8,000 unit housing project back in court: Justice Uchena to hear appeal

HARARE – The High Court of Zimbabwe has dismissed an application for the recusal of Justice Tendai Uchena, a member of the three-judge panel presiding over an appeal between the National Social Security Authority (NSSA) and Housing Corporation Zimbabwe (Pvt) Ltd (HCZL).

The application for recusal was filed by HCZL, which argued that Justice Uchena could not be impartial because he had already been involved in the case at an earlier stage.

However, the court ruled that there was no real likelihood of bias and that Justice Uchena could continue to hear the appeal.

The case concerns a dispute between NSSA and HCZL over a housing project. NSSA had entered into an agreement with HCZL for the construction of 8000 housing units.

The project, however, stalled after only a few hundred units were built. NSSA then sought to have the arbitral award set aside, while HCZL applied for the award to be recognized and registered by the court.

The High Court had initially dismissed NSSA’s application and granted HCZL’s application. However, this decision was overturned on appeal by the Supreme Court, which found that HCZL had failed to comply with certain procedural requirements.

The case was then remitted back to the High Court for a fresh hearing.

When the matter came back before the High Court, HCZL argued that Justice Uchena should recuse himself because he had been part of the panel that decided the appeal in the Supreme Court.

The court rejected this argument, noting that Justice Uchena had not yet heard the merits of the case and that there was no reason to believe that he would not be impartial.

“It is clear from the case law cited above that the onus of proving bias on a judicial officer is on the applicant. It is also apparent that the applicant must show that there is a real likelihood of bias on the part of the judicial officer.

“An application for recusal is not one that is easily granted unless it is proved that the judicial officer will most likely be biased in determining the appeal.

“The fact that a judge determined a preliminary issue in the appeal is not on its own a basis for an application for recusal. As a result, the application for recusal must fail,” the judge ruled.

The court also ordered HCZL to pay the costs of the recusal application.