MDC-T v Minister of Local Government, Rural & Urban Development and Others

### Preamble
1
HH 289/13
HC7307/13
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MDC-T

versus

MINISTER OF LOCAL GOVERNMENT, RURAL &

URBAN DEVELOPMENT

and

SECRETARY FOR LOCAL GOVERNMENT, RURAL &

URBAN DEVELOPMENT

and

PROVINCIAL ADMINISTRATOR – HARARE

and

PROVINCIAL ADMINISTRATOR - BULAWAYO

HIGH COURT OF ZIMBABWE

BERE J

HARARE, 11 SEPTEMBER, 2013

URGENT CHAMBER APPLICATION

T.A. Toto, for the applicant

T.S. Mandizha, for the respondent

BERE J:   On 21 August 2013 and pursuant to the results of the harmonized elections held in the Republic of Zimbabwe the 2nd respondent sent a letter to all local authorities guiding them on the manner in which the Mayors and Chairpersons of local authorities were to be elected. Paragraph 4 of the letter which is relevant to the matter in casu which had particular reference to Harare and Bulawayo Metropolitan Provinces read as follows;

“4.	It is underscored that in terms of Section 274(2) as read with Section 265(2) and Section 275 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013, Mayors and Chairpersons shall be elected from amongst elected councilors only”.

This exhortation did not find favour with the applicant which held a diametrically opposed view on the election of the Mayors and Chairpersons. The long and short of it is that the applicant felt very strongly that the correct position was that the Mayors and Chairpersons were to be chosen not from elected councilors only but that any “other person” could qualify to be chosen.

The result of this disagreement was the filing of this urgent chamber application by the applicant seeking to interdict the respondents from implementing the directive of 21 August 2013. The matter was brought on a certificate of urgency as contemplated by Order 32 r 242 2(b) of High Court Rules.

Before dealing with the application on merits I had to satisfy myself on the urgency of the matter and it was for this reason that I sought guidance from both Counsels who appeared before me. This was particularly so in the light of Order 32 r 244 which is worded as follows;

“Urgent Applications

244.	Where a chamber application is accompanied by a certificate from a legal practitioner in terms of paragraph (b) of rule 242 to the effect that the matter is urgent, giving reasons for its urgency, the registrar shall immediately submit it to a judge, who shall consider the papers forthwith.

Provided that before granting or refusing the order sought, the judge may direct that any interested person be invited to make representations, in such manner and within such time as the judge may direct as to whether the application should be treated as urgent.(my emphasis)

The invitation to the parties legal practitioners was prompted by the apparent defects in both the applicant’s founding affidavit deposed to by one Blessing Chebundo and supported by one Obert Chaurura Gutu as well as the Certificate of Urgency prepared by Joseph Terera, a duly registered legal practitioner and partner practicing under Messrs Mwonzora and Associates Legal Practitioners.

I did indicate to the two legal practitioners that I was particularly concerned with the yawning gap in the founding affidavit in that it did not make any attempt to explain the cause of the delay in filing the instant application given the fact that this application was only filed in this Court almost 15 calendar days from 21 August 2013 when the letter forming the basis of the cause of complaint was generated.

The difficulty which the applicant’s counsel faced in properly guiding the Court in this regard was quite apparent given the short comings in the founding affidavit. Counsel for the Respondents conceded he had overlooked this aspect but agreed with the Court’s observation that the applicant’s founding affidavit offered no meaningful assistance in this regard.

I must point out that it is imperative that in an application of this nature the applicant’s founding affidavit must on its simple perusal and based on the concept of res ipsa loquitur clearly lay the foundation of the applicant’s case, in this case the aspect of urgency and the applicant’s case on merits. The Court must not be left to wonder or speculate in this regard.

Those who follow the elementary rules of urgent chamber applications fully appreciate that the certificate of urgency is formulated or compiled only after one would have acquainted oneself with the applicant’s founding affidavit. It is from the applicant’s founding affidavit that one formulates an opinion on the urgency of the matter before attaching a certificate of urgency in accordance with the rules of this Court.

In other words it is not possible for the applicant to seek guidance from the certificate of urgency in order to demonstrate the urgency of the application.

It was with utter disbelief that the Court realized that Blessing Chebundo had in fact sought to rely on the certificate of urgency filed by Joseph Terera to persuade the Court to appreciate the urgency of this application. In this regard it will be noted that Blessing Chebundo in his founding affidavit alleged the following;

“h.	 As will more fully appear in the certificate of urgency deposed to by Joseph Terera, it is a matter that deserves the attention of this court on an urgent basis. I am legally guided which guidance I take to submit that the deposition of the certificate of urgency by Joseph Terera is procedurally proper as he has been acquainted with the matter and appreciated its urgency ……………………” (my emphasis)

How strange! Two issues arise from Blessing Chebundo’s affidavit. Firstly, it is clear that when he compiled his own founding affidavit Joseph Terera had already prepared his certificate of urgency. Secondly, Blessing Chebundo’s comments on the “propriety” of Terera’s certificate of urgency could only have been raised by Blessing in his answering affidavit and not in his founding affidavit.

As the Court sought to unravel the possible cause of the inconsistencies between the applicant’s founding affidavit and the certificate of urgency more revelations were to lay themselves bare.

A close examination of Blessing Chebundo’s founding affidavit showed that this affidavit was signed before a commissioner of oaths on 6 September 2013 whereas Joseph Terera’s certificate of urgency was signed on 5 September 2013, that is, a day before the founding affidavit itself.

It became so apparent to the Court that when Joseph Terera concluded his certificate of urgency by alleging that;

“4.	From the review of the Applicant’s founding affidavit and arguments advanced it is apparent, that the 1st Respondent and 2nd Respondents have acted in violation of the provisions of the Constitution of Zimbabwe, the Urban Councils Act and the Local Government Laws ……………”, (my emphasis)

he could not possibly have been candid with the Court because on 5 September 2013 when he compiled his certificate of urgency the applicant’s affidavit was not yet in existence’

This lack of candidness on the part of the applicant dealt a serious blow to the aspect of urgency in the applicant’s application.

An attempt was made by the Court to possibly get assistance from the supporting affidavit of Obert Chaurura Gutu who wrote in paragraph 3 of his supporting affidavit as follows;

“3.	I have read the affidavit deposed to by Blessing Chebundo on behalf of the MDC-T political party; Applicant in this matter. I fully subscribe to the contents therein in so far as the matter is concerned".

It was eminently clear to the Court that Gutu purported to subscribe to the contents of Blessing Chebundo’s founding affidavit without making a critical assessment of the contents of that affidavit because given his position (a senior legal practitioner and deputy Minister of Justice in the immediate past inclusive Government) [(the court takes judiciary note of this)] he ought to have exercised due diligence in order for him to be of better assistance to the Court.

Given the incurable nature of both the certificate of urgency and the founding affidavit itself it is clear to me that the basic test of urgency has not been satisfied to allow this case to be given preferential treatment over many other cases requiring the attention of this Court.

Further, given the cumulative effective of the issues that I have raised, I am more than satisfied that it would be a miscarriage of justice as perceived for me to hear this matter on an urgent basis when the papers filed by the applicant dissuade me from doing so.

Consequently I decline to hear this matter on an urgent basis and the Applicant is ordered to pay costs of suit.

Messrs Mwonzora and Associates, Applicant’s Legal Practitioners

Messrs Mandizha and Company, Respondents Legal Practitioners