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'Gappah needs mental help,' says Judge

by Staff reporter
22 Mar 2024 at 11:38hrs | Views
Zimbabwean High Court Justice Joseph Mafusire says local lawyer Petina Gappah needs "psychological intervention" - mental assistance - amid her unrestrained scandalous attacks on the judge and the judiciary after losing interlocutory battles on the US$1 million defamation suit filed against her by fellow attorney and opposition activist Fadzayi Mahere.

Mahere dragged Gappah, an international trade lawyer who describes herself as a "globalist" and "multilateralist", to court on defamation charges in 2018.

Mahere is demanding US$1 million in damages.

In a series of tweets posted on 29 September 2018, Gappah made a number of scurrilous accusations against Mahere.

Gappah claimed Mahere did not qualify to study law at the University of Zimbabwe and was only admitted because of her father's influence.

Her father, Stephen Mahere, once served as the permanent secretary in the Ministry of Education, Sport, Arts and Culture.

Gappah further claimed Mahere only got admitted to Cambridge University in the United Kingdom after she had edited and almost completely rewritten her application essay.

She also said her fellow "learned friend" doctored her curriculum vitae to embellish it.

In a further vituperative allegation, Gappah said Mahere had attempted to sleep with her partner, which seems to be the source of her uncontrollable rage.

Later during proceedings, she accused Mahere of sleeping with people's husbands, saying "my witnesses will testify that if anyone is to blame for her reputation as a 'woman of low morals', it is the plaintiff (Mahere) herself who has earned that reputation for herself, separately from anything I have said."

She adds: "I will show that her reputation is in fact that of a serial mistress renowned for her affairs with married (men)."

However, the judge says Gappah's "torrent of abuse decluttered, the following allegations or insinuations must rank as the nadir of dishonour":

*That the respondent (Mahere) has instituted a million dollar claim for damages in the knowledge and confidence that there are corrupt judges that will fight in her corner.

*That I (judge) have dismissed the applicant's interlocutory applications aforesaid because my eyes are squarely on the plaintiff's million- dollar claim [para 114 and the applicant's letter of complaint to the Judicial Service Commission];

*That the respondent may as well have been the one who penned the two interlocutory judgments aforesaid.

*That I failed to disclose a long-standing intimate relationship with the respondent the evidence of which is the success the respondent has scored in matters argued by her before me.

*That I have doctored the record of proceedings in the main matter by amending the joint pre-trial conference minute in such a way as to reverse the onus of proof resting upon the respondent to prove defamation, and proceeding further to conceal that document from the applicant and her lawyers.

*That the applicant (Gappah)'s interlocutory applications fortuitously foiled a well-orchestrated plan by myself and the respondent to ambush the applicant at trial.

Unable to stomach the stinging initial defamatory slurs, and a further heightened flurry of intensified attacks during proceedings, Mahere went to court to stop the escalating character assassination.

In two interlocutory cases ahead of the upcoming trial on further discovery, declaration and application for leave to appeal, Gappah, who worked for President Emmerson Mnangagwa's government after the November 2017 coup before quitting, lost in the High Court.

She appealed to the Supreme Court, but she lost again.

And then she decided to go for Mafusire demanding his recusal, claiming he had an intimate relationship with Mahere.

Gappah also claimed the judge was biased and prejudiced against her, while saying Mahere went to court because she knew the judiciary was corrupt and would fight in her corner.

Dismissing Gappah's application for his  recusal, Mafusire - in a strongly-worded judgement - says:

"This is an application for recusal. By agreement the determination is on the papers.

"The applicant is the defendant in an action for damages for defamation under the case reference number HC 9390-18. The respondent is the plaintiff. In this application, the applicant seeks my recusal from that matter on the ostensible ground that I have demonstrated bias and prejudice against herself and in favour of the respondent in two interlocutory rulings by myself.

"The first of such rulings was in May 2022, under judgment no HH 334-22. In it, I dismissed the applicant's twin applications. The one was to compel further discovery. The other was for the striking out of the plaintiff's declaration.

The second interlocutory ruling was in September 2022, under judgment number HH633-22.

"In it, I dismissed the applicant's application for leave to appeal my judgment under HH 334-22 aforesaid. Dissatisfied, the applicant approached the Supreme Court. She lost. Her application was dismissed with costs under judgment number SC 500/22. Undeterred, she now seeks my recusal."

