BY NQOBANI NDLOVU
THE matter in which three Supreme Court judges were meant to controversially hear their own appeal was yesterday removed from the roll.
Justices Lavender Makoni, Samuel Kudya and Elfias Chitakunye had appealed a High Court judgment in a case in which the Zimbabwe Human Rights NGO Forum (The Forum), Young Lawyers Association of Zimbabwe (YLAZ) and Frederick Mutanda had challenged the extension of Chief Justice Luke Malaba’s term of office. The three judges were set to preside over the case.
However, parties to the appeal decided that all the appeals must be removed from the roll as the issues had already been dealt with in the Constitutional Court (ConCourt) case brought by Zanu PF activist Marx Mupungu.
The judgment was issued by consent.
Justice minister Ziyambi Ziyambi’s lawyer, Thembinkosi Magwaliba proposed that the appeal should be removed from the roll because it raised issues that had already been addressed in the Mupungu judgment by the ConCourt.
Addington Chinake and Andrea Dracos, who represented the judges and YLAZ concurred with Magwaliba.
In the ruling, Justice Makoni said the four appeals “are hereby removed from the roll with no order as to costs” because all issues raised in the appeals were dealt with in the Mupungu judgment.
The Forum did not attend the hearing, saying it had been overtaken by events.
In May this year, High Court judges Justices Happias Zhou, Edith Mushore and Jester Charewa ruled that the extension of Malaba’s term by five years after reaching the retirement age of 70 was unconstitutional after Kika, YLAZ and Mutanda filed separate applications at the High Court challenging the extension.
The applicants cited Ziyambi Ziyambi, the Judicial Service Commission (JSC), Attorney-General Prince Machaya and all the judges of the Constitutional and Supreme courts.
The JSC and the 17 Supreme Court and ConCourt judges, including Justices Makoni, Kudya and Chatukuta, appealed the judgment two weeks later.
But before the appeal was heard, Mupungu approached the ConCourt seeking to reverse the High Court ruling.
The ConCourt bench led by Deputy Chief Justice Gwaunza unanimously ruled that the extension of Malaba’s term limit was constitutional.
The apex court annulled Justice Zhou’s judgment, confirming that all medically fit judges of the three top courts’ terms of office could be extended until they reached the age of 75.
The three judges concurred that the constitutional rights applied only to sitting High Court judges and not to sitting Supreme Court or ConCourt judges.
Kika snubbed the hearing after the ConCourt dismissed his application to have the judges recuse themselves, saying they were conflicted.
He also snubbed the Mupungu hearing after judges cited in the matter refused to recuse themselves saying he strongly felt that it was irregular for the court to sit over its own matter.
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