This matter was filed as an urgent chamber application in terms of Rule 241 of the High Court Rules. The applicants were seeking the following urgent relief:

“Pending the confirmation or discharge of the provisional order, the following provisional order is granted:

1. The Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations, 2008, SI43/2008, published in Government Gazette Extra Ordinary on 17 March 2008, shall not be applied in respect of the elections on 29 March 2008.

2. Section 59 and 60 of the Electoral Act [Chapter 2:13] as amended by the Electoral Laws Amendment Act, 2007 (Act 17/2007) shall not be applied in respect of elections to be held on 29 March 2008.

3. Illiterate persons and persons with disabilities or otherwise incapacitated voters, where necessary, and at their request, shall be allowed assistance in voting by a person of their own choice.”

I dismissed the application with costs after hearing submissions. The parties have requested reasons for my decisions. These are they.

The facts in this matter are set out in the applicants founding affidavits and may be summarized as follows:

The first and second applicants are visually impaired. The third applicant is physically handicapped and does not have the use of his arms and legs (though it was noted that his application was purportedly signed by him before a Commissioner of Oaths).

The respondent is the Minister for Justice Legal and Parliamentary Affairs responsible for the implementation of provisions of the Electoral Act.

The applicants are all registered voters and wish to exercise their rights at the elections on 29 March 2008. The applicants have submitted that their rights are being violated as they are obliged, in terms of the law, to seek assistance from strangers who will be presiding at the polling station. They averred that the provisions as set out in section 59 and 60 of the Electoral Act and amended by the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 were unconstitutional.

The application was opposed.

Counsel for the respondent submitted;

(i) Firstly, that the matter was not urgent; and

(ii) Secondly, that the relief that the applicants were seeking was not capable of being granted as a court cannot suspend a provision of an enactment.

(iii) She further submitted that as the matter raised a constitutional point it should be determined by the Supreme Court.

(iv) She also submitted that the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 had been enacted in accordance with the provisions of the enabling Act.

URGENCY OF APPLICATION

The urgency in relation to the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 (the Presidential Powers Regulations) has also not been adequately explained.

The applicants complain, in the submissions, and Heads of Arguments (which were filed after the hearing), that the applicants would not be able to cast their vote freely as they cast doubt on the impartiality of the police officers manning the polling stations.

It seems to me that the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 cannot be looked at in isolation.

An examination of sections 59 and 60 of the Electoral Act as amended by the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 shows that persons in the position of the applicants will not be assisted by one person only but by at least four persons at the same time; that is, the presiding officer, two other electoral officers in addition to the police officer on duty.

The circumstances under which all four persons, acting together, would interfere with the applicants rights to freely cast their vote is, in my view, difficult to imagine nor has it been explained.

All four would have to conspire in relation to the visually impaired applicant to vote against their wishes and be agreed on whom they wanted to vote for.

In relation to the third applicant, the court has not been told that he cannot use mouth to mark the ballot paper against the candidates of his choice. If he could sign so elegantly he should surely be able to place an X on the ballot paper.

It seems to me, therefore, that the application cannot suddenly have become urgent merely because a fourth person has been included in the number of persons assisting illiterate and disabled voters.

The provisions of the Electoral Act rendering assistance to physically handicapped persons has always been in existence - even before the 2007 amendment. The position would have been different, in my view, had the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 sought to remove the other three persons who are already in the Electoral Act and substitute them with one person. However, this is not the position in this case.

For these reasons, I would therefore find that the application is not urgent and dismiss it on that basis.

Although I have dismissed the application on the basis of the preliminary point raised, I, however, wish to comment on the following issues which were raised in this application.

The applicant submitted that the interim relief should be granted on four grounds:

(i) It was submitted that the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 were ultra vires the Presidential Powers (Temporary Measures) Act [Chapter 10:20] as they were not made in accordance with section 2 of the Presidential Powers (Temporary Measures) Act.

(ii) Secondly, the provisions of the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 (Presidential Powers Regulations) seek to reintroduce the assistance of police officers which had been removed by the Electoral Amendment Act No.17 of 2007.

Counsel for the applicants submitted further that sections 59 and 60 of the Electoral Act were negotiated provisions between the political parties and it was wrong for the President to reintroduce it through the Presidential Powers Regulations.

(iii) It was further submitted that the President is also contesting the elections and the Presidential Powers Regulations may have been gazetted to further his interest.

(iv) Finally, the applicants submitted that the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 violated their rights as enshrined in the Constitution, UN Conventions on the Rights of Persons with Disabilities, the SADC Principles and Guidelines Governing Democratic Elections, and the AU Declaration On The Principles Governing Democratic Elections In Africa.

It is trite that once Regulations are published in terms of the Presidential Powers (Temporary Measures) Act they have the same force and effect, during their life span, as legislation passed by an Act of Parliament.

