Court name
Supreme Court of Zimbabwe
Case number
SC 46 of 2003
Civil Application 68 of 2003

Paradza v Minister of Justice Legal and Parliamentary Affairs and Others (68/03) (SC 46 of 2003, Civil Application 68 of 2003) [2003] ZWSC 46 (15 September 2003);

Law report citations
Media neutral citation
[2003] ZWSC 46
















REPORTABLE
(56)


Judgment
No. SC 46/03


Civil
Application No. 68/03








BENJAMIN
PARADZA v





(1) THE
MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS


(2) THE
ATTORNEY-GENERAL (3) MISHROD GUVAMOMBE (4)
THE COMMISSIONER OF POLICE
N.O.


(5) CHIEF
SUPERINTENDENT NYATHI








SUPREME
COURT OF ZIMBABWE


SANDURA JA,
ZIYAMBI JA, MALABA JA, GWAUNZA JA & UCHENA AJA


HARARE,
SEPTEMBER 16, 2003








J
J Gauntlett SC
,
with him
J
Wood

and
J
Samkange
,
for the applicant





C Muchenga,
with him
L
Matanda-Moyo
,
for the respondents





SANDURA  JA:
This application was brought in terms of s 24(1) of the
Constitution of Zimbabwe (“the Constitution”)
seeking an order
declaring that the arrest, detention and remand of the applicant were
unconstitutional, setting aside the decision
to place him on remand,
and directing that the sum of $20 000.00 deposited by him as
bail be refunded and that his passport
be restored to him. In
addition, the applicant prayed for costs on the legal practitioner
and client scale.





During
his submissions counsel for the respondents conceded, quite
correctly, that the applicant’s arrest, detention and remand
were
unlawful and, therefore, unconstitutional. Accordingly, we granted
the order sought by the applicant, with costs on the ordinary
scale,
and indicated that our reasons would be handed down in due course.
I now set them out.






The factual
background is as follows. The applicant is a judge of the High
Court stationed in Harare. On 17 February 2003,
he was
arrested by the fifth respondent (“Nyathi”). The allegation
against him was that he had, on 15 and 16 January 2003,
attempted to
defeat or obstruct the course of justice in that he had tried to
influence two other judges of the High Court stationed
in Bulawayo to
release the passport of his business partner, who was undergoing
trial on a charge of murder, to enable him to undertake
a business
trip overseas. Alternatively, it was alleged that the applicant had
contravened s 360(2)(b) of the Criminal Procedure
and Evidence
Act [
Chapter 9:07],
the allegation being that he had incited the two judges in Bulawayo
to contravene s 4(a) of the Prevention of Corruption Act
[
Chapter 9:16].





According
to the applicant, the arrest took place in his chambers, but that is
disputed by Nyathi whose version is that, after arriving
at the
applicant’s chambers, he explained the purpose of his visit and the
applicant agreed to accompany him to the offices of
the Criminal
Investigation Department where the arrest was effected. However,
this dispute of fact is not relevant in determining
the issues which
arise in this application.





After
the applicant had been questioned, a warned and cautioned statement
was recorded from him and he was later detained at Borrowdale
Police
Station, less than a kilometre away from his home, in a police cell
which he shared with other inmates.





On
the following day, he was taken to the magistrate's court where he
was remanded out of custody, having been granted bail. The
Request
for Remand Form 242, which was completed by Nyathi, indicated
that bail was not opposed. In addition, it indicated
that the
applicant was not likely to abscond, that he was not likely to
interfere with the evidence or witnesses for the prosecution,
and
that he was not likely to commit other offences.





Subsequently,
the applicant filed this application seeking the order already
referred to at the beginning of this judgment.






Mr Gauntlett,
who appeared for the applicant, advanced two main arguments. The
first was that the applicant’s arrest and detention were
unconstitutional
because the decision to arrest and detain the
applicant was so outrageous in its defiance of logic that no sensible
person who had
applied his mind to the issue could have arrived at
it; and the second was that the applicant’s arrest, detention and
remand were
unconstitutional because they violated the applicant’s
rights set out in ss 79B and 87 of the Constitution. I shall deal
with
these arguments in turn.





THE
CONSTITUTIONALITY OF THE ARREST AND DETENTION IN THE LIGHT OF
SECTIONS 13 AND 18 OF THE CONSTITUTION











The
deprivation of personal liberty by an arrest or detention is
prima
facie

unlawful. Consequently, the person arresting and detaining another
must establish that his actions are authorised by law.






Thus, in
Minister
of Law and Order & Ors v Hurley & Anor

1986 (3) SA 568 (A), RABIE CJ said the following at 589 E-F:






“An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be fair and just to
require that
the person who arrested or caused the arrest of another person should
bear the
onus
of proving that his action was justified in law.”





In
our jurisdiction, every person is accorded the protection of the law
by s 18(1) of the Constitution, which reads as follows:





“Subject
to the provisions of this Constitution, every person is entitled to
the protection of the law.”





However,
the protection of the right to personal liberty is regulated by s 13
of the Constitution. Subsections (1) and (2)
of that section, in
relevant part, read as follows:





“(1) No
person shall be deprived of his personal liberty save as may be
authorised by law in any of the cases specified in subsection (2).





(2) The
cases referred to in subsection (1) are where a person is
deprived of his personal liberty as may be authorised by law
–





(a)
– (d) …






(e) upon reasonable suspicion of
his having committed, or being about to commit, a criminal offence;”.





Thus,
the deprivation of personal liberty must be authorised by law.





On
the facts of the present application, the relevant law is s 25(1)(b)
of the Criminal Procedure and Evidence Act which, in
relevant part,
reads as follows:





“(1) Any
peace officer and any other officer empowered by law to execute
criminal warrants is hereby authorised … to arrest without
warrant
–





(a) …;






(b) any person whom he has
reasonable grounds to suspect of having committed any of the offences
mentioned in the First Schedule;”.





The
offences mentioned in the First Schedule include the common law
offence of attempting to defeat or obstruct the course of justice.





It
is clear from s 25(1)(b) of the Criminal Procedure and Evidence
Act that the officer effecting the arrest must have reasonable
grounds for suspecting that the person he intends to arrest has
committed the offence in question. As GUBBAY  CJ said
in
Muzonda v Minister of
Home Affairs & Anor

1993 (1) ZLR 92 (S) at 96 C-D:





“…
he
must satisfy himself that reasonable grounds for suspicion of guilt
do exist. That requirement is very limited. He is not called
upon
before acting to have anything like a
prima
facie
case for
conviction. Certainty as to the truth is not involved, for
otherwise it ceases to be suspicion and becomes fact. Suspicion,
by
definition, is a state of conjecture or surmise whereof proof is
lacking …”.





In
the present matter I shall assume, but without deciding, that Nyathi
had reasonable grounds for suspecting that the applicant
had
committed the offence or offences in question. The question which
then arises is whether he was required by law to arrest and
detain
the applicant. In other words, did he have the discretion whether
to arrest him or not?





