BHUNU
J: During the week beginning 13 April
2009 HUNGWE J was in South
Africa scheduled to return about a week
later. Before leaving for South
Africa we had agreed to swap duties.
This
matter came before me as an application for leave to appeal against his order
granting bail to the first three respondents under case number B427- 9/09. In
the normal ran of things such applications are determined by the presiding
judge. I however, considered the application to be so urgent such that it could
not wait for the return of HUNGWE J. There being no objection to my presiding
over the matter and considering it proper I agreed to preside over the matter.
I
initially heard the application on 14 April 2009 and it was postponed to 15
April 2009. The case was heavily contested and the preparation of the judgment
painstaking. Conscious of the need to determine the matter in the shortest possible
time I worked over time but I only managed to complete writing my judgment on
16 April 2009 and it was delivered on 17 April 2009.
What
this means is that it took me a day to prepare judgment. While preparing
judgment I was oblivious of any dias inducia
or deadline. If there was one no one brought it to my attention. If it had been
brought to my attention I would have issued my order with reasons to follow.
All along I was of the honest view that as the court was seized with the matter
this interrupted the running of time against the applicant as is the case with
prescription.
The
three respondents I am told were released on 17 April 2009 on the basis that
the seven day period prescribed by s 121 of the Criminal Procedure and Evidence
Act [Cap 9:07] had expired on 16
April without the applicant having lodged its appeal in the Supreme Court.
The
applicant now applies for an order canceling the warrant of liberation,
re-arrest of the three respondents and the suspension of the bail granted by
HUNGWE J on the basis that the respondents' liberation was irregular and to
that extent unlawful.
At
the commencement of the hearing counsel for the respondents raised an objection
in limine seeking my recusal
primarily on the basis that the allegations made in paragraphs 6.3 to 6.4 of
the opposing papers concerning the way I handled the matter place me in an
invidious
position
such that I cannot make an objective determination of the matter.
The
allegations made in the opposing papers are basically that the alleged delay is
attributable to me. They also question why the matter had to be placed before
me instead of the presiding judge. They have also pointed to a pending
application before PATEL J where they allege that the police are now illegally
guarding the three respondents at the instance of the applicant. Their other
complaint is that in my judgment I appeared to review HUNGWE J's judgment.
The
question of recusal is to a large extent subjective. Having searched my
conscience I am not convinced this is a case in which I can properly preside
without it appearing that my vision has been clouded with the dust of the
conflict. I consider that the ends of justice can properly be served if the
application is determined by another judge who has not handled this matter
before.
I accordingly recuse myself and withdraw
from presiding over this application.
Attorney General's Office, applicant's
legal practitioners
Mbidzo Muchadehama, respondent's legal practitioners
