People's Democratic Party and Jacob Mafume and Simon Chabuka and Arnold Dube v Minister of Local Government, Public Works and National Housing N.O and Benjamin Rukanda and City of Harare

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                                                                                     HH 156/21
                                                                                    HC 5292/20




PEOPLE’S DEMOCRATIC PARTY
and
JACOB MAFUME
and
SIMON CHABUKA
and
ARNOLD DUBE
versus
MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING
N.O
and
BENJAMIN RUKANDA
and
CITY OF HARARE


HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 12 March 2021


G. Madzoka for the applicants
W. Madzimbamuto for the 2nd respondent


Opposed Application

    CHIRAWU-MUGOMBA J: On the 12 th of March 2021, I discharged in an ex tempore
judgment an application to confirm a provisional order sought by the applicants. I have been
requested to give reasons and these are they.
         On the 24th of September 2020, this court granted a provisional order in the following
terms.
Terms of final order made
   1. The provisional order be and is hereby confirmed.
   2. Pending the determination of the matter in HC 5292/20, the 1 st and 3rd respondents,
         their agents, employees or subordinates acting on their behalf or in terms of the letter
         from the 2nd respondent dated 14 September 2020 be and are hereby interdicted from
         enforcing or taking action in terms of the letter.
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    3. The letter by the 2nd respondent to 1st respondent dated 14 September 2020 is declared
        to be in contravention of the rights of applicants in section (sic ) 58 and 67 of the
        Constitution and consequently null and void.
    4. The conduct of 2nd respondent of communicating vacancies in Ward 17 Harare, Ward
        12 Mutare and Ward 24 Bulawayo be and is hereby declared unlawful and set aside.
    5. The 1st and 2nd respondents shall jointly and severally the one paying the other to be
        absolved bear the costs of suit.
Interim relief granted
It is ordered that:-
Pending confirmation or discharge of this provisional order, the applicants are granted the
following interim relief:
    1. The 1st respondent, his agents or subordinates or anyone acting on his behalf or in
        terms of the letter from 2nd respondent dated 14th September 2020 be and is hereby
        interdicted from enforcing or taking action in terms of the letter pending the return
        date.
    2. The 3rd respondent, its agents, employees, officials or anyone acting on its behalf be
        and are hereby interdicted from enforcing or taking action in terms of any letter.
    At the centre of the dispute lies a letter dated the 14 th of September 2020 addressed to the
1st respondent by one Benjamin Rukanda who signed it as Secretary –General of the 1 st
applicant. It is titled, ‘recall of certain Councillors’. The letter notified the 1 st respondent that
in terms of s278 as read with s129 of the Constitution that the party was recalling the 2 nd to 4th
applicants on the basis that they were no longer party members. These members were
respectively Councillors of Ward 17 Harare, Ward 24 Bulawayo and Ward 12 Mutare. The
applicants further averred that they with others had issued summons under case number HC
5292/20 in which they seek the following relief:-
    1. An order that the 2nd plaintiff is the Secretary General of the 9th plaintiff.
    2. An order declaring that Annexure A purporting to recall the 3rd, 4th and 5th plaintiff’s is
        null and void and is hereby set aside.
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   3. An order directing that the 2nd, 3rd and 4th respondents should disregard annexure A or
       any further communications addressed to them by the 2 nd defendant purporting the
       (sic) the represent the 9th plaintiff.
   4. An order declaring that only the duly authorised representative of the People’s
       Democratic Party in particular Settlement Chikwinya has the power to act on behalf
       of the organization.
   5. An order declaring that the Secretary General of 9th plaintiff can only author official
       communications to public institutions concerning resolutions and the state of the party
       when he is duly authorised by the President.
   6. An order declaring that the 2nd to the 5th defendants be and are hereby barred from
       acting for any directive or instructions other than a directive from Settlement
       Chikwinya.
   7. That the 1st defendant is to pay the costs on a higher scale.
   The relationship between this matter and HC 5292/20 (an action) is as follows. The 2 nd
plaintiff is the deponent to the 1st applicant’s founding affidavit. He claims that he is the
Secretary –General of the applicant. Annexure A is the same letter of recall referred to by the
