President Emmerson Mnangagwa extended the top judge’s term using a controversial constitutional amendment that extended the retirement age for judges to 75.
But three High Court judges, Justices Happias Zhou, Edith Mushore and Jester Charewa ruled in May that Malaba ceased to be chief justice judge after attaining the age of 70, which was the retirement age for judges prior to the constitutional amendments.
Marx Mupungu, represented by Lovemore Madhuku, applied to the ConCourt challenging the High Court ruling, arguing that Mnangagwa acted constitutionally.
The case will be heard today ahead of a Supreme Court appeal by government over the ruling.
All the Supreme and Constitutional Court judges cited in Kika’s case also appealed the High Court ruling.
Legal experts have been calling for their recusal, arguing that they were conflicted parties.
The court has already appointed a friend of the court (amicus curiae), Advocate Tawanda Zhuwarara, to assist with Madhuku’s application.
Zhuwarara on Monday filed his heads of argument seeking to have Kika’s case dismissed on a technicality.
The judges will today decide whether to proceed with the case after Kika cited 18 of them in his latest application seeking their recusal from presiding over the matter.
They will also decide whether to give Kika time to respond to issues raised by Zhuwarara.
The 18 judges were also cited as respondents in his first application under case HH264/21 in which he challenged the extension of Malaba’s tenure.
“This is an application made in terms of section 85(1) of the Constitution of Zimbabwe for the recusal of the cited honourable judges being second to 17th respondents and of Luke Malaba (the first respondent), in the event that he is found to still be the Chief Justice of Zimbabwe, from hearing the matter under case number CCZ13/21 as that would infringe the applicant’s right to a fair hearing as provided by section 69 of the Constitution of Zimbabwe” Kika stated in the court papers.”
“My emphasis is on the constitutional requirement of impartiality and independence of an adjudicating body.
“This is by no means a mathematical concept, but one that is gleaned from circumstances surrounding a matter.
“I submit that there cannot be greater indication of the possibility and potentiality of partiality when the order being sought before the cited honourable judges under CCZ/13 concerns them directly and further is pertaining to a High Court matter in which the honourable judges are not only parties, but which they have opposed and now have appealed against. The appeal is pending.”
Zhuwarara, in his heads of arguments as a friend of the court, said Kika’s case should be dismissed because he did not seek leave to sue Malaba and his deputy, Elizabeth Gwaunza, as prescribed in Order 3 Rule 18 of the High Court. According to Zhuwarara, Order 3 Rule 18 of the High Court states that no summons or other civil process of the court may be issued against the President or any judge of the High Court without leave of the court granted on court application made for the purpose.
“It is noted by present counsel that the CJ Malaba and the Deputy Chief Justice Elizabeth Gwaunza were cited as respondents in the proceeding a quo,” Zhuwarara said.
“Both the chief justice and deputy chief justice are High Court judges by operation of section 170 of the Constitution and no litigation can be instituted against them unless leave to sue is obtained in terms of Order 3 Rule 18 of the High Court rules (1971).”
He said the High Court erred by entertaining Kika’s application before obtaining leave to sue a judge of the High Court.
“As there were no valid proceedings in the court a quo (lower court), it follows that the constitutional issues and questions dealt therein were improperly determined,” Zhuwarara said.
“Put bluntly, the declaratory order that causes these confirmation proceedings cannot be even engaged on the merits as the High Court did not have the requisite jurisdiction to proceed to deal with the merits of the disputation.”