MAKANDI TEA AND COFFEE ESTATE (PVT) LTD vs THE ATTORNEY GENERAL OF ZIMBABWE N.O. and V. GAPARA N.O.
Ruled By: MAKONI J

This is an application for review of the second respondent's decision in which he declined to stay proceedings before him in terms of section 7 of the Arbitration (Resolution of International Investment Disputes) Act [Chapter 7:03] (the Act).

The background to the matter is that the applicant is a company duly incorporated in terms of the laws of Zimbabwe, which is in the business of growing coffee, macadamia nuts, avocados, and maize.

On 8 July 2010, the applicant registered a request for arbitration with the International Centre for Settlement of Investment Disputes (ICSZD), against the Government of Zimbabwe (State), in relation to land which the applicant lawfully owned and occupied before a dispute arose with the State.

The State subsequently defended these proceedings which are pending.

On 28 April 2011, a director of the applicant, Bernard Alexander Josef von Pezold (Pezold) was summoned to appear at Chipinge Magistrates Court facing charges of contravening section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

It was alleged, that, the applicant continued in occupation of gazetted land without lawful authority.

In his defence, the applicant denied the allegations and asserted, that, the State is prohibited from bringing the charges under the Constitution of Zimbabwe, the statutes, and international laws ratified by the State.

The applicant relied on Article 26 of the convention which deals with the effect of arbitration and section 7 of the Arbitration (Resolution of International Investment Disputes) Act [Chapter 7:03] which deals with stay of court proceeding where the matter is within the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSZD).

The applicant then mounted an application for stay of proceedings in terms of section 7 of the Arbitration (Resolution of International Investment Disputes) Act.

It is this application that was dismissed by the second respondent which is the subject of this review.

The following are the grounds for review as set out in the Court Application:

“(i) The effect of section 7 of the Arbitration (International Investment Disputes) Act [Chapter 7:03] ('the Act') as read with Article 26 of the International Convention on Settlement of International Disputes Convention (18 March 1965), ratified by the respondent on 20 May 1994;

(ii) The significance of the Bilateral Investments Protection and Promotion Agreement (BIPPA) between Zimbabwe and Germany;

(iii) The effect of section 16(9b) of the Constitution of Zimbabwe on the dispute;

(iv) The difference between ownership and occupation, and, as such, the fact that the applicant had a residual right with respect to occupation;

(v) Instead, he erroneously suggested, that, a separate but related constitutional application had been dismissed by the Magistrates Court on the alleged ground that the applicant was abusing court process; and

(vi) He erroneously reasoned, that, because a previous application, on with the same parties, on a different cause of action, had been dismissed, therefore, the application before him was to be dismissed.”

The application is opposed.

The opposing affidavit was filed by the trial magistrate, the second respondent.

The applicant took issue, in limine, with the propriety of the second respondent deposing to the opposing affidavit.

It was submitted, that, the second respondent needed no protection which would justify his mounting of this opposition. The proper course would have been for a representative of the first respondent to depose to the opposing affidavit.

The respondents did not make any submissions in opposition to this point.

In Leopard Rock Hotel (Pvt) Ltd v Wallen Construction (Pvt) Ltd 1994 (1) ZLR 255 (S) at 278B-F, 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, no-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 façade 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.”

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 on behalf of the respondents rather than file an affidavit where he clearly supports one side.

CCC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

MAKARAU JCC:This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by ...

MAKARAU JCC:

This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by the President as unconstitutional. This it allegedly did in the first of its two parts.

Background

We summarise the facts giving rise to this application from the two applications that were filed in the High Court under case numbers HC2128/21 and HC2166/21, respectively. The facts are not complex.

The facts of this application coalesce, and relevantly so, around 15 May 2021 when the Chief Justice, Judge Malaba, reached the age of seventy. A few days before that date, on 7 May 2021 to be precise, the Constitution of Zimbabwe Amendment (No.2) Act (No.2 of 2021) came into force.

Among other provisions, it amended section 186 of the Constitution to provide for the tenure of judges in the following terms:

“(1) The Chief Justice and the Deputy Chief Justice hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire unless before they attain that age they elect to continue in office for an additional five years;

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(2) Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years; but

(a) They must retire earlier if they reach the age of seventy unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(b) After the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment.

