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

HH11-08 : ALBERT MUGOVE MATAPO vs COMMANDER OF THE ZIMBABWE NATIONAL ARMY AND THREE OTHERS
Ruled By: HUNGWE J

There is an oblique reference to fear of bias from the courts martial. There is no basis for this fear. An unsubstantial claim such as this cannot be ground to exclude the clear jurisdiction of all matters military from the courts martial. In my view, the establishment of Courts Martial is consistent with similar organisations mandated ...
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HH166-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA
Ruled By: HLATSHWAYO J

The first preliminary point of law that was raised pertaining to both matters was that of the recusal of the presiding judge. Recusal Application No formal written application for recusal of myself as the presiding judge was made in this case, despite the requirement for such an application having been drawn to the attention of the applicant, ...
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HH166-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA
Ruled By: HLATSHWAYO J

I explained to counsel for the applicant in the main matters that he need not make any submissions at all as the matter of recusal, strictly speaking, was one between the Bench and the side making the application, unless he intended to make an exceptional contribution akin to a point of order in Parliamentary parlance. ...
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HH166-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA
Ruled By: HLATSHWAYO J

Finally, this might be as good an opportunity as any to reflect on whether our Rules, and practices, regarding recusal, enhance, or detract, from impartiality as a fundamental value inherent in judicial function. Firstly, regarding our Rules, the adoption of the objective test, and increasing rejection of the subjective self-assessment, goes a long way in fostering public ...
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HB89-09 : DUMISANI NCUBE vs THE ZIMBABWE REVENUE AUTHORITY (ZIMRA)
Ruled By: NDOU J

There is no point for the respondent to denigrate the criminal trial, public prosecutor, and the magistrate.
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HB125-09 : VISION SITHOLE vs LESLIE KHUMALO and DEPUTY SHERIFF, BULAWAYO
Ruled By: CHEDA J

The applicant was, all along, being represented by his legal practitioners, who have since renounced agency a day or so before this matter was heard. The applicant then appeared, in person, in Chambers, and asked that I be recused from hearing the said application as I might not be able to objectively deal with this matter ...
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HH157-10 : ISAU MUGUGU vs POLICE SERVICE COMMISSION and COMMISSIONER OF POLICE
Ruled By: GOWORA J

The allegations by the applicant relating to alleged bias do not appear to have been responded to. I do not understand the comment in the record to the effect that the applicant should be grateful that he still had a job to mean that the Commission was biased against him. Rather, the remark if read ...
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HH04-11 : MORDECAI PILATE MAHLANGU vs DETECTIVE ASSISTANT INSPECTOR DOWA and OFFICER-IN-CHARGE, LAW AND ORDER HARARE CENTAL SUPERINTENDENT NTINI and OTHERS
Ruled By: CHATUKUTA J

On 2 November 2009, the applicant was arrested by the first respondent on allegations of contravening section 184(1)(c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegations were that he had obstructing the course of justice by attempted to interfere with the Attorney General of Zimbabwe in the discharge of his ...
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HH52-11 : AMAPLAT MAURITIUS LTD and AMARI NICKEL HOLDINGS ZIMBABWE LTD vs ZIMBABWE MINING DEVELOPMENT CORPORATION and THE CHIEF MINING COMMISSIONER and OTHERS
Ruled By: MUTEMA J

This matter was set to be heard by my brother BHUNU J on 24 January 2011 at 09.00 hours but could not because the first respondent had filed its opposing papers shortly before 09.00 hours. BHUNU J then postponed it sine die to enable the applicants to file a replying affidavit by 31 January ...
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HB142-10 : PECHI INVESTMENTS (PVT) LTD vs MAURICE MUTATSI NYAMUDA T/A EBUNANDINI RESTAURANT
Ruled By: CHEDA J

His second point is that the matter should be postponed in order to allow another judge to preside over his case. His reason is that since I had already found that he was not truthful when he told the court that he was not present on the 18th of October 2010 when service of the ...
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HB26-11 : LESLIE KHUMALO vs VISION SITHOLE
Ruled By: MATHONSI J

I must state that for some time now the respondent has tenaciously pursued applications in this court demanding the recusal of my brother judges who have dealt with this matter, namely, CHEDA J and KAMOCHA J. When this matter was set down for argument before KAMOCHA J, on 26 January 2011, he filed ...
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HB47-13 : OSCAR BOMA and LAMECK MWANZA vs COMMISSIONER GENERAL OF ZIMBABWE REPUBLIC POLICE and CHAIRMAN OF THE POLICE SERVICE COMMISSION
Ruled By: MAKONESE J

