HARARE – Zimbabwe High Court judge, Pisirayi Kwenda has been accused of bias after the jurist allegedly created a new case against South Africa based property mogul Frank Buyanga who is currently locked up in a South African jail.
Buyanga filed an urgent application at the Supreme Court seeking the judge’s recusal in a case the State is appealing against the cancellation of his warrant of arrest by a Harare magistrate.
The businessman was jailed after his ex-girlfriend, Chantelle Muteswa accused him of kidnapping the couple’s minor son, who is at the centre of a drawn-out legal battle between the former lovebirds.
A Harare magistrate recently cancelled the arrest warrant used in locking up Buyanga after ruling that it was issued erroneously.
The National Prosecuting Authority (NPA) applied for a review of the magistrate’s ruling arguing that she erred in concluding that the businessman was unlawfully arrested.
The appeal was to be heard before Kwenda who took the position that there were irregularities in the magistrate’s ruling.
This was after he read about the cancellation of the warrant in the media.
The judge then allegedly ignored the matter that had been brought before him by the NPA and prioritised the one he had established.
Buyanga’s lawyer Admire Rubaya of Rubaya and Chatambudza legal practitioners unsuccessfully sought recusal of Kwenda prompting the defence to urgently appeal to the Supreme Court.
Rubaya said the judge has already formed an opinion against his client and was likely to be biased in the main matter before him.
“It, having been common cause that the state had filed its own application for review, and that his Lordship had gone on to give priority to his own initiated process over the application filed by the state, his Lordship erred in not holding that a reasonable person was bound to believe that he had developed an interest in the matter.
“His Lordship erred and seriously misdirected himself in not concluding that the fact that both his own initiated process as well as the application brought by the State had been placed before him for his determination raised justifiable doubts regarding the integrity of the process warranting his recusal from presiding over the matter.
“The state having filed its own application for review, which application did not have any issues regarding its propriety, his Lordship erred in not holding that his insistence on dealing with his own initiated process gave rise to justifiable doubts as to his impartiality and consequently warranted his recusal,” Rubaya argued.
Rubaya wants Kwenda recused and have all the proceedings he handled declared a nullity.
In his grounds of appeal, now represented by Thabani Mpofu, Buyanga insists Justice Kwenda erred in not finding the issue of bias existed.
“His Lordship erred and misdirected himself by misconstruing the grounds upon which the application for his recusal was brought and in determining issues that were never argued before him.
“Having accepted that he had taken, recorded and acted on a view that he had formulated of a matter in which both parties were adequately represented and was by definition not amenable to automatic review, his Lordship erred and misdirected himself in not holding that the test for bias was in the circumstances met,” he argued.
“It, having been common cause that the state had filed its own application for review, and that his Lordship had gone on to give priority to his own initiated process over the application filed by the state, his Lordship erred in not holding that a reasonable person was bound to believe that he had developed an interest in the matter,” further reads the application.
The case will be heard Wednesday.
