The High Court will tomorrow rule whether or not the legal challenge mounted by Supreme Court judge, Justice Francis Bere, over his disciplinary tribunal should be heard as an urgent matter.
President Mnangagwa recently appointed, on the recommendation of the Judicial Service Commission (JSC), a three-member tribunal to decide on Justice Bere’s suitability to continue holding office, with the commission doing a U-turn after initially clearing him in November last year.
In a bid to block the proceedings, Justice Bere — through his legal team comprising Professor Lovemore Madhuku and Advocates Girach Firoz and Lewis Uriri — filed an urgent chamber application challenging the legality of the tribunal because of that U-turn.
High Court judge, Justice Alfias Chitakunye yesterday heard arguments from the commission and Justice Bere’s lawyers before deferring his ruling to tomorrow.
If the matter is considered urgent, it can be heard almost immediately, but if not, then it must take its place in the queue for High Court civil cases.
The JSC had raised preliminary points arguing that the matter was not urgent.
Adv David Ochieng, who was being instructed by Mr Andrew Mugandiwa of Wintertons law firm, argued that the case was not urgent and that it cannot be heard during the lockdown.
He defended the JSC’s decision to refer Justice Bere’s case to the President for constitution of a tribunal, despite having cleared him of any wrongdoing in November last year.
Adv Ochieng argued that the tribunal cannot be stopped from inquiring into the matter, saying if the JSC was wrong, such a finding has to be made by the tribunal.
However, Adv Firoz argued that the JSC acted unlawfully by recommending a tribunal against Justice Bere when the commission had earlier cleared the judge of any wrongdoing.
He argued that Justice Bere’s right to be heard was violated because the complainant in one of the cases, Mr Itai Ndudzo, wrote a second letter implicating the judge, but the JSC did not afford Justice Bere an opportunity to respond.
On that basis, Justice Bere seeks an interdict to restrain the tribunal from commencing the inquiry.
The judge, through his lawyers, insisted that the matter was urgent.
Justice Chitakunye is expected to rule on the preliminary points tomorrow.
The tribunal to inquire into Justice Bere’s case will be chaired by retired judge, Justice Simbi Mubako.
Justice Mubako will work with two lawyers — Advocate Takawira Nzombe and Mrs Rekayi Maphosa.
Justice Bere is accused of telephoning Zinara lawyer, Mr Ndudzo of Mutamangira and Associates, asking him to consider settling a civil dispute pitting Zinara against Fremus Enterprises, a firm owned by the judge’s relatives.
The complaint was first raised before Deputy Chief Justice Elizabeth Gwaunza during a court hearing before Mr Ndudzo was asked to make the complaint in writing.
“The learned judge, indeed contacted me telephonically,” said Mr Ndudzo.
“The commercial dispute between my client (Zinara) and Fremus Enterprises Pvt Ltd was discussed in the course of the conversation. The learned judge’s relatives are co-directors of Fremus Enterprises Pvt Ltd. The learned judge inquired whether or not there would be possibility of payment being expedited to Fremus Pvt Ltd. I declined the request and the conversation ended abruptly on that note.”
Justice Bere responded to the complaint denying the allegations. In a response to the Judicial Service Commission, he said he only contacted Mr Ndudzo in the context of their personal relationship dating back to the days when they were both members of the Zimbabwe Football Association (ZIFA) Ethics Committee.
“In 2015, I was chairman of the ZIFA ethics committee and Mr Ndudzo was legal advisor to ZIFA,” he said. “We developed a personal relationship through ZIFA. I spoke to Mr Ndudzo in the context of the said personal relationship before litigation had commenced, and in circumstances wherein litigation was not apparent.
“This was prior to my transfer to Bulawayo High Court to head that court following the passing on of the late Mr Justice Mutema.”
Justice Bere said he visited his aunt, who, together with her husband, are co-directors of Fremus Enterprises.
“My aunt was critically ill,” he said. “The directors of Fremus wished to take my aunt to South Africa for immediate medical attention, but did not have the required resources.
“In talking to them, my sister’s husband disclosed that if only Mr Ndudzo had honoured his promise to release money owed to Fremus, they would not have been in that predicament.”
Justice Bere said he was relieved that his relatives were talking about Mr Ndudzo whom he knew through interaction at ZIFA. “I reacted by immediately calling Mr Ndudzo whose number I already had by reason of the personal relationship we had developed,” he said.
“I inquired of him, whether or not there was any possibility of him expediting the payment to Fremus given the dire situation at hand.”
Justice Bere described the complaint as a falsehood meant to taint his clean record.
“In this exciting phase that we are in as a country, and in view of the much spoken about confrontation against the vice of corruption, there will always be excitable individuals who would wish to create some relevance in this noble fight,” he said.
“They are the greatest threat to this noble endeavour and stand in the path of, and indeed in this way obstruct, the genuine fight against corruption. It is in this spirit that the false complaint against me must be looked at.”
Mr Ndudzo, in a follow up letter, stuck to his story, saying he had no reason to frame Justice Bere and denied the existence of any personal relationship. – Herald