Opposed
Application
CHIKOWERO
J:
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
Courts of the Republic of Zimbabwe. The first respondent (JSC) is a
corporate body established in terms of the 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. Fifth respondent is the Permanent
Secretary of the Ministry of Justice Legal and Parliamentary Affairs,
the Coordinator 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 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 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 second –fourth respondents,
with 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 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 JSC'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 AJA the applicant has applied to this
court, on review, to set aside the JSC'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 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 he 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
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 AG, I made an order for the
removal of the AG from these proceedings. Further, the second, third,
fourth and seventh respondents submitted that they had no interest in
the outcome of the application. But they did not seek an order of
costs against the applicant.
Counsel
for the President submitted that the latter simply fulfilled his
constitutional obligation by appointing a tribunal upon receipt of
the JSC's advice. He too sought no order of costs against the
applicant.
Similarly,
the Permanent Secretary submitted that she was appointed as Secretary
to the tribunal by the President and as Coordinator of the Special
Anti-Corruption Unit in the office of the President, she had simply
referred Mr Moxon's complaint to the JSC, through its Secretary,
for attention. She had also made mention, in her referral letter, of
the fact that, to use her words, applicant had also been implicated
by Mr Ndudzo. She had played no further part in the investigations
that ensued. She too did not pray that applicant be mulcted in costs.
In
submissions, the JSC did not persist in its quest for punitive costs
to be granted against the applicant. It was content with costs on the
ordinary scale. But the applicant sought costs on the higher scale
against all such respondents as opposed the application.
The
JSC raised a number of preliminary points. Applicant raised one point
in
limine.
I deal with the latter first.
IS
THE 1ST
RESPONDENT BEFORE THE COURT?
Messrs
Uriri
and
Madhuku
submitted
that the Acting Secretary of the JSC, Mr Chikwanha, had no authority
to represent the JSC in this matter.
It
is Mr Chikwanha who deposed to the JSC's opposing affidavit.
I
was urged to follow this court's decision in Francis
Bere v Judicial Service Commission and 7 Ors
HH269/20. In that matter the court found that since it is the
Judicial Service Commission which has the constitutional duty to
advise the President that the question of removal of a Judge from
office had arisen it could not delegate the function of defending
that decision in a court of law to its Acting Secretary, who is not a
member of the JSC.
That
decision is under appeal on that point.
I
was also referred to the following decisions for the argument that
where a specific constitutional duty is imposed on a constitutional
body, that duty cannot be delegated: President
of the Republic of South Africa v South African Rugby Football Union
2000 (1) SA 1 (CC); Paradza
v Chirwa
2005 (2) ZLR 94 (S).
Mr
Madhuku
argued
that the making of the constitutional decision to advise the
President and defending that decision in a court of law constitute
one act and can therefore not be delegated.
Reference
was also made to CE
Dube v PSMAS and Another
SC73/19 for the submission that in persisting with representation
through its Acting Secretary the JSC was not properly before me.
The
sum total of these arguments was to persuade me to find that the
opposing affidavit deposed to by Mr Chikwanha and filed together with
the Notice of opposition was invalid. There was therefore no
opposition by the JSC.
Mr
Chinake
argued
as follows.
First,
there stood on record a resolution by the JSC wherein it resolved to
clothe the Acting Secretary with authority to sign documents on
behalf of the JSC in litigation matters. Second, section 10(2) of the
Judicial Service Act [Chapter
7:18]
gives the Acting Secretary of the JSC the authority to carry out any
function on behalf of the JSC as long as he has been so directed by
it.
My
view is that as long as there is evidence to satisfy the court that
it is the JSC which is litigating and not some unauthorised person
acting in its name, the JSC is properly before me. See Total
Zimbabwe (Pvt) Ltd v Power Coach Express (Pvt) Ltd
2010 (2) ZLR (H).
I
have such evidence in the form of the resolution of the JSC.
I
am satisfied that Mr Chikwanha, who sits in the meetings of the JSC
to take the minutes of the meetings and is knowledgeable of what he
deposes to, is not on a frolic of his own.
I
take the view that the ratio decidendi
in
Paradza
v Chirwa N.O and Others
(supra) actually supports the JSC's position.
