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The two matters were heard together because the substance is the same, one a chamber application and another an ordinary court application. Both applications were opposed.
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The court finds that section 328 (7) is applicable to all the judges of the Constitutional and Supreme Courts including to Malaba.
Justice Zhou – “In view of the decision that we hv reached, Hon Malaba ceased being a judge and CJ at 0000hrs on 15 May 2021.”
The court has made a finding that the effect of the new section 186 of the constitution is to extend the term/tenure.. it is a term limit clause and that it seeks to extend the time of office thus having an impact and can be read together with section 328(7).
The court finds that the effect of amendment to section 186 is to extend the term of office for the Chief Justice. This finding is crucial to the determination of this case.
There can be no question that Judges occupy a public office and therefore fall in the ambit of Section 328.
We draw particular attention to provisions of section 328 (7) as the matter hinges upon that. Sections of the Constitution must not be read in isolation but as a whole text.
Effect of amendment to 186 is to extend the term
Dealing with effect of amendments and requirements to amend s328
The court reads section 328 of the Constitution of Zimbabwe.
Merits: Issue is interpretation of s186 of the Constitution as a result of section 13 of the Amendment.
Joinder and non-joinder of President, Parliament, Senate etc has no bearing on the issue.
The insinuation that the panel was composed of judges brought together for some other reason was a reckless submission by a legal practitioner who is an officer of this court.
Merits: Issue is interpretation of s186 of the Constitution as a result of section 13 of the Amendment.
Costs: Constitutional matter and court does not want to burden any litigant with costs.
The judges have just walked in. Justice Zhou announced they will deliver a summary of the judgement while the full will be delivered in due course.
BACKGROUND…
Points in limine were raised and one of them was that Justice Zhou J should recuse himself as he had an interest in the case.
Adv Magwaliba raised a point that the amendment prejudice High Court judges as it does not extend their age limit to 75 years as the case with Supreme and Constitutional Judges.
Court is now in session. Summary judgment to be handed down by Zhou J and Mushore J.
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