Ronnah Mafurirano v CBZ Bank Limited

### Preamble
1
HB 264/22
HC 316/20
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RONNAH MAFURIRANO

Versus

CBZ BANK LIMITED

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 18 OCTOBER 2022 & 27 OCTOBER 2022

Application for recusal

S. Nkomo, for the applicant

V.E. Ndlovu, for the respondent

DUBE-BANDA J:

This is an application for my recusal. The brief facts of this matter are that an application for rescission of judgment was placed before me and it was set down for the 18 October 2022.  On the 17 October 2022, Muvingi & Mugadza Legal Practitioners (respondent’s legal practitioners) addressed a letter to the Registrar of this court ostensibly indicating that I ought to recuse myself from the hearing of the application for rescission of judgment.

The relevant part of the letter reads as follows:

It has come to our attention that the judgment in the main matter under reference case number HC 8521/12 was handed down when his Lordship was the principal at the law firm Dube-Banda, Nzarayapenga (sic). At that material time the law firm was the correspondent law firm of our client. ……. In view of the above, it is our considered view that the matter be removed from the roll to allow, firstly for the re-allocation of the matter to another judge……

At the hearing Mr Ndlovu counsel for the respondent reiterated what is in the letter and submitted further that his instructions were to seek my recusal from hearing the application for rescission of judgment. In essence counsel repeated the averments contained in the letter of the 17 October 2022 quoted above. Counsel submitted that Dube-Banda, Nzarayapenga & Partners (DBN & Partners) acted as correspondent attorneys for Muvingi & Mugadza in respect of respondent’s matters filed in the Bulawayo High Court Registry, but did not act as correspondent attorneys in respect of matter number HC 8521/12 which resulted in the order that is sought to be rescinded.

Mr Ndlovu submitted that what has motivated this recusal application is that the dispute between the litigants has been raging for a long time, it is feared that should the application for rescission of judgment be dismissed the applicant might turn around and use the fact that DBN & Partners was a correspondent for the respondent to challenge the result. The contention was that in seeking my recusal the respondent was merely being extra cautious.

The relevant facts and circumstances which emerge are these: In 2012 I was the principal partner at DBN & Partners. Muvingi & Mugadza is a law firm with its offices in Harare, and therefore it would require correspondent attorneys for its matters filed at the High Court Registry in Bulawayo. Although I have no clear recollection of DBN & Partners acting as correspondent attorneys for Muvingi & Mugadza in 2012 in respect of the CBZ Bank Limited matters, I accept for the purposes of this application that indeed such was the case. I therefore I accept that DBN & Partners were the Bulawayo correspondent attorneys for Muvingi & Mugadza in respect of CBZ Bank Limited matters. It is clear from the record that DBN & Partners did not act as a correspondent in respect of case number HC 8521/12 which culminated in the order that is sought to be rescinded. HC 8521/12 was filed in the High Court Registry in Harare. The default judgment was granted on the 6 September 2012 (per Hungwe J as he then was). It is on these facts that this application for recusal must be determined.

Application of the law to the facts

In Mupungu v Minister of Justice, Legal and Parliamentary Affairs & Ors CCZ 07/21 the Constitutional Court observed that an application for recusal is in essence a conversation between the apprehensive litigant and the court and in which conversation the other party can listen in. Mr Nkomo counsel for the applicant indicated that the applicant did not support the application for my recusal. Like what was said in Mawere and 5 Others v Mupasiri and 2 Others CCZ 2/2022 I am grateful for the observations Mr Nkomo made, however in coming to my decision, I did not seek to rely on the fact that the applicant did not support the application for my recusal.

The test applicable to determine whether a judicial officer is disqualified from hearing a case by reason of a reasonable apprehension of bias was enunciated in President of the RSA and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC), 1999 (7) BCLR 725, where the following approach was recommended when considering applications for recusal:

“It follows from the foregoing that the correct approach to this application for the recusal of members of this Court is objective and the onus of establishing it rests upon the applicant. 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. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judge to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves.”

Expressing himself on the two competing positions, in South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC), 2000 (8) BCLR 886 Cameron AJ had this to say:

“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.”

In Mawere and 5 Others v Mupasiri and 2 Others CCZ 2/2022 the Constitutional Court said the law against bias seeks to balance two equal positions at law. These are the duty of every judge to sit and determine all matters allocated to him or her unless, in the interests of justice, recusal is necessary. Recusal is therefore not to be had for the mere asking. It has to be validly taken.

It is trite that impartiality is the fundamental quality required of the judiciary. It must exist both as a matter of fact and as a matter of reasonable perception. 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 “proceedings” a nullity: See: S v Rall, 1982 (1) SA 828 (A) at 831 H - 832 A; Council of Review, South African Defence Force v Mönnig 1992 (3) SA 482 (A) at 495 B - C; Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) at 9 G.

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 casu the question is whether a reasonable objective and informed person would on the correct facts reasonably apprehend that I will not bring an impartial mind to bear on the adjudication of this case. As stated in Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1) ZLR 226 (H) at 239E-F) what defines the reasonableness of the apprehension itself is the nature of the link or association between the judicial officer and the parties in the litigation.

The matter between CBZ Bank Limited v Ronnah Mafurirano t/a Skyorks Service Station HC 8521/12 was filed at the High Court, Harare Registry. The order sought to be rescinded was granted on the 6 September 2012 at the High Court, Harare. No allegation has been made that CBZ Bank was at that time a direct client of DBN & Partners. DBN & Partners did not act as correspondent attorneys in respect of the matter that resulted in the order sought to be rescinded. My view is that the relationship between CBZ Bank and myself arising from the facts of this case is too tenuous and remote to sustain and support an application for my recusal. The order sought to be rescinded in this application was granted in the High Court, Harare. No use of correspondent attorneys in Bulawayo was necessary. I take the view that a reasonable litigant on the correct facts of this case will not entertain a reasonable perception of bias on my part. Therefore there is no direct link whatsoever between the CBZ Bank and myself. The link is just far-fetched. It will be wrong to yield to such a tenuous objection.

The contention that it is feared that should the application for rescission of judgment be dismissed the applicant might turn around and use the fact that I was a partner at DBN & Partners which was a correspondent for the respondent to challenge the result is not persuasive. This has no basis on the facts and is merely speculative.

On the relevant facts and circumstances there cannot be reasonable suspicion that I might be biased. I also take into account that as a judicial officer I am assumed to be able to disabuse my mind of any irrelevant personal beliefs or predispositions and that I have a duty to sit in any case in which I am not obliged to recuse myself. It appears to me that the respondent has not discharged the onus placed on it of rebutting the weighty presumption of judicial impartiality. It is for these reasons that the recusal application has no merit and stands to be dismissed.

Regarding costs, I take the view that the respondent raised an important issue which surely required closer scrutiny. Litigants are entitled to a fair hearing before an impartial court. At the end of the day, the vital ingredient of a fair trial is that justice must be done and be seen to be done. The cornerstone of our legal system is the impartial adjudication of disputes which come before our courts. In a proper case it will not be in the interests of justice to deter litigants from enforcing and protecting this important constitutional value for fear of incurring costs, unless of course the application is frivolous and vexatious.  On the facts of this case justice will be achieved by a no costs order.

In the result, I order as follows:

The application for my recusal in case number HC 316/20 be and is hereby dismissed with no order as to costs.

Mathonsi Ncube Law Chambers, applicant’s legal practitioners

Muvingi & Mugadza, respondent’s legal practitioners