This is an application for review of the Judicial Service Commission's decision to advise the President that the question of removing the applicant from the office of a judge ought to be investigated.The applicant is a judge of the Supreme Court and the Constitutional Court of the Republic of Zimbabwe.The ...
This is an application for review of the Judicial Service Commission's decision to advise the President that the question of removing the applicant from the office of a judge ought to be investigated.
The applicant is a judge of the Supreme Court and the Constitutional Court of the Republic of Zimbabwe.
The first respondent, the Judicial Service Commission (JSC) is a corporate body established in terms of section 189 of the Constitution of Zimbabwe Amendment (No.20) Act 2013.
The second, third and fourth respondents are the members of the tribunal appointed by the President to enquire into the question of the removal of the Judge from office.
The fifth respondent is the Permanent Secretary of the Ministry of Justice Legal and Parliamentary Affairs, the Co-ordinator of the Special Anti-Corruption Unit in the Office of the President as well as the Secretary of the Tribunal.
The sixth, seventh and eighth respondents are the President of the Republic of Zimbabwe (the President), the Minister of Justice, Legal and Parliamentary Affairs (the Minister) and the Attorney General of Zimbabwe (the AG) respectively.
As an administrative authority, the Judicial Service Commission (JSC) has a responsibility to take administrative action which may affect the rights, interests or legitimate expectations of any person. In so doing, section 3(1)(a) of the Administrative Justice Act [Chapter 10:23] (AJA) enjoins the JSC to act lawfully, reasonably, and in a fair manner.
On 13 December 2019, the Judicial Service Commission (JSC) held an extraordinary meeting. It resolved at that meeting to advise the President that the question of removing the applicant from the office of a judge ought to be investigated. The JSC addressed a letter to the President tendering the advice.
As his obligation, in terms of section 187(3) of the Constitution, the President appointed a 3 member Tribunal to enquire into the matter. As already indicated, the members are the second to fourth respondents, with the fifth respondent as its Secretary.
In the Zimbabwean Government Gazette Extraordinary dated 17 March 2020, the President made Proclamation 1 of 2020 which was published as Statutory Instrument 70 of 2020, SI70 of 2020 wherein, among other things, he established the Tribunal, appointed its members, Secretary, and set out the Tribunal's terms of reference.
The applicant is aggrieved by the Judicial Service Commission's decision to advise the President that the question of removing the former from the office of a judge ought to be investigated.
Acting in terms of section 4(1) of the Administrative Justice Act, the applicant has applied to this court, on review, to set aside the Judicial Service Commission's decision on the basis that it failed to act lawfully, reasonably, and fairly in coming up with the decision to advise the President. In other words, the applicant takes issue with the procedure adopted by the Judicial Service Commission (JSC) in coming up with that decision.
He also seeks certain consequential relief.
I pause to set out the Tribunal's terms of reference. They are:
“(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.”
The grounds on which the application for review is based are:
“1. The absence of any of the three jurisdictional grounds for the removal of Judge prescribed under section 187(1) of the Constitution and the incontrovertible facts and circumstances upon which this would be founded;
2. The absence of specificity and lack of particularity of the exact nature of the conduct, the identity of a complainant, and the prejudice or quid pro quo to confirm the nature and gravity of the case;
3. An objection to the appointment of the Permanent Secretary, as secretary of the Tribunal, on the grounds and basis that she was an actor in the process leading to the applicant's suspension and the establishment of the Tribunal, something which gives credence to the applicant's contention that the decision to refer his matter to the President was completely unreasonable;
4. There is no prima facie material that has been alluded to in the Proclamation that would form the basis for a referral of a matter involving a senior Judge;
5. Gross irregularity in that the JSC, having procedurally decided to take a second bite at the cherry, failed to afford applicant the right to be heard in relation to the subsequent reply from Mr Ndudzo, at or before its purported meeting of 13 December 2019 in violation of the audi alteram partem rule;
6. The JSC, having reached a decision on the subject matter from the same basis and circumstances on 21 November 2019, and having communicated this to the applicant, could not revisit the matter subsequently as it had become functus officio;
7. The JSC lacked a quorum to sit on 13 December 2019 and to reverse its earlier decision;
8. To the extent that the allegations are understood and based on the documents attached to the founding affidavit, the allegations made are petty and do not meet the elevated criteria of gross misconduct or gross incompetency.”
For the purposes of this application, the issue of the investigation on the question of the removal of the applicant from the office of a Judge arose from a phone call made to Mr Ndudzo, who is a legal practitioner, as well as a complaint raised against him by Mr Moxon. The latter related to the applicant presiding over a matter between Meikles Limited and Widefree Investments (Pty) Ltd trading as Core Solutions.
Since I am required to determine this application on procedural grounds, it is not necessary for me to delve into the substance and details of the phone call and Mr Moxon's complaint.
All the respondents opposed the application.
At the commencement of the hearing, and with the consent of the legal practitioners for the applicant and the Attorney General (AG), I made an order for the removal of the AG from these proceedings.
