Tendai Bonde v (1) National Foods (2) Registrar Supreme Court of Bulawayo

### Preamble
Judgment No. SC 159/20
1
Chamber Application No. SCB 96/20
---------


DISTRIBUTABLE     (148)

TENDAI     BONDE

v

(1)     NATIONAL     FOODS      (2)     REGISTRAR     SUPREME COURT     OF    BULAWAYO

SUPREME COURT OF ZIMBABWE

BULAWAYO: NOVEMBER 4, 2020 AND NOVEMBER 18, 2020

Applicant in person.

Mr L. Nkomo, for the First Respondent.

CHAMBER APPLICATION

MATHONSI JA: This is an application for condonation and extension of time within which to note a review application in terms of r 13 of the Supreme Court Rules, 2018.

APPLICATION FOR RECUSAL

At the commencement of the hearing the applicant made an application for recusal on three grounds. The first is that there is a judgment of this Court in Bonde v National Foods Limited     SCB 2/19 which was prepared by myself and dismissed with costs, his appeal against the whole judgment of the Labour Court handed down on 26 July 2017.

The applicant produced the order issued by the registrar in which it is endorsed that the appeal was dismissed by consent. In fact, a perusal of the ex tempore judgment shows that the appeal was dismissed with costs with reasons given. The word “consent” appearing on the order produced by the applicant may have been a typing error.

The applicant submitted that he never consented to the dismissal of his appeal. For that reason he has sought rescission of that judgment which is a separate matter pending in this Court. Accordingly, so the argument goes, the applicant feels “dangerously insecure” appearing before me to prosecute his appeal. It is commendable that the applicant has sought redress on what he perceives to be a wrong visited upon him.

Unfortunately, reference to that judgment, which is one by a three-member bench of this Court, does not begin to make a case for recusal in the present application. Indeed, the submissions made by the applicant on that score do not even begin to address the requirements for recusal.

The second basis for seeking recusal is that the applicant has encountered several problems with all the judges of this Court who have previously handled cases involving the first respondent. He referred to a judgment issued by another three-member bench of this Court and submitted that the order in question does not make sense. The applicant submitted that he is not free with all the judges who have handled the first respondent’s cases. He now requires the “services” of a judge who has never dealt with any case involving the first respondent.

According to the applicant, he has scars arising from all the judges who have dealt with his matters. Clearly, the applicant’s submissions on this score amount to an affront on the integrity of the entire Supreme Court bench. It cannot be taken seriously at all because the applicant is not at liberty to pick and choose which judge should determine his application. As long as he wants redress from the court he has to respect the processes of the court including that judges will be assigned to deal with his matters without any input from him.

The third ground for seeking recusal is that he had made an application for rescission of the judgment of this Court in    SC 599/18. For unknown reasons, that application was later withdrawn under unclear circumstances. That fact, together with the fact that his present application emanated from case number SC 599/18 means that he is only comfortable with his application being placed before what he called “a fresh judge” who has never dealt with the first respondent. The applicant did not attempt to show how the issue of this rescission of judgment application is relevant to his application for recusal. Nothing more needs to be said about it.

In response to opposing submissions made by Mr Nkomo for the first respondent that his application did not meet the threshold for the recusal of a judge from a matter assigned to him, the applicant stated that he was also relying on the contents of his letter of complaint to the registrar dated 20 October 2020. In that letter he had started;

“…please be advised that I do not want the Honourable MATHONSI JA to be involved with my application. The reason is that I have found His Lordship very partial when it comes to dealing with matters involving National Foods Limited.”

Viewed together with the applicant’s aversion for his matters being dealt with by any judge of this Court who has previously handled the first respondent’s matters, the contents of that letter do not add anything. However, it is in the nature of judges’ calling that they should deal with matters assigned to them without fear or favour.

In order to succeed in seeking the recusal of a judicial officer, a party seeking recusal on the ground of an apprehension of bias or partiality must satisfy an objective test. The question which arises is whether there exists grounds from which a reasonable person would think that there is a real likelihood the judicial officer would not fairly determine the issue on the basis of the evidence and arguments to be placed before him or her.

The position was eminently expressed by this Court in Leopard Rock Hotel Co (Private) Limited & Anor v Walenn Construction (Private) Limited 1994 (1) ZLR 255 (S) at 275 A-B thus:

“A common theme which runs through the authorities is, therefore, that the test to be applied is an objective one. One does not enquire into the mind of the person challenged to determine whether or not he was or would be actually biased. Thus the character, professionalism, experience or ability as to make it unlikely, despite the existence of circumstances suggesting a possibility of bias arising out of some conflict of interest, that he would yield to infamy, do not fall for consideration.”

