Judge dismisses recusal application, warns ‘hired ...

Judge dismisses recusal application, warns ‘hired guns’ lawyers

Nyashadzashe Ndoro

Justice Joseph Mafusire of the Harare High Court dismissed a dramatic recusal application brought by Petina Gappah, a lawyer and writer, in an ongoing defamation case against Fadzayi Mahere, another legal practitioner.

The judge also warned Gappah’s legal team against acting as “hired guns”, accusing them of being involved in the crafting of the applicant’s “derogatory” submissions.

Gappah, the applicant, accused Justice Mafusire of bias and a secret relationship with Mahere, citing two previous rulings in Mahere’s favour as evidence.

The judge called the application an “unmitigated absurdity” and an “affront” to the court. He pointed out that the two prior rulings had already been unsuccessfully appealed by Gappah, making them irrelevant to the recusal request.

Justice Mafusire further criticised Gappah’s legal team, Jessie Majome & Co and Advocate Tinomudaishe Chinyoka, for allowing the “scurrilous and condescending” application to be filed.

He ordered them to show cause within seven days why they should not be personally liable for the legal costs incurred by this application. The Law Society of Zimbabwe may also be notified of their conduct.

The judge noted that Gappah’s defence strategy appears to involve shifting the burden of proof and attacking Mahere’s character. Justice Mafusire emphasised that such tactics would not succeed and called for the restoration of dignity and integrity to the court process.

“It is important that the dignity and integrity of the courts and their processes are restored and maintained. Litigants that stray from the norm deserve censure. This application has to be dismissed with costs at the highest scale available. The applicant’s legal practitioners are equally culpable. They have been complicit in the demonization of the entire judiciary,” the judge ruled.

Justice Mafusire also warned Gappah’s legal team against acting as “hired guns”.

“But this sort of thing happens when legal practitioners abdicate their responsibilities as officers of the court and opt to act like hired guns. A legal practitioner’s first duty is to the court. He or she should have the courage and responsibility to advise their client when their cause is dead.”

“The applicant’s legal practitioners herein deserve to be censured by an order of costs de bonis propriis on the same high scale. The regulatory authority may need to peek into their behaviour. However, since these issues have not come up before, an opportunity is given them to show cause why they should not be reported and mulcted in costs,” he said.