Thursday 3 June 2021


THERE was drama yesterday after one of the three judges designated to hear an application seeking the arrest of Chief Justice Luke Malaba recused himself after confirming that he had met with the head of the Judicial Service Commission (JSC) secretariat, but government sought to reverse his decision.

Justice Webster Chinamhora recused himself from the three-judge panel in the morning after lawyers representing Zimbabwe Human Rights NGO Forum executive director Musa Kika, who is the applicant in the matter, asked for his recusal following revelations that he met with JSC secretary Walter Chikwana ahead of the hearing of the case.

Critics say the meeting was meant to pressure the judges to make a ruling in favour of Chief Justice Malaba which would seriously compromise their independence. Justice Chinamhora then recused himself, confirming that he had, indeed, met with Chikwana.

The remaining two judges, Justices Amy Tsanga and Sylvia Chirawu-Mugomba then consulted the JSC, which ruled that they could proceed and hear the matter as a two-judge panel.

The case against Chief Justice Malaba came after his term of office as Chief Justice ended a fortnight ago, with the High Court ruling that he ceased to be the country’s top judicial officer on May 15 when he turned 70 and that a recent constitutional amendment allowing the President to extend his term did not apply to him.

Last week, Chief Justice Malaba returned to office under the belief that the High Court ruling had been suspended by an appeal filed by Justice minister Ziyambi Ziyambi and Attorney-General Prince Machaya.

However, Kika, who challenged the extension of Chief Justice Malaba’s term in the initial case, argued that an appeal against the declarator suspends the operation of the judgment and has asked the High Court to find Chief Justice Malaba in contempt and jail him for six months.

The matter was adjourned to the afternoon, but before it could be heard, Chief Justice Malaba’s lawyer Advocate Lewis Uriri, together with Ziyambi’s lawyer Thembinkosi Magwaliba, and JSC lawyer Addington Chinake immediately made an application for leave of appeal against Justice Chinamhora’s recusal.

Uriri represented President Emmerson Mnangagwa when opposition MDC Alliance leader Nelson Chamisa challenged the Zanu PF leader’s victory in the July 30, 2018 presidential election. Chief Justice Malaba presided over the case and ruled in Mnangagwa’s favour.

The lawyers argued that a decision had already been made by the appointing authority to the effect that a three-judge panel should hear the matter.

“The proceedings of the chambers are not part of the hearing. They are just incidental proceedings which do not have an effect because they are not substantial proceedings. The appeal had prospects of success,” Uriri said.

Magwaliba also argued that the recusal of Chinamhora would affect the rights of his client, Ziyambi, as a litigant if the judge does not return to the bench to constitute a three-judge panel, which would form a quorum before the matter was heard.

However, Kika’s lawyer Thabani Mpofu argued that there was no prejudice to Chief Justice Malaba, Ziyambi or the JSC if the matter was heard by two judges given that ordinarily, such matters could be heard by a single judge.

“This is a piecemeal appeal. Piecemeal appeals ought to be dismissed by the court. One member of the High Court is properly constituted. There is no merit in the application. Its prospects for success are zero. This is a properly constituted court. This application is vexatious and meant to waste time,” he said.

“There is a tendency of forum shopping and I urge the court to frown on that. Regrettably, it gives the impression that the Executive is protecting the first respondent (Chief Justice Malaba).”

In her ruling, Justice Tsanga in concurrence with Justice Chirawu-Mugomba dismissed the appeal saying it had no prospects of success.

She said they had consulted the appointing authority, JSC, which gave them the go-ahead to hear the matter as a two-judge panel.

“The process of approaching a judge in the chambers can’t be divorced from the hearing of the application for leave to appeal to the Supreme Court. The recusal of the judge (Chinamhora) from the panel is part of the proceedings. We have come to the decision that the application for leave of appeal to the Supreme Court is dismissed because it has no prospects of success and it is hereby dismissed,” Justice Tsanga said.

During the court proceedings before the two-judge panel, Kika’s lawyer Mpofu argued that Chief Justice Malaba was in contempt of court because the order which was granted by High Court judges, Justices Happias Zhou, Edith Mushore and Jester Helena Charehwa, three weeks ago, was a declarator which could not be suspended by the noting of an appeal by Ziyambi and Machaya.

“The declarator barred the first respondent (Chief Justice Malaba) to exercise the duties of a Chief Justice as he had ceased to be one when he turned 70 years. He complied with the order for the first 10 days, but what he has done after the 10 days is in contempt of court,” Mpofu submitted.

He said Ziyambi’s appeal filed on May 27 did not solve the matter.

“If the minister’s appeal had solved anything, he couldn’t have filed an appeal. I submit that by seeking shelter under the minister’s appeal, he was in contempt of court,” Mpofu added.

In his submissions, Uriri said Chief Justice Malaba did not commit any offence as the declaratur had been suspended by the noting of appeal by Ziyambi.

“He noted his own appeal because the full judgment was only availed on May 27 with all the reasons. That’s why he had to file his own appeal after seeing the reasons. The declarator is not a declarator because it can only be a declarator if it’s pure,” he said.

Justice Tsanga then quizzed him in relation to his assertion that the declarator was impure. “Sorry, I don’t like to use this example, but I want clarity. Are you saying cocaine is not cocaine unless it’s pure?” she asked.

Chinake argued that the declarator had not taken away the right of Chief Justice Malaba to be heard.

“He has an absolute right to be heard through an appeal and an appeal suspends the declarator order. So, the first respondent (Malaba) didn’t commit any contempt of court crime,” Chinake said.

The proceedings dragged on up to 5:45pm when the two judges then reserved judgment to next week. Meanwhile, Deputy Chief Justice Elizabeth Gwaunza yesterday swore in six former High Court judges as Supreme Court judges. The six are Justices George Chiweshe, Alpheus Chitakunye, Samuel Kudya, Felistas Chatukuta, Joseph Musakwa and Hlekani Mwayera.

Justice ministry secretary Virginia Mabhiza said among other duties, the newly sworn-in judges would play a pivotal role in assisting the justice system in the country to clear outstanding cases at the Supreme Court.

“This is a very important event in the Judiciary calendar and this is a constitutional requirement. The newly-appointed judges will help in clearing cases at the Supreme Court and make sure that cases are heard on time,” she said. Newsday


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