The President of the Republic of Zimbabwe v Abednico Bhebhe and Njabulo Mguni and Norman Mpofu

### Preamble
HH 400-12
HC 11222/12
Ref Case Nos: SC 267/11
HC 1485/10
HC 9781/12
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THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE

versus

ABEDNICO BHEBHE

and

NJABULISO MGUNI

and

NORMAN MPOFU

HIGH COURT OF ZIMBABWE

CHIWESHE JP

HARARE, 28 September 2012 & 2 October 2012 & 17 October 2012

Adv R. Goba with Mrs F. Chimbaru, for the applicant

Mr T. Zhuwara with Mr J. Bamu & Mr D. Chimbwa, for the respondents

CHIWESHE JP:  The background facts to this urgent chamber application are as follows:

The three respondents were elected members of the National Assembly in the 2008 general elections.  They were elected under the ticket of their party the MDC and were dully sworn in as members of Parliament for Nkayi South, Lupane East and Bulilima East constituencies respectively.  They were subsequently expelled from the party and their membership of parliament terminated at the behest of the party.

As a result the speaker of the House of Assembly proceeded to notify the applicant of the three Parliamentary vacancies so created as required of him in terms of s 39 (1) of the Electoral Act [Cap 2:13].  The applicant did not take the necessary steps to fill the vacancies as required by law.  The respondents, under case number HC 1485/10, then approached this court for an order compelling the applicant to gazette a date for elections to fill the vacancies in the three constituencies.  After hearing arguments from the parties, NDOU J granted the relief sought in the following terms:

“IT IS ORDERED THAT:

1.  The 3rd respondent (applicant in the instant case) be and is hereby directed to

gazette a date for elections within fourteen days of service of this order on him in

the following House of Assembly constituencies, Nkayi South, Lupane East and

Bulilima East.

2.  There is no order as to costs.”

The order was granted on 13 October 2011.  The applicant, displeased with that result, filed an appeal with the Supreme Court.  After hearing argument from counsel, the Supreme Court, under Civil Appeal No. SC 267 of 2011, made the following order on 12 July 2012:

“IT IS ORDERED THAT:

(1)  The appeal is dismissed with costs.

(2)  The order of the lower court is altered to read as follows-

“(a)  The application is granted.

(b) The respondent (the President of the Republic of Zimbabwe) is hereby

ordered to publish in the Gazette a notice ordering new elections to fill the

vacancies as soon as possible but by no later than 30 August, 2012.

(c) There will be no order as to costs.”

Under case No. HC 9781/12 the applicant sought and was granted, by consent of the parties, the following order:

“1.  The period within which to comply with the order granted in case No.  SC 267/11

be and is hereby extended to the 1st October 2012.

2. There be no order as to costs.”

This order is dated 30 August 2012.

In the present case the applicants have sought yet another extension.  The grounds upon which they rely are the same grounds as those cited in case No. HC 9781/12.  They seek the indulgence of this court to further extend the period within which to comply with the order granted under SC 267/11 to 31 March 2012 because the State is yet to mobilise the resources with which to conduct the three by-elections.

The respondents oppose the grant of that indulgence.  They have raised the following preliminary issues:

Firstly, they argue that the matter is not urgent and, in any event, the certificate of urgency filed of record is defective in that it is signed by a legal practitioner who is also a member of the Attorney General’s Office, the applicant’s legal practitioners.

Secondly, the respondents aver that the Minister of Justice and Legal Affairs, the deponent to the founding affidavit, has not placed before this honourable court written authority from the applicant authorising him to depose to this affidavit on his behalf.  For that reason, argue the respondents, there is no founding affidavit supporting the application.  It is necessary that the Minister first obtains such authority from the applicant himself or from the Secretary to the President and Cabinet, contend the respondents.

However, for reasons I shall spell out later in this judgment, I am of the view that nothing much turns on the preliminary issues raised by the respondents.

On the merits, the respondents, despite consenting to the order of this court granted on 30 September 2012, now argue that this court had and still has no jurisdiction to alter the judgment under SC 267/11 as it was an order of a superior court, the Supreme Court.  I disagree that this court lacks jurisdiction to entertain this matter.  This matter originated in this court under  case No HC 1485/10 where NDOU J directed that the applicants  (first respondent in that case) issues the notice  to hold the three by elections within 14 days from the date of that order.  The applicant appealed that decision.  The Supreme Court confirmed the order of this court and directed that the applicant complies with it within a prescribed period.  Although the Supreme Court order alters the judgment of the court a quo, it does not do so in any material respect.  At most it confirms substantially the same order of this court, be it expressed in different words.  The phrase “The application be and is hereby granted” refers essentially to the order granted by NDOU J.  For that reason, the order being confirmed is the order of this court.  It would be different if the appeal court had set aside the High Court order and substituted it with its own.  Under those circumstances, this court would have no jurisdiction whatsoever to entertain an application such as the present.

