The facts of this case, which are common cause, are that
the first applicant is the President of Zimbabwe (hereunder referred to as
"the President"). The respondent is Mr Morgan Tsvangirai, the
Prime Minister of Zimbabwe (hereunder referred to as 'the Prime Minister).
The Prime Minister, in a court application launched in
the High Court, challenged the validity of the President's appointment of the
second to the eleventh respondents as Governors of the various Provinces in
Zimbabwe ('the Governors'). The Prime Minister did not seek the leave of
the court to sue the President, as is required by Rule 18 of the High
Court Rules 1971 (RGN 1047/1971). Rule 18 of the High Court Rules
provides as follows:
"No summons or other civil process of the court may be
sued out against the President or against any of the judges of the High Court
without the leave of the court granted on court application being made for that
purpose."
The purpose of Rule 18 is to protect not only the
President but also Judges of the High Court from frivolous and vexatious
litigation. The President raised as a point in limine; the
Prime Minister's failure to secure the leave of the court to sue the
President, as is required by Rule 18 of the High Court Rules.
The court a quo dismissed the point in limine. The
President, dissatisfied with this determination, applied for leave to appeal
against that determination. The application for leave to appeal was dismissed.
The President now seeks the leave of a Judge of this Court
for leave to appeal in terms of section 43(2)(d) of the High Court Act
[Chapter 7:06] as read with Rule 30(c) of the Rules of the Supreme
Court, 1964.
As I have already stated, counsel for the
Prime Minister conceded that such leave be granted on the basis that the
President has prospects of success on appeal.
In dismissing the President's application for leave to
appeal, the learned JUDGE PRESIDENT stated at p 1-3 of the
cyclostyled judgment:
"The applicants seek leave to appeal against the
judgment of this court granted under case HH273-12 (HH8542/10). In that case,
the applicants raised a point in limine in which they sought to rely on
the provisions of r 18 of the Rules of Court to preclude the respondent
(then the applicant) from pursuing an application against the first applicant
on the ground that prior leave of this court had not been obtained. I dismissed
that preliminary issue and granted leave for the applicants to file their
opposing papers so that the matter could be determined on the merits.
The applicants wish to appeal against that decision. They have filed the present papers seeking
leave to so appeal.
The respondent opposes the grant of leave to appeal on
three grounds. Firstly, he questions the authority of the deponent to the
founding affidavit, Mr D Mangota, the Secretary for Justice and Legal
Affairs, to so depose to the founding affidavit. Secondly, he argued that the
order sought to be appealed is a procedural ruling which is not appealable even
with the leave of the court. On the merits of the case, the respondent argues
that the Supreme Court has already pronounced itself on the matter in the case
of Zimbabwe Lawyers for Human Rights and Anor v President of the Republic of
Zimbabwe 2000 (1) ZLR 274 (S) in which it held that the President can be sued
in his official capacity without leave of the court….,.
Should leave to appeal be granted as requested by the
applicants?
The applicants' main argument is that the matter is of
immense public interest and should be clarified by the Supreme Court.
However, the Supreme Court has already adjudicated the legal status of
r 18 of the High Court Rules. It did so in the Zimbabwe Lawyers for Human
Rights case supra. I have no doubt in my mind that the President, or any other
member of the Executive, can be sued in his official capacity without leave of
this court.
In any event, it is not in dispute that there are many
other cases, past and pending, in which the President has been sued in his
official capacity. No similar objections have been raised by the parties or the
courts; a fact which tends to confirm that the applicants' position is
unprecedented and unsupportable at law."
Counsel for the President submitted that the applicants
have prospects of success on appeal because the judgment of the court
a quo erred in the following
three respects –
(1) The court a quo erred when it dismissed the point in limine
which had been raised, that the respondent was not properly before the court
because he had omitted to comply with Rule 18 of the High Court Rules.
(2) The court a quo erred in not accepting that, in
terms of Rule 18 of the High Court Rules and the common law, leave to sue
the President should first be sought and granted before instituting legal
proceedings against him in the High Court.
(3) The court a quo erred in not finding that
non-compliance with Rule 18 of the High Court Rules rendered the
application before it a nullity and therefore could not be condoned.
The learned JUDGE PRESIDENT relied on the case of Zimbabwe
Lawyers for Human Rights and Anor v President of the Republic of Zimbabwe 2000
(1) ZLR 274 (S) in concluding that leave of the court was not a necessary
requirement for suing the President.
In this regard, the learned JUDGE PRESIDENT erred.
The Zimbabwe Lawyers for Human Rights and Anor v President
of the Republic of Zimbabwe 2000 (1) ZLR 274 (S) judgment is authority for the
proposition that leave of the court is not required when the President is sued
in the Supreme Court in terms of section 24 of the Constitution of
Zimbabwe (hereinafter referred to as 'the Constitution'). It certainly is not
authority for the proposition that the leave of the court is not required when
the President is sued in the High Court. In my view, there is need to protect
the President and Judges of the High Court from vexatious litigation in the
High Court, hence the need for Rule 18.
Different considerations apply to litigation in the Supreme
Court for a number of reasons.