(3) Judges of the Supreme Court hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(4) Notwithstanding subsection (7) of section 328, the provisions of subsections (1), (2) and (3) of this section shall apply to the continuation in office of the Chief Justice, the Deputy Chief Justice, Judges of the Constitutional Court and Judges of the Supreme Court.”

Acting in accordance with the provisions of section 186 of the Constitution, as amended, the Chief Justice exercised the option to extend his tenure of office beyond the age of seventy for an additional five years.

By letter dated 11 May 2021, the seventh respondent, the President, accepted a medical report as to the mental and physical fitness of the Chief justice to continue in office.

The third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Mutanda) respondents formed the firm view, that, the seventh respondent (the President), by accepting the medical report, that the Chief Justice was mentally and physically fit to so continue in office, had subverted the correct constitutional position.

They filed the two applications in the High Court that we have detailed above, challenging the continuation in office of the Chief Justice for an additional five years beyond 15 May 2021.

In his application, the third respondent (Musa Kika), in addition to the Chief Justice, cited as respondents all the judges of the Supreme Court and some judges of the High Court.

At the time of the filing of the application, the five judges of this Court, other than the Chief Justice and the Deputy Chief Justice, were Supreme Court judges, acting as Supreme Court judges and were cited as such. Substantive appointments to this Court were made subsequent to the filing of the applications a quo but before the hearing of this application.

Whilst materially and correctly so, the third respondent (Musa Kika) averred in his application, that, the Chief Justice had opted to exercise the option introduced by the amendment, no such averment was made in respect of any or all of the other judges who were cited as respondents under case number HC2128/21.

We revert to this fact in detail later.

The primary relief sought in the applications a quo was a declaration that the amendment to the Constitution, in section 186, did not apply to the Chief Justice and the judges cited as respondents. Specifically, it was claimed, that, the amendment did not have any force and effect on the tenure of the Chief Justice and the cited judges as such an interpretation would fall foul of the provisions of section 328(7) of the Constitution.

Section 328(7) of the Constitution provides that:

“(7) Notwithstanding any other provision of this section, an amendment to a term–limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”

The two applications, both brought urgently, were opposed on truncated dies induciae in accordance with the terms of a case management meeting order to which all the parties agreed.

At the end of the hearing of the applications, as indicated above, the court a quo issued a singular order in the following terms:

“IT IS DECLARED THAT:

1. The second respondent in HC2128/21 who is also the second respondent in HC2166/21 ceased to hold the office of the Chief Justice of Zimbabwe and judge by operation of law on 15 May 2021 at 4:00 hours.

2. The extension of the length of time in the office of the judge beyond the age of seventy provided for in section 186 of the Constitution does not apply to the second to fourteenth and eighteenth respondents.

3. There shall be no order as to costs.”

The respondents a quo, including the judges of this Court, were aggrieved by the order.

Under separate and different covers, they filed notices of appeal in the Supreme Court challenging the correctness of the decision.

It is not necessary that we set out the grounds of appeal of each appellant in full. As and when it is it necessary to do so, we shall advert to the notices of appeal.

The applicant, strongly believing, that, the effect of the first part of the order was to declare constitutionally invalid the letter of 11 May which constituted the legal authority for the Chief Justice to continue in office, filed this application in terms of section 175(3) of the Constitution.

As indicated above, he sought the setting aside of the entire order.

This he did notwithstanding, that, on its mere reading, the High Court order did not in any way refer to the conduct of the seventh respondent (the President) as constitutionally invalid.

We observe, at this stage, that, the interpretation of the High Court order by the applicant in this regard was conceded as correct by the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondent's counsel during the hearing of the application.

We shall advert to this concession in detail in due course.

The Application in terms of section 175(3) of the Constitution

It is common cause that the applicant was not a party to either of the two applications that were determined by the High Court. He brought this application in the first instance. In the application, he alleged that he is an adult Zimbabwean who is asserting his right to access this Court directly to defend and protect the Constitution.

