;

IN THE CONSTITUTIONAL COURT OF ZIMBABWE HELD AT HARARE

cc 09/2015

In the matter between:-DIDYMUS NOEL EDWIN MUTASA

And TEMBA MLISW A

And THE SPEAKER OF THE NATIONAL ASSEMBLY c " ro'Q .. i

. ol--e~,<::.~ And .. ·· . . . , ' ..,.

'" r THE PRESIDENT OF ZIMBABWE:· .·

And CHAIRPERSON,

/

ZIMBABWE ELECTORAL COMMISSION

NOTICE OF OPPOSITION

NMLC NYAKUTOMBWA MUGABE LEGAL COUNSEL

Received with thanks

At '& : q am t@ By ~'<'C C'ZI

On \5< I ~ /20 6

18T APPLICANT

2"d APPLICANT

1ST RESPONDENT I

2 ND RESPOND T

3Rn RESPONDENT

HUSSEilN

RANCIIDOD A CO

119 J. Chinamano Avenue HARARE (Ref: a; c<-j~/ Zi~ ) Phone: 706402-317~6506/253508

DISTRIBUTED BY VERITAS e-mail: veritas@mango.zw; website: www.veritaszim.net

Veritas makes every effort to ensure the provision of reliable information, but cannot take legal responsibility for information supplied.

IN THE CONSTITUTIONAL COURT OF ZIMBABWE HELD AT HARARE

cc 09/2015

In the matter between:-DIDYMUS NOEL EDWIN MUTASA

And TEMBA MLISW A

And THE SPEAKER OF THE NATIONAL ASSEMBLY

And THE PRESIDENT OF ZIMBABWE

And CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION

INDEX

ITEM DESCRIPTION

1. Notice of Opposition

2. 2"d Respondent's Opposing Affidavit

1sT APPLICANT

2"d APPLICANT

1-2

I 3-22

I I I

I I I

IN THE CONSTITUTIONAL COURT OF ZIMBABWE CC 09/2015 HELD AT HARARE

In the matter between:-DIDYMUS NOEL EDWIN MUTASA 1sT APPLICANT

And TEMBA MLISW A

And THE SPEAKER OF THE NATIONAL ASSEMBLY

And THE PRESIDENT OF ZIMBABWE

And

2"d APPLICANT

lsTRESPONDE~T

2ND RESPONDENT

CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION 3RD RESPONDENT

NOTICE OF OPPOSITION

TAKE NOTICE THAT the 2nd Respondent hereby opposes the Application on

grounds set out in the affidavit annexed to this notice.

TAKE NOTICE further that the 2nd Respondent's address for service is care of I

Hussein Ranchhod & Co., 119 J Chinamano Avenue, Harare.

DATED AT HARARE THIS/ r DAY OF MARCH 2015

SS RANCHHOD &/CO. Resp ndents Legal Practitioners

119 J. Chinamano A '{enue HARARE (2/ays1Z12)

To: THE REGISTRAR Constitutional Court of Zimbabwe HARARE

And to:

And to:

And to:

NY AKUTOMBWA MUGABE LEGAL COUNSEL Applicants' Legal Practitioners 12 Glenara Avenue South, Eastlea, HARARE (Mr. Mugabe)

CHIHAMBAKWE, MUTIZW A & PARTNERS 1ST Respondent's Legal Practitioners

7 Lawson Avenue, Milton Park

HARARE

NYIKA KANENGONI & PARTNERS 3 RD Respondent's Legal Practitioners 155 S. Machel Avenue, 7th Street

HARARE

IN THE CONSTITUTIONAL COURT OF ZIMBABWE

HELD AT HARARE

In the cpatter between:-

DIDY~S NOEL EDWIN MUTASA

And

TE~MLISWA

And

THE S[PEAKER OF THE NATI<i)NAL ASSEMBLY

And

THE ~RESIDENT Oli' ZIMBABWE

And

,r"\ CHAIRPERSON, ZIMBABWE ELECTORAL ~------toMMISSION

cc 09/2015

18T APPLICANT

2nd APPLICANT

1ST RESPONDENT

2ND RESPONDENT '

3RD RESPONDENT

2ND RESPONDENT'S OPPOSING AFFIDAVIT

I, EMMERSON DAMBUDZO MNANGAGW A do hereby

make oath and swear that:

1. I am the Vice President of the Republic of Zimbabwe as

well as the Minister of Justice, Legal and Parliamentary

Affairs.

2. I am duly authorised by the 2nd Respondent to depose to

this affidavit and oppose this application.

3. The 2nd Respondent's address for service is care of

Hussein Ranchhod & Co. Legal practitioners 119 J.

Chinamano A venue, Harare.

4. The facts deposed to herein are within my personal

knowledge unless otherwise stated or contextually

apparent to the contrary.

5. I have read the affidavits of the Applicants and wish to

oppose the relief sought. I also wish to respond to the

avern1ents made as stated hereunder.

