Chief Justice Luke Malaba’s lawyers on Thursday (3 June 2021), made frantic efforts to have the High Court spare him punishment for alleged contempt of court, which can attract imprisonment or a fine.
Malaba’s lawyers made the pleas during the hearing of an application filed by Human Rights NGO Forum director, Musa Kika.
The application challenged Malaba’s resumption of duty on 24 May 2021 after the High Court declared that he could not continue in office when he reached the retirement age of 70 years on 15 May 2021.
On 14 May this year, President Emmerson Mnangagwa re-appointed Malaba for five more years on the basis of a recent constitutional amendment that gave him the power to appoint judges on his own—unlike in the past when candidates went through a public selection process—and to extend judges’ tenure by five years on presidential discretion.
Following this, the Young Lawyers Association of Zimbabwe and Zimbabwe Human Rights NGO Forum director, Musa Kika, approached the High Court to challenge the reappointment.
Justice Happias Zhou, sitting with fellow judges, Jester Charewa and Edith Mushore, on Saturday 15 May 2021, ruled in favour of the two parties.
On Monday (24 May 2021), Malaba reported for duty at his office in Harare, on the belief that an appeal made subsequently had set aside the High Court ruling.
The appeal was put forward by the Judicial Service Commission (JSC) at the instigation of Justice minister, Ziyambi Ziyambi.
However, on Tuesday (25 May 2021), Kika hit back with a new challenge, arguing that Malaba, by returning to work, was in contempt of the High Court ruling, which he insisted was declaratory and, therefore, could not be set aside.
In the urgent application, Kika, through his lawyer, Slyvaine Vongai Tendere, sought to have Malaba—the first respondent—jailed for at least six months.
The other respondents are Ziyambi, Deputy Chief Justice Elizabeth Gwaunza and the JSC.
At the Thursday court hearing that Justice Amy Tsanga and Justice Slyvia Chirawu-Mugomba presided over, Malaba’s lawyers, led by Lewis Uriri, an advocate, insisted that he did nothing wrong by returning to office.
There was drama when of the scheduled judges, Webster Chinamhora, recused himself from hearing the case as the third judge, declaring that he been conflicted by a meeting he held with Walter Chikwanha, the JSC secretary, last week.
This mysterious meeting was outed through social media reports, which alleged it had been called to influence Chinamhora to fix the outcome of the impending application against Malaba’s return to work.
Malaba’s lawyers fought to have the matter deferred until a third judge had ben roped in but Tsanga, who finally sat with Slvia Chirawu-Mugomba only, threw out the plea and allowed proceedings to go on.
It was after Thabani Mpofu, representing Kiki, had resisted adjournment of the hearing to another date on the basis that Chinamora recused himself.
Mpofu also argued that Malaba was a seasoned legal person who ought to have understood that he was not supposed to report for duty after a court order that nullified his re-appointment.
“Former Chief Justice Malaba passed many judgements which were abided by. There is nothing stopping him from abiding by a decision of the High Court,” argued Mpofu.
He stressed that, by not attending the swearing in of six Supreme Court judges on 3 June, and assigning his role to Acting Chief Justice Gwaunza, Malaba had showed that he knew he was not the substantive office holder.
However, Uriri insisted that the appeal made by the JSC against the High Court order that reversed Malaba’s re-appointment effectively set aside that initial ruling.
He said that, the fact that the presiding judge used the words “It is declared” did not make the judgement declaratory.
Thembinkosi Magwalimba, an advocate who represented Ziyambi, argued that Zhou’s judgement that set aside Malaba’s re-appointment “did not require anyone to do anything and or stop doing something therefore contempt of court proceedings cannot be used in these circumstances.”
The presiding judges adjourned the court and reserved their judgement that is now expected next week.