Erica Ndewere v President of Zimbabwe N.O. and 4 Others

### Preamble
1
HH 161– 21
HC 6204-20
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ERICA NDEWERE

versus

PRESIDENT OF ZIMBABWE N.O.

and

CHIEF JUSTICE N.O.

and

JUDGE PRESIDENT OF THE HIGH COURT N.O.

And

JUDICIAL SERVICE COMMISSION

and

THE MINISTER OF JUSTICE, LEGAL PARLIAMENTARY AFFAIRS N.O.

HIGH COURT OF ZIMBABWE

ZISENGWE J

HARARE, 19 March and 14 April, 2021

Urgent Chamber Application

Ms B. Mtetwa, for the applicant

Mr Chimombe, for the 1st and 5th applicants

Mr A.B.C. Chinake, for the 2nd, 3rd and 4th respondents

ZISENGWE J:	This is an application brought through the urgent chamber book wherein the applicant seeks an interim interdict temporarily halting the referral of the question of her removal as judge of the High Court to the 1st respondent in terms of s187(3) of the Constitution. In a nutshell the applicant’s position is that the contemplated referral is not only deeply flawed procedurally but also that if allowed to stand it will create a dangerous precedent in that it poses a serious threat to the independence of the judiciary.

In the main, the applicant among a litany of other complaints avers that such referral is unlawful, irregular and precipitate in that the provisions of Judicial Service (Code of Ethics) Regulations SI 107/2012  (hereinafter referred to as “the code of ethics”) which in her view are obligatory and must precede any such referral were not followed.

Although five respondents were cited, a reading of the papers reveals the main protagonists are the applicant on one hand and the 4th Respondent on the other hand. This application stands sternly opposed by the 4th Respondent though whose representative it was averred that the application is predicated on a serious misapprehension on the part of the applicant of the Constitutional provision relating to the removal of judges from office.

The Parties

As stated earlier, the applicant is a sitting judge of the High Court having been so appointed in 2013.

The 1st respondent is the President of the Republic in his official capacity. Not only is he the appointing authority of judges (s 180 of the Constitution)   but also the power to remove judges from office pursuant to the provisions of section 187 of the Constitution rests on him. It is pertinent to note for current purposes that such removal can only be done pursuant to a recommendation submitted to him to that effect by a tribunal set up in terms of s 187(3) of the Constitution to investigate the question of such removal.

The second respondent is the Chief Justice of Zimbabwe in his official capacity. He is the head of judiciary (s 163(2) of the Constitution) and member and chairperson of the Judicial Service Commission. In this application, several allegations are levelled against him by the applicant regarding the events (and motives) which culminated in the contested referral. His joinder (as that of the 3rd respondent) is questioned by the 4th respondent which attributes such joinder to malice on the part of the applicant.

The 3rd respondent is the Judge President of the High of Zimbabwe in his official capacity. He supervises the activities of that court (s 163 (3) of the Constitution). In that position, he is the applicant’s immediate superior.

The 4th respondent is the Judicial Service Commission (JSC), a Constitutional body set up in terms of part 3 of the Constitution. Its functions are located in s190 of the Constitution. Suffice it to say that the foundation of this application is a challenge of the procedure regarding its referral of the applicant’s matter to the 1st respondent to investigate the question of her removal from office.

The 5th respondent is the Minister of Justice, Legal and Parliamentary Affairs in his official capacity.

The background facts

What led to the intended referral were complaints received and processed by the JSC concerning applicant’s performance as a judge.  In particular those complaints related to her work output which was deemed unsatisfactory and below expectations coupled with the manner in which she handled a particular review matter. In the latter the complaint, it was alleged that she issued a review judgement in respect of criminal proceedings without having properly perused the record of proceedings and as a consequence she ordered the irregular and unmerited release from prison of the person who was the subject matter of that case. The import of the complaint being that had the applicant  taken time to properly peruse the record of proceedings to acquaint herself with its contents (as she was required to do) she would have observed  that that accused’s record of previous convictions militated against his release from prison. The position by the JSC is therefore that her such failure inter alia amounts to gross misconduct warranting the referral.

It is common cause that by letter dated 15 September 2020, the applicant was advised that she was under investigation for impeachable acts of misconduct. In view of the importance of that letter in relation to one of the preliminary points raised by the 4th respondent its contents will be reproduced here.

“RE: Complaint against yourself

Reference is made to the above.

The documents attached to this minute contain complaints which have been made against you. The complaints have been placed before the Judicial Service Commission in terms of section 187(3) of the Constitution of Zimbabwe.

The Judicial Service Commission has resolved that you be furnished with the details of the complaints and that you reply to the same.

You are requested to submit your response to us on or before the 22nd of September 2020.”

In response, the applicant’s erstwhile legal practitioners Sawyer and Mkushi in a letter dated 30 September 2020 wrote back to the JSC indicating that the applicant was not obliged to respond to that matter. Their view was that the Judicial Service Commission lacked the legal authority to deal with the complaints raised against the applicant and that the Chief Justice had no authority to direct the JSC to attend to any complaints against a sitting judge of the High Court and that in any event it was premature for the JSC to invoke s187 (3) of the Constitution before complying with the provisions of the code of ethics.

This position adopted by the applicant evidently did not deter the JSC from forging ahead with inquiry into the complaints raised the applicant as it proceeded to convene an extra-ordinary meeting to consider the same. As is apparent from its letter dated 12 October 2020 directed to the applicant, it was resolved at that meeting that the question of applicant’s removal was to be referred to the 1st respondent for investigation in terms of s187 (3) of the Constitution.

