MANAGERS AGAINST RECUSAL OF JUDGE

MBABANE – The three Standard Bank Swaziland managers who are currently engaged in a court battle with the bank over their future employment are opposing the application for recusal of the judge who is presiding over the matter.

Standard Bank filed an application where it wants Industrial Court Judge Nkosinathi Nkonyane and the three members of the Industrial Court to recuse themselves from presiding over the matter.

These are the managers who alleged to have witnessed a sex scandal, allegedly between a senior manager and a staffer during an internal staff party in 2012.

They alleged that they are being victimised while the bank says this was a normal restructuring process.
The three managers are Phumzile Magagula, Aldona Lapidos and Mandla Nxumalo, and they were all Executive Accountants in the Corporate and Investment Division (CIB) of the bank.

In their answering affidavit, the three managers stated that for the recusal application, the bank relied on an alleged apprehension of bias as opposed to actual bias.
These are allegations contained in an affidavit whose veracity is still to be tested in court.

They submitted that they were opposing the recusal application on the grounds that it had no basis in fact and in law.
“The application is nothing than an attempt by the respondent (bank) to remove the matter from His Lordship and Honourable members who are seized, not only with the matter for contempt of court, but also the main application in which the applicants seek an order to enforce the commissioner’s ruling,” they stated.

They submitted that Judge Nkonyane and the Industrial Court members were well acquainted with the matter and they were the ones who dealt with the application for their restoration to the bank system and amenities and the first contempt which ensued from a violation of the order restoring them to the bank systems.
“This obviously makes the respondent (bank) uneasy and is the reason why they are applying for the recusal of His Lordship and the Honourable members,” submitted the managers.

They stated that the court was entitled to reach the conclusion based on the facts before it, the submission of the counsel and the circumstances of the case.“We submit that the respondents, not having appealed or instituted review proceedings in respect of the judgment for costs, cannot contradict the contents thereof. Contents of a judgment can only be questioned by way of review or appeal, which are the only modes of altering a judgment,” submitted the managers.

It was further stated by the three managers that the bank had failed to establish grounds for recusal.
“We have been advised and verily believe that the respondents are required to show that they have a reasonable apprehension of bias.  The apprehension of bias must be held by a reasonable, objective and informed person. Secondly, the apprehension itself must, in the circumstances, be reasonable,” reads part of the opposing papers.

They alleged that the bank’s application for recusal failed both tests as a reasonable man could not labour under an apprehension of bias of a court merely on the basis that it delivered a judgment adverse to the bank.
“This is nothing more than an inappropriate attempt by the respondent to prevent this court, which is best suited having dealt with the dispute from its inception and being seized with the main application, from finalising the matter,” they stated

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