Francis Bere v Judicial Service Commission & Others

The appellant, Francis Bere, was a judge of the Supreme Court of Zimbabwe who was suspended from office following allegations of misconduct. On 28 February 2020, the Judicial Service Commission (first respondent) informed the appellant that at a meeting held on 13 December 2019, it had resolved to advise the President to appoint a tribunal to investigate him for alleged misconduct. The appellant was subsequently suspended by letter dated 3 March 2020. On 17 March 2020, the President issued Proclamation 1 of 2020 establishing a Tribunal in terms of section 187(3) of the Constitution to investigate the question of removing the appellant from office. The appellant filed an application for review in terms of section 4 of the Administrative Justice Act on 13 May 2020, challenging the first respondent's decision to refer his matter to the President on various grounds, including lack of jurisdictional grounds, failure to afford him a hearing, that the first respondent was functus officio, lack of proper quorum, and bias. While the application was pending, the Tribunal completed its investigation, found the appellant guilty of gross misconduct, and recommended his removal from office. The President acted on this recommendation and removed the appellant from the office of judge. The High Court dismissed the appellant's application, and the appellant appealed to the Supreme Court.

• Whether the matter had become moot following the appellant's removal from office and whether the court should exercise its discretion to hear it despite mootness
• Whether the Acting Secretary of the Judicial Service Commission had authority to depose to the opposing affidavit on behalf of the first respondent
• Whether there was a proper quorum at the first respondent's meeting of 13 December 2019
• Whether the first respondent was functus officio having allegedly exonerated the appellant at a meeting on 21 November 2019
• Whether the appellant's right to be heard (audi alteram partem) was violated by the first respondent's failure to give him an opportunity to respond to a letter from Mr Ndudzo

The appeal was dismissed with no order as to costs.

The binding legal principles established are: (1) A matter becomes moot when events have occurred which overtake the dispute and terminate the controversy between parties such that further legal proceedings can have no effect, but courts retain discretion to hear moot cases where it is in the interests of justice, particularly where important constitutional issues affecting judicial independence are raised. (2) An administrative body established by statute may lawfully authorize its secretary or other officer to depose to affidavits and conduct litigation on its behalf through proper resolution, provided the deponent has personal knowledge of the facts and can swear positively to them, and this does not constitute an impermissible delegation of the body's constitutional decision-making functions. (3) A party alleging procedural irregularities in administrative decision-making (such as lack of quorum or prior inconsistent decisions) bears the onus of proving such allegations with proper evidence and cannot rely on bare assertions. (4) The audi alteram partem rule is not of fixed content but varies with circumstances; the test is fundamental fairness in the circumstances, and adequate opportunity to make written representations may suffice. A party who voluntarily walks out of a hearing waives the right to be heard and cannot later complain of a violation of natural justice. (5) The President's duty under section 187(3) of the Constitution to appoint a tribunal upon advice of the Judicial Service Commission and to act on the tribunal's recommendations is peremptory and constitutional in nature.

The Court made several non-binding observations: (1) That decisions of the High Court are not binding on other judges of coordinate jurisdiction who may respectfully disagree with previous decisions. (2) That it would be highly unusual for the Judicial Service Commission to communicate important decisions about exoneration of a judge through a telephone call rather than formal written notification, suggesting skepticism about the appellant's version of events. (3) That the relief sought by the appellant would have resulted in a brutum fulmen (an empty thunderbolt or ineffectual judgment) given that the constitutional process had run its course and the appellant had already been removed from office. (4) The observation that the judiciary is one of the three pillars of the Constitution and it is imperative that removal of a judge must be in accordance with law, demonstrating the Court's recognition of the broader constitutional significance beyond the immediate parties. (5) The metaphorical observation that "the proverbial horse has long left the stable and bolted" to describe the situation where the appellant sought to challenge preliminary procedural steps after the entire constitutional process had been completed and he had been removed from office.

This case is significant in South African (and Zimbabwean) jurisprudence as it addresses important constitutional and administrative law principles relating to the removal of judges from office. It clarifies: (1) The doctrine of mootness and the court's discretion to hear matters that have become academic where important constitutional issues are at stake, particularly concerning judicial independence and the integrity of the judiciary as a pillar of the Constitution. (2) The scope of authority of administrative bodies to act through authorized representatives in litigation, and the distinction between delegating constitutional decision-making functions and authorizing representation in defending such decisions in court. (3) The flexible nature of the audi alteram partem rule in administrative proceedings, emphasizing that what matters is fundamental fairness in the circumstances rather than rigid procedural formalities. (4) The evidentiary burden on parties challenging administrative decisions, requiring substantiation of allegations rather than bare assertions. (5) The peremptory nature of the President's constitutional duty under section 187(3) to appoint a tribunal when advised to do so by the Judicial Service Commission, and to act on the tribunal's recommendations. The case reinforces the importance of following proper constitutional procedures for judicial discipline while also recognizing practical realities in how administrative bodies conduct their business.