Puwayi Chiutsi v Sheriff of Zimbabwe and Barriade Investments (Private) Limited and Elliot Rodgers

### Preamble
1
HH 369-21
HC 1120/20
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PUWAYI CHIUTSI

versus

SHERIFF OF ZIMBABWE

and

BARRIADE INVESTMENTS (PRIVATE) LIMITED

and

ELLIOT RODGERS

HIGH COURT OF ZIMBABWE

CHITAPI  J

HARARE 11, 19, 20, 21, 24, and 27 May 2021, 9 and 16 June 2021 and 7 July 2021.

Reasons for Judgment on Points – in limine

T Magwaliba , for the Applicant

No appearance for 1st respondent

L Mapuranga, for the 2nd respondent

T Biti, for the 3rd respondent

CHITAPI J: On 21 May 2021, upon the matter being called, the second respondent’s counsel stood up to advise that he has instructions to apply for my recusal. No prior notice or indication had been given to me as usual practice which counsel adopt. Counsel usually approach the judge whose recusal will be sought in chambers to alert the judge beforehand that his or her recusal is sought. This salutary practice is done to avoid taking the judge by surprise because in a recusal application, the judge must answer the application because it is directed at the judge. Fore warning the judge ensures that the judge as a “party” who should respond also prepares for the application. Sometimes reasons for a recusal if given beforehand may in the judges opinion be good, sound and convincing and the judge will agree to recuse himself or herself without the need for the party seeking the recusal having to formally apply for such recusal. Such recusal sua sponte has advantages in that proceedings are not prolonged because the judge will on his or her volition recuse himself or herself and arrange for the matter to be referred to another judge.

The background to how this application ended up being placed before me was that the application was previously set down for hearing before Chinamora J on 15 March 2021. The notes by Chinamora J which are on record were that the learned judge had when still practising as an advocate represented the applicant herein as his counsel. The learned judge also made note that prior to passing over the record to another judge to handle, he had directed counsel to indicate the names of judges whom parties objected to their presiding the application. There is a letter on record dated 25 March, 2021 by applicant’s legal practitioners in which they listed only two judges Mafusire and Mangota JJ as the ones whom they would object to hearing the application. There is no indication that the respondent’s legal practitioners made any objections against any judge dealing with the application. In this regard, Mr Biti for the third respondent submitted that he did not know anything about the parties having been directed by Chinamora j to indicate judges they objected to presiding the application. The second respondent’s counsel did not deny that parties had been directed to make an indication of judges whom they objected to deal with the application. It may well be that the respondent’s legal practitioners did not take note of Chinamora J’s directive. What however is notable is that the respondents had made a previous objection to Chinamora J presiding over the matter and the learned judge recused himself sua sponte without the need for a formal application. No explanation was given as to why the salutary practice was not adopted in respect to this application. Legal practitioners must be advised to follow the practice because of its advantages as set out.

As regards the timing of the recusal application the notices of set down of the hearing before me show that the matter was initially set for 11 May 2021 before being postponed to 21 May 2021. They were served on all the parties at the offices of their respective legal practitioners on 5 May, 2021. The respondents had ample time to make indications of their objections to my presiding the application. They should have made prior application instead of waiting for the hearing date to make the application. This was important because the reasons for seeking my recusal would as they submitted then, have been known to them. Whilst there are no laid down rules on the timing of the making of an application for a judicial officer’s recusal, common sense and the interest of justice and need for finality to litigation dictate that recusal applications be timed in a manner which does not result in the abortion of a hearing unless the reasons for seeking the refusal have been discovered just before the hearing date, hence leaving the objecting party without sufficient time to make prior indications of the intended recusal or making prior application for the recusal. Where the objecting party deliberately times the making of the application to coincide with the hearing date which the party has had long advance notice of, the court may be justified to conclude that the application is motivated by the desire of the objecting party to delay the disposal of the matter as opposed to the application being bona fide. It may well have become high time that rules of court should provide for how motions or applications for recusal of a judicial officer should be made to avoid a situation where parties wait for the date of the actual set down of hearing to make the application, thereby interfering with the smooth flow of the court roll as the judicial officer is then called upon to decide on his or her recusal instead of dealing with the case itself including in limine points arising from the case itself as opposed to the extraneous matters of whether or not the judicial officer before whom the case has been set should disqualify himself or herself from presiding the matter. It must follow in my view that an application for the recusal of the judicial officer should be made without delay and upon it becoming apparent that it is necessary or desirable to make the application failing which, in the absence of a reasonable explanation for the delay, the conclusion that the application lacks bona fides, depending on the circumstances of a particular case can be justified as well as its consequent dismissal.

