Lawyers have said the Minister of Justice, Legal and Parliamentary Affairs, Ziyambi Ziyambi, is facing contempt of court charges over his attack on the judiciary following a High Court ruling that nullified the extension of former Chief Justice Luke Malaba’s term of office.
In a statement, the lawyers said:
1. On the 15th of May 2021 the High Court of Zimbabwe per Zhou, Mushore and Charewa JJJ issued a landmark judgment in which it held that the tenure of CHIEF JUSTICE LUKE MALABA had come to an end.
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2. Retired former Chief Justice Luke Malaba served the country for a period in excess of 40 years and his service must be recognised. We thank him.
3. In the aftermath of the judgment, both the MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS, who was cited as the first respondent, and the JUDICIAL SERVICE COMMISSION, which sought joinder in the matter as the 19th respondent, indicated that they would appeal the judgment.
4. The position is that the High Court issued a declaratur as was sought by our consultant, Dr Musa Kika.
5. Whilst an appeal can, all things being equal, be lodged against a declaratur, the position in law is that an appeal does not suspend the operation of a declaratur. Various authorities resolve this point. In Econet (Pvt) Ltd v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149 (H) the correct legal position was articulated as follows: In Mushaishi v Lifeline Syndicate & Anor 1990 (1) ZLR 284 (H) at 288 G, GREENLAND J said: “My ruling is, in effect, declaratory, ie to declare what the law provides. The applicant now enjoys nothing that he did not enjoy before launching the proceedings except the comfort of having had the court confirm his legal opinions. Still, as the facts reveal a competition for rights in respect of the claims, justice, common sense and good order require judicial confirmation on this issue and the seeking of a declaratory order was indicated.”
Accordingly, in my view, since para 1 of the order granted by SANDURA JP W. merely confirming the rights of Econet, the noting of the appeal could not suspend the effect of that paragraph as it does not confer any rights.
6. That being the case, the noting of an(y) appeal cannot suspend the operation of the judgment of the High Court of the 15th May 2021. Hon Luke Malaba is now the former CHIEF JUSTICE OF ZIMBABWE. As a result, in accordance with provisions of section 181 of the Constitution of Zimbabwe, 2013, the substantive DEPUTY CHIEF JUSTICE has now become the country’s ACTING CHIEF JUSTICE. This is a constitutional imperative.
7. Retired CHIEF JUSTICE MALABA cannot for that reason exercise any function either as the Chairperson of the JUDICIAL SERVICE COMMISSION or as a judicial officer, save in rendering judgments in those
8. For that reason, if the retired CHIEF JUSTICE contests the judgment of the High Court, he can only do so in his personal capacity. That position comes with certain consequences for the JUDICIAL SERVICE COMMISSION and in particular as regards its right to note an appeal on behalf of the retired CHIEF JUSTICE.
9. Owing to the gravity of the matter, we wish to advise that we have firm instructions from our consultant to take the necessary legal action, including the institution of proceedings for Contempt of Court should the law not be faithfully and scrupulously adhered to.
10. The statement issued by the MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS, himself a litigant in the proceedings, has caused both ourselves (as officers of the court) and our consultant (as the successful litigant), grave concern. Our consultant has accordingly taken a very serious view of the matter.
11. We, however, wish to respectfully decline the inevitable invitation to engage the contents of the letter. As we politely decline that invitation, we make the observation that the Minister’s statement is actually meant to threaten other judges who may become seized with the offshoots of this dispute. We call upon the MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (Ziyambi Ziyambi) to remain faithful to his obligations as a Minister of the Government of Zimbabwe, a registered Legal Practitioner and a litigant.
12. We, however, have instructions to ensure that the seriousness with which the comments are viewed by our consultant be reflected in the corrective action to be taken.
13. For that reason, we advise that a letter has been written to the Registrar of the High Court, the Judge President and the Honourable justices who dealt with the matter requesting the issuance of a Citation for Contempt of Court against the Minister (Ziyambi).
14. The legal issues that arise from the matter must therefore be dealt with in the High Court. We believe the Minister (Ziyambi) must show cause why the High Court must not hold him to be in Contempt of Court.
15. We are aware that there are so many issues on which the nation would justifiably want to hear our voice. We would rather certain other voices were heard instead. On our part, we will confine ourselves to the matters of law that we have identified and to the pursuit of the corrective measures demanded by the situation.
16. Lastly, we wish to thank Zimbabweans for believing in an orderly and peaceful resolution of mortal disputation. We thank all those who have avidly defended the Constitution of Zimbabwe and have been anxious to ensure the observance of its text and spirit.
17. We thank you all!
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