Age limit extension judge becomes first beneficiary of own judgement

HARARE – A judge who invalidated a High Court ruling that current judges should retire upon reaching the age of 70 has become the first beneficiary of his judgement.

President Emmerson Mnangagwa has extended the term of office of Justice Bharat Patel of the Constitutional Court by five years, ZimLive can reveal.

Patel wrote the judgement of the Constitutional Court in the famous case of Marx Mupungu which was decided in September last year.

Mupungu had successfully argued at the High Court that Chief Justice Luke Malaba had ceased to hold office after reaching the retirement age of 70.

Just days earlier, President Emmerson Mnangagwa had rushed through controversial constitutional amendments allowing judges an optional extension of five years, but three High Court judges ruled that the amendment could not benefit sitting judges.

The High Court judgement was overturned on appeal at the Constitutional Court, with Patel and Justice Rita Makarau writing the majority opinion.

ZimLive has now established that Patel used his option to extend when he reached the age of 70 on April 16 last month.

In a general notice dated April 14, the Chief Secretary to the President and Cabinet Misheck Sibanda said: “It is hereby notified that His Excellency the President has on the recommendation of the Judicial Service Commission, and acting in terms of section 186(2)(a) of the Constitution of Zimbabwe, extended the appointment of Hon. Mr. Justice Bharat Patel as judge of the Constitutional Court of Zimbabwe for a period of five years with effect from 16th April 2022.”

Mupungu’s lawyers had argued that the principle of natural justice that no person can judge a case in which they have an interest should have disqualified the upper court judges from hearing the matter, but they were overruled.

As it turns out, Patel had less than a year to reach 70 when he wrote the Mupungu judgement. The judge will struggle to shake off accusations that he was weaving his own nest.

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