Philcool Investments Private Limited v Hwange Colliery Company Limited & 3 Ors

### Preamble
1
HH 576 -22
HC 5287/22
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PHILCOOL INVESTMENTS PRIVATE LIMITED

versus

HWANGE COLLIERY COMPANY LIMITED

and

TAIYUAN SANXING COMPANY LIMITED

and

HWANGE COAL GASIFICATION COMPANY (PRIVATE) LIMITED

and

SHERIFF FOR ZIMBABWE N.O

HIGH COURT OF ZIMBABWE

MAWELL J

HARARE, 15 August & 31 August, 2022

Chamber Application

T. Zishiri, for the applicant

T. Nyamakura, for the 1st respondent

S. Dhlomo, for the 2nd respondent

B. Rupapa, for the 3rd respondent

No appearance for the 4th respondent

MAXWELL J

I received an urgent chamber application referenced HC 5081/22 on 1 August 2022. I set it down for hearing on 3 August 2022 at 1000 hours.

In the morning of 3 August 2022, I found a copy of a letter to the Honourable Judge President on my desk.  The letter was dated 2 August 2022 and alleged that there had been prior discussions between myself and representatives of the first respondent.

At 1000 hours the hearing of the urgent chamber application commenced. Mr Mutero submitted that the concerns raised in the letter mentioned above were no longer persisted with.  He however raised a technical point that the matter ought to be heard in Bulawayo. He submitted that the matter is an interlocutory application arising from a matter pending in Bulawayo therefore applicant was forum shopping.

The request to refer the matter to Bulawayo was opposed by the first and third respondents. Mr Nyamakura argued that the High Court has jurisdiction over all civil and criminal matters throughout Zimbabwe.  Further that no law had been cited supporting the request and to refer the matter to Bulawayo would cause further delay defeating urgency. According to him, it was third respondent who was seeking a preferable forum.  He pointed out that applicant was not a party to the matter in Bulawayo, HC 660/22.

Ms Rupapa opposed the request on the basis that no legal justification had been put before the court to support third respondent’s request.

I dismissed the request to refer the matter to Bulawayo on the basis that I was obliged to deal with the matter as it had been placed before me.  I was of the view that it would be a dereliction of duty on my part to further delay the hearing of the urgent application.

I postponed the matter to the following day, 4 August 2022.  In the morning of the 4 August 2022, I found a letter from Shepherd Tundiya, (Shepherd) on my desk.  He expressed shock that I insisted on hearing the matter which he said was “not properly filed before you, the urgent chamber application was fraudulently brought to you on the basis of an application which had not been filed.” I was advised that the corruption allegations were being persisted with. I deferred the matter for a formal application for my recusal to be made.

On 10 August 2022 applicant filed a chamber application seeking that HC 5081/22 be referred to another judge for determination.  The chamber application stated that applicant received information from an employee of the first respondent to the effect that the third respondent had enlisted the services of the first respondent to save an asset that is currently under judicial attachment and that it had secured a favourable forum at Harare.

The founding Affidavit was deposed to by Shepherd, the applicant’s chairman. The gist of the request for my recusal is given in paragraph 11 thereof wherein he stated; -

“11. After the second and third respondents failed to stop the execution of the judgment under HC 660/22, the first respondent came into the picture. This is the source of the problem.  On Tuesday 2 August at around 14:30 and before the applicant became aware of the application under HC 5081/22, Mr Lee, the third respondent’s Marketing Manager, called me and made the following allegations:

That he was in the company of an employee of the first Respondent and that the phone was on speakerphone;

That since the third respondent had failed to stop the execution of the judgment the applicant had obtained against the third respondent, the third respondent had enlisted the services of the first respondent to cause stay of the execution;

That both he and first respondent’s representatives had prior discussions with the Hon. Maxwell J hence the first respondent had filed an urgent chamber application for stay of execution of the judgment under HC 660/22 in Harare;

That the applicant’s legal practitioners would shortly be served with the urgent chamber application and the notice of set down setting the matter for hearing on for 3 August 2022.”

Mr Zishiri submitted that as a result of the information received by Shepherd, applicant perceives that the hearing of the application would not be impartial.  He submitted that the test to be applied is objective, whether the allegations made are reasonable.  He referred to the case of Mukwindidza v Akram & Another HH 555/20. in which it is stated; -

“In Sitwana and Another v Mnagithate, District of Picketber and Another 2003 (5) SA @ 603 – 604 Foxcroft j ably stated 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 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.”

