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Fidelis Munyoro
Chief Court Reporter
The 2021 Legal Year came to an end early this month, with the Covid-19 pandemic upsetting the operations of the justice delivery system during the year under review.
Barely a month after the opening of the Legal Year in January, the judiciary was plunged into mourning, following the death of High Court Judge Justice Clement Phiri.
He had served as a High Court judge for six years.
The year under review also saw Bulawayo High Court judge, Justice Thompson Mabhikwa coming under pressure to preserve the dignity of the bench following allegations of an intimate affair with a member of support staff.
The alleged affair with the staff in Bulawayo, Ms Oratile Nare, came to light after nude pictures and raunchy WhatsApp messages allegedly from the judge’s phone, circulated on social media.
Some lawyers urged the Judicial Services Commission (JSC) to move in swiftly to “deal with a clear reputational risk” and to see if two sections of the judicial code of ethics that all judges must follow had been breached.
The alleged conduct of Justice Mabhikwa resulted in him being suspended.
A tribunal to investigate his suitability to hold a judicial office was established by President Mnangagwa in June and the matter is still pending.
The major highlight of the year was the case of Chief Justice Luke Malaba.
A panel of three High Court judges — Justices Happias Zhou, Edith Mushore and Esther Charewa — on May 15 ruled that the extension of service of the country’s top judge beyond the retirement age of 70 was illegal.
The three judges ruled that the Constitutional right applied only to sitting High Court judges and not to sitting Supreme Court or Constitutional Court judges.
They mistakenly equated a term limit with a retirement age.
A group of lawyers challenged this decision in an urgent High Court case heard on May 15, coincidentally the Chief Justice’s birthday.
The ruling torched a storm and bruising legal combat pitting the Government on one side and the lawyers and judges pushing for the ouster of Chief Justice Malaba on the other side.
President Mnangagwa had exercised his executive power to grant Chief Justice Malaba an extension on his stay under the newly-authorised Amendment 2, which grants the executive authority to extend judges’ tenure by five years.
Under previous Zimbabwean law, justices were to retire from the bench at the age of 70. Chief Justice Malaba’s term was extended on May 11, three days before his scheduled retirement.
Government through the Ministry of Justice, Legal and Parliamentary Affairs, Attorney General and the JSC immediately filed their appeals with the country’s Supreme Court challenging he High Court’s decision against the Government.
The matter was later resolved in September after the Constitutional Court allowed Chief Justice Malaba to serve in line with the Constitution until his 75th birthday in May 2026 after the apex court overturned the High Court order and confirmed that all medically fit judges of the three top courts can extend their terms of office until they reach 75.
The Chief Justice promptly exercised his right, and produced the required medical certificate stating that he was physically and mentally fit to continue in office.
On production of that certificate, President Mnangagwa, as the Constitution requires him to do, made the formal order on May 11 just four days before the Chief Justice’s 70th birthday.
The ruling came after a Bulawayo man Mr Marx Mapungu exercised his citizen rights to ask the Constitutional Court to make the final ruling by confirming or quashing the High Court orders, as the Constitution requires it to do.
Mr Mupungu approached the Constitutional Court seeking to overturn the High Court judgment, which he argued impugned the conduct of the President and Parliament for exercising their constitutional mandate by passing the second amendment to the Constitution giving all judges the option of extending their term, if medically fit, for another five years after the set retirement age of 70.
The full bench of the Constitutional Court, presided over by Deputy Chief Justice Elizabeth Gwaunza since the Chief Justice was recused, unanimously disagreed with the interpretation of the law made by the High Court on the matter and quashed that May decision.
In the pair of judgments, Justice Bharat Patel with the agreement of the rest of the bench dealt with the constitutional issues, finding that the High Court had erred and quashing its orders.
Justice Rita Makarau, again with full agreement, dismissed the application for the Constitutional Court judges to recuse themselves since they had been cited in the original High Court application, saying that citing was “maladroit”.