It is that letter upon its receipt by the applicant the very next day (13 October 2020) which jolted her to pursue litigation to halt the referral. She did so by filing through her erstwhile legal practitioners an urgent chamber application under case number HC 6128/20. This was on 22 October 2020. The apparent delay in the filing of that application will be dealt with under the question of urgency which was raised as a preliminary objection in this application by the JSC, suffice it however to say that the explanation proffered by the applicant was to the effect that she suffered a bereavement of a close family member interrupting the legal process she had set in motion to file the said urgent chamber application.. This was because the responsibility of organizing the funeral arrangements fell squarely on her shoulders.

Be that as it may, no sooner had that application been subsequently filed on the 22nd of October 2020 than was it withdrawn, by which time, however, the respondents had filed their respective notices of opposition to the same. In the present applicant, the parties spar on the reasons behind the withdrawal. Whereas the 4th respondent attributes the same to a realization on the part of the applicant of the defectiveness (upon a perusal of the opposing affidavits) of that initial application (and a concurrent attempt at the rectification of the same in the current application), the applicant avers contrariwise. She explains that the withdrawal was occasioned by the unexpected unavailability of senior counsel within the ranks of her erstwhile legal practitioners leading her to abandon the same and seek assistance elsewhere.

It is common cause that in the wake of the withdrawal of the first application, the applicant through her current legal practitioners filed the present application on 26 October 2020.

4th Respondent’s preliminary points

Through an affidavit deposed to by the Secretary of the JSC, Mr. Walter Tambudzai Chikwana the 2nd, 3rd and 4th respondents raise several reasons for contending that the application lacks the requisite attributes of urgency. The points raised in this regard are chiefly the following:

that urgency (need to act/day of reckoning) should be construed as having arisen on 15 September 2020 when applicant received the letter advising her of the s187 (3) route which  the JSC intended to pursue which route the applicant at that stage elected to contest (as she now belatedly currently does)

further that even if one were to take the view that the day of reckoning was the 12th of October  when the applicant received the official notification of JSC’s intention to invoke s187 (3) of the Constitution in relation to her case, there was dilatoriness on her part in that she did not take any prompt action. The passage of some eight days before she sprang into action (so the argument goes), negates any notion of urgency on her part.

that by withdrawing the original urgent chamber application at the door of the court, the applicant effectively forfeited her one and only claim towards urgency. Further in this regard that the 2nd application by the applicant smacks of mala fides in that she unconscionably sought to fashion her new application designedly to address issues raised in the first notice of opposition.

That the certificate of urgency accompanying the application is fatally defective for want of certain material averments.

that the order sought is essentially one for a declaratur the latter which cannot be granted on an urgent basis. Alternatively;

that the applicant seeks a final interdict which however can only be granted upon the establishment by the applicant of a clear right, which prerequisite the present application lacks.

There are therefore two separate but related issues raised by the 4th respondent, namely the absence of urgency given the applicant’s own alleged lackadaisical reaction to the contemplated referral and secondly the alleged defectiveness of the application in relation to its content and form. Additionally the 2nd, 3rd and 4th respondents question as a preliminary point the joinder of the former two in these proceedings.

The question of urgency

Both parties referred me to copious dicta from various case law authorities on the question of urgency and what conduct on the part of an applicant evinces urgency and what conduct negates a notion of the same.  For brevity I shall confine myself to the two “go-to” cases namely that Kuvarega vs Registrar General and Another 1998 (1) ZLR 188 (H) where CHATIKOBO J at 193 F- G had this to say;

“what constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if at the time the need to act arises, the matter cannot wait. Urgency which stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non- timeous action if there has been any delay”

The court proceeded to state as follows:

“For a court to deal with a matter on an urgent basis, it must be satisfied of a number of important aspects. The court has laid down guidelines to be followed. If by its nature the circumstances are such that the matter cannot wait in the sense that if not dealt with immediately irreparable prejudice will result, the court can be inclined to deal with it on an urgent basis. Further, it must be clear that the application did in his own part treat the matter as urgent. In other words, if the applicant does not act immediately and waits for doomsday to arrive, and does not give a reasonable explanation for that delay  in taking action, he cannot expect to convince  the court that the matter is indeed one that warrants to be dealt on an urgent basis”.

The second case that informs my decision on the question of urgency is that of Gwarada vs Johnson & Ors 2009 (2) ZLR 159 (H) at 160 D - E where the following was stated;

“Urgency arises when an event occurs which requires contemporaneous resolution, the absence of which would cause extreme prejudice to the applicant. The existence of circumstances which may, in their very nature, be prejudicial to the applicant is not the only factor a court has to take into account, time being of the essence in the sense that the applicant must exhibit urgency in the manner in which he has waited to the event or the threats, whatever it may be.”

Whether or not the applicant acted with  promptness required  of her or she was slow on her feet is a matter for the discretion of the court properly exercised , (see Econet Wireless (Pvt) Ltd vs Trustio Mobile ( Proprietary)  Limited  SC 41/13 where GARWE JA  had the following to say:

“It is clear that in terms of Rule 244 and 246 of the High Court Rules the decision whether to hear an application on the basis of urgency is that of the judge. The decision is one therefore that involves the exercise of discretion.”

I am satisfied upon a reading of the applicant’s founding affidavit of the explanation she proffered for the apparent delay in instituting the current application. In this regard I find quite reasonable her argument that instituting an urgent chamber application to halt the process at the stage she received the letter dated 15 September 2020 would have been premature. Whether or not applicant’s matter would subsequently be referred to 1st respondent in terms of s187 (3) depended to a large extent on her response to that letter and JSC’s subsequent deliberations concerning the same.

Further, it is pertinent to note the applicant did not sit on her laurels, she sought legal counsel for the best course of action to purse to assert her rights. It is apparent from the response from her erstwhile legal practitioners dated 30 September 2020, that the advice she received (rightly or wrongly) was to the effect inter alia that the course followed by the 4th respondent was a wrong one. This cannot by any stretch of the imagination be construed on a “deliberate or careless abstention of action until the deadline draws near”. It would appear that she genuinely believed that she was on firm ground in resisting the process via the letter authored by counsel directed to the 4th respondent.

