A lawyer appointed as a High Court judge in 2017 failed to disclose that a judgment was obtained against him for failing to pay rentals to a pension fund for his legal practice.

Newly-obtained court records show that in October 2015, the High Court issued an order against Justice Thompson Mabhikwa – then a lawyer in private practice – for the settlement of rental arrears amounting to US$23,306.73 in favour of the Construction Industry Pension Fund.

By June 2016, Mabhikwa – who had failed to pay rent on two properties in Gwanda and Esigodini – had still not complied with the court order prompting the pension fund to return to the High Court to apply for a writ of execution.

Mabhikwa was among 51 lawyers who applied to become judges to fill eight vacancies and went through public interviews in October that year, before eventually being sworn in as a judge by President Emmerson Mnangagwa in December 2017.

Legal experts say Mabhikwa would likely have failed the interviews conducted by the Judicial Services Commission if he had disclosed that he had a High Court judgement against him, with which he also failed to comply for more than a year.

“The judge brought the legal profession into disrepute particularly as it is alleged that civil imprisonment proceedings were also brought against him as a result of his incessant failure to obey a court order,” a lawyer told ZimLive on condition they were not named for fear of reprisals.

“You have to wonder why Justice Mabhikwa’s orders must be complied with by anyone given his affinity for disobedience that he has shown. What exacerbates the situation is that his actions caused immediate prejudice to pensioners and it doesn’t help matters that this default clearly shows that the judge cannot handle his own personal issues and reflects on the fact that he was doing badly in practice which has a bearing on his independence.”

Lawyers said it is unethical for legal practitioners to fail to pay their rentals and the Law Society of Zimbabwe has in the past taken action against such lawyers, including de-registering them.

Rental arrears … The 2015 judgement obtained by a pension fund against the defaulting Justice Mabhikwa

Another lawyer said Mabhikwa’s actions fell foul of the Legal Practitioners (Code of Conduct) By-laws 2018 which impose a duty on lawyers to “ensure that… his or her practice of firm is efficiently and properly administered, including in relation to due payment for practising certificates and other lawfully imposed fees and levies…”

The same code of conduct describes as “unprofessional, dishonourable or unworthy conduct” any actions that are likely “either to diminish public confidence in the legal profession or the administration of justice or to bring the legal profession into disrepute.”

“The revelations raise serious questions on Justice Mabhikwa’s fitness to remain in such an office of public trust and responsibility,” said another lawyer who read the judgement against Mabhikwa.

“There is no record of the judge having made a disclosure, during the public interviews, of the fact that he had a judgement taken against him. The judge’s failure to disclose this material fact is fraudulent and may nullify his appointment.

“A Judicial Services Commission which prides itself in delivering world class justice must immediately become seized with the matter and a tribunal to consider Justice Mabhikwa’s fitness to continue holding judicial office must be appointed.”

Failure to comply … Justice Mabhikwa did not comply with the terms of the 2015 judgement leading to a writ of execution being issued a year later

ZimLive