INTRODUCTION

6. The Application as I understand it, is premised on the

action by the Speaker pursuant to the provisions of

section 129 (1) (k) ofthe Constitution of Zimbabwe.

7. The 2 nd Respondent has only been cited in these papers

in his official capacity as the officer responsible for

proclaiming the date of an election.

8. This was pursuant to a notification to him of a vacancy

that had arisen in the constituencies formerly

represented by the 1st and 2nd Applicants.

9. The dratft order attached to the application in paragraphs

1 to7 and 9 seek relief against the actions of the 1st

Responpent in his capacity as the Speaker of the

Nation~! Assembly. The only relief sought against the

2nd Resvondent appears in paragraph 8 of the draft order.

This r~lief has been overtaken by events as the 2nd

Responpent has since acted in terms of the Constitution

and pu~lished a proclamation calling for the election in

the vac~t constituencies.

10. It is mjy view that as the 2nd Respondent has discharged

his obligations in terms of the Constitution, other

constitDrtional procedures and eventualities now flow

from t~at action which the 2nd Respondent himself has

no control over nor, with all due respect, does this

Honourf1hle Court.

11. The dispute on the papers therefore essentially revolves

around the manner in which the declaration of a vacancy

arose in Parliament. The 2nd Respondent in his capacity

as the President of the Republic of Zimbabwe has no

role to play in the events leading up to the expulsion of

the Applicants from Parliament, nor the declaration of

the expulsion itself.

12. The only involvement of the 2nd Respondent is in terms

I

of the Constitution and Electoral Act to call for an ~

election when so advised of a vacancy by the 1st

Respondent.

13. As far as the legal role the President of Zimbabwe

played as stipulated above, this was clearly lawful in

terms of the applicable law.

14. The application, whilst it clearly claims and attacks the

expulsion from Parliament of the Applicants,

irrelevantly deviates from this and makes reference to

incidences and actions that occurred outside Parliament.

This, I understand is not the scope of the relief sought,

nor the cause of action specifically pleaded by

Applicants.

15 . particular, reference is made by the 1st Applicant to the

igh Court proceedings in Case No. HC 1914/2015 which

·estill pending and bear no relation to this application as the

c use of action and the parties in dispute therein are

c mpletely different. The attempt to merge that application

ith this one is improper and each would have to be

etermined pn its own merits in the appropriate legal fora. It

auld be i~proper to draw the President of the Republic of

imbabwe, ~ho has only been challenged in his capacity as

e officer who issues a proclamation in terms of the law into

i sues and events that occurred outside the ambit of his

uties. To qo so is both improper and unfair to the President.

ave to stat~ that from a reading of the affidavit filed by the

, pplicants ~heir remedies, if any, lie elsewhere and certainly

ot in this pfirticular law suit.

16. From ~hat I glean from the application filed the crisp

issue relates to whether the 2nd Respondent in his official

capacitf acted properly in terms of Section 129 (1) (k) of

the Cqnstitution. Without wading into the dispute

betwee~ the Applicants and 1st Respondent, one cannot

say fr~m the papers filed, that the Speaker acted

unlawfijllly.

17. AD PARA 1-5

No issues arise.

18.ADPARA6&7

The 1 1t Respondent will obviously respond to the

allegation made. However, from the papers filed, one is

not coqvinced of the claim that is made. It is disputed

that Applicants' rights have been infringed and the

Applicfnts' version of events has little resemblance to

actual ~vents that took place.

19. AD PARA 8-13

This ts an autobiographical account of the 1st

I

Applicfnt's history which I am not able to comment on I

(b

except to state that this account cannot be relevant for

the purposes of relief sought.

20. It is correct however, that the 1st and 2nd Applicants

were members of the National Assembly but have

ceased to be such as per the declaration of the Speaker

ofParliament in terms of the Constitution.

21. AD PARA 14-16

The contents of this paragraph are argumentative and

irrelevant to the action taken by the Speaker. The

Applicants clearly state that they have filed an

application in the High Court, and this case is still

pending. It is inappropriate for the Head of State to

comment in his official capacity on the goings-on in that

l(

particu]ar case, as I am confident the law will take its

course.

22. As regards the purported letter to the 2nd Respondent, I '

am not aware if this was officially delivered to him.

This letter was obviously addressed to him in a capacity

other than the one in which he is being challenged. It I

clearly states that it is addressed to the President of!

ZANU PF. It however pre-dates his expulsion from :

Parliament and as such, cannot have any relevance to the ;

current proceedings before this Court.

23. If anything, the letter seems to highlight that the 1st

Applicant had a dispute on a separate issue, which he

was handling in a separate fora.

24. AD PARA 17-21

I cannot comment on the exchanges between Applicants

and 1st Respondent save to note that whilst on the one :

hand the entire application appears premised on the fact

that he did not have a right to be heard before his seat

became vacant he now confirms that he in fact sent a

lengthy letter to the 1st Respondent a copy of which he I

attaches as Annexure 2.