Justice Patel said the orders made by the lower court constituted orders of constitutional invalidity concerning the validity of Section 186 of the Constitution, as amended, the conduct of Parliament in enacting that law, as well as the conduct of the President relating to the extension of office of the incumbent Chief Justice pursuant to that law.
The court also found that the judgment of the High Court was misdirected and erroneous and consequently, it could not be confirmed and should be set aside.
Still in September, the Supreme Court upheld the High Court ruling rejecting business couple — Mr Upenyu Mashangwa and his wife Blessing’s $6,5 million lawsuits against United Family International Church (UFIC) leader Emmanuel Makandiwa and his wife Ruth — putting to rest the bruising legal combat, spanning over four years.
The couple and ex-UFIC members claimed they lost a fortune after being misled by false prophecies by Makandiwa and sued the Makandiwa couple for defamation, but the High Court cleared them of any wrongdoing.
The Makandiwas had successfully sought dismissal of the $6,5 million claim at the High Court, arguing the suit was “frivolous” and “vexatious”.
However, Mushangwa couple appealed the decision at the Supreme Court, but lost after Justice Lavender Makoni found no fault with the reasoning of the lower court.
In October, former Health Minister Obadiah Moyo was discharged from prosecution on corruption charges for illegally awarding a multi-million-dollar contract for Covid-19 medical supplies to Drax International without going through a competitive tender process.
He was facing charges of criminal abuse of office over the awarding of a US$60 million contract to the company that allegedly sold supplies to the Government at inflated prices.
Moyo, through his legal counsel had made an application for the quashing of the charges before Justice Pisirayi Kwenda, flagging a series of shortcomings in the indictment, particularly the way the charges were formulated.
He exposed how the indictment was at law, incoherent and how the allegations were vague and embarrassing.
In the end, the court had no choice, but to take note of the prosecution’s admission that the charge was imprecise and upheld Moyo’s application, and quashed all the three counts against the former minister.
According to the indictment papers, Moyo allegedly awarded the multimillion tender to Drax International LLC, head-quartered in the United Arab Emirates, which was concluded without the consent of the Procurement Regulatory Authority of Zimbabwe.
The ruling cleared Drax of any wrong doing in this case, which saw US$2 million paid to Drax Consult SAGL for the supply of medicines and medical sundries to the National Pharmaceutical Company (NatPharm) frozen in the former’s bank account in Hungary amid indications International Police Organisation (Interpol) Harare could have misinformed their counterparts in Budapest on the deal involving Drax and the Government.
The money is locked in Drax’s MagNet Bank account in Budapest, after Interpol reportedly passed on information on investigations into the transaction between Drax and Zimbabwe’s Ministry of Health for medical supplies to the Government-owned, NatPharm.
This was after some banks involved in the system moved to stop suspected money laundering and raised a red-flag, leading to the freezing of the funds.
The court ruling vindicated Drax suspicion’s that Interpol Hungary could have received wrong information from some elements in the Zimbabwe Republic Police.
However, last month, the High Court ruled that the cancellation of the 2019 contract between Drax Consult SALG and NatPharm for the supply of medicines and related sundries was improper, since the tender had been approved by the Procurement Regulatory Authority of Zimbabwe (PRAZ) and therefore was a legally enforceable contract.
The judgment by Justice Webster Chinamora overturned an arbitration award made on March 1 this year that allowed NatPharm to cancel the tender on the grounds that it was concluded in contravention of the provisions of the Public Procurement and Disposal of Public Assets Act.
NatPharm now needs, as a result of the court ruling, to accept delivery and pay for US$210 000 worth of medical supplies sitting at Robert Mugabe International Airport since last year when the contract was cancelled, the last part of the delivery of US$2 733 480 of medical supplies to NatPharm.
When NatPharm refused to accept the final portion of the tender as a result of this cancellation, the matter was referred for arbitration. NatPharm won the arbitral award with the arbitrator accepting it had cause to cancel the tender.
