THE High Court has dismissed an application by suspended judge, Erica Ndewere challenging the setting up of a tribunal to investigate allegations of her misconduct and incompetence by the Judicial Service Commission.
Ndewere had complained that the tribunal and inclusion of President Emmerson Mnangagwa in her case was in violation of her rights and showed lack of independence of the judiciary.
She filed an urgent chamber application last year seeking an interim interdict temporarily halting the referral of the question of her removal as a judge of the High Court to Mnangagwa.
The State leader was cited in the judge’s application as first respondent.
It was her contention that the planned referral was not only deeply flawed procedurally but also that, if allowed to stand, it could create a dangerous precedent as it posed serious threat to the independence of the judiciary.
But Justice Sunsley Zisengwe dismissed her application saying Ndewere failed to substantiate her claims.
“I do not understand this current application as being an amalgam of an application for the review of the decision of the JSC of the 12th of October 2020 merged with a challenge of the direct referral made under section 187 (3) of the Constitution.
“For me, the position of the applicant from the beginning has been to challenge, the legality of the direct referral route without prior resort to the Code of Ethics,” said the judge.
He added, “Be that as it may, the applicant cannot in one breath spurn the invitation to respond to the complaints against her (ostensibly on the basis that the respondents had elected to pursue the wrong procedure) and in the next breath claim that her right to be heard was violated.”
Ndewere had also complained that allegations against her should have been dealt with internally.
Zisengwe ruled that the invitation to respond to the complaints presented precisely such an opportunity for her to give her side of the story including allegations of malice or impropriety on the part of any of the current respondents.
“Ultimately therefore, I do not believe the applicant has managed to set out a prima facie right, let alone a clear one entitling her as of right to be subjected to the Code of Ethics first before any contemplated referral under section 187(3) of the Constitution.
“The application has therefore failed to surmount the first hurdle rendering it unnecessary to interrogate the remaining requirements for an interim interdict,” he ruled.
Ndewere had argued that such referral was unlawful and irregular..
What led to the intended referral were complaints received and processed by the JSC concerning her performance as a judge.
In particular, those complaints related to her work output which was deemed unsatisfactory and below expectations, coupled with the manner in which she handled a particular review matter.
In the latter the complaint, it was alleged that she issued a review judgement in respect of criminal proceedings without having properly perused the record of proceedings and as a consequence she ordered the irregular and unmerited release from prison of the person who was the subject matter of that case.