This is an application lodged in terms of Rule 32 of the Constitutional Court Rules 2016, for leave to appeal against the whole judgment of the Supreme Court (the court a quo) handed down on 14 January 2022 as Judgment SC01-22.
The decision of the court a quo had dismissed the applicant's appeal against the judgment of the High Court in Case No. HC2302/20.
The Background
The applicant is a former judge of the Supreme Court. He has cited seven respondents in all. The first respondent is the Judicial Service Commission. The second, third, and fourth respondents (Simbi Veke Mubako, Rekayi Maposa and Takawira Nzombe) were the members of a Tribunal that was established to inquire into the question of the applicant's removal from judicial office. The fifth respondent (Virginia Mabhiza) was the Secretary of that Tribunal. The sixth respondent is the President of Zimbabwe, while the seventh respondent is the Minister of Justice, Legal and Parliamentary Affairs.
Both the sixth and seventh respondents are cited in their official capacities.
On 3 March 2020, the applicant was suspended from judicial office following the appointment of the aforementioned Tribunal by the sixth respondent (hereinafter “the President”). The Tribunal was established to consider the applicant's suitability to hold the office of a judge. The suspension was pursuant to a resolution by the first respondent (hereinafter “the JSC”) made on 13 December 2019 to refer the question of his removal from office to the President.
The applicant was dissatisfied with the manner in which his case had been referred to the President.
Consequently, on 13 May 2020, he filed an application in terms of section 4 of the Administrative Justice Act [Chapter 10:28] alleging, that, the Judicial Service Commission (JSC) had failed to comply with section 3(1)(a) of the Administrative Justice Act by failing to act lawfully, reasonably, and in a fair manner when it gave advice to the President, in terms of section 187(3) of the Constitution.
The High Court dismissed the application before it with costs in favour of the Judicial Service Commission (JSC). The court found that the question of the applicant's alleged gross misconduct was a matter for the Tribunal to determine.
On appeal to the Supreme Court, the applicant raised five grounds of appeal, which are largely replicated in the intended grounds of appeal to this Court in the event that the instant application for leave to appeal is granted.
The Supreme Court upheld the finding of the High Court, that, the deponent to the Judicial Service Commission's opposing affidavit was lawfully authorised to do so. The court a quo also upheld the finding of the High Court, that, the applicant had failed to prove that the JSC was inquorate and functus officio at its meeting held on 13 December 2019. Lastly, the court held, that, the applicant's right to be heard had not been violated.
In the event, the court dismissed the applicant's appeal with no order as to costs.
The intended appeal before this Court is predicated on the assertion, that, the court a quo erred by avoiding an in-depth determination of various constitutional issues before it, despite having been alive to those issues.
The applicant accordingly asserts, that, the question of whether or not there was a constitutional matter before the court a quo must be answered in the affirmative. He further avers that the intended appeal to this Court does enjoy prospects of success.
The intended grounds of appeal
As paraphrased, the intended five grounds of appeal asseverate that the court a quo erred and thereby misdirected itself in the following respects:
(i) In determining that the appeal was moot when the challenge to the referral by the Judicial Service Commission (JSC), under section 187(3) of the Constitution, was that it was unconstitutional.
(ii) In not finding, that, any person who was not a member of the Judicial Service Commission (JSC) was prohibited from representing it in any application pursuant to section 187(3), and, consequently, in not finding that the JSC was not properly before the High Court.
(iii) In not finding that section 344 of the Constitution places the onus to prove that it had a quorum on the Judicial Service Commission (JSC) and not on the appellant.
(iv) In not finding that section 187(3) of the Constitution requires the Judicial Service Commission (JSC) to grant a judge the full scope of the audi alteram partem rule before sending its advice to the President.
(v) In not finding that the Judicial Service Commission (JSC) is required to determine the existence or otherwise of the jurisdictional facts under section 187(3) before sending its advice to the President.
The applicant avers that the foregoing grounds of appeal enjoy prospects of success for a number of reasons:
(i) As regards the first ground, he contends, that, mootness does not arise when a thing is void for being unconstitutional.