The applicant has asked that this court suspend the operation of the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 and sections 59 and 60 of the Electoral Act so that they are not applicable in the elections which are to take place tomorrow.

In the case of The Registrar General of Elections v Combined Harare Residents Association & Anor SC07-02 CHIDYAUSIKU CJ held that a court could not suspend the operation of any legislation. He states…, as follows:

“With respect, this is where the learned judge fell into error. The court cannot suspend the provisions of the Act for whatever purpose and no matter how desirable and plausible that may be. It is the legislature itself, and possibly an authority properly delegated, that can amend an Act of Parliament…,.”

It seems to me, therefore, that where provisions of an enactment may be void, whether on the basis of being unconstitutional or on the basis of being ultra vires the authority delegated by Parliament, they remain in full force until they have been declared void and set aside. 

The court cannot suspend their operation for a limited period - however compelling the reasons.

The hearing of argument on the preliminary points arising from this election petition was consolidated with hearings in seven other cases as the issues raised in all eight petitions were similar to a large extent and may very well call for the application of the same legal principle.

In three of the petitions, however, the Zimbabwe Electoral Commission was cited as a respondent, prompting the Commission to raise an objection, alleging mis-joinder. I could have issued one judgment in all eight matters but have deemed it administratively convenient to issue individual judgments in each of the election petitions.

BACKGROUND

The five petitioners in the above petition were candidates in the harmonized elections that were held on 29 March 2008. The first petitioner (Patrick Chabvamuperu) stood as a candidate for the senatorial seat in Mutoko. The second petitioner (Silas Gweshe) stood as a candidate in the Mutoko South House of Assembly Constituency. The third petitioner (Martin Kazingizi) stood in the Mutoko East House of Assembly Constituency while the fourth (Abel Samkande) stood in the Mutoko North House of Assembly seat. The fifth petitioner (Innocent Mudzengerere) stood as a candidate in Ward 10 for election to the Mutoko local authority.

They all belong to one political party.

Dissatisfied with the outcome of the poll, the five presented a composite petition to this court, seeking to nullify the results on several grounds, the details of which appear in their respective affidavits filed with the petition.

The petition was duly presented to court on 14 April 2008. It was purportedly served on 12 May 2008 by handing a copy thereof to one Dzora, a personal assistant to the ZANU-PF Secretary for Administration at the party's headquarters in Harare. The petition was served together with a notice setting the matter down before a Judge for a pre-trial conference and a letter offering security of costs.

The respondents filed a notice of opposition and opposing affidavits to the petition. In their respective opposing affidavits, they all took the points in limine, that, the petition had been served out of time and not at a place provided for in the statute.

On the basis of this preliminary objection, they alleged that the petitioners were non-suited for failing to comply with the provisions of the Act in relation to the time within which to effect service and the place of service of the petition.

Directions were subsequently given to the parties at the pretrial conference as to the filing of heads of argument, culminating in the hearing of the points in limine as described above.

In the heads of argument filed on their behalf, the respondents (Edmond Jacob, Olivia Muchena, Marbel Chinomona, Ordo Nyamudanga and Obert Mabvuta) contended, that, in view of the non-compliance with the provisions of the electoral law in respect of the time and place of service of the petition, the petitioners were non-suited and the petition should accordingly be dismissed.

In opposition, the petitioners argued that service outside the time limit, and at the headquarters of the respondent's party, was proper and in substantial compliance with the provision of the law. In particular, it was argued that the petitioners delayed in serving the petition as they were waiting for the amount of security to be fixed by the Registrar since the law requires them to serve the petition together with a list of their proposed sureties.

THE ISSUES

Argument in the matter, and in the other petitions, proceeded on the basis, that, regarding the issue of service of the petitions, there were two separate issues as follows:

1. Whether service of the election petitions outside the ten-day period stipulated in section 169 is such non-compliance with the provision as to render the petitions invalid; and

2. Whether service of the petition at the headquarters of the respondent's political party is such non-compliance with the provision as to render the petition invalid.

In my view, the two issues, while made up of two distinct components, are essentially the two sides of the same issue.

Service of petitions is provided for in one section of the Act and this requires that it be done within a certain specified period and at certain specified places. It further appears to me, that, one cannot assess whether there was substantial compliance with the provisions of the statute by taking piece meal what the petitioners did and establishing whether each separate act was in substantial compliance with the law. A holistic approach is, in my view, what is called for.

However in view of the fact that argument was presented to me on the two issues as if they are separate, I shall deal with each in turn.

Whether service of the election petitions outside the ten day period stipulated in the Act is fatal to the validity of the petition

It is pertinent, in my view, that, at this stage, I set out in full the relevant provision of the Electoral Act [Chapter 2.13] that governs the service of election petitions and the interpretation of which gave rise to the points in limine raised by the respondents.

