Supreme Court dismisses recusal application by Valabhji couple for Justice Rony Govinden |02 June 2023

=The Supreme Court yesterday declined and dismissed the Application for recusal submitted by Mukesh Valabhji and his wife Laura Valabhji, who have been charged in a firearms and prevention of terrorism case and the anti-money laundering case, respectively.

In a joint application, the couple had requested the recusal of Chief Justice Rony Govinden as the presiding trial judge in both cases.

Mr and Mrs Valabhji based their recusal application on several allegations stating, among other things, that they had a personal relationship with the Chief Justice, that he had personal animosity towards them and that the Chief Justice is a material witness in the firearms case.

The Chief Justice denied the allegations and declined to recuse himself.

The respondents in the application, the prosecution in the firearms case and the Anti-Corruption Commission in the money laundering case, pointed out that the circumstances of the allegations were long known to the couple but the recusal application came only now close to the set trial date.

The respondents also stated that the Court should be slow to accede to the application for the recusal in the circumstances alleged by the couple as it could be a dangerous precedent allowing litigants to shop and pick their judge.

The Court found that while the Chief Justice and Mrs Valabhji used to be colleagues, their social interaction in 25 years was limited to only two social events attended by the Chief Justice: a wedding as far back as 1999 and one dinner visit.

Events allegedly leading to personal animosity of the Chief Justice had occurred according to the applicants as far back as 2000 and 2004. None of the allegations of personal animosity were proven but remained allegations which were categorically denied by the Chief Justice.

The Court also found that the Chief Justice was not a material witness and his former association with other members of the Central Bank Board is immaterial as they will be giving evidence not in regard to their personal or private matters but in respect of official matters involving the USD 50 million being received by the Central Bank which would be based on bank entries and other documentation.

Further, there had been allegations concerning the friendship of the former wife of the Chief Justice with Mrs Valabhji.

The Court held that social interactions between Mrs Valabhji and the former wife of the Chief Justice happened after they divorced and therefore the Chief Justice is not responsible for decisions and social life of his former wife. The same reasons applied to the sale of the property as Mrs Valabhji has not provided any communications showing that the Chief Justice personally has engaged her services for the sale of property.

The Court further held that the vetting of the Chief Justice application by the Bar Association does not mean that due to the vetting of all the candidates by the Bar Association, a Chief Justice would have to recuse himself from hearing any matter, including disciplinary matters concerning lawyers whose conduct is under his supervision.

In regard to the alleged land scandal, the ACCS stated that no complaint has been lodged against the Chief Justice, the Court therefore held that this allegation was baseless.

The Court emphasised the importance of the Judicial Oath taken by the Judge to administer justice without fear or favour, affection or ill will as well as Judges’ capability of rising above any prejudices to carry out their oath by reason of their training and experience.

The Court further stated that mere allegation of the connection to the Judge is not sufficient and a party asking for recusal needs to provide evidence to prove actual or perceived bias of the Judge.

From the evidence adduced in this recusal application, the Court found that the facts relied on by Mr and Mrs Valabhji bear no merit. Therefore, actual bias was not established.

With regards to the perceived bias, that is whether the fair-minded and informed observer would be satisfied that there is a possibility of bias, the Court found that in this instance the unsupported and vague facts seeking recusal were not sufficient.

Furthermore, the Court observed that Mr and Mrs Valabhji has not explained why they brought the application 16 months after the case was assigned to the Chief Justice when the alleged events and circumstances were well known to them at the outset of the case.

The Court therefore agreed with the points raised by the prosecution and was cautious not to permit the parties to pick and choose the judge where no bias has been established.

The Court also agreed with the prosecution that a last minute application for recusal has been filed to derail and delay the hearing of the case which in fact did occur.

Contributed