In
deposing to the opposing affidavit, JSC is acting through its Acting
Secretary whom it duly authorised to do so.
I
find it absurd that the resolution would hold good for the Acting
Secretary (the Chief Accounting Officer) to sign ordinary litigation
papers for the JSC but not litigation papers where the JSC's
decisions made in terms of the constitution are being defended in
court.
The
resolution does not make that distinction. It is wide enough to cover
all litigation papers. Further, the Judicial Service Act, which draws
its life from the Constitution gives the Acting Secretary the
authority to discharge functions where the JSC directs him to do so.
I am unable to agree that advising the President as was done in this
matter is the same act as deposing to an affidavit defending that
decision in a court of law. I dismiss this point in
limine.
ARE
THE ISSUES FOR DETERMINATION IN THIS SUIT LIS ALIBI
PENDENS
UNDER HC2162/20?
In
HC2162/20 the applicant sought the same relief as in the present
matter. That matter was an urgent chamber application. The court
found that HC2162/20 was not urgent. It removed the matter from the
roll of urgent matters. The matter was neither prosecuted thereafter
nor was it withdrawn. The applicant simply abandoned the matter and
instituted the same matter, this time as the present court
application.
I
have looked at Madza
v The Reformed Church in Zimbabwe Daisyfield Trust and Others
SC71/04;
Tomana
v Judicial Service Commission and Another
HH366/16.
It
is clear that HC2162/20 is not on the opposed roll. Applicant has not
placed it on that roll. He has simply abandoned it by dint of not
prosecuting it after it was removed from the roll of urgent matters
and filing as well as prosecuting the present suit.
HC2162/20
is pending. But that is academic.
Lis
alibi pendens
is not an absolute bar to hear the present matter and render a
decision thereon. I will not dismiss this application on the basis of
this preliminary point. It was raised by the JSC. It does not dispose
of the matter before me.
THE
MERITS
NO
QUORUM AT THE JSC MEETING OF 13 DECEMBER 2019
It
was at this meeting of the JSC that the decision was taken to advise
the President that the question of the removal of the applicant from
the office of a judge ought to be investigated.
The
parties are agreed that the membership of the JSC is 13, but there
was a single vacancy at the material time. The parties are agreed
that the Constitution allows the JSC to function all the same
provided it has a quorum. Its quorum is 7, being half of the
membership of the JSC.
Applicant
made a bare allegation that only 6 members were present at the 13
December 2019 meeting.
He
does not mention the names of the members who were present and of
those who were not in attendance. He does not attach any supporting
affidavits from either those present or those whom he alleges were
absent. He does not attach a copy of the minutes of the meeting of 13
December 2019.
It
is trite that an application stands or falls on the averments made in
the founding affidavit. See Muchini
v Elizabeth Mary Adams & Others
2013 (1) ZLR 67 (S).
It
also is trite that he who alleges must prove. See ZUPCO
v Parkhorse Services (Pvt) Ltd SC13/17;
Circle
Tracking v Mahachi
SC04/17.
Mr
Uriri
conceded
that all that applicant has done is to allege that there was no
quorum. He argues that on the basis of the importance of the matter
that bare allegation must shift the onus to the JSC to prove that
there was a quorum.
It
is clear that applicant relies on rumours for his allegation that
there was no quorum. Matters are decided on the law, facts and the
evidence and not rumours.
The
JSC says there was a quorum. It is not the applicant. It suffices
that it challenges applicant to prove its allegation. The JSC has no
obligation to assist the applicant to prove the latter's
allegation. I find that applicant has failed to substantiate its
allegation that there was no quorum at the meeting of 13 December
2019.
THE
JSC WAS FUNCTUS
OFFICIO
AND COULD NOT REVERSE ITS 21 NOVEMBER 2019 DECISION
Applicant
claims that the JSC held an ordinary meeting on 21 November 2019
where all the Commissioners concluded that there was nothing untoward
about his conduct.
He
alleges that he received a phone call from the Deputy Acting
Secretary of the JSC, Mr Stembinkosi Msipa breaking the good news.
This is denied by the JSC which avers that no such meeting was held
and therefore that the decision alleged was never made.
