FULL TEXT: Govt Appeal Against Malaba Ouster

2 years agoTue, 18 May 2021 05:00:58 GMT

FULL TEXT: Govt Appeal Against Malaba Ouster

The Attorney-General, Advocate Prince Machaya Monday filed an appeal at Harare High Court seeking to set aside an order obtained by the Young Lawyers of Zimbabwe and Fred Mutanda represented by Zimbabwe Lawyers for Human Rights members granted Saturday by 3 High Court Judges nullifying the extension of the term of office for Luke Malaba as Chief Justice.

Advocate Machaya argues in his court papers that High Court Judges Justices Happias Zhou, Edith Mushore and Jester Charewa erred and misdirected themselves when they ruled on Saturday that Malaba ceased to be Zimbabwe’s Chief Justice.

We present the notice of appeal in full below.

IN THE SUPREME COURT OF ZIMBABWE CASE NO.SC…./21 HELD AT HARARE REF CASE HC 2166/21
In the matter between:
ATTORNEY GENERAL N.O APPELLANT
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AND
YOUNG LAWYERS ASSOCIATION OF ZIMBABWE 1ST RESPONDENT
AND
FREDERICK CHARLES MOSES MUTANDA 2ND RESPONDENT
AND JUDICIAL SERVICE COMMISSION 3RD RESPONDENT
AND
THE CHIEF JUSTICE OF ZIMBABWE HONOURABLE LUKE MALABA N.0 4TH RESPONDENT
NOTICE OF APPEAL
BE PLEASED TO TAKE NOTICE THAT, the Appellant hereby appeals against the whole judgment of the High Court of Zimbabwe sitting at Harare handed down by Zhou J, Charewa J, and Mushore J in case number HC 2166/21 on 16 May 2021. A
copy of the judgment is attached hereto. No leave to appeal is necessary.
FURTHER TAKE NOTICE THAT the Appellant’s address for service for the purposes of this appeal is that of its legal practitioners of record, Attorney General’s Office, 3rd Floor, Block A, New Government Complex, Cnr Samora Machel Avenuettn4 Fourth Street. Harare.
FURTHER TAKE NOTICE THAT the grounds upon which the appeal is made are the following:-
1. The High Court erred in finding that the 18, Applicant before it (the 18, Respondent herein) had locus standi to obtain the relief that it granted in the absence of evidence of the violation or potential violation of its members’ right to equal protection and benefit of the law in terms of section 56 (1) or the right not to be treated unfairly in terms of section 56 (3) or the right to access courts established in terms of the law enshrined in section 69 (3) of the Constitution of Zimbabwe.
2. The High Court erred in finding that the 2nd Applicant before it (the 2nd Respondent herein) had locus standi to obtain the relief that it granted in the absence of evidence of the violation or potential violation of his right to equal protection and benefit of the law in terms of section 56 (1) or the right not to be treated unfairly in terms of section 56 (3) or the right to access courts established in terms of the law enshrined in section 69 (3) of the Constitution of Zimbabwe.
3. The High Court further erred in granting the application before it without having made a declaration that in fact the rights of the 18, and 2nd Respondents in terms of sections 56 (1) and 56 (3) of the Constitution of Zimbabwe had been violated.
4. The constitutionality of Constitutional Amendment No. 2 not having been in question and the High Court having recognised it as a valid law, the High Court further erred in finding that section 186 (4) as amended could not derogate from the provisions of section 328 (7) of the Constitution of Zimbabwe and therefore that the 4,5 Respondent had ceased to be the Chief Justice for Zimbabwe upon attaining the age of 70.
5. The High Court further erred in finding that the 4th Respondent attained the age of 70 at 00.00hrs on the 15th of May 2021 when by virtue of section 336 of the Constitution of Zimbabwe the 4th Respondent attained the age of 70 at the end of day on the 15th of May 2021, that is at 00.00hrs on the 16th of May 2021.
6. The High Court consequently erred in failing to find that the appointment of the 4th Respondent as the Chief Justice of Zimbabwe to continue in office made by the President of Republic of Zimbabwe on 11 May 2021 was with legal effect from 16 May 2021.
7. The High Court erred in finding that the current Judges of the Supreme Court, and the Constitutional Court were not entitled to benefit under section 186 of the Constitution of Zimbabwe (as amended) while at the same time finding that the extension of tenure of judicial service was not a benefit denied to High Court Judges.
8. The High Court erred in holding that section 186(4) of the Constitution could only apply in the future, and not to the current Judges of the Supreme and Constitutional Court when there was nothing in the constitution suspending the operation of section 186(4) of the Constitution.
9. The High Court erred in holding that section 186 of the Constitution as amended increased a term limit provision, and was therefore subject to section 328(7) of the Constitution of Zimbabwe. The Court ought to have found that section 186 did not extend any term limit for the 4th Respondent, and the Judges of the Supreme and Constitutional Courts.
WHEREFORE, the Appellant prays that: –
1. The appeal be allowed and the judgment of the High Court be set aside and substituted with the following:
“The application filed by the applicant in case number HC 2128/21 is hereby dismissed with costs.”
2. The 1. Respondent shall bear the costs of this appeal.
DATED AT HARARE THIS 17th DAY OF MAY 2021.