In casu, there was no explanation given for the delay in making the application from 5 May, 2021 when the notices of set down were served on all the parties’ legal practitioners. A period of sixteen days lapsed from 5 May 2021 to 21 May, 2021 when the application for my recusal was made by counsel for the second respondent with counsel for the third respondent following suit. In para 27 in the case of Charles Thomas Miley v Friends Life Limited [2017] E WHC 1583 (QB), Justice Turner commenting on the need for recusal applications to be made timeously stated:

“27.	It would also have been open to the court to exclude the issue from consideration by reason 		of the inordinate and inexcusable delay in raising the point. Parties should not simply 			assume that in all cases an application for recusal will automatically be immune from 			procedural objection as a result of delay. As Jacobs LJ observed in Baker v Quantim 			Clothing Group 92009] EWCA G v 566:

‘Finally, we think that this objection simply comes too late. It is not open to a party which thinks 	that it has grounds for asking for recusal to take a leisurely approach to raising the objection. 	Applications for recusal go to the heart of the administration of justice and must be raised as soon 	as is practicable”’ (own emphasis)

I must note that although the case cited is decided in a jurisdiction where rules for making refusal applications are codified, the obiter dictum comments made are on point and should be applicable in this jurisdiction in that it is accepted that the timing of the making of any application is relevant in considering whether or not it be granted or refused in the interests of justice. I would further add that such application should be formalized and made before the hearing unless there is a reasonable cause for not doing so. The making of the advance application ensures little disruption with the administration of justice.

In relation to the proper approach of the court in considering an application for recusal it is the same whether the case is criminal or civil in which the judge’s recusal is sought. The starting point is to appreciate that whether or not the judge should recuse himself or herself is a constitutional matter. This is so because s 69(1) and (2) of the constitution provides as follows:

“69.	Right to a fair hearing

(1)	Every person accused of an offence has the right to a fair and public trial within a 			reasonable time before an independent and impartial court.

(2)	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”

Both subsections provide for the right of every person be it in a criminal or civil case to a fair trial held in public within a reasonable time to be presided by “an independent and impartial” court or other forum established by law. In passing it is noted that in relation to determination of a civil rights and obligation under subs (2) of s 69, the public hearing must be “speedy”. A word which does not appear in subs (1) of s 69 dealing with criminal trials. I do not venture to interrogate the differences in wording but commend the issue to debate. When a party seeks the recusal of the judge or indeed any presiding officer in a matter in which the party seeking the recusal is a party, the party would simply be asserting that party’s right to be tried by “an independent and impartial court”. Therefore it must follow that the party seeking the recusal must in motivating the application for recusal relate to the “independence and impartiality of the court or presiding officer.”

In the case of President of South Africa + Ors v South African Rugby Football Union 1999 (4) SA 147 (CC) it is stated as follows:

“…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 	by the judges to administer justice without fear or favour; and their ability to carry out that oath by 	reason of their training and experience. It be assumed that they can disabuse their minds of any 	irrelevant personal beliefs or predispositions. They must take into account the fact that they have a  	duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must 	never be forgotten that an impartial judge is a fundamental pre-requisite 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.

