Commentary by Dunia Zongwe
Full Case Can be Found HERE
The appellant, Mr. C. L. Mundia, an advocate in Zambia, had represented a client at a disciplinary hearing against a legal practitioner. The Legal Practitioners’ Disciplinary Committee of the Law Association of Zambia absolved the legal practitioner of any wrongdoing. The appellant’s client, Ms. Beatrice Mulako Mukinga, appealed the decision of the Disciplinary Committee.
Sometime after the Disciplinary Committee’s decision in the initial disciplinary hearing, the legal practitioner in question was appointed judge of the High Court in Zambia. Later on, in a matter unrelated to the disciplinary hearing against the judge, the appellant appeared before the judge in the High Court. The appellant made an application for the matter to be transferred to another judge. The appellant motivated his application on the basis that he was representing Ms. Mukinga in the pending appeal against the High Court judge before the Disciplinary Committee.
The High Court judge dismissed the application with costs on the grounds that the application was an attempt at forum shopping. The court stated that a party is not entitled to choose which forum his or her action will be heard before. She further held that, even if it was an application asking her to recuse herself in the matter, it could not succeed because the appellant had not asked the judge to recuse herself but had instead asked for the reallocation of the matter to another judge. The appellant appealed the judge’s decision to the Supreme Court of Zambia.
(i) Arguments by the Parties
The appeal was heard in the Supreme Court by three judges, including the Acting Deputy Chief Justice. The respondent in the main case, The Post Newspapers Limited, did not make any argument regarding the partiality or otherwise of the High Court judge at any stage of the proceedings. Similarly, the respondent did not object to the appellant’s application for reallocation of the case to another judge.
In his appeal, the appellant contended that the judge erred when, in dismissing his application, she relied on the provisions of the Judicial (Code of Conduct) Act, No. 13 of 1999 (hereinafter ‘Judicial Act’), when the appellant never accused her of any impropriety; that the judge was wrong to hold that the appellant’s request for reallocation amounted to forum shopping; and that the judge should not have awarded costs against him because the respondent neither objected to the appellant’s application nor applied for costs.
The Supreme Court considered the matter as one concerning the perception or probability of bias against the appellant. In a unanimous opinion, the Supreme Court held that the judge in the court below should have recused herself because there was a likelihood that she would be biased against the appellant. The Court stated: “[T]he learned Judge should not have handled a matter in which the lawyer appearing before her was prosecuting the Judge in a different matter.” Furthermore, the Supreme Court agreed with all the three submissions made by the appellant and ordered that the matter be sent back to the High Court for hearing before a different judge.
(i) The Rationale for the Holding
The main reason for the Supreme Court’s rulings in Mabenga was that, by adjudicating on a matter in which the lawyer appearing before her was prosecuting the judge in a different matter, the High Court judge created the impression that she is, or was likely to be, prejudiced against the appellant. The Supreme Court reasoned that: “[C]ounsel cannot prosecute a judge in one case and at the same time appear before that judge in another proceeding.” It held that “any party to an action is entitled to transfer a matter from one judge to another judge where a judge’s impartiality may be reasonably questioned.” Finally, the Court held that an order for costs against the appellant could not be made where the respondent did not apply for it.
The court reaffirmed the principle that judges should not place themselves in a position where their impartiality may reasonably be questioned. The court in so deciding echoed the principle articulated in the English case of R v Sussex Justices, Ex Parte McCarthy on judges’ impartiality: “Not only must justice be done; it must also be seen to be done”.
On the question of costs, the Supreme Court held that, although the award of costs is at the discretion of trial judges, such discretion must be exercised judicially. Lastly, the court endorsed the rule that prohibits a party from bringing up on appeal issues and documents that were not raised and produced in the court below.
For all its strengths mentioned above, the Mabenga judgment suffers from a number of shortcomings. The Supreme Court does not clarify whether there is a difference between the grounds for a request for a transfer of a case from one judge to another and the grounds for a request for a judge to recuse himself or herself from a case. The appellant applied for a transfer of the case from the judge to another judge and did not ask the judge to recuse herself on the grounds of bias. The Supreme Court took the view that Mundia really intended the High Court judge to recuse herself on grounds of bias. Wood JS noted that:
Although State Counsel Mundia has avoided using the words bias, prejudice or impropriety in the heads of arguments, this appeal was about these very words. In fact, the application by [the counsel for Mr. Mundia] was, in essence, rooted in Section 9(2)(a) of the Judicial (Conduct of Conduct) Act.
Even though the appellant made it clear that the propriety and integrity of the High Court judge were not in question, the Supreme Court nonetheless stated that the question to be determined was whether or not it was proper for the judge to adjudicate in the matter. The Supreme Court formulation of the question before the court did not reflect the issues expressly raised by the appellant.
