Judge Segopolo accused of bias
Mpho Mokwape | Monday January 31, 2022 06:00
Now, the State having failed in their attempt back in October 2021 at the High Court to have judge Segopolo recuse himself, have approached the Court of Appeal (CoA) appealing his refusal to recuse himself.
Nchunga has a pending case before judge Segopolo at the High Court where the former permanent secretary is seeking a review of the decision of President Mokgweetsi Masisi to fire him.
At the time he was fired, through a letter signed by then Permanent Secretary to the President (PSP) Elias Magosi, Nchunga had about four years still left prior to the expiry of five-year contract as it was renewed on April 1, 2020 and set to expire in March 2025.
The State, which is represented by Advocate Sidney Pilane, wants judge Segopolo to recuse himself from the matter on grounds that he has exhibited biasness especially that a dispute had ensued and the judge did not take notice of it despite an objection raised.
“The matter was scheduled for substantive hearing with preliminary objection and the merits of the review application to be heard simultaneously,” said Pilane.
“A dispute subsequently ensued in respect of whether the scheduling of the hearing of the merits of the review application was consent. We feel it was not by consent therefore, the recusal application.”
Advocate Pilane explained that they opted for recusal because the judge did not listen to the objection that an order scheduling the merits of a preliminary objection (Order 33) and that of a review application was prejudicial to them.
He added they had advised the judge at the time that only the preliminary objection application was ripe for hearing and that the merits of the review application depended on the order 33 application but the judge had insisted that the entire matter be argued.
On the appeal not being properly before court, Pilane said it was not the case as the application was dealt with as a stand-alone. He explained that the appeal did not need a leave for appeal since it was not connected to the merits of the main application.
Meanwhile, the respondent being Nchunga, does not agree with the State’s contention for the judge to recuse himself. His attorney, Mboki Chilisa argued the appeal was not properly before court because no leave to appeal was sought.
“The State without seeking leave to appeal proceeded to note an appeal against the ruling. We submit that the State’s appeal is not properly before court as no leave to appeal has been sought from the court below,” he said.
According to Chilisa, the appeal was not properly before court because the judge’s decision to refuse to recuse himself, was interlocutory. He argued it was interlocutory in the sense that it did not relate to the merits of the dispute between the disputants and could therefore never be the last word on the merits of the parties’ dispute.
Chilisa explained that in terms of the Court of Appeal Act section 10 an appeal lies as of right against any final decision in any proceedings before the High Court sitting as a court of first instance.
“A decision by a judge not to recuse himself does not dispose of any part of the relief sought in the main action and is therefore not a final decision within the meaning of Section 10 of the CoA Act. A decision by a judge to refusing himself is therefore undoubtedly an interlocutory order,” he said.
Chilisa also said on the basis of the foregoing, they submit that there was no doubt that the ruling which the State has appealed against required leave of the court and that since leave was not sought the appeal stood to be struck off with costs.
On the merits of appeal on recusal, Chilisa said the application for recusal was frivolous and was correctly dismissed.
He pointed out that no reasonably informed person would apprehend bias from the simultaneous scheduling of the hearing of a review application on the merits and an order 33 application without consent of the parties particularly in circumstances where the latter application was referred as a point in limine.
“A reasonably informed person would have known that any scheduling order that is prejudicial might be altered by the court that issued it,” Chilisa said.
“If the State’s substantive legal representative came to the realisation that the scheduling order that was made by the court below was prejudicial, all that was required was for him to request the court to alter it by confining itself to only considering the other application. After all court make and alter scheduling orders all the time.”
Chilisa said the court below was correct in dismissing the application for recusal and added that the court perhaps could have gone further and showed its disapproval of its frivolity by ordering the State to pay punitive costs.
He urged the CoA panel to dismiss the appeal with punitive costs as a mark of disapproval of its frivolity and as disapproval of the State’s persistence with their frivolous attempt to have the judge below recuse himself.