Source: No one above the law: Judge | The Herald November 19, 2016
Daniel Nemukuyu Senior Court Reporter—
MINISTERS and politicians are not above the law and should act in terms of the law like any other citizens, a High Court judge has said. Justifying her decision to convict Home Affairs Minister Ignatius Chombo for contempt of court and the sentence thereof, Justice Amy Tsanga said no one deserves preferential treatment before the courts in the spirit of equality before the law. Minister Chombo was slapped with a 90-day jail term for defying court orders compelling him to direct officials in his ministry to pay back US$78 900 unlawfully seized by police from a Mutare businessman, Mr Tendai Blessing Mangwiro, in 2012.
Justice Tsanga said court orders were binding on every litigant regardless of status and they must be obeyed.
“Central to the rule of law is that no person is above the law. The rule of law binds Government and all officials to its precepts and also preserves the equality and dignity of all persons.
“In essence, equality before the law is not a hollow concept. Everyone, regardless of factors such as economic or social status or political affiliation, is subject to the law,” she said.
The judge said the judiciary was an independent arm that was only influenced by the Constitution of the country and that the courts were enjoined to apply the law without fear or favour.
“Respect for the rule of law would be ferociously eroded if courts were to permit a Government official to send a message to a litigant who has successfully sued, that the State does not value court orders,” said Justice Tsanga.
An attempt by Minister Chombo to oppose the contempt of court application while hiding behind the claim that he had not been personally served with the orders hit a brick wall after a careful analysis of facts by the judge.
“The minister, Dr Ignatius Chombo, is a well-known public figure who is unlikely to be mistaken.
“The Additional Sheriff would have no reason as an officer of the court to lie that he had served him personally,” said the judge.
“I therefore had no reason to disbelieve his return of service which indicated that he had served him personally at his offices at 11th Floor Mukwati Building along Fourth Street (in Harare) on July 11 2016.
“Having been satisfied from the return of service that the relevant minister was served personally with the application for contempt, the finding of contempt of court against Dr Ignatius Chombo as Minister of Home Affairs was accordingly made in this context,” the court ruled.
Mr Mangwiro’s cash was seized by police and held as an exhibit, but when the matter was finalised the money could not be found.
He then approached the court seeking reimbursement and several court orders were granted in his favour, but Minister Chombo allegedly persistently refused to budge.
In an application for a mandamus order filed last month, Mr Mangwiro said he was further seeking costs of suit on a higher scale, accusing the minister of being deliberately in contempt of court orders.
In the US$78 000 case that resulted in the contempt of court order, Mr Mangwiro was charged with theft and tried by a regional court.
When he was acquitted on January 18 2013, the police had unlawfully and procedurally released the $78 900 seized from him and Z$46 135 000 000 to one Andre Nsaka Nsaka.
The cash and motor vehicles were, in fact, not exhibits before the regional court and that there was no basis for them to be released to that person.
Mr Mangwiro then applied for the release of his cash. Using the prevailing Reserve Bank of Zimbabwe rates, the Zimbabwe dollar component of Z$46 135 000 000 was converted to US$1 537 833.
The High Court initially ordered the minister to pay back the $78 900 but did not issue an order in respect of the Zimbabwe dollar component.
Mr Mangwiro appealed to the Supreme Court which ruled that he must also be paid in United States dollars but referred the matter back to the High Court for quantification.
The High Court then agreed with Mr Mangwiro and ordered the minister to pay US$1,5 million on top of the US$78 900.
In a separate matter, Minister Chombo has been ordered to facilitate the payment of the US$1,5 million to Mr Mangwiro.
To save Minister Chombo from arrest and imprisonment, the AG’s Office has filed an appeal at the Supreme Court against the whole decision of Justice Tsanga.
The AG wants the Supreme Court to refer the matter back to the High Court to allow the parties to lead evidence to establish whether or not the minister was duly served with the application.