This is an appeal against the whole judgment of the High Court (court a quo). The suspension from office of the appellant led to a flurry of court applications in the court a quo. This is just one of them in which the court a quo dismissed the appellant's application.
The application was made in terms of section 4 of the Administrative Justice Act [Chapter 10:28] ('the Act') on the basis that the respondents had failed to comply with the provisions of section 3(1)(a) of the Administration Justice Act.
BACKGROUND FACTS
The appellant is a former judge of the Supreme Court of Zimbabwe having been dismissed from office by the sixth respondent (the President of Zimbabwe).
The first respondent (Judicial Service Commission) is a body corporate established in terms of section 189 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 ('the Constitution').
The second respondent (Simbi Mubako) (being the Chairperson), third and fourth respondents (Rekayi Maphosa and Takawira Nzombe) (being members), constituted a Tribunal appointed by the President of the Republic of Zimbabwe in terms of section 187(3) of the Constitution. The Tribunal was set up to inquire into the removal of the appellant from the office of a judge.
The fifth respondent (Virginia Mabhiza) was the Secretary of the Tribunal and is the Permanent Secretary of the Ministry of Justice, Legal and Parliamentary Affairs. She is also the coordinator of the Special Anti-Corruption Unit in the Office of the President.
The sixth respondent is the President of Zimbabwe (the President) and the seventh respondent is the Minister of Justice, Legal and Parliamentary Affairs.
The Tribunal has since completed its mandate and is no longer in existence.
On 17 March 2020, the President, acting in terms of section 187(4) of the Constitution of Zimbabwe 2013 issued, in a Zimbabwean Government Gazette Extraordinary Proclamation 1 of 2020 Statutory Instrument 70 of 2020, in which, amongst other things, he established a Tribunal to investigate the question of removing the appellant from the office of a judge. The Tribunal's terms of reference were set out as follows:
“(i) To investigate into the matter of the removal from office of Honourable Justice Francis Bere JA;
(ii) To investigate into the matter of Honourable Justice Bere's conduct, whether it can be deemed to have been tantamount to gross misconduct;
(iii) To investigate whether the Honourable Judge conducted himself or presided over matters where there was conflict of interest;
(iv) To investigate any other matter which the Tribunal may deem appropriate and relevant to the enquiry;
(v) To consider all information submitted by the Judicial Service Commission and any other relevant information in order to arrive at an appropriate recommendation to the President;
(vi) To recommend to the President whether or not the Honourable Judge should be removed from office in terms of section 187 of the Constitution; and
(vii) To report to the President, in writing, the result of the inquiry within a period of five (5) months from the date of swearing in of the members.”
On 13 May 2020, following the publication of Proclamation 1 of 2020, SI70 of 2020 the appellant made an application in terms of section 4 of the Administrative Justice Act (the Act) before the court a quo.
The application was made on the allegation, that, the first respondent failed to comply with section 3(1)(a) of the Administrative Justice Act in that it failed to “act lawfully, reasonably, and in a fair manner” in advising the President to set up a Tribunal to investigate the appellant.
In making the application, it was the appellant's complaint, that, by letter dated 3 March 2020, he was suspended from the office of a judge pending the determination of the question of his removal from office by a three member Tribunal appointed by the President.
The appellant further averred, that, the suspension was preceded by a letter addressed to him by the Acting Secretary of the first respondent dated 28 February 2020. In the letter, the appellant was informed, that, at a meeting held on 13 December 2019, the first respondent had resolved to advise the President to consider the appointment of a tribunal to conduct and further investigate him for alleged misconduct.
The appellant raised five grounds, asserting that the first respondent failed to comply with section 3(1)(a) of the Administrative Justice Act:
(i) Firstly, it was his averment that the first respondent had no jurisdictional grounds for referring the matter to the President.
(ii) Secondly, the appellant averred that there was gross irregularity in the referral by the first respondent as it failed to accord him the right to be heard.
(iii) Thirdly, he asserted, that, at the time the first respondent made its decision to refer the matter to the President it had become functus officio as it had previously made a determination on the matter exonerating him of any wrongdoing.
(iv) Fourthly, that the first respondent, in making its decision, was not properly constituted as it lacked a proper quorum.