That
question was answered by LORD DIPLOCK in
Holgate-Mohammed
v Duke
[1984] 1 All ER
1054 (HL) at 1057 e-g as follows:





“…
since
the wording of the subsection under which he acted is ‘
may
arrest without warrant’, this left him with an executive discretion
whether to arrest her or not. Since this is an executive
discretion
expressly conferred by statute on a public officer, the constable
making the arrest, the lawfulness of the way in which
he has
exercised it in a particular case cannot be questioned in any court
of law except on those principles laid down by LORD GREENE MR
in
Associated
Provincial Picture Houses Ltd v Wednesbury Corp

[1947] 2 All ER 680, [1948] 1 KB 223, that have become too
familiar to call for repetitious citation. The
Wednesbury
principles, as they are usually referred to, are applicable to
determining the lawfulness of the exercise of the statutory
discretion
of a constable under s 2(4) of the 1967 Act, not only
in proceedings for judicial review but also for the purpose of
founding
a cause of action at common law for damages for that species

of trespass to the
person known as false imprisonment, for which the action in the
instant case is brought.”





Similarly,
in
Muzonda’s
case
supra
at 98 B-D, GUBBAY  CJ commented on the provisions of
s 29(1)(b), now s 25(1)(b), of the Criminal Procedure
and
Evidence Act as follows:





“Section 29(1)
of the present Act employs the phrase ‘is hereby authorised … to
arrest’. I am satisfied that, read with
para (b), it is to
be construed as imparting a discretion upon the peace officer in the
exercise of his power of arrest. This
conforms with common sense.
… In short, in enacting s 29(1)(b), the law-maker did not
intend that the power given a peace
officer to arrest is always, or
even ordinarily, to be exercised.”





I
entirely agree, and am satisfied that Nyathi had the discretion
whether to arrest the applicant or not.





In
the circumstances, the decision to arrest the applicant can only be
held to be unreasonable and subject to interference by this
Court if,
as LORD DIPLOCK stated in
Council
of Civil Service Unions & Ors v Minister for the Civil Service

[1984] 3 All ER 935 (HL) at 951 a-b, it was “so
outrageous in its defiance of logic or of accepted moral standards
that
no sensible person who had applied his mind to the question to
be decided could have arrived at it”.





The
factors to be considered in determining whether an arrest was
unreasonable in the
Wednesbury
sense were set out by GUBBAY  CJ in
Muzonda’s
case
supra
at 99E as follows:





“In
making the determination of whether the decision to arrest the
plaintiff is open to challenge, several important factors require
to
be considered. They are: (i) the possibility of escape; (ii) the
prevention of further crime; and (iii) the obstruction of
police
enquiries.”





In
the present case, bearing in mind that there was no likelihood that
the applicant would abscond, interfere with State witnesses,
or
commit further offences, there can be no doubt that the decision to
arrest, detain and remand the applicant was unreasonable in
the
Wednesbury
sense. Consequently, as submitted by Mr 
Gauntlett,
the applicant was not deprived of his personal liberty in a manner
authorised by law within the contemplation of s 13(1) of
the
Constitution.





On
that basis alone, the applicant was entitled to the order sought.
Nevertheless, I shall deal with the second argument advanced
by
Mr 
Gauntlett
because it raises issues of constitutional importance.





THE
UNCONSTITUTIONALITY OF CRIMINAL PROCEEDINGS IN VIEW OF SECTIONS 79B
AND 87 OF THE CONSTITUTION








The
second argument advanced on behalf of the applicant was that his
arrest, detention and remand violated his constitutional rights
as
set out in ss 79B and 87 of the Constitution.





Section 79B
reads as follows:





“In
the exercise of his judicial authority, a member of the judiciary
shall not be subject to the direction or control of any person
or
authority, except to the extent that a written law may place him
under the direction or control of another member of the judiciary.”





And
s 87, in relevant part, reads as follows:





“(1) A
judge of the Supreme Court or the High Court may be removed from
office only for inability to discharge the functions of
his office,
whether arising from infirmity of body or mind or any other cause, or
for misbehaviour and shall not be so removed except
in accordance
with the provisions of this section.





(2) If
the President considers that the question of the removal from office
of the Chief Justice ought to be investigated, the President
shall
appoint a tribunal to inquire into the matter.





(3) If,
in the case of a judge of the Supreme Court or the High Court other
than the Chief Justice, the Chief Justice advises the
President that
the question of removal from office of the judge concerned ought to
be investigated, the President shall appoint a
tribunal to inquire
into the matter.





(4) A
tribunal appointed under subsection (2) or (3) shall consist of
not less than three members selected by the President
from the
following –






(a) persons who have held office
as a judge of the Supreme Court or the High Court;





(b) persons
who hold or have held office as a judge of a court having unlimited
jurisdiction in civil or criminal matters in a country
in which the
common law is Roman-Dutch or English, and English is an official
language;





(c) legal
practitioners of not less than seven years’ standing …;






one
of whom shall be designated by the President as chairman.





(4a)
- (5) …;





(6) A
tribunal appointed under subsection (2) or (3) shall inquire into the
matter and report on the facts thereof to the President
and recommend
to the President whether or not he should refer the question of the
removal of the judge from office to the Judicial
Service Commission,
and the President shall act in accordance with such recommendation.





(7) …





(8) If
the question of removing a judge of the Supreme Court or the High
Court from office has been referred to a tribunal under
subsection
(2) or (3), the judge shall be suspended from performing the
functions of his office until the President, on the recommendation
of
the tribunal or the Judicial Service Commission, revokes the
suspension or the judge is removed from office in accordance with
subsection (9).





(9) If
the question of the removal of a judge has been referred to the
Judicial Service Commission in accordance with subsection (6)
and the Commission advises that the judge be removed from office, the
President shall, by order under the public seal, remove the
judge
from office.”





Before
interpreting the provisions of the two sections of the Constitution
set out above, and determining whether the applicant’s
rights were
violated, it is pertinent to note that the Constitution is the
supreme law of the land and that it creates a fundamental
framework
within which the respective ambits of the legislative, executive and
judicial arms of the State are defined. It is not
exhaustive in its
own terms and, consequently, a generous and purposive interpretation
of the Constitution has to be adopted in order
to give effect to its
underlying values.





Thus,
in
Government of the
Republic of Namibia & Anor v Cultura 2000 & Anor
,
1994 (1) SA 407 (Nm SC) at 418 F-G, MAHOMED CJ said:





“A
Constitution is an organic instrument. Although it is enacted in
the form of a statute, it is
sui
generis
. It must
broadly, liberally and purposively be interpreted so as to avoid the
‘austerity of tabulated legalism’ and so as to
enable it to
continue to play a creative and dynamic role in the expression and
the achievement of the ideals and aspirations of
the nation, in the
articulation of the values bonding its people and in disciplining its
Government.”





Similarly,
in
Rattigan & Ors v
Chief Immigration Officer & Anor

1994 (2) ZLR 54 (S) at 57 F-H, 1995 (2) SA 182 (ZSC) at 185 E-F,
GUBBAY  CJ said:





“This
Court has on several occasions in the past pronounced upon the proper
approach to constitutional construction embodying fundamental
rights
and protections. What is to be avoided is the imparting of a
narrow, artificial, rigid and pedantic interpretation; to be
preferred is one which serves the interest of the Constitution and
best carries out its objects and promotes its purpose. All relevant
provisions are to be considered as a whole and, where rights and
freedoms are conferred on persons, derogations therefrom, as far
as
the language permits, should be narrowly or strictly construed.”





