SILAS SAREZI SHONHIWA
THE ATTORNEY GENERAL
HIGH COURT OF ZIMBABWE
HARARE, 29 April, 10 and 14 May 2010
Urgent Chamber Application.
C Warara, for the applicants
T.R Zvakare, for the second respondent
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 s 185 (1) (b) of the Criminal Law (Codification and Reform Act) [Cap 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 11.30 am. When it resumed at 11.30 am Mr Warara for the first, fourth, fifth, and sixth applicants who had been in attendance when the case was adjourned to 11.30 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.
Mr Warara who was then 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 unterminated 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 at p 47 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 were 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
Mr Warara 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 11.30 a.m., 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 confisticated 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.
Mr Zvekare 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) at 603 to 604 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  at 923 B - 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) at 969 G 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), at p 714 to 715 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 superimposes 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 post postponement as their legal practitioner was free to prepare the defence outlines, and could easily have asked the State for the alleged confisticated 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 can not 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 at pp 4 to 5 commending 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 reappear 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 reassessed 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 infact 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 can not 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.
Mr Warara 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.
Mr Zvekare for the second respondent submitted that the magistrate is a trained judicial officer who can not 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 & 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 N O (Vize Toetredend) 2001 (4) SA 1123 NC where VAN DER WALT J at 1129, 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 the Dancarl Diamonds (Pty) Ltd case (supra) 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 can not 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 the Dancarl Diamonds (Pty) Ltd case (supra) 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 the 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 wittiness’s, 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 wittiness 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 can not however convince the applicants, to believe that he will dispassionately assess the evidence of wittiness’s 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 at p 605 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 especial 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 on p 4 in the case of Take & Save Trading CC & Ors v Standard Bank of SA Ltd supra, 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) supra at p 715 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-:
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.
Warara & Associares, 1st,4th,5thand 6thapplicant’s legal practitioners
Attorney General’s Civil Division, 2ndrespondent’s legal practitioners.