JEFAT CHAGANDA

Versus

THE STATE

and

SIDINGUMUZI NCUBE

and

TYSON RUVAMBO

and

GODFREY MAKUVADZE

and

LADISLOUS TAMBOONEI

and

ADMIRE RUBAYA

and

LADISLOUS TINACHO

and

STANLEY CHINYANGANYA

and

TIMEON TAVENGWA MAKUNDE

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO6, 7, 8 AND 9 NOVEMBER 2018,

3, 4, 5, 6 AND 7 DECEMBER 2018, 17, 18 AND 21 JANUARY 2019,

12, 13 AND 14 MARCH 2019, 13 MAY 2019 AND 5 JULY 2019;

17 SEPTEMBER 29 OCTOBER 2019 & 14 JANUARY 2020

Ruling on application for recusal

Advocate T. Mpofu standing in for Advocate S. M. Hashiti for the applicant

Mrs T R Takuva with Ms N. Ndlovu for the state

C Ndlovu for the 2nd,  3rd, & 4th respondents

T Muganyi and M Mahaso for the 5th and 7th respondents

Advocate T. Mpofu, O. Marwa and T Tabana for the 6th respondent

P Butshe for the 8th respondent

B Mufadza for the 9th respondent

            MABHIKWA J:        The trial in this matter commenced 6 June 2018.  After the closure of the state case ion 14 March 2019, the nine (9) accused applied for their discharge in terms of section 198 (3) of the Criminal Procedure and Evidence Act [Chapter 9:07].  On 13 May 2019, the ruling, which dismissed the application was handed down in their presence.

            What transpired between 13 May 2019 and 29 October 2019 will be relevant and revisited later in this judgment.  Suffice to say that on 29 October 2019, the second accused, now applicant, through his counsel, made an application for my recusal.  He stated that the application was premised on the “findings” and “conclusions” in the ruling pertaining to the application for discharge at the close of the state case.  To be precise the applicant says the cause for his apprehension is at page 9 paragraph 2 of the said ruling.  He complained that the paragraph was prefixed “NB” and went on to state that;

“From the evidence of V. Sayi in general, and in particular on the last part of cross examination by Advocate T. Mpofu, it is clear that there was never evidence that accused 2 was L. Sibanda’s genuine employee.  Mining papers were hunted for and thereafter were used to claim both the “arrested person” and “the gold”.   That evidence came right at the beginning from a witness other than the accomplice witness Lovemore Sibanda who had not yet testified.”

            The applicant said that paragraph 2, in the 15 paged judgment, gave an impression to any reasonable laymen listening thereto that the applicant’s fate is likely to be decided against him and is therefore sealed.  To support his application, the applicant cited the case of State vs Nhire and Anor HH-619-15; Sibanda vs Chikumba and Anor HH-809-15 per CHIGUMBA J and Masedza and Others vs Magistrate, Rusape and Anor 1998 (1) ZLR 36.

            Having gone through a plethora of decided cases pertaining to applications of this nature, I note that what runs through them and it is trite, is that recusal or an application for a judicial officer’s recusal should be based on bias or reasonable possibility of bias.  I note also that;

• An impression or perception should have been created in the minds of right thinking people, not the applicant’s subjective impression of bias.The test is an objective one.
• The application is rarely allowed and where, as already stated above, impartiality or reasonable possibility of impartiality is shown.Even the mere possibility of bias apparent to a laymen would not necessarily be sufficient to warrant recusal as was pointed out in Chikumba case.

Let me highlight a few of the cases starting with the Chikumba case cited by applicant;

            The plaintiff in that case, one Mangwiro Sibanda (a self actor), made a claim in a civil court.   The defendants applied for absolution from the instance which the judge granted in a judgment dated 27 February 2014.  The court found that;

“… there is insufficient evidence before the court to support the plaintiff’s argument that he noted a vehicle to use with 1st defendant’s knowledge and consent.  …  No evidence was led that the plaintiff appreciated the 2nd defendant and advised that if his car was not repaired immediately, he would have a car to use for business and to take his children to school.  …  No evidence was placed before the court to support the plaintiff’s claim about his vehicle being valued at US$6 300,99.  …” (emphasis is mine)

            The court further commented and found that;

“There is insufficient evidence generally, on a balance of probabilities to establish a prima facie case in favour of the plaintiff and against the defendants.  The plaintiff failed to discharge the onus on him to prove his case.  … pay the defendant’s costs.” (emphasis is mine)

            On 18 March 2014, the plaintiff appealed against the judgment.  He averred that the trial court had erred in disbelieving his evidence and in granting absolution from the instance.  Somehow, the appeal was not contested.  The respondents did not appear before the Supreme Court and the appeal was allowed.  The granting of absolution from the instance was set aside and the Supreme Court, notwithstanding the findings and comments already quoted above, remitted the matter back to the court a quo for continuation of trial and directed that the matter continues on 6 October 2015.