The applicants were discharged from the force by the Commissioner General of the Zimbabwe Republic Police after they were found to be unsuitable for police duties following their conviction under the Police Act [Chapter 11:10] for contravening section 34 of the Schedule to the Police Act [Chapter 11:10]. A Board of Inquiry was convened in terms ...
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HB172-13 : JUDICIAL SERVICE COMMISSION vs HLEZIPHI NDLOVU and NONKULULEKO MKHONTO and THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: MOYO J

This is an application for referral to the Constitutional Court of an application by the first respondent for my recusal in terms of Section 175(4). The background of the matter is that the first respondent made an application that I recuse myself from hearing the application for rescission of judgment made by the Judicial Service Commission, ...
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HB145-11 : REBECCA MBEDZI vs MUVHUSO MBEDZI and THE DISTRICT ADMINISTRATOR, BEITBRIDGE and THE MINISTER OF LOCAL GOVERNMENT, URBAN PLANNING AND DEVELOPMENT
Ruled By: MATHONSI J

Counsel for the applicant submitted that one Simon Muleya, the incumbent District Administrator, should be excused from presiding over the nomination process because he is biased. The alleged bias is located in the fact that he allowed the meeting of 24 February 2011 to go ahead when he was aware that the process had already ...
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HH191-14 : OLD MUTUAL INVESTMENT GROUP vs M AND S DRIVING SCHOOL and MARKO CHINGOMA
Ruled By: MAKONI J

Bias The respondents contend that the Arbitrator was biased when he determined their matters as he had issued arbitral awards in default for the eviction of other tenants from Metro Centre. This factor was not brought to their attention by either the Arbitrator or the applicant. The Arbitrator determined their matters with existing negative awards he ...
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HB179-11 : SAMUEL KUFANDADA vs SUPERINTENDANT PILATE MOYO and CHIEF SUPERINTANDANT MATANGE and SUPERITENDANT MOYO and SUPERINTENDANT ZULU and COMMISSIONER GENERAL POLICE
Ruled By: KAMOCHA J

It was the applicant's story that the President of the Board, Chief Superintendant Matange, had an interest in the matter and should have therefore recused himself….,. Finally, he alleged that Chief Superintendant Matange's bias was exhibited by his refusal to postpone the Board's proceedings to some other future date when he (applicant) requested for a postponement because ...
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SC30-15 : DUNMORE MUPANDASEKWA vs GREEN MOTOR SERVICES (PRIVATE) LIMITED
Ruled By: GWAUNZA JA, GOWORA JA and GUVAVA JA

This is an appeal against the entire judgment of the Labour Court handed down on 28 January 2011. The facts of the matter are aptly summarised as follows in the respondent's heads of argument. The appellant was employed as a Logistical Officer/Controller by the respondent. In December 2009, he was charged, found guilty and dismissed, on ...
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SC111-04 : ASSOCIATED NEWSPAPERS OF ZIMBABWE (PRIVATE) LIMITED vs THE MINISTER OF STATE FOR INFORMATION AND PUBLICITY and MEDIA AND INFORMATION COMMISSION and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, CHEDA JA, ZIYAMBI JA, MALABA JA and GWAUNZA JA

BiasThe applicant placed before the Administrative Court a number of articles authored by the Chairman of the Media and Information Commission in which he made certain remarks about the applicant. In particular, he referred to the applicant as an outlaw and indicated that its application would not be considered on the turn and that ...
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SC62-17 : PAUL GARWE vs THE PUBLIC SERVICE COMMISSION
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA JA

The onus rests upon the person alleging bias to establish the allegation….,. In Musarira v Anglo American Corporation SC53-05, the following was highlighted: “I would point out here that as long as a charge of misconduct is preferred by an employer against an employee there is always a certain element of institutional bias, as the employer ...
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HMA13-17 : COMMERCIAL SUGAR CANE FARMERS ASSOCIATION and ZIMBABWE CANE FARMERS ASSOCIATION and OTHERS vs THE MINISTER OF INDUSTRY AND COMMERCE and TRIANGLE LIMITED and HIPPO VALLEY ESTATES (PVT) LTD
Ruled By: MAWADZE J

This matter was first placed before my brother MAFUSIRE J on 2 February 2017. The applicants successfully sought his recusal…, the matter landed on my desk.
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HH250-18 : WIDE FREE (PVT) LTD t/a CORE SOLUTIONS vs MEIKLES LTD
Ruled By: MUREMBA J