Applicant
neither produced the minutes of the alleged meeting of 21 November
2019 nor filed a supporting affidavit by the Deputy Acting Secretary.
I
find that this allegation too was not substantiated. There was
therefore nothing for the JSC to reverse on 13 December 2019.
VIOLATION
OF THE AUDI
ALTERAM PARTEM
RULE
Applicant
accepts that he received, through the JSC, correspondence from Mr
Moxon, Mr Ndudzo and the Permanent Secretary. He admits that he
responded to these letters. I agree that his responses are detailed.
His last response of 20 August 2019 relating to Mr Ndudzo's letter
runs into 5 pages.
Thereafter,
the JSC asked Mr Ndudzo to comment on applicant's reply.
The
alleged non-observance of the right to be heard relates to his not
being given yet another opportunity to comment on Mr Ndudzo's
comment before the JSC met on 13 December 2019.
My
view is that Mr Ndudzo's comment post 20 August 2019 was not
another stage in the preliminary investigation by the JSC but a step
within that stage. It seems to me that the exchange of
correspondence, through JSC, could not continue ad
infinitum.
It had to end somewhere to pave way for the JSC to make a decision.
Despite
complaining that the contents of Mr Ndudzo's last letter were so
material that he ought to have been given an opportunity to respond
thereto applicant says in the same breath that whatever was referred
to the President based on the Ndudzo matter, was petty.
I
therefore find that there was no breach of the audi
alteram partem
rule because applicant is effectively saying Mr Ndudzo's last
letter to the JSC changed nothing.
With
reference to the Moxon complaint, applicant accepted that the matter
had not been concluded by the advice to the Chief Justice from the
Judicial Ethics Advisory Committee and the Chief Justice's
correspondence to Mr Moxon and the applicant communicating that
advice.
I
say so because applicant wrote to the Chief Justice stating that the
former could not stand in Mr Moxon's way should Mr Moxon want to
pursue the matter further. Indeed, Mr Moxon did so and the matter
ended up before the JSC at its meeting of 13 December 2019 where a
decision was taken to advise the President.
ABSENCE
OF JURISDICTIONAL FACTS TO GROUND THE JSC'S DECISION TO ADVISE THE
PRESIDENT
An
exhaustive analysis of this ground is tantamount to this court
substituting its views for the prima
facie
views of the JSC, already acted upon on 13 December 2019.
I
do not think that it is proper for this court to do so.
I
observe only that on the face of it the correspondence put before me
reveals that the JSC must have concluded that the applicant's
conduct needed to be investigated by a tribunal. I am not sitting as
an appeal court to determine the correctness of the JSC's decision
but on review to decide whether any of the jurisdictional grounds for
removal of a Judge from office is disclosed on the papers put before
me and on which the decision to advise the President was made.
Section
187(1)(c) of the Constitution provides that gross misconduct is one
such jurisdictional ground.
Whether
there was gross misconduct is not for me to determine. The Tribunal's
terms of reference cover that aspect.
By
the same token, this court cannot make pronouncements on the merits
or otherwise of an investigation which the tribunal is
constitutionally empowered to do. The court is not the Tribunal.
I
do not think it necessary for applicant to effectively be a judge in
his own cause by submitting, before this court, that the basis upon
which the JSC advised the President was petty.
That
goes to the substance of that which the tribunal is to investigate,
make findings and recommend on.
I
have already found that it would be remiss of me to rule on the
correctness of the JSC's decision to advise the President.
Given
the importance of this matter I may have hesitated to award costs
against the applicant had he not instituted this application but
instead prosecuted the urgent chamber application which was removed
from the roll, as a court application. Applicant has caused the first
respondent to incur unnecessary costs by duplicating proceedings.
In
the circumstances I have no reason to depart from the general rule
that success carries costs.
ORDER
In
the result, the following order shall issue:
1.
The application be and is dismissed.
2.
The applicant shall pay the 1st
respondent's costs.
Dube,
Manikai & Hwacha,
applicant's legal practitioners
Kantor
& Immerman,
1st
respondent's legal practitioners
Civil
Division of the Attorney General's Office,
2nd–7th
respondents legal practitioners