Section 169 of the Electoral Act provides:

“Notice in writing of the presentation of a petition and of the names and addresses of the proposed sureties, accompanied by a copy of the petition, shall, within ten days after the presentation of the petition, be served by the petitioner on the respondent personally or by leaving the same at his or her usual or last known dwelling or place of business.”

It is common cause that the petition before me was not served within the ten days stipulated in section 169 of the Electoral Act. It ought to have been served on or before 24 April 2008, having been presented to court on 14 April 2008. The petition was only served on 12 May 2008 – twenty eight days after presentation.

The crisp and immediate issue that presents itself is whether service of the petition, twenty-eight days after presentation, is fatal to its validity.

Before I proceed to deal with the merits of the matter, there is one issue I feel constrained to comment on.

The respondents in this petition were initially represented by Mr Hussein who filed detailed and most useful heads of argument supporting the contention that the petition was invalid as its service was not in compliance with the law. At the hearing of the matter, Mr Mandizha purported to appear for the respondents. I use the word “purported” very deliberately as Mr Mandizha effectively abandoned the position adopted by the respondents in their opposing affidavits and advanced on their behalf in the heads filed by Mr Hussein.

Instead, he argued the case for the petitioners that the petition was properly before the court.

The issue that exercised my mind in this matter is whether, in the circumstances, I still had a dispute between the parties to determine in view of the concessions made by Mr Mandizha.

I proceeded to determine the matter as I am of the firm view that the issue that falls for determination goes to the validity of the petition before the court, and, thus, to the jurisdiction of this court.

The issue I formulated for myself is whether the Electoral Court has power to determine an election petition that has not been served in compliance with the electoral law.

I am fortified in this approach by the fact that Mr Mandizha did not formally withdraw the objection by the respondents but simply gave me his opinion on the interpretation of section 169 of the Electoral Act. Thus, the issue remained alive before me for me to consider whether the concession made by Mr Mandizha was properly made.

Further, as indicted above, the hearing of this argument was part of the hearing of seven other arguments, and, thus, the respondents were not prejudiced by the about turn in stance displayed by Mr Mandizha on the day of the hearing. I have been able to rely on the submissions that were made by other counsel for similarly placed respondents.

I now turn back to the merits of the matter.

As indicated above, there was no argument advanced on behalf of the respondents in this matter as Mr Mandizha, for the respondents, argued, that, the provisions of section 169 of the Electoral Act could be interpreted in such a way that it becomes directory rather than peremptory. In this regard, he submitted that he was guided by the decision in MDC and Another v Mudede and Others 2000 (2) ZLR 152 (SC) where the approach of assessing whether there had been substantial compliance with the statutory provision was discussed and applied.

He further argued, that, in ascertaining the intention of the legislature in enacting section 169 of the Electoral Act, reference had to be made to section 168(3) of the Electoral Act, that deals with the issue of security.

The mainstay of his argument was that the petitioners could not serve their petition upon the respondents before the amount of security had been fixed by the Registrar of this court. He concluded by urging the court to use Rule 4C of the High Court Rules, 1971 to condone any departure from the strict compliance with the provisions of the law.

Before I comment on the submissions made by Mr Mandizha, I deem is desirable that I also summarise the argument by counsel for the petitioners seeing that the two were on the same side of the argument.

Firstly, counsel for the petitioners referred me to the decision in Pio v Smtih 1986 (3) SA 145 (ZH) where the learned judge, sitting as the High Court, had to interpret a similarly worded section in the then Electoral Act. In that case, the court held, that, the petitioner, who served his election petition two days out of time, was non-suited as the part of the provision dealing with the limitation of time within which service had to be effected was peremptory and had to be complied with either exactly or so substantially that the act done could stand on its own and constitute service within ten days.

Counsel for the petitioners was of the view that Pio v Smtih 1986 (3) SA 145 (ZH) was wrongly decided as the learned judge in that matter was relying on the old and disfavoured jurisprudence of classifying statutory provisions as either peremptory or directory.

Secondly, counsel for the petitioners argued, that, the degree of non-compliance in the petition before me was such that it would not defeat the object of the provision to expeditiously determine the election petition.

Finally, counsel for the petitioner argued, that, I enjoy wide discretionary powers to grant dispensations and extend the time within which the petition could have been served.

From the submissions by both counsel in this matter, I discern three distinct propositions:

(i) The first one is that, in determining whether or not the non-compliance by the petitioners to serve the election petition in terms of the provision renders the election petition a nullity, I must be guided by the substantial compliance approach.

That this is the current thinking in this jurisdiction in matters as the one before me is settled.

