Benjamin Paradza v Dennis Kamoni Chirwa N.O. and Others

The applicant, Benjamin Paradza, was a High Court judge appointed on 29 August 2001. On 4 April 2003, the Chief Justice advised the President that the applicant's removal from office should be investigated for alleged misbehaviour relating to telephone calls to other judges seeking favour for his business partner (Labuschagne) who was awaiting judgment in a murder case and subject to bail conditions. The President appointed a tribunal comprising three foreign judges (the first, second and third respondents) from Zambia, Tanzania and Malawi to inquire into the matter under section 87(3) of the Constitution. The Minister of Justice had written to the Chief Justices of those countries requesting each to nominate one judge for the tribunal. One piece of evidence to be used was a telephone conversation between the applicant and Justice Cheda that was tape-recorded (with police assistance) without the applicant's knowledge. The applicant challenged the tribunal's constitutionality and the admissibility of the tape-recorded evidence.

• Whether the members of the tribunal were 'selected' by the President as required by section 87(4) of the Constitution, or whether the President impermissibly delegated this power to the Chief Justices of foreign countries
• Whether the Minister of Justice usurped the President's power to select tribunal members
• Whether the applicant had locus standi to bring the constitutional application under section 24(1) of the Constitution
• Whether the tape-recorded telephone conversation was obtained in breach of the applicant's right to privacy of telecommunication under section 20(1) of the Constitution
• Whether admission of the tape-recorded evidence would violate the applicant's right to a fair hearing under section 18(9) of the Constitution
• Whether section 18(9) applies to proceedings before an investigative tribunal as opposed to a court or adjudicating authority

Application dismissed with costs, except that the fourth and fifth respondents were ordered to pay costs of the application in case SC 344/04 jointly and severally, and the fifth respondent was ordered to pay costs of the condonation application for late filing.

The binding legal principles established are: (1) Under section 31H(1) of the Constitution, the President may exercise executive powers through Ministers to perform administrative acts that are incidental or ancillary to the exercise of constitutional powers, provided the Minister does not exercise the substantive power that the Constitution vests exclusively in the President. (2) 'Selection' under section 87(4) of the Constitution means making a final decision to choose tribunal members; it does not require the President to personally compare candidates or have detailed information about them, provided the President makes the ultimate choice and retains discretion to reject nominees. (3) Section 18(9) of the Constitution, which guarantees a fair hearing, applies only to proceedings before 'a court or other adjudicating authority' that determines civil rights or obligations, and does not apply to investigative tribunals whose function is to investigate and report facts without making binding determinations. (4) Evidence obtained illegally or in breach of constitutional rights is not automatically inadmissible; the admissibility is a matter for the tribunal or court's discretion, considering factors under section 48 of the Civil Evidence Act including the nature of illegality, probative value, interests of justice, and public interest.

MALABA JA observed: (1) Sections 86 and 87 of the Constitution secure judicial tenure and independence, providing an exclusive procedure for termination of judicial appointments that must be strictly observed at every stage. (2) A judge has a fundamental right that the law affecting his rights be strictly complied with in its application (citing Martin v AG and Chavunduka v Commissioner of Police). (3) The ratio decidendi of the Law Society case was that sections 98(2) and 103 of the Posts and Telecommunications Act were unconstitutional for being too wide and vague without sufficient safeguards against abuse, but the judgment recognized that section 20 protection of privacy is not absolute. (4) Investigating bodies performing constitutional functions should not be prevented from doing so unless they breach applicable natural justice rules. SANDURA JA (dissenting) observed: (1) The participation of an official designated by the Minister to 'assist the Tribunal with the State's position' is unconstitutional because section 87 does not provide for such participation and the tribunal should be wholly impartial; the State has no 'position' in such an inquiry as it is not a criminal prosecution. (2) The Commissions of Inquiry Act does not authorize such an official's participation. (3) Evidence should be led by an independent legal practitioner selected by the tribunal, not a state official.

This case is significant in Zimbabwean constitutional law for: (1) Interpreting the scope of presidential powers under section 87(4) of the Constitution regarding selection of tribunal members to investigate judicial misconduct; (2) Clarifying the extent to which the President may use Ministers to perform administrative acts ancillary to exercising constitutional powers under section 31H(1); (3) Establishing that section 18(9) fair hearing rights do not apply to investigative tribunals that merely report facts rather than adjudicate rights; (4) Confirming that illegally obtained evidence is not automatically inadmissible and tribunals have discretion to admit such evidence considering all circumstances; (5) Reinforcing principles of judicial tenure and independence by requiring strict compliance with constitutional procedures for removing judges; and (6) Demonstrating judicial division on the interpretation of 'selection' in the constitutional context, with important implications for separation of powers and delegation of executive authority.