RUSHESHA NO & ANOR v DERA & ORS 2013 (2) ZLR 275 (H)

Flynote

Contract — nature of — disguised transaction — property given as security for a debt — transaction disguised as a sale — approach of court thereto — court looks at substance and not form of transaction

? Contract — pactum commissorium — such contract illegal and unenforceable — any proceeding founded thereon a nullity

Costs — de bonis propriis — legal practitioner — misconceived application for recusal — application made respectfully and without scandalizing court — order of costs not warranted

? Court — judicial officer — recusal — grounds for — bias — judicial officer having, when acting as counsel in an earlier and unrelated case, made submissions indicating disapproval of party's manner of conducting business — not a ground for recusal

Headnote

"It would be perfectly impossible to conduct the administration of justice in the proper way if judges and magistrates were to be recused because at some time they had expressed unfavourable opinions as regards persons who subsequently come before them. that cannot be a ground of recusal and.....it is not one of the proper grounds on which a person should be recused" (dicta per Mason J in R v Heilbron 1922 TPD 99 G at 100 followed.)

Counsel for the fourth defendant in a trial applied for the judge to recuse himself. The grounds given for the request were that, before he was appointed as a judge, he was counsel in an action against the fourth defendant and in that capacity had, during argument, expressed a "severe opinion" on the manner in which the defendant conducted its business. Accordingly, the fourth defendant was wary that the judge might still hold such an opinion about it. The content of the opinion was not disclosed, other than that the opinion was expressed in an urgent chamber application.

Counsel for the plaintiff argued that the court should order the fourth defendant's counsel to pay the costs of the application de bonis propriis, on the ground that the application scandalised the court.

Held, that where a judicial officer is disqualified from hearing a case, a party to that case is entitled to apply for the recusal of the judicial officer concerned. Such an application, known as an exceptio recusationis, must be founded upon reasonable cause — justa causa recusationis — which the applicant must prove. Trivial grounds cannot found a recusal.

Held, further, that enmity or hostility towards a party or expression of opinions indicative of bias are grounds for seeking recusal. Here, recusal was sought on the basis of an alleged opinion expressed in a matter in which the fourth respondent was a party and the judge represented the other parties therein as an advocate. The so-called opinion could only have been a submission made in court based on the facts before it, as counsel is expected to make submissions and not expressions of opinion. The relevance of that opinion to the instant matter was neither alleged nor disclosed. The opinion was not made in connection with the instant matter. Above all, it was not made by the judge in his capacity as a judge; but even if that were the case, the law is clear that it is no ground for recusal that a judicial officer expressed an opinion at a previous stage in another case. It would be impossible to conduct the administration of justice in the proper way if judges and magistrates were to be recused because at some prior time they had expressed unfavourable opinions as regards persons who subsequently come before them. Sometimes lay persons do entertain the mere possibility of bias on the part of a judicial officer, but that is insufficient to ground an application for recusal in the absence of an extrajudicial expression of opinion in relation to the case or in the absence of the other recognised grounds.

Held, further, that the application was indubitably vexatious and in the ordinary course would have readily attracted a punitive order of costs. However, an application for recusal necessarily places a legal practitioner who is making it in an unenviable position and should not be looked at as any other application. A bona fide application for recusal, presented in proper language, should not readily trigger an enquiry into the motives or propriety of the legal practitioner's conduct. A court should not exhibit unnecessary sensitivity in dealing with an application for recusal.

Although this application was misconceived, it was made respectfully without scandalising the court and the lawyer should not be penalised.

Held, further, that it is not uncommon for parties to enter into disguised transactions where property which is given as security is disguised as the subject of a sale. In such circumstances the approach of the court is settled. The court looks at the substance and not the form of the transaction.

Held, further, that a pactum commissorium is "a pact by which the parties agree that if the debtor does not within a certain time, after the lapse of time fixed, the full property in the thing will necessarily pass to the creditor in payment of the debt" (dicta per Ward J in van Rensburg v Weiblen 1916 OPD 247 at 252 followed). The simple position at law is that a pactum commissorium is illegal, unenforceable and a nullity. Every proceeding founded thereon is also a nullity.