UNDERFIRE High Court judge Justice Erica Ndewere, who has taken President Emmerson Mnangagwa to court seeking to interdict him from setting up a tribunal to investigate her for alleged misconduct, has applied for Justice Davison Foroma to recuse himself from the case saying she preferred a retired judge. BY STAFF REPORTER Her lawyer Beatrice Mtetwa of Mtetwa and Nyambirai made the application yesterday, but no determination was made. Justice Ndewere argued that sitting judges would not freely rule against their superiors — Chief Justice Luke Malaba, Judicial Service Commission and Judge President Justice George Chiweshe, whom she cited as respondents. The matter was postponed to today to allow Attorney-General Prince Matshaya to respond to her application on behalf of the State. NewsDay is also reliably informed that Mnangagwa and Justice minister Ziyambi Ziyambi have not yet filed opposing papers, a situation which is assumed to indicate their unhappiness with the simmering dispute that is tarnishing the image of the country and the Judiciary. Justice Ndewere is denying the allegations, which she says were fabricated by Chief Justice Malaba in order to incriminate her after she spurned unlawful orders to deny bail to former Environment minister Priscah Mupfumira and opposition MDC Alliance vice-chairperson Job Sikhala. Section 165(3) of the Constitution states that: “When making a judicial decision, a member of the Judiciary must make it freely and without interference or undue influence.” The High Court Act also states 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.” Legal experts say that the allegation of impropriety by a High Court judge against the Chief Justice is unprecedented in the history of the Judiciary in Zimbabwe and cannot be swept under the carpet without an investigation by a tribunal to clear the Chief Justice. Malaba, who is 69 years old, was due for retirement in eight months, but Cabinet recently approved the extension of his tenure from 70 years to 75 years.