In ZESA v Maposa 1999 (2) ZLR 452 (SC)…, it was held that; “Natural justice embraces the requirement that there must be fairness in the procedure. Therefore, both parties must be treated equally. Each must be given a full opportunity to present his case. (this is a mandatory requirement under Article 18 of the Arbitration Act [Chapter 7:15]) and be ...
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HB241-16 : FRANCIS MOYO vs COMMISSIONER GENERAL OF POLICE N.O. and SUPERITENDENT NYAMAROPA N.O. and CO-MINISTER OF HOME AFFAIRS N.O.
Ruled By: TAKUVA J

It was contended by the applicant's legal practitioner that proceedings before the second respondent should be set aside because the second respondent was clearly biased against the applicant. I do not agree for the simple reason that the bias manifested itself after conviction. However, the same cannot be said about proceedings before the first respondent in ...
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HH217-17 : NAISON SEKERAMAYI and OTHERS vs MASTER OF HIGH COURT and PROVINCIAL MAGISTRATE, HARARE and EASTER DZWOWA and YARADZO MUNANGATI MANONGWA (Executrix Dative in Estate Lovemore Sekeramayi)
Ruled By: ZHOU J

I am not satisfied that there is evidence of bias on the part of the first respondent on the papers filed in this case. While the decision to award the Chisipite immovable property to the third respondent can be impeached on the ground of gross unreasonableness, it does not show impartiality. It simply illustrates a failure ...
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HHMA17-18 : 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 ...
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HH150-14 : KENNEDY MANGENJE and TBIC INVESTMENTS PL and PAUL CHIDAWANYIKA vs TBIC INVESTMENTS PL and PAUL CHIDAWANYIKA and KENNEDY MANGENJE
Ruled By: MAFUSIRE J

Case 1..., is a chamber application for directions in terms of Rule 15(9) of the Supreme Court of Zimbabwe Rules. That rule reads: “The preparation of a record under the provisions of Rules 22 and 34 shall be subject to the supervision of a Registrar of the High Court. The parties may submit any matter in ...
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HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS
Ruled By: ZHOU J

This is an action instituted by the plaintiff claiming the following relief which is set out in the summons:“1. An order declaring that:(i) The purported sale between first and second defendants for the sale of 100% shareholding in second plaintiff, on or about 12th February 2009, and all actions flowing ...
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HH281-16 : JOHANNES TOMANA vs JUDICIAL SERVICE COMMISSION and THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: MAKONI J

On the test for recusal, counsel for the applicant relied on Mcmillan Ors v Provincial Magistrate, Harare Ors 2004 (1) ZLR 17 H; Goy and Masimba v R Jackison WO 1963 R N 318 (FS)….,. The other point advanced by the applicant, in support of his request, ...
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SC20-18 : VENGESAI CHIRASHA vs NATIONAL FOODS LIMITED
Ruled By: GARWE JA, GOWORA JA and HLATSHWAYO JA

The appellant makes even more serious allegations that the respondent's Group Human Resources director and others were busy issuing food hampers to labour officers, arbitrators and registrars of labour courts, including Mr Muna, on or about the time that he was allegedly misled into filing a review instead of an appeal. In his answering affidavit, in the ...
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SC41-19 : TM SUPERMARKETS (PRIVATE) LIMITED vs BISSET CHIMHINI
Ruled By: GARWE JA, GOWORA JA and ZIYAMBI AJA

The position is settled that not only actual bias but also the appearance of bias disqualifies a judicial officer from presiding over judicial proceedings. Actual bias, or partiality, need not be shown as long as the court is satisfied, from the conduct of the presiding officer, either by his words, his action or inaction or ...
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SC133-19 : EGA SANSOLE N.O. and CECILIA NEHWATI and THE ASSISTANT MASTER - HIGH COURT vs CHARLES NCUBE and ANNE NCUBE and NEGOLOBELO NEHWATI and MANO NEHWATI
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA and MALABA JA

The deceased signed and executed a Will on 14 December 1990. The Will was prepared by the first appellant who is a legal practitioner and a former friend of the deceased. In terms of the Will, the first appellant is the executor of the deceased's estate and the second appellant is the main beneficiary. The second appellant is ...
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HB40-09 : 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 ...
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HH809-15 : MANGWIRO SIBANDA vs JANE HAPPIAH CHIKUMBA and ALTFIN INSURANCE COMPANY
Ruled By: CHIGUMBA J

In an application for the recusal of a judicial officer, what must be proved is the mere possibility of bias, not actual bias. What is important when considering the circumstances of each case is the impression or perception that is created in the mind of right thinking people - not the applicant's subjective impression of bias. The test ...
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HH177-17 : GILBERT JONGA vs NYASHA CHABATA
Ruled By: CHATUKUTA J