(v) Finally, that the fifth respondent was biased as she was the person who referred the complaint which was made by Mr Moxon (Moxon) to the first respondent. It was thus argued, that, as a secretary to the Tribunal, she was a judge in her own cause.
The second, third, fourth and seventh respondents (Simbi Mubako, Rekayi Maphosa, Takawira Nzombe and Minister of Justice, Legal and Parliamentary Affairs) submitted that they had no interest in the outcome of the application and would abide by the court's decision.
The President maintained that he was simply fulfilling his constitutional obligation when he appointed the Tribunal upon the recommendation of the first respondent.
The fifth respondent (Virginia Mabhiza) submitted that she was acting in her official capacity as a Permanent Secretary, Co-ordinator of the Special Anti-Corruption Unit in the office of the President and as Secretary of the Tribunal set up by the President. She stated that she received correspondence from Moxon wherein he complained about the manner in which the appellant had handled his case which was before him. She thereafter referred the complaint against the appellant to the first respondent.
She further stated, that, before receiving the complaint from Moxon, she had been made aware of allegations of improper conduct against the appellant by Mr Ndudzo, a legal practitioner from Mutamangira and Associates, and she duly included the two incidents in her referral letter to the first respondent and the Chief Justice of Zimbabwe.
In denying that she was conflicted, the fifth respondent maintained that she had no personal interest in the matter and was only carrying out her duties.
At the commencement of the proceedings, the first respondent (Judicial Service Commission) raised two preliminary points:
(i) It was submitted on behalf of the first respondent that the court a quo had no jurisdiction to review the constitutional powers vested in the President if he decides to appoint a Tribunal in terms of section 187 of the Constitution.
(ii) Secondly, that the matter was lis alibi pendens as a similar application under HC2162/20 had already been made by the appellant.
On the merits of the matter, the first respondent averred that it acted lawfully, reasonably, and in a fair manner in respect of the advice it gave to the sixth respondent (the President) in terms of section 187(3) of the Constitution.
The first respondent maintained, that, the appellant was availed an opportunity to respond to the allegations made against him and he duly did so in writing.
Further, that the decision to refer the appellant's matter to the President was made by a properly constituted Board of its Commissioners. The first respondent also averred that the onus to prove the purported allegation of an improperly constituted quorum lay with the appellant.
The appellant, in turn, raised a preliminary point to the effect, that, the deponent of the first respondent's opposing affidavit, Mr Chikwana (the first respondent's Acting Secretary), lacked authority to act on behalf of the first respondent.
The appellant averred, that, on the authority of the case of Francis Bere v Judicial Service Commission and Ors HH269-20 the court had already found, that, since it is the first respondent which has the constitutional duty to advise the President on the question of removal of a judge from office it could not delegate the function of defending that decision in a court of law to its Acting Secretary.
DETERMINATION BY THE COURT A QUO
The court a quo, in a well-reasoned judgment, dismissed the appellant's preliminary point. The court found, that, in light of the first respondent's Board resolution authorizing Mr Chikwana to do so, he could properly act on its behalf.
The court also dismissed the preliminary point taken by the first respondent that the matter before it was lis alibi pendens. The court reasoned, that, lis alibi pendens was not an absolute bar to a determination of the matter. The court thus dismissed the point as it did not dispose of the matter.
The court also declined to deal with the part that the court had no powers to review the Constitutional powers vested in the President as it reasoned that the issue was on the merits and was not a preliminary part.
On the merits of the matter, the court a quo held, that, on the point that there was no quorum at the first respondent's meeting of 13 December 2019, the appellant had made bare allegations without supporting affidavits of those present at the meeting and without attaching minutes of the meeting to show that there was no quorum. The court a quo further held, that, the first respondent had no obligation to assist the appellant in proving his allegation.
With regards to the issue of whether the first respondent was functus officio and could not reverse its decision of 21 November 2019, wherein it had purportedly found the appellant not guilty of misconduct, the court a quo found, that, the appellant failed to substantiate his allegations. It found that he did not support his averment that he had received a phone call from the first respondent's Deputy Acting Secretary informing him that a decision had been taken to exonerate him. The court noted that the appellant ought to have either produced minutes of the alleged meeting of 21 November 2019 or filed a supporting affidavit from the Deputy Acting Secretary.
