High Court reserves judgment on Malaba contempt of court charges

TWO High Court judges Thursday reserved to next week their judgment in an urgent application filed last week by the Human Rights NGO Forum demanding the imprisonment of Luke Malaba of being contempt of court charges.

The application was filed by the NGO Forum after Malaba, whose five-year extension as the chief justice was ruled to be unconstitutional last month, defied the High Court order, and has continued reporting for duty at the Constitutional Court.

Thursday's High Court bench constituted two judges, Justices Amy Tsanga and Sylvia Chirawu-Mugomba. This was after Justice Webster Chinamhora recused himself from hearing the matter.

Justice Chinamhora confirmed in the High Court chambers before the hearing started, that he had a meeting with the Judiciary Services Commission (JSC) secretary Walter Chikwanha.

The JSC and Malaba had earlier filed an application for leave to appeal against the composition of the judges hearing the embattled top judge's contempt of court charges.

However, Justices Tsanga and Chirawu-Mugomba dismissed the application for leave to appeal saying there were no prospects of success.

Malaba's extension term of office by another five years was signed by President Emmerson Mnangagwa, but on 15 May 2021, the High Court declared it was as he had reached the retirement age of 70.

However, since last month's ruling, Malaba has been reporting for duty as the chief justice after Justice Minister Ziyambi Ziyambi and the Attorney-General Prince Machaya filed an appeal at the Supreme Court against the High Court ruling.

Malaba's defiance forced the Human Rights NGO Forum to file an urgent contempt of court application at the High Court.

Lawyer Thabani Mpofu who was representing the NGO Forum argued in court that an appeal by the government made against the High Court order does not allow Malaba to resume duty since it was a declarateur.

Following this Thursday's swearing-in ceremony of six Supreme Court judges by deputy chief justice Elizabeth Gwaunza, Mpofu said Malaba had stayed away from presiding over the ceremony because the top judge appreciates his "precarious position".

However, Lewis Uriri who appeared for Malaba argued his client was not in contempt of court and insisted the use of the word it is "declared" in the High Court ruling of 15 May 2021 does not make an order a declaratory one.