John Mafanato and Others v Ms Mudavanhu, Civil Magistrate, Gweru and Another

The applicants were served on 10 January 2011 with an ex parte order granted on 7 January 2011 in favour of the 2nd respondent in Gweru Magistrates' Court case number 51/11, with the rule nisi returnable on 19 January 2011. On 17 January 2011, the applicants served notice of opposition seeking discharge of the rule nisi on grounds that the court had no jurisdiction, the ex parte order was void, and the 2nd respondent breached utmost good faith requirements. At the return date hearing on 19 January 2011, the 2nd respondent applied for a postponement to file a replying affidavit, which the applicants opposed. The 1st respondent (magistrate) indicated a ruling would be given before lunch, then at 2pm, but delivered a written ruling in favour of the postponement without the 2nd respondent and his legal practitioner being present in court. The applicants suspected improper private communication between the magistrate and the 2nd respondent's legal practitioner. They filed a review application (HC 190/11) alleging bias and this urgent application to stay proceedings and suspend the interim rule nisi pending determination of the review.

• Whether the applicants' urgent application to stay proceedings and suspend the interim rule nisi should be granted
• Whether the applicants had exhausted alternative remedies before filing the urgent application
• Whether the applicants should have applied for recusal of the magistrate instead of filing an urgent chamber application

The application was dismissed with costs.

Where an applicant alleges bias by a judicial officer and has an available alternative remedy of applying for recusal, the applicant must exhaust that remedy before resorting to an urgent application to stay proceedings. Failure to utilize the recusal procedure when available is fatal to an urgent application seeking to arrest proceedings on grounds of alleged bias.

The court noted the applicants' suspicions regarding private communication between the magistrate and the 2nd respondent's legal practitioner based on the 2nd respondent's absence when the ruling was delivered, but did not make any findings on whether such communication actually occurred or whether it would constitute bias, as the application was dismissed on the alternative remedy ground.

This case illustrates the principle in Zimbabwean (and similar in South African) civil procedure that parties must exhaust alternative remedies before resorting to urgent applications. It emphasizes that where a judicial officer's conduct is challenged on grounds of bias, the proper procedure is to apply for recusal rather than immediately seeking to stay proceedings through an urgent application. The case reinforces procedural discipline and the requirement that urgent relief is extraordinary relief that should not be granted where ordinary remedies are available.