This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 7 July 2022 in which it declined to assume jurisdiction in respect of an application filed by the appellant for the review of the recommendations of the second, third and fourth ...
This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 7 July 2022 in which it declined to assume jurisdiction in respect of an application filed by the appellant for the review of the recommendations of the second, third and fourth respondents in accordance with which the first respondent removed her from the office of Judge of the High Court.
FACTS
Until 17 June 2021, the appellant was a sitting Judge of the High Court. She was removed from that office by the first respondent, the President of the Republic of Zimbabwe, acting in terms of section 187(8) of the Constitution of Zimbabwe 2013 (“the Constitution”).
Whenever the question of the removal of a sitting Judge arises, the Judicial Service Commission informs the first respondent, who, in terms of section 187(3) of the Constitution, is required to appoint a Tribunal to inquire into that question.
The second, third, and fourth respondents are members of the Tribunal appointed by the first respondent to inquire into the question of removing the appellant from the office of Judge of the High Court.
The salient facts are generally not in dispute and may be traced back to 9 October 2020, on which date the Judicial Service Commission advised the first respondent that a question of whether the appellant had to be removed from the office of Judge of the High Court had arisen.
On 5 November 2020, by dint of Proclamation 7 of 2020 published in Statutory Instrument 261B of 2020, the first respondent established a Tribunal constituted by the second, third, and fourth respondents to inquire into the aforementioned question of the removal from office of the appellant.
The Tribunal would conduct its business for a period of five months, from the date of the swearing in of its members.
The members of the Tribunal were duly sworn in on 18 November 2020, thereby triggering their mandate.
On 8 December 2020, the Tribunal served the appellant with a letter informing her of the matters into which it would inquire, chief among which was whether she had been grossly incompetent in performing or omitting to perform the acts mentioned in that letter.
The particulars of the matters into which the Tribunal would inquire are not germane to the resolution of this appeal.
The hearing before the Tribunal commenced on 18 March 2021 and was concluded on 22 April 2021 after several witnesses, and the appellant herself, had presented evidence.
The parties appearing before the Tribunal were thereafter requested to file their closing submissions, with the appellant being requested to submit her final response on 4 May 2021.
On 17 June 2021, having concluded its investigations, the Tribunal presented its recommendations to the first respondent.
The Tribunal found the appellant guilty of gross incompetence.
By letter of the same day, the Chief Secretary to the President and Cabinet advised the Honourable Chief Justice of Zimbabwe, that, the Tribunal had recommended the removal of the appellant from office for gross incompetence and that the first respondent had accordingly removed the appellant from office.
PROCEEDINGS BEFORE THE COURT A QUO
Against this background, the appellant harboured grievances. On 25 August 2021, she filed a court application for review in terms of sections 26 and 27 of the High Court Act [Chapter 7:06] as read with Rule 60 of the High Court Rules 2021. The appellant advanced multiple grounds of review.
Among the grounds was that the Tribunal had no jurisdiction to inquire into the question of her removal after 18 May 2021 since its five-month tenure had lapsed.
She added, that, it was grossly irregular for the Tribunal to disregard her preliminary objections on the basis of what had occurred during an earlier inquiry involving the removal of another Judge and not during her own inquiry.
It was also contended, that, it was a gross irregularity for the Tribunal to find her guilty of gross incompetence when she had not been charged with such a misconduct.
All in all, the appellant advanced no less than eight grounds of review on the basis of which she craved the grant of relief in the following terms:
“1. That the Applicant's application for review of the recommendations of the 2nd, 3rd and 4th Respondents dated 17 June 2021 and the subsequent decision of the 1st Respondent be and is hereby succeeds. (sic)
2. The recommendation of the 2nd, 3rd, and 4th Respondents dated 17 June 2021 and the subsequent decision of the 1st Respondent be and are hereby reviewed and set aside.
3. The decision of the 1st Respondent to remove the Applicant from the office of a Judge of the High Court in terms of section 187(7) and (8) of the Constitution be and is hereby set aside.
4. The Appellant be and is hereby reinstated to her position as a Judge of the High Court of Zimbabwe without loss to salary and benefits from the date of publication of Proclamation 7 of 2020.
5. The Respondents shall pay costs of suit.”…,.
The first respondent opposed the application, averring that the Tribunal had not acted without jurisdiction, and that, in removing the appellant from office, he had acted in accordance with section 187 of the Constitution.
He, therefore, prayed for the dismissal of the application.
Raising a number of preliminary objections, inter alia, that the court a quo lacked jurisdiction because the appellant had already noted an appeal to the Labour Court against the decision she sought to have reviewed; that, in terms of the Commissions of Inquiry Act [Chapter 10:07], they were not liable to any action or suit in respect of any matter or thing done by them while they were members of the Tribunal; and that, there was a fatal non-joinder of the Judicial Service Commission, the second, third and fourth respondents also opposed the application.
On the merits of the application, the second, third, and fourth respondents contended that none of the grounds of review had been established.
