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Daniel Nemukuyu-Investigations Editor

MISCONDUCT by High Court judges which recently saw two being fired while another one went away without official leave (AWOL) for a year, has proved costly to 37 partly-heard cases that now have to be re-tried before other judges.

The cases were at different stages of trial while others were awaiting judgment when the judges stopped presiding over them.

While removing errant judges from the bench may appear costly, it is a necessary evil that cleanses the system and helps the bench retain an image that inspires confidence in the public.

However, it comes with costs and sometimes a breakdown in justice delivery, as cases pending before the removed judge are allocated to other judges for them to be heard afresh. 

Justices Erica Ndewere and Thompson Mabhikwa were recently removed from office over misconduct while Justice Edith Mushore last reported for duty in June last year and no one knows where she is.

President Mnangagwa recently set a tribunal to inquire into the suitability of Justice Mushore to continue holding the esteemed office but she is nowhere to be found.

The trio’s cases have increased the bench’s workload. At least 37 of the cases they were handling are now being allocated to other judges for fresh trials.

In criminal cases, some of the suspects who are out on bail, are no longer complying with bail orders.

Some are just walking free without periodically reporting to the police in terms of their bail conditions.

Statistics obtained from the High Court show that Justice Ndewere had 14 partly heard matters that are now being allocated to other judges while Justice Mabhikwa had three pending cases.

Justice Mushore, who disappeared a year ago, left behind 19 matters, some that had been dormant for over two years.

Legal experts cried foul over inconveniences caused by the judges’ misconduct and the costs and delays associated with retaking trials.

A former magistrate, who is now in private practice, Mr Reuben Mukavhi said starting afresh may result in collapse of intact cases.

“Re-allocation of cases for fresh hearings entails a delay in the finalisation of the cases and sometimes a collapse of otherwise intact cases as witnesses might no longer be available or might alter their testimonies in line with cross-examination experience from the aborted trial.

“Justice will no longer be easy to achieve in such cases,” he said.

Mr Mukavhi added that the process is costly.

“In criminal cases, a trial de novo means that the State has to fork out more money in witness expenses as it recalls witnesses who had already testified before the removed judge.

“In civil cases, the parties to the case foot the bills of bringing their witnesses to court on their own. A fresh trial means the parties have an increased financial burden,” he said.

Administratively, Mr Mukavhi said, the removal of a judge results in the remaining judges having to shoulder increased workload.

The cases that were pending before the removed judge find their way to the already packed court rolls of the remaining judges.

The result is a delay in the finalisation of not only the re-allocated cases, but also those that were already on the remaining judges’ court rolls.

However, Mr Mukavhi said the removal of a judge is a necessary evil. 

“Weighing the costs attendant on removing a judge for misconduct against the benefits thereof, it can be concluded that the benefits outweigh the costs.

“Justice must not only be done, but be seen to be done. Justice is a game of public confidence. Gross misconduct by judges erodes public confidence in the judiciary, with the result that the public might start taking the law into their own hands. Society is thus better off footing the costs attendant on the removal of a judge than risking a fall in public confidence in the judiciary,” he said.

Harare lawyer Mr Godfrey Unzemoyo said the State will have to fork out more to bring back to court witnesses who would have already testified before another judge.

“The state, through the Judicial Service Commission, will have to fork out money to cater for witnesses’ expenses.

“At the High Court there is a backlog of both civil and criminal matters. It means that more work is allocated to Judges who are already saddled with many trials and other matters. 

“The accused has to be indicted to the High Court again and witnesses have to be located so that they come and testify.

“At times it is not easy to locate witnesses and the accused since people change addresses or places where they were staying.

“Some matters remain outstanding for long due to the fact that witnesses or the accused cannot be located,” he said.

Ms Jacqueline Sande of Sande & Partners said: 

“The misconduct of judges disrupts the smooth flow of the justice system. Cases will have to be reallocated. The expertise gained by judges in handling matters and all the training go to waste.

“New judges have to be appointed and training has to take place again. Judges normally sit until they retire but that will not happen,” she said.

Justice Ndewere’s cases

CRB 69/18 State Versus Jonah Charamba

CRB72/18 State Versus Tendai Nyamudahondo

CRB126/18 State Versus William Mutsiwa Hukuimwe

CRB97/19 State Versus Judah Chikore

CRB31/19 State versus Kasikai Goodzi and Pasca Goodzi

CRB76/19 State versus Cleopatra Mutisi and 2 others

CRB81/19 State versus Patrick Mhondimu

CRB05/16 State versus Allen Marime

CRB53/20 State Versus Clever Gaza

CRB74/19 State Versus Mark Patrick Shaw

B1489/20 Terrence Manjengwa

B1449/20 Obert Muzenda

B1522/20 Richard Kosam

B1407/20 Wonder Mahuni

Justice Mabhikwa’s cases

HC1699/18 Gibson Boston Siziba Versus S Mupotengwa+1

HC1852/09 Obert Vundhla Versus Admire Nyathi

HC2467/18 Tawanda Musakanda Versus Lovemore Wadzvanya+2

Justice Mushore’s cases

HC322/19 Shomet Industrial Holdings Versus Varysping Trading

HC3860/20 DAGS Trading Pvt Ltd Commissioner-General of Customs

HC5124/20 Terence Mutemeri Versus Mavis Maforimbo

HC3386/18 CNMYBJ Versus Petrotrade

HC4464/19 Zammeer Gaffer Versus Tavengwa Madangure

HC5953/18 Tendai Gwambura Versus Limestone Muzengeza

HC4173/17 Manica Optical Centre Versus PSMAS

HC5989/19 Augur Investments Versus Fairclot Investments 

HC11379/16 AD Medical Supplies Versus Goddorn Murray

HC3203/20 Shamina Holdings Versus Tribac Tobacco

HC268/19 Selina Tayi Versus Veroy Real Estate

HC972/20 City of Harare Versus Fur Bank Trading

HC2978/20 Row Croppers P/L Versus Buppe Kihwaja Changara

HC1786/20 Law Society of Zimbabwe Versus Ministry of Finance and Economic Development

HC5333/20 Joseph Mhunduru Versus Tsaurayi Davi

HC265/19 Zimbabwe Lawyers for Human Rights Versus Minister of State in the President’s office for National Security and others

CA325/20 Mufudzi Chuma Versus The State

HC3860/20 DAGS Trading Versus Commissioner of Customs