THE Judicial Service Commission (JSC) has recommended that President Emmerson Mnangagwa sets up tribunals to investigate the suitability of Justice Martin Makonese of the Bulawayo High Court and Justice Webster Chinamora of the Harare High Court to continue holding office following allegations of misconduct against the two.
OWEN GAGARE
If the recommendation is implemented as expected, they will be the latest to face tribunals after Justices Thompson Mabhikwa, Erica Ndewere, Francis Bere and Edith Mushore, who were all fired for misconduct over the last three years.
The complaint against Makonese follows an order he issued in a commercial dispute in which he allegedly had a financial interest.
He made the order without an application made before him, and without the knowledge of lawyers of the two other parties in the dispute.
The complaint against Chinamora was filed by Advocate Thabani Mpofu. A panel set up by the JSC to review the complaint comprising judges Anne-Marie Gowora, Alfas Chitakunye and Custom Kachambwa concluded that Chinamora has a case to answer.
Mpofu filed a complaint in a case in which another attorney, Advocate Taona Nyamakura, lodged a complaint against Chinamora for alleged conflict of interest in a legal dispute between Zimbabwe’s Delta Beverages (Pvt) Ltd, Schweppes Zimbabwe Ltd and Blakey Plastics (Pty) Ltd, a South African company. Chinamora was already facing a series of accusations ranging from conflict of interest, judicial misconduct, bribery to different forms of corruption.
In terms of section 187 of the constitution, a judge can only be removed from office for inability to perform the functions of his or her office, due to mental or physical incapacity; gross incompetence or gross misconduct. A judge can only be removed from office in terms of the section.
Sub-section 3 stipulates: “If the Judicial Service Commission advises the President that the question of removing any judge, including the Chief Justice, from office ought to be investigated, the President must appoint a tribunal to inquire into the matter.”
Sub-section 4 reads: “A tribunal appointed under this section must consist of at least three members appointed by the President, of whom– (a) at least one must be a person who — (i) has served as a judge of the Supreme Court or High Court in Zimbabwe; or (ii) holds or has held office as a judge of a court with unlimited jurisdiction in civil or criminal matters in a country whose common law is Roman-Dutch or English, and English is an officially recognised language.”
The tribunal, in accordance with the constitution, must report its findings to the President and recommend whether or not the judge should be removed from office.
The NewsHawks understands that Chinamora has been lobbying in government circles and within the JSC for him to stay on, while Makonese had offered to resign.
Makonese handled a dispute over a coal mine in Hwange pitting a company called Philcool Investments, which was the “applicant”, and two other companies, Hwange Coal Gasification and Taiyuan Sanxing, who were the “respondents” during the hearing purportedly held on 12 October 2022. He allegedly granted the companies relief they had not sought — including ordering them to abandon pending court applications, which suppliers to use and structuring payment terms to resolve the dispute.
Allegations are that no such hearing took place. Representatives of Philcool Investments tried to enforce the order, but failed.
The complaint against Chinamora followed a complaint by Mpofu, representing Delta Beverages and Schweppes Zimbabwe in a legal dispute with the South African company Blakey Plastics. Justice Chinamora was the judge in the matter in which he ruled in favour of Blakey Plastics which was resisting the cancellation of its contract to supply Delta with plastic materials over five years.
A letter of complaint to the JSC by Mpofu stated that after he filed an appeal at the Supreme Court against Chinamora’s judgement, Blakey Plastics approached another lawyer, Advocate Taona Nyamakura, and asked for his opinion on the matter which was now before the Supreme Court. Blakey Plastics proceeded to deliver to Nyamakura two large boxes containing documents relating to the legal battle.
While Nyamakura was going through the documents, some of which related to what was an ongoing arbitration process in South Africa, he came across numerous personal papers belonging to Chinamora.
The papers included a file containing the judge’s conditions of service, his original divorce order and file, original vehicle licence for a Land Rover Discovery, a lease agreement, company documents, and building plans for a residential house being constructed in Carrick Creagh, among others.
Nyamukura reported the find to the Law Society of Zimbabwe and also informed Mpofu who, in turn, reported the matter to the JSC.
In 14 October 2021 letter to the JSC, Mpofu said that it was “obvious to me that the court and arbitration papers that were transmitted to Advocate Nyamakura had been with or had at some stage found their way to Honourable Justice Chinamora or in the very least to someone close to him and who has an interest in the matter, explaining why they had ended up being mixed with his personal and intimate documents.”
He added: “The arbitration documents were not produced and do not form part of any court record in Zimbabwe. It is highly inconceivable that this mix-up could have happened without the judge having personal contact with Blakey Investments.
“There is most assuredly a relationship between justice Chinamora and Blakey Investments that needs to be investigated and explained. It is worrisome that, not just one, but numerous personal documents of the judge would be in the possession of Blakey Investments or that Blakey’s documents would be in the possession of the judge.”