The alteration of NDOU J’s order to reflect a new time scale was necessitated by the passage of time. A new time frame was introduced because the original time frame had been overtaken by events, and, having lapsed, could no longer be complied with.  That alteration in my view does not substantially change the nature of NDOU J’s order.  For that reason I would hold that NDOU J’s order remains extant and that this court retains jurisdiction notwithstanding the order given under SC 267/11.

I agree with the applicant that what is being sought is not an alteration of the order of this court under circumstances where the court has become functus officio, but rather an extension of time within which to execute that order.  It is a procedural rather than substantive matter in which the court may, on good cause shown, exercise its discretion in favour of the applicant.

Applications such as the present are not uncommon and have been entertained by the courts in various criminal and civil matters.  They may be made formally in writing and where appropriate, may be made orally from the bar.  There are no specific rules governing the form or content that all of them must take, although some of them may be regulated in one way or another.  Where the application is lodged before the expiry of the period within which a party must perform, as in the present case, it can be treated as an application for directions.

In the instant case the applicant avers that despite previous extensions the resources necessary for the conduct of the by-elections are not yet at hand.  It stands to reason that without resources the by-elections cannot be held notwithstanding any order of this court to the contrary.  This court is not in a position to reject the applicant’s explanation that he does not have the resources needed to perform as ordered.  The respondents have not even suggested that the applicant is acting dishonestly when he pleads lack of resources, or, put differently, impossibility of performance by virtue of that reason.  Save for stating that the applicant is duty bound in its budgetary allocation to set aside funds for this sort of expenditure, the respondents are unable to say whether such funds are available or whether if so, same had been made available in the budget and whether, if that be the case, the applicant is reluctant or for some reason, ill disposed towards expending same for the purpose for which they were intended.

In the circumstances I have no reason to doubt the sincerity of the applicant’s explanation and his reason for seeking an extension of the time within which he is required to execute the order of this court.  He has offered a reasonable explanation for the indulgence he seeks and, by approaching this court timeously, he has demonstrated his wish to abide by the court’s order but for the constraints he alludes to.

Finally I turn to the preliminary issues raised by the respondents.  The Minister of Justice and Legal Affairs is the Minister for the time being charged with the administration of the electoral laws of the country.  By virtue of that fact he has political oversight over the Zimbabwe Electoral Commission.  Further, he is answerable to cabinet and to the applicant.  By virtue of his position I would hold that he has authority to speak on behalf of the applicant and, for purposes of this application, on behalf of the Zimbabwe Electoral Commission as well.  In the absence of any information to the contrary, I would dismiss the respondents’ averment that the Minister, in embarking upon this application of immense national importance and public interest, might well be acting on a frolic of his own, merely because no written authority has been furnished by the applicant nominating the minister to act on his behalf.

That this matter is of national importance admits of no doubt.  The urgency of the application arises from that fact and from the further fact that the applicant, for plausible reasons, is unable to conduct an election within the time ordered by the court. The respondents seek to hold the applicant strictly to his word primarily because in previous applications he has himself given a date by which he would be able to execute the order of this court.  I do not however understand the applicant, by making such previous commitments, to have meant that the resources required would have been found without fail.  At most what can be said is that the applicant anticipated that such would have been mobilised. By suggesting the dates in which he expected to have put resources in place, it cannot be said that the applicant is the author of the urgency in this application.  Rather the application is urgent because the applicant has not achieved the expected capacity and may, on that account, be held in contempt of court.  It is of utmost importance that the applicant approaches the court to appraise it and the nation at large of the hurdles in his way and seek directions on how best to proceed.

The propriety or impropriety of a legal practitioner belonging to the same firm of legal practitioners certifying the urgency of the matter has been the subject of various conflicting decisions of this court.  In my view no prejudice has arisen in this case as a result thereof.  I would therefore condone it.

It was for these reasons that I granted the application and ordered as follows:

IT IS ORDERED THAT:

The period within which to comply with the order granted in case No. SC 267/11 be and is hereby further extended to the 31st day of March 2013.

There will be no order as to costs.

Civil Division of the Attorney General’s Office, applicant’s legal practitioners

Zimbabwe Lawyers for Human Rights, respondents’ legal practitioners