By Brenna Matendere
Zimbabwe Human Rights Commission chairperson Elasto Hilarious Mugwadi says Chief Justice Luke Malaba is not immune to investigations by the independent body which has begun looking into a complaint against him on judicial corruption.
Last month, Tendai Mashamhanda, son to Mashwede Holdings Founder, Alex Mashamhanda wrote a formal complaint to Malaba accusing him of failing to reign in corrupt judges.
He accordingly asked him to resign over failure to discharge his duties as prescribed in the Constitution.
In the latest development, Gemnation News can reveal that the matter is now under internal investigation processes of the Zimbabwe Human Rights Commission.
The body’s chairperson Mugwadi said the complaint put forward by Mashamhanda is going through the body’s complaints handling committee before it reaches to executive secretary Dr Dellis Mazambani, who will then table it before him.
“The matter involves chairperson of another independent commission as in Chief Justice Malaba but he is not immune to our body’s investigation. It is only the President who enjoys immunity to investigations,” he said.
Mugwadi said his body has adequate power to mount a strong case against Malaba even though he is chairperson of the Judicial Services Commission.
“We are one of the constitutional commissions and we have power to investigate anyone except the President,” he said.
Earlier in the week, officials at the commission indicated that they had not seen the complaint against Malaba in a development that raised suspicion that there was an attempt by junior officers who received the letter to sweep it under the carpet.
The probe by the commission now puts Malaba under pressure to give in and resign from his powerful post while also exposing the judges implicated in the letter of complaint which has numerous accompanying documents.
The documents expose rot at the Judicial Services Commission where Malaba is head.
In the letter addressed to the commission obtained by this publication, Mashamhanda wrote:
“I hereby lodge a formal complaint against the chairperson of the judicial Services Commission the Honourable Chief Justice of the Republic of Zimbabwe Luke Mabala.
“The Chairperson of the Judicial Services Commission failed to respond to my complaint letters I wrote to him through the Honourable Minister of Justice Legal and Parliamentary Affairs. To date he has failed to acknowledge receipt of any of my five letters preferring to simply ignoring me.
“My complaints are against the conduct of various Judicial officers and the secretary of the Judicial Service Commission. They are of a serious nature by failing to respond, the Chairperson of the Judicial Service Commission is sweeping the matter under the carpet to protect improper conduct of his officers and in the process denying me justice.”
The businessman added that Malaba’s conduct is unconstitutional and violates several of his Constitutional Rights.
“I want the Zimbabwe Human Rights Commission to investigate violation of my Constitutional Rights.In support of my complaint, I enclose herewith the following documents,” he wrote.
The business magnet noted that in his letter dated 31 May 2022 addressed to the Minister of Justice Legal and Parliamentary Affairs, he complained against Honourable Deputy Chief Justice Gwaunza Supreme Court of Zimbabwe judgement recorded as number SC24/22 civil appeal number SC, 09/20.
“My letter dated 12 January 2023 to the Chairperson Judicial Services Commission (is) demonstration of how certain judges are failing to perform their duties in accordance with the law- to the benefit of Tendai Biti and a corrupt cartel in the Judicial Service Commission. My complaints are supported by documents which are available at your request,” wrote the businessman.
On the 12th of January last year, Mashamhanda submitted to Malaba a letter which detailed his complaint against some judges of the Supreme Court and the High Court.
However, Malaba did not act on the complaint for over a year, prompting Mashamhanda to urge him to resign for violating the Constitution by failing to discharge his duties as prescribed.
Part of the letter urging Malaba to resign reads:
“My letter was delivered and received by your offices on the 13th of January 2023. Regrettably, to date I have not received any response from you directly or through the Honourable Minister of Justice Legal and Parliamentary Affairs (Ziyambi Ziyambi). This is more than a year after writing directly to you. This is extremely disappointing.
“In my humble opinion, I believe that my complaints are legitimate and are backed by documentary evidence. I also believe that the complaints are of a serious nature which cannot be ignored and simply swept under the carpet.
“The constitution is the supreme law of Zimbabwe and the obligations imposed by the constitution are binding on every person natural or juristic including the state and all executive, legislative and judicial institutions, and agencies of the government at every level, must be fulfilled.”
The businessman further said in terms of section 3 subsection 1 paragraph B, the rule of law is pronounced as one of the founding values of the constitution.
He said furthermore, subsection 2 of section 3 of the constitution paragraph F states the principal of good governance includes respect for the people of Zimbabwe from whom the authority of the government is derived.
Subparagraph G requires transparency, justice, accountability, and responsiveness.
In terms of section 68 of the constitution, subsection 1, every person has a right to administrative conduct that is lawful, prompt efficient reasonable, proportionate, impartial both substantively and procedurally fair.
