Nqobile Khumalo v The Presiding Magistrate N.O (Mr Mzingaye Moyo) and The Prosecutor General N.O

The applicant was charged with contempt of court in contravention of s182 of the Criminal Law Code for allegedly violating a High Court order dated 20 November 2015 that interdicted him from interfering with Claver Masiiwa's control of certain property. The court order was served on the applicant on 3 December 2015, but he allegedly continued to interfere with the property. The applicant appeared before the magistrate's court in Filabusi on 25 October 2016 and the matter was remanded to 10 November 2016 for trial. On 10 November 2016, the applicant's legal practitioner Norman Mugiya made an application for the magistrate to recuse himself, making various unsubstantiated allegations including: that the magistrate was seen conversing with a councillor in the presence of the complainant; that the magistrate had gone into mining business with a party (Mswela) who won a previous civil case before him; and that court officials pressured the officer-in-charge to bring the matter to court quickly. The magistrate refused to recuse himself. The applicant then filed a review application (HC 2883/16) on 16 November 2016, and on 22 November 2016 filed an urgent application to stay the criminal proceedings pending the review.

• Whether the High Court should intervene to stay uncompleted criminal proceedings in the magistrate's court pending review of an interlocutory decision refusing recusal
• Whether the magistrate should have recused himself on grounds of perceived bias
• Whether a litigant who is in contempt of a court order is entitled to seek the court's assistance
• The professional duties and conduct expected of legal practitioners as officers of the court
• The distinction between appeal and review in unterminated criminal proceedings

The application for stay of criminal proceedings pending review was dismissed with no order as to costs.

A superior court will intervene in unterminated criminal proceedings only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means, or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant. In applications for recusal based on perceived bias, the allegations must be substantiated with evidence; unproven and fanciful accusations made by legal practitioners from the bar without investigation or proof are insufficient to establish a reasonable apprehension of bias. Legal practitioners, as officers of the court, have a duty to treat the court with respect and cannot make wild and unproven comments imputing corrupt or improper motives on judicial officers, as this creates a real and substantial risk of impairing public confidence in the administration of justice. Where an interlocutory decision in unterminated criminal proceedings is challenged as being wrong (rather than invalid), the appropriate procedure is by way of appeal, which will generally only be entertained after conviction. A litigant who is contemptuous of a court order cannot seek the assistance of the same court while failing to comply with its orders, as this would compromise the court's integrity.

Mathonsi J made several important obiter observations: (1) that he would have considered awarding costs against Norman Mugiya de bonis propriis (from the legal practitioner's own funds) if the respondents had appeared, given the frivolous and vexatious nature of the application; (2) that a litigant should not be allowed to file frivolous applications as fishing expeditions and then withdraw when difficulties become apparent; (3) regarding s85(2) of the Constitution, the judge observed that while this provision allows persons who have contravened laws to approach courts for enforcement of fundamental rights, it does not detract from the principle that people cannot come to court seeking assistance if they are guilty of contempt of an order of the same court - this constitutional provision relates to enforcement of fundamental human rights, and it is not a fundamental human right to disobey lawful court orders; (4) the judge expressed sympathy for the correspondent counsel Mr Muzvuzvu who appeared on behalf of Mugiya and Macharaga and acknowledged the difficult position he was placed in by his correspondents; (5) the judge noted that the legal practitioner's conduct in making unsubstantiated allegations was "contemptuous of the court" and "unacceptable and should in fact be penalized."

This case is significant in Zimbabwean jurisprudence for: (1) reaffirming the professional duties of legal practitioners as officers of the court and the limits of zealous advocacy; (2) establishing that legal practitioners cannot make unsubstantiated allegations of bias or corruption against judicial officers without evidence; (3) clarifying the exceptional circumstances required for High Court intervention in unterminated criminal proceedings; (4) distinguishing between appeal and review procedures in the context of interlocutory decisions in criminal proceedings; (5) addressing the principles governing applications for judicial recusal based on perceived bias; and (6) clarifying that s85(2) of the Constitution, which allows persons who have contravened laws to approach courts for enforcement of fundamental rights, does not extend to allowing litigants in contempt of court orders to seek assistance from the same court without complying with those orders. The judgment serves as a warning to legal practitioners about conduct that may scandalize the court and damage public confidence in the administration of justice.