The approach has been adopted and applied in a number of decisions of the Supreme Court and of this court: see Quinell v Minister of Lands, Agriculture and Rural Resettlement SC47-04; MDC and Another v Mudede and Others 2000 (2) ZLR 152 (SC); Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S); Kutama v Town Clerk Kwekwe 1993 (2) ZLR 137 (S); Chitungo v Munyoro and Another 1990 1 (ZLR) 52 (HC); and Pio v Smtih 1986 (3) SA 145 (ZH).

I therefore agree fully with this submission from counsel.

It may be pertinent, at this stage, to deal specifically with the point made by counsel for the petitioners, that, Pio v Smtih 1986 (3) SA 145 (ZH) was wrongly decided as the learned judge in that matter relied on the old classification of statutory provisions into 'peremptory' or 'directory'.

I am unable to agree with this submission.

In my view, it is clear that the learned judge first found that the wording of the statutory provision was peremptory. He then proceeded to determine whether there had been substantial compliance with the peremptorily worded section. In rejecting the contention that there had been substantial compliance in the circumstances of the matter, MFALILA J had this to say…,;

“In the present case, Mr De Bourbon said that there was substantial compliance with the provisions of section 141 because the respondent was made aware of the petition within 10 days, the time prescribed by the section, when the petitioner personally telephoned him and through his wife.

Did this action or actions by the petitioner, the deputy sheriff, or the office secretary, amount to substantial compliance with section 141 in the sense in which I have stated; namely, were they enough to achieve the objectives of the provision?

The object of the requirement that a written notice of the presentation of a petition shall be served on the respondent within 10 days is to give notice to the respondent, in the shortest possible time, so that he can start preparing his defence papers in order to have the case finalized as soon as possible.

Now, could the telephone messages to the respondent, and to his wife, achieve these objectives?

I think not.”

I therefore do not accept that Pio v Smtih 1986 (3) SA 145 (ZH) was incorrectly decided for the reasons advanced by counsel for the petitioners.

It is correct that the learned judge found that the language used in the section under construction was peremptory. He however did not stop there. He proceeded to establish whether what had been done by the petitioner before him could be regarded as substantially in compliance with the requirements of the section. The approach that he took was subsequently taken by the Supreme Court in Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S) where…, GUBBAY JA…, had this to say:

“The categorization of an enactment as 'peremptory' or 'directory', with the consequent strict approach that if it be former it must be obeyed or fulfilled exactly, while if it be the latter substantial obedience or fulfillment will suffice, no longer finds favour.

As was pertinently observed by VAN DEN HEEVER J (as he then was) in Lion Match Company Ltd v Wessels 1946 OPD 376 at 380, the criterion is not the quality of the command but the intention of legislator, which can only be derived from the words of the enactment, its general plan, and objects.

The same sentiment was expressed by MILNE J in JEM Motors Ltd v Boutle and Anor 1961 (2) SA 320 (N) at 327 in fine -328B.

This approach received imprimatur of the South African Appellate Division in Maharaj & Ors v Rampersad 1964 (4) SA 638 (A) where, after concluding that the provision with which he was concerned was imperative, VAN WINSEN AJA went on to inquire whether the failure, in strict compliance therewith, was fatal.”

(ii) The second distinct proposition that I discern from counsels' submissions is the argument advanced mainly by Mr Mandizha in this petition and by Mr. Gijima in respect of other petitions in the consolidated hearing, which submissions I incorporate herein.

It is, that, in the circumstances of this matter, there was such substantial compliance with the provisions of the Electoral Act such that the validity of the petition is thus saved.

Mr Gijima was quite clear, and correctly so in my view, that the language used in section 169 of the Electoral Act is peremptory and that my task is to establish whether what had been done by the petitioners could constitute substantial compliance with the peremptory provisions of the section.

He further submitted, and, again, correctly in my view, that the approach necessitates that I first establish what had to be done in terms of section 169 of the Electoral Act, and, secondly, the object of the section. In the third step, I have to establish what was actually done, and, finally, assess whether what was actually done can stand alone and be objectively viewed as amounting to substantial compliance with the requirements of the section.

In the event that I find substantial compliance, I then have to consider whether there was any prejudice as a result of the non-compliance.

The above is the step by step approach that was taken by McNALLY JA…, in MDC and Another v Mudede and Others 2000 (2) ZLR 152 (SC).

It was further submitted, on behalf of the petitioners, that, if I follow the above four steps, I would find that what the petitioners did was in substantial compliance with the object of the provision.

With respect, I find myself unable to agree with this submission.

If I take the above four steps, I find myself stumbling and falling on the fourth step as I shall demonstrate.

I now take the first step.

Section 169 of the Electoral Act is quite clear as it employs clear language that admits of no ambiguity. It requires all petitioners to serve written notice of the presentation of the petition and a list of proposed sureties upon the respondent, personally, or by leaving it at his residence or place of business, within 10 days of the presentation of the petition.

This is what all petitioners ought to have done or were required to do by the law.

The second inquiry I must now embark on is to establish the intention of the legislature in enacting this provision.

