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By Mari Matutu | The Urgent Court Application by Dr. Musa Kika:
I was impressed by the approach and strategy taken by one Mr Musa Kika in his application to declare any attempt by Luke Malaba to over stay his tenure, illegal; more particular to the fact that he stresses that it
does not need a court order.

However I still have reservations on his relief sought: to 5- seek to have Elizabeth Gwaunza act as Chief Justice in terms of section 181 and order 6- seek that Paddington Garwe become Deputy Chief Justice in terms of s181.

These two reliefs are flawed and not in consistent with his arguments in relation to Luke Malaba.

First let’s put section 181(1) on paper.
This is what it says: 181 Acting judicial appointments- (1) If the office of Chief Justice is vacant or if the office holder is unable to perform the functions of the office, the Deputy Chief Justice acts in his or her place, but if both offices are vacant or both office-holders are unable to perform their functions, the next most senior judge of the Constitutional Court acts as Chief Justice.

Things to note from this are:
i) that the only post that can be vacant and require an acting person is of Chief Justice.
From the wording and text of section 181(1) there is no post for Acting Deputy Chief
Justice. Actually if the Chief Justice is absent the first protocol is that the Deputy
Chief Justice assumes the role of Chief Justice and if both Chief Justice and Deputy
Chief Justice are absent then the next Senior Judge of the Constitutional Court acts as
Chief Justice, never as Deputy Chief Justice.

ii) A Constitutional Court Judge is defined by either section 18(2) of 6th schedule ,
which has since lapsed its timeframe on 21 May 2020 or a Constitutional Court
Judge by section 166(1). The Constitutional Court Judge is one that must in terms of
section 177(1) have sound knowledge of Constitutional Law. In this instance from
Mr Musa Kika’s own application, it is proven that Justice Paddington Garwe is a
Supreme Court Judge and not a Constitutional Court Judge in terms of s166(1).

Only in s18(2) of 6th Schedule could we have a Supreme Court Judge Acting as
Constitutional Court Judge. The value and weight of two forms of Constitutional
Courts can be seen in that, it takes 9 judges of the Supreme Court to decide the same
matter as 3 Judges of the Constitutional Court. If it is translated in proportion it means the sound knowledge of the Constitutional law of one Constitutional Court Judge
appointed in terms of s166(1) is equal to 3 Judges of the Supreme Court appointed in
terms of s18(2) of 6th schedule.

iii) The fact is Justice Garwe is a Supreme Court Judge and cannot act as Deputy Chief
Justice in terms of section 181(1). Only a Judge of the Constitutional Court can act as
Chief Justice. There is no where in the law that a Supreme Court Judge can act as Chief
Justice or Deputy Chief Justice.