(i) Recusal versus transfer
Another aspect of the case affected by the Supreme Court’s formulation of the issues is the distinction between transfer and recusal. The two notions are different and rest on two different legal bases. In JCN Holdings vs. Development Bank of Zambia (hereinafter ‘JCN Holdings’), the Supreme Court of Zambia drew a distinction between the two: The law relating to transfer of a matter from one High Court Judge to another is contained in section 23(1) of the High Court Act whereas the law relating to recusal by a High Court Judge is found in sections 6 and 7 of the Judicial Act.
The appellant’s first ground of appeal was that the High Court judge erred in invoking the provisions of the Judicial Act when, in reality, his transfer application did not impugn her integrity. The Supreme Court disagreed with the appellant. It ruled that the judge in the court below was entitled to consider the provisions of the Judicial Act as “this was the only way she could determine whether or not she was disqualified from adjudicating in the matter”.
The Supreme Court held that transfer could be used to address concerns about a judge’s “personal bias or prejudice concerning a party or a party’s legal practitioner”. The view of the court was informed by the fact that “once a Judge recuses himself or herself from handling a matter, that matter would inevitably have to be transferred to another Judge”. Thus, the justices of the Supreme Court did not make a clear distinction between an application for the reallocation of a case and an application for a judge to recuse himself or herself.
However, that position was not entirely correct because it is evident from the High Court Act that the reallocation of a case does not require that a judge’s impartiality be questionable. The High Court Act presupposes that there must be reasons necessitating a transfer.  Because the Supreme Court defined the appellant’s transfer application as a challenge of the judge’s impartiality, the Court connected the application to the provisions of the Judicial Act. Yet the appellant’s grounds of appeal assumed a distinction between transfer and recusal in terms of court procedure. This may explain why the appellant challenged the relevance of invoking the provisions of the Judicial Act – and of investigating the propriety of judge’s conduct – to his transfer application. The appellant referred to the decision of the disciplinary hearing against the judge, not as evidence of her bias or lack of integrity, but as a reason for transferring the action in “fairness to both the Judge and the [appellant]”.
(ii) The Court’s fundamental contradiction
The Supreme Court recast the basic issues in Mabenga, and this led to a fundamental contradiction. On the one hand, the Court disagreed with the appellant’s first ground of appeal and ruled that the High Court judge was entitled to consider the provisions of the Judicial Act. On the other hand, the Court declared that, “from what we have stated above”, the first ground of appeal must succeed. Again, this contradiction may be explained away by the Court’s reframing of the issues. In disagreeing with the appellant, the Court was basing its ruling on the appellant’s submission; in agreeing with the appellant, the Court was proceeding from its own understanding of how the appellant should have framed his submission.
This contradiction in the Court’s judgment is obvious. After holding that “grounds one and two of the appeal must succeed”, the Court concluded its judgment by stating that “the net result is that this appeal must succeed”. If the appellant’s argument succeeds, this means that the appellant was right to say that the trial judge should not have used the Judicial Act; but if the Court’s argument succeeds, this means that the appellant was wrong. The Court cannot have it both ways. Either the appeal succeeds, which would imply that the appellant can transfer the matter to another judge without having to question the High Court judge’s integrity; or, the appeal fails, which would imply that the trial judge was right to dismiss the appellant’s transfer application.
(iii) A pragmatic way out?
The Supreme Court could have steered clear of this quandary by taking the appellant’s claim as it was expressly framed, instead of redefining the appellant’s claims. The Court should have resisted the temptation to compensate for the uncertain strategic calculations of Mr. Mundia. It is possible that the Supreme Court sensed that the High Court Judge was reacting emotionally to the appellant’s transfer application in the manner in which she brushed it aside, awarded costs against the appellant, and imposed an adverse presumption if he did not attend trial in the main case. In any event, the Court should have confined itself to the record of appeal. What is more, it could have reached the desired outcome (i.e. the reallocation of the case to another judge) without sacrificing the purity and rigor of analysis simply by pronouncing itself solely on the transfer application.
 Michael Mabenga v. The Post Newspapers Limited, Supreme Court of Zambia, Appeal No. 069/2012 [hereinafter referred to as ‘Mabenga’] at p.3. For quotation purposes, this comment directly cites to the original judgment.
 Malila (Judge), Wood (Judge) and Mwanamwambwa (Acting Deputy Chief Justice).
 Id. at p.14.
 Id. at pp.8-9. See also Section 6(2) of the Judicial (Code of Conduct) Act, No. 13 of 1999.
 R v Sussex Justices, Ex parte McCarthy ( 1 KB 256,  All ER Rep 233). Emphasis added.
 Mabenga at p.15.
 Id. at p.9.
 Id. at pp.4 and 5.
 Id. at p.10.
 JCN Holdings vs. Development Bank of Zambia, Supreme Court of Zambia, Appeal No. 87/2012, at 494.
 Mabenga, at p.9.
 Id. at pp.8-9.
 JCN Holdings at 502.
 Id. at 502.
 Id. at p.5.
 Id. at p.14.
 Id. at p.16.