Drax then approached the High Court to set aside this award arguing that the cancellation was unlawful since PRAZ had given its authority as required by the Public Procurement Act.
The critical evidence, in Justice Chinamora’s view, was a letter written on November 6, 2019, by the chief executive officer of PRAZ to the managing director of NatPharm.
The judge noted that legal counsel for both Drax and NatPharm missed the point that a resolution of the Special Procurement Oversight Committee, quoted in this letter, had been adopted by PRAZ as its own resolution and so PRAZ gave authority to NatPharm.
While the oversight committee might not have authority under the law to confirm the tender, PRAZ certainly did. The judgment went into detail on why the final authority was clearly given by PRAZ.
Drax local representative Delish Nguwaya and former health minister Obadiah Moyo who were arrested in connection to corruption charges relating to the contract and three NatPharm top executives have since been removed from remand. They can now only be brought to court on a summons backed by new evidence.
Also last month, the Reserve Bank of Zimbabwe got a reprieve after the High Court ruled that the central bank’s assets cannot be attached in a lawsuit over more than US$26 million in unsettled debt with a London-based grain and fertiliser exporter, Holbud Limited.
The central bank’s assets had been attached following an order of the same court which registered an arbitral award in HC 3207/19.
The bank then approached the High Court, among other measures, for stay of execution of the judgment granted under HC 3207/20, but got more, the ruling that this writ was null and void in the first place.
In its application, the RBZ sought an order declaring that its assets were subject to the provisions of the State Liabilities Act and therefore could not be attached.
The Reserve Bank also argued that the amount claimed by Holbud under the arbitral award registered before the High Court was also the subject of the Reserve Bank (Debt Assumption) Act No 2 of 2015, and consequently was not subject to further execution.
The issue of the Treasury Bills by the State to Holbud had satisfied its claim as assumed by the State under the Act, and therefore the writ issued by the High Court in the arbitral award in 2019 was null and void and should be set aside.
After hearing submissions from both parties’ counsel, Justice Webster Chinamora ruled in favour of the RBZ, agreeing with its legal position that its assets were protected by law and that it had never waived these rights in its dealings with Holbud.
The judge was satisfied that the bank had shown a sufficient interest to make the present application for a declarater declaring the assets of the Reserve Bank of Zimbabwe subject to the protection accorded by the State Liabilities Act.
Additionally, the court ruled that the bank t had successfully established that the consequential relief of nullifying the writ of execution which attached its property was merited.
In terms of the State Liabilities Act as read with the Reserve Bank of Zimbabwe Act, the RBZ’s assets cannot be the subject of a writ of execution, meaning that no one can attach them for sale to satisfy a debt.
The ruling meant that there was no need for a stay of execution of the attachment order since no one could levy execution on a property using a null and void writ.
The legal row revolves over payment problems to Holbud. Holbud claimed to have received two Treasury Bills totalling US$40 246 217, which matured on March 25, 2017 and February 24, 2017, with the proceeds of the matured bills were to be paid to Holbud’s bankers in the United Kingdom.
As a paying agent of Zimbabwe authorities, the RBZ faced certain challenges when it came to repatriate the proceeds of the matured bills into offshore accounts of Holbud as instructed.
The RBZ and Holbud then entered into an arrangement whereby Holbud availed to the RBZ part of the proceeds of the Treasury Bills amounting to US$26 million.
The RBZ would in turn avail the funds for lending to eligible entities under a finance facility before and after exports on condition that half of the export proceeds would be credited to the RBZ’s nominated nostro account or subsequent payment of its obligations to Holbud.
The RBZ agreed to settle the debt by paying four instalments of US$6 500 000 between January and September 2018, but failed to fulfil its contractual obligations leading to the matter being referred to an arbitrator.
Retired judge Justice George Smith was chosen as arbitrator and ruled in favour of the London-based company, ordering the RBZ to settle the debt.
The award was successfully registered at the High Court and the company then obtained the writ to attach the RBZ assets, which has now been declared null and void.
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