            But during the course of prosecuting his appeal, the plaintiff had written a letter to the Judge President.  He made allegations that the record of proceedings had been corruptly tempered with, and that it was not a true reflection of what had transpired in court.  The trial judge was then asked to comment on the allegations.  Part of her response was that Mr Mangwiro,, being a laymen, lacked knowledge of the High Court rules and procedures.  The complaint demonstrated a patent inability to comprehend basic court procedures, some of which the court had taken time and great pains to explain to him, such as the fact that plaintiff had to lead evidence-in-chief and be subjected to cross-examination, discovery of documents etc.   The judge was clearly not amused, describing Sibanda’s claim in the letter as “absurd”, “malicious” and “mischievous”.  She described the complaint as ridiculous and a result of figments of Magwiro’s imagination as it suggested that the judge and her assistant had tempered with the tapes and deleted evidence.  The judge further responded that the letter of complaint was an attempt to besmirch her character and tarnish her good name and that of her assistant.

            On 21 August, Mangwiro again wrote a letter of complainant to the Judge President claiming that he wanted earlier trial dates allocated for the continuation of trial but that there were efforts by the High Court blocking him from allocation of a nearer date as per his requests.  The matter was set down for continuation of trial on 6 October 2015 as directed by the Supreme Court.  On 6 October 2015, 1st defendant appeared in person and advised that she had been given short notice and that as a result, her lawyer was not in attendance.  She sought a postponement to the following day.  Despite vigorous opposition from Mangwiro, the court granted the postponement.

            The following day, Mangwiro made the application for the judge’s recusal.  Although it was not properly before the court in terms of the rules, the judge entertained it preferring to refer to it as a “request”. 

            The judge pointed out that;

“The applicant must show a reasonable fear, based on objective grounds, that the trial will not be impartial.  It would also be remembered that judges are trained and experienced in the administration of law.  The mere possibility of bias apparent to a laymen is not itself sufficient to warrant the recusal of a judicial officer.  On the other hand, a judge should not regard an application for recusal as an affront.  He should bear in mind that what is required is conspicus impartiality.” (underlining is mine)

            The judge further quoted LORD OBRIEN CJ in E R (Doughne) vs County Cork JJ [1910] (2) IR 271 2 275 where he stated that;

“By bias, I understand a real likelihood of an operative prejudice, whether conspicuous or  unconspicuous There must in my opinion, be reasonable evidence to satisfy us that there was a real likelihood of bias.  I do not think that the mere vague suspicions of whimsical, capricious, and unreasonable people should be made a standard to regulate our action here.  It might be a different matter is suspicion rested on reasonable grounds – was reasonably generated but certainly mere flimsy, elusive, morbid suspicions should not be permitted to form a ground of decision.  And after a perusal of relevant cases, concluded that the test to be applied is the objective test, the possibility in fact of bias, and not actual bias.”

            The judge held that there was no basis or apprehension of bias shown.  However, she recused herself nonetheless.  It is clear and must be noted that the judge recused herself because of the second ground for the “request” for recusal.  She considered the allegations of tempering with the record of proceedings, corruption etc as an affront to the dignity of the court and to the character of the court.  The judge also considered her response to the letter to the Judge President especially the words she used in the response such as, malicious, misconstrued, absurd and other phrases to describe the applicant’s intentions in his complaint.  The judge also considered that the Supreme Court practically did not hear the appeal the allegations in the letter were not ventilated.  She then reasoned that she would allow the application and recuse herself in the circumstances of that case, not by any real likelihood or possibility of bias, but by reason of the actions of impropriety, corruption and alleged tempering with the record of proceedings.  Any reasonable or right thinking person would believe that after those allegations and the ranting and apparent anger in her reply, the judge was unlikely to remain impartial, although she was absolutely right about the applicant.

            In Masedza and Ors vs Magistrate, Rusape and Anor 1998 (1) ZLR 36 (H) also cited by counsel for the applicant the judgment dealt first with the issue of the undesirability of interference in the uncompleted proceedings of lower courts.  It also dealt with the issue of recusal.  The facts briefly were that the applicants and the accused were members of a religious sect.  The accused faced charges of public violence.  On 16 June 1997, counsel for the accused applied for recusal.  The Provincial Magistrate recused himself but directed that the matter should proceed on that same day before a different magistrate.

            When the court reconvened later that morning, the1st respondent, he too was faced with an application for recusal immediately.  The ground relied upon in this 2nd application was that the magistrate had exhibited bias against the applicants in a previous remand hearing.  The Provincial magistrate had been asked to recuse himself arising from what transpired in a bail hearing.

