Mpofu Challenges Ziyambi Over Contempt Of Court

Zimbabwe Human Rights NGO Forum has written to the Registrar of the High Court and
the Judge President, requesting a citation of contempt of court against Justice minister Ziyambi. Advocate Thabani Mpofu, for the Forum, says Ziyambi is trying to
"threaten judges?.

In its STATEMENT TO THE PRESS dated 17 May 2021 their lawyer, renowned Advocate Thabani Mpofu said 

''the High Court of Zimbabwe Judges Zhou, Mushore and Charewa issued a landmark judgment in which it held that the tenure of CHIEF JUSTICE LUKE MALABA had come to an end. 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.''

Clearly Advocate Mpofu showed that the concerned citizens are grateful for Malaba's sacrificial service to justice in Zimbabwe.However he continued citing

''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 19"th respondent, indicated that they would appeal the judgment. The position is that the High Court issued a declarator as was sought by our consultant, Dr Musa Kika. Whilst an appeal can, all things being equal, be lodged against a declarator. the position in law is that an appeal does not suspend the operation of a declarator. 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 I990 (I) 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 was 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. That being the case, the noting of an(y) appeal cannot suspend the operation of the judgment of the High Court of the 15'? May 2021. Hon Luke Malaba is now the former CHIEF JUSTICE OF ZIMBABWE. As a result, in accordance with provisions of section 18] of the Constitution of Zimbabwe, 20|3. the substantive DEPUTY CHIEF JUSTICE has now become the country?s ACTING CHIEF JUSTICE. This is a constitutional imperative. 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..''

Advocate Mpofu made it pot and clara that Luke Malaba is no longer Chief Justice no matter how many threats are generated by the Minister of Justice Ziyambi Ziyambi.Mpofu continued that the former Chief Justice can only appeal in his personal capacity and not be allowed to abuse state institutions as the Judicial Service Commission

Tabani Mpofu argued that the Minister must be held in contempt of court for not upholding a judgement which has ended now former Chief Justice hold on the office and that according to the law his then deputy Justice Elizabeth Gwaunza is now the Acting Chief Justice.