HARARE – In a scathing rebuke, High Court judge Justice Joseph Mafusire has dismissed a recusal application brought against him by Petina Gappah, a defendant in a defamation lawsuit filed by opposition politician Fadzayi Mahere.
The judge not only rejected the application but also ordered Gappah, a lawyer and award winning writer, to pay the highest scale of costs and directed her lawyers to show cause why they shouldn’t be personally liable for the fees.
Gappah, represented by Jessie Majome & Co and Advocate Tinomudaishe Chinyoka, had accused Justice Mafusire of bias and prejudice in favor of the plaintiff, Mahere.
Gappah claimed the judge’s dismissal of two interlocutory applications and his alleged failure to disclose a personal relationship with Mahere were evidence of his unfairness.
But the judge dismissed this saying: “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, namely, Matukutire v Munatsi & Ors HH 440-23 and ASP Marketing CC v Lunar Chickens [Pvt] Ltd & Ors HH 535-23.
“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 vehemently denied the allegations, calling the application “an unmitigated absurdity” and an “affront” to the court.
He characterised Gappah’s accusations as “scurrilous” and “condescending,” and pointed out that many of the issues raised had already been adjudicated upon in previous rulings.
“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 judge noted.
The judge further criticised Gappah’s legal team for their role in drafting the “derogatory” founding affidavit and argued they had failed in their duty as officers 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. An example is the refrain that I called her ‘wicked’. Yet that expression, in the leave to appeal judgment, was in reference to the self-serving philosophy that says justice is only justice when decisions are given in one’s favour.
“Unbelievably, both the applicant and her lawyers fail to grasp the simple point that by operation of the law, the nature of her defence to the respondent’s claim for defamation, quite apart from what may, or may not have been agreed upon at the pre trial conference, is such that the onus of proof automatically shifts to her. This is quite elementary. But all these issues are now res judicata and should not continue to be recycled,” the judge said.
Justice Mafusire ordered Majome & Co and Chinyoka to show cause why they should not be personally responsible for the legal fees associated with the recusal application and why the Law Society of Zimbabwe shouldn’t be notified of their conduct.
The judge concluded the ruling by emphasising the need to uphold the dignity of the court and indicated the defamation case against Gappah would proceed on a date to be determined.
Mahere was represented by lawyers from Coghlan, Welsh & Guest law firm.
Mahere is suing Gappah for US$1 million after she allegedly tweeted claims that she felt damaged her reputation.
Gappah is alleged to have said that Mahere illegally enrolled at the University of Zimbabwe as well as at Cambridge university in the United Kingdom.
Gappah is also alleged to have said that Mahere had attempted to seduce her boyfriend.
