Staff Reporter

Government yesterday filed a notice of appeal against the entire High Court ruling that annulled the extension of Chief Justice Luke Malaba’s term of office on the basis that he had attained the mandatory retirement age of 70 years.

In two appeals filed separately by Minister for Legal and Parliamentary Affairs, Ziyambi Ziyambi and Attorney General Advocate Prince Machaya, Government challenged the entire judgment of High Court judges, Justices Happias Zhou, Edith Mushore and Jester Charewa citing a number of errors.

The three High Court judges had previously ruled that the recent Constitutional Amendment allowing judges, including the Chief Justice, the option of serving to 75 years was not applicable to sitting judges of the Constitutional and Supreme Courts.

“The High Court further erred in finding that the 2nd Respondent (Chief Justice Malaba) attained the age of 70 at 00.00 hours on the 15^th of May 2021, when by virtue of section 336 of the Constitution of Zimbabwe, the 2nd Respondent (Chief Justice Malaba) attained the age of 70 at the end of day on the 15^th of May 2021, that is at 00.00hours on the 16^th of May 2021.

“The High Court consequently erred in failing to find that the appointment of the 2^nd Respondent as the Chief Justice of Zimbabwe to continue in office made by the President of the Republic of Zimbabwe on 11 May 2021 was with legal effect from the 16^th of May 2021,” argued Minister Ziyambi in his notice of appeal.

Minister Ziyambi went further to argue that the High Court made a mistake in holding that Section 186 (4) of the Constitution could only apply in the future and not to the current Judges of the Supreme and Constitutional Courts, when there was nothing in the Constitution suspending the operation of Section 184 (4) in the Constitution.

According to Minister Ziyambi, the three High Court Judges further erred in holding that Section 186 of the Constitution as amended increased a term limit provision and was therefore subject to Section 328 (7) of the Constitution of Zimbabwe.

Minister Ziyambi argues that the High Court should have found that Section 186 did not extend any term limit for the 2^nd respondent, Chief Justice Malaba.

Last Saturday, the trio of Justices Zhou, Mushore and Charewa controversially annulled the extension of Justice Malaba’s term of office citing that he had reached retirement age.

Following the High Court ruling, the Judicial Service Commission announced that Deputy Chief Justice Elizabeth Gwaunza will be the acting Chief Justice until the finalization of Malaba’s case.