The hearing of the application proceeded before a panel comprising three Judges of the court a quo.
At the commencement of the hearing, the court a quo requested counsel for the parties to address it on the question of whether it still had review jurisdiction given that the appellant had already been removed from office by the first respondent in terms of the recommendations made to him.
What exercised the mind of the court a quo was whether it could entertain the application when a decision in accordance with the Constitution had ensued.
In its judgment, the court a quo recorded that invitation thus:
“[6] At the hearing, before going into the preliminary issues raised and the merits of the matter, the court invited submissions from the legal practitioners on the following critical legal issue - given that the first respondent acted on recommendations submitted to him by a tribunal and made a decision in terms of the Constitution to remove the applicant, does the court have jurisdiction to hear the matter?
It is trite that a court can raise mero motu the question of jurisdiction: see Boswinkel v Boswinkel 1995 (2) ZLR 58 (H) as cited with approval in Chikwenengere v Chikwenengere SC75-06.”
I note, in passing, that, during the hearing, counsel for the second, third, and fourth respondents were put to task on the question of whether their clients had any real interest in the application.
Following exchanges with the court a quo, they conceded that their interest in the matter was nominal and indicated that they would abide by the court a quo's decision.
The judgment of the court a quo was solely devoted to resolving the question that it invited the parties to address.
The court a quo considered, correctly in my view, that the issue of the removal of a sitting judge and a subsequent review application made to set aside recommendations of a Tribunal, to be novel in this jurisdiction.
It made several findings and conclusions of law on the basis of which it declined jurisdiction:
(i) Firstly, citing the decisions of this Court in Moyo v Mkoba 2013 (2) ZLR 137 (S) and Marange v Marange SC01–21, the court a quo stated that it is not, and would not, be the ultimate decision of the first respondent that is subject to review but only the process preceding it.
It reasoned, that, what could be subjected to review was only the process by which the Tribunal makes its recommendations.
(ii) Secondly, it considered the legislative framework outlining its review jurisdiction and also made a survey of approaches followed in different jurisdictions in respect of the review of the decisions of ad hoc Tribunals enquiring into the question of the removal of judges. These comparator jurisdictions included Nigeria, Kenya, South Africa, and India.
Following a lengthy discussion, the court a quo found that once the first respondent has acted upon a recommendation by a Tribunal on the question of whether a judge should be removed from office, that action becomes a decision in terms of the Constitution, whose validity cannot be reviewed. It stated;
“The question then becomes whether or not the decision made by the first respondent is subject to review by this court. Whatever recommendation is made, the President must act in terms of section 187(8). In my view, once removal or no removal is recommended and acted upon, it becomes a decision made in terms of the Constitution.
It could not have been the intention of the legislature that once such removal is finalised in terms of the Constitution, that this court assumes jurisdiction, even under the guise of 'inherent' jurisdiction, as contended by Mrs Mtetwa.
Conversely, in my view, it would be absurd for the Judicial Service Commission for instance, to seek a reversal of a recommendation not to remove a judge by way of an application for review in this court.”…,.
(iii) Finally, while accepting that the President's exercise of his prerogative power may be subject to review, the court a quo concluded, that, the first respondent did not exercise prerogative power in acting upon the Tribunal's recommendations which could be reviewed.
In its finding, the only executive powers of the President that are subject to review are those in which he has discretion or where he is required to act by a specific piece of legislation.
The court a quo reasoned that in the present matter, the first respondent had no discretion whatsoever once recommendations had been made concerning the question of the removal of a judge. In its view, he was required to act on those recommendations.
It was principally on the basis of the foregoing findings and conclusions of law that the court a quo declined jurisdiction.
PROCEEDINGS BEFORE THIS COURT
Again, the appellant was disenchanted and dissatisfied with the decision of the court a quo. She noted an appeal to this Court.
She attacked the decision of the court a quo on several bases. Essentially, the grounds of appeal are an attack on the court a quo for declining jurisdiction and on its reasoning in arriving at the conclusion that it could not assume jurisdiction over the appellant's application.
Thus, the pre-eminent issue commending itself for determination is whether or not the court a quo erred in concluding that it had no jurisdiction over the appellant's review application.
At the commencement of the hearing, the court inquired from counsel for the second to the fourth respondents whether they had any intention to oppose the appeal since they had not filed any heads of argument and were, in any event, barred.
Counsel for the second and fourth respondents stated that his clients were not opposing the appeal and that he had made an appearance out of courtesy.
For her part, counsel for the third respondent indicated that her client was not opposing the appeal and that she had made an appearance simply to observe the proceedings.
Both counsel stated that their clients will abide by the decision of this Court.
There was also the sticking issue of the first respondent's non-appearance when he had strenuously contested the application in the court below.
In the end, following inquiry from counsel and examination of the record, the court was satisfied that counsel for the first respondent was aware of the set down. For unexplained reasons, he was not in attendance.
It is for that reason that the court proceeded to hear counsel for the appellant on the merits of the appeal - regrettably without the benefit of submissions from counsel for the first respondent.
