MHLANGA V MTENENGARI & ANOR 1992 (2) ZLR 431 (S)

MHLANGA v MTENENGARI & ANOR 1992 (2) ZLR 431 (S)

Flynote

Civil procedure — one judge hearing some evidence in case — case then transferred to another judge — whether trial has to start afresh if parties D consent to second judge adjudicating on basis of record of evidence heard by first judge and further evidence to be adduced

Headnote

After a judge trying a civil case had heard some evidence, the defendant made an allegation of bias against him. This judge then recused himself from the case. The case then came before a second judge. The second judge had before him the record of the testimony previously adduced before the first judge. The second judge decided that the trial should not start afresh but instead should resume from the point at which it had been adjourned. He did not ask counsel representing the parties whether they agreed to this course of action but neither counsel raised any objection to this being done. The second judge decided the case based on the record of the previous testimony and on further oral testimony.

On appeal it was argued by the appellant that the failure by the second judge to start the proceedings afresh amounted to a fatal irregularity which justified the setting aside of the entire proceedings.

Held, that the general rule was that where a judicial officer is unable to complete a part-heard civil trial, due to supervening death or resignation on account of ill-health or some other form of incapacity, his successor should commence the trial de novo. This general rule applied because the second judicial officer would be deprived of the substantial advantage of seeing and hearing the witnesses himself and of being able to compare their demeanour with that of the witnesses who testified in person before him.

Held, however, that this rule was subject to the exception that the trial does not have to start afresh where the parties to the action agree to the the case proceeding before the second judge from the stage it had reached before the first judge. If all the parties to the proceedings consent to the second judge deciding the case on the basis of the record of the evidence adduced before the first judge and any additional evidence presented before the second judge, the second judge must accept their wishes and re-start the trial at that point, even if the original trial had reached an advanced stage. The second judicial officer must not override the wishes of the parties and insist that the trial commences de novo.

Held, further, that although it would have been better for the second judge to have asked their legal representatives if they agreed to the case proceeding from the point it had left off when it was before the first judge, the representatives had not objected to the case proceeding in this way and must be taken to have accepted this procedure. Because of this acceptance there was no irregularity in the proceedings.