Arguing that the state of affairs in the country following the issuance of the High Court order was undesirable as there should never, in any jurisdiction, be doubt as to who the Chief Justice is, the applicant made two basic contentions:

(i) Firstly, he contended, that, the juristic act by the seventh respondent (the President) of accepting a medical report as to the mental and physical fitness of the Chief Justice to remain in office for an additional five years, after attaining age seventy, was valid and the High Court orders purporting to hold such as constitutionally invalid had to be set aside.

(ii) Secondly, he contended, that, section 328(7) of the Constitution, relied upon by the third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents as precluding the amendment of the Constitution from applying to the Chief Justice and other sitting judges was not applicable as section 186(4) of the Constitution was the applicable section.

The third, fourth, and fifth respondents opposed the application.

The first (Minister of Justice, Legal and Parliamentary Affairs), second (Judicial Service Commission), sixth (Attorney General) and seventh (the President) respondents were content to keep a watching brief during the hearing of the application.

The third respondent (Musa Kika) opposed the application on the basis of a sole preliminary point. It was his position that this court should refrain from exercising jurisdiction in the matter.

Put differently, it was his position, edified during the proceedings by an oral application, that, this Court should recuse itself. In his view, since the second part of the High Court order declared that the judges of this and the Supreme Court could not extend their respective terms of office beyond the age of seventy, the order under scrutiny in the confirmation proceedings affects the judges of this Court directly.

In this regard, he was keen to highlight and place it on record, that, the judges of this Court had not only participated in the proceedings before the High Court but had since filed a notice of appeal against the High Court order.

It was therefore the mainstay of his exception and position, that, the judges of this Court were completely non-suited to hear this application on account of their positions as active litigants who were already seeking the vacation of the High Court order by way of appeal.

In his further view, the determination of the application by this Court, as constituted, would, in the circumstance of the matter, implicate a breach of the common law principle nemo judex in sua causa.

In opposing the application, the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents raised a number of issues:

(i) Firstly, they challenged the competence of this Court to determine the application. They also sought the recusal of the entire bench of this Court on the same ground that the third respondent (Musa Kika) had relied upon.

(ii) Secondly, and before a competently constituted Court, the fourth respondent took issue with the locus standi of the applicant to bring the application in the manner that he did. In essence, it was the fourth respondent's position that the applicant, not having obtained any rights under the High Court order, could not purport to challenge the order.

(iii) Thirdly, and regarding the merits of the matter, the fourth respondent challenged the procedural steps taken and leading to the acceptance by the seventh respondent (the President) of a medical report as to the mental and physical fitness of the Chief Justice to continue in office for an additional five years after his seventieth birthday.

Thus, broadly speaking, the application raised for determination three distinct issues. The second issue would only become relevant and fall for determination if the respondents were not successful on the first issue and the third issue would only require determination if the respondents failed on the second issue.

(i) The first issue was whether this Court should recuse itself;

(ii) If the Court did not recuse itself, the second issue would be whether the applicant had locus standi to bring the application under section 175(3) of the Constitution; and

(iii) Finally, if he did have the requisite standing, whether the application had merit.

After hearing submissions from counsel on the first issue, this Court dismissed the application for its recusal on the turn and indicated that full reasons would be availed in the main judgment.

We now set these out.

The Application for Recusal

The third, fourth and fifth respondents (Musa Kika, Young Lawyers Association of Zimbabwe and Frederick Charles Mutanda) applied for this Court, in its entirety, to recuse itself. In making the application, they relied solely on the fact, that, the third respondent had cited all the judges of this Court as respondents in the application before the High Court.

We again pause to note, that, whilst the third, fourth and fifth respondents went further to point out that judgment was given against all the judges of this Court, who subsequently caused a notice of appeal to be noted on their behalf, these and other averments in the same vein are of no independent legal import. They all stem from the fact, that, the judges were cited as respondents before the High Court and all ensuing proceedings depend for their validity on that fact.

It stands to reason, that, if the citation of the judges was legally inept, nothing valid would flow from it.

The observations that we make above apply with equal force to the argument that was advanced on behalf of the fourth and fifth respondents, erroneous as it was, that, due to the order that was granted against them, the judges of this Court are disenfranchised from exercising the right to extend their respective tenures of office.

We say erroneous because the order that was granted by the High Court was against the judges of this Court in their acting and not in their substantive capacities as judges of this Court.