The court a quo also found, on the issue of the alleged violation of the appellant's audi alteram partem rule that the appellant was given an opportunity to respond to the allegations made against him. The court noted that the exchange of correspondences between the first respondent and the appellant was sufficient. Thus, the court found that the appellant's right to be heard had not been violated.
Concerning the absence of jurisdictional facts to ground the first respondent's decision to advise the President, the court noted, that, it was not sitting as an Appeal Court to determine the correctness of the first respondent's decision to refer the appellant's matter to the President.
Rather, it was being called upon to decide whether any of the jurisdictional grounds for removal of a judge were disclosed in the first respondent's papers.
The court noted, that, section 187(1)(c) of the Constitution provides for gross misconduct as one of the jurisdictional grounds for the removal of a judge from office and that is what was averred in the papers to the President.
The court, however, concluded that whether or not there was gross misconduct on the part of the appellant was not an issue to be determined by it as the terms of the Tribunal, set up by the President, covered that aspect. It was therefore left for that Tribunal to determine the guilt or otherwise of the appellant.
In accordance with the above findings, the court a quo dismissed the application with an order that the appellant pays the first respondent's costs.
Aggrieved by the decision of the court a quo, the appellant noted an appeal on the following grounds:
“1. The court a quo erred in law in not upholding the appellant's point in limine, namely, that, that (sic) the 1st Respondent was not properly before the court as the deponent to its opposing affidavit was prohibited by the Constitution of Zimbabwe from representing the 1st Respondent in an application brought by a judge pursuant to section 187(3) of the aforesaid Constitution.
2. The court a quo erred in law in not finding that the 1st Respondent had no quorum at its meeting of 13th December 2019, and, consequently, erred in not finding that the 1st Respondent's advice to the 6th Respondent, pursuant to section 187(3) of the Constitution, was a nullity.
3. The court a quo erred in law in not finding, that, at the meeting of 13th December 2019, the 1st Respondent was already functus officio in respect of the complaints raised against the appellant and consequently erred in not finding that the 1st Respondent's advice to the 6th Respondent, pursuant to section 187(3) of the Constitution, was a nullity.
4. The court a quo erred in law in not finding that there had been a breach of the audi alteram partem rule in respect of the 1st Respondent's handling of complaints against the appellant at its meeting on 13th December 2019 and consequently erred in not finding that the 1st Respondent's advice to the 6th Respondent, pursuant to section 187(3) of the Constitution, was a nullity.
5. The court a quo erred in law in finding that the court had no jurisdiction to determine the existence or otherwise of the jurisdictional facts under section 187(1) of the Constitution and grounding the 1st Respondent's advice to the 6th Respondent in respect of complaints against the appellant pursuant to section 187(3) of the Constitution.”
SUBMISSIONS BEFORE THIS COURT
At the hearing, the first respondent raised a point in limine to the effect that the matter before the court had become moot.
The point was taken on the basis that the appellant had already been removed from the office of a judge following the findings of gross misconduct by the Tribunal appointed by the President.
Counsel for the first respondent…, submitted that the appeal had become moot arising from the fact that the appellant's appeal was predicated on his suspension from office. He argued that this position had since been overtaken by events.
He further submitted, that, the relief sought by the appellant, intending to set aside the decision by the first respondent to refer the complaint against the appellant to the President, under section 187(3) of the Constitution, would result in a brutum fulmen.
Counsel further argued, that, in light of the Proclamation removing the appellant from the office of a judge, the work of the Tribunal had been completed, the dismissal of the appellant was final, and, as such, the appeal was devoid of merit.
In opposition, counsel for the appellant…, argued that the matter was not moot as there was a live controversy which required the Court's determination.
Counsel submitted that the live issue related to whether or not the decision of the first respondent to advise the President, in terms of section 187(3) of the Constitution, was valid.
It was counsel's submission that this was a live issue which had to be determined by the court as it affected whether or not the appellant was lawfully removed from office.
