Fired judge hands over unfinished cases

FORMER High Court judge Erica Ndewere, who was fired for incompetence, has handed over six cases she was handling to the acting Judge President, Mary Zimba-Dube.

Ndewere was fired by President Emmerson Mnangagwa on 18 June for "gross incompetence" following a tribunal hearing which found her guilty on the allegations levelled against her.

A three-member tribunal led by retired Justice Simbi Mubako, made recommendations for the judge's removal from the esteemed bench after a fully contested tribunal hearing.

She became the second judge to be fired under President Mnangagwa's administration after the Supreme Court's Justice Francis Bere, who was sacked for gross misconduct in October last year.

The cases she handed over on 21 June this year include one between the state and Kasikai and Pasca Goodzi , Judah Chikove, Patrick Mhondiwa, Chido Mtetwa, Allen Marimbe as well as some bail judgements.

The case against the Goodzis was filed in March 2020 before the country's initial lockdown. The accused failed to attend court due to transport challenges, resulting in arrest warrants being issued against them.

Ndewere was suspended before she could attend to the matter which was now due for bail determination.

The case of Chikove was of murder and Ndewere needed to conduct discussions with assessors, but failed to do so after they were assigned new work.

Just as in the cases above, Ndewere said she failed to dispose of her cases following suspension.

"I was in the bail court from September to October 2020. So, when I got suspended in November, I had some outstanding bail decisions. I sought clarification from the judge president on how to proceed on outstanding judgements. So, there are judgements whose records I returned when judgements were handed down during my suspension," she wrote, further stating that she will add more cases after checking references with the clerk of court.

Ndewere was accused by the Judicial Service Commission (JSC) of being incompetent and delaying in writing judgements which made her unfit to hold office.

But she had denied the charges against her, claiming that Chief Justice Luke Malaba was victimising her after she defied his unlawful orders.

She even made several unsuccessful interlocutory applications to quash the inquiry, including contesting the legality of the tribunal appointed to probe her suitability to continue in office after she openly accused the head of the judiciary of employing double standards.

Ndewere was accused of quashing a prison sentence against a convicted thief, Kenneth Majecha, substituting it with an order for the trial magistrate to consider community service.

In coming up with the decision, Ndewere considered that the convict was a youthful offender and had no previous conviction, but it was later established that Majecha had been convicted thrice before.

The second complaint against the fired judge is that in the Majecha case, Ndewere took five months before reviewing it in October yet it had been brought before her in May.

The JSC also says Ndewere failed to meet the expected standards of a judge in that on 7 July 2017.

Meanwhile, the handing over was done at a time the former judge also has approached the High Court with an urgent chamber application seeking the full written judgement of the tribunal's decision.

In her application made on Wednesday, Ndewere cited Mnangagwa, the three-member tribunal comprising Mubako as well as lawyers Yvonne Masvora and Charles Warara as respondents.

She also cited the JSC and Justice minister Ziyambi Ziyambi.

Ndewere is claiming that she has a legal right to the full and written determination made by the tribunal as she will need it if she is to file an appeal or demand a review of the judgement.

"This is an urgent chamber application for an order compelling the respondents to provide me with a copy of the determination made by the tribunal made up of the 2nd to 4th respondents…

"In terms of the Judicial Service Act [Chapter 7:18], I am entitled to appeal any decision with which I am aggrieved, and I can only do this if I am aware of the reasons why such decision was arrived at."

Ndewere also claims that the JSC, Ziyambi and all those concerned with the tribunal should comply with her demand for a copy of the tribunal's judgement as it is her constitutional right.

"In addition, in terms of the Administrative Justice Act as read with Section 68 of the Constitution of Zimbabwe, I am entitled to be given promptly and in writing the reasons why the Tribunal came to the conclusion that it did. I therefore contend that I have clear rights in terms of Section 68 of the Constitution and the Judicial Service Act…"

She is demanding that the respondents give her a copy of the written decision within 24 hours of the service of the order as there is a limited time frame within which she can file an appeal.

The matter is yet to be heard.