No pay day for fired judge Ndewere
Former High Court judge Erica Ndewere, who was fired after a tribunal found her guilty of gross incompetence, has failed in her bid to compel President Mnangagwa to pay punitive costs for her suit, in the case she was demanding a copy of the adverse findings.
Ndewere was discharged from the bench in June this year after a three-member tribunal led by retired judge Justice Simbi Mubako — set up to probe her suitability to hold judicial office — recommended her dismissal.
In her urgent application, Ndewere had sued President Mnangagwa, the tribunal bench, Judicial Service Commission and the Justice, Legal and Parliamentary Affairs Minister — under the Administrative Justice Act as read with Section 68 of the Constitution.
She applied for a mandamus to compel the President to issue her with the Tribunal findings and costs on a punitive measure.
She claimed that she was entitled to be given promptly and in writing the reasons why the Tribunal came to the conclusion that it did, arguing that she wanted be able to exercise her right to have the Tribunal’s decision either reviewed or appealed against.
When the matter was brought for hearing before Justice Pisirayi Kwenda in July, the dispute on the merits was resolved without order of court after six days of protracted argument.
The resolution came about as a result of Ndewere’s legal counsel withdrawing her application against the JSC and minister, where upon the legal practitioners acting for them were excused.
Subsequent to that, Ndewere’s lawyer Mrs Beatrice Mtetwa abandoned the application against the Tribunal bench and their lawyer was also excused at Ndewere’s insistence.
During further deliberations Ms Mtetwa conceded that it was not yet the applicant’s case that the President did anything wrong when he removed her from office on the recommendation of the Tribunal.
All she wanted was to be able to peruse the detailed report from which the executive summary had been extracted so that she could consider the options available to her.
The matter was therefore settled on July 22, when Ndewere received the detailed report from President Mnangagwa’s lawyer out of court.
At this stage, it was expected that the resolution of the dispute out of court would bring relief to all concerned after heated deliberations and lobbying in chambers.
That, however, was not to be because Ndewere persisted with the application for a mandamus and costs on a punitive scale as originally sought.
But Justice Kwenda declined to grant the order because there was no outstanding dispute which needed to be resolved by order of court.
Further, at this stage, only Ndewere, her lawyer and President Mnangagwa’s counsel remained since the other parties had been excused by consent.
In his ruling, the judge found that the application for a mandamus was not necessary because Ndewere had already been served with the notice of her removal from office at the time that she launched her application.
“She ought not to have invoked the provisions of the Administrative Justice Act. The claim for costs against the 1st respondent (President Mnangagwa) was therefore not justified,” he said.
“She unreasonably clung to the joinder of the 1st to 4th respondents (Tribunal bench members, JSC and Justice Minister) thereby causing all concerned to incur unnecessary costs.
“I do not accept the argument that the applicant succeeded on any issue before me.”
Justice Kwenda said Ndewere’s prayer for costs necessitated that he schemed through the merits to demonstrate that Ndewere did not succeed on any of the issues that arose at the hearing.
The judge also found that Ndewere could not and did not pursue the mandamus based on common law because she had not specifically pleaded it.
Ndewere, said the judge, abandoned the mandamus under the Administrative Justice Act which is the reason why she abandoned her claim against all the respondents except the President.
“With respect to the 1st (President) respondent she abandoned the mandamus as a constitutional remedy when she conceded that she was no longer impugning the 1st respondent’s conduct in removing her from office,” he said.
“After the concessions she was left with no claim against any among the respondents. That way the dispute on the merits was disposed of.”
In addition, Justice Kwenda noted that Ndewere’s application was convoluted because it adopted the omnibus approach which has already been disapproved by the Supreme Court.
“The inescapable conclusion is that the prayer for costs lacks merit,” said Justice Kwenda adding, “In the circumstances I order as follows . . . There shall be no order as to costs.”
During the hearing, which ensued Ndewere’s lawyer accepted that a court order on the merits was no longer necessary but she immediately moved for costs against all the respondents on a punitive scale in terms of the draft order.
She persisted with the prayer for costs on the punitive scale on the basis that she had succeeded in this matter and costs should follow that result.
She further argued that the respondents had played hide and seek with her and that this caused her to institute litigation which otherwise would have been unnecessary.
She moved Justice Kwenda to exercise his discretion in her favour and award her costs against the respondents as claimed in the application.
She submitted that she had been put out of pocket by the respondents’ intransigence.
But the judge declined the request also sought against the JSC and the Justice Minister saying this was not only inappropriate but incompetent since those respondents were no longer before the court.
“Indeed, could not hear them on the issue of costs. This state of affairs was occasioned by the applicant herself,” he said.
“The audi alteram partem rule enjoins a court to hear the other side before rendering a decision. Resultantly, I could not order costs, worse still, on a punitive scale when it was no longer possible for the particular respondents to address me on that issue. The applicant’s prayer for costs against the 2nd to 6th (Tribunal bench, JSC and Justice Minister) respondents must fail on that basis.”
Ndewere was accused of “conduct inconsistent with being a judicial officer”, including failure to clear her workload in stipulated time and failing to apply due diligence when she reversed a custodial sentence of a repeat offender saying she was a first-time offender.
But she denied the charges saying she was being victimised for releasing Sikhala and defying unlawful orders from Chief Justice Luke Malaba.
Justice Ndewere became the second judge to be fired by the President after Supreme Court Judge Justice Francis Bere, who was given the same marching orders last October.