25. If his argument is that his loss of office occurred

summarily and arbitrarily without him being heard then

his own papers appear to defeat this argument.

26. AD PARA 22

The 1st Respondent I am sure will respond to the

allegations made against him.

27. AD PARA 23

As was indicated earlier Applicants are challenging the

actions of 1st Respondent in his capacity as the Speaker

and nothing more. Anything that relates to anything else

is therefore irrelevant to these proceedings. In

particular, the President in his official capacity cannot,

in terms of the law, comment on the goings on 1n

organisations not referred to in the Constitution.

28. AD PARA 24

It is denied that Applicants' Constitutional rights have been

violated.

29. AD PARA 25-30

These paragraphs are essentially the Applicants'

understanding of the right to equal protection of the

law. It is clear from a reading of their submissions that

they have misunderstood this to mean that they should

derive a benefit from the law but should not suffer any

consequence as a result of the law.

30. The Applicants' loss of office is a consequence of the

Speaker's actions in terms of Section 129 (l)(k) of the

Constitution. Having carried out his functions, the

Speaker duly notified the 2nd Respondent. This factual

and legal position is very difficult to challenge.

31. If the Applicants' contention is that the 1st Respondent

should have convened a "court" to adjudicate on the

I~

issue before notifying the 2nd Respondent, this position

is not sustained by the wording of the Constitution.

32. It is my understanding that all the Speaker needs to do

is ascertain if the certificate/notification from the

sponsoring party is authentic and once he has done this

he must act.

33. In this instance it appears that the Speaker's job wasi

' made easier by the fact that the Applicants themselvesj

confirmed that they had been expelled by their political

party. Their only point of departure was that they are

aggrieved by their expulsion.

34. Clearly under this head no case has been made.

35. AD PARA 31-32

Under these paragraphs the Applicants claim that they

have a right to stand for election and to hold public

office.

36. The Applicants misunderstand the purport of section

67(3) (b) which generally allows people to stand fotj

election and if elected, to hold office. This section doe~

not exist in a vacuum and is itself subject to th9

Constitution which specifically allows a political paftYj

to notify the Speaker that a person has ceased to be d

member of its organisation. Thereafter the Speaker must

act accordingly.

{~

3 7. Now that the Applicants' seats have become vacant

the said section that they are relying on makes them

more than welcome to contest in the forthcoming by­

elections and if successful they will, with the blessing of

the Constitution, hold office.

38. AD PARA 33-34

In these paragraphs Applicants imply that they have

been denied the right to a fair hearing. 1st Applicant is

not very clear as to where he wanted a fair hearing .. As

indicated previously, if he required a fair hearing before

the Speaker, this is not supported by the Constitution.

39. The 1st Applicant claims that there was a dispute

pending between himself and his party. If that is the

case, then I am sure the dispute will be handled in the

appropriate manner and fora and not by the Speaker o

Parliament.

40. AD PARA 35

This is a claim that the Applicants had a right to

administrative justice before they lost their office. They

do not seem to suggest that they have a right to

administrative justice before the 2nd Respondent

publishes his proclamation.

41. Whilst we have already stated that constitutionally, the

Speaker simply issues a certificate declaring the

vacancy, the allegations in 35.1-35.3 are contradicted by

1st Applicant's own letter that he wrote to the Speaker in

Annexure 2 of his papers which seem to point to an

exchange between the Speaker and the 1st Applicant.

The 1st Applicant cannot be said to have been silent

about his pending fate. He was not alone.

42. The 2nd Applicant in his papers in paragraph 3 states

that,

"I met him (the Ft Respondent) in his office in the

morning of 3rd March 2015. I told him about my

position that my purported expulsion was a nullity

and that I was awaiting the outcome of pending court

challenges to be instituted by the Ft Applicant. He

refused to tell me what he intended to do. "

43. Notwithstanding what I have said above, according to

my understanding, section 129(1) (k) does not give the

Speaker n1uch room to manoeuvre. Giving him the room

suggested by Applicants would require him to read new

rules into the Constitution and or/ act as a judicial

officer. Both scenarios are impermissible.

44. AD AFFIDAVIT OF TEMBA MLISW A

This affidavit essentially adopts the legal position of the

1st Applicant and accordingly I have responded to it

mutatis mutandis.

45. The 2 nd Respondent was therefore obliged to receive

the notification of the vacancies from the 1st Respondent

and was required, upon receipt, to issue a proclamation,

which he has done. The application filed is totally

without merit and should be dismissed with costs. The

Applicants had clear recourse to other remedies which

they chose to ignore.

ib SWORN TO AT HARARE THIS 1 f DAY OF MARCH 2015.

I ,

EMMERSON DAMBUDZO MNANGAG A

Before me:

COMMISSIONER OF OAT I s

i "7 , '""' ·;~ ·~ I I ' • - .·~