Marian claims in court papers that if Chiweshe does not recuse himself she would suffer prejudice because he is related to Chombo.
“When we first took over the conduct of this matter, Mrs Chombo requested that we apply for the Judge President to recuse himself on the basis that he is well known and friendly with her husband in addition to being related to him. As the Honourable Judge President was dealing with the matter at Pre-Trial conference stage, it was our view that she would not be prejudiced as the trial would be before a different judge,” a letter written by Marian’s lawyer Beatrice Mtetwa to the Registrar of the high court on 23 February stated.
“We have since filed an application to have the Honourable Judge President’s decision set aside and are also in the process of preparing an urgent chamber application to stop the hearing of the matter on the unopposed roll pending the determination of the application to set aside the order of the Judge president.”
The letter further stated that, “We are, as is our client that the Judge President allocates cases and determines who hears which matter. Our client had indicated at the outset that they are related as President and her husband are not only well known to each other but that they are related as well. At the time we advised her that this did not matter much at the Pre-Trial conference stage, particularly as this meant that Judge President could not deal with the matter at trial.”
Marian also wants the Judge president not to be involved in allocating a judge who will deal with the matter going forward.
“We therefore kindly request that your office do the allocations of these applications as was the case before this task was given to the Judge President,” wrote Mtetwa.
Marian also accuse Chiweshe of being biased against her because he took a decision to take the matter to trial without giving an opportunity to explain her absence from a pre-trail conference where the decision to proceed with the matter was made.
Marian said she could not attend the pre-trial conference because she had travelled to South Africa for shopping.
In a chamber application lodged before the High Court on 24 February Mtetwa argued that, “applicant’s rights were determined in her absence and without the Judge President giving her an opportunity to explain her absence.”
Marian said she will suffer serious irreparable harm if the divorce matter proceeds as unopposed.
“I would walk away from a marriage of over 26 years with nothing, a situation which would clearly be prejudicial to me,” Marian said in court papers.
However Chombo’s lawyers say Marian is too desperate to remain the minister’s wife that she is prepared to compromise the legal system by willfully ignoring court sessions.