Once the court makes a finding that the relief sought in an
application is legally incompetent, the matter is resolved on that basis
because no court will grant an unlawful order.
Chamunorwa Chingwe, a law student at the Zimbabwe Ezekiel
Guti University, early this month approached the High Court after hearing that
the JSC was carrying out consultations to appoint Supreme Court judges, but
would only consider sitting justices of the High Court.
Chingwe wanted to interdict the JSC, President Mnangagwa
and the Minister of Justice, Legal and Parliamentary Affairs, all cited as
respondents, from proceeding with the appointment of Supreme Court judges
without following the process that would allow all those qualified under the
Constitution, which would include senior lawyers to be considered as well.
Through his legal counsel, Chingwe argued that the
selection process must abide by the statutes which allow for the appointment of
any man or woman who meets the requirements set out under Section 178 of the
Constitution, but he failed in his papers to disclose a legally supportable
cause of action.
Dismissing the matter, Justice Tawanda Chitapi ruled that
the order sought was incompetent, finding that Chingwe acted precipitately in
filing the application because the court was legally incompetent to order how
the JSC, the President and the minister were supposed to carry out their
function.
He had sought to prescribe to the appointing authority how
the right to appoint judges in terms of subsection (4a) of section 180 of the
Constitution should be carried out, but could not state the source of the
prescribed steps.
“The court is not empowered in terms of the Constitution to
prescribe how the appointing authority must carry out the process of
appointment of Supreme and Constitutional Court judges using the recommendation
methods,” said Justice Chitapi.
“If the courts were to do so, the exercise and decision
thereon would be unlawful. The court can only at best review a process which
has been carried out by the appointing authority on review where grounds for
such review are advanced. The court would have a right to review the actions
done after the event.”
Justice Chitapi also noted that the judges have already
been appointed, hence, the application was overtaken by events to warrant
intervention.
However, Chingwe persisted with the application arguing
that the respondents could still make further appointments in terms of the
invocation of a process which he impugned.
But in the judge’s view, the appointments made would have
to be considered insofar as they impact on the application on the findings made
on the incompetence of the relief sought.
Zimbabwe has followed the lead of most other jurisdictions
and has always appointed appeal judges from the ranks for the more experienced
trial changes.
While constitutions have suggested that appeal judges can
come from outside the ranks of the judiciary, no one has ever reached the
Supreme Court bench except by way of the High Court bench.
For the first Constitutional Court bench applications were
called for and interviews held. But in the end the entire bench came from the
ranks of the more experienced Supreme Court judges, and their replacements came
from ranks of the more experienced High Court judges. Herald
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