I
am in complete agreement with MAHOMED CJ and GUBBAY  CJ
on the proper approach to constitutional interpretation.





I
now wish to consider s 79B. This section provides that, in the
exercise of his judicial authority, a member of the judiciary
shall
not be subject to the direction or control of any person or
authority. The only exception to that provision, which is stated
in
the section, is where a written law places a member of the judiciary
under the direction or control of another member of the judiciary.

The section is clear and unambiguous.





With
regard to this section, the argument advanced by counsel for the
applicant was that by arresting the applicant and detaining
him,
Nyathi placed the applicant under the direction or control of persons
who are not members of the judiciary, which is not permitted
by
s 79B. He submitted as follows:





“There
could hardly … be a more direct, encompassing form of ‘direction
or control’ than one which puts a hand on the judge (in
arresting
him), requires him to attend court as an accused, and then locks him
or her in a cell.”





I
respectfully agree with counsel’s submission. In terms of this
section a judge, whilst serving as such, cannot be placed under
the
factual direction or control of anyone other than that of another
member of the judiciary in terms of a written law.





This
provision was intended not only to entrench the independence of the
judiciary, but also to ensure that the judiciary, which
plays a
pivotal role in the protection and enforcement of the Constitution,
continues to function effectively.





In
the circumstances, it is clear beyond doubt that the arrest,
detention and remand of the applicant constituted a contravention
of
s 79B of the Constitution.





I
now come to s 87, which deals with the removal of judges from
office. Its provisions have already been set out. Although
the
Constitution does not say what constitutes misbehaviour, I have no
doubt in my mind that it includes criminal misconduct. If
that were
not the case, there would be an obvious absurdity because it would
mean that a judge could be removed from office for ethical
transgressions but could not be removed from office if he committed a
criminal offence, no matter how serious the offence may be.
That
could hardly have been the intention of the framers of the
Constitution.





The
applicant’s contention with regard to s 87 was that where a
judge is alleged to have committed a serious criminal offence,
as
opposed to a minor one, such as a traffic offence, he has a right to
be dealt with in terms of s 87 first before any criminal
proceedings are instituted against him. In other words, the
contention was that the Chief Justice would first decide whether
the circumstances are such that the judge’s removal from office
ought to be investigated. If he held that view, he would deal
with
the judge concerned in terms of s 87. Otherwise, he would take
no action against the judge and, thereafter, criminal
proceedings
might ensue.





On
the other hand, the respondents contended that the institution of
criminal proceedings against the judge concerned does not have
to
wait until the judge is dealt with in terms of s 87 or until it
is decided not to deal with him in terms of that section.
In their
view, the judge may be prosecuted before the Chief Justice has
decided to proceed against him in terms of s 87
or at any time
after the Chief Justice has decided to proceed against him in
terms of that section. I respectfully disagree.





Because
the judiciary plays a pivotal role in the interpretation, protection
and enforcement of the supreme law of the land, i.e.
the
Constitution, judges occupy a special position in our society which
is recognised by the Constitution. An examination of the
Constitution reveals a scheme in terms of which the independence of
the judiciary is guaranteed. It is as follows –






1. Section 79B provides that
in the exercise of his judicial functions a judge shall not be
subject to the direction or control
of any person who is not a judge.
This section entrenches the independence of the judiciary which is
vital for the proper functioning
of a constitutional democracy.







2. Section 86 entrenches in
the Constitution the continued discharge by a judge of his or her
functions until he or she resigns
or retires.







3. Section 87(1) provides
that “a judge … may be removed from office only for inability to
discharge the functions of his
office … or for misbehaviour
and
shall not be so removed except in accordance with the provisions of
this section
”
(emphasis added). This section does not permit any removal,
temporary or otherwise, unless it is in accordance with the
provisions
of the section.







4. Section 87(3) provides
that if the Chief Justice advises the President that the
question of a judge’s removal from
office ought to be investigated,
the President is obliged to appoint a tribunal to inquire into the
matter. It is significant that
the President does not have any
discretion in the matter.







5. Section 87(4) provides
that the tribunal appointed by the President shall consist of not
less than three members selected
by him from the following –







(a) former judges of the Supreme
Court or the High Court;







(b) judges or former judges from
other countries where the common law is Roman-Dutch or English, and
English is an official language;







(c) legal practitioners of not
less than seven years’ standing (i.e. those qualified for
appointment as judges).







6. Section 87(6) provides
that the tribunal shall inquire into the matter and report on the
facts thereof to the President and
recommend to the President whether
or not he should refer the question of the judge’s removal from
office to the Judicial Service
Commission. It is significant that
the President has no discretion, but is obliged to act in accordance
with the tribunal’s recommendation.







7. Section 87(8) provides
that if the question of removing a judge from office has been
referred to the tribunal the judge shall
be suspended from performing
his functions until the President, acting on the recommendation of
the tribunal or the Judicial Service
Commission, revokes the
suspension. It is pertinent to note that this is the only temporary
interference with the performance of
the judge’s functions
permitted by the Constitution.







8. Finally, s 87(9) provides
that if the question of a judge’s removal from office has been
referred to the Judicial Service
Commission and the Commission
advises that the judge be removed from office, the President shall
remove him from office. Once again,
the President does not have a
discretion in the matter, but acts in accordance with the advice
given by the Commission, which is
chaired by the Chief Justice.






Thus,
the scheme provided by the framers of the Constitution in respect of
judges is clear. A judge remains a judge until he or
she resigns or
retires in accordance with the provisions of s 86, or is removed
from office in accordance with the provisions
of s 87. Only judges
may direct or control other judges, except where judges are directed
or controlled as ordinary citizens, for
example, where a police
officer directs or controls traffic.





In
addition, the tribunal appointed by the President, on the advice of
the Chief Justice, to investigate the question of a
judge’s
removal from office, consists of judges, former judges and lawyers
qualified for appointment as judges. In other words,
only judges
may inquire into the misconduct of other judges and report thereon.
It is significant that their recommendation is
binding on the
President.





It
is pertinent to note that the framers of the Constitution did not
provide a similar scheme in respect of members of Parliament.
The
position of a member of Parliament is set out in ss 41, 42 and 43 of
the Constitution.





Section 41(1),
which deals with the tenure of seats of members of Parliament, in
relevant part, reads as follows:





“Subject
to the provisions of this section, the seat of a member of Parliament
shall become vacant only –





(a)
–(k) …;






(l) in the circumstances set out
in section 42;





(m) if
he is required, by virtue of the provisions of s 43, to vacate
his seat;





(n)
– (o) …;





(p) if
he has been convicted of an offence under the Electoral Act and has
been declared by the High Court … to be disqualified
for
registration as a voter or from voting at any election;





(q) …;”.





