Former University of Zimbabwe law student, Romeo Zibani, has withdrawn his application challenging the constitutionality of the appointment of retired Supreme Court judge Justice Vernanda Ziyambi as acting judge without taking oath of office.

Zibani emerged the loser in a Supreme Court hearing which was meant to determine whether the late Chief Justice Godfrey Chidyausiku’s successor would be appointed through the Judicial Service Commission (JSC) process.

Ziyambi sat as an acting judge in an appeal by the JSC against a High Court decision by Justice Charles Hungwe stopping public interviews to select Chidyausiku’s successor.

The Supreme Court bench, comprising Justices Ziyambi, Bharat Patel and Ben Hlatshwayo, allowed the appeal and quashed Hungwe’s decision, arguing that the public interviews were constitutional.

Chief Justice Luke Malaba scored 91% in public interviews conducted by the JSC, while the then commission’s secretary, Justice Rita Makarau and Justice Paddington Garwe got 90% and 52%, respectively.

In a notice of withdrawal datestamped June 26 at the Constitutional Court, Zibani through his lawyers Venturas and Samukange stated that the application had been withdrawn “with each party bearing its own costs”.

“Further take notice that the parties have agreed not to appear in court,” Zibani’s withdrawal notice read.

A source in the JSC said the application served no purpose, as Ziyambi was now retired and Chidyausiku was late.

In his application, Zibani challenged the constitutionality of the bench that threw out his case.

Zibani argued that Ziyambi, after reaching the mandatory retirement age of 70, was unconstitutionally reappointed by Chidyausiku in terms of section 168(2) of the Constitution.

Ziyambi retired from the bench in November 2016, but she was re-appointed to the bench in an acting capacity for a year.

She was roped onto the bench after five Supreme Court judges recused themselves from an appeal hearing in which the JSC was challenging High Court judge Justice Charles Hungwe’s interim interdict preventing it from conducting public interviews for the post of Chief Justice, which was held by the late Chidyausiku.

Justices Elizabeth Gwaunza, Marie-Anne Gowora, Tendai Uchena, Susan Mavangira and Antonia Guvava had recused themselves from the case.

It was not clear why they did so.

Supreme Court judge Justice Chinembiri Bhunu was also not part of the bench as he was said to be out of the country on business.

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