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CJ Malaba extends term of office for judge whose ruling saved his job

Constitutional Court (ConCourt) judge Justice Bharat Patel who is one of the judges who wrote a controversial judgement that allowed Chief Justice Luke Malaba’s term of office to be extended by five more years after reaching the age of 70 has become the first beneficiary of his own judgment.

In September last year, a ConCourt bench including Justice Patel passed judgment in Marx Mupungu v Minister of Justice, Legal and Parliamentary Affairs and 6 Others.

The court ruled in favor of the applicant, Marx Mupungu, who approached the court seeking the setting aside of the declaratory order handed down by the High Court in the case of Musa Kika v Minister of Justice, Legal and Parliamentary Affairs and Others and Young Lawyers Association of Zimbabwe and Another v Minister of Justice, Legal and Parliamentary Affairs and Others on 15 May 2021.

The High Court had ruled that Chief Justice Luke Malaba had ceased to be the Chief Justice on attaining the retirement age of 70 years on 15 May 2021, notwithstanding the purported extension of his tenure by President Emmerson Mnangagwa.

Justice Patel attained his 70 years on 16 April. Accordingly, CJ Malaba extended his term of office with five more years.

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“It is hereby notified that His Excellency, the President, has on the recommendation of the Judicial Service Commission, and acting in terms of section 186(2)(a) of the Constitution of Zimbabwe, extended the appointment of Hon. Mr. Justice Bharat Patel as judge of the Constitutional Court of Zimbabwe for a period of five years with effect from 16th April,” read a General Notice 867A of 2022 by CJ Malaba, gazetted on 14th April, 2022.

Justice Patel has benefitted from his own judgement.

Former cabinet Minister Jonathan Moyo said: “Justice Bharat Patel is the the first beneficiary of his own judgment in the corrupt Max Mapungu case; cooked by Emmerson Mnangagwa and nicodemously brought to the ConCourt to rescue Luke Malaba, who had been declared by the High Court to have retired. Shame!”

Opposition leader Nelson Chamisa’s lawyer Advocate Thabani Mpofu tweeted; “Nothing valid flows from a void appointment; you cannot put something on nothing and expect it to stand. That’s the principle of legality. Judgments that violate this principle are not worth a row of beans and will be set aside. A victory given by an impostor is pyrrhic. Mahumbwe.”