In my view a reasonable or right-thinking person would not believe that there exists a likelihood of bias merely because a litigant believes, without even attempting to justify such a belief, that every judge that has dealt with matters involving his former employment is biased against him. By virtue of training, experience and conscience judges are able to administer justice without fear or favour. Perhaps it is time that the applicant accorded the judges of this Court some respect and focus on presenting his case instead of spending time forum-shopping. It is for these reasons that I dismissed the application for recusal.

APPLICATION FOR CONDONATION

The background of the matter is briefly that the applicant and the first respondent were involved in a legal dispute. On 23 March 2020 the court dismissed an application brought by the applicant under case number SC 46/19 with costs on the scale of legal practitioner and client. The dismissal was in open court.

As a result, the first respondent’s legal practitioners prepared a bill of costs for taxation by the taxing officer. On 24 July 2020, a notice of taxation on 4 August 2020 at 1030 hours was issued by the registrar of this Court. It is common cause that the applicant did not attend the taxation of the bill of costs. The bill was taxed and allowed by the taxing officer in the sum of $138 628.10.

Following taxation, the first respondent issued a writ of execution in that amount against the applicant’s property. On 15 September 2020 the sheriff, acting on instructions from the first respondent’s legal practitioners, attached certain items of property belonging to the applicant. This prompted the applicant to launch this application which he says is for condonation and extension of time within which to seek a review of the “act, conduct and taxation order” of the registrar of this Court.

The applicant asserts that this Court has jurisdiction to hear the application under r 13 of the court’s rules. He makes it clear that he is not relying on r 56 on the rules because he seeks a review of the registrar’s conduct as well as the taxation proceedings. The application is therefore convoluted. In terms of r 56 (1) and (2):

“1. Where costs are allowed they shall be taxed by a registrar and legal practitioner’s fees shall be charged and taxed in accordance with the relevant provisions of the tariff for the time being used by the High Court of Zimbabwe.

2. Any party aggrieved by the taxation shall give notice of    review to the registrar and to the opposite party within 15 days of the taxation setting out his or her grounds of objection.”

If the applicant is unhappy with the costs allowed by the taxing officer, r 56 (2) affords him an opportunity to seek a review of the taxation. The review in terms of subrule (2) of r 56 should be made within 15 days. Where, as in this case, the applicant has failed to bring a review application within the prescribed period of time, then he is at liberty to bring an application for condonation of the failure to abide by the rules and for an extension of time within which to do so.

The applicant has however categorically stated that he is not proceeding in terms of r 56 and that he is not certainly seeking a review of taxation. He however, seeks the setting aside of the taxed bill of court. The applicant has specifically said that his is an application in terms of r 13. In terms of r 13:

“1. Any person aggrieved by any act, order or decision of a registrar, other than an act performed or order or decision made at the direction of a judge, may apply to have such act, order or decision set aside.

2.  An application in terms of subrule (1) shall be by chamber application served on the registrar and any other person interested in the matter and shall state clearly and specifically the grounds on which it is sought to have the act, order or decision set aside.

3. ……

4. ……”

An application made under r 13, attacking the conduct or decision of the registrar, has no times lines. As long as it is made within a reasonable time, it does not require an application for condonation. If the present application is premised, as the applicant asserts, on r 13, there is no basis for seeking condonation, there being no violation of the rules. The application is therefore superfluous and completely unnecessary. There can be no proper application before the court for condonation and extension of time within which to file an application for extension of time to file such an application.

The applicant is challenging the taxation on a number of grounds. He states that the notice of taxation is fatally defective by reason that it is not signed. According to the applicant, an act based on an unsigned document is irregular. In addition, the applicant states that during the week of the taxation it was difficult to move around town because of the lockdown, and when the taxation was done, he was not notified of the outcome. In his oral submissions the applicant stated that during that week he had been in Harare attending another hearing.

In the applicant’s view, these factors together with the fact that the registrar conducted taxation on the basis of an unsigned notice, in his absence at a time when he was pursuing the parallel process of a rescission of judgment application, means that the taxation ought to be set aside.

I have said that the application is convoluted. What the applicant states in his founding affidavit would ordinarily appear in an application for rescission of judgment. The application is fundamentally flawed. I find it unnecessary to relate to its merits. The application being improperly before me, it has to be struck off the roll.

Regarding the costs, the first respondent asked for costs on the superior scale. At the hearing of the application,  Mr Nkomo, who appeared for the first respondent, did not press for a punitive measure of costs. A case was therefore not made for such costs. I however, see no reason why the costs should not follow the result.

In the result, it be and is hereby ordered that the application be and is hereby struck off the roll with costs.

Calderwood, Bryce Hendrie & Partners, 1st respondent’s legal practitioners