In 2016, the Judicial Service Commission (1st respondent) advertised four vacancies for Supreme Court judges. Nine High Court judges were interviewed on 29 September 2016, and a list of eight names was submitted to the President (2nd respondent). However, only two judges were appointed instead of four. The applicant, seeking to understand this outcome, requested score sheets, the list of nominees, and correspondence from the 1st respondent, which was refused on confidentiality grounds. She then launched this application seeking production of documents and an order compelling the appointment of the remaining two judges. By the time of the hearing, four of the original interviewed candidates had been elevated to the Supreme Court through different processes (two via the original 2016 process and two via constitutional amendments allowing direct promotion). Two constitutional amendments had also occurred: Amendment No. 1 of 2017 and Amendment No. 2 of 2021, the latter permitting the President to promote sitting judges without interviews.
Application dismissed with no order as to costs.
1. A matter becomes moot when events occur that overtake the dispute and terminate the controversy between parties, rendering any decision without practical effect. 2. A court retains discretion to hear a moot case where it is in the interests of justice to do so, particularly where the matter raises important constitutional questions likely to recur. 3. The interpretation of Section 180(2) of the Constitution (requiring submission of "a list of three qualified persons") means that for multiple judicial vacancies, there must be at least two additional names beyond the number of positions available (not three times the number of positions). 4. Courts will not compel appointments to judicial positions where the vacancies no longer exist and the manpower need has been met through other constitutional means. 5. In matters of constitutional importance and public interest, courts may decline to award costs even where an applicant is unsuccessful.
The court observed that the President appeared to have acted bona fide in his belief that twelve names were required for four positions, as evidenced by his later appointment of four of the original candidates through other constitutional processes. The court cautioned that situations may arise where the President cannot appoint the advertised number of judges due to insufficient nominations or interview outcomes, warning against blanket insistence on filling advertised numbers regardless of circumstances. The court noted that blending or amalgamation of the interview process with the direct appointment process introduced by constitutional amendment would be improper, as each appointment must be clearly traceable to one process or the other. The court also noted that bunching names into groups of three for each position would be impractical and yield absurd results given that lists are based on merit rankings from interviews.
This Zimbabwean High Court decision provides important guidance on the interpretation of constitutional provisions governing judicial appointments, particularly the ratio of nominees to vacancies. While this is a Zimbabwean case (not South African), it addresses principles relevant to constitutional interpretation, mootness doctrine, and the judiciary's role in matters of public importance. The judgment clarifies when courts should exercise discretion to hear moot cases involving constitutional questions of recurring importance. It establishes that for multiple judicial vacancies, the constitutional requirement of submitting three names means there must be at least two additional names beyond the number of positions, rather than three times the number of positions. The case also demonstrates judicial restraint in not compelling appointments where the underlying need no longer exists due to changed circumstances.