For me the need to act arose upon her receipt of the letter dated 12th of October 2020 informing her of the resolution of the JSC to refer the question of her removal as judge to the 1st Respondent. The only question therefore is whether she reacted with reasonable promptness in filing as she did the first urgent chamber application on 22 October, some 10 Days after her receipt of the said letter. My view is that she did.

She explained that upon receiving that letter she immediately instructed her erstwhile legal practitioners on the best way to follow. I pause here to reflect that her explanation rings of true given her earlier conduct in seeking legal advice upon the receipt of the letter dated 15 September 2020. She is unlikely to have ignored the subsequent one dated 13th October 2020. The contents of latter letter were more ominous than that of the former.

I also find her explanation regarding the unfortunate loss of her nephew whom she regarded as her very own son plausible. It is highly improbable that she would resort to the drastic subterfuge of relying on her bereavement to extricate herself from the legal quandary she found herself in. Such cynicism in my view is hard to justify given the emotional toll it normally takes on someone so affected. In a word therefore I find the explanation for the 9 day delay in instituting the first application reasonable and I accept it.

The 4th respondent questions the bona fides  of withdrawal of the first application on the day the matter was set to be argued and attributes the same  to her quest to tailor her subsequent application (the current one ) to address the shortcomings  in that first one (upon her getting wind of the points raised in the opposing affidavits). I was invited to draw a comparison between the first application and the subsequent one.

The applicant’s explanation for the withdrawal (which I find credible) is that her chosen senior counsel within the ranks of her erstwhile legal practitioners was unavailable and not being satisfied with the nature of service she was receiving, she sought assistance elsewhere and subsequently withdrew that first application. Implicit in her explanation is the fact that whatever coincidences between her amendment to the original application and the related points raised in the notice of opposition are precisely that - a coincidence. It was further pointed out that during oral submissions in this application that in any event the new application filed on 26 October 2020 was filed before the Applicant was able to view the notice of opposition.

The argument that by withdrawing her first urgent chamber application at the last minute, the Applicant effectively forfeited whatever claim, towards urgency she might have enjoyed cannot be sustained. Such Applicant may for various reasons be compelled to withdraw an application without necessarily relinquishing his or her rights to institute a fresh one on an urgent basis. Whether his or her conduct in so withdrawing should be viewed as being inconsistent with a claim to urgency is dependent on the circumstances attending thereto and the reasons advanced for such withdrawal and subsequent re- institution of the application.

I hold the view, therefore, that a judge upon a consideration of the reasons advanced therefor not least the bona fides of such withdrawal retains the discretion (referred to earlier) whether or not to hear the matter on an urgent basis.

In the present matter I am satisfied that the Applicant managed to set forth a reasonable explanation for the withdrawal, namely the unavailability of her preferred senior counsel within the firm of her erstwhile legal practitioners, Sawyer and Mkushi. I am not persuaded by the 4th respondent’s argument that the withdrawal was occasioned by a realization of the defectiveness of her original application after such defects were exposed in the notice of opposition.

Ultimately therefore, the delay of some thirteen days between 13th of October 2020 when she received notification of the JSC’s resolution to the 26th of October when she successfully filed the current application cannot be regarded as inordinate particularly when viewed in light of the interruptive events applicant encountered in the interim. The case of Rev Tony Tshuma and Others v Clement Nyathi and Another HB 133/15 which 4th respondent seeks to rely on is clearly distinguishable from the present one especially when one considers that in the former case the delay spanned some seven months.

The certificate of urgency

In the opposing affidavit filed on behalf of the 4th respondent, exception was taken to the certificate of urgency filed by Brighton Sadowera of Mashizha and Associates accompanying the application. In particular the 4th respondent takes issue with the fact that the certificate of urgency fails to deal with the two issues of the day of reckoning and that of the withdrawal of the first application.

The applicant did not address the question of the apparent omission on the part Sadowera to address the said issues but insisted that such omissions did not render the certificate fatally defective. In Telecel Zimbabwe (Pvt) Ltd v Potraz & 4 Ors HH 446/20 2015 MATHONSI J (as he then was) was prepared to condone, upon application, failure to observe strict compliance with rule 241 of the High Court Rules, 1971 where the certificate of urgency had omitted to contain a summary of the grounds on which the application was brought. He stated as follows;

“I take the view that the rules of court are there to assist the court in the discharge of its day to day function of dispensing justice to litigants. They are certainly are not designated to impede the attainment of justice. Where there has been a substantial compliance with the rules and no prejudice is likely to be sustained by any party to the proceedings, the court should condone any minor infraction of the rules. In my view to insist on the grounds for the application being incorporated in Form 29B when they are set out in abundance in the body of the application, is to worry more about form at the expense of the substance. Accordingly, by virtue of the power reposed to me by r 4C of the High Court Rules, I condone the omission.”

I adopt a similar approach. I do so mindful of course that is no similar rule 4C Application before me. The latter should not detract from the fact that the omission by Sadowera is relatively minor and that no prejudice is likely to be occasioned to the respondents. The facts relating to the “day of reckoning” and the explanation regarding the withdrawal of the first application were sufficiently covered in the main body of the application.

Ultimately therefore, I am of the view that the applicant sufficiently set out a case for urgency. If the application is not dealt with as such, by the time it is concluded on the ordinary roll, its outcome would merely be of academic interest.

