Introduction
This judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.
Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.
Both applications are opposed by some of the respondents.
Opposing papers, answering affidavits, and heads of argument were filed following a case management meeting with the parties representatives at which the dates for filing the papers were set by consent.
In case no. HC2128/21 the applicant, a legal practitioner and director of the Zimbabwe Human Rights NGO Forum, cited the Minister of Justice, Legal and Parliamentary Affairs, and all the judges of the Constitutional Court and Supreme Court as well as some of the judges of the High Court, on the basis that they are acting judges of the Supreme Court or have been called upon to act as such.
The judges were cited in official capacities.
The Judicial Service Commission (JSC) was joined in the proceedings, at its instance, at the case management conference.
In HC2166/21 the respondents cited are the Judicial Service Commission (JSC), the Chief Justice of Zimbabwe, Honourable Luke Malaba N.O. and the Attorney General N.O. The applicants in that case are Young Lawyers Association of Zimbabwe and Frederick Charles Moses Mutanda, a liberation war veteran.
Background
On 7 May 2021, the Constitution of Zimbabwe Amendment (No.2) Act 2021 became law after being assented to by the President. The contentious aspects of the Amendment Act which are the subject of the instant applications are found in its section 13.
That section repealed section 186 of the Constitution 2013 and substituted it with a new section 186.
Upon gathering that section 186 of the Constitution, introduced by the Amendment, would apply to the second to eighteenth respondents (Luke Malaba, Elizabeth Gwaunza, Paddington Garwe, Rita Makarau, Anne-Mary Gowora, Ben Hlatshwayo, Bharat Patel, Antonia Guvava, Susan Mavangira, Chinembiri Energy Bhunu, Tendai Uchena, Nicholas Mathonsi, Charles Hungwe, Felistus Chatukuta, Alfas Chitakunye, Samuel Kudya and Lavender Makoni) the applicants instituted the two applications. The applicant in Case No. HC2128/21 seeks the following relief:
“IT IS DECLARED THAT:
1. In accordance with provisions of sections 186(1)(a) and 186(2) (of the Constitution of Zimbabwe 2013) in their original form and notwithstanding provisions of Constitutional Amendment Number 2, second to eighteenth respondents hold office they reach the age of seventy years, whereupon they must, by operation of law, retire.
2.The attempt to subvert the position encapsulated in the "original" section 186(1)(a) and 186(2) of the Constitution of Zimbabwe 2013 is contrary to law and therefore in breach of applicant's right to the protection of the law as set out in section 56(1) of the Constitution of Zimbabwe 2013.
IT IS CONSEQUENTLY ORDERED THAT:
3. LUKE MALABA, must or did, at midnight on 15 May 2021, cease to hold the office of CHIEF JUSTICE OF ZIMBABWE.
4. Any action, conduct, or deed of LUKE MALABA post the 15th of May 2021, purportedly as CHIEF JUSTICE OF ZIMBABWE, is null and void and of no effect.
5. ln accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, ELIZABETH GWAUNZA became/becomes the ACTING CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive CHIEF JUSTICE OF ZIMBABWE is appointed.
6. In accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, PADDINGTON GARWE became/becomes the ACTING DEPUTY CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive DEPUTY CHIEF JUSTICE OF ZIMBABWE is appointed.
7.There shall be no order as to costs."
During argument, counsel for the applicant abandoned the relief sought in paragraph 6 of the draft order and moved that the draft be amended accordingly.
We point out, that, notwithstanding the statement suggesting that what is being sought in paragraphs 3-7 of the draft order is consequential relief, the relief is clearly in the form of a declaration.
The second to eighteenth respondents did not file opposing papers.
They will therefore be taken not to have opposed the application: see Prosser & 35 Others v Ziscosteel Company Ltd HH201-93 and Panganai and 20 Others v Kadir & Sons (Pvt) Ltd HH26-95.
We do not accept the submission by their counsel that they oppose the application without filing opposing papers. This is because the directions issued on 12 May 2021 required the respondents to file opposing papers if they were opposing the application. Their grounds of opposition would have to be contained in the opposing affidavits.
ln Case No. HC2166/21 the applicant sought declaratory relief as follows:
“IT IS DECLARED THAT:
1. The first respondent (Judicial Service Commission) in failing to activate the provisions of section 180 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 and/or the provisions of section 180 of the Constitution of Zimbabwe as amended by Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) diligently and without delay violated section 324 of the Constitution of Zimbabwe as amended.
2. The second respondent (Chief Justice Luke Malaba) cannot, by virtue of section 328(7) of the Constitution of Zimbabwe, as amended, benefit from the term limit extension as introduced by an amendment of section 186 by the Constitution of Zimbabwe Amendment (No.2) Act 2021.
3. As a consequence of 2 above, the second respondent shall vacate office as the Chief Justice of Zimbabwe on (sic) midnight of 15 May 2021.
4. Any action, conduct, act, or deed of second respondent post the 15th of May 2021, purportedly as Chief Justice of Zimbabwe, is null and void and of no force or effect.
5. Any attempt to continue in office by second Respondent as Chief Justice of Zimbabwe and/or any continuation in office by second respondent, purportedly as Chief Justice of Zimbabwe, violates applicants right of access to a court of law established by law and applicants right to protection of the law in accordance with section 69(4) and section 56(1) of the Constitution 2013 as amended.
6. The second respondent, in any event, can no longer be a judge of the Constitutional Court for more than 15 years in violation of section 186(1) of the Constitution 2013 as amended.
7. ln the alternative, section 14 of the Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) is invalid for violating section 56(3) of the Constitution 2013 and is accordingly struck down.
8. There shall be no order as to costs."
The relief set out in the first paragraph was not persisted with as it was predicated upon a misreading of the Constitutional provisions pertaining to the appointment of a Chief Justice in Zimbabwe.
The applicants were under the mistaken belief that the first respondent, the Judicial Service Commission (JSC) had the mandate to call for candidates to participate in an interview.
Section 180 of the Constitution provides that the Chief Justice is appointed by the President after consultation with the Judicial Service Commission (JSC).
The relief sought in paragraphs 2, 3, 4 and 5 is the same one being sought by the applicant in HC2128/21 save for the reference to section 69(4) of the Constitution.
The relief sought in paragraph 6 of the draft order was abandoned during argument. Also, the applicant did not make any submissions in support of the alternative relief being sought in paragraph 7 of the draft order.
We take it that this relief, seeking the declaration of invalidity in respect of section 13 (which was incorrectly referred to as section 14) of the Constitution of Zimbabwe Amendment (No.2) Act 2021, is not being persisted with....,.
Before dealing with the substance of the matter, it is important to advert to two issues. These issues arise from the submissions made on behalf of the respondents by the legal practitioners representing them as well as from the affidavit of the Attorney-General:
(i) The first one is the suggestion that judges are employees of the Judicial Service Commission (JSC), the nineteenth (19th) respondent in HC2128/21 and first (1st) respondent in HC2166/21.
That is a misapprehension of the Constitutional position.
Judges are not employees but are Constitutional appointees. They are appointed by the President in terms of the Constitution....,.
There can be no question that judges occupy public office.