It is pertinent, in my view, to note, that, the provision is not new and has been part of our electoral law since at least 1985. It was part of the law that governed the second elections in this country post independence. It is also pertinent, in my view, to note that the provision is not peculiar to our electoral law. With slight modifications, it is part of the electoral law of most countries that were once colonized by the British.

In Pio v Smtih 1986 (3) SA 145 (ZH), it was held, that, the object of the requirement that a written notice of the presentation of a petition shall be served on the respondent within ten days is to give notice to the respondent, in the shortest possible time, so that he can start preparing his defence papers in order to have the case finalized as soon as possible.

In Nair v Teik [1967] 2 All ER 34 (PC) it was stressed that it is in the public interest that election petitions be speedily resolved.

In my view, it is beyond dispute that section 169 of the Electoral Act was enacted with the object of containing the time frame within which election petitions presented to court may be determined.

It is my further view, that, it is beyond dispute that election petitions require urgent resolution as they have the effect of disrupting the composition and the working of two of the three pillars of State, the Executive and the Legislature.

That this is the intention of the legislature is not only to be read from the section under construction but from the entire part of the Electoral Act dealing with election petitions as it goes to provide the period within which petitions have to be determined both at the first instance and on appeal.

The third part of the inquiry requires me to establish what was actually done. This is the easiest part.

It is common cause that written notice of the petition was only served at the headquarters of the respondents political parties on the 28th day after presentation of the petition to court. Together with a copy of the petition was served a letter giving the respondents security for costs. A copy of the letter was not attached to the papers and I therefore cannot comment on its nature and contents.

It has been argued that service could not be effected within the ten days required by the Electoral Act as the amount of security had not been fixed.

In the view of counsel, there was substantial compliance by the petitioners in serving the applications late as the issue of security had not been settled in strict compliance with the provisions of the Electoral Act, and, thus, the petitioners could not serve the petitions without first securing the requisite security in the form of proposed sureties. Since the amount of security was not known, the argument proceeds, they could not procure sureties as all the proposed sureties could not stand as such until they knew the amount for which they stood good.

It appears to me, that, the petitioners have erroneously interpreted section 169 of the Electoral Act to intrinsically link the furnishing of security with the presentation of the petition such that one cannot exist without the other.

It is clear that the presentation of the petition, a thing in the exclusive domain of the petitioner has no direct link to the furnishing of security for the costs of the respondent, the fixing of which is under the control of persons other than the petitioner, save that the law requires the two to be served together.

The fact that the two are to be served at the same time does not make them so intrinsically linked one to the other that service of one could not be effected in the absence of the other.

In my view, the situation is analogous to the example of a situation where driver is ordered by his employer to, within the hour, proceed to the airport and pick up the employer's wife. He is further ordered to purchase a bouquet of flowers to give to the employers' wife to re-assure her of her husband's affection. The driver fails to find flowers at the correct price in good time. After securing the flowers, he delays, for an unexplained reason, while he is on his own business, and, instead of driving to the airport, he decides to wait for his employer's wife at the city offices of the airline, arguing that she will catch a bus from the airport or the airline will ferry her into town in due course since it is in the transport business. Facing imminent dismissal by the employer, he strenuously argues that he could not go to the airport in time as he could not find flowers at the right price, and, in any event, the mistress would eventually arrive home anyway as he (the driver) had substantially carried out the order given him by the employer. He is dismissed.

As the purchase of the flowers by the driver in the analogy could have clearly waited; in my view, the written notice of the petition and a copy of the petition could have, and should have, been served independent of the list of sureties pending the fixing of security.

In any event, even after the Registrar had fixed the amount of security on or about 23 April 2008, the petitioners still hung back and did not serve the petitions as required by law.

The delay of nineteen days after security had been fixed, in my view, belies the genuineness of the petitioner's excuse that they could not serve the petition before the amount of security had been fixed. The further delay remains unexplained - like the delay of the driver in the analogy after purchasing the flowers.

In my view, the petitioners simply did not make any reference to the Electoral Act in serving the petition, and, when the point in limine was raised, the absence of security was latched onto as a convenient excuse to explain the fatal delays.

I am therefore unable to find that the service of the election petition, twenty-eight days after presentation, is such an act that can be construed as substantial compliance with the law.

The provisions of section 169 of the Electoral Act are peremptory and require exact compliance or substantial compliance.

In view of the failure by the petitioners to comply exactly or substantially with the provision, their petition is a nullity and the proceedings before the court are rendered a nullity.

As I have failed to pass the fourth step, I deem it unnecessary that I consider whether there was prejudice or not as a result of the non-compliance.

Although I have effectively found that the petition is a nullity, I will proceed to deal with the rest of the submissions made by counsel.