Section 42,
which sets out what happens to the seat of a member of Parliament
sentenced to death or to imprisonment, reads
as follows, in relevant
part:





“Subject
to the provisions of this section, in the event of a member of
Parliament being convicted –





(a) within
Zimbabwe of a criminal offence; or






(b) outside Zimbabwe of an
offence, … which if committed within Zimbabwe would have been a
criminal offence;






and
being sentenced by a court to death or imprisonment … for a term of
six months or more, such member shall cease forthwith to
exercise his
functions and to be entitled to any remuneration as a member and his
seat shall become vacant at the expiration of thirty
days from the
date of such sentence.”





And
s 43(1), which deals with the expulsion or suspension of members
convicted of certain offences, reads as follows:





“Subject
to the provisions of this section, if –






(a) a member of Parliament is
convicted of an offence referred to in section 42(1) and is
sentenced to imprisonment for a lesser
period than that specified in
that subsection or to a fine or other punishment not specified in
that subsection; and





(b) Parliament,
after taking into account the nature of the offence and the sentence
imposed, resolves, by the affirmative votes of
not less than
two-thirds of its total membership, that the member is unfit to
continue as a member or that the member should be suspended
from the
service of Parliament for such period, not exceeding six months, as
Parliament may specify;





the
member shall forthwith vacate his seat or, as the case may be, be
suspended from the service of Parliament for the period so
specified.”





It
is clear from the above provisions that where it is alleged that a
member of Parliament has committed a criminal offence, there
is no
investigation of the allegations by a tribunal similar to the one
which investigates the question of removing a judge from
office. As
far as the facts are concerned, Parliament relies upon the findings
of the court which convicted the member of Parliament.
In other
words, apart from the Attorney-General instituting criminal
proceedings against the member of Parliament and conducting
a trial,
the Constitution does not provide any other way in which Parliament
can investigate the allegations, in order to determine
whether or not
the member should be expelled or suspended from Parliament. It
follows, therefore, that where it is alleged that
a member of
Parliament has committed a criminal offence, there is nothing in the
Constitution which would delay the institution of
criminal
proceedings against him.





However,
judges ought to be treated differently for the reasons already given.
In my view, it could not have been the intention
of the framers of
the Constitution that a peace officer could arrest a judge and
trigger the prosecution, indictment and trial of
the judge before the
Chief Justice has had the opportunity to consider whether to
advise the President that the question of
the judge’s removal from
office should be investigated. They must have intended that the
allegations would first be investigated
and the facts ascertained by
a high-powered judicial tribunal consisting of judges, former judges
and lawyers qualified for appointment
as judges before the police
were involved in the investigations.





The
conclusion I have reached is supported by the CHIEF JUSTICES of
Botswana, Malawi, Mauritius, Namibia, South Africa,
Swaziland,
Tanzania, Uganda and Zambia who, on 5 March 2003, issued a joint
statement on the arrest and detention of the applicant.
The
relevant part of the statement reads as follows:





“Like
everyone else judges are not above the law. Their position as
judges in a democratic state, however, requires that they must
be and
must be seen to be independent and not subject to direct or indirect
pressure from the executive. For this reason the investigation
of
criminal charges against them needs to be conducted with sensitivity
to their status, their role in society and their relationship
with
the executive. Procedures should be followed to avoid as far as
possible any suggestion that a particular judge is being victimised
by the executive for his or her views or decisions. For this reason
special procedures are usually followed in democratic societies
where
allegations of serious criminal conduct are made against a judge.
Such procedures ordinarily involve the holding of an independent
enquiry into whether or not the judge should be impeached. If the
allegations are then found to have substance, and the judge is
impeached, a criminal prosecution may follow. The Constitution of
Zimbabwe makes provision for such a procedure to be followed
in
respect of the impeachment of judges. It is regrettable that this
procedure, rather than arrest, detention and prosecution,
has not
been followed in respect of the allegations against Mr Justice
Paradza.”





I
now turn to a hypothetical question which was raised during the
hearing of this application. The question was whether a peace
officer should not arrest a judge where he has good grounds for
believing that the judge, who has committed a serious offence, is
about to leave the country in order to avoid trial. Whilst I have
my views on this issue, I shall not answer the question because
it is
not the practice of this Court to answer hypothetical questions.





As
DUMBUTSHENA  AJA said in
Kauesa
v Minister of Home Affairs & Ors

1996 (4) SA 965 (Nm SC) at 974 D-E:





“…
we
consider it appropriate to refer to what was said by BHAGWATI J
(as he then was) in
M
M Pathak v Union

(1978) 3 SCR 334 in relation to the practice of the Supreme Court of
India:





‘It
is the settled practice of this Court to decide no more than what is
absolutely necessary for the decision of a case.’





We
respectfully endorse those words, particularly when applied to
constitutional issues, and commend such a salutary practice to the
courts of this country. Constitutional law in particular should be
developed cautiously, judiciously and pragmatically if it is
to
withstand the test of time.”












I now wish to comment on the
judgment prepared by MALABA JA. He has come to the conclusion that
when there is an allegation that
a judge has committed a serious
criminal offence, on the basis of which the judge could be removed
from office in terms of s 87
of the Constitution, the judge does
not have the right to be dealt with in terms of that section before
criminal proceedings are
instituted against him.






In reaching
that conclusion, he relied upon the provisions of subss (4)(a) and
(7) of s 76 of the Constitution, which deal
with the powers of
the Attorney-General, and the
obiter
dicta

expressed by SHETTY J in
K Veeraswami
v Union of India and Ors

[1991] 3 SCR 189 at 250B-251D.





The
relevant provisions of s 76 of the Constitution read as follows:






“(4) The Attorney-General shall
have power in any case in which he considers it desirable so to do –







(a) to institute and undertake
criminal proceedings before any court …;





(4a)
– (6) …;






(7) In the exercise of his powers
under subs  (4) or (4a), the Attorney-General shall not be
subject to the direction or control
of any person or authority.”









The
interpretation given to the above provisions by MALABA JA was
that this Court would be acting in violation of s 76(7)
of the
Constitution if it declared that the Attorney-General could not
institute criminal proceedings against the applicant before
the
applicant was dealt with in terms of s 87 of the Constitution.
I respectfully disagree.





It
must be remembered that the powers of the Attorney-General are to be
exercised within the framework of the Constitution. That
means that
in exercising his powers the Attorney-General is obliged to comply
with all the provisions of the Constitution. As already
stated, a
generous and purposive interpretation of the relevant provisions of
the Constitution leads to the inescapable conclusion
that the
applicant should have been dealt with in terms of s 87 of the
Constitution before criminal proceedings were instituted
against him.





Accordingly,
the Attorney-General should have acted in accordance with the
provisions of the Constitution and deferred the institution
of
criminal proceedings against the applicant until after the applicant
had been dealt with in terms of s 87 of the Constitution.
As
he did not do so, it was within the powers of this Court to declare
his action unconstitutional.






Having said
that, I wish to set out the relevant constitutional and statutory
provisions which were considered in the
Veeraswami
case

supra
,
and the issues which the Supreme Court of India had to determine in
that case. I do so in order to facilitate a better appreciation
of
the fact that what SHETTY J said was
obiter.