“I believe that your failure to respond to legitimate complaints, violates my constitutional rights and is against the principle of the rule of law. You have obviously gone the extra mile to protect your subordinates from scrutiny and accountability. I believe that your conduct is wrong and has no legal or administrative justification.
“…In my humble opinion I am convinced that it is in the interest of justice and our country that you the chairperson of the Judiciary Services Commission take responsibility of the mess in the JSC put the interest of the nation first and resign,” reads the letter.
Mashamhanda’s main complaint arose from Supreme Court of Zimbabwe judgement number SC24/22 civil appeal number HC09/20 in the case of Bariadie Investments (Pvt) Limited (1) Puwayi Chiutsi (2) Tendai Mashamhanda (3) The Registrar of Deeds (4) and The Sherrif of the High court of Zimbabwe
According to the businessman, the judgement by Honourable Deputy Chief Justice Gwaunza and agreed to by Justice Bhunu and Justice Guvava contained a number of lies manufactured by the Supreme Court itself.
These are that there was a caveat registered against the property he bought for US230 000 before developing it to a value of US$1.5 million.
The caveat does not exist as demonstrated by various independent parties including the High Court. Justice Chitapi in his judgement dated 24th December 2019 stated that “He who avers must of course prove. I have already noticed that the so-called caveat existed in name only and in the words of the applicant and counsel. It was just not proved to have been noted as I have already observed,”
This factual finding by the High Court was not appealed against by the applicant. It therefore put the caveat matter to rest.
The second lie is that applicant Bariade participated at an auction on the 18th of September 2017 and was declared the highest bidder.
“The documents in the record of proceedings demonstrate clearly that the property was not auctioned and these documents are defective and fake and cannot pass scrutiny at any level let alone in a court of law,” reads the letter.
“The Third lie that Justice Chitapi granted a default judgement in favour of Puwayi chiutsi at an unscheduled hearing held on 20th July 2021. The hearing was scheduled as demonstrated by the record of proceedings.
“The fourth lie is that Bariade Investments filed an application for leave to appeal against Justice Chitapi’s refusal to recuse himself. No such application was ever filed. It does not exist.
“There are a number of misrepresentations which were made by the supreme court. These are demonstrated in my complain letters. You will no doubt agree with me that judgments which are based on falsehoods are detrimental to law students who may end up relying on biased judgments in which legal principles are doctored to suit a pre- determined judgment.
“The current justice system is killing future justice”
Mashamhanda said he bought the property 41 Ridgeway North in good faith and for value before his title deeds were cancelled unfairly reportedly at the instigation of lawyer Tendai Biti in a “fraudulent manner using fraudulent documents.”
“I appreciate the tactics being employed by the Chairperson of the Judicial Services Commission. This is to ignore my legitimate concerns so that the issues raised are swept under the carpet. In my view, this is highly improper, irregular, unconstitutional and amounts to serious abuse of office.”
Mashamhanda said further to note with great concern is that “numerous allegations of improper conduct by JSC employees in particular magistrates suffered the same fate as my complaints.”
“They are just ignored and swept under the carpet. These complaints involve sexual abuse of female employees, criminal abuse of office, failure to follow tender procedures, improper employment of staff and a host of other allegations of improper conduct contained in my complaint letters.
“The fact that I raised complaints against eight judges some of them making judgments that openly cover up weaknesses found in the Supreme Court judgment, also complaints against the secretary of JSC and that numerous other citizens have raised alarm bells regarding the conduct by other judges in different cases means to me that all is not well in the Judiciary,” wrote the businessman to Malaba.
Section 165 of the constitution deals with Principles guiding Judiciary and says Justice must be done to all, irrespective of status.
“In my complaint letters I demonstrated that justice was not done in my case,” wrote the businessman adding that for failing to to act in order to preserve justice, Malaba must resign.
The Constitution also says justice must not be delayed, and to that end members of the judiciary must perform their judicial duties efficiently and with reasonable promptness.
“In my case the Constitutional Court and High Court failed to deliver reserved judgments within the 180 days period prescribed by the Judicial Code of Ethics.
Members of the judiciary, individually and collectively, must respect and honour their judicial offices as a public trust and must strive to enhance their independence to maintain public confidence in the judicial system.
“In my humble opinion, in the interest of justice, as already demanded in my complaint letters, the Supreme Court Justices lied and deliberately misrepresented facts. They must resign. The three Constitutional Court Judges must take responsibility for failure to deliver a reserved judgment within the mandatory 180 days. They must be subjected to a tribunal hearing.
“Justice Katiyo and Justice Chirawu Mugomba must be subjected to tribunal hearings. Mr Walter Chikwanha is involved in shenanigans too numerous to mention. There are serious corruption allegations which cover a whole textbook. There are allegations that he brags of capturing the Chief Justice,” reads the letter.
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