The Supreme Court has removed High Court judge Justice Christopher Dube-Banda from hearing a case in which the son of a fellow judge Garainesu Mawadze is facing a murder charge.
The court suggested that a retired or a foreign judge be appointed to preside over the case.
Mawadze’s son Munyaradzi filed an application for recusal of Dube-Banda in his trial saying he will not receive a fair trial.
Munyaradzi is being charged together with his friends Elvin Dongo Saungweme and Dellon David Balani in the murder of Sipho Ncube who was an events planner and cellphone dealer in Harare in 2020.
A Supreme Court bench consisting of Justices Chinembiri Bhunu, Samuel Kudya and Lovender Mwaera ruled in favour of Munyaradzi.
Several judges recused themselves from hearing the case citing personal reasons.
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According to court papers, Munyaradzi successfully applied for separation of trials.
On February 6, last year the State sought postponement to facilitate service of an amended State outline to the defence.
Munyaradzi’s defence consented to the postponement on account that the trial was at short notice.
His lawyer advocate Thabani Mpofu was not available on the day and it was postponed on consent of both parties.
On February 8, Mpofu was again not available for trial and the stand-in lawyer asked for a postponement saying he has no mandate to stand in trial and the judge assigned Munyaradzi a pro deo lawyer.
Munyaradzi refused to be represented by the pro deo lawyer.
Munyaradzi informed the court that he preferred to be represented by Mpofu and the matter was again deferred to February 13 for trial.
According to the court record, during that period three lawyers turned up as pro deo counsel but they all sought to be excused from representing him.
The judge was left with no option but to allow postponement to February 27.
On February 27, Munyaradzi applied for the recusal of Justice Dube-Banda saying he feared not receiving a fair trial.
Dube-Banda dismissed the application on the basis that it constituted an attack on his integrity.
Supreme Court judges, however, set aside Dube-Banda’s ruling.
"The appellant made it clear and vehemently protested that he did not want to be represented by pro deo counsel except his legal practitioner of choice Mpofu,” the judges said.
“His protests fell on deaf ears as the learned trial judge a quo dug in and was adamant that the trial should proceed with the appellant (Munyaradzi) being represented by pro deo counsel against his will.
“It was, therefore, undesirable for the trial court to proceed to trial without the issue of separation of trial being resolved.”
The judges said there was merit in Munyaradzi’s application.
“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,” they said.
“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
“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.”