(iii) The third distinct submission that I discern from counsels' submissions is that I have inherent jurisdiction to condone departures from the provisions of the Electoral Act.

Mr Mandizha has submitted that I employ Rule 4C of the High Court Rules to condone the late service of the petition. Counsel for the petitioners has made reference to my inherent powers.

It is in my view trite that this court, being a creature of statute can only exercise those powers that are expressly granted to it by the enabling statute.

Section 169 of the Electoral Act does not grant this court power, on good cause, to extend the time within which petitions can be served. Rule 4C of the High Court Rules is of no application as I am not dealing with a time limit that has been set in terms of the Rules of Court. This is a time limit set by Parliament and the doctrine of separation of state powers commands that I refrain from amending a statute from the Bench as that is not my function: see Chitungo v Munyoro and Another 1990 1 (ZLR) 52 (HC).

Section 39 of the Constitution, as read with Standing Order 6, has directed that the Clerk shall conduct an election of a Speaker by secret ballot but has not provided what should be the consequence of the non-compliance with this peremptory direction by Parliament.

This Court recently had occasion to deal with the issue of interpreting a statute that does not prescribe the consequences of non-compliance with a statutory provision in the case of Doctor Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor Judgment No. SC11-08.

In that case, I cited with approval a passage from BENNION Statutory Interpretation…, which sets out how courts should approach that issue.

The learned author states that a court charged with the enforcement of a statute that does not state the consequences of non-compliance needs to decide what consequence Parliament intended should follow from such failure to comply. In that case, I had this to say at pp21-23 of the cyclostyled judgment:

"It is the generally accepted rule of interpretation that the use of peremptory words such as 'shall' as opposed to 'may' is indicative of the legislature's intention to make the provision peremptory. The use of the word 'may' as opposed to 'shall' is construed as indicative of the legislature's intention to make a provision directory. In some instances the legislature explicitly provides that failure to comply with a statutory provision is fatal. In other instances, the legislature specifically provides that failure to comply is not fatal. In both of the above instances no difficulty arises.

The difficulty usually arises where the legislature has made no specific indication as to whether failure to comply is fatal or not.

In the present case, the consequences of failure to comply with the provisions of section 18 of the Zimbabwe Electoral Commission Act are not explicitly spelt out.

In those statutory provisions where the legislature has not specifically provided for the consequences of failure to comply, it has to be assumed that the legislature has left it to the Courts to determine what the consequences of failure to comply should be.

The learned author FRANCIS BENNION in his work Statutory Interpretation suggests that the courts have to determine the intention of the legislature using certain principles of interpretation as guidelines. He had this to say at pp21-22:

'Where a duty arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from breach of the duty.

This is an area where legislative drafting has been markedly deficient. Draftsmen find it easy to use the language of command. They say that a thing 'shall' be done. Too often they fail to consider the consequence when it is not done. What is not thought of by the draftsman is not expressed in the statute.

Yet the courts are forced to reach a decision.

It would be draconian to hold that in every case failure to comply with the relevant duty invalidates the thing done. So, the courts' answer has been to devise a distinction between mandatory and directory duties.

Terms used instead of "mandatory" include 'absolute', 'obligatory', 'imperative' and 'strict'. In place of "directory", the term 'permissive' is sometimes used. Use of the term 'directory' in the sense of permissive has been justly criticised: see CRAIES Statute Law (7th edn, 1971) p61 n74. However, it is now firmly rooted.

Where the relevant duty is mandatory, failure to comply with it invalidates the thing done. Where it is merely directory the thing done will be unaffected (though there may be some sanction for disobedience imposed on the person bound). {As to sanctions for breach of statutory duty see section 13 of this Code (criminal sanctions) and section 14 (civil sanctions)}.'

Thereafter, the learned author sets out some guiding principles for the determination of whether failure to comply with a statutory provision is fatal or a mere irregularity.

One of these guiding principles is the possible consequences of a particular interpretation. If interpreting non-compliance with a statutory provision leads to consequences totally disproportionate to the mischief intended to be remedied, the presumption is that Parliament did not intend such a consequence and therefore the provision is directory."

MAXWELL on The Interpretation of Statutes 12ed…, says much the same as the above cited excerpt from BENNION.

The principle of law to be applied is that where an enactment imposes an obligation but is silent as to the remedy to be awarded for disobedience, a court must ascertain, from the language by which the obligation is imposed, whether it is the intention of the Legislature that nullification of the offending conduct should be the remedy to be awarded without any limit as to the scope of its operation or application.

MAXWELL on The Interpretation of Statutes 12ed…, summarises the principles to be applied as follows:

"…, when a statute requires that something shall be done or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance: is the requirement to be regarded as imperative (or mandatory) or merely as directory (or permissive)?

In some cases, the conditions or forms prescribed by the statute have been regarded as essential to the act or thing regulated by it and their omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the regard to them involving nothing more than liability to a penalty, if any, were imposed for breach of the enactment.

