Justice Ndewere’s appeal follows the refusal by the High
Court to entertain her application for review, especially considering that
President Mnangagwa’s action, in terms of the Constitution, completed the
process of the judge’s removal from the bench.
A three-member tribunal chaired by retired judge Justice
Simbi Mubako, made recommendations for the judge’s removal from the bench for
gross incompetence, following an inquiry into her suitability to hold a
judicial office.
In her appeal, Ndewere listed as respondents President
Mnangagwa, Justice Mubako and the two other members of the tribunal, Advocate
Charles Warara and Ms Yvonne Masvora.
The Supreme Court last week knocked down Justice Ndewere’s
arguments that the High Court erred in its findings, and dismissed the appeal
with costs.
Writing the judgment for the court, Justice Nicholas
Mathonsi noted that Justice Ndewere’s legal theories were not in line with the
actual law to overturn the High Court’s decision.
The Supreme Court agreed that no valid argument was
presented that would have given jurisdiction to the High Court to set aside the
President’s final decision after seeing the recommendations of the tribunal.
“Once it is accepted that the court a quo would not have
had complete jurisdiction over the application that was before it, this appeal
cannot succeed,” said Justice Mathonsi.
In the present case, Ndewere’s appeal was confined to the
question of the High Court’s findings on its lack of jurisdiction and Justice
Mathonsi noted that the High Court did not exercise jurisdiction which it did
not have on the merits of the application, which would have changed the
validity of the latest appeal.
“It stuck to the jurisdictional issue which it could
lawfully determine,” said the judge.
“In turn, the appeal against the finding as to jurisdiction
is valid. Having found that, indeed, the court had no jurisdiction, this appeal
cannot be allowed. It must accordingly fail and as such the appropriate order
is the dismissal of the appeal.”
Justice Ndewere was fired over gross misconduct in the
performance of her duties, including failure to clear her workload in
reasonable time and failure to properly study the file on a thief’s conviction
and sentence when she set aside a jail term.
She had denied the charges against her claiming that Chief
Justice Luke Malaba was pursuing her after she defied his unlawful orders.
She even made several unsuccessful applications to quash
the inquiry, including contesting the legality of the tribunal appointed to
probe her suitability to continue in office after she openly accused the head
of the Judiciary of employing double standards.
The Constitution provides that a judge may be removed from
office for inability to perform the functions of their office, due to mental or
physical incapacity, or gross incompetence, or gross misconduct, but only after
a complex process that starts with the Judicial Service Commission recommending
that the President sets up a tribunal, which has to be high powered legally and
chaired by a retired judge, and then that tribunal recommending removal from
the bench. Herald
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