            In the second recusal application, it was common cause that the applicants and their counsel had arrived late for remand hearing.  Their counsel explained that an arrangement had been made with the prosecutor in charge of Rusape to have the remand proceedings start at 11:30 on 6 April 2019.  Counsel also explained that he proceeded to Rusape but had a breakdown of his vehicle at Macheke.  He communicated the little mishap to the prosecutor and indicated that he was still on his way but was unlikely to make it on time.  Meanwhile, the applicants also had a breakdown with their bus some 40km outside Rusape.  They had no access to communication facilities and therefore did not communicate.  They however arrived just at the time the magistrate was dealing with their matter.  Counsel also arrived and apologised.  The prosecutor also did not dispute the arrangement earlier made and was at a loss why he had called the matter considering the information he had.  He however did not ask the court to penalize the applicants as he accepted the explanation for their non timeous appearance.

            Despite the decision and approach by the state, the magistrate went into a diatribe of the powers of the court and how it was only he who could change the time for the remand.  It was pointed out that the applicants and their counsel would not know that the arrangement made with the state had not been communicated to the magistrate and that in any case he would be punishing the wrong people if he punished the applicants.

            The presiding magistrate had mero muto proceeded to fine the applicants (then accused persons) $50 each.  It was also pointed out to him that by so doing, he was showing total bias against the applicants or if it was not bias, it was so unreasonable to have come to the conclusion that a reasonable man would not be blamed for coming to the conclusion that such behaviour exhibits bias.  This is the position which confronted the accused persons when they realised that the same magistrate was now to preside over their trial.  They felt they inevitably had to make an application for his recusal, which they did immediately.

            I will reiterate that judges or magistrates are trained judicial officers who know that they must decide every case which comes before them on the evidence advanced in that case.  I may add that in casu, for instance, Vusumuzi Sayi was only one out of a total of 10 witnesses who testified orally and then add 11 whose evidence was admitted in terms of section 314 of the Criminal Code.  The evidence of the remaining 9 was deleted.

            The judge merely restated what appeared in Vusumuzi’s evidence and that there was need for the applicant to testify and give his own version in the defence case.  It would be an inconceivable and unworkable situation if accused persons or litigants were to be allowed to demand recusal at each and every turn that they suspect they may be facing a conviction.  How would judicial officers operate without making findings of fact or comments especially in such long trials with interlocutory judgments such as in the current case?  It would certainly be wrong and unreasonable to assume that because of a finding in one paragraph of a 15 paged ruling, and coming from a portion of one out of 21 witnesses’ evidence, then the applicant will “obviously” be convicted.  It is trite for instance that there are cases where judges have deemed an urgent chamber application not to be urgent, but before dismissing it outrightly, the judge is requested by counsel or litigants in his discretion, to set the matter down and hear submissions first.   Judges have decided, after hearing submissions or arguments, that the matter is in fact urgent.  Quite many times a litigant sits listening to the handing down of his judgment and because of certain findings of fact believes he would certainly be convicted only to get acquitted because of other findings or legal reasons, further in the judgment.

            In any event, the cause for the “reasonable” application should be “bias” or reasonable possibility of bias not the fear of conviction.

            Even in the circumstances of the Masedza and Others (supra), the application for recusal was dismissed.

            In S v Mutizwa 2006 (1) ZLR 78 (H) the appellant appealed inter alia on the grounds that the trial magistrate should have recused himself.  The court at page 84 (E) of the record had this to say;

“In casu it is common cause that the issue of actual bias does not arise.  But has the accused established an appearance of or, apprehension of bias.  Even from his own statement in court he has not.  The basis for the application is that the trial magistrate is known for imposing severe sentences.  He, in other words seeks recusal so that he can be tried by a magistrate who is perceived to impose lenient sentences.  Severe sentences are not indicative of bias, neither are lenient sentenced indicative of fairness or lack of bias.”

            The ground for the recusal was dismissed.  The convictions and sentences in counts 2 and 3 were confirmed.  The conviction and sentence in count 1 was set aside for a reason other than the recusal.

            In JSC vs Ndlovu & Ors 2013 (2) ZLR 743 (H) were an action had been brought against the respondents by the Judicial Service Commission.  There was no allegation of bias against the judge personally.  The application arose out of a blanket apprehension of bias as against all the serving judges in the jurisdiction.  It was held that;

“An application for recusal must be based on a reasonable litigant’s apprehension of bias and the apprehension must itself be reasonable.  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 scrutinize 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 counternanced in law.”

            The application for recusal was dismissed.