Clauses
(4) and (5) of Article 124 of the Constitution of India, which
govern the removal from office of a judge of the Supreme
Court or of
the High Court, read as follows:






“(4) A judge of the Supreme
Court shall not be removed from his office except by an order of the
President passed after an address
by each House of Parliament
supported by a majority of the total membership of that House and by
a majority of not less than two-thirds
of the members of that House
present and voting has been presented to the President in the same
session for such removal on the ground
of proved misbehaviour or
incapacity.





(5) Parliament
may by law regulate the procedure for the presentation of an address
and for the investigation and proof of the misbehaviour
or incapacity
of a judge under clause (4).”








In
terms of Article 218, the provisions of clauses (4) and (5) of
Article 124 also apply to judges of the High Court.






Mr
Justice Veeraswami (“Veeraswami”) was charged with contravening
s 5(1)(e) of the Prevention of Corruption Act, 1947,
which
provided that a public servant committed the offence of criminal
misconduct –





“… if
he or any person on his behalf is in possession or has, at any time
during the period of his office, been in possession, for which
the
public servant cannot satisfactorily account, of pecuniary resources
or property disproportionate to his known sources of income.”








Section 6(1)(c)
of the same Act provided that a public servant could not be
prosecuted for the offence specified in s 5(1)(e)
of the Act
unless the prosecution was sanctioned by the authority competent to
remove the public servant from his office.





Veeraswami’s
appeal was heard by five judges of the Supreme Court of India.
These were RAY, SHETTY, SHARMA, VENKATACHALIAH and
VERMA, JJ.





In
determining the appeal, the Supreme Court of India had to answer the
following questions:






1. Is a judge of the High Court
or of the Supreme Court a public servant within the meaning of s 2
of the Prevention of Corruption
Act, 1947?







2. Can a judge of the High Court,
including the Chief Justice, or a judge of the Supreme Court be
prosecuted for an offence under
the Prevention of Corruption Act,
1947?







3. Who is the competent authority
to remove a judge either of the High Court or of the Supreme Court
from his office, whose sanction
for the prosecution of the judge is
required in terms of s 6(1)(c) of the Prevention of Corruption
Act, 1947?






It was in
the course of answering the second question that SHETTY J
expressed the
obiter
dicta

quoted
in
extenso

by MALABA JA in support of the conclusion that the institution
of criminal proceedings does not have to wait until after the
judge
concerned has been dealt with in terms of s 87 of the
Constitution. I say that the views expressed by SHETTY J
in
this regard were
obiter
dicta

because they were not necessary for the determination of the three
issues before the court which I have set out above.






The specific
question which SHETTY J was considering when he expressed the
obiter
dicta

was whether a judge could at all be prosecuted for an offence under
the Prevention of Corruption Act, 1947, and not whether such
prosecution could precede the judge’s removal from office. By a
majority of four to one, the court held that a judge could be
prosecuted for such an offence, but VERMA J dissented and was of
the view that although a judge was a public servant within
the
meaning of s 2 of the Prevention of Corruption Act, 1947, he was
outside the purview of the Act and could not be prosecuted
for an
offence under the Act.






However, it
is pertinent to note that although the majority judgment was prepared
by SHETTY J, RAY J prepared his own
judgment in which he
expressed his concurrence with the conclusions reached by SHETTY J
in respect of the three issues which
the court had to determine, but
did not comment on the
obiter
dicta
(see
pp 216B-228E).






VENKATACHALIAH J
did not prepare a separate judgment and there is nothing in the
judgment prepared by SHETTY J (see pp 228E-269E)
which
indicates that VENKATACHALIAH J agreed with the views expressed
by SHETTY J, although the headnote gives the impression
that he
agreed with those views.






VERMA J,
who prepared a long dissenting judgment (see pp 269E-306F) did
not comment on the
obiter
dicta
expressed
by SHETTY J. That was obviously due to the fact that he held
the view that a judge could not at any time be prosecuted
for an
offence under the Prevention of Corruption Act, 1947.






However,
SHARMA J, who concurred with the majority judgment only in
respect of the first two of the three questions set out
above,
prepared a separate judgment in which he commented on the
obiter
dicta

expressed by SHETTY J. He was of the opinion that the removal
of the judge from office and the granting of the sanction to
prosecute the judge should be combined in order to avoid a situation
where a convicted judge continued to be a judge entitled to
exercise
his powers. At 268E-269A the learned judge said the following:






“It
is true that the grant of sanction will be delayed until the
accusation is examined according
to
the law enacted under Clause (5) of Article 124, but once
that stage is over and a finding is recorded against the judge,
there
should not be any hitch in combining the two matters - that is the
removal and the grant of sanction - which are obviously
intertwined
… . The two matters - the prosecution and removal - should
not, therefore, be treated to be separate and unconnected
with each
other. Otherwise, there will be scope left for the judge concerned
to claim that although he may be facing prosecution
or may have been
even convicted after trial, he still continues to be a judge entitled
to exercise his powers, as he has not been
removed from his office.
It
was stated during the course of the hearing that actually such a
situation has arisen in another country where a judge although
punished with imprisonment was insisting that he still continued in
his office
.
I do not think that such a thing is permissible in this country …
.
Before
closing this chapter I would again repeat that this issue is not
arising in the present case and will have to be considered
and
finally decided only when it directly arises

(emphasis added)












In our
jurisdiction, the absurdity referred to by SHARMA J would
inevitably arise if a judge were to be prosecuted before he
was dealt
with in terms of s 87 of the Constitution. That is so because
unless the judge is suspended from performing the
functions of his
office in terms of s 87(8) of the Constitution, which can only
be done when the question of his removal from
office has been
referred to a tribunal, he is, in terms of the Constitution, entitled
to perform his judicial functions.






The
suggestion by SHETTY J that a judge who is facing a criminal
prosecution should voluntarily withdraw from judicial work
and await
the outcome of the criminal prosecution would not apply in our
jurisdiction because there is a specific provision in the
Constitution in terms of which such a judge may be suspended from
performing the functions of his office. There is no such provision
in the Constitution of India. In any event, the suggestion cannot
be enforced because the judge concerned cannot legally be compelled
to abstain from performing the functions of his office.





In
interpreting the relevant constitutional provisions it is important
to remember that the provisions should be interpreted in
a way which
does not lead to any absurdity. Applying that principle, it is my
view that it was never the intention of the framers
of the
Constitution that a judge could be prosecuted, convicted and
sentenced before he was either suspended from performing the
functions of his office or removed from office.






A contrary
interpretation of the relevant constitutional provisions would
inevitably lead to the absurdity highlighted by SHARMA J.






The other
case relied upon by MALABA JA, i.e.
Chandler
v Judicial Council

398 US 74, 26 L Ed 2d 100 (1970), did not at all deal with the issue
as to whether a judge could be prosecuted for a criminal offence
before he was impeached. What MR JUSTICE DOUGLAS and
MR JUSTICE BLACK said in that case simply means that judges,
like
other people, are not above the law. The case is, therefore,
of no assistance in the present matter.






