Empanelled judges refuse to recuse themselves
Mpho Mokwape | Thursday February 9, 2017 13:14
Justices Singh Walia, Leatile Dambe and Zibani Makhwade yesterday dismissed with costs the recusal application by their colleagues, Key Dingake, Mercy Garekwe, Ranier Busang and Modiri Letsididi.
The empanelled Judges were late last year requested to recuse themselves from the quartet’s case after they accused them of being biased and hostile towards them.
When dismissing the application, Dambe said the applicants’ concern and apprehension regarding impartiality of court and its ability to deal with matter dispassionately was unmeritorious.
She explained that it did not necessarily amount to bias if during proceedings they formed an opinion on the basis of events as they unfolded before them.
“Applicants have stated that we showed hostility. That is a perception held by the applicants. Our impartiality might be reasonably questioned only if it has been shown that we harboured aversion or hostility of nature that a fair minded Judge could set it aside when judging dispute,” she said.
Dambe said whatever views, opinions or remarks they expressed on the day, will only be a legitimate basis for recusal if they display deep rooted antagonism towards the applicants and no evidence was presented which reflects such a disposition. She maintained that the utterances they made towards the applicants were ordinary efforts in the management of the case and consequently they do not manifest partiality. “The applicants want us to recuse ourselves on the basis of judicial remarks or actions. It is seldom that remarks or rulings by the Judges would, on their own typically portray the level of hostility that meets the threshold for recusal,” she said.
Dambe said throughout the case, they have expressed concern about possible delay in the conclusion of the matter, of which they were exercising their judicial function.
On that note, she reasoned that the process by itself could not be indicative of bias or partiality and that it will even be the case where interlocutory applications had been decided against the party. On some of the allegations levelled against them, Dambe said they were serious ones with no factual basis and did not satisfy any reason for recusal.
“The allegation that the Judges could have been discussing the case with the Registrar in absence of the applicants was a serious one, with no factual basis,” she maintained.
Dealing with the application to strike out the answering affidavit deposed to by the Attorney General in its entirety, Dambe said the application had no merit and dismissed it with costs.
She explained that it was appropriate for the AG to depose such since the nature of the facts and circumstances dealt with in the affidavit were contained in the court record. “As a party she could speak to such facts as matters that are within her personal knowledge contained in the records. Even if we were to hold that it is undesirable for the AG to have taken such a step, the undesirability does not render the affidavit a nullity,” Dambe said.