(ii) On the second ground, he states, that, the Constitution does not permit the Judicial Service Commission (JSC) to delegate to its Secretary the critically important duty of defending in court its advice to the President under section 187(3) of the Constitution.
(iii) With respect to the third ground, he argues, that, section 344 of the Constitution would be undermined if a constitutional body is not obliged to prove that it had a quorum and that the independence of the judiciary would be threatened by the possibility of an inquorate Judicial Service Commission (JSC) proceeding in terms of section 187(3) of the Constitution.
In relation to the fourth and fifth grounds, he avers, that, a rigorous process preceding the tendering of advice in terms of section 187(3) of the Constitution requires the full scope of the audi alteram partem rule and a finding by the Judicial Service Commission (JSC) on the existence of the jurisdictional facts contemplated in section 187(1) of the Constitution.
(iv) Lastly, the applicant asserts, that, the intended appeal is of public importance because it is central to the independence of the judiciary. He contends, that, the position of this Court on the issues raised will clarify the law and protect the Constitution.
In the premises, he prays for an order for leave to appeal to be granted.
The Judicial Service Commission (JSC), through an affidavit deposed to by its Secretary, firmly opposes the instant application.
It denies that there are any constitutional issues or matters to be decided as contemplated by Rule 32(2) of the Rules. It also asserts, that, the issues that were before the court a quo were resolved on non-constitutional bases. It further disputes the argument, that, it is in the public interest to grant leave to appeal. It is contended that the application does not satisfy the requirements for leave to appeal under Rule 32 of the Constitutional Court Rules.
The sixth and seventh respondents (President of Zimbabwe and the Minister of Justice, Legal and Parliamentary Affairs) also oppose the application through an affidavit deposed to by the seventh respondent.
In essence, it is averred, that, the court a quo did not decide any constitutional matter. Consequently, it is argued that the applicant has failed to show that his application has any prospects of success.
Both respondents pray that the application be dismissed with costs....,.
Matter of Public Importance
Counsel for the applicant entreats the Court to consider an additional factor, to wit, whether the matter is one of general public importance.
Relying on Radio Pretoria v Chairperson, Independent Communications Authority of South Africa & Anor 2005 (4) SA 319 (CC)…, he submits, that, in appropriate circumstances, the interest of justice requires the Court to decide a constitutional matter for the benefit of the broader public or to achieve legal certainty or for some other public purpose, even if the decision is of no practical value to the litigants involved.
He further submits, that, the issues to be raised in the intended appeal, being anchored on the independence of the judiciary, in particular, the tenure of office of judges, ought to be authoritatively determined by this Court in the public interest.
The removability of judges, so he argues, must impact on the grounds of appeal in casu and on the request for leave to appeal to this Court.
He cites in this respect the United Nations Basic Principles on the Judiciary (1985), the Bangalore Principles of Judicial Conduct (2002) and The Appointment, Tenure and Removal of Judges under Commonwealth Principles (2015). For all of these reasons, he urges this Court to tilt in favour of granting leave to appeal.
I fully endorse the view, that, questions pertaining to the tenure and removal of judges from office are vital to the independence of the judiciary. That independence constitutes the cornerstone of every constitutional democracy. In this context, the security of judicial tenure is to be jealously guarded and should not be derogated from except in the clearest circumstances.
It is undoubtedly a matter of considerable public importance.
Nevertheless, the adjudication of any such question must be inextricably linked to the determination of a constitutional matter. Without that critical component, it would be procedurally improper to invoke and activate the jurisdictional competence of this Court to review the judgment of any subordinate court.
In the present context, having concluded that there was no constitutional issue properly raised or determined in the High Court or the Supreme Court, it is extremely difficult to tilt the balance in favour of granting leave to appeal to the full bench of the Court on the sole basis that the case raises questions of general public importance. To do so would open the floodgates to a multitude of cases that are of obvious public importance but which fall outside the jurisdictional remit of this Court.
For this additional reason, I am unable to accede to the grant of leave to appeal in the present case....,.
Moreover, even though the sacrosanctity of judicial independence, quite properly espoused by the applicant, is a matter of general public importance, I am of the considered opinion that it would not be in the interests of justice to grant leave to appeal in the instant case.
