Remember that epic birthday bash for former Chief Justice Luke Malaba back on 15 May? The High Court of Zimbabwe ruled that the former CJ ceased to occupy his role at midnight on the day he turned 70 years old, and that the recently passed amendment to S. 186 of the Constitution – which extends the retirement age of judges to 75 – did not apply to those in office at the time of the Bill’s passing. The response from the Minister of Justice, Legal and Parliamentary affairs was swift. Along with the Attorney General, the Minister filed an appeal against the judgement to the Supreme Court on 17 May. The other 17 judges cited in the ruling followed suit, also filing their own appeal. But despite the High Court’s ruling on his termination of office, it seems the former CJ is either a little rusty on his knowledge of the law, or is deliberately choosing to play dumb. Malaba reportedly turned up for work after he had been formally removed from office, with the secretary of the JSC claiming that the appeal filed on Malaba’s behalf “suspended” the order of the High Court, allowing him to resume duties until the Supreme Court hears the case.
Our friends at Veritas shed some light on the situation, saying that “As a general rule, a court’s judgment is suspended if the losing party notes an appeal against it, but this is only a general rule. One exception recognised by courts in Zimbabwe and elsewhere is that declaratory orders are not suspended by an appeal. A declaratory order is a ruling by a court declaring what the law is, or declaring that a factual situation exists because of a rule of law.”
Lawyer and director of the Zimbabwe Human Rights NGO Forum, Musa Kika, filed an urgent application to the High Court requesting an order which would hold Malaba in contempt of court for disregarding the order. The case kicked off with a great deal of drama, after one of the judges on the three judge bench – Justice Chinamhora – admitted to having a meeting with Walter Chikwana (secretary of the JSC, which is party to the hearing). The case proceeded with a two judge bench, and the pending ruling is expected to be delivered sometime this week.