Malaba defends decision to cling on as Chief Justice

LUKE Malaba says he remains Chief Justice as last month's landmark High Court ruling declaring his continued tenure unconstitutional, was being appealed against at the Supreme Court.

Malaba was forced out of office on May 15 after High Court judges nullified the extension of his term by another five years.

The decision to remain the country's top jurist had been formalised few days earlier by President Emmerson Mnangagwa.

However, Malaba has continued reporting for duty since the High Court ruling was appealed against at the Supreme Court.

Responding to an urgent High Court chamber application in which Harare lawyer Musa Kika is applying for his imprisonment for contempt of court, Malaba said he legally resumed his duties as top judge following appeals filed at the Supreme Court by Justice Minister Ziyambi Ziyambi and Attorney-General Prince Machaya.

"Consequent upon the filing of the appeals…I am advised that regardless of whom the appeals were noted, the legal effect thereof was to suspend the operation of the two orders relied upon by the Applicant (Kika) in this matter," Malaba said in his response.

"I therefore legally resumed my duties as the Chief Justice of Zimbabwe following the noting of appeal by the Minister of Justice…and the Attorney General on the basis of the interpretation of the law to the effect that the noting of an appeal suspends an Order granted by the Court not only for the two Appellants but for the world at large.

"The Applicant has taken a different view of the legality of my return to office, and seeks an order against me for contempt of this Court alleging that I deliberately violated an Order of the Court whilst ignoring the facts set out above and the possible conflicting legal positions that can arise on the facts."

He said the granting of the order of contempt would be presumptive and a miscarriage of justice.

"Granting an Order of contempt in the circumstances of this case without first determining the validity of the legal position taken, would amount to one view being adopted without having heard the opposing view and therefore presumptive and a miscarriage of justice.

"I deny that the country has an acting Chief Justice. The learned Deputy Chief Justice (Elizabeth Gwaunza) acted as Chief Justice in accordance with the law during the time there was no appeal against the judgment and thereafter, at a time when I was out of office.

"The acting capacity ceases upon resumption of duty by the incumbent. I thus deny that my resumption of duty was and continues to be in defiance of this court. I deny, further, that I have undermined and continue to undermine the authority of the court. I have not put the judiciary into disrepute as alleged," added Malaba.

He begged the court to dismiss Kika's application stating that no good cause was shown for the order sought.