Urgent Chamber Application
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 s185(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
11.30am.
When it resumed at 11.30am 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 p47 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 11.30am, and his requiring them to immediately
give their defence outlines in spite of their having been represented
and that they had not had time to prepare defence outlines as prison
officers had 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 [26] 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 p714 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 pp4 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
NO
(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 p605
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 p4 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 p715 where he said:
“Courts considering recusal
applications asserting a reasonable apprehension of bias must
accordingly give consideration to two contending factors. On the one
hand, it is vital to the integrity of our courts and the independence
of judges and magistrates that ill-founded and misdirected challenges
to the composition of a Bench be discouraged. On the other, the
courts' very vulnerability serves to underscore the pre-eminent value
to be placed on public confidence in impartial adjudication. In
striking the correct balance, it is 'as wrong to yield to a tenuous
or frivolous objection' as it is 'to ignore an objection of
substance'”.
I am therefore satisfied that the applicants' application for the
review of the magistrate's refusal to recuse himself has prospects
of success.
The applicants' application for interim relief is granted.
Pending determination of this matter the applicants are granted the
following relief-:
1. That pending the hearing of this matter on review the applicants
be and are hereby granted stay of the criminal proceedings before the
first respondent.
Warara & Associares, 1st,
4th, 5th
and 6th applicant's
legal practitioners
Attorney General's Civil Division, 2nd
respondent's legal practitioners