Judge removed from murder trial of colleague’s son

Source: The Herald – Breaking news.

Judge removed from murder trial of colleague’s son 
In this regard, the superior court found Justice Dube-Banda wanting in all material respects and on that basis the court allowed the appeal and set aside the judge’s decision. 

Fidelis Munyoro-Chief Court Reporter

High Court judge Christopher Dube-Banda cannot preside over the murder trial of Justice Garainesu Mawadze’s son and a retired or foreign judge should be considered for fairness, the Supreme Court has ruled.

The ruling comes after Munyaradzi Mawadze appealed for the Supreme Court’s intervention after his father’s colleague refused to recuse himself in his trial. 

Justice Dube-Banda had sworn to remain impartial, while presiding over the murder trial. 

Mawadze Jnr’s application for recusal was not based on the adverse rulings against recusal per se, but Justice Dube-Banda’s alleged conduct and utterances in the course of determining the applications for postponement and his recusal. 

Ruling on the interlocutory appeal against Justice Dube-Banda’s decision, the Supreme Court bench of Justice Chinembiri Bhunu, Justice Samuel Kudya and Justice Hlekani Mwayera unanimously found merit on the appeal and criticised the conduct of the trial judge.

“Undoubtedly the learned judge, owing to his conduct and utterances, objectively displayed unmistakable characteristics of apparent bias as already stated elsewhere in this judgment,” said Justice Bhunu, writing the judgment for the court.

“An impartial and neutral judge does not foist a legal practitioner on a litigant. He or she does not blame a litigant for requesting his or her recusal. Neither does he give a litigant inadequate notice for trial nor endeavour to proceed with a matter in the face of an unresolved pertinent notice to appeal.” 

In this regard, the superior court found Justice Dube-Banda wanting in all material respects and on that basis the court allowed the appeal and set aside the judge’s decision. 

“We accordingly hold that there is merit in the appellant’s appeal,” said Justice Bhunu. This means that Justice Dube-Banda cannot preside over the case.

But the Supreme Court went further. 

“In conclusion, we are of the opinion that this is a case ill-suited to be presided over by a sitting judge on the same bench with the appellant’s father.”

“This, in my view, is a case best suited to be presided over by a retired or foreign judge to avoid upsetting the judicial tone.”

Mawadze Jnr is accused of murdering Sipho Ncube, who was an events planner and cell phone dealer in Harare back in 2020. He is jointly charged in the crime with friends Elvin Dongo Saungweme and Dellon David Balani, both aged 24 and from Harare. 

Justice Bhunu in his judgment noted that owing to the creepy outlook of doing the messy job on a fellow judge’s son, the bulk of the judges in the High Court with the exception of Justice Dube-Banda had justifiably elected to recuse themselves from the case. 

Through his legal counsel Advocate Thabani Mpofu, Mawadze Jnr was apprehensive that he was unlikely to receive a fair trial at the hands of Justice Dube-Banda in violation of his constitutional right to a fair trial.

His anxiety, the court heard, stemmed from the rather abrasive and unduly hasty manner with which the trial judge sought to dispose of the recusal application in apparent flagrant disregard of Mawadze Jnr’s rights to a fair trial.

With only four days’ notice the matter was abruptly set down for trial without allowing him to get a lawyer of his own choice. 

Instead the judge ordered him to be represented by a pro deo lawyer, despite Mawadze Jnr’s protest.

This appeared, to Justice Bhunu, that the trial judge was unduly in haste to dispose of the matter for reasons best known to himself.

“In his haste to dispose of the matter he indulged in behaviour that portrayed him as entertaining some bias towards the appellant in the eyes of the proverbial reasonable man,” he said, finding the judge’s conduct a damning indictment on his neutrality and impartiality.

The court also found that Justice Dube-Banda only paid lip service to the legal principle that a judicial officer should not be unduly sensitive to criticism.

The superior court also criticised Justice Dube-Banda for attacking Mawadze Jnr as a litigant bent on discrediting his adverse rulings on his numerous applications for postponement.

“His utterances in this respect portray him more as an adversary rather than a neutral arbiter,” ruled Justice Bhunu. 

“By so saying he entered the boxing ring and ceased to be the impartial referee in the legal contest. One cannot therefore resist drawing the inference that the learned judge’s perception of the appellant had been clouded by the dust of the conflict.”

In his submission Advocate Mpofu sought to introduce a novel, but not legally tested medical principle that Justice Dube-Banda was suffering from subconscious bias.

He interpreted this to mean that the judge went overboard in his bid to demonstrate to the world that he was impartial in his handling of the case.

“Those who have read ‘Far from the Madding Crowd’ by Thomas Hardy will remember that Farmer Oak’s dog drove his entire flock of sheep down the cliff with horrific fatal consequences in a bid to please,” said Justice Bhunu.

“I am, therefore, inclined to accept as a general human trait that in the euphoria to please, one may overstep and stray into the wilderness of error.”

However, in the absence of expert evidence on the meaning and effect of the term “subconscious bias”, Justice Bhunu would, however, hesitate to elevate it to a valid legal terminology to determine Justice Dube-Banda’s psychological mental status at the time he presided over the                                                               matter.

He preferred to determine the matter on the concrete evidence before him.

In its counter-submission the State led by Mr T Kangai argued that the court would be setting a dangerous precedent if each time a judge makes an adverse ruling against a litigant, the litigant responded by seeking the judge’s recusal. 

The court found substance in the prosecution submission, but the only difficulty was that the argument did not relate to the circumstances of the case at hand. 

The application for recusal was not based on the adverse rulings per se, but the trial judge’s alleged conduct and utterances in the course of determining the applications for postponement and his                                         recusal.

It is the State’s case that the three suspects allegedly stabbed Ncube with a knife before slitting open his throat, killing him instantly. According to the State, the suspects lured the victim to their car on the pretext of conducting a cellphone deal.

The three allegedly drove away and later killed Ncube before dumping his body in Ruwa. Ncube, according to prosecutors, had agreed to accompany the trio to Waterfalls but the accused later diverted the route and drove along Chiremba Road, passing Epworth going towards                                                                  Ruwa.

While along Chiremba Road, they reached a secluded place where they allegedly robbed Ncube of his cell phones and an unknown amount of cash. Ncube’s relatives became suspicious when he failed to return home and filed a police report on the same day.

The court further heard that in order to cover up for the murder, Mawadze Jnr sent a text message using Ncube’s cell phone alleging he had been kidnapped. 

Blood-stained clothes were later recovered from all the suspects and Mawadze Jnr’s car seat. 

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