The same applies to the further argument by the fourth and fifth respondents, that, the application before this Court must be seen as pre-empting the Supreme Court decision in that the draft order in the present application seeks to achieve, in essence, that which the judges of this Court seek to achieve in their notice of appeal before the Supreme Court.

The Law of Recusal

The law of recusal is entrenched in this jurisdiction. It is settled. It has found expression in many words, some of which reflect approval of decisions of other jurisdictions. It is the law against bias, and, where, after investigation, it is established that the judicial officer or decision maker was biased, the ensuing decision is afflicted and must be vacated.

Thus, the law of recusal is an expression, at a very general level, of the principle, that, justice must not only be done but must appear to have been done. This is so because justice is rooted in confidence and confidence is destroyed when right thinking people go away thinking that the court was biased or conflicted.

It is in keeping with this general principle, that, at all times, courts must conduct their affairs in such a way that the court's open-mindedness, its impartiality, and fairness are manifest to all those who follow the proceedings and review the outcome.

This Court has recognized this broad principle in the case of Konson v S CC07-15 where it referred with approval to the remarks of TROLLIP AJA in S v Rall 1982 (1) SA 828, who, in dealing with the limit to which a court can go in questioning an accused person during a criminal trial, had this to say in part:

“…,. The judge must ensure that 'justice is done'. It is equally important, I think, that he should ensure that justice is seen to be done. After all, that is a fundamental principle of our law and public policy. He should, therefore, so conduct the trial that his open-mindedness, his impartiality, and his fairness are manifest to all those who are concerned in the trial and its outcome - especially the accused: see, for example, S v Wood 1964 (3) SA 103 (O) at 105G; Rondalia Versekeringskorporasie van SA Bpk v Lira 1971 (2) SA 586 (A) at 589G; Solomon and Anor NNO v De Waal 1972 (1) SA 575 (A) at 580H.

The judge should, consequently, refrain from questioning any witness, or the accused, in such a way, that, because of its frequency, length, timing, form, tone, content or otherwise conveys or is likely to convey the opposite impression: (cf Greenfield Manufacturers (Temba) (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd 1976 (2) SA 565 (A) at 570E-F; Jones v National Coal Board (1957) 2 All ER 155 (CA) at 159F.”

As correctly submitted by counsel for the respondents, the law of recusal also finds expression in our supreme law, where it is part and parcel of the bundle of rights that make up the right to a fair hearing as guaranteed in section 69 of the Constitution.

The law provides, in section 69(2) of the Constitution, that, in the determination of their civil rights and obligations, every person has a right to a fair, speedy, and public hearing within a reasonable time before an independent and impartial court.

It is self-evident, that, at the heart of the principle of recusal is the need to protect the right to a fair hearing, which, in turn, lies at the heart of the rule of law. Put differently, an application for recusal is invariably an allegation that the litigant's right to a fair hearing, as constitutionally guaranteed, is under threat of violation.

The law of recusal therefore seeks to re-assert the independence and impartiality of the court that is demanded by section 69 of the Constitution. It further seeks to enhance the notion of even handedness, the universal standard that is required from all those who dispense justice.

It then presents itself to us, that, conceptually, an application for recusal is largely an exchange between the court and the litigant who is apprehensive that his or her right to a fair hearing is under threat. There is hardly room or comfort for that matter, and self-evidently so, for the adversary litigant to fight in the corner of the court and show, by way of submissions or evidence, that the court is not biased towards it or does not have some interest in the matter: see Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Company (Pvt) Ltd 2001 (1) ZLR 226…,.

Having made the observation, we remain grateful for the submissions that were made on behalf of the applicant.

But, the above is not all.

The law of recusal is not concerned solely with the rights of the apprehensive litigant. It is concerned with the fairness of the hearing in its totality.

It therefore stands to reason, that, the law of recusal, and the guarantees in section 69(2) of the Constitution, require some degree of reciprocity of fairness and good faith from the apprehensive litigant. In other words, a litigant alleging a violation of his or her right to a fair trial must not have created or contributed to the dire circumstances that he or she finds himself or herself in.

Put differently, the application for recusal must be brought on genuine grounds and must not be contrived merely for the purposes of embarrassing the court.

