No joy for Justice Bere
By Daniel Nemukuyu
The tribunal to investigate a complaint against suspended Supreme Court judge Justice Francis Bere will now sit after he lost his bid to get the High Court to hear as a matter of urgency his action stopping the sitting.
High Court judge Justice Alfias Chitakunye ruled the matter was not urgent before striking it off the urgent matters’ court roll.
Justice Bere can still pursue his case as a normal court application, but this means it is unlikely to be heard until the tribunal has finished sitting.
He contends that the three-member tribunal set by President Mnangagwa to inquire into his suitability to continue holding office, does not have jurisdiction to deal with the matter.
President Mnangagwa recently appointed, on the recommendation of the Judicial Service Commission, a three-member tribunal to decide on Justice Bere’s possible removal from office, with the commission doing a U-turn after initially clearing him in November last year.
It is because of that U-turn that Justice Bere contends the recommendation for a tribunal was invalid.
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.
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 further 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 tribunal to inquire into Justice Bere’s case is 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 Herald