applicants dated the 14th of September 2020. The 9th plaintiff is the applicant. The 1 st and 2nd
defendants are the 1st and 2nd respondents. The 3rd to the 5th plaintiffs are the 2nd to the 4th
applicants.
       The application was strenuously opposed by the 2nd respondent. The 3rd respondent
addressed a letter through its legal practitioners that it would abide by the court’s decision.
  For purposes of this judgment, the court shall not delve into the merits of the case. At the
hearing, Mr Madzimbamuto stated that he was persisting with a point in limine that the
deponent to the 1st applicant’s affidavit lacked locus standi and even the 3 other applicants.
The view by the court which Mr Madzoka agreed with is that this touched on the merits as it
was a factual issue. The court however raised two preliminary issues (1) the nature of the
relief sought being similar to the relief sought in HC 5292/20 and the propriety of attaching
annexures to an answering affidavit.
       Mr Madzoka made the following submissions. The final relief sought in paragraph 4
was incompetent since there had been no communication by the 1 st respondent declaring
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vacancies. The other paragraphs relate to relief by a respondent who has not opposed
confirmation, i.e. the 3rd respondent. Only paragraph three remains relevant on the narrow
point of a declaratur of constitutional inconsistency and invalidity which order is not sought
in HC 5292/20. That issue falls outside lis pendens - Mhungu v Mutindi 1986(2) ZLR 171. If
the court is so inclined it can refer the constitutional issue for trial so that it be heard as part
of HC 5292/20. Mr Madzimbamuto made the following submissions. It is clear that what
essentially the applicants are seeking before the court is that the conduct of the 2 nd respondent
be declared unlawful and set aside and that the letter dated the 14 th of September 2020 be
consequently declared null and void. The order sought by way of confirmation will render
the pending action one of an academic exercise. It is tantamount to asking the court to
interfere in a process that is still pending.
      Having conceded that the relief sought in casu, is similar to that sought in HC 5292/20
and having abandoned relief in respect of paragraph 4, what is left is for the court to decide
on whether or not the narrow constitutional issue is lis pendens. This essentially entails that
that the two matters are between the same parties or their successors in title based on the
same subject matter and also on the same complaint. See Diocesan Trustees for Diocese of
Harare v Church of the province of central Africa 2009(2) ZLR 57(H). The central issue in
both matters is the recall letter dated the 14 th of September 2020. Although HC 5292/20 has
more parties, the applicants and the respondents in casu are also part of the litigation. If the
court proceeds to deal with the issue of constitutional invalidity of the letter as suggested by
Mr Madzoka this will essentially mean that it would have interfered with the relief sought in
HC 5292/20. It is pertinent to note that in casu, the applicants have not sought constitutional
invalidity generally but specifically in relation to the said letter.        In HC 5292/20, the
applicants seek a declaratur in relation to the same letter, that it be declared null and void. In
my view, the relief sought by the applicants in casu is lis pendens.         This court cannot as
requested by Mr Madzoka ‘join’ the constitutional issue to HC 5292/20. This request is
inappropriate as it arose during proceedings. HC 5292/20 was not before the court on the
merits except to compare the relief sought. In my view the request to join was not properly
presented but was a half-hearted attempt to avoid the issue of lis pendens. For that reason,
the request was declined. As correctly submitted by Mr Madzimbamuto, the central issue is
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the discharge of the provisional order. The most appropriate action that the court can take is
to discharge the provisional order. No prejudice will be suffered by the applicants as they still
have an opportunity to ventilate their issues in HC 5292/20.
           It is trite that it is not competent for a party to attach annexures to an answering
affidavit – see Nashe Family Trust vs. Chiwara and ors, HH-476-18. In view of the findings
above, it shall not be necessary to deal with this issue.
On costs, as rightly conceded by both counsel, it is the court that raised the issues and not the
legal practitioners. The most appropriate order of costs is one that the applicants pay costs on
an ordinary scale.


DISPOSITION
It is ordered that:-
    1. The provisional order be and is hereby discharged and the application is dismissed.
    2. The applicants shall pay the costs.




Mupanga Bhatasara Attorneys, applicants’ legal practitioners
Kajokoto and Company, 2nd respondent’s legal practitioners