The Court hearing the contempt of court charges against former Chief Justice Luke Malaba sat at 2 pm Thursday to consider if a two-judge bench can proceed.
This was after the recusal of one of the judges. The hearing later resumed with 2 judges as Justice Chinamhora recused himself.
Justice Chinamhora confirmed that he had a meeting with the Justice Service Commission (JSC) Secretary Walter Chikwana. The JSC is a party to the hearing.
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Lawyers for Luke Malaba and Justice Minister Ziyambi Ziyambi have requested permission to appeal against the composition of the bench as a two-judge bench.
Advocate Thabani Mpofu opposed the request and castigated the respondents for ostensibly trying to get a favourable judge.
Justices Tsanga and Chirawu-Mugomba have dismissed the application for leave to appeal against the composition of the bench saying there are no prospects of success. The hearing then proceeded.
Advocate Thabani Mpofu then addressed the court arguing why Malaba should be committed to prison.
Mpofu told the court that Malaba complied with the order issued by Justice Zhou for some 10 days before he made a decision to violate it.
Mpofu also urged the court to take judicial notice of the swearing-in of 6 Supreme Court judges today (Thursday) presided over by the Acting Chief Justice Gwaunza because the former Malaba was complying with Zhou order.
He also observed that Justice Zhou’s order was being abided by but as and when the Malaba wishes to.
On Malaba’s contempt of court, Mpofu submitted that the former CJ had passed many judgements which were abided by. There is nothing stopping him from abiding by a decision of the High Court.
Advocate Uriri, representing Malaba, denied that Malaba was in contempt of court insisting that the use of the word it is declared does not make an order a declaratory one.
Advocate Magwaliba, representing the minister of justice, submitted that the Zhou judgment did not require anyone to do anything and or to stop doing something and therefore contempt proceedings cannot be used in these circumstances.
The lawyers for the minister of justice asked for the application to be dismissed with costs prompting Justice Tsanga to question:
_Does the issue of costs not discourage citizens from challenging matters in court?_
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Mr Addington Chinake, representing Justice Gwaunza (Acting CJ) noted that she is just a passenger in this matter. He further submitted that Malaba, the Acting CJ and the JSC were not in willful violation of the order as they had sought an opinion on the subject which opinion they were following.
In response, Advocate Mpofu submitted that Malaba never pleaded that he took advice, he is a lawyer and a judicial officer. He got advice long after he had received the advice.
Mpofu further submitted that if Malaba wishes to go back to work, he can approach the court for an order to be allowed to do that pending appeal.
The court adjourned. The ruling is pending and expected next week.