In any
event, the Constitution of the United States of America does not have
any provisions similar to the elaborate provisions
of s 87 of
the Constitution of Zimbabwe which specifically deal with the removal
of a judge from office. Section 1 of
Article III of the
Constitution of the United States, which deals with the judiciary,
reads as follows:






“The judicial power of the
United States shall be vested in one Supreme Court, and in such
inferior Courts as the Congress may from
time to time ordain and
establish. The judges, both of the Supreme and inferior Courts,
shall hold their offices during good behaviour,
and shall, at stated
times, receive for their services, a compensation which shall not be
diminished during their continuance in
office.”









However, s 3
of Article 1, which deals with impeachments, provides as
follows:






“The
Senate shall have the sole power to try all impeachments …

.






Judgment in
cases of impeachment shall not extend further than to removal from
office, and disqualification to hold and enjoy any
office of honor,
trust or profit under the United States:
but
the party convicted shall nevertheless be liable and subject to
indictment, trial, judgment and punishment, according to law

(emphasis added)








That,
in my view, is a strong indication that the impeachment of a judge
precedes the institution of criminal proceedings against
him.





Finally,
I wish to deal with the question of costs. As already stated, the
applicant prayed for costs on the legal practitioner
and client
scale. In view of the fact that the applicant’s arrest and
detention constituted a very serious violation of his constitutional
rights, I was of the opinion that the applicant was entitled to costs
on the higher scale. However, my colleagues felt otherwise.





In
the circumstances, after hearing both counsel, we granted the order
sought, with costs on the ordinary scale.














MALABA
JA: I have read the judgment prepared by my brother SANDURA  JA.
A concession was made on behalf of the respondents
on the fact that
the arrest, detention and remand of the applicant violated the
provisions of ss 13(1) and 18(1) of the Constitution
of Zimbabwe
(“the Constitution”). The concession, in my view, was
dispositive of the real dispute between the parties and provided
sufficient ground for the order made by the Court.





It
was not necessary to go into the question whether the arrest,
detention and remand, that is, the institution of criminal
proceedings
against the applicant, were also in contravention of ss
79B and 87 of the Constitution. As SANDURA  JA, who was
the presiding
judge, considered the question to be of great
constitutional importance and expressed views on it with which I
respectfully disagree,
I have found it necessary to express my own
views on the matter.





The
contention advanced by the applicant was that under the
constitutional scheme criminal proceedings cannot be instituted
against
a sitting judge of the Supreme Court or High Court before the
procedure provided for in s 87 of the Constitution for his
removal
from office has been gone into and completed because to do so
would violate the principle of judicial independence contained in
s 79B.
He argued that the initiation of criminal proceedings
against him before the procedure for his removal from office had been
gone
into and completed should be declared unconstitutional. He did
not claim that a judge of the Supreme Court or High Court enjoyed
immunity from prosecution for criminal offences.





It
was suggested in the heads of argument that the applicant could not
be charged with an offence under the Prevention of Corruption
Act
[
Chapter 9:16]
(“the Act”) because as a judge he is not a “public officer”.
Section 4(a), with which the applicant was charged,
makes it a
criminal offence for a “public officer”, in the course of his
employment as such, to do anything that is contrary
to or
inconsistent with his duty as a “public officer” for the purpose
of showing favour or disfavour to any person.





A
“public officer” is defined in s 2 of the Act to mean “a
person holding or acting in a paid office in the service of
the
State, a statutory body or a local authority”. This definition is
wide enough to include a judge. He or she is a constitutional
functionary appointed into a public office so that the judicial
authority and function of the State are discharged. The salary
and
allowances paid to a judge for his service to the State are paid out
of a Consolidated Revenue Fund. In
Rex
v Whitaker
[1914] 3 KB
1283 at p 1296 LAWRENCE J said:





“A
public officer is an officer who discharges any duty in the discharge
of which the public are interested, more clearly so if he
is paid out
of a fund provided by the public. If taxes go to supply his payment
and the public have an interest in the duties he
discharges he is a
public officer.”





It
was held in
Whitaker’s
case
supra
that a judicial officer was a ”public officer”. So a judge of
the Supreme Court or High Court would be criminally liable should
he
or she commit any of the acts proscribed under the Act.





I
now turn to consider the argument for the submission that the
institution of criminal proceedings against the applicant as a
sitting
judge before the procedure for his removal from office had
been gone into and completed violated his constitutional right to
judicial
independence.





I
start by setting out the provisions of the Constitution the
interpretation of which is relevant to the determination of the
question
in issue.





Section 76(1)
creates the office of the Attorney-General. Section 76(4)(a)
provides that the Attorney-General shall
have power in
any
case in which he considers it desirable so to do to institute

and undertake criminal proceedings before any court, not being a
court established by a disciplinary law (the underlining is mine).

Section 76(7) provides that:





“In
the exercise of his powers under subsection (4) or (4(a)) the
Attorney-General shall not be subject to the direction or
control of
any person or authority.”





Section 79(1)
of the Constitution vests judicial authority in Zimbabwe in the
Supreme Court and the High Court and such other
subordinate courts as
may be established by or under an Act of Parliament. Section 79B
secures the independence of a judge
in the exercise of the functions
of his office. It provides that:





“In
the exercise of his judicial authority, a member of the judiciary
shall not be subject to the direction or control of any person
or
authority.”





Judicial
independence is further protected by the provisions of s 87(1),
which declare that:





“A
judge of the Supreme Court or the High Court may be removed from
office only for inability to discharge the functions of his
office,
whether arising from infirmity of body or mind or any other cause, or
for
misbehaviour
and shall not be so removed except in accordance with the provisions
of this section.”





The
mandatory procedure to be followed and things to be done when the
removal of a judge from office for misbehaviour needs to be
investigated are set out in s 87, subss (2) to (9). In the
case of a judge of the Supreme Court or High Court the procedure
for
his or her removal from office for misbehaviour only commences when
the Chief Justice advises the President that the question
of
removal from office of the judge concerned ought to be investigated.
On receipt of the advice from the Chief Justice, the
President
is obliged to appoint a Tribunal to inquire into the question of the
removal of the judge concerned from office.





The
correctness of the contention advanced by the applicant depends on
the interpretation adopted of ss 79B and 87 and the
view taken
of the nature and character of judicial independence. The first
part of the argument made in support of the contention
was that the
concept of “misbehaviour” in s 87 of the Constitution
included serious criminal offences such as were charged
against the
applicant and the only machinery with legal sanction for dealing with
such criminal conduct was the procedure for the
removal of a judge
from office. Although Mr 
Muchengwa
for the respondents argued that “misbehaviour” in s 87 did
not include criminal misconduct, I agree with Mr 
Gauntlett
that misbehaviour includes serious criminal offences.





In
K Veeraswami v Union of India

(1991) 3 SCR 189 a complaint against the appellant, a former
Chief Justice of Madras High Court was made to the Delhi Special
Police Establishment (CBI). On 24 February 1976, whilst the
appellant was still Chief Justice of the Madras High Court,
the
police registered a case of corruption against him with the courts at
New Delhi. It was alleged that, taking into consideration
the
sources of income of the appellant as a judge and Chief Justice
of the High Court, the mode and style of his living and
the probable
expenses required during the period of his
judgeship/Chief Justiceship, it was reasonably believed that the
appellant
could not satisfactorily account for the possession of
assets which were far disproportionate to his known sources of
income. He
was charged with the offence of criminal misconduct
under clause (e) of s 5(1) of the Indian Prevention of
Corruption Act,
1947.





