High Court dismisses Justice Bere appeal

SUSPENDED Supreme Court judge Justice Francis Bere’s woes continue to mount after his recent application for review, challenging the Judicial Service Commission (JSC)’s decision to advise President Emmerson Mnangagwa on the need to have his gross misconduct allegations investigated by the tribunal, was thrown away by the High Court.

Early this year, Mnangagwa appointed, on the recommendation of the JSC, a tribunal comprising retired judge Justice Simbi Veke Mubako, Rekayi Maphosa, Takawira Nzombe and Virginia Mabiza to decide on Justice Bere’s suitability to continue holding office of a judge.

However, when the JSC later made a decision to advise Mnangagwa that the question of removing Justice Bere from the office of a judge ought to be investigated, the judge challenged the JSC’s move on the basis that it had made a sudden U-turn after initially clearing him of the same offence in November last year.

Justice Bere’s review application was then placed before Justice Benjamin Chikowero who dismissed it with costs, saying the decision to determine whether or not he committed gross misconduct was not for him to make.

“... I observe only that on the face of it, the correspondence put before me reveals that the JSC must have concluded that the applicant’s (Justice Bere) conduct needed to be investigated by a tribunal. I am not sitting as an appeal court to determine the correctness of the JSC’s decision but on the review to decide whether any of the jurisdictional grounds for removal of a judge from office is disclosed on the papers put before me and on which the decision to advise the President was made,” Justice Chikowero said.

“By the same token, this court cannot make pronouncements on the merits or otherwise of an investigation which the tribunal is constitutionally empowered to do. This court is not the tribunal. I do not think it necessary for applicant to effectively be a judge in his own case by submitting, before this court, that the basis upon which the JSC advised the President was petty.

“That goes to the substance of that which the tribunal is to investigate, make findings and recommend on. I have already found that it will be remiss of me to rule on the correctness of the JSC’s decision to advise the President.”

Three months ago, Justice Bere again filed an urgent chamber application seeking the expediting of the hearing of his previous court application which sought an interdict to restrain Mnangagwa’s tribunal from commencing an inquiry into his alleged misconduct.

Bere’s application came about after the tribunal on May 14, 2020 served him with a charge sheet of the alleged offence and advised him to proffer his defence in 10 days’ time.