It follows from the foregoing that not only must the person apprehending bias be a

reasonable person, but the apprehension itself must, in the circumstances, be

reasonable.”

Mr Zishiri submitted also that the test for judicial bias is whether there is a reasonable likelihood of bias, or whether the reasonable man might suppose that there will be improper interference. According to his submissions, from the applicant’s perspective, it is reasonable to suppose that there will be improper interference based on the information received.

In response Mr Nyamakura stated that the proper test was stated in S v Cummings MHA 17/18 wherein in paragraph 12 it is stated; -

“However, recusal is not just there for the asking. It is important to realise that judicial officers have a duty to sit and decide cases before them and in which they are not disqualified. They should not too readily accede to suggestions of bias or other interest in the matter. The High Court of Australia put it this way in Re JRL: Ex parte CJL:(1986) 161 CLR 342 [HCA], at p 352E – F

“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearances of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

Mr Nyamakura submitted that the test is not whether allegations of bias have been made but whether there is a reasonable apprehension of bias.  He pointed out that there is no allegation that the information from the phone call was investigated and found to be true. He further pointed out that the letter dated 4 August 2022 made a direct attack on the court but the contents of that letter do not form the basis of the application.  He further pointed out that apart from the letters no evidence was availed therefore the application was based on hearsay and gossip.  Mr Nyamakura prayed for the dismissal of the application with costs de bonis propiis or alternatively on an attorney and client scale.

Ms Dhlomo associated with the submissions made by Mr Nyamakura.  She submitted that the application was predicated on baseless and unsubstantiated allegations which border on hearsay evidence made to scandalize the court and bring to disrepute the justice system.

Ms Rupapa submitted that the proper approach in an application of this nature is stated in  S v Nhire & Another HH 619/15 in which it is emphasised that it is “a real likelihood'' of bias, which satisfies the test and not “a mere possibility''. Therein reference is made to Standard Chartered Finance Limited v Georgias & Another 1998 (2) ZLR 547 (HC) in which it is stated that; -

“In deciding whether or not the above test has been satisfied, it is necessary to look, not only at facts known by the applicant, but at all relevant facts. In R v Camborne Justices, ex p Pearce [1954] 2 All ER 850 (QB) the court held at 855:

“... that a real likelihood of bias must be made to appear not only from the material in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his enquiries”

She stated that the application is based on bare allegations with no convincing evidence and is therefore against the approach required for applicant to discharge the onus expected of it.  She prayed for the dismissal of the application with punitive costs.

Mr Zishiri submitted in reply that there was no negligence or mala fide action by legal practitioners warranting punitive costs.

In my decision, I highlighted that recusal is not for the mere asking. Judicial officers have a duty to sit and decide cases before them and in which they are not disqualified. They should not too readily accede to suggestions of bias or other interest in the matter.

I considered that there are allegations of prior discussions but there is no indication of where and when they took place.  Allegations of prior arrangements made also do not state when the prior arrangements were made considering that matters are allocated to Judges through the office of the Judge President.

Assuming that the arrangements were made over the phone, there is no indication of the phone number that was called.

There is reference to an unnamed employee of the first respondent allegedly involved but there is no statement from him. Neither is there a statement from Mr Lee who allegedly phoned Shepherd. Proof of the call was not tendered even after submissions that the allegations would be substantiated.

In paragraph 11 of the founding affidavit, the people involved on behalf of the corporate beings are not mentioned. It is stated that third respondent enlisted the services of first respondent.  There are no supporting statements from any such persons.

There is no indication that the deponent to the founding affidavit ascertained  the facts relied upon or made his conclusions  from such further facts as he might readily have ascertained and easily verified in the course of his enquiries  before concluding that there is  a real likelihood of bias . See Standard Chartered Finance Limited v Georgias & Another (supra).

When I invited Mr Zishiri to clarify how I had secured the matter in the light of the allocation regime that prevails, he submitted that the allegation was not that the Judge had a hand in the matter.  I got the impression that the applicant simply did not want the matter heard in Harare.

In my view, it was not proper for applicant to challenge the court’s jurisdiction through a request for the recusal of the presiding judge.  No personal interest, bias, prejudice or conflict of interest was established.

I therefore did not recuse myself for the above reasons. I dismissed the application with costs on a legal practitioner and client scale.

Sandi & Matshakaile Attorneys, applicant’s legal practitioners.

MawereSibanda Commercial Lawyers, first respondent’s legal practitioners.

Mutumbwa Mugabe and Partners, second respondent’s legal practitioners.

Zinyengere Rupapa Legal Practitioners, third respondent’s legal practitioners.