But, above all, the apprehensive litigant must bring the application for recusal on tenable positions at law. The application must be based on sound and sustainable positions at both the adjectival and the substantive law.

Analysis

Applying the law then to the facts of this matter:

Firstly, it is common cause in casu, that, the third respondent did not give any prior notice that he intended to sue all the judges of this Court as is required by the Rules of the High Court 1971.

Thus, Rule 18 of the High Court Rules was not complied with.

This is a procedural rule that is not dependent on the cause of action intended to be brought. Its purpose is not only to give the judge concerned notice of the intended suit, but, to also act as a sieve. It has a gate-keeping function that keeps unmeritorious suits out of court.

We deal with this aspect in greater detail later in the judgment.

Secondly, it is further common cause, that, the third respondent did not, and correctly so, allege that any of the judges of this Court, in their respective capacities as Acting Constitutional Court judges, or as substantive judges of this Court for that matter, had exercised the option, as had the Chief Justice, to continue in office for an additional five years after they each attained the age of seventy.

Perchance, for a myriad of reasons, some of the judges may not exercise the option.

Clearly, there was no evidence placed before the High Court that one or more of the judges had an intention of so doing at the time the application a quo was filed.

A necessary and material averment to complete the cause of action against the judges, other than the Chief Justice, was therefore missing.

Thus, whilst the cause of action against the Chief Justice may have been complete, it was not in respect of the other judges - even for the declaration of any future or contingent rights of the judges.

In the absence of a sustainable cause of action against the judges, the citing of the judges and the order sought against them was not only unwarranted but was also incompetent and undeserved.

Thirdly, we observe, common cause as it is, that, although the two applications a quo were brought on a certificate of urgency, such urgency was not demonstrated regarding the issuance of the second part of the order.

The third respondent made no averment in his application that the judges had indicated, by word or by deed, that they were about to exercise the option to remain in office for an additional five years at the same time that the Chief Justice did, or immediately thereafter.

It was clearly not the position of the third respondent a quo that the harm sought to be cured or arrested by the second part of the order a quo was imminent or needed the urgent attention of the court.

Fourthly, there is a discernible disconnect between the manner in which the judges were cited and the relief that was sought against them. Whilst the judges of this Court were cited nomine officio as Supreme Court judges, albeit acting as Constitutional Court judges, the relief sought was claimed against them personally and individually. Indeed, the order sought has since followed them individually and collectively to this Court.

Furthermore, we emphasise the point, that, at the time when the orders a quo were handed down, i.e. on 15 May 2021, five of the judges of this Court were substantive judges of the Supreme Court while acting as judges of the Constitutional Court. Subsequently, they were appointed as substantive judges of this Court on 20 May 2021, after section 186 of the Constitution was amended and after the above-mentioned orders were handed down.

Consequently, as of that date, the judgment and orders a quo would have ceased to have been applicable to or binding upon them in their personal capacities. There was therefore no legitimate basis for seeking their recusal in the present matter as their personal rights and interests, then or in the future, could no longer have been in issue.

Finally, and, in any event, an interpretation of section 186 of the Constitution in a suit against the Chief Justice alone would have been binding on all other similarly circumstanced judges.

This is a trite position at law.

The relief sought a quo was an interpretation of the Constitution which is binding on all persons as it is a declaration of what the law is. There was thus no need to cite, in addition to the Chief Justice, the judges of this Court, or any other judge for that matter, in the application a quo.

On the basis of the above, we venture to suggest, that, the legally inelegant citation of the judges a quo, and the subsequent application for the recusal of this entire Bench on the basis of such, was not made in good faith but merely to place this court in an exceedingly embarrassing position.

We find, therefore, that, the citing of the judges of this Court, a quo, was both procedurally and substantively maladroit.

Because of the number of procedural and substantive law lapses and errors that were attendant upon it, such citing cannot be a basis for the recusal of the judges of this Court.

The recusal of this Court cannot be granted on the basis of an untenable legal position.

To seek the recusal of the entire court on an untenable legal position is synonymous with seeking the recusal on no grounds at all.

It makes the application frivolous.

We further observe in this regard, that, when questioned as to which persons should properly constitute the Bench to hear the merits of this matter, in the event that all the incumbent judges of the Constitutional Court and Supreme Court were to recuse themselves, and which authority could be called upon to legitimately appoint such persons to that Bench, both counsel for the respondents were studiously unable to enlighten the Court with any meaningful answers to those very pertinent questions.

