Prominent property developer Georgios Katsimberis has approached the High Court seeking a review of a magistrate's refusal to recuse herself in a matter where she is being accused of a conflict of interest.
On June 7, 2023, magistrate Vongai Guwuriro-Muchuchuti dismissed an application demanding her recusal from a case Katsimberis is being accused of fraud by controversial businessman Ken Sharpe’s Pokugara Properties.
The fraud case emanates from a botched business deal between the two.
Katsimberis’ application followed a move by a member of his legal team Millicent Moyo to sue Muchuchuti for allegedly making false claims against her during court proceedings.
Muchuchuti on February 14 accused Moyo of Mutumbwa, Mugabe and Partners of lying that Katsimberis’ lawyer Tinomudaishe Chinyoka had travelled to South Africa for treatment while he was in Harare.
Moyo was standing in for Chinyoka, who was not feeling well and had made an application to have Katsimberis’ trial postponed.
Muchuchuti insisted on proceeding with the case without Chinyoka, who was eventually forced to rush to court in his condition before he could travel for treatment in the neighbouring country.
She claimed Moyo lied to the court and labelled her unprofessional.
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The lawyer is now suing the magistrate for US$290 000.
Katsimberis is arguing that Muchuchuti cannot afford him a fair trial because she is being sued by one of his lawyers.
He also cited several biased decisions by Muchuchuti against him in his application for a refusal that was objected to by National Prosecuting Authority deputy director general Michael Reza.
Reza accused the businessman of creating chaos to justify his application.
Muchuchuti dismissed Katsimberis’ application on June 7, claiming that the property developer failed to locate the bias in her conduct.
She said the dismissal of the application was based on law and claimed the defamation case will not prejudice the trial since Katsimberis had a pool of lawyers.
But in an application for review of the judgement, Mutumbwa, Mugabe and Partners said Muchuchuti made a grossly irregular decision by refusing to recuse herself.
The ruling, he added, was also procedurally unfair and the claim that Muchuchuti would not be biased when Moyo was his lawyer was a gross misdirection.
“The decision by the first respondent (Muchuchuti) dated 7 June 2023 rejecting the applicant's application for her recusal from being the presiding magistrate in case number CRB R 423/20 at Harare magistrate's court be and is hereby set aside,” wrote Mutumbwa and Mugabe in the application for review.
“The first respondent be and is hereby recused from being the presiding magistrate in case number CRB R 423/20 at Harare magistrate's court.”
In his founding affidavit, Katsimberis said Muchuchuti’s bias against him had been evident throughout his case.
“I submit that the decision by the first respondent is reviewable because the decision is self-serving and conceited and therefore unlawful," he said.
“The first respondent has a conflict of interest that is patently obvious and yet seeks to keep herself in my case despite the obvious implication that my legal practitioners have to consider that if they win their lawsuit against her, she will seek to exact revenge by finding me guilty: even the very fact of the lawsuit raises this possibility.
“The decision is grossly unreasonable for its lack of logic: if as the first respondent suggests Ms Moyo can and should remove herself from the case due to her lawsuit against her so that other lawyers can carry on, why does the same logic apply only to the other party in the same lawsuit?
Katsimberis said by suggesting that Ms Moyo recuse herself from representing him it means Muchuchuti concedes that there is a conflict of interest, and that destroys the confidence that should be rooted in justice.
“The decision fails to take into account that by refusing to recuse herself, the first respondent is effectively a judge in a matter in which her personal interests are engaged.”
He said Muchuchuti was failing to consider that she lied before the court.
In Katsimberis’ heads of argument, Chinyoka said: “One of the cardinal rules of natural justice is that no one should act as a judge in a case in which they have a personal(vested) interest, expressed in maximum Nemo iudex in causa sua.
“Judicial officers who find themselves in such a situation ought to recuse themselves.”
He said the law was a vehicle of justice that should be driven by impartial hands in an impersonal fashion, calling the High Court to disregard Muchuchuti’s justification for continued involvement in the case where she is being sued by a defence lawyer for US$290 000 for defamation and injurious falsehoods.
He said there is a real likelihood of bias if Muchuchuti continues to preside over the matter, which she has already shown by “insistence on proceeding with the trial without a Greek interpreter for a Greek speaker, and without defence counsel being represented (twice)would, in the overall scheme of things, create a reasonable apprehension of bias in the applicant.”
He said Katsimberis’ worry was that fair trial can no longer be guaranteed.
