S v Paradza (CRB 152 of 2004) [2004] ZWHHC 182 (15 November 2004)
The judge recused himself because his prior association with the accused as colleagues and friends would create a reasonable apprehension of bias, and justice must be seen to be done.
Source-derived case information.
- Citation
- [2004] ZWHHC 182
- Parties
- Prosecutor: The State; Accused: Paradza Benjamin
- Court
- Harare High Court
- Jurisdiction
- Zimbabwe
- Case Number
- CRB 152 of 2004
- Procedural Posture
- Criminal Trial / Recusal Ruling
- Outcome
- judge recused himself
- Legal Topics
- Recusal of Judge, Appearance of Bias
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The State
Prosecutor
Paradza Benjamin
Accused
Procedural Posture
Criminal Trial / Recusal Ruling
Legal Issues
- 1 Whether the presiding judge should recuse himself due to perceived bias arising from prior association with the accused
Ratio Decidendi
The judge recused himself because his prior association with the accused as colleagues and friends would create a reasonable apprehension of bias, and justice must be seen to be done.
Court Disposition
judge recused himself
Orders
- The judge recuses himself and withdraws from presiding over the case.
Full Case Text
Judgment text and source record
1 paragraphs
HH 1822004 CRB 152/04 THE STATE versus PARADZA BENJAMIN HIGH COURT OF ZIMBABWE BHUNU J HARARE, 16th November, 2004 Criminal Trial Mr Musona and Mr Phiri, for the State Mr Gauntlett SC and Mr Matinenga, for the accused BHUNU J: Ladies and gentleman being a sitting judge who has been assigned to preside over this case involving a fellow sitting judge, I have argonised over this case for a very long time regarding whether or not I should preside over this case. As you will undoubtedly appreciate the bulk of my fellow judges if not all are in the same predicament. Previously I thought as a professional judge I would be able to disabuse my mind of any extraneous influence and preside over the matter dispassionately. I however regret to say that I have been progressively overwhelmed by the enormity of the task before me as the trial date drew nearer. I was with Justice Paradza in the liberation struggle. We worked together as magistrates and he appeared before me as a legal practitioner. We are now fellow judges and colleagues. I strongly feel that this is a case which should perhaps be best handled by a retired judge or someone from outside our jurisdiction. I am of the view that whatever my decision is going to be in this case justice would not be seen to be done and yet justice must not only be done but it must be seen to be done. I therefore feel compelled to recuse myself. I feel comforted in taking that stance by the decision in the case of HH 1822004 CRB 152/04 South African Motor Acceptance Corporation (EDMS) BPK v Oberholzer 1994(4) SA 808. In that case it was held that:- “Where two judicial officers are attached to the same bench as colleagues and one of them is a litigant or an accused then there is a reasonable ground for the other legal officer to be recused from trying the action.” In recusing myself I feel constrained to point out that neither the State nor the defence has prompted my recusal. The decision is purely mine coming from the depth of my heart and conscience. I accordingly recuse myself and withdraw from presiding over this case. Civil Division of the Attorney-General’s Office, the State’s legal practitioners Dube, Manikai and Hwacha, the accused’s legal practitioners