Court name
Supreme Court of Zimbabwe
Case number
SC 31 of 2003
Civil Application 71 of 2002

Registrar General of Elections and Others v Tsvangirai (71/02) (SC 31 of 2003, Civil Application 71 of 2002) [2003] ZWSC 31 (20 October 2003);

Law report citations
Media neutral citation
[2003] ZWSC 31




DISTRIBUTABLE
(22)














Judgment
No S.C. 31\03


Civil
Application No 71\02

















(1) REGISTRAR
GENERAL OF ELECTIONS (2) MINISTER OF JUSTICE
(3) MINISTER OF HOME AFFAIRS


v
MORGAN TSVANGIRAI











SUPREME
COURT OF ZIMBABWE


HARARE
OCTOBER 21, 2003








C.
Muchenga
,
for the applicants





B.
Elliot
,
for the respondent








Before:
CHIDYAUSIKU CJ, in Chambers in terms of the


Supreme
Court Rules








The
appeal in this case was set down for hearing on 2 June 2003. On
that date in spite of the applicants’ averment that it considered
this matter to be very important, there was no appearance for the
appellants (now applicants).





Counsel
for the respondent moved that the appeal be dismissed for want of
prosecution with costs. The application was granted
and the appeal
was dismissed for want of prosecution with costs. On 6 June 2003
the applicants filed an urgent Chamber application
for directions.





An
affidavit in support of the application from the Registrar-General
reads, in part, as follows:-






“On
4
th
March 2002, I filed an appeal against part of the judgment of the
High Court handed down by the Honourable Justice Adam in Case No.
H.C. 12092/01.






The Hearing
was set down for the 2
nd
June 2003.





I
believed that my lawyers were taking care of the matter.






On 2nd
June 2003 at about 6 pm I was informed by my lawyers that this appeal
had been dismissed for want of prosecution.






On further
inquiry I was advised that Mrs
Matanda-Moyo
who was seized with the matter had been taken ill and had been unable
to attend this hearing. See her Supporting Affidavit.





I
was also advised that due to the lack of phones at the Civil Division
a Clerk of the Supreme Court attended personally at Civil
Division at
09:45 hours to enquire why there was no appearance on my behalf.






I am further
advised that a Law Officer attended court to explain that Mrs
M
atanda-Moyo
had been taken ill. However the Law Officer arrived at the Supreme
Court at approximately 10:00 hours in the company of the Clerk
and
was advised by the Registrar Mrs Mazabane that the matter had been
dealt with and dismissed for want of prosecution.





As
this matter is one of national importance I approach this court for
directions on how to proceed given the circumstances surrounding
the
non-attendance by my lawyers.





In
terms of s 26(1) of the Supreme Court Act I cannot appeal against any
judgment or order of this Honourable Court. I now approach
this
court on directions how to proceed.






This
Honourable Court in
Registrar-General
v Judith Todd

SC-158-02 upheld the validity of section 9(7) of the Citizenship Act
of Zimbabwe Amendment Act No. 12/2001.





The
effect of the dismissal of the appeal under SC-71-2002 is to uphold
the ruling in High Court Case No HC-12092-2001 handed down
by the
Honourable Justice Adam which is at conflict with the above quoted
Supreme Court ruling. In the end we do have two Supreme
Court
rulings which appear to be in direct conflict.






“It
is my understanding that this latest ruling by this Honourable Court
was not on the merits. Therefore the law as it stands is
as given
in
Registrar-General
v Judith Todd

SC-158-2002.






The quandary
that I am faced with is that I have people attending at my offices
claiming rights in terms of the High Court Judgment
HC-12092-2002.
Yet that is not the law because the law is as stated by this
Honourable Court in
Registrar-General
v Judith Todd

SC-158-2002.





I
am advised that a case of this nature is without precedence and my
only remedy is to come to this Honourable Court and ask for
directives
on rescission of this Honourable Court’s decision.





I
still intend to prosecute this matter.






I wish to
refer to the supporting affidavit of Loyce
Matanda-Moyo












Mrs
Matanda-Moyo
explains the default in an affidavit which reads as follows:-





“I
am the Director of Civil Division, Applicant’s Legal Practitioners.






This matter
was set down before this Honourable Court on 2
nd
June 2003.





On
17 June 2002 I gave birth through caesarian section. I did not take
the three months maternity leave but came back after one
month rest
since there was shortage of staff in the Civil Division.





On
30 May 2003 the operation started giving me problems and I have a
serious backache. To date I am still resting as per my doctor’s
advice. See Annexure ‘B’.





As
a result of my sudden illness I was unable to allocate the matter to
another officer.





By
the time I got through to the office it was already after 9.30 hours.





I
understand Ms Mudenda arrived at court after the matter had been
dealt with.”








The
certificate of urgency was issued on the basis that the dismissal of
the appeal created confusion in the law in that the Supreme
Court
judgment was in conflict with a High Court judgment and another
judgment of the Supreme Court.





There
is no indication on the papers in terms of which Supreme Court Rules
this Chamber application was being made. The Supreme
Court Rules do
not expressly provide for Chamber applications for directions.
However, Rule 58 of the Supreme Court Rules provides
that in any
matter not dealt with in the Supreme Court Rules the practice and the
procedure of this court shall, subject to any direction
to the
contrary by the court or a judge, follow as near as may be, the
practice and procedures of the High Court. Order 23 of the
High
Court Rules provides for a Chamber application for direction in
respect of any interlocutory matter on which a decision may
be
required.





I
am unable to extend the application of the High Court Rules to the
present application for two reasons.





The
first applicant is essentially asking for legal advice and not
directions from this court That is not the function of this
court
and Order 23 of the High Court Rules was never intended to enable
litigants to obtain legal advice from a judge ahead of a
hearing.
The first applicant in effect is saying I failed to appear in court
please advise me on what to do next.





But
more importantly the first applicant is seeking directions that are
clearly provided for in the Supreme Court Rules. Rule
36(4) of the
Supreme Court Rules provides as follows:-





“Where,
at the time of the hearing of an appeal, there is no appearance for
the appellant, and no written arguments have been filed
by him, the
court may dismiss the appeal and make such order as to costs as it
may think fit.





Provided
that an appeal dismissed in terms of this subrule may thereafter on
application by the appellant, be reinstated.”





If
the first applicant’s counsel had bothered to read the Supreme
Court Rules, as he should have done, before launching this
application
he would have realised that the Rules provide what an
appellant wishing to have an appeal dismissed in circumstances of
this appeal
is required to do to have the dismissed appeal
reinstated.






I was
prepared to deal with this application as an application in terms of
section 36(4) of the Supreme Court rules. Mr
Elliot,
for the respondent, objected to that course of action. While the
objection is certainly unreasonable and smacks of an attitude
of why
should I be difficult when I can be impossible the objection is based
on a sound legal basis. A respondent is entitled to
know the case
he has to meet before coming to court. Mr
Elliot’s
objection is sustained. To do otherwise would be to aid and abet
the crass ineptitude and inefficiency with which the Civil Division
of the Attorney-General’s office has handled this matter.





In
the result, while it is entirely open to the applicant to bring an
application in terms of Rule 36(4) of the Supreme Court Rules,
this
application is dismissed with costs.