            See also (i) S v Paradza 2004 (2) ZLR 324

                        (ii) Pechu Investments (Pvt) Ltd vs Nyamuda 2010 (2) ZLR 516  

            Ultimately, let me now get back to the events between 13 May and 29 October 2019 and follow them in their chronological order for the simple reason of their being pertinent and relevant in this case.  In fact, just as was stated in JSC vs Ndlovu & Ors supra, the chronological events in this case may be easily followed and scrutinized to determine whether the alleged apprehension, whatever it was, was “reasonably” or genuinely held.  Below is what transpired in casu.  Please note that the trial itself commenced on 6 June 2018 but what is relevant for the purposes of this judgment starts on 13 May 2019.  I have also excluded dates of appearances that turned out to be routine remands with nothing done.

1. 13 May 2019:Judgment dismissing the application for discharge at the close of the state case was handed down.All the accused persons, starting with counsel for the 6th and 2nd accused person who is now applicant indicated that they wished to appeal to the Supreme Court against that judgment. They indicated that because of the nature and complexity of the case and the issue they intended to take to the Supreme Court, they would ask the judge, in the exercise of his discretion, to allow them to file a written application for leave to appeal.The application is supposed to be made immediately after the ruling.The judge allowed the request and directed that the written application should be filed on or before 16 may 2019, which was done.
2. On 5 July 2019, in an 8 page judgment, the judge dismissed the application for leave to appeal to the Supreme Court.
3. On the same day (5 July 2019) counsel for the 6th and 10th accused expressed their intention, following the dismissal, to seek leave to appeal from a judge of the Supreme Court in chambers.The court allowed the request and directed that they and any other who may wish to do the same should file their applications by 12 July 2019.The 10th accused later wrote a letter to say after going through the ruling again, he was no longer pursuing the application that 6th accused raised.
4. On 17 September 2019 all the parties were in attendance but the Supreme Court’s judgment in respect of the 6th accused’s application was not yet out.
5. On 24 October 2019, Justice MATHONSI’s judgment, dismissing the 6th accused’s application for leave to appeal to the Supreme Court was handed down.
6. On 29 October 2019, Mrs Takuva for the State addressed the court that the 6th accused’s application had been dismissed and therefore the trial should continue.This is when counsel for the applicant in this case stood up holding a copy of Judge MATHONSI’s judgment and stated that he had not made an application as accused 6 did, but that he has just received and read MATHONSI J’s he judgment.  He said that buoyed by a certain finding in MATHONSI J’s judgment he was considering filing an application on behalf of the 2nd accused on a point based on that part of Justice MATHONSI’s findings. Counsel however sought an adjournment to engage or take further instructions as well as engage the State and counsel for the other accused.  The adjournment was allowed.

After the adjournment, applicant did not make the earlier indicated application but made the current application for recusal as outlined at the beginning of this judgment.

From the above chronology, the following issues and questions come to mind and should be noted.

(a)        The court noted on 29 October 2019 and still notes now that the applicant’s initially intended application would have been, at that stage, way out of time.

Now why would it take the applicant exactly 5 months and 16 days to notice what he claims a laymen in the street would have noticed immediately after hearing or reading the judgment of 13 May 2019.

Secondly, if it was an impression given, and an apprehension that was so obvious as alleged, why would this court, in the stated almost 6 month period, be subjected to applications, attempted applications and requests which had nothing to do with recusal completely?  Common sense, reason and the law itself, tells us that if the impression and apprehension, was that obvious as alleged as well as genuine, then the application for recusal would have been the first reaction after the ruling on 13 May 2019.  In fact this matter would have taken a completely different course altogether.  One must also say that the need to act arose on 13 May and that has been the trend in such cases.

Another question therefore that arises is, could it be that the applicant had hoped that the 6th accused’s application to a judge of the Supreme Court in chambers would succeed and stop the continuation of trial but its dismissal then jerked him to think of his own application to make?

Thirdly, does a perceived likelihood of conviction legally and necessarily translate to bias?

From the foregoing, the court finds that the applicant has failed to show bias or a reasonable possibility or apprehension of bias against him as required by law.  It is the court’s finding also, that the apprehension, whatever it is about, is very unlikely to be reasonably or genuinely held.

Accordingly, the application for recusal is dismissed.

Nyikadzino, Simango& Associates, applicant’s legal practitioners

National Prosecuting Authority, 1st respondent’s legal practitioners

Gonese and Ndlovu, 2nd,, 3rd, & 4th respondents’  legal practitioners

Tanaka Law Chambers’ 5th& 7th respondent’s legal practitioners

Rubaya and Chatambudza, 6th respondent’s legal practitioners

Mathonsi Ncube Law Chambers, 8th respondent’s legal practitioners

Mufadza and Associates, 9th accused’s legal practitioners