The same judgment quoted supra lays the principle that judicial officers as a starting point are presumed to be impartial in adjudicating disputes. Further, it is the applicant seeking the judicial officer’s recusal who bears the onus to rebut the presumption of judicial impartiality. In para 40 of the same judgment, the point is made that the presumption of impartiality is not easily displaced. There must be adduced cogent and convincing facts to dislodge it. In the case of  S v Cummings HMA 17-18 a judgment of mafusire J it is stated as follows in paras 12, 14 and 15 of his judgment:

“(12)	However recusal is not just there for the asking. It is important to realize that judicial 			officers have a duty to set 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: Exparte CJL:

‘Although it is important that justice must be done it is equally important that judicial officers discharge their duty to set and do not by acceding too readily to suggestions of appearance 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.’

“14	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 be must be assumed that they are able to disabuse their minds of any irrelevant personal beliefs and pre-dispositions: President of RSA, (supra), at p 177 	D-F; also Mahlangu, (supra), at p 50 C-F.

15	Furthermore, on being appointed, every judge takes and subscribes to the judicial oath

“.. to do right 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, (supra) at p 232 D-F. 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 bias is high; President of RSA, (supra) at p 172 E-F.

16	An apprehension of bias that is whimsical or morbid cannot be a ground for seeking recusal.”

In the case of Mangenje v TBIC Investments (Pvt) Ltd/TBIC Investments (Pvt) Ltd & Anor v Mangenje 2014 (2) ZLR 401 (H) the presiding judge’s recusal was sought on the basis that the judge had dealt with some aspect of the dispute between the parties. The learned judge was dealing with an application for direction when the application for his recusal was sought. The learned judge considered the request for his recusal to be morbid and impetuous before dismissing it.

In the headnote of the judgment by HUNGWE J in the case of S v Nhire & Anor, HH 619/15, it is stated;

“the proper approach to recusal is whether a reasonable objective and informed person would on the correct facts reasonably approached that the presiding judicial officer has not and will not bring an impartial mind to bear on the adjudication of the case that is, a mind open to percussion by evidence and submissions of counsel.”

It is further stated in the judgment headnote that

“in considering an application for recusal, the court, as a starting point, presumes that judicial officers are impartial in adjudicating disputes and it is the applicant for recusals who bears the onus of rebutting the presumption of judicial impartiality. The presumption of impartiality is not easily dislodged. It requires “cogent” and convincing evidence to be rebutted.”

Having laid down the approach of the court in applications for recusal of a judicial officer and being properly guided, I proceed to deal with the basis put forward by the respondents for seeking the judge’s recusal.

The submission by the second respondent’s counsel who addressed the court first was very brief, perhaps half hearted. It is quoted verbatim as follows as I recorded it in my note book

“The court dealt with the case involving Bariade Investments v Chiutsi and delivered judgment HH 842/19. His Lordship commented on the attachment of the immovable property and confirmation of the sale though it was obiter. The judgment dials with the same parties and same set of facts and having express certain view, it may be best in the circumstances to have this application heard before another judge to deal with rescission of sale: The recusal of the judge is therefore sought.”

The above submission was all that was stated in seeking for the judge’s recusal by the Mr Maopuranga on behalf of the second respondent. The content of the application was not only brief but vague and embarrassing for lacking specificity. The averment that the judge dealt with the same parties and same facts of the sale of the immovable property involved in this case, was to generalized that the judge could not reasonably be expected to appreciate the exact nature of the facts on which it was alleged that a recusal was justified not the exact ground of recusal. It was not alleged that there was any likelihood or perception of actual or potential bias, prejudice or conflict of interest.

Mr Biti for the third respondent submitted that he associated himself with the application made by the second respondent for the judge’s recusal. He submitted that the judge should not deal with a matter that he had previously traversed and was on appeal. Mr Biti submitted further that the judge had commented on the judgments of MATHONSI J (as he then was) whose setting aside it sought herein and that of MANZUNZU J. It was Mr Biti’s submission that the judge should not allow himself to be abused and that the recusal; would ensure that there would be no abuse. He submitted that the judge had dealt with issues related to the legality of the sale in which the applicant herein had sold a house that was under judicial attachment. Mr Biti was therefore of the view that there was established sufficient ground for the judge’s recusal.

