Businessman Thom Mpinganjira's defense has filed an application for Judge Dorothy DeGabriele to recuse herself on grounds of impropriety.
Patrice Nkhono, SC, lead lawyer for Mpinganjira said they have made the application because, the court would not be seen to be independent and impartial if they did not.
"There are serious allegations of impropriety against you and judge president of the High Court [Slyvester Kalembera] and the reality of it is that, it would appear on the face of it that there was an arrangement where certain offers were made to the defendant [Mpinganjira] with a view to achieve a favourable outcome in the proceedings.
"We have provided recordings of phone conversations that took place where these allegations of a serious nature were made. We have also made transcripts of those phone conversations and texts. When you look at all these together it seems to point to serious allegations of impropriety," Nkhono said.
Nkhono alleged there is a text message from DeGabriele making assurance to the Judge President and another message from Kalembera acknowledging the assurance has been made available.
"We are not saying the allegations are true or proven but they have been made in a manner not credible in respect which a reasonable person looking at those allegations would have reason to believe them unless they were clear.
"If those allegations in these proceedings are true, it represents a serious justice issue. If not true justice will be served, to have those allegations cleared of you and Judge President of such impropriety. Unless those are cleared we will have a situation where justice is seen not to be done," Nkhono added.
Nkhono told the court this is not the first time this sort of thing has happened claiming an allegation was made in August 2020 by Mpinganjira where two judges who testified were accused of similar practice.
Mpinganjira reported to the Anti Corruption Bureau and Police.
"We realise once a judicial official embarks upon proceedings they should not be taken off the case unless there is a really likelihood of bias. In order to preserve integrity of the justice system she should recuse herself and let a different judge take over," Nkhono.
In response, the State through Reyneck Matemba, Solicitor General appointed as prosecutor said they were only served around 4:30 pm which is knocking off time and did not have time to respond in writing.
"We have gone through the affidavit and one thing clear is hearsay. He, Mpinganjira is not stating facts but hearsay. The clauses he are are 'I was meant to believe, I was told this, I was told that.' Point is the accused even though he is bringing in impropriety of you and Judge President Justice Kalembera, Mpinganjira never talked to any of the two judges.
Matemba called it a: "Wild and baseless application intended to delay and derail criminal proceedings. Allegations haven't been proved and are malicious.
"If indeed the people; Timothy Duncan, Andrew Makolija are real, how come they are mixing dates of ruling of case to answer or not. Was the person sent by you, No?
"Mpinganjira says was approached 22nd of February, why did he wait all this time, why waiting if indeed they are credible. Third, if indeed they exist, they could be fictitious that should have been dealt with with sworn affidavits that they were approached by DeGabriele.
"On lodging a complaint at ACB, it was dismissed because it had not substance. This is their modus operandi to delay. In the complaint with ACB he made allegations against Justice Potani and Justice Tembo. If its necessary Justice Kapindu will be asked for affidavit.
"The conversations did not involve DeGabriele and Judge President, there were not in there. He was talking to third parties, which could be fictitious.
Matemba concluded that his view was therefore that justice de Gabriella should not recuse herself.
"You will be lending credibility to unfounded allegations," he said.
A fierce war of words ensued in court with Matemba telling Nkhono he did not want to take the path of accusing the ACB to which Nkhono responded by saying he will.
"What more implication could there be than a text message from the judge coupled with suggestions of the fact the money should be paid after a favourable outcome.
"Quite bewildering the State doesn't find all this suspicious and the judge would want to want to clear herself."
Judge Dorothy DeGabrielle reserved her ruling to Wednesday at 10 o'clock.