MASVINGO – The Supreme Court has ruled that no serving High Court judge can preside over the murder trial of their colleague Garainesu Mawadze’s son, but a retired judge.
This follows an appeal by the judge’s son, Munyaradzi Mawadze, who complained about Justice Christopher Dube-Banda’s conduct in the on-going trial.
Dube-Banda was the only judge who agreed to preside over the matter after other High Court judges declined to try Mawadze Jnr over impartiality concerns.
Mawadze Jnr told the Supreme Court that Dube-Banda has already shown bias by blocking him from having an attorney of choice hence prejudicing a fair hearing.
Supreme Court judges Chinembiri Bhunu, Samuel Kudya and Hlekani Mwayere found merit in his appeal before ordering that Dube-Banda should drop out of the case as well.
“In principle, there is substance in the respondent’s submission,” noted the Supreme Court.
“The application for recusal was not based on the adverse rulings per se, but the learned judge a quo’s alleged conduct and utterances in the course of determining the applications for postponement and his recusal.
“Undoubtedly, the learned judge owing to his conduct and utterances objectively displayed unmistakable characteristics of apparent bias as already stated elsewhere in this judgment.
“An impartial and neutral judge does not foist a legal practitioner on a litigant. He or she does not blame a litigant for requesting his or her recusal.
“Neither does he give a litigant inadequate notice for trial nor endeavour to proceed with a matter in the face of an unresolved pertinent notice to appeal. Unfortunately, the learned judge a quo was found wanting in all these material respects.
“We accordingly hold that there is merit in the appellant’s appeal. In conclusion, we are of the opinion that this is a case ill-suited to be presided over by a sitting judge on the same bench with the appellant’s father.
“This is a case best suited to be presided over by a retired or foreign judge to avoid upsetting the judicial tone.“
Mawadze Jnr is accused of murdering Sipho Ncube, who was an events planner and cellphone dealer in Harare back in 2020. He is jointly charged with friends Elvin Dongo Saungweme and Dellon David Balani, both aged 24 and from Harare.
However, the trials are being prosecuted separately. Mawadze Jnr’s trial had commenced in March last year despite his protests through his lawyer Advocate Thabani Mpofu.
He submitted that he believed Justice Dube-Banda would be biased against him since there was trial separation.
The judge however dismissed his request, ruling that there was no law that prohibited a judge from presiding over two separated trials that were once consolidated.
Justice Dube-Banda further noted that he would not let his work relationship with the accused’s father come between him and his duty to deliver fair justice.
The judge also said he had no personal relationship with Mawadze.