'An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.' Woodward v Sarsons (1875) LR 10 CP 733.

It is impossible to lay down any general rule for determining whether a provision is imperative or directory.

'No universal rule', said LORD CAMPBELL LC, 'can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.' Liverpool Borough Bank v Turner (1860) 2 De. G F & J 502 at pp507, 508.

And LORD PENZANCE said:

'I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the Act; and, upon a review of the case in that aspect, decide whether the matter is what is called imperative or only directory.' Howard v Bodington (1877) 2 PD 203 at p211."

See also Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S).

Courts have adopted a conservative approach to the question of determining the true economic value of money because they defer to the Executive branch of Government the formulation of economic policy.

The applicants in this matter are all duly elected Members of Parliament. The first respondent is the Clerk of Parliament, cited herein in his official capacity.

The second respondent was elected to the position of Speaker of the House of Assembly on the 25th of August 2008.

The applicants challenge the validity of the second respondent's election as Speaker on several grounds.

They originally sought an order setting aside the second respondent's election, and, consequentially, an order nullifying all acts performed by him qua Speaker. However, at the hearing of this case, counsel for the applicants conceded the excessiveness and enormity of the consequential relief sought and opted not to pursue that aspect.

Background

By virtue of section 39(2) of the Constitution of Zimbabwe, the Speaker must be elected in accordance with the Standing Orders of the House of Assembly.

On the 25th of August 2008, following the swearing-in of Members of Parliament (Members), the first respondent announced the procedure for the election of the Speaker. As there was more than one person proposed as Speaker, the election was to be conducted by secret ballot as enjoined by Standing Order Nos. 4 and 6 of the House of Assembly.

According to the applicants, what ensued in Parliament thereafter was chaotic and disorderly and quite contrary to the requirements of a secret ballot.

The first respondent concedes that there was an unprecedented number of Members in the Chamber on that day but denies that the voting process was disorderly or improper. The second respondent supports this position and also raises several preliminary objections to the application, pertaining to locus standi, non-joinder, and the exhaustion of domestic remedies.

The Issues

In the event, the preliminary and substantive issues for determination in this matter, as I perceive them, are as follows:

(i)...,.

(ii)...,.

(iii) Whether the applicants should have exhausted domestic remedies available in Parliament before approaching this Court....,.

Exhaustion of Domestic Remedies

The second respondent avers that the applicants did not lodge any formal objection or complaint with the first respondent before the election result was announced. It was incumbent upon the applicants to have exhausted relevant Parliamentary processes before approaching this Court. In this regard, counsel for the second respondent relies upon the decision in Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC)…,

He submits, quite correctly, that the nature of the relief sought by the applicants carries far-reaching implications for the separation of powers doctrine because it asks the judiciary to interfere with the internal proceedings of Parliament. Consequently, the Court should not recognise the applicants' locus standi to claim such relief unless they have made proper and diligent attempts in Parliament to redress the conduct complained of or provide a satisfactory explanation for their failure to do so.

As is clearly recognised in section 5 of the Privileges, Immunities and Powers of Parliament Act [Chapter 2:08], Members enjoy full freedom of speech and debate in Parliament and the proceedings of Parliament are generally immune from being questioned or impeached in any court of law. In other words, as a general rule, Parliament is at large to regulate its own proceedings without external interference.

However, it is well-established that in a constitutional democracy, such as ours, this general immunity is necessarily and invariably subject to the provisions of the Constitution. This subordination to the primacy of the Constitution is entrenched and clearly recognised in sections 3 and 49 of the Constitution. See Smith v Mutasa N.O. & Another 1989 (3) ZLR 183 (SC)…,; Chairman, Public Service Commission & Others v Zimbabwe Teachers Association & Others 1996 (1) ZLR 637 (S)…,.

The election of the Speaker is a process that is not exclusive to Parliamentary privileges and powers. It is explicitly regulated by section 39 of the Constitution and there can be no doubt that it is a matter that is justiciable by the courts to ensure due compliance with the Constitution and the Standing Orders.

Nevertheless, I fully endorse the approach enunciated by the Constitutional Court of South Africa in Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC) and concur that this Court should be loathe to interfere with the internal proceedings of Parliament unless it is shown that the applicants have attempted to exhaust relevant Parliamentary processes in the first instance.

In the instant case, it appears from the first applicant's affidavit that several queries were raised by certain Members during the election process but the first respondent refused to take any questions throughout the election.

What is not clear from the papers is whether the queries that were raised were by way of formal objection or mere interjection.

In this respect, counsel for the first respondent submits that the first respondent was entitled to ignore informal protests or interjections and that any MP wishing to be heard had to make a formal objection by standing up and raising a “point of order” as envisaged in Standing Order Nos. 49 and 61.