Firstly, section 24 of the Constitution provides for
the only instance where the Supreme Court has original jurisdiction. All other matters
commence in the subordinate courts. Section 24 of the Constitution
protects not only the President, but everyone, from vexatious and frivolous
litigation, rendering Rule 18 of the High Court Rules superfluous. In the Zimbabwe
Lawyers for Human Rights and Anor v President of the Republic of Zimbabwe 2000
(1) ZLR 274 (S) case, the headnote, in the relevant part, reads:
"Held, that although s 30 of the Constitution
provides that the person holding the office of President has immunity from
civil and criminal proceedings whilst he is in office, legal proceedings can
still be brought against the office of the President in his official capacity.
Held, further, that whereas r 18 of the High Court
Rules requires that a litigant must obtain the leave of the court to issue
legal process against the President, there is no similar provision in the
Supreme Court Rules requiring..., a litigant to obtain leave from the
Supreme Court before legal process is issued against the President.
Held, further, there is a need to preserve the dignity and
status of the office of the President and the office of the President must not
be harassed with frivolous and vexatious legal proceedings. Where an
alternative means of obtaining redress is available to the claimant it should be
pursued.
Held, further, that it is not necessary for a person to
obtain leave from the Supreme Court to proceed against the President where he
is alleging that there has been an infringement of the Declaration of Rights
provisions in the Constitution. Section 24(1) of the Constitution allows
anyone who is complaining of an infringement of his fundamental rights to come
directly to the Supreme Court. This right is subject to various restrictions
and limitations. For instance, the Court can protect the President against
harassment by vexatious litigation by using its power to determine an
application without hearing it where it is of the opinion that the allegation
is merely frivolous and vexatious…,."…,.
In short, it was concluded in the Zimbabwe Lawyers for
Human Rights and Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274
(S) judgment that –
(1) The Supreme Court does not have a Rule similar to Rule 18
of the High Court Rules which requires that leave be applied for before the
President is sued;
(2) Rule 58 of the Supreme Court Rules cannot be
invoked to import the provisions of Rule 18 of the High Court Rules to
Supreme Court proceedings;
(3) It is not necessary to obtain leave to sue the
President when a violation of the Declaration of Rights is alleged and the
litigant is proceeding in terms of section 24 of the Constitution; and
(4) The Supreme Court, using the provisions of section 24
of the Constitution, can protect the President from frivolous and vexatious
claims, which is the reason behind the provision of Rule 18 of the High
Court Rules that leave be obtained first.
Before concluding, I need to deal with the suggestion that Rule 18
of the High Court Rules is ultra vires
section 4 of the State Liabilities Act [Chapter 8:14], which provides
as follows:
"Whenever the President or a Vice-President or any
Minister, Deputy Minister or public official is cited in any action or
other proceedings in his official capacity he shall be cited by his official
title and not by name."
In my view, section 4 of the State Liabilities Act
[Chapter 8:14] confers on a litigant a right to bring proceedings against
the President in his official capacity provided that the President is cited by
his official title and not by name.
I do not see any inconsistency between this section and Rule 18
of the High Court Rules. If anything, I see a complementation between the two
provisions. Whenever a litigant wishes to sue the President, he has to comply
not only with section 4 of the State Liabilities Act [Chapter 8:14]
but also with Rule 18 of the High Court Rules. Section 4 of the State
Liabilities Act [Chapter 8:14] and Rule 18 of the High Court Rules
provide that for the President to be sued two requirements are necessary –
(1) He has to be sued in his official capacity; and
(2) If the suit is in the High Court, leave of the court
has to be obtained first.
Section 4 of the State Liabilities Act merely sets out
the manner in which the President or other public officials are to be cited if
the intention is to sue them in their official capacities. Section 4 of
the State Liabilities Act [Chapter 8:14] does not pronounce on the issue
of leave to sue. It merely demonstrates the possibility that proceedings may be
brought and provides for the manner of citation.
There is nothing in the Zimbabwe Lawyers for Human Rights
and Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (S) judgment
to suggest that Rule 18 of the High Court Rules is now superfluous and is
no longer required or necessary in regard to proceedings in the High Court.
The purpose of Rule 18 of the High Court Rules is to
protect the President and Judges of the High Court from frivolous and vexatious
litigation. I see no reason why the Rule should be considered superfluous as it
serves a legitimate purpose.
I also wish to make the following observation.
Rule 18 of the High Court Rules does not bar anyone
from suing the President. It merely requires a prospective litigant to obtain
the leave of the High Court before the litigant can sue the President or a
Judge of the High Court. As I have already stated, the purpose of Rule 18
of the High Court Rules is to protect the President and Judges of the High
Court from frivolous or vexatious litigation….,.
In brief, I am satisfied that the appeal against the
determination of the court a quo on the point in limine has prospects
of success in that the court a quo misdirected itself –
(a) On the interpretation of Rule 18 of the High Court
Rules;
(b) In making inconsistent findings that Rule 18 of
the High Court Rules no longer applies and then condoning non-compliance with
it.
It would not be necessary to condone non-compliance if the Rule
had no legal force; and
(c) In condoning a departure from the High Court Rules when
no application for condonation had been made.
It is for these reasons that I was satisfied
that the concession by counsel for the respondent was well-founded and granted
the relief sought by the applicant.