Mr Magwaliba for the applicant submitted that both the second and third respondents had not alleged any cognisable grounds for recusal, namely, bias actual or potential, interest in the cause or improper conduct. He submitted that the applicant did not stand to benefit in any way by the judge presiding over the application or any other judge. He submitted further that the application came as a surprise because when the parties appeared before CHINAMORA J and he recused himself, the judge’s name whose recusal is sought was not submitted as one of those whom the respondents objected to their presiding the application. Counsel also submitted that Mr Mapuranga had submitted that whatever remarks which the judge made in the case which he presided over were obiter and did not touch on the rescission of MATHONSI J’s judgment. Counsel further submitted that High Court judges were not bound to their or other judges’ judgments and that there was no legal principle which disqualified a judge from dealing with a matter involving parties whose case the judge previously dealt with. I agree with this submission because essentially the judicial officer deals with facts, evidence and takes into account counsel’s submission. Decisions are based on the evidence and not the identify of a litigant.

Mr Magwaliba submitted that he did not consider that Mr Biti’s attack on the applicant whom he described as a rogue lawyer was justified and that it was inappropriate for a legal practitioner to adopt the attitude of an interested person and to attack a fellow legal practitioner. Mr Biti in response justified his description of the applicant as a rogue lawyer on the basis that there were several judgments of this court and the Supreme Court which had been critical of the applicant’s conduct. My observation is that it would be improper for me or indeed any court to hold a preconceived bias against the applicant on the basis of descriptions of him or his conduct given in previous cases. The descriptions and conclusions on his character and conduct would have been reached upon a determination reached in the circumstances of the individual case concerned. In casu therefore the proper approach would be to consider the facts and evidence adduced and only make adverse comments against the applicant and indeed any other of the litigants after considering all the facts, circumstances and all evidence adduced. After all, even a rogue or notorious criminal when brought to court to answer a case whether civil or criminal or when he comes to court to assert his or her rights is entitled to a fair hearing as envisaged in s 69 of the Constitution. I therefore determined that the comments made on the applicant by the judges in other cases would have been made in the light of the circumstances of those cases. The tirade by Mr Biti against the applicant would therefore be of no great moment, not only because each case is determined on its own facts but that in any event, the submissions bore no relevance to the issue of the judge’s recusal.

Case law authority is clear that the litigant who seeks the recusal of the judicial officer bears the onus to rebut the presumption of judicial impartiality. In casu, the second and third respondents based their application of the judge’s recusal upon the fact that the judge made certain undisclosed obiter comments on the judgment sought to be rescinded. Such comments were not specially pleaded. The judgment referred to was not produced by either of the respondents. The failure to specially plead the comments made or findings made as would lead to a reasonable, objective and informed person to reasonably apprehend that the judge will not bring an impartial mind to bear on the adjudication of the case with an open mind that will be persuaded by evidence and submissions of counsel was fatal to the application. I reach this conclusion because perception by a reasonable person of likely bias cannot sit in the air but should be informed by objective facts which the reasonable person must consider in making an informed decision of reaching an impression of bias on the part of the judge.

In my view, perceptions of impartiality will also be impacted upon by a consideration of the nature of the case and the relief sought in the case from which the judicial officer is requested to recuse himself or herself from. In casu, the determination sought by the applicant involves nothing more than conducting an audit of the paper trail involved in a sale of immovable property by public auction following attachment in execution. The question then becomes whether or not a reasonable person informed by objective facts that the issue for determination is whether the sale in execution was done in accordance with a paper trail laid down in the rules of court or the auction rules was followed would likely be impartial because he or she previously dealt with a matter involving the same parties the paper trial of the sale was not determined nor raised as an issue for determination will not bring his or her mind to be influenced only by the evidence and submissions by counsel. It is noted that the first respondent did not oppose the application.

In my judgment, the application for recusal of the judge was not only brought late without explanation but was not properly grounded. No cogent facts and/or evidence from which a reasonable person could perceive impartiality were pleaded specially let alone established by the second and third respondents.

