COURT WATCH 9/2021
[29th May 2021]
When is a Chief Justice not a Chief Justice?
A fortnight ago the High Court ruled that Chief Justice Malaba ceased to be Chief Justice when he turned 70 on the 15th May. The court ruled that the recent amendment to section 186 of the Constitution, which would allow certain judges to serve until the age of 75, did not apply to Mr Malaba. The court’s order was as follows:
“It is declared that:
1. The 2nd respondent [i.e. Mr Malaba] … ceased to hold the office of Chief Justice of Zimbabwe and judge by operation of Law on 15 May 2021 at 0000 hours.
Following the judgment the Minister of Justice, Legal and Parliamentary Affairs and the Attorney-General filed an appeal to the Supreme Court on the 17th May. The 17 judges who were also respondents in the case have now followed suit with their appeal. Apparently believing that the noting of an appeal suspended the High Court’s judgment, Mr Malaba is reported to have gone to his office and may have carried out administrative work as Chief Justice. As a result the chairperson of the Zimbabwe Human Rights NGO Forum has filed an urgent application in the High Court for an order committing Mr Malaba to prison for contempt of court. The applicant’s papers can be viewed on the Veritas website [link].
Basis of the Application for Contempt
In this latest application the applicant seeks an order in the following terms:
“It is ordered that:
1. First respondent LUKE MALABA is found to be in contempt of the judgment of the High Court per Zhou, Mushore and Charewa JJ given under case number HC/ ___/21. Consequently:
1.1 Luke Malaba is ordered to pay a fine in the sum of $1 000 000,00.
1.2 Luke Malaba is committed to Chikurubi Prison for a period of 6 months all of which is suspended on the grounds that he shall forthwith and immediately after service upon him of this order cease and desist from exercising the functions of CHIEF JUSTICE OF ZIMBABWE either in a judicial or administrative capacity.
1.3 The record of these proceedings together with the order of court shall be placed before the Law Society Ethics and Disciplinary Committee for it to take any action it may find advisable and appropriate, the circumstances of the matter considered.
2. Costs of this application be borne by the first respondent on the higher scale of legal practitioner and own client.”
The applicant’s reasons for seeking this order are as follows:
The High Court’s judgment was not suspended by the noting of an appeal against it, and
Mr Malaba deliberately flouted the High Court’s order by going to his office on the 24th May and exercising the functions of Chief Justice.
Does the Appeal Suspend the Court’s Judgment?
As a general rule, a court’s judgment is suspended if the losing party notes an appeal against it, but this is only a general rule. One exception recognised by courts in Zimbabwe and elsewhere is that declaratory orders are not suspended by an appeal. A declaratory order is a ruling by a court declaring what the law is, or declaring that a factual situation exists because of a rule of law.
That is precisely what the High Court in Mr Malaba’s case did: it declared that he was no longer Chief Justice or a judge by operation of law (more precisely, by operation of section 186 of the Constitution before its most recent amendment). The Court did not order Mr Malaba to do anything; it simply declared what his status was because of the law.
Hence the applicant has firm grounds for contending that the High Court’s order has not been suspended by the noting of an appeal.
Was Mr Malaba in Contempt?
Here the applicant is on shakier ground. The Court’s order simply determined Mr Malaba’s status – i.e. that he was not Chief Justice or a judge – and did not go further to tell him expressly what he should or should not do. As a result, when Mr Malaba resumed work as Chief Justice it is arguable that he did not breach the Court’s order – though may well have broken some other laws.
In our Court Watch 8/2021 we pointed out that if the government’s appeal against the High Court’s decision does not succeed, and the appeal court confirms that Mr Malaba ceased to hold office on the 15th May, it will be impossible to validate anything that he might have done after the judgment was delivered. Hence it would be advisable for him to stay at home until the appeal is decided, and leave his official work to Justice Gwaunza, who has been appointed Acting Chief Justice.