THREE Constitutional Court judges have come under the spotlight after they failed to comply with the Judicial Service Commission code of ethics which requires them to deliver a judgement reserved within the stipulated 180 days.
BRENNA MATENDERE
A complaint has also been lodged against Justices Ben Hlatshwayo; Bharat Patel and Paddington Garwe amid growing suspicions of corruption against the judges in matter involving a Harare businessman.
On 28 February 2022, a Harare resident, Tendai Mashamhanda, the son of prominent businessman Alex Mashamhanda founder of Mashwede Holdings, put foward an application for direct access to the constitution[1]al court in a matter recorded as of Tendai Mashamhanda and Bariadie Investment (Pvt) Ltd and Puwayi Chiutsi and The Registrar of Deeds and the Sheriff of Zimbabwe and Eliot Rogers and the General, case number 12/22.
In the matter, Mashamhanda sought leave for direct access to the Constitutional Court on the basis that his constitutional rights had been violated in a case in which the Supreme Court had ruled that title deeds for a house he bought in Highlands be forfeited after he had made a full payment of US$230 000 and developed the property to the value of US$ 1.5 million.
It was heard by Justice Hlatshwayo, Justice Patel and Justice Garwe on 4th July 2022.Judgment was reserved and to date this reserved judgment has not yet been availed 16 months later.
Section 19 of the Judicial Service (Code of Ethics) Regulations, 2012 states as follows;“19.(1) Where a judgment is reserved to be delivered on notice, the judicial officer shall use his or her best efforts to ensure that such judgment is delivered within the next ninety (90) days and, except in unusual and exceptional circumstances, no judgment shall be delivered later than one hundred and eighty (180) days from the date when it is reserved.
“19.(2) Where a judicial officer reserves judgment in any case and the judicial officer has reason to believe he or she will not be able to render judgement within the ninety-day period referred to in sub-section (1), he or she shall inform his or her head of court or division of that fact. “19.(3) Upon receiving the information referred to in sub-section (2)the head of court or division shall, with reasonable promptness, give such appropriate directions as will enable or assist the concerned judicial officer to deliver judgment within ninety days from the date of reservation or no later than one hundred and eighty days thereafter.”
In a 419-page paged letter of complaint dated 6 November written to Justice minister Ziyambi Ziyambi obtained by The NewsHawks, Mashamhanda said his rights had been violated by the delay in availing the judgement by the three Constitutional Court judges.
“The irrefutable import of section 19 (of the Judicial Service Code of Ethics) is that no re[1]served judgement shall be delivered later than one hundred and eighty (180) days from the date when it is reserved. Unfortunately, this has not been the case in the Constitutional Court matter that has a direct link to my lawful rights.
“It is now more than the mandatory 180 days and judgment has not been delivered within the timeframe stipulated by the law. An oral order dismissing the application was delivered on 25 July 2023 well after the stipulated period of 180 days but in essence, the judgment has not been delivered after 480 days, far more than double the mandatory 180 days.
“I fail to understand how three senior justices of the Constitutional Court, the highest court in the land fail to write a judgment for over 480 days,” part of the letter by Mashamhanda to Ziyambi reads.
The tycoon further states that justice delayed is justice denied. “Apart from the clear expectations of the law, which the Judges have failed to comply with, it is well established that justice delayed is justice denied. These Judges have blatantly violated the law and in the process denied me the justice that I seek,” he wrote.
Mashamanda also complained that in another matter that involves him held in the High Court by Justice Never Katiyo, again judgement had been reserved for more than the stipulated 180 days.
Justice Katiyo reserved judgement on 18 November last year in the matter involving Constantine Chaza and Harare magistrate Munashe Chibanda.
In the case recorded as HC 3413/22 Kati[1]yo was supposed to issue a judgement on an application made by Chaza to stop proceedings at the magistrate court where he was accused of forging papers for a house bought by Mashamhanda to make it appear that it had been purchased by someone else before him hence the need for his title deeds to it to be cancelled. The tycoon in his letter of complaint to Ziyambi said if judges are not reined in, judgements will be reserved forever which translates to miscarriage of justice.
“I understand that Judges, in the past who failed to deliver judgments within the prescribed periods were subjected to a disciplinary process and dismissed. This precedence must also apply here, otherwise Judge will have the power, without consequence, to reserve judgments forever,” he wrote.
As previously reported by The NewsHawks, the tycoon is also pressuring Ziyambi over the need for the resignation of Deputy Chief Justice Elizabeth Gwaunza, Supreme Court judges Chinembiri Bhunu and Antonio Guvava over corruption. The development comes as last Friday Jus[1]tice Webster Nicholas Chinamora resigned from the bench after President Mnangagwa set up a tribunal to investigate the judge’s suit[1]ability to hold office following the compilation of a damning dossier by the Judicial Service Commission alleging a litany of transgressions by the judge in the course of his duties.
Mashamhanda accused the DCJ, Guvava and Bhunu of unfairly presiding over an ap[1]peal case at the Supreme Court in which they accepted false evidence that a house he bought in Highlands, Harare for US$ 230 000 before developing it to a value of US$1.5 million, had been sold at an auction before by Bariadie Investments (Private) Limited.
He also accused the three judges of again accepting false evidence that the house he bought from Harare lawyer Puwayi Chiutsi, l had a caveat. Caveat in Latin means “let him beware” and comes from the verb cavēre, meaning “to be on guard.”
Caveats are used to protect interests in land.
A caveat acts as a “freeze” on the property in question and prevents anyone else registering a dealing with that property that may be contrary to the interest of the person who lodged the caveat.
Mashamanda dismissed the issue of a caveat being registered against the Highlands property, saying it is false and devoid of merit because the Deeds Registry office stated that it did not exist.
He also cited that in the magistrates’ court case of State vs Chiutsi number Dr 15/03/19 recorded at Rhodesvile Police Station under CR 21/02/19 it was established beyond reasonable doubt that there was no caveat.
Mashamhanda maintained that the conveyancer did a diligent search and found out that there was no caveat.
