Fidelis Munyoro Chief Court Reporter
Justice Francis Bere must now face the tribunal set up to inquire into his fitness to hold office after the High Court ruled on Tuesday that the Judicial Service Commission’s advice to President Mnangagwa to initiate the tribunal was in line with the dictates of the law.
The President set up the tribunal inquiry into the fitness of the Supreme Court judge to hold office after a lawyer accused him of interference in a civil case.
But Justice Bere, who is being represented by Professor Lovemore Madhuku and Advocate Lewis Uriri approached the High Court seeking a review of the JSC’s decision to refer his case to President Mnangagwa, recommending an inquiry into his alleged misconduct.
They also argued that the authority of the person making the affidavit giving the JSC’s advice, Mr Walter Chikwanha, then JSC acting secretary, was improper.
Mr Chikwanha, now the substantive secretary, had been delegated by JSC to file a sworn statement of the commission’s decision advising the President in terms of the constitution on the question of the tribunal that could recommend removal of Justice Bere from office.
But the lawyers argued that Mr Chikwanha was not one of the members of the JSC in terms of the constitution, hence he could not represent the commission in a dispute where its performance of the constitutional obligation was being challenged.
In his ruling, Justice Benjamin Chikowero was unable to agree that advising the President as was done in this case was invalid.
He found that the fact that it is the JSC that is the legal litigant, and not some authorised person acting in its name, and so the commission was properly before the court.
Mr Chikwanha, who sits in the meetings of the JSC, was quite able to depose of an affidavit on behalf of the commission as he was knowledgeable of what he deposed to, hence could not be on a frolic of his own.
“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 commission‘s decisions made in terms of the constitution are being defended in court,” said Justice Chikowero.
“The resolution does not make that distinction. Further, the Judicial Service Act, which draws life from the Constitution, gives the acting secretary the authority to discharge functions where the JSC directs him to do so.”
Justice Bere was serving on both the Constitutional Court and Supreme Court benches when he was suspended in March this year, to pave way for a probe into potential misconduct.
In May, Justice Bere brought the same matter seeking to have it treated with urgency, but the High Court threw it out paving way for the tribunal to sit. The matter then rose through the continuous roll in the ordinary way and appeared before a judge.
The three-member tribunal panel is chaired by retired judge Justice Simbi Mubako. The other two are Harare lawyer Mrs Rekayi Maphosa and Advocate Takawira Nzombe. The tribunal is expected to decide this week on an application by the defence team seeking the recusal of Adv Nzombe from the panel, arguing that he was closely linked to the key witness in the matter, Mr Itayi Ndudzo, whose complaint led to the suspension of Justice Bere.
Mr Ndudzo is said to be pushing for the appointment of Adv Nzombe as acting chairman in a company where he is one of the directors. The defence team is also arguing that the life span of four months of the tribunal has since expired, hence it cannot sit to continue with the probe.
Justice Bere is accused of meddling in a civil case involving the Zimbabwe National Road Administration and his relatives. Justice Bere allegedly telephoned Mr Ndudzo, who was representing Zinara, asking him to consider settling a civil dispute pitting Zinara and Fremus Enterprises.