Samuel Kufandada v Assistant Commissioner Wilson Marecha and Others

The applicant, Samuel Kufandada, was a member of the Zimbabwe Republic Police (ZRP) who was charged, convicted, and discharged from the force on the basis that he was unfit for police duties. On 8 June 2015, he filed a review application (HC 3298/15) seeking to set aside his discharge. On 30 June 2019, he was granted a default judgment in his favor. The respondents (police authorities) subsequently filed an application for rescission of the default judgment, which was granted by Dube-Banda J in HB 192/21. In that rescission judgment, the judge made critical observations about the applicant's conduct, noting that he had used "underhand tactics" and was not truthful in attempting to obtain the default judgment by failing to disclose that the matter had been struck off the roll for non-service. When the main review application was subsequently allocated to the same judge, the applicant applied for the judge's recusal, alleging that respondent's counsel had boasted about controlling the courts and that the judge would be biased against him.

• Whether a judge should recuse himself from hearing a matter where he had previously presided over a related interlocutory application (rescission of default judgment) involving the same parties
• Whether adverse observations made by a judge about a litigant's conduct in a previous related matter creates a reasonable apprehension of bias
• What constitutes the proper test for judicial recusal under South African and Zimbabwean law
• Whether the principle that justice must not only be done but must be seen to be done requires recusal in borderline cases

The court granted the recusal application, ordering: "I recuse myself from hearing the case of Samuel Kufandada v Assistant Commissioner Wilson Marecha and Ors HC 3298/15."

The binding principle established is that where a judge has made adverse findings about a litigant's credibility and conduct in a prior related interlocutory matter between the same parties, this may create a reasonable apprehension of bias that justifies recusal from hearing the main matter, even if the judge did not consider the merits in the earlier matter. The test for recusal is objective: whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge will not bring an impartial mind to bear on the adjudication. In borderline cases where there is a reasonable perception of bias (even absent actual bias), recusal should be granted to ensure that justice is not only done but is seen to be done.

The court made several obiter observations: (1) It strongly criticized the applicant's conduct in the litigation, noting he had attempted on three occasions to get an order on the unopposed roll, filed a chamber application for default judgment without disclosing the matter had been struck off for non-service, and attached an affidavit of service that could not be truthful - such "underhand tactics undermine the integrity of the processes of this court"; (2) The court noted that simply hearing two applications between the same parties would not constitute hearing "several" applications as contemplated in Guardforce Investments; (3) The court emphasized that recusal based on reasonable apprehension of bias does not mean litigants can engage in "judge-shopping"; (4) The court stressed that the cornerstone of any fair and just legal system is impartial adjudication and nothing impairs confidence in proceedings more than actual bias or the appearance of bias.

This case is significant in Zimbabwean jurisprudence (which draws heavily on South African common law principles) for its application of the principles of judicial recusal and bias. It demonstrates that even where a judge believes he or she can be impartial, recusal may be appropriate where prior adverse findings about a litigant's conduct in related proceedings could create a reasonable perception of bias. The case reinforces that the test for recusal is objective and based on reasonable perceptions rather than actual bias. It balances the duty of judges to sit on matters allocated to them against the fundamental requirement that justice must be seen to be done. The judgment is particularly important for establishing that in borderline cases, courts should err on the side of recusal to protect the integrity of the judicial process and public confidence in the administration of justice.