By Mary Taruvinga
HIGH Court judge, Justice Slyvia-Chirawu Mugomba, has dismissed an appeal by her former colleague, Erica Ndewere, who was seeking to reverse findings of a tribunal against her.
Ndewere was, until June 17, 2021, a sitting judge of the High Court of Zimbabwe before she was fired for gross incompetence and misconduct.
But Ndewere demanded her job back, complaining that the tribunal, consisting of Simbi Mubako, Charles Warara and Yvonne Masvora, had no authority to investigate her.
The tribunal members were cited as second to fourth respondents, while President Emmerson Mnangagwa was cited as the first respondent in Ndewere’s appeal.
She said the tribunal committed a gross irregularity because they failed to make a determination on some preliminary issues; that she was not provided with all relevant documents.
Ndewere also said the tribunal found her guilty of gross incompetence when such charge was not part of the initial reasons for the referral of her matter by the Judicial Service Commission (JSC).
She also submitted that the tribunal ignored her uncontroverted evidence on her health status, that she never had an opportunity to comment on the tribunal findings; that she was not heard in mitigation in relation to the recommendation, which constitutes a gross irregularity.
Ndewere sought an order setting aside the recommendations and the subsequent decision to remove her.
She also demanded reinstatement without loss of benefits and salaries from the date she was fired plus costs.
All the respondents challenged her on grounds that she had approached the Labour Court in Case. No. LCH/319/21 by way of an appeal.
Therefore, they urged the High Court to decline jurisdiction on that basis.
The tribunal also argued that there was fatal non-joinder of the JSC to the proceedings.
Ndewere’s lawyer, Beatrice Mtetwa, insisted that the court had jurisdiction, especially in view of the High Court Act, which specifically refers to decisions of all tribunals being subjected to review.
But Mugomba said she cannot interfere with the President’s decisions.
“Using the same reasoning, in my view, what can be reviewable by this court before the President acts is the process by which the tribunal makes its recommendation.
“This is more so given the fact that the tribunal is an administrative authority, unlike the first respondent, who is not covered in the definition as set out in the Administrative Justice Act.
“I do accept that the court has held that sometimes the prerogative power of the President can be subject to review.
Mugomba said there is always some suspicion around a President’s executive powers, especially when it comes to matters of exercising a prerogative or discretion.
“That is why perhaps the courts have strived to keep that in check through a judicial review.
“In casu (in this case), the effecting of the recommendation to remove or not to remove a judge, unlike the appointment of a Chief, is not a matter of prerogative or discretion.
The judge said once the tribunal makes a recommendation, the President has no choice but to effect it.
It must also be understood that the President plays no part in the investigation or inquiry on whether or not a judge should be removed.
“He merely receives the recommendation and acts on it. To the extent that the applicant also seeks a review of the first respondent’s decision, this court has no jurisdiction to delve into it.
“I emphasise again that the first respondent has no discretion once a recommendation is made, whether it is for removal or non-removal.
“The court declines jurisdiction,”she ruled.