Ex parte Chief Immigration Officer 1993 (1) ZLR 122 (S)

Gubbay CJ:

Before judgment was handed down in the lower court, one of the three sitting judges resigned. Applicant claimed that he had been deprived of his right under 18(9) of the Constitution, to be afforded a fair hearing because the court, when delivering its judgment was not properly constituted in terms of the Supreme Court of Zimbabwe Act 28 of 1981. Applicant claimed that the judgment was a nullity, necessitating the rehearing of the case.

Held that as the resigning judge had discussed the case with the other judges and they had jointly reached the conclusion that was later handed down, any irregularity that occurred was somewhat technical and did not amount to a breach of 86(4) of the Constitution, which allows a retiring, but not a resigning judge to continue to sit and complete matters commenced before him. Held further, that there had been no breach of the right to a fair hearing. The court had been properly constituted at the date of the hearing and was procedurally fair. No actual or potential prejudice was caused by the Judge's subsequent resignation.

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