HARARE – Suspended High Court judge Erica Ndewere has failed in her court bid to stop a tribunal hearing allegations of incompetence against her.

Ndewere filed a High Court application last October arguing that issues brought up by the Judicial Service Commission (JSC) and Chief Justice Luke Malaba against her should have been resolved internally.

The embattled judge sought an interim interdict halting the referral of the question of her removal as a judge of the High Court to President Emmerson Mnangagwa, who was cited as the first respondent. Mnangagwa went on to appoint a tribunal to look into the judge’s fitness to remain in office.

The judge complained that the referral was not only deeply flawed procedurally, but also that if allowed to stand it would create a dangerous precedent in that it poses a serious threat to the independence of the judiciary.

Justice Sunsley Zisengwe of the Harare High Court on Wednesday dismissed her application.

“I do not understand this current application as being an amalgam of an application for the review of the decision of the JSC of the 12th of October 2020 merged with a challenge of the direct referral made under section 187 (3) of the Constitution. For me the position of the applicant from the beginning has been to challenge the legality of the direct referral route without prior resort to the Code of Ethics,” said the judge.

“Be that as it may, the applicant cannot in one breath spurn the invitation to respond to the complaints against her (ostensibly on the basis that the respondents had elected to pursue the wrong procedure) and in the next breath claim that her right to be heard was violated.”

Zisengwe ruled that the invitation to respond to the complaints presented precisely such an opportunity for her to give her side of the story, including allegations of malice or impropriety on the part of any of the respondents.

“Ultimately, therefore, I do not believe the applicant has managed to set out a prima facie right let alone a clear one entitling her as of right to be subjected to the Code of Ethics first before any contemplated referral under section 187(3) of the Constitution. The application has therefore failed to surmount the first hurdle rendering it unnecessary to interrogate the remaining requirements for an interim interdict,” he ruled.

Ndewere is accused of quashing a prison sentence of a convicted thief Kenneth Majecha, substituting it with an order for the trial magistrate to consider community service.

In coming up with the decision, Ndewere considered that the convict was a youthful offender and had no previous conviction, but it was later established that Majecha had been convicted thrice before.

The second complaint is that in the Majecha case, Ndewere took five months before reviewing it in October when it had been brought before her in May.

The JSC also says Ndewere failed to meet a 90-day target for delivering judgements, which she denies.

Instead, Justice Ndewere says Chief Justice Malaba targeted her after she granted bail to MDC Alliance MP Job Sikhala.