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.