High Court judge Justice Joseph Mafusire has dismissed an application filed by novelist and lawyer Petina Gappah for his recusal in a matter where she is being sued for defamation, saying the application lacks merit.
Former Mt Pleasant MP Fadzayi Mahere has filed a US$1 million defamation lawsuit against her.
In the application, Gappah accused justice Mafusire of showing bias in favour of Mahere in two interlocutory rulings he made.
Aggrieved by the judge’s determination, Gappah approached the Supreme Court where she lost again.
After losing the Supreme Court appeal, Gappah then sought the judge’s recusal.
In dismissing her latest application, Justice Mafusire said: “It is apparent that the court is not faced with a bitter litigant who is aggressively and unreasonably seeking redress. The court 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. 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.
“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 are deliberately twisted,” the judge said.
“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearances of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”
He added that,” by reason of their training, experience, conscience and intellectual discipline, it must be assumed that judges are able to administer justice without fear or favour, and capable of judging a particular controversy fairly on the basis of its own circumstances.”
Justice Mafusire said Gappah accused him of concealing an ongoing and intimate relationship between himself and Mahere without providing concrete evidence.
Instead, he accused Gappah of citing the two judgments he made against her as the evidence.
“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…This is absurd. The respondent, like all counsel, have appeared in countless other cases before the courts. Like all counsel, she has won some and lost others,” Justice Mafusire said.
“The applicant (Gappah) 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 the respondent’s apparent falsehoods at face value and rejected her apparent truths.
“The applicant further accuses me of having prejudged the main case. The evidence of all that remains is my two judgments aforesaid. From them, she picks eight instances of bias or prejudice by myself. Yet the applicant and her lawyers know, or ought to know, that they are disbarred by the operation of the law and the rules of procedure from bringing up the same issues as were settled by those two judgments. Her appeal to the Supreme Court was dismissed. The issues are now res judicata or issue estoppel. What she and her lawyers are doing, in effect forcing me to review my judgments despite her loss in the Supreme Court, is foreign to our legal system. ”
The judge said Gappah had abused the court process in many ways, including making insinuations that the two interlocutory judgments against her were prepared by Mahere.
“That I failed to disclose a long-standing intimate relationship with the respondent, the evidence of which is the success the respondent has scored in matters argued by her before me.
“That I have doctored the record of proceedings in the main matter by amending the joint pre trial conference minute in such a way as to reverse the onus of proof resting upon the respondent to prove defamation, and proceeding further to conceal that document from the applicant and her lawyers,” Justice Mafusire said.
Justice Mafusire dismissed the application with costs, and ordered both parties to prepare for trial commencement of the matter on a date to be announced by the Registrar of the High Court.