The alleged defectiveness of the application

By way of recap, the 4th respondent’s contention here is that the application is fatally defective for a variety of reasons which can be summarized as follows. Firstly, that what the applicant seeks by way of interim relief amounts to a declaratory order which in terms of procedure cannot be obtained via an urgent chamber application. In the alternative it is contended that what the applicant seeks in fact a final order requiring of her to establish a clear right which she has not been able to do. In her answering affidavit the applicant disputed both arguments. She undertook to provide an extensive exposition of the same in her heads of argument. Regrettably however, the said heads dealt with other dimensions of the question of urgency but was rather thin on that question.

The relief sought by the applicant as set out in the draft order attached to the application is couched as follows;

INTERIM RELIEF GRANTED

IT IS ORDERED THAT:

Pending the final determination of the legality of the 4th respondent’s decision to advise the 1st respondent to establish a tribunal in the absence of due process, the 1st Respondent be and is hereby interdicted from setting up a tribunal to investigate the question of removing the applicant from the office in terms of section 187 (3) of the Constitution.

In the event that the tribunal referred to here above is already set up by the 1st respondent to investigate the applicant’s conduct, then the tribunal’s proceedings be stayed until the determination of the legality of the 4th respondent’s decision to advise the 1st respondent to establish a tribunal.

TERMS OF THE FINAL ORDER SOUGHT

That the 1st, 2nd, 3rd, 4th and 5th respondents show cause to this Honorable Court why a final order should not be granted in the following terms:

The 4th respondent’s decision to advise the 1st respondent to set up a tribunal to inquire into the question of whether the applicant should be removed as a judge be and is hereby declared unlawful and set aside.

It is hereby declared that any disciplinary action against the applicant must be done in compliance with Statutory Instrument 107 of the 2012 being the Judicial Service (Code of Ethics) Regulations, 2012 as read with the Constitution of Zimbabwe.

The question that arises therefore is whether the interim order above amounts to a declaratur. A declaratory order is one by which a dispute over some legal right or obligation is resolved. The right or obligation can be prospective or contingent and no specific consequential relief need be claimed (see Naptosa vs Minister of Education, WC 2001 (2) SA 112 (C) @ 125, see also Section 14 of the High Court Act, [Chapter 7:06].

The requirements for the granting of a declaratur were discussed by MAKARAU JP (as she then was) in MDC vs President of the Republic of Zimbabwe and 4 Others HH 28/2007 and as follows:

“The considerations that a court has to take into account before issuing a certificate of declaratur were in my view further expanded and explained in Family Benefit Friendly Society vs Commissioners for Inland Revenue and Another 1995 (4) SA 120 (T) where in six comprehensive paragraphs, VAN DIJHORST J sets out the legal principles applicable when a declaratur is sought and the mental steps that a court must follow on determining whether to issue a declaratur. The applicant or plaintiff must show that:

it is an interested person

there is a right or obligation which becomes the object of the inquiry

it is not approaching the court for what amounts to a legal opinion upon an abstract or academic matter.

there must be interested persons upon which the declaration will be binding; and

considerations of public policy favour the issuance of the declaratur.”

An interim interdict on the other hand was defined in Erasmus; Superior Court Practice Vol 2, 2nd ed at D6-4 as follows:

“An interlocutory interdict is one which is granted pendete lite. It is a provisional order designed to protect the rights of the complainant party pending an action or application to be brought by him. It establishes the respective rights of the parties. It does not involve a final determination of the rights of the parties and does not affect such a determination. Its effect is to freeze the position until the court decides where the right lies, at which point it ceases to operate. It is aimed at ensuring, as far as it is reasonably possible, that the party who is ultimately successful will receive adequate and effective relief”’

In general, the requirements to be met by an applicant when seeking interim relief are as follows:

that the right which is subject is the subject matter of the main action and which he or she seeks to protect by means of interim relief is clear, or if not clear, is prima facie established though open to some doubt.

That, if the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he or she ultimately succeeds in establishing his or her rights

the balance of convenience favours the granting the interim relief

that the applicant has no other satisfactory remedy

See Rudolph and Another v Commisioner for Inland Revenue and Others 1994 (3) SA 771; LF Boshoff Investments (Pty) Ltd v Cape Town Municipality 1969(2) SA 256 (C) Airfield Investments (Pvt) Ltd v The Minister of Lands, Agriculture & Rural Resettlement and 4 ors 2004(1) ZLR 511 (S)

The nature and effect of a declaratory order is to set out in final and definitive terms the rights of the parties, in the present case the applicant does not seek anything of the sort. As I see it what the applicant seeks by way of interim relief is simply an order freezing the status quo pending the outcome of a proper determination of whether or not the provisions of the Code of Ethics are obligatory before a s 187(3) referral can be done. Hers is merely a quest for the preservation of the status quo pending the return day.

By qualifying the relief sought in Paragraph 1 of the interim order sought with the words: “Pending the final determination of the legality of the 4th respondent’s decision to advise the 1st respondent to establish a tribunal…”  The applicant makes it clear that the relief sought is only temporary in nature.

It was spiritedly argued during oral submissions that the application suffers from yet another incurable defect namely the absence of parallel or pending litigation between the parties (such as an application for Judicial review brought by the Applicant) wherein substantive relief is sought.

I however believe that the applicant from the wording of both the interim and final orders sought makes it known that on the return day what falls for determination is the legality of the course taken by the 4th respondent in invoking  s 187 (3) at this stage. Put differently, the return day presents the very platform for parties to deliberate on the legality or otherwise of such referral – the same issue that would have been the subject matter of that other suit envisaged by the 4th respondent. The only major difference, of course, being that on that occasion the applicant (should she obtain the interim order) will be required to establish a clear right in order to succeed in obtaining a declaration of the invalidity of the course taken by the 4th respondent in pursuing the referral (i.e. paragraph 1 of the final order sought and further compelling strict compliance with the provisions of the code of ethics (paragraph 2 of the final order sought). Ultimately on this point therefore, I find nothing remiss on the part of the applicant in seeking by way of a provisional order an interim interdict where after on the return date she intends to pursue a final interdict upon satisfaction of all the requirements thereof not least proof of a clear right.