Counsel further argued, that, in any event, even if the matter is moot, this Court has a discretion to hear the matter.
Counsel thus prayed for the dismissal of the preliminary point.
On the merits of the matter, counsel for the appellant submitted, that, the Acting Secretary for the first respondent had no authority to depose to the opposing affidavit. Counsel argued, that, the court in HH269-20 had already determined that the Acting Secretary could not so act. The court a quo could not make a contrary finding that Mr Chikwana had authority to act on behalf of the first respondent.
Counsel also submitted, that, the quorum recommending that the complaint against the appellant be referred to the President was not properly constituted.
Counsel further submitted, that, the appellant was not afforded the right to be heard in terms of the audi alteram partem rule as he was not given an opportunity to respond to the letter written by Mr Ndudzo.
Counsel argued, that, the first respondent lacked the jurisdiction to refer the matter to the President without first conducting an internal hearing of its own.
Lastly, it was counsel's argument that each party should bear its own costs owing to the reason that the issues raised in the appeal were fundamentally important.
Per contra, counsel for the first respondent argued, that, the court a quo did not err in finding that the first respondent's Acting Secretary could depose to the opposing affidavit as he acted merely as an agent of the first respondent and he could swear positively to the facts as he sat in its meetings.
Counsel further argued, that, the appellant had been afforded his right to be heard as he had been given an opportunity to reply, in writing, to the complaints levelled against him as well as an opportunity to be heard by the tribunal which right he opted not to exercise by walking out of the hearing.
Counsel submitted, that, in terms of section 187(3) of the Constitution, the first respondent was within its rights and had an obligation to refer the matter to the President.
He further argued, that, the onus rested squarely on the appellant to prove his assertion that the first respondent's quorum was not properly constituted.
Counsel was not opposed to the prayer that each party bears its own costs.
Counsel for the second to seventh respondents…, submitted that none of the appellant's grounds of appeal impugned the actions of the second to seventh respondents.
Counsel submitted, that, the President was within his constitutional mandate in appointing a Tribunal to investigate the appellant's alleged acts of misconduct. Counsel thus submitted, that, the Tribunal correctly investigated the matter and made recommendations to the President. It was his argument that the President correctly acted upon those recommendations in terms of his constitutional powers....,.
The appellant's grounds of appeal raise four broad issues for determination which are as follows:
(i) Whether or not the court a quo erred in finding that the first respondent's Acting Secretary could depose to its opposing affidavit and act on its behalf.
(ii) Whether or not the appellant failed to prove that there was no quorum at the first respondent's meeting of 13 December 2019.
(iii) Whether the first respondent was functus officio as it is alleged to have reversed its decision of 21 November 2019.
(iv) Whether or not the appellant's right to be heard was violated.
I will deal with each of these issues in turn....,.
The facts of these two issues are interlinked so it is expedient to deal with them together.
The appellant's application for review was dismissed on the basis that he failed to prove that the first respondent did not have a proper quorum at the first respondent's meeting of 13 December 2019 and that at that meeting the first respondent had become functus officio as it had already made a decision on 21 November 2019 exonerating the appellant.
It was the appellant's argument a quo, and before this Court, that, at the meeting of 13 December 2019, where the decision to refer the appellant's matter to the President was reached, there was no quorum and thus an invalid resolution was passed.
The appellant made the allegation in his founding affidavit before the court a quo but did not produce any evidence to substantiate the allegation.
The court a quo found, that, the appellant could not make bare allegations without producing either the minutes of the meeting or a supporting affidavit from a Commissioner of the first respondent who was present or absent on that day.
A reading of the appellant's founding affidavit shows that he made the allegations based on what he termed “reliably informed” information without producing an iota of evidence to substantiate the claim.
The appellant further alleged, that, at a meeting on 21 November 2019, he was exonerated from all allegations against him and that he was informed, through a telephone call, of the news by the first respondent's Acting Deputy Secretary, Mr Msipa.
It was on this basis that the appellant argued that the first respondent was functus officio at the time it made the decision to refer his matter to the President on 13 December 2019.
It is common cause that Mr Msipa has not left the employ of the first respondent. The appellant could, and should, have approached him for a supporting affidavit in this regard.
