Judicial Service Commission v Erica Fungai Ndewere

The Judicial Service Commission (JSC) instituted rei vindicatio proceedings to recover a Mercedes Benz E300 motor vehicle from Erica Fungai Ndewere, a former Judge of the High Court who had been removed from office on 17 June 2021 for gross misconduct. During her tenure as a judge, respondent had been issued with the vehicle as a condition of service for personal and official use. After her removal, the JSC demanded return of the vehicle by letter dated 19 April 2022. Respondent declined, claiming she was entitled to purchase it under the Judges' Conditions of Service. The founding affidavit was deposed to by Walter Chikwana, the Secretary of the JSC, who claimed authority to represent the JSC based on a resolution dated 6 June 2019 ("Annexure A").

• Whether the JSC resolution (Annexure A) authorizing the Secretary to represent the JSC in litigation was valid
• Whether Walter Chikwana had authority to depose to the founding affidavit and institute proceedings on behalf of the JSC
• Whether there was a valid application before the court
• Whether the court should depart from previous binding decisions on the validity of Annexure A
• Whether an accounting officer of a statutory body requires a resolution to institute legal proceedings

The preliminary objections raised by the respondent were disallowed with costs in the cause. The matter could proceed to hearing on the merits of the rei vindicatio application.

Where a superior court has made a definitive ruling on the validity of a corporate resolution authorizing a representative to institute legal proceedings, a lower court is bound by that precedent and may only depart from it where sufficiently distinguishable facts are established with supporting evidence. A party challenging the validity of a corporate resolution bears the onus of adducing evidence to gainsay its apparent validity; bare allegations are insufficient. The Secretary of the Judicial Service Commission, as accounting officer under section 10 of the Judicial Services Act and section 10 of the Public Finance Management Act, has authority to institute proceedings on behalf of the JSC when authorized by valid resolution. Internal compliance requirements (such as circulating pleadings to commissioners) relate to procedural matters rather than the validity of authority to institute proceedings.

The court observed that if the JSC resolution (Annexure A) was found valid for the grave constitutional measure of removing a judge from office (as found in the Bere decisions), then it should surely suffice for a significantly lesser contest over an asset. The court commented on the principle from Cuthbert Elkana Dube v PSMAS that a person representing a legal entity, when challenged, must produce proof of authorization (such as a board resolution), but noted this requirement applies only when authority is properly put in issue with supporting evidence. The court suggested that SC 1-22 did not depart from Cuthbert Elkana Dube, and that the relevance of "accounting officer" status in those decisions was secondary to the validity of the resolution authorizing the accounting officer to act. The court noted that no distinction should be drawn between statutory/constitutional bodies and private COBA entities regarding the requirement for corporate authorization to institute proceedings.

This case reinforces the principle of stare decisis in Zimbabwean law, requiring lower courts to follow binding precedents from superior courts. It clarifies that once a superior court has definitively pronounced on an issue, lower courts must follow that precedent unless there are sufficiently distinguishable facts - bare allegations without supporting evidence are insufficient. The judgment also confirms that the Secretary of the JSC, as accounting officer, has authority to institute proceedings on behalf of the JSC both by virtue of validly passed resolutions and statutory powers. The case forms part of important jurisprudence on judicial accountability and the removal of judges from office. It illustrates the interplay between corporate authority requirements and statutory powers of accounting officers in constitutional entities.