The joinder of the 2nd and third respondents

Here the complaint is that the joinder of the Judge President and the Chief Justice was improper and unnecessary as no substantive relief was sought from either of them. Reliance was placed on the two cases of Maxwebo v Chairman, Public Service Commission HH 125/97, and Matida v Chairman, Public Service Commission and Anor 1998 (1) ZLR 504 (H) where criticism was levelled by the court at the citing of the Chairperson of the Public Service Commission as a party in suits against decisions of the Public Service Commission as a collective.

To the extent that the applicant seeks in paragraph 2 of the final an order declaring that “…any disciplinary action against the Applicant must be done in compliance with Statutory Instrument 107 of 2012 as read with the Constitution” one may legitimately argue that the joinder of the Chief Justice and the Judge President was proper given that part III of code of ethics which deals with disciplinary procedures of judges necessarily involve the latter two in their respective official capacities.  Put differently should her main argument in the present application carry the day, the applicant seeks an order on the return day which inter alia binds the 2nd and 3rd respondents to follow the provisions of the Code of Ethics. That arguably provides sufficient justification in joining them in the current application.

Should that nexus however be too tenuous to justify the joinder of the 2nd and 3rd respondents to the current application, Rule 87 of the High Court Rules, 1971 provides that a matter cannot be dismissed on account of a mis-joinder or non-joinder of an interested party. See Gula- Ndebele v Bhunu S.C. 29-11.

Applicant’s preliminary points

The question of the validity of 4th respondent’s opposing affidavit

For her part, the applicant fired a broadside at the legal competence of the Executive Secretary of the JSC, Mr. Walter Tambudzai Chikwana to depose to the former’s opposing affidavit (hereinafter referred to as “the affidavit”). In this regard 10 pages of the applicant’s heads of argument (consisting of the ‘first’ and supplementary heads of argument) were dedicated to this cause.

It is common cause that Mr. Chikwana is the Executive Secretary of the JSC. Previously he held the position of Acting Secretary. In paragraph 2 of the impugned affidavit Mr. Chikwana stated that he was duly authorized to depose to the same on behalf of the JSC by virtue of its (i.e. JSC’s) resolution passed in its meeting of the 6th of June, 2019.

The relevant extract of that meeting reads;

“26.	Recommendation to give the Secretary of the Judiciary Service Commission authority to represent the Judicial Service Commission

After some discussions it was agreed that the following procedure should be adopted in all litigation processes involving the JSC –

The lawyer representing the JSC in any case should consult the Chief Justice the Deputy Chief Justice and the Acting Secretary for the purpose of preparing pleadings.

The pleadings should be immediately communicated to all Commissioners. It was resolved to grant authority to the Acting Secretary to sign documents on behalf of the JSC in litigation matters.”

In challenging the authority of Mr. Chikwana to so depose to the affidavit (and consequently its validity) the following issues were raised on behalf of the applicant;

That Mr. Chikwana not being a JSC Commissioner, cannot purport to act on behalf of the JSC in such matters.

That the resolution bestowing authority on him expired simultaneously with the expiration of the term of office of the Commission that made it (“the previous Commission”).

That the authority given to him as Acting Secretary was not transferrable to him in his new capacity as substantive Secretary.

That the authority granted by the resolution was a nullity as the functions of the JSC could not be delegated to a non-Commissioner.

That Mr. Chikwana’s affidavit was non-compliant with rule 227(4) of the Rules for want of his ability to swear positively to the facts. In other words it was contended that the averments contained therein amounted to inadmissible hearsay evidence.

That assuming that the resolution was valid, same did not encompass Mr. Chikwana deposing to affidavits as it only authorized him to the “signing of documents”.

In heads of argument filed on their behalf the 2nd, 3rd and 4th respondents insisted not only on the validity of the opposing affidavit but also on the competence and propriety of Mr. Chikwana to depose to the same. It was pointed out in this regard that Mr. Chikwana in his capacity as Executive Secretary of the JSC has first-hand knowledge of all activities related to it and further that it was not required of him to receive a fresh mandate for each case brought by as against the JSC as general authority suffices. Reliance in this regard was placed on the case of Air Zimbabwe Corp and 10 Ors v The Zimbabwe Revenue authority HH 96/03.

It was further pointed out that the Judicial Service Act [Chapter 7:18] in particular s 10(2) thereof confers the Secretary with authority to perform any function on behalf of the 4th respondent subject to him remaining under the latter’s directions.

The applicant has not provided authority for the proposition that a statutory body in the position of the JSC consisting as it does of a number of individual members drawn from different backgrounds must of necessity elect one of their number to depose to affidavits in litigation by or against it. I have not have been able to find any such authority myself. The position of such a statutory body is analogous to that of a board of directions of a corporate entity. The standard practice is for the latter in such situations to assign that responsibility to a suitable office bearer who sits in meetings of the board who usually but not invariably is the Company Secretary – a position not dissimilar to the one held by Mr. Chikwana.

The very same issue arose in Francis Bere v Judicial Service Commission and 7 ors HH 510-2020. CHIKOWERO J however made short shrift of the challenge to Mr. Chikwana’s authority to depose to affidavits on behalf of the JSC in litigation between it and third parties. He stated as follows:

“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 unauthorized 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 1 (H). I have such evidence in the form of the resolution of the JSC. I am satisfied that Mr Chikwana who sits in the meetings of the JSC to take minutes of the meetings and is knowledgeable of what he deposes to is not on a frolic of his own.”

The argument that the resolution in question expired simultaneously with the expiration of the term of office of the Commission that made it cannot be sustained. If that argument is taken to its logical conclusion it would result in the untenable position that every resolution made by each preceding Commission stands undone upon the expiration of its term of office. I hold the view that every resolution made by a preceding commission remains binding on its successors and third parties unless otherwise expressly or impliedly revoked.