In Bernert v Absa Bank 2011 (3) SA 92 (CC), NGCOBO CJ repeated the position earlier on taken by that court in President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC), that, the judicial function, together with the oath of office that judges subscribe to, creates a presumption of impartiality in favour of the Constitutional Court.

By the same reasoning as emerges from the South African cases, there is a presumption of impartiality in favour of this Court, for we do carry out similar judicial functions and subscribe to a similar oath.

It is our finding, that, in casu, the presumption that this Court is impartial was not displaced.

Had the application for recusal been validly taken, we may have proceeded to determine whether the common law doctrine of necessity, an exception to the nemo judex in sua causa principle, was of any application.

It is not necessary that we encumber this judgment with a discussion of the principle and its applicability in this jurisdiction. Suffice it to say, that, where it is applicable, it operates to obviate a situation of administrative or judicial paralysis where no person other than the biased decision maker can make a decision in the matter.

For the above reasons, we dismissed the application for recusal.

PATEL JCC: It is pertinent, at this juncture, before addressing the substance of the matter, to make an observation concerning the conduct of the third respondent (Musa Kika).

Even though he was primarily instrumental in initiating the proceedings a quo, he deliberately chose not to address any issue other than that of recusal; either in his opposing affidavit or in his heads of argument.

Equally curiously, at the end of the proceedings on the question of recusal, he and his counsel elected not to appear in any further proceedings before the Court. In the event, the matter proceeded in the absence of the third respondent and without the benefit of his submissions on the substantive merits of the matter.

CCC02-22 : MUTUMWA MAWERE and OTHERS vs TICHAONA MUPASIRI and OTHERS
Ruled By: MAKARAU JCC

Under case no CCZ10/2022, the applicants (Mutumwa Mawere, SMM Holdings Ltd, Africa Resources Ltd, Africa Construction Ltd, Tap Building Products Ltd and Friends of Shabanie Mashava Mines Trust) applied to intervene in certain ongoing proceedings brought by the first respondent (Tichaona Mupasiri) against the second and third respondents (the President of the Republic of Zimbabwe and Edwin Manikai).

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 (SMM Holdings Ltd, Africa Resources Ltd, Africa Construction Ltd, Tap Building Products Ltd and Friends of Shabanie Mashava Mines Trust). 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 (Africa Resources Ltd), fourth (Africa Construction Ltd) and fifth (Tap Building Products Ltd) 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 (Friends of Shabanie Mashava Mines Trust) 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 (SMM Holdings Ltd) and the three foreign companies (Africa Resources Ltd, Africa Construction Ltd and Tap Building Products Ltd).

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 (SMM Holdings Ltd) 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 CC07-21 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 (the President of the Republic of Zimbabwe) 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 practiced 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 pre-dispositions. 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 1999 (4) SA 147 (CC) 1999 (7) BCLR 725, 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.

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Law Portal
Zimbabwe

Recusal re: Approach, Presumption of Judicial Impartiality, Nemo Judex in Sua Causa and the Doctrine of Necessity

HH139-09 : THE STATE vs KISIMUSI E DHLAMINI AND GANDHI MUDZINGWA AND ANDRISON MANYERE
Ruled By: BHUNU J

HB132-11 : THE STATE vs GRESHAM DUBE
Ruled By: KAMOCHA J and NDOU J

HMA17-18 : AUBREY CUMMINGS [2] vs THE STATE
Ruled By: MAWADZE J and MAFUSIRE J

HHB40-09 : ERICK TANGWARA vs BHEKISIPO FUYANA
Ruled By: CHEDA J

SC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X
Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

HHH84-10 : ALBERT MATAPO and OTHERS vs MAGISTRATE BHILA and THE ATTORNEY GENERAL
Ruled By: UCHENA J

HB100-17 : ELIZABETH SHAVA vs PRIMROSE MAGOMORE N.O. and NATIONAL PROSECUTING AUTHORITY
Ruled By: MATHONSI J

HB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O.
Ruled By: MATHONSI J

HH765-15 : JOSPHAT MUKWEMU vs MAGISTRATE SANYATWE N.O. and THE PROSECUTOR GENERAL
Ruled By: MATHONSI J

HH135-17 : SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA vs THE STATE and MAPFUMO FRANCIS (NO)
Ruled By: MAKONI J