Two
months after the complaint against him was registered with the court,
the appellant had retired on attaining the age of superannuation.

When the matter came up for trial at the High Court of Madras, the
appellant unsuccessfully moved the court to quash the criminal
proceedings on a number of grounds. Section 124(4) of the
Constitution of India provided that a judge of the Supreme Court
or
High Court could be removed from office only on the ground of proved
“misbehaviour” or incapacity.





It
was contended by the State that “misbehaviour” did not include
criminal misconduct. All five judges of the Supreme Court
of India,
including VERMA J who wrote a dissenting judgment in a 4-1
decision, rejected the appellant’s argument on this point.

VERMA J at 294D said:





“There
can be no doubt that the expression ‘misbehaviour’ is of wide
import and includes within its ambit criminal misconduct.”





Even
if criminal misconduct is included in the meaning of “misbehaviour”,
as used in s 87 of the Constitution of Zimbabwe,
it does not
follow that the procedure for the removal of a judge charged with a
criminal offence from office must take precedence
over the
institution of criminal proceedings against him for the same offence.
Mr 
Gauntlett,
for the applicant, could not point to a provision in the Constitution
which expressly secured primacy of the procedure for the removal
of
an errant judge from office over the initiation of criminal
proceedings by the Attorney-General. If the makers of the
Constitution
intended to make the removal of a judge from office a
condition precedent to the institution of criminal proceedings
against him,
they would have provided for it in clear terms.





The
appellant in
Veeraswami’s
case
supra
also argued that the institution of criminal proceedings against him
as a judge before he was removed from office was a breach of
the
principle of judicial independence. SHETTY J, writing for the
majority, rejected the argument in these terms at pp 250C-251E:





“A
suggestion was also made that since ‘misbehaviour’ under
clause (4) of Article 124 of the Constitution and ‘criminal
misconduct’ under s 5(1) of the Act being synonymous, the
constitutional process for removal of the judge must be gone through
first and only after his removal the prosecution if need be
recommended in the same process. Otherwise, it is said that it
would
lead to anomaly since there is no power either in the
Constitution or under any other enactment to suspend the judge or
refuse to
assign work to the judge pending his trial or conviction in
the criminal court and the judge can insist on his right to continue
till his removal even after his conviction and sentence.





It
is inappropriate to state that conviction and sentence are no bar for
the judge to sit in the court. We may make it clear that
if a judge
is convicted for the offence of criminal misconduct or any other
offence involving moral turpitude, it is but proper for
him to keep
himself away from the court. He must voluntarily withdraw from
judicial work and await the outcome of the criminal
prosecution. If
he is sentenced in a criminal case he should forthwith tender his
resignation unless he obtains stay of his conviction
and sentence.
He shall not insist on his right to sit on the Bench till he is
cleared from the charge by a court of competent jurisdiction.
The
judiciary has no power of the purse or the sword. It survives only
by public confidence and it is important to the stability
of the
society that the confidence of the public is not shaken. The judge
whose character is clouded and whose standards of morality
and
rectitude are in doubt may not have the judicial independence and may
not command confidence of the public. He must voluntarily
withdraw
from the judicial work and administration.





The
emphasis on this point should not appear superfluous.
Professor Jackson says:





‘Misbehaviour
by a judge, whether it takes place on the Bench or off the Bench,
undermines public confidence in the administration
of justice, and
also damages public respect for the law of the land; if nothing is
seen to be done about it, the damage goes unrepaired.
This must be
so when the judge commits a serious criminal offence and remains in
office.’





(Jackson’s
Machinery of Justice

by J R Spencer 8 ed pp 369-370).





The
proved ‘misbehaviour’ which is the basis for removal of a judge
under clause (4) of the Article 124 of the Constitution
may also
in certain cases involve an offence of criminal misconduct under
s 5(1) of the Act (Prevention of Corruption Act 1947).
But
that is no ground for withholding criminal prosecutions till the
judge is removed by Parliament as suggested by counsel for
the
appellant. One is the power of Parliament and the other is the
jurisdiction of a criminal court. Both are mutually exclusive.

Even a Government servant who is answerable for his misconduct which
may also constitute an offence under 1PC or under s 5
of the Act
is liable to be prosecuted in addition to a departmental enquiry.
If prosecuted in a criminal court he may be punished
by way of
imprisonment or fine or with both, but in departmental enquiry the
highest penalty that could be imposed on him is dismissal.
The
competent authority may either allow the prosecution to go on in a
court of law or subject him to a departmental enquiry or
subject him
to both concurrently or consecutively. It is not objectionable to
initiate criminal proceedings against a public servant
before
exhausting the disciplinary proceedings and, a fortiori,
the prosecution of a judge for criminal misconduct before his removal
by Parliament for proved misbehaviour is unobjectionable.”





I
respectfully associate myself with these views. The submission made
by the applicant, and accepted by SANDURA  JA,
accords
primacy to the procedure for the removal of a judge from office for
criminal misconduct over the institution of criminal
proceedings on
the basis of an interpretation of s 87 of the Constitution which
fails to harmonise it with the provisions of
s 76(4)(a) which
confers upon the Attorney-General the power to institute or not to
institute criminal proceedings in any case
in which he thinks it is
desirable to do so. Such a construction clearly assumes that the
makers of the Constitution had made a
mistake in failing to provide
for the primacy of the procedure for the removal from office of a
judge charged with a criminal offence
over the institution of
criminal proceedings against him.





But
in
Gupta v Union of
India
[1982] 2 SCR 365
FAZAL ALI J at 749D750A, quoting what DAS J said in
Bysack v Sham Sunder
Haldar
[1953] SCR 533,
warned:





“‘It
must always be borne in mind, as said by LORD HALSBURY in
Commissioner for
Special Purpose of Income Tax v Pemsel

(LR (1891) AC 531 at p 549), that it is not competent for any
court to proceed upon the assumption that the Legislature has
made a
mistake. The court must proceed on the footing that the Legislature
intended what it has said. Even if there is some defect
in the
phraseology used by the Legislature the court cannot, as pointed out
in
Crawford v Spooner
(6 MOO PC 1) aid the Legislature’s defective phrasing of an Act or
add and amend, by construction, to make up deficiencies which
are
left in the Act’.






Thus, this court has clearly held
that in construing a statutory or a constitutional provision, the
court should not presume that
the Legislature has either committed a
mistake or has omitted something which was very necessary. DAS J
very rightly remarked
that it was not for the court but for others to
remedy the defect, if any, found in a statutory provision.”





Thus,
where the language used is plain and unambiguous the court is not
entitled to go behind the language so as to add or supply
omissions.
Such a course of action would amount not to interpretation but to
interpolation of the statutory or constitutional provisions
and is
against all the well established canons of interpretation of
statutes. (See
Gupta
supra
at 756 C-E).





