Suspended Supreme Court judge, Francis Bere has filed a challenge with the High Court arguing the tribunal set up to enquire into his alleged misconduct was no longer eligible because its term of office expired last month.
Bere, who is challenging his removal from office by President Emmerson Mnangagwa, filed an urgent chamber application seeking a declaratory order that nullifies the continual existence of the tribunal after its term lapsed.
The tribunal is made up of Simbi Mubako, Rekayi Maphosa and Takawira Nzombe who are cited as the second to fourth respondents in the matter.
President Mnangagwa is cited as the first respondent and other respondents are the Justice minister, Attorney General and the Judicial Service Commission.
“This is an application for a declaratory order that the life of a tribunal consisting of 2nd, 3rd and 4th respondents and appointed by 1st respondent pursuant to section 187(3) of the Constitution to enquire into the question of removing the applicant from office of judge automatically lapsed on 10 July 2020 on the expiry of four months from the date of swearing from its members.
“That arising from this, any purported proceedings for purposes of enquiring into the question of removing the applicant from the office of judge held or continued after 10 July 2020 by the aforesaid tribunal are unlawful, null and void and of no force or effect and are set aside,” reads the application..
Bere was suspended in March this year and the president expressly directed that the tribunal shall be held for a period of four months from the date of swearing in of its members which was done on 10 March.
The embattled jurist, in his founding affidavit, contends that purposes of the enquiry automatically ended by operation of law on 10 July 2020 and there could no longer be an enquiry contemplated under subsection 3 and 7 of the Constitution.
Despite having been notified about this on July 29, the tribunal invited Bere to the continuation of their proceedings on August 3 and of its own accord, posted the hearing to 5 August 2020.
At the sitting of August 5, the respondents claimed that the four months was an “error” and relied firstly on a notice of “correction” in General Notice 2089 of 2020.
“It will be noted that the correction was purportedly issued dated 30 July 2020 but was not the referenced. I am advised by my counsel that the purported corrections are of no consequence, not only is the lifespan of four months incapable of correction after its lapse but also the lifespan is a substantive matter not subject to notices of correction,” said Bere.
He said this was the reason why he walked out on the tribunal on August 5 because of its legality and believes his application is necessary to avoid the perpetuation of the perverse conduct of the respondents
He added that on August 7, President promulgated Proclamation 4 of 2020 was amended on paragraphed by the insertion of the words “with an option of extension of six months”.
The case is yet to be heard.