At best the allegation made was just too broad and nonspecific to the effect that because the judge had dealt with the parties in a related matter, the judge should be perceived as being incapable of impartiality. The second and third respondents did not in my determination only apply for the judge’s recusal late and did not explain the delay hence showing lack of bona fides in making the application, they also failed to demonstrate legal and valid cause for the judge’s recusal.

I should observe that it does not follow that a judicial officer who has dealt with a matter involving the same parties or issue becomes disqualified on the grounds of likelihood of or apprehension of impartiality where the judicial officer presides over a subsequent matter where facts are related to the last matter.

In the case of Charlton Hwende and 2 Ors v The Speaker of the National Assembly and 5 Ors HH 633/20. In that case Kwenda J was asked to rescue himself because he had made certain findings and made pronouncement on the same legal and factual issues he was being asked to determine albeit, the parties in the earlier matter were different members of Parliament. Kwenda J in refusing to rescue himself quoted the case of Bacrlia Majaya + Ors v MDTC + Ors HH 526/20 to the effect that the fact that a judge has presided over a matter does not render the judge impartial in determining future disputes of a similar nature and parties. It is stated therein that a decision of the High court rendered by the judge is not a decision of the judge but of the court.  In casu, it was not even alleged and demonstrated that I made positive or concrete findings on the issues arising in this application nor were the findings extrapolated.

The second objection made by the second and third respondents was that the applicant did not seek condonation of late filing of the application. Mr Mapuranga relied on the case of Chevhu Housings Co-operative Society Ltd and 8 Ors v Crest Breeders International (Pvt) Ltd SC 19/21 to argue that applications made in terms of rule 449 should be made timeously. The proposition is correct. I took note of the decisions cited therein being Ndebele v Ncube 1992 (1) ZLR 288(5) at 290 C E and John Conrad Trust v The Federation of Kushanda Pre-Schools Trust & Ors HH 303/15 at p 3 of the cyclostyled judgment. The judgment also referred to the decision of the Supreme Court in Grantully (Pvt)Ltd & Anor v UDC Limited 200 (1) ZLR 361(5) to the effect that a court may in exercising its discretion dismiss an application made in terms of rule 449 by reason of inordinate delay. I am properly directed and agree that rule 449 ought not to be used as an open cheque “or” a gas station (to use mathosni ja’s words) for a party to revive stale matters because there is need for finality to litigation.

My understanding of the issue of condonation after considering the authorities is that there is no standing rule which provides for time limits for bringing a r 449 application. However, the application should be brought within a reasonable time. A reasonable period will be case determinant because the circumstances of the individual case determine whether it can be said that the applicant acted timeously. In the Chevu Housing Co-operative case (supra) mathonsi ja underlined a period 3 years given as a reasonable period following on the Grantually case quoted on p 8 of the cyclostyled judgment. It can therefore be argued that any period beyond three years raises the presumption that a r 449 application made after that period would be deemed not to have been filed within a reasonable period, hence condonation would be necessary.

The period of delay in casu was agreed to be 14 months. There was no suggestion that the applicant ever lost interest in pursuing his rights. I was not persuaded that the delay was unreasonable nor that it was in the circumstances necessary for a formal condonation application to be made by the applicant. I in any event had a discretion to allow or condone the filing of the application. I did not consider the period of delay to be inordinate. I therefore dismissed the application.

It was also submitted that there was a valid appeal which would dispose of the matter and that therefore it would be improper to deal with the current matter. It was not suggested that the Supreme Court appeal was directed to deal with the issues raised in this application. I was not persuaded that the objection was merited as one that would be dispositive of the application.

The rest of the objections which concern whether the citation of mathonsi j’s judgment was correct, the interest of the applicant and the third respondent in the matter and whether the relief sought amounted to a review of the judgment of mathonsi j were in my view matters which would be properly addressed on addressing the merits of the application.

In the result the objections in limine were dismissed.

P. Chimbi, Legal practitioners, applicant’s legal representatives

Gill Godlonton & Gerrans, 2nd respondent’s legal representatives

Tendai Biti Law, 3rd respondent’s legal representatives