The High Court on Thursday (10 June 2021) dismissed an urgent court application seeking to have Chief Justice Luke Malaba found guilty of contempt of court, effectively giving him the green light to keep reporting for duty despite an earlier judgment that ruled that he had stopped being the topmost lawyer on 15 May.
The Zimbabwe Human Rights NGO Forum director, Musa Kika, filed the application, arguing that Malaba was in contempt of court when he resumed work on 24 May 2021, after High Court judge Justice Happias Zhou—sitting with fellow judges, Edith Mushore and Jester Charewa—had ruled he could not continue in that position because he had reached the age limit of 70 years.
Malaba had resumed work after Justice minister, Ziyambi Ziyambi, and the Judicial Service Commission (JSC) appealed against the High Court judgement at the Supreme Court.
In his application, Kika—through his lawyers Slyvaine Vongai Tendere and Thabani Mpofu—argued that the appeal could not set aside the earlier judgement because it was a declaratur or declaratory order that did not give room for appeal on the same matter.
Kika submitted that Malaba was supposed to be imprisoned or alternatively fined ZW$ 1 million and also cover costs of the lawsuit. .
However, in the Thursday judgement, Justice Amy Tsanga and Slyvia Chirawu-Mugomba dismissed the contempt of court application.
“The application for civil imprisonment for the first respondent (Malaba) contempt of court is dismissed with no costs,” said Justice Tsanga.
The full judgement will be availed to Kika and Malaba in due course, according to the judges.
In a side interview with journalists outside the High Court, Wilbert Mandinde, the Zimbabwe Human Rights NGO Forum programmes coordinator, hinted that they could appeal against the judgement at the Supreme Court.
“We are yet to get the full judgement. We will study the judgement and see how we proceed from there,” he said.
Before the case was argued on 3 June, Justice Webster Chinamora recused himself from the original three-judge bench on the basis that he had met the JSC secretary, Walter Chikwana, before the bench met, so he had been conflicted.
The meeting was initially exposed on social media and was said to have been held in order to influence the judges to throw out the contempt of court application against Malaba.
The Supreme Court will give a final judgement on the Malaba term of office when it hears the appeal by Ziyambi and the JSC.