THE High Court has dismissed an urgent application filed by Supreme Court judge Justice Francis Bere in which he sought an order to stop the three-member tribunal from commencing an inquiry into alleged misconduct in the performance of his duty.
BY CHARLES LAITON
The matter is now set to be heard after the lockdown.
President Emmerson Mnangagwa recently appointed, on the recommendation of the Judicial Service Commission (JSC), a three-member tribunal to decide on Justice Bere’s suitability to continue holding office, following the commission’s sudden U-turn after initially clearing the Supreme Court judge in November last year.
On Tuesday, High Court judge Justice Alpheus Chitakunye heard arguments on preliminary points raised by Justice Bere’s lawyers, Lovemore Madhuku and advocates Girach Firoz and Lewis Uriri, instructed by Dube, Manikai and Hwacha Legal Practitioners, while the JSC was represented by Advocate David Ochieng, instructed by Andrew Mugandiwa of Wintertons law firm.
Justice Bere had filed an urgent chamber application challenging the legality of the tribunal following a sudden U-turn made by his employer, but after hearing the arguments from both sides, the judge then deferred his ruling.
Speaking to NewsDay yesterday, Madhuku said: “The matter has been ruled not urgent and will now proceed on the ordinary roll. It has been said (by the judge) that the lack of urgency stemmed from the lockdown. The judge took the view that it is a matter that can be heard after the lockdown. The matter will now proceed as an ordinary application.”
Before the court’s determination, the JSC, through Ochieng, argued that the matter was not urgent and that it could not be heard during the lockdown.
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Ochieng also defended the JSC’s decision to refer Justice Bere’s case to the President for the constitution of a tribunal despite having cleared him of any wrongdoing in November last year.
Ochieng argued that the tribunal could not be stopped from inquiring into the matter, saying if the JSC was wrong, such a finding had to be made by the tribunal.
Girach, who led Justice Bere’s defence team, had argued that the JSC acted unlawfully by recommending a tribunal against Justice Bere when it had earlier cleared him of any wrongdoing.
Girach further argued that Justice Bere’s right to be heard was violated because the complainant in one of the cases, Itayi Ndudzo, had written a second letter implicating the judge, but the JSC did not afford him an opportunity to respond.