The judge said the law on recusal is settled in all the common law and civil law jurisdictions.

"Little scope for originality exists. In very basic terms, and in the context of judicial proceedings, recusal is the stepping aside, or disqualification of a judicial officer from a case on the ground of personal interest in the matter, bias, prejudice, or conflict ofinterest," he says.

"Recusal has its origins in the common law. It is now codified under s 69 of our constitution, the Judicial Code of Ethics and Regulations made thereunder: see Mawere & Ors v Mupasiri & Ors CCZ 2-22, at p 5–6."

Mafusire dismissed Gappah's recusal application noting that judges should not too ready accede to suggestions of bias or other interest in matters before them.

This condemned Gappah to yet another defeat in a string of provisional setbacks in the case.

Mafusire says Gappah has been abusive and condescending in her statements during court processes.

"The applicant has irregularly commented extensively and, in the most condescending and disparaging manner, sought to discredit both the evidence yet to be led and the witnesses yet to testify in the main case," he says.

"I am accused of, among many other things, having accepted at face value the respondent's apparent falsehoods and rejected her apparent truths.

"The applicant further accuses me of having prejudged the main case. The evidence of all that remains my two judgements aforesaid. From them, she picks eight instances of bias or prejudice by myself.

"Yet the applicant and her lawyers know, or ought to know, that they are disbarred by operation of the law and the rules of procedure from bringing up the same issues as were settled by those two judgments. Her appeal to the Supreme Court was dismissed. The issues are now res judicata or issue estoppel.

"What she and her lawyers are doing, in effect forcing me to review my own judgments despite her loss in the Supreme Court, is foreign to our legal system.

"The applicant, aided and abetted by her lawyers, has debased the court process and subjected it to flagrant abuse. The abuse has taken many forms. Among other things, virtually in all her affidavits subsequent to the closure of pleadings in the main case, she has, at every turn, made scurrilous and condescending allegations against the respondent and others. She has been so unrestrained. In this application, her founding affidavit has over 193 very long paragraphs straddling over a staggering 43 pages.

"She has gone on to file an answering affidavit, continuing in the same vein and irregularly bringing up new issues. The founding affidavit is replete with slander, ironically, all in defence of a claim for defamation!"

Due to the scurrilous nature of Gappah's statements, Mafusire says the court is not faced with "a bitter litigant who is aggressively and unreasonably seeking redress", but appears to be faced with a "litigant who requires psychological intervention".

"This application does not meet the requirements for recusal in any respect. It is an-unmitigated absurdity. It is an affront. No judicial officer can relate to it without impairing the dignity of the court. It is unbelievable that two legal practitioners who are supposed to be officers of the court have presided over and directed the drafting of the founding affidavit. It is equally incredible that they have purported to file heads of argument over what is patently an aberration," he says.

"The applicant has unjustifiably gone personal. She has purported to superimpose her own misguided issues into the respondent's cause. This is wrong. What is more, it is done in the most derogatory manner. Facts are deliberately twisted."

The judge says it is important that the dignity and integrity of the courts as well as their processes are restored and maintained.

Mafusire says litigants that stray from the norm deserve censure.

"This application has to be dismissed with costs at the highest scale available," he says.

"The applicant's legal practitioners are equally culpable. They have been complicit in the demonisation of the entire judiciary.

"But this sort of thing happens when legal practitioners abdicate their responsibilities as officers of the court and opt to act like hired guns.

"A legal practitioner's first duty is to the court. He or she should have the courage and responsibility to advise their client when their cause is dead.

"The applicant's legal practitioners herein deserve to be censured by an order of costs de bonis propriis on the same high scale.

"The regulatory authority may need to peek into their behaviour. However, since these issues have not come up before, an opportunity is given to them to show cause why they should not be reported and mulcted in costs."

Mafusire dismissed Gappah's application with costs, while also ordering that within seven days of the date of the order, her lawyers Jessie Majome & Co and Advocate Tinomudaishe Chinyoka, should "show cause why they should not bear the costs of this application on the legal practitioner and client scale, de bonis propriis and jointly and severally with the applicant, and why this judgment should not be copied to the Law Society of Zimbabwe".

Gappah's lawyers are in trouble for helping their vitriolic client to scandalise the judiciary and the judge.

Trial on the defamation matter will commence on a date to be advised soon.



Source - newshawks
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