The contention that the resolution passed in favor of the Acting Secretary cannot be construed as being applicable to a substantive secretary amounts to splitting of hairs. Not only is the incumbent the same person as who previously occupied the position of Acting Secretary but also that he carries out the very same functions. In any event the heading of that resolution in this respect specifically refers to the Secretary. As of the time of the making of the resolution, the incumbent held the position of Acting Secretary hence such specific reference. I do not think his elevation to a substantive position should be construed as stripping him of the power he enjoyed in an acting capacity.

Whilst it may be true that constitutional obligations are generally non-delegable, what was delegated in this was not the decision making process but merely “the authority to sign documents on behalf of the JSC in litigation matters.” As I understand the resolution as a whole, the decision-making process remains that of the JSC as a collective because of the requirement that all pleadings be immediately communicated to all Commissioners. This was designed to ensure retention its oversight role in litigation instituted or defended in its name. The delegation of that part of the responsibility to the Secretary did not amount, in my view, to a wholesale abdication or abandonment by the JSC of its constitutional responsibility.

The last issue in relation to the validity of the opposing affidavit concerns the question of whether Mr Chikwana could legitimately swear positively to the facts deposed therein as required under rule 227(4) of the High Court Rules, 1971. The argument presented by the applicant being that since Mr. Chikwana was not involved in the investigations against the applicant he therefore lacked a credible basis upon which he could claim to swear positively to the facts.

Reference was however made on behalf of the respondents during oral arguments that Mr Chikwana’s physical presence in the JSC meetings which received and deliberated on the complaints in question, sufficiently clothed the latter with first-hand knowledge to depose to the affidavit.

Rule 227(4) of the Rules provides as follows;

“(4) 	An affidavit filed with a written application—

shall be made by the applicant or respondent, as the case may be, or by a person who can swear to the facts or averments set out in therein; and

may be accompanied by documents verifying the facts or averments set out in the affidavit, and any reference in this Order to an affidavit shall be construed as including such documents.”

In the first few paragraphs of the challenged affidavit, Mr Chikwana stated as follows;

“I, the undersigned, Walter Tambudzai Chikwana, do hereby make oath and state as follows;

I am the Secretary of the Judicial Service Commission (hereinafter “the JSC”), which is cited as the 4th Respondent herein. I am responsible for its day to day operations.

I am duly authorized to depose to this affidavit on behalf of the 6th of June, 2019. For ease of reference, a copy of the resolution is attached hereto marked Annexure “WTC-A”.

I am familiar with the facts to this mater save where the context indicates otherwise. The fact I depose to are within my personal knowledge and where I have no personal knowledge of the facts, I have used diligence in examining the records of the 4th respondent to establish the veracity of the facts deposed herein as being in all respects true and correct.

I must state however that the legal positions taken as a matter of law as contained herein are based on the advice of the 2nd, 3rd and 4th respondents’ legal practitioners of record, which advice are 2nd, 3rd and 4th respondents, jointly did severally accept as being true and accurate.”

I am of the view that Mr Chikwana provided a proper basis qualifying him to depose to the affidavit in question. The facts in Hiltunen v Hiltunen 2008 (2) ZLR 269 which the applicant relies on are clearly distinguishable. In that case the deponent in a founding affidavit did so ostensibly in the basis of a general power of attorney granted to her by the applicant. All the applicant did was to peruse the record of proceedings at the Magistrate Court before satisfying herself that the record of that matter was not yet ready and that the respondent had not furnished the clerk with the requisite security for the costs of the preparation of the record.

What distinguishes the Hiltunen case from the present are the starkly contrasting roles of the deponents. Whereas in the former the deponent solely relied on the general power of attorney coupled with her perusal of court records, in the present matter the deponent is not only seized with the day to day operations of the litigant (JSC) but also sits in meetings where matters such as the present are deliberated upon. Further in the present matter the deponent goes beyond mere broad authorization coupled with verification of the records, he clearly states that the information that he supplied was within his personal knowledge and the perusal of the documents was only necessary where he lacked personal knowledge of such facts. One can only conclude that he derived such personal knowledge as the executive leader of the JSC. The case of Munangatire v Chikaka & Ors HH11/2018 which the Applicant also sought to rely on is equally distinguishable for the same reason.

In my view it would be untenable in a set up as that of the JSC to insist on personal knowledge on the part of the deponent of every fact constituting the cause of action or defence to a suit. I believe where the applicant or respondent is a corporate entity it is not required of the deponent to have first-hand knowledge of every fact. The deponent can legitimately rely on the records in the organization’s possession to establish “personal” knowledge of at least certain of the relevant facts. In the context of this case the personal knowledge relates to the complaints against the applicant and the subsequent deliberations and outcomes attending thereto by the JSC.

I therefore dismiss in its entirety the preliminary point raised by applicant challenging the authority of Mr. Chikwana to depose to the opposing affidavit.

All the points raised in limine having thus fallen by the wayside I now proceed to address the merits of the application.

ON THE MERITS

The application contends in the main that she has managed to satisfy all the pre-requisites for granting of an interim interdict which have already been set out above in the section dealing with the true character of this application which in short are the following:

the existence of a prima facie right

apprehension of irreparable harm

absence of an alternative remedy

balance of convenience in favour of granting the application

It is however the question of the presence or otherwise of a prima facie right where the real dispute is lies.

Whether or not applicant has managed to establish a Prima facie right

When stripped to its bare essentials the applicant’s main contention is that a proper construction of s 187(3) and s 190(4) of the Constitution as well as Part III of the Regulations reveals that a judge accused of any act of misconduct is entitled to be subjected to the provisions of the latter statute before any contemplated referral to the 1st respondent can be done.

