Erica Ndewere v President of Zimbabwe N.O. and Others

The appellant was a judge of the High Court of Zimbabwe. Complaints were raised about her performance, particularly regarding unsatisfactory work output and a review judgment issued without properly perusing the record, which resulted in the release of a person with previous convictions. The Judicial Service Commission (JSC) investigated allegations of gross misconduct and/or gross incompetence. On 15 September 2020, the JSC advised the appellant she was under investigation for impeachable misconduct. Through her legal practitioners, the appellant refused to respond, arguing the JSC had no legal authority and that the Judicial Service (Code of Ethics) Regulations SI 107/2012 should first be followed. On 12 October 2020, the JSC resolved to refer the matter to the President for establishment of a Tribunal under s 187(3) of the Constitution. The appellant filed an urgent chamber application seeking to interdict the President from establishing a Tribunal or, if already established, to stay its proceedings. The High Court dismissed the application. Meanwhile, the President established the Tribunal, which conducted its inquiry with the appellant's full participation, ultimately resulting in her removal from office as a judge.

• Whether the matter had become moot given that the Tribunal had already been established, conducted its inquiry, and the appellant had been removed from office
• Whether it was in the interests of justice to hear a moot appeal
• Whether the appellant could amend the relief sought on appeal to seek a declaratory order when the original application was for an interim interdict
• Whether the Supreme Court has jurisdiction to grant a declaratory order in the first instance
• Whether compliance with the Judicial Service (Code of Ethics) Regulations SI 107/2012 is a prerequisite to referral under s 187(3) of the Constitution
• Whether s 187(3) of the Constitution and the Code of Ethics provide distinct dichotomous procedures for dealing with judicial misconduct

The appeal was dismissed with costs. The Court declined to exercise jurisdiction on the basis that the matter was moot and it was not in the interests of justice to hear the appeal.

A court may decline to exercise its jurisdiction over a matter that has become moot—that is, where the dispute has become academic by reason of changed circumstances such that any judgment will have no practical effect or result. The test for mootness involves two stages: (1) determining whether the requisite tangible and concrete dispute has disappeared rendering the issues academic; and (2) if so, deciding whether the court should exercise its discretion to hear the case in the interests of justice. The overriding consideration at the second stage is whether it is in the interests of justice to hear a moot case, taking into account factors including whether any order will have practical effect on the parties or others, the nature and extent of such effect, the importance and complexity of the issue, and the fullness of arguments. The Supreme Court of Zimbabwe, as a creature of statute, has no original jurisdiction and cannot grant declaratory orders in the first instance. A party cannot on appeal seek entirely new relief (such as a declaratory order) that was never considered by the lower court, as this would improperly make the Supreme Court a second court of first instance.

The Court made several non-binding observations: (1) It noted that the court a quo had found that s 187(3) of the Constitution and the Code of Ethics provide distinct dichotomous routes for dealing with judicial misconduct, with the former aimed at serious infractions warranting possible removal and the latter aimed at other disciplinary measures short of removal. (2) The Court observed that the Code of Ethics explicitly recognizes the supremacy of the Constitution in ss 21, 24, 25, and 26, and that s 24(3) makes clear that nothing in the Code derogates from powers to make direct referrals for impeachable conduct. (3) The Court noted that if the procedure under the Code of Ethics was meant to be antecedent to referral under s 187(3), either the Constitution or the Code would have said so. (4) The Court observed that the Code of Ethics was promulgated in 2012 and predates the 2013 Constitution. However, the Court expressly did not decide these substantive issues due to mootness. (5) The Court noted that failure to seek an expedited hearing when an appeal is filed may militate against exercising discretion to hear a moot matter. (6) The Court observed that judicial resources ought to be utilized efficiently and not dedicated to advisory opinions.

This judgment provides authoritative guidance on the doctrine of mootness in Zimbabwean law, particularly in the context of judicial discipline and removal proceedings. It establishes that: (1) courts will decline jurisdiction over appeals that have become academic due to changed circumstances where no practical relief can be granted; (2) the test for mootness involves a two-stage inquiry—whether the dispute has disappeared, and if so, whether it is in the interests of justice to exercise discretion to hear the matter; (3) factors relevant to exercising discretion include whether any order will have practical effect, the nature and extent of that effect, the importance and complexity of the issue, and the fullness of arguments; (4) the Supreme Court cannot grant declaratory orders in the first instance—it is not a court of first instance but purely an appellate court; (5) a party cannot effectively abandon the original relief and substitute entirely new relief on appeal that was never considered by the lower court; and (6) voluntary participation in proceedings that a party later challenges may militate against exercising discretion to hear a moot appeal. The case also touches on the relationship between s 187(3) of the Constitution (dealing with judicial removal) and the Judicial Service (Code of Ethics) Regulations, though these substantive issues were not decided due to mootness.