Court dismisses Esau application for recusal
The applicants claim Sibeya is biased due to alleged conflict of interest and non-consideration of the voluminous application, affidavits and supporting documents.
10 June 2021 | Justice
Judge Orben Sibeya announced his decision to dismiss former fisheries minister Bernhardt Esau, Ricardo Gustavo and Tamson Hatuikulipi’s application for his recusal from the Fishrot matter in which the prosecutor general sought a provisional restraint order to dissipate their assets.
Sibeya, in a judgement delivered yesterday, said he is not convinced that the requirements for an application for recusal are met.
Esau’s wife Swamma and daughter Johanna Hatuikulipi are also part of the applicants who sought Sibeya’s recusal.
According to the judgement, there is no prosecution instituted against Swamma and Johanna but they are cited because they received affected gifts from the defendants or hold property on behalf of the defendants.
The applicants claim there is a bias on the part of Sibeya resulting from alleged conflict of interest and alleged non-consideration of the voluminous application, affidavits and supporting documents.
The perceived bias allegedly emanates from a conflict of interest as Sibeya was employed as a public prosecutor, and therefore had a close relationship with the prosecution and the prosecutor general and represented the prosecutor general’s son.
Another ground of recusal, according to the applicants, is that the court did not read all the voluminous documents forming part of the application for a provisional restraint order and therefore did not approach the said application with an open mind.
According to court records, it took Sibeya just over two hours to consider the application provisional restraint order.
“The group application stated that I had perused the bail appeal record in the matter of Bernhardt Esau and Another v the State which I was due to hear with another judge. From the said bail appeal record, it is stated further that I acquired prior knowledge of the information relevant to the restraint application before considering,” Sibeya said.
“Judicial officers have a duty to preside in any case where they are not obliged to recuse themselves and recusal should be warranted on the established facts. The application for recusal failed to prove the double reasonableness required, lack merit and falls to be dismissed,” he said.
He also indicated that his relationship with Prosecutor General Martha Imalwa is a professional one resulting from his employment with the justice ministry and where “the prosecutor general was his supervisor and this does not give rise to a conflict of interest”.
Sibeya said he enjoys a long-lasting friendship with Imalwa whom he reported to while working for the Office of the Prosecutor General.
Between 2012 and 2014, Sibeya represented Imalwa’s son in a criminal matter “on the instructions of the Prosecutor General who was responsible for the payment of the legal fees”.
He also indicated that the son of the lead prosecutor in the Fishrot matter, Ed Marondedze, is employed at Sibeya & Partners legal firm from 2019 to date. He said the firm belonged to him until December 2020.