THREE High Court judges are under investigation by the Judicial Services Commission (JSC) for different cases with one facing dismissal after President Emmerson Mnangagwa was requested to appoint a tribunal to deal with her case of alleged incompetence following a judgment deemed a miscarriage of justice, NewsHawks has learnt.
Documents seen show JSC has issued complaints against three judges — Erica Ndewere, Owen Tagu and Thompson Mabhikwa – and is investigating them.
The most serious case though is that of Ndewere who now faces being hauled before tribunal following a JSDC recommendation to Mnangagwa.
This comes amid reports Ndewere is being investigated for granting MDC-Alliance deputy chairperson Job Sikhala bail on September 22. Sikhala was released from Chikurubi Maximum Prison where he had been detained for over a month for allegedly plotting the July 31 protests.
However, documents gleaned by The NewsHawks show that the charges she is facing preceded the Sikhala case by almost a year.
It is also understood Chief Justice Luke Malaba spoke to Judge President George Chiweshe last month just before the Sikhala High Court bail hearing trying to remove Ndewere from the case to avoid crystalising the rumours that she would be victimised if she granted the militant opposition leader bail.
However, Chiweshe told Malaba she should be left to deal with matter to avoid creating suspicion since she the appeal judge expected to deal with the case.
The documents further reveal last Thursday JSC held an extraordinary meeting at the Meikles Hotel in Harare where considerations of complaints against Ndewere and Tagu topped the agenda.
In a report titled Complaint against Honourable Justice Ndewere: Judge of the High Court of Zimbabwe, seen by The NewsHawks, the judge is accused of freeing a convict Kenneth Majecha due to gross incompetence.
It has come to the attention of the Chief Justice that on 22 October 2019, Justice Ndewere issued a review minute quashing the sentence of imprisonment imposed on a convicted person Kenneth Majecha CRB MRDP791/19 and in its place substituted with an order that the trial magistrate recalls the convicted person for resentencing after community service,” the report says.
Reasons which Ndewere had given in her judgment to set aside imprisonment included that the convicted person was a youthful first offender, hence young people are more likely to make ill-conceived and unwise decisions; they lack stability and self-restraint compared to a fully mature adult.
The judge further reasoned that the sentenced was thus too harsh. She also said the magistrate should have considered community service since the sentence was less than 24 months and that all the property stolen was recovered.
However, the record shows contrary to Ndewere’s claims in her judgment Majecha was not a first offender, having been convicted three times before and sentenced for assault, illegal entry and robbery for periods varying between two months and two years and six months.
“Annexures A and B, and the facts outlined above eminently show that when the judge issued a review minute on the basis of reasons summarised above, she had not read the record of proceedings; the trial magistrate’s reasons for sentence and the attached certificates of previous convictions. Had she done so, this would have dissuaded her from making the order she did,” one of the documents says.
The second complaint against Ndewere is that despite receiving the record for a review on 9 May 2019, she failed to act until 22 October 2019, meaning five months lapsed without the proceedings being reviewed. The accused had already served full term of imprisonment by the time the review minute was released.
“The judge was invited to comment on the matter. She admitted and apologised for the lapse. The Judge President’s memo to that effect is attached and marked Annexure C. After she was requested by the Chief Justice to explain her ‘oversight’, she now insists that the review minute was withdrawn and the proceedings were instead confirmed. This is however inconsistent with facts on the ground and an act of dishonesty on the part of the judge,” the documents say.
JSC also says Ndewere relied on her assistant instead of her doing her job.
The third complaint against Ndewere is that of incompetency.
“The judge’s performance has failed to meet the expected standard of a judge,” documents say.
As a result, Ndewere was warned on 7 July 2017 and 6 February 2019 for failing to do her work between 14 January 2019 and 6 February 2019.
Failure to deliver a reserved judgment within 90 days is a breach of the Judicial Service (Code of Ethics) regulations 2012, particular section (19) 1.
On 5 December 2019, the judge was again warned for failure to review criminal matters placed before her by the magistrate’s courts. As at 18 May 2020, the judge had eight reserved judgments and 28 records for criminal review, which the JSC considers as incompetence.
As a result, the JSC decided to investigate Ndewere in terms of section 187 (3) of the constitution to ascertain whether that constituted gross incompetence or gross misconduct as defined in section 187 (1) (b) of the constitution.
Ndewere started responding to some of the allegations against her on 6 May 2020. On 11 September the allegations against the judge were referred to JSC for consideration and investigation in terms of section 187 (3) of the constitution.
On 15 September, the JSC resolved the judge must comment on the allegations. On 17 September, Ndewere through her lawyers Sawyer & Mkushi, requested for an extension of the time required to respond.
The JSC granted her the request and asked her to reply by September 30, 2020, not first week of October as she wanted.
“The commission notes the absence of compelling reasons for the request to extend time to respond to 12 October because after the honourable judge is done with bail court on 2 October, she will still be seized with other equally important work in her chambers and court,” JSC wrote, in a letter dated 22 September 2020.
“We further bring to your attention that the period of 10 days the Honourable Judge was given to submit her response is the standard time that the Judicial Services Commission gives to persons whose matters are before the commission in terms of section 187(3) of the constitution.”
On Mabhikwa, the JSC received a request from one Tichaona Chikoto to look into a complaint against the judge relating to his fitness for his appointment as High Court judge.
“The basis of the allegations is that Justice Mabhikwa was sued in the High Court and had an order against him for failure to pay rental arrears…He applied to be considered for appointment as a judge of the High Court, but did not disclose in the questionnaire completed by candidates for judicial appointment that he had been sued and an order made against him,” JSC wrote.
“Section 5 of the questionnaire specifically requires candidates to furnish particulars of any circumstances which may cause embarrassment in undertaking the office of a Judge or impact the candidate’s appointment.”
Mabhikwa challenged the complaint on the grounds that it was his law practice and not him who had not paid rentals.
Last month JSC wrote to Tagu bringing to his attention a complaint that was raised on how he handed down a ruling in the Doves Funeral Assurance vs Bluestar Logistics and another.
Documents show that the JSC received a complaint from the first respondent in the above matter, Bluestar Logistics, on the matter involving the complainant and Doves Funeral Assurance which the judge was seized with.
“The applicant made an application for execution pending appeal. The complainant made a counter application for rescission of judgement. The matter was set down for argument on the 25February 2020. The applicant then withdrew its application on the eve the hearing and did not attend court on the date of the hearing,” the JSC wrote to Tagu.
“The complainant sought and was granted a default order by the judge. The order however did not come out or was not availed to the complainant.”
Responding to the complaints, Tagu rejected the complaints levelled against him, saying in any case this was not the first time he had received a similar complaint.
“Before I state what happened I need to bring to your attention that I once received the complaint in respect of the above matter and I was asked to explain what happened which I did without the aid of a the file in question which appears in annexures ‘F’ and ‘H’ attached to your current letter,” he wrote.
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