Kennedy Godwin Mangenje v TBIC Investments (Private) Limited and Paul Esau Hupenyu Chidawanyika

Two consolidated cases arose from disputes following judgment in two main cases (HC 601/11 and HC 9527/11) heard by Mafusire J in September 2013, in which Mangenje was successful. TBIC Investments and Chidawanyika appealed to the Supreme Court. A dispute arose regarding whether certain documents should be included in the record of appeal: (1) an interlocutory chamber application allegedly filed in May 2012 seeking to expunge Mangenje's supplementary affidavit, and (2) a supplementary affidavit by TBIC Investments allegedly filed in June 2013 in response to the Registrar of Deeds' affidavit. The assistant registrar initially included the supplementary affidavit but removed it after objection. The parties reached deadlock and the matter was referred to Mafusire J for directions. In HC 3244/14, Mangenje applied for directions under Rule 15(9) of the Supreme Court Rules. In HC 8211/14, TBIC Investments and Chidawanyika applied for Mafusire J's recusal on grounds of alleged bias, claiming he had prejudged the matter.

• Whether the judge should recuse himself on grounds of reasonable apprehension of bias
• What test applies to applications for judicial recusal
• Whether certain documents filed but not part of the record during the hearing of the main cases should be included in the record of appeal
• The proper procedure for preparation of records of appeal under Rule 15 of the Supreme Court Rules
• The treatment of chamber applications under the High Court Rules

Case 1 (HC 3244/14): The registrar was directed to: (1) exclude the interlocutory chamber application altogether from the record of appeal; (2) omit TBIC Investments' supplementary affidavit from the appeal record proper but include it in the list of omitted documents at the beginning of the record. No order as to costs. Case 2 (HC 8211/14): Application for recusal dismissed with costs.

The binding legal principles established are: (1) The test for recusal based on reasonable apprehension of bias is objective and must be assessed in light of true facts; incorrect facts relied upon by an applicant must be ignored. (2) There must be a link, direct or indirect, between the judicial officer and one of the parties to establish bias or reasonable apprehension thereof. (3) Judges have a duty to sit in cases where they are not disqualified and should not too readily accede to suggestions of bias; the threshold for successful bias allegations is high. (4) The reasonable apprehension of bias must itself be reasonable - whimsical or morbid apprehensions cannot ground recusal. (5) Under Rule 15(5) of the Supreme Court Rules, the record of appeal must contain an index of included materials and a list of omitted materials, which list must appear at the beginning of the record. (6) Documents not part of the record during the trial of the main case should not be included in the appeal record proper, but may be listed as omitted documents.

The court made several non-binding observations: (1) It is proper practice for counsel seeking recusal to first request a meeting in chambers with the judge to present grounds and allow the judge to respond before making a formal application in open court. (2) Legal practitioners have a duty not to have clients depose to matters outside their personal knowledge; affidavits should not be vessels for hearsay or for practitioners to take "indecent digs" at each other. (3) While chamber applications must be determined without undue delay per the rules, applicants cannot simply file and "go to sleep" - they must remain vigilant and follow up, as the law helps the vigilant, not the sluggard. (4) Legal practitioners considering recusal applications face an unenviable task and their motives should not be lightly questioned, but they must exercise extreme caution and seek experienced counsel if in doubt. (5) Judges should not unduly take recusal applications as personal affronts, as fair hearing before an impartial tribunal is a fundamental constitutional right under Section 69(2) of the Constitution.

This case provides important guidance on judicial recusal in Zimbabwe, applying South African jurisprudence including the seminal President of RSA v SARFU case. It emphasizes that: (1) applications for recusal must be based on objectively reasonable apprehensions of bias grounded in true facts; (2) there must be a link between the judicial officer and a party; (3) judges have a duty to sit and should not readily accede to unfounded bias allegations; (4) the proper procedure for recusal applications involves first informing the judge in chambers. The case also clarifies procedures for preparation of appeal records under Rule 15 of the Supreme Court Rules, particularly regarding documents filed but not included in the record at trial. It demonstrates judicial management of intemperate litigation conduct and the importance of legal practitioners ensuring affidavits contain matters within deponents' personal knowledge.