According to the applicant, the interpretation given by 4th respondent to s 187(3) to the effect that it (i.e. 4th respondent) is empowered to refer such a matter directly to 1st respondent without first referring to the regulations will have the following effects and implications:

to irreparably erode the independence of the judiciary in that s 187(3) may be weaponized to intimidate and eliminate non-malleable and non-pliable judges

It would deprive her of her right to administrative justice as enshrined in s 68 of the Constitution more particularly in that her right to be heard would be unjustifiably truncated

it would result in a negation of her right to protection against unfair discrimination and equal protection of the law in that other judges accused of misconduct were subjected to the Regulations and no justification exists for singling her out for  a different procedure

that a direct referral would do violence to the provisions of Part III of the regulations which are in fact peremptory in nature

that the procedure adopted by the 4th respondent not only poses a serious threat to the independence of the judiciary but also negates the very notion of security of tenure of the judges

that the procedure adopted by 4th respondent attenuates the principle of certainty in that whereas some judges are first subject regulations others like herself do not get to enjoy that “two-rung” process.

Further, according to the applicant, the Code of Ethics were a direct consequence of s 190(4) of the Constitution which reads as follows;

190. 	Functions of the Judicial Service Commission.

1. ……..

2. ……..

3. ……..

4. 	An act of Parliament shall confer on the Judicial Service Commission functions in connection with the employment, discipline and conditions of service of persons employed in the Constitutional Court, the Supreme Court, the High Court, the Labour Court, the Administrative Court and other courts.

It was also contended by the applicant that the gravity or nature of the alleged infraction is immaterial and irrelevant in so far as the procedure to be followed is concerned. According to her the provisions of the Code of Ethics are prescriptive and no departure therefrom is permissible. Further, it was averred in this regard that no distinction is drawn in terms of the legislation and as far as procedure is concerned between the disciplinary action against judges is concerned vis a vis their removal from office as the latter is merely a species of the former.

Section 21 of the Code of Ethics (which applicant insists she should have been subjected to before any contemplated referral in terms of s 187(3) of the Constitution) reads as follows;

21.	Disciplinary Committee

Subject to the Constitution and any other enactment if, in the opinion of the Chief Justice, a judicial officer has conducted himself or herself in a manner that appears to violate any provision of this code, the Chief Justice shall appoint a disciplinary committee, which shall investigate the acts or omissions allegedly constitution the violation and submit its findings and recommendations for the consideration of the Chief Justice.

A disciplinary committee shall be appointed on an ad hoc basis, and shall be composed of three members who are sitting or retired judicial officers, and who may be sitting or retired judicial officers from Zimbabwe or any other country in which the common law is Roman-Dutch or English and English is an official language

Provided that two of the members shall be from Zimbabwe, and at least one member must be a sitting judicial officer serving in Zimbabwe, other than the Chief Justice

The 4th respondent sternly defended the course of action it took contending as it did that it did no more than what s 187(3) entitles it to do. It disputed the interpretation given to the said provision by applicant and argued that impeachable conduct, referred to the 1st respondent does not have to be preceded by proceedings under the Code of Ethics.

The relevant parts of section 187 of the Constitution read as follows;

187.	Removal of Judges from office

(1) 	A judge may be removed from office only for—

(a)	 inability to perform the functions of his or her office, due to mental or physical incapacity;

(b) 	gross incompetence; or

(c) 	gross misconduct;

and a judge cannot be removed from office except in accordance with this section.

…..

If the Judicial Service Commission advises the President that the question of removing any judge, including the Chief Justice, from office ought to be investigated, the President must appoint a tribunal to inquire into the matter.

In my view, as far as to the procedure for dealing with judges accused of acts of misconduct is concerned s 187(3) of the Constitution and Part III of the Code of Ethics provide two distinctly dichotomous routes. Whereas the former is principally aimed at investigating the suitability of otherwise of the imperiled judge in continuing to hold office in light of the alleged acts of misconduct, the latter is mainly aimed at some other disciplinary measure than removal from office. I must hasten to point out that it does not however follow that the outcome of the latter process necessarily precludes a subsequent referral in terms of s 187(3) of the Constitution. This much is clear from a reading of s 24 (3) of the Code of ethics to which I will shortly revert.

Related to the above is the question of the gravity of the alleged infraction. The use by the legislature of the words “gross” incompetence and “gross” misconduct in s 187(3) (which words are absent in s 21 of the Code of Ethics) convey the unmistakable meaning that s 187(3) is reserved for transgressions which are deemed serious.

The threshold for invoking s 21 is much lower; it may be invoked where “…. a judicial officer has conducted himself in a manner that appears to violate any provision of the code.” The applicant’s argument that no distinction can and should be drawn between “disciplining” of judges and “removal” of judges cannot be sustained because a reading of those sections clearly conveys such a distinction.

The outcomes of the two procedures are starkly contrasting in nature leading further credence to the existence of the aforementioned dichotomy. The sole question for determination under s 187 of the Constitution on the one hand is whether or not to remove a judge from office (see subsections 7 and 8), under the Code of Ethics the following are possible outcomes under section 24. The said section reads;

“24.	Disciplinary Measures

Subject to the Constitution and any other enactment, the following disciplinary measures that may be imposed on a judicial officer whose conduct is found to be in violation of this code, according to the gravity or frequency of the violation

a reprimand from the Chief Justice

a severe reprimand from the Chief Justice

a final reprimand from the Chief Justice

All reprimands under this code shall be recorded and placed in the personal file of the judicial officer concerned.”

…

My understanding as earlier stated is that the Code of ethics (which was made under section 190 (4) of the Constitution) is reserved for relatively minor infractions. Gross acts of misconduct amounting to impeachable conduct on the other hand invite proceedings under s187(3) of the Constitution.