As stated in Mydale International Marketing (Pvt) Ltd v Dr Rob Kelly and Hammer and Tongues (Pvt) Ltd HH04-10, it is not for the respondent to disregard the appeal on the basis that she is of the view that it is a nullity. She cannot be the judge in her ...
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HHH185-18 : GARIKAYI MBERIKWAZVO vs RESIDENT MAGISTRATE (KADOMA) N.O. and THE PROSECUTOR GENERAL N.O.
Ruled By: MUSAKWA J

A quick check of S v Johannes Tomana HH531-17 showed that the judgment relates to recusal.
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SSC113-00 : 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 ...
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HB189-18 : CLAUDIUS MANAMELA and BRIGHTON NANGA and SIBONGILE MANAMELA vs ROSEWELL ZULU and APOSTOLIC FAITH MISSION OF AFRICA INTL and CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: MABHIKWA J

On 30 January 2018, the applicants caused to issue legal proceedings, an application, out of this Honourable Court –“In the High Court of Zimbabwe, held in Bulawayo. The applicant sought an order that it be declared that:(1) That the President of the Apostolic Faith Mission of Africa International is Reverend ...
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HH59-09 : TRUST CORPORATION SECURITIES (PRIVATE) LIMITED vs L.M. GABILO and DEVORGILLE KATSANZA
Ruled By: UCHENA J

The applicant is a company duly registered in terms of the laws of Zimbabwe. The second respondent is its employee with whom it has had labour disputes leading to this application.The second respondent was suspended from employment pending the resolution of the dispute between her and her employer.The first respondent ...
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HH19-07 : PONDORO (PVT) LTD and DOUGLAS TAYLOR-FREME vs MENDE NEMAKONDE and THE MAGISTRATE, CHINHOYI
Ruled By: HUNGWE J

This matter was placed before me under a certificate of urgency on 17 January 2008. I gave directions that it be heard the following day as I deemed it appropriate that the Rules of Court be dispensed with in the interests of achieving justice in this particular matter....,.The applicants seek ...
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HH55-09 : EBI ZIMBABWE (PVT) LTD vs OLD MUTUAL UNIT TRUSTS (PVT) LTD and ADVOCATE J.C.J. LEWIS
Ruled By: PATEL J

In May 2004, the applicant and the first respondent entered into a software licensing agreement. Following a dispute that arose between the parties in January 2006, the matter was referred to an arbitrator (the second respondent) for arbitration.On the 23rd of June 2008, the applicant challenged the impartiality of the ...
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HH84-10 : 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 ...
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HHB100-17 : 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 ...
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HHB345-16 : 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 ...
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HHH765-15 : 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, ...
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HH965-15 : CONPLANT TECHNOLOGY (PVT) LTD vs WENTSPRING INVESTMENTS (PVT) LTD
Ruled By: MAFUSIRE J

The trial in this matter was held up by a preliminary argument on a special plea. The central question was whether or not the trial should be stayed and the matter referred to arbitration in terms of an arbitration clause in the contract between the parties upon which the plaintiff ...
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Appealed
HH405-20 : ROBIN VELA vs AUDITOR GENERAL OF ZIMBABWE N.O. and BDO ZIMBABWE CHARTERED ACCOUNTANTS (whose partners are Ngoni Kudenga, Gladman Sabarauta, Martin Makaya, Gilbert Gwatiringa and Jonas Jonga)
Ruled By: CHINAMORA J

It is trite law that one need not establish actual bias - but an appearance of bias. This was the test set by the Supreme Court in Leopard Rock Hotel (Pvt) Ltd v Wallen Construction (Pvt) Ltd 1994 (1) ZLR 255 (S)…,.In Foya Mutimba v R ...
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SC50-21 : A. ADAM AND COMPANY (PVT) LTD and SGI PROPERTIES (PVT) LTD and HONOURABLE RETIRED JUSTICE SMITH vs GOOD LIVING REAL ESTATE (PVT) LTD
Ruled By: GWAUNZA DCJ, BHUNU JA and MAKONI JA

This is an appeal against the whole judgment of the High Court setting aside an arbitral award granted in favour of the appellants on the basis that it was contrary to public policy as it was made in defiance of an extant court order.THE BACKGROUNDOn 10 January 2010, the first ...
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HHH135-17 : 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 ...
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SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO
Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

Conduct that conjures the much-condemned circumstance, where someone is seen to act as both a prosecutor and judge in the same cause, flies in the face of the time-honoured adage 'justice must not only be done, but must be seen to be done.'
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HH595-15 : 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 ...
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Appealed
CC07-21 : 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 ...
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