The
makers of the Constitution entrusted the Attorney-General with the
power to institute or not to institute criminal proceedings
in any
case and placed no limitations on the exercise of his discretion in
the form of factors to be taken into account. To the
contrary, the
Constitution secured for him independence from any direction or
control from any person or authority, including a court.
It would
therefore be a clear violation of the provisions of s 76(7) of
the Constitution were this Court to declare that the
Attorney-General
cannot institute criminal proceedings against the applicant for
criminal offences charged against him before the
procedure for his
removal from office had been gone through.





The
argument was that the institution of criminal proceedings before the
procedure for removal of a judge from office was gone into
and
completed violated judicial independence secured for the applicant in
s 79B of the Constitution.





There
are two components of judicial independence. There is individual
independence, which relates to the judge when he or she is
performing
adjudicatory functions of the State, that is to say, hearing cases
and deciding upon the facts. There is the institutional
independence, which secures the judiciary office, or courts, from
interference from the other organs of the State.





There
is no doubt that judicial independence is a fundamental principle in
any democratic system of government. That, however, does
not mean
that the judiciary is protected from all forms of relationships with
other organs of the State. What is clear is that
the judiciary is
protected against those relationships that may have the effect of
interfering with its adjudicating authority and
function. The
judiciary is protected in the exercise of the authority and function
conferred upon it by the Constitution to the
exclusion of the other
constitutional functionaries.





Section 79B
of the Constitution, for example, makes it very clear that a judge
shall not be directed or controlled by any person
or authority whilst
he is exercising his adjudicating authority. The exception in s 79B
of the Constitution allowing for enactment
of a written law placing a
member of the judiciary under the direction or control of another
member of the judiciary reinforces the
view that the independence
protected relates to adjudication of cases as the power to direct
judges in the execution of their decision-making
duties is regarded
as a judicial power to be entrusted only to another member of the
judiciary.





A
careful reading of the provisions of s 79B embodying the
principle of judicial independence, raised by the applicant as a
shield
against the institution of criminal proceedings against him,
suggests that it relates to individual independence of a judge when
discharging adjudicating functions. Envisaged is a situation where
there are times when a judge would not be exercising his judicial
authority.





It
cannot be argued that when a judge commits a criminal offence at a
time when he is not involved in the adjudication of a case he
cannot
be arrested and charged with that offence on account of the principle
of judicial independence. Sole reliance on the power
of removal to
deal with such cases is clearly unrealistic.





In
Gupta’s
case
supra
DESAI J at 1010H-1011G said:





“Undoubtedly
judiciary, the third branch of the Government, cannot act in
isolation. They are ensured total freedom, of course,
after
entering the office, from any overt or covert pressure or
interference in the process of adjudicating causes brought before
them and to this end they are ensured tenure, pay, pension,
privileges and certain basic conditions of service. The judiciary
like
any other constitutional instrumentality has, however, to act
towards attainment of constitutional goals. …





It
would thus unquestionably appear that the independence of judiciary
is not to be determined in all its ramifications as some
a priori
concept but it has to be determined within the framework of the
Constitution. True, that the thrust is to ensure that adjudications
are untrammeled by external pressures or controls and it was conceded
that independence of judiciary under the Constitution is confined
to
the adjudicatory functions of the courts and tribunals and they are
insulated from executive control in that behalf.”





The
allegations made against the applicant, on which the criminal
proceedings were founded, were that he had sought to influence
or
direct his colleagues to order the release of his business partner’s
passport in an application by the latter for alteration
of his bail
conditions imposed by a court in a case in which he was being tried
on a murder charge. The allegation was that the
applicant wanted to
have a favour shown to his business partner.





The
applicant’s actions were said to constitute a contravention of
s 4(a) of the Prevention of Corruption Act and an attempt
to
defeat the course of justice. At the time the applicant is alleged
to have committed these offences he was not engaged in the
adjudication of a case. He was not exercising his judicial
authority. The allegations suggest instead that he would have been
committing the very offences which were created by the legislature
for the purpose of protecting judicial independence from corrupt
practices.





The
institution of criminal proceedings against the applicant by the
Attorney-General was not an intervention in any judicial process
over
which the applicant as a judge was presiding. It was, instead, an
initiation of a different process altogether, namely, the
trial of
the applicant on the charges preferred against him.





The
two proceedings, that is, the removal of a judge from office and
prosecuting him for a criminal offence, are separate processes
emanating from the exercise of co-ordinate powers conferred upon two
different constitutional functionaries. The purposes to be
achieved
are different. The object of one procedure is the conviction and
sentencing of the applicant should the misbehaviour be
proved beyond
reasonable doubt; whilst that of the other is his removal from
office.





The
above construction is consistent with what prevails in other
jurisdictions. In
Chandler
v Judicial Council
398
US 74 (1970) MR JUSTICE DOUGLAS at 139 said:





“Federal
judges are entitled, like other people, to the full freedom of the
First Amendment. If they break a law, they can be
prosecuted. If
they become corrupt or sit in cases in which they have a personal or
family stake, they can be impeached by Congress.”





At
p 140 MR JUSTICE BLACK had this to say:





“Judges
in our system were to hold their offices during ‘good behaviour’,
their compensation was not to be ‘diminished during
their
continuance in office’, and they were to be removed only after
impeachment and trial by the United States Congress. …
Judges,
like other people, can be tried, convicted, and punished for crimes.”





Article 106
of the Korean Constitution, for example, provides that no judge shall
be removed from office except by impeachment
or a sentence of
imprisonment, suggesting that the institution of criminal proceedings
against a judge charged with a criminal offence
can take place before
the procedure for his removal from office has been gone into.





In
Chandler’s
case
supra
no suggestion was made that the prosecution of a judge for a criminal
offence could not take place before the impeachment procedure
had
been gone into and completed.





The
statement by the CHIEF JUSTICES of Botswana, Malawi, Mauritius,
Namibia, South Africa, Swaziland, Tanzania, Uganda
and Zambia,
quoted by SANDURA  JA in his judgment, cannot be authority
for the proposition that the Constitution of Zimbabwe
requires that
the institution of criminal proceedings against a judge for a crime
shall not be undertaken until the procedure for
his removal from
office under s 87 has been gone into and completed. There is
clearly no provision supporting this construction
in our
Constitution. All that can be said is that the Constitution is
silent on the matter. The statement can only be taken to
be an
expression of what is desirable. That in the constitutional scheme
is a matter for the Attorney-General to take into account
in the
exercise of his wide discretion whether to institute or not to
institute criminal proceedings against a judge at a particular
time.
It is not the duty of this Court to tell the Attorney-General how to
exercise his discretion.





I
would accordingly support the order made only to the extent that it
declares that the arrest, detention and remand of the applicant
contravened the provisions of ss 13(1) and 18(1) of the
Constitution of Zimbabwe and dismiss the application for an order to
the effect that the arrest, detention and remand of the applicant
violated his rights under ss 79B and 87 of the Constitution
of
Zimbabwe. I agree with the order on costs.














ZIYAMBI  JA:
I agree with the judgment of MALABA  JA.














GWAUNZA  JA:
I agree with the judgment of MALABA  JA.














UCHENA  AJA:
I agree with the judgment of MALABA  JA.














Byron
Venturas & Partners
,
applicant's legal practitioners


Civil
Division of the Attorney-General’s Office
,
respondents' legal practitioners