HARARE – High Court judge, Justice Jacob Mafusire has thrown out, with costs on a higher scale, an application by a lawyer, Petinah Gappah who was seeking his recusal in a matter she is being sued to the tune of US$1 million by Fadzayi Mahere who alleged the top judicial officer was in an intimate relationship with the opposition politician.
Mahere is demanding damages from Gappah, who claimed in a series of tweets that she was not qualified for admission into law school at the University of Zimbabwe and that she had not worked at The Hague as her CV states while also claiming that the latter once tried to snatch her boyfriend from her.
Gappah made the present application through her lawyers Jessie Majome, now Zimbabwe Human Rights Commission chairperson and Tinomudaishe Chinyoka, complaining that Mafusire had demonstrated bias and prejudice against herself and in favour of Mahere in two interlocutory rulings.
Her two applications dismissed by the judge were to compel further discovery and for the striking out of the Mahere’s declaration.
Gappah fought all the way to the Supreme Court where her appeal was again trashed before she made the present application for Mafusire’s recusal.
Mafusire dismissed Gappah application noting that judges should not too ready accede to suggestions of bias or other interest in matters before them.
The judge also took a swipe at Gappah’s lawyers who he accused of incompetence in the manner they prepared her founding affidavit which he found offensive and personal.
The judge said it is unbelievable that two legal practitioners who are supposed to be officers of the court have presided over and directed the drafting of the founding affidavit.
“It is equally incredible that they have purported to file heads of argument over what is patently an aberration,” he said.
Mafusire added in dismissing the application, “In the present case, the applicant accuses me of concealing an on-going and intimate relationship between myself and the respondent.
“As proof, she refers to two random and disparate cases by myself in the last year in which the judgments went in favour of the litigants represented by the respondent, as counsel.
“The applicant has irregularly commented extensively and, in the most condescending and disparaging manner, sought to discredit both the evidence yet to be led and the witnesses yet to testify in the main case.
“I am accused of, among many other things, having accepted at face value the respondent’s apparent falsehoods and rejected her apparent truths,” he said.
Mafusire also said Gappah accuses him of having prejudged the main case.
The judge also found that Gappah’s founding affidavit was replete with slander, ironically, all in defence of a claim for defamation.
In her founding affidavit, she insisted that Mahere had been so googly-eyed and mesmerised by a charming older man who is good-looking and attractive to women that she developed an unreciprocated infatuation and offered herself to him on a golden platter.
Gappah said her witnesses will testify that if anyone is to blame for her reputation as a ‘woman of low morals’, it is Mahere herself who has earned that reputation for herself, separately from anything she had said.
“I will show that her reputation is in fact that of a serial mistress renowned for her affairs with married men,” she said.
Gappah also said Mahere instituted a million dollar claim for damages in the knowledge and confidence that there are corrupt judges that will fight in her corner.
Mafusire said the court is not faced with a bitter litigant who is aggressively and unreasonably seeking redress but appears to be faced with a litigant who requires psychological intervention.
“This application does not meet the requirements for recusal in any respect. It is an-unmitigated absurdity. It is an affront. No judicial officer can relate to it without impairing the dignity of the court.
“The applicant has unjustifiably gone personal. She has purported to superimpose her own misguided issues into the respondent’s cause. This is wrong. What is more, it is done in the most derogatory manner. Facts are deliberately twisted,” said the judge.
The judge said it is important that the dignity and integrity of the courts and their processes are restored and maintained.
Mafusire said litigants that stray from the norm deserve censure.
“This application has to be dismissed with costs at the highest scale available.
“The applicant’s legal practitioners are equally culpable. They have been complicit in the demonization of the entire judiciary.
“But this sort of thing happens when legal practitioners abdicate their responsibilities as officers of the court and opt to act like hired guns.
“A legal practitioner’s first duty is to the court. He or she should have the courage and responsibility to advise their client when their cause is dead.
“The applicant’s legal practitioners herein deserve to be censured by an order of costs de bonis propriis on the same high scale.
“The regulatory authority may need to peek into their behaviour. However, since these issues have not come up before, an opportunity is given to them to show cause why they should not be reported and mulcted in costs.
He dismissed the application with costs also ordering that within seven days of the date of the order, Gappah’s lawyers Jessie Majome & Co and Advocate Tinomudaishe Chinyoka, shall “show cause why they should not bear the costs of this application on the legal practitioner and client scale, de bonis propriis and jointly and severally with the applicant, and why this judgment should not be copied to the Law Society of Zimbabwe”.
The judge said the trial will commence on a date to be advised.
