PECHI INVESTMENTS (PVT) LTD v NYAMUDA 2010 (2) ZLR 516 (H)

Flynote

Court -judicial officer - recusal - grounds for - bias - need for applicant to show reasonable possibility of bias and to prove facts from which such possibility may be inferred - judicial officer having previously expressed an opinion in case - not per se a ground for disqualification

Headnote

The applicant entered into a lease agreement with the respondent for a specific period which was renewable until 31 July 2006, after which the respondent could lease the property on a monthly basis if he so wished. The applicant resolved to terminate the lease agreement and gave the respondent due notice. However, after further negotiations, the respondent agreed to vacate the leased property on 30 September 2008. The respondent did not vacate the property. The applicant then instituted legal proceedings. The hearing of the matter was postponed on a number of occasions due to various ploys adopted by the respondent. The respondent failed to attend on one occasion and the applicant applied for default judgment. The judge refused to grant it because the respondent was a layman and a self-actor. Both parties were present at the next postponed hearing but the respondent was not properly dressed.

When the next postponed hearing was due to start and the applicant was making submissions, the respondent interjected, applying for a postponement on the grounds that he wanted to seek legal representation and that he had not had time to go through the papers as the notice of set down was served on him on the day before the hearing. A witness was called to testify as to the service of the notice and the respondent also testified. After hearing the witnesses, the judge made various findings which were contrary to the testimony of the respondent. At the final hearing the parties appeared and the respondent was properly dressed but again he had no

A file or documents. He sought a further postponement on two grounds. Firstly, since the judge had made a finding that he was not truthful with regard to the service of the notice of set-down, he was of the opinion that the judge was going to be biased against him in the event that the case was heard on the merits. Secondly, he still wanted representation in the person of an advocate.

Held, that disqualification arises whenever a judicial officer's relationship to the parties is such, or his interest in the case is such, or his knowledge of the facts of the case or of the antecedents of the parties is such, as would tend to bias his mind at the trial. The test of judicial bias is not whether there has been actual bias, but whether there is a likelihood of bias or whether a reasonable man, in all the circumstances, might suppose that there was an improper interference with the course of justice. The possibility of bias, and not actual bias, is all that the applicant has to prove, but he must prove facts from which the possibility can be inferred. The facts from which that possibility may be inferred must be special to the particular case, not a general consideration on the grounds of which bias may be vaguely conjectured.

Held, further, that there is no rule which states that a judge is disqualified from sitting in a case merely because, in the course of his judicial duties, he has previously expressed an opinion in that case. There would be as little justification for such a rule as for a rule which laid down that a judge who in a judgment expressed his opinion as to the correct interpretation of an Act of Parliament could not sit in a subsequent case between different parties where the same question of interpretation was involved.

Held, further, that 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. An impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial. Judicial officers should adopt a robust approach.

Held, further, that where bias is alleged, the judicial officer should bear in mind the possibility of lack of bona fides on the part of the applicant. Above all, it should be borne in mind that the applicant bears a weighty onus in proving not only his reasonableness but also that of his apprehension.