HARARE - Former Reserve Bank of Zimbabwe (RBZ) governor, Gideon Gono has said his ex-adviser Munyaradzi Kereke is basing corruption charges against him on false allegations driven by malice and a desire to settle personal grudges.
Kereke filed a Constitutional Court application, seeking to push the Zimbabwe Anti-Corruption Commission (Zacc) to investigate Gono on graft charges, allegedly committed during the time he was at the helm of the central bank.
Gono, who is cited as a second respondent in the application, has said in his heads of argument that Kereke’s claims were baseless.
Find below Gono’s argument, continued from yesterday.
1. The 2nd Respondent submits that the application is also defective for failure to cite the Reserve Bank of Zimbabwe (the “Central Bank”), clearly an interested party within the meaning of the law.
The central bank is a body corporate with independent legal persona, created in terms of Section 317 of the Constitution.
It is an interested party in this matter for a number of reasons.
17.1 To start with, the 2nd Respondent, at all material times, was acting as its principal accounting officer with respect to all the allegations by the appellant in the application.
Consequently, all the issues discussed in this matter relate to its business.
As such, to the extent that the allegations by the applicant against the 2nd Respondent are material to the present case, only the Bank could attest to the propriety or otherwise of the 2nd Respondent’s conduct.
17.2 And indeed, as the 2nd Respondent contends, if there was any malfeasance on his part, the Bank would be the direct complainant, it being the prejudiced party.
In this context, it is immaterial what position the 2nd Respondent held in the bank.
His position cannot be conflated with that of the Central Bank.
17.3 Moreover, the disclosure of some the official documents in this case might require the Bank’s consent.
In the circumstances, the Central Bank clearly has a direct and substantial interest in the outcome of this case.
Moreover, an order by this honourable court for the 1st respondent’s commission to investigate the 2nd Respondent will directly affect the Central Bank, which invariably will be required to open or make available its books, official documents, personnel and premises to the commission.
An order by this court in the manner sought will thus impose a legal obligation on the Central Bank — for its cooperation — without affording it a chance to he heard.
2. The Applicant’s failure to cite the Central Bank as an interested party is therefore a defect fatal to his cause.
3. For reasons argued above, it is submitted that the Reserve Bank of Zimbabwe clearly has a direct and substantial interest in this matter.
The central bank would be prejudiced if the case were to proceed without it being heard.
It is indeed inconceivable that the official business of such an important and strategic national institution should play out in the public arena while it watches from the side-lines.
Failure to join it in these proceedings should therefore be fatal.
In making this submission, the 2nd Respondent would like to point out that the applicant had the opportunity to address this anomaly once the issue had been brought to his attention through the 2nd Respondent’s answering affidavit but chose not to.
His obstinacy, therefore, should not work against the direct and substantial interests of the Central Bank.
B. Objectively, the order sought is absurd on the logic of the Applicant’s own case and would in any event be reviewable on the grounds of bias.
4. The Applicant, assuming he had correctly cited the Anti-Corruption Commission seeks an order directing same to conduct investigations against the 2nd Respondent.
5. However, half the Applicant’s Founding Affidavit contains allegations that the 2nd Respondent allegedly corrupted the Commission.
6. The allegations are so serious and unkind.
Furthermore, they are persisted with, in the Answering Affidavit.
7. In the face of these allegations, surely rules of natural justice will disallow the Commission from investigating the 2nd Respondent.
8. The basis of natural justice, is that justice must not only be done but must be seen to be done.
9. Put differently, this Honourable Court is being asked, to give a determination which any outsider, including the Applicant himself may actually take on review on the basis of bias.
10. The nemo iudx insua causa rule, is an integral part of our law.
The rule against bias, codifies the common law position that decision makers ought to be impartial.
11. The test for bias in our law, has been laid out in a number of decisions that include Muringi v. Air Zimbabwe Corporation & Another 1997 (1) ZLR 357 (H), Bailey v. Health Professions Council 1993 (2) ZLR 17 (S) at 22F, Leopard Rock Hotel Company (Pvt) Ltd and Another v. Walenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S).
12. The test was expressed by McNally JA in Bailey v. Health Professions Council of Zimbabwe relying on the decision of the house of lords in R v. Gough 1993 (2) All ER 724 at 22 DF, as follows:- “In the matter, the test for bias was set out with persuasive clarity in the speech of Lord Goff at pp 737 to 738.
I do not propose to set out the whole of the relevant passage beginning at the letter “g” on p 737.
It is enough to set out his concluding words at the foot of that page: ‘Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the Tribunal in question, in the sense that he might unfairly regard (or have unfair regarded) with favour, or disfavour, the case of a party to the issue under consideration by him.’
He stressed that by ‘real danger’ he meant a real possibility rather than a real probability of bias”
13.
In South Africa, on the other hand, the courts there, have refused to adopt the “real likelihood test” and adopted the test of whether there was “reasonable suspicion”.
This means that in order to have a decision set aside, the Applicant only needs to show an appearance of partiality rather than its actual existence.
See BTR Industries South Africa (Pty) Ltd v. Metal Allied Workers Union 1992 (3) SA 673 (A).
In terms of this approach therefore, the court is not asked to investigate the actual state of mind of the decision maker, but rather the manifestation of his mind.
14. In S v Roberts 1999 (4) SA 915 (SCA), the question arose whether it is correct to say that a reasonable person “might” “have a suspicion of bias or it is something that she “would”.
Howie J preferred “would” to “might” and ruled as follows:-
(i) That there must be suspicion that the judicial officer might (not would) be biased;
(ii) That the suspicion must be that of a reasonable person in the position of the accused or the litigant;
(iii) That the suspicion must be based on reasonable grounds;
(iv) That the suspicion is something that the reasonable person would (not might) habe
15. The above approach was also accepted in the leading case of President of the Republic of South Africa v The South African Rugby Football Union 1994 (4) SA 147 (CC).
16. Clearly, applying the Zimbabwean test or the South African test to the facts there is no doubt that if the allegations made by the Applicant were to be accepted, a fact which the Applicant himself vehemently insists on, then this is not even a case of probable bias but actual bias.
17. Indeed, the proof of actual bias is a ground of setting aside a decision. See De Lille v Speaker of the National Assembly 1998 (3) SA 430(C); see also Cash Paymaster (Pty) Ltd v Eastern Cape Province 1999 (1) SA 324 (Ck).
18. This Honourable Court, cannot make a decision which will patently be reviewable.
19. To reflect the Applicant’s malice, is the fact that he in fact recognised this and accepts this.
In his letter to the Anti-Corruption Commission of the fifth of April 2012, addressed to the 1st Respondent he makes pretty much the same point in paragraphs 12; 13 and 22.
In paragraph 12 of that letter, he makes the following point — “I also wish to state that to the extent that Mr. Chairman your own organisation is directly implicated (and I can confirm I have solid evidence implicated in your organisation) in the very serious allegations corruption as contained in my signed letter to Dr Gideon Gono, which letter Dr Gono himself has got, it is procedurally inappropriate that you and your team be following me in my private life asking me to surrender evidence to your custody when you are part of seriously implicated parties.
Paragraph 13. The public will surely lose faith in the impartiality and true intentions of your processes if you are to insist on getting evidence directly surrendered to you and matters where you are implicated.
It is indeed, the expectation of the public that your organisation behaves and mean what it says when promulgating the resolve to fight corruption and not act in ways, even when well-meaning, that may inadvertently undermine the integrity of your very important constitutional mandate”
20. Surely, this alone is a kind of conduct that justifies the award of costs calculated on a scale as between attorney and client.