HHH595-15 : MAKANDI TEA AND COFFEE ESTATE (PVT) LTD vs THE ATTORNEY GENERAL OF ZIMBABWE N.O. and V. GAPARA N.O.
Ruled By: MAKONI J

CCC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

CCC02-22 : MUTUMWA MAWERE and OTHERS vs TICHAONA MUPASIRI and OTHERS
Ruled By: MAKARAU JCC

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Law Portal Zimbabwe

Recusal re: Approach, Presumption of Judicial Impartiality, Nemo Judex in Sua Causa and the Doctrine of Necessity

HH139-09 : THE STATE vs KISIMUSI E DHLAMINI AND GANDHI MUDZINGWA AND ANDRISON MANYERE Ruled By: BHUNU J

HB132-11 : THE STATE vs GRESHAM DUBE Ruled By: KAMOCHA J and NDOU J

HMA17-18 : AUBREY CUMMINGS [2] vs THE STATE Ruled By: MAWADZE J and MAFUSIRE J

HHB40-09 : ERICK TANGWARA vs BHEKISIPO FUYANA Ruled By: CHEDA J

SC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

HHH84-10 : ALBERT MATAPO and OTHERS vs MAGISTRATE BHILA and THE ATTORNEY GENERAL Ruled By: UCHENA J

HB100-17 : ELIZABETH SHAVA vs PRIMROSE MAGOMORE N.O. and NATIONAL PROSECUTING AUTHORITY Ruled By: MATHONSI J

HB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O. Ruled By: MATHONSI J

HH765-15 : JOSPHAT MUKWEMU vs MAGISTRATE SANYATWE N.O. and THE PROSECUTOR GENERAL Ruled By: MATHONSI J

HH135-17 : SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA vs THE STATE and MAPFUMO FRANCIS (NO) Ruled By: MAKONI J

HHH595-15 : MAKANDI TEA AND COFFEE ESTATE (PVT) LTD vs THE ATTORNEY GENERAL OF ZIMBABWE N.O. and V. GAPARA N.O. Ruled By: MAKONI J

CCC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

CCC02-22 : MUTUMWA MAWERE and OTHERS vs TICHAONA MUPASIRI and OTHERS Ruled By: MAKARAU JCC

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Law Portal
Zimbabwe

HH139-09 : THE STATE vs KISIMUSI E DHLAMINI AND GANDHI MUDZINGWA AND ANDRISON MANYERE
Ruled By: BHUNU J

HB132-11 : THE STATE vs GRESHAM DUBE
Ruled By: KAMOCHA J and NDOU J

HMA17-18 : AUBREY CUMMINGS [2] vs THE STATE
Ruled By: MAWADZE J and MAFUSIRE J

HHB40-09 : ERICK TANGWARA vs BHEKISIPO FUYANA
Ruled By: CHEDA J

SC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X
Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

HHH84-10 : ALBERT MATAPO and OTHERS vs MAGISTRATE BHILA and THE ATTORNEY GENERAL
Ruled By: UCHENA J

HB100-17 : ELIZABETH SHAVA vs PRIMROSE MAGOMORE N.O. and NATIONAL PROSECUTING AUTHORITY
Ruled By: MATHONSI J

HB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O.
Ruled By: MATHONSI J

HH765-15 : JOSPHAT MUKWEMU vs MAGISTRATE SANYATWE N.O. and THE PROSECUTOR GENERAL
Ruled By: MATHONSI J

HH135-17 : SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA vs THE STATE and MAPFUMO FRANCIS (NO)
Ruled By: MAKONI J

HHH595-15 : MAKANDI TEA AND COFFEE ESTATE (PVT) LTD vs THE ATTORNEY GENERAL OF ZIMBABWE N.O. and V. GAPARA N.O.
Ruled By: MAKONI J

CCC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

CCC02-22 : MUTUMWA MAWERE and OTHERS vs TICHAONA MUPASIRI and OTHERS
Ruled By: MAKARAU JCC