Bulawayo High Court judge Justice Thompson Mabhikwa has recused himself from the gold theft case involving Harare lawyer Admire Rubaya and seven others.
Rubaya is demanding over $1.1 million from Justice Mabhikwa in damages for unlawful incarceration.
He now wants Justice Mabhikwa’s fitness to hold office investigated.
Justice Mabhikwa’s recusal follows a criminal complaint filed against him for allegedly abusing public office after he ordered Rubaya’s “unjustified” 10-day incarceration at Khami Remand Prison in June.
Rubaya is facing theft charges or obstructing the course of justice after he defended his then client, Jefat Chaganda, for smuggling 14kg of gold to Botswana.
He wrote to the Zimbabwe Anti-Corruption Commission (Zacc) and the police on July 28 seeking a probe and arrest of Justice Mabhikwa.
Justice Mabhikwa is denying the allegations, but agreed to pave way for another judge.
On Friday, Justice Mabhikwa issued an order recusing himself, so that “justice must not just be done, but must be seen to be done”.
The trial is set for continuation on September 8 and all parties have been notified of Justice Mabhikwa’s decision.
Rubaya was released from Khami Remand Prison after approaching the Supreme Court, which censured Justice Mabhikwa’s decision to revoke his bail.
He has since approached the High Court seeking leave to sue Justice Mabhikwa for damages suffered because of the detention as his constitutional rights were infringed.
For this reason, he intends to claim payment of the sum of $665 000 and $475 000, being damages in terms of the law.
Rubaya argues that Justice Mabhikwa caused his detention under circumstances where he was constitutionally-bound to presume the lawyer innocent.
He has also written to the Judicial Service Commission, which regulates the conduct of judges, to investigate Justice Mabhikwa’s conduct.
In his complaint to ZACC and the police, Rubaya alleged that on June 23, in the company of his co-accused, he appeared before Justice Mabhikwa for a pre-arranged remand hearing.
He said he was shocked when Justice Mabhikwa revoked their bail and remanded them in custody, without the State making an application for such incarceration.
Rubaya said Justice Mabhikwa acted with unparalleled caprice to his prejudice in a bid to fast-track a trial he had earlier on postponed to September 8 by the consent of all parties.
He further argued that Justice Mabhikwa’s decision to mete “group” punishment on the co-accused persons who were in attendance on June 23, 2020 on the basis of the non-appearance in court of Chaganda was not only unprecedented, but also negated basic fundamental tenets of natural justice.
Rubaya said before his bail was revoked, he had read a Facebook account under the name of Andrew Maimba claiming to be a journalist, who posted on his wall on June 11 warning him of the incident that finally unfolded in court on June 23.
Maimba went on to write a follow-up article on the day he was incarcerated indicating he had advised him of the impending detention, but had not paid heed.
Rubaya said it was cause for investigation that a journalist had knowledge of how court proceedings before Justice Mabhikwa were to unfold 12 days before.
Rubaya is charged along with Chaganda, who reportedly died early this year, the magistrate who tried the case at Plumtree Timeon Makunde, prosecutor Stanley Chinyanganya as well as Sidingumuzi Ncube, Tyson Ruvando, Godfrey Makuvadze, Ladislous Tamboonei and Ladislous Tinacho, who is in charge of the ZRP Minerals and Border Control Plumtree.