Similarly, the Code of Ethics (particularly in sections 21, 24, 25 and 26) makes it clear that its provisions are subject to the Constitution, in other words it subordinates itself to the Constitution.

Perhaps the clearest indication yet of the intention of the legislature in creating these to dichotomous procedures is to be found in the Sixth Preamble to the Code of Ethics. It reads:

“And whereas the Constitution provides for the impeachment of a judicial officer, it is recognized that no formal complaints mechanism is provided to deal with complaints about judicial officers falling short of impeachable conduct.”

It is trite that the Preamble can be used to shed light on and clarify obscurity in the language of a statutory or, Constitutional provision. The clear meaning conveyed by the aforementioned preamble is that in so far as complaints against judicial officers are concerned, the code of ethics was intended to plug the lacuna obtaining before its promulgation, namely that there was no formal complaints mechanism for conduct falling short of impeachable conduct yet the Constitution provided an elaborate procedure for conduct justifying removal of a judge from office.

Further, if the procedure under the Code of Ethics was meant to be a precursor to the referral in terms of s 187(3) then either the Constitution or the Code of Ethics (or both) would have said so. It seems to me that when seized with a complaint or an apparent act of misconduct, a decision has to be made from its nature whether same is gross to justify direct referral in terms of s 187(3) or non-serious to invoke the provisions of the Code of Ethics.

The exercise of such discretion is an administrative function that can be subject to review – however that is not my task (i.e. to review that decision) in the present case.

By locating the question of removal of a judge on the one hand in a separate Section of the Constitution with that of discipline on the other, the Constitution maker clearly intended a differentiation of the procedures.

Should doubts still linger regarding the intention of the legislature on the dichotomy between disciplinary proceedings under the Code of ethics on the one hand and removal proceedings under s187 of the Constitution on the other, subsection 3 of section 24 of the code of Ethics puts such doubts to rest. It provides:

Nothing contained in this Code shall be construed as taking away or derogating from-

The powers conferred on any person by section 87 of the Constitution and, in the case of Presidents of the Labour Court or the Administrative Court, the terms and conditions of their service applicable to them at the time any action is taken under this part; or

… (emphasis added)

The Code of Ethics was promulgated in 2012 and therefore predates the current Constitution which came into force a year later. Reference in the above subsection to section 87 of the Constitution should therefore be understood as referring to the old Constitution, i.e. the 1980 Constitution (as amended). That was the section dealing with the removal of judges from office (i.e. the equivalent of section 187 of the current Constitution). The relevant portion of section 87 of the repealed Constitution read as follows:

“87 Removal of judges from office

(1) A judge of the Supreme Court or the High Court may be removed from office only for inability to discharge the functions of his office, whether arising from infirmity of body or mind or any other cause, or for misbehaviour and shall not be so removed except in accordance with the provisions of this section.

(2) If the President considers that the question of the removal from office of the Chief Justice ought to be investigated, the President shall appoint a tribunal to inquire into the matter.

(3) If, in the case of a judge of the Supreme Court or the High Court other than the Chief Justice, the Chief Justice advises the President that the question of removal from office of the judge concerned ought to be investigated, the President shall appoint a tribunal to inquire into the matter.

(4) A tribunal appointed under subsection (2) or (3) shall consist of not less than three members selected by the President from the following—

(a) persons who have held office as a judge of the Supreme Court or the High Court;

(b) persons who hold or have held office as a judge of a court having unlimited jurisdiction….”

Subsection 3 of section 24 of the Code of Ethics therefore makes it clear that nothing contained in the Code shall be construed as taking away or derogating from the powers conferred on any person by section 87 (i.e. the current s187) of the Constitution, pertinently the power to make a direct referral for impeachable conduct. The only major difference being that in the old Constitution the referral was the prerogative of the Chief Justice and in the current Constitution same lies with the JSC. The irrefragable position is that disciplinary proceedings under the Code of Ethics are separate and distinct from those aimed at investigating the question of the removal of a judge from office in terms of s187(3) of the Constitution save where findings arrived at in the former may well lead to the invocation of the latter.

I am constrained to briefly remark on allegations of bias, mala fides and non-observance of other principles of natural justice levelled at the 2nd, 3rd and 4th respondents in handling her matter although I do not believe that same constitute the main basis of this application. I do not understand this current application as being an amalgam of an application for the review of the decision of the JSC of the 12th of October 2020 merged with a challenge of the direct referral made under section 187 (3) of the Constitution. For me the position of the applicant from the beginning has been to challenge the legality of the direct referral route without prior resort to the Code of Ethics. Be the as it may, the applicant cannot in one breath spurn the invitation to respond to the complaints against her (ostensibly on the basis that the respondents had elected to pursue the wrong procedure) and in the next breath claim that her right to be heard was violated. The invitation to respond to the complaints presented precisely such an opportunity for her to give her side of the story including allegations of malice or impropriety on the part of any of the current respondents.

Ultimately therefore, I do not believe the applicant has managed to set out a prima facie right let alone a clear one entitling her as of right to be subjected to the Code of Ethics first before any contemplated referral under s 187(3) of the Constitution. The application has therefore failed to surmount the first hurdle rendering it unnecessary to interrogate the remaining requirements for an interim interdict.

COSTS

The general rule is that the successful party is entitled to his or her costs and I see no good reason for departing from the same. The 2nd, 3rd and 4th respondents sought costs on a legal practitioner scale, however I don’t find any justification for granting costs on that scale.

Accordingly, the application be and is hereby dismissed with costs.

Mtetwa and Nyambirai, applicant’s legal practitioners

Civil Division of the Attorney General’s Office, 1st and 5th respondents’ legal practitioners

Kantor and Immerman, 2nd, 3rd and 4th respondents’ legal practitioners