As against this, counsel for the applicants argues that, although the conduct of normal Parliamentary business does admit the possibility of formal objections, there is no equivalent procedure prescribed in the Constitution or in the Standing Orders with respect to the election of the Speaker that enables the Clerk of Parliament to deal with formal objections.

Having regard to the Standing Orders, taken as a whole, I am inclined to agree with counsel for the applicants. Standing Order Nos. 49 and 61, relating to formal speeches and objections, are contained in the Section titled PUBLIC BUSINESS, and, more specifically, in the sub-section titled Order in House and Rules of Debate.

As appears from Standing Order Nos. 7 and 17, the Speaker holds the Chair for the conduct of public business generally. In the absence of the Speaker, the Deputy Speaker assumes the Chair, and, in the absence of both, the Chair is assigned to the Deputy Chairperson of Committees or a member of the Chairperson's panel.

At no stage does the Clerk of Parliament exercise the powers of the Chair in the conduct of ordinary public business to which the procedures outlined in Standing Order Nos. 49 and 61 apply.

The only occasion on which the Clerk holds the Chair is for the purpose of conducting the election of the Speaker in terms of Order Standing Order Nos. 3 to 7.

These Standing Orders are contained in the section titled PROCEEDINGS ON MEETING OF NEW PARLIAMENT.

As I have already noted, Standing Order Nos. 49 and 61, which provide for formal objections, are to be found in an entirely different section, and, therefore, they do not apply to Standing Order Nos. 3 to 7 governing the election of the Speaker.

Arguably, the power of the Chair to take and deal with formal objections could and should be implied, mutatis mutandis, in the latter context as well. However, a strict interpretation of the Standing Orders precludes any such importation in the absence of clear language to that effect.

It follows from all of this that the Standing Orders do not prescribe any procedure for the raising of formal objections during the election of the Speaker and before the election result is announced. It also follows that, in the absence of any such procedure, there was no internal Parliamentary process that the applicants could be required to exhaust before approaching this Court for the relief that they seek.

That being so, the second respondent's preliminary objection in this regard cannot succeed and must be dismissed....,.

As I have already stated earlier, Parliament is generally at large to regulate its own proceedings without external interference. As a rule, the courts should be loathe to interfere with the internal proceedings of Parliament unless there is a failure to comply with Constitutional strictures.

In any event the figures envisaged under Article 20.1.6(5) have not been outrageously exceeded given the complexity of Government administration. Further, the proportion of representation as among the three parties remains largely the same.

The time-honoured doctrine of separation of powers that the applicant himself has invoked is equally applicable in this matter.

The doctrine distinguishes three arms of State:

(i) The Legislature which has the power to make, amend and repeal rules of law;

(ii) The Executive which has the power to execute and enforce rules of law; and

(iii) The Judiciary which is endowed with the power, if there is a dispute, to determine what the law is and how it should be applied in the dispute.

See I. M. RAUTENBACH: Constitutional Law 4^th edition (2003)…,.

In R v Home Secretary, Ex parte Fine Brigades Union [1995] 2 AC 513…,; [1995] 2 WLR 464 (HL), defined the doctrine as formulated in England as follows:

“It is a feature of the peculiarly British conception of the separation of powers that Parliament, the Executive and the Courts have each their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The Executive carries on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws and see that they are obeyed.”…,.

Where a court interprets a law, it fulfils its role under the separation of powers framework. When it interprets a certain law to compel someone to do something, it is not the court but the law that compels that person to do so.

This application is founded on the wrong premise that the applicant must not be compelled to abide by the law, whether by an order of mandamus or otherwise.

That premise is fundamentally flawed and patently untenable.

The applicant does not want to comply with the law and he has not even challenged its validity, though that would not have entitled him to disobey it. The position of any law that is challenged for alleged invalidity is settled. See Econet Wireless (Pvt) Ltd v The Minister of Public Service Labour and Social Welfare & Others SC31-16, where the Supreme Court, per BHUNU JA, held that:

“It is a basic principle of our law which needs no authority that all subsisting laws are lawful and binding until such time as they have been lawfully abrogated. If, however, any authority is required for this proposition, one need not look further than BLACK, on the Construction and Interpretation of the Laws (1911) page 10 para 41, where the learned author says:

'Every act of the legislature is presumed to be valid and constitutional until the contrary is shown. All doubts are resolved in favour of the validity of the Act. If it is fairly and reasonably open to more than one construction that construction will be adopted which will reconcile the statute with the constitution and avoid the consequence of unconstitutionality.'

What this means is that all questioned laws and administrative acts enjoy a presumption of validity until declared otherwise by a competent court. Until the declaration of nullity, they remain lawful and binding, bidding obedience of all subjects of the law.”

What can be gleaned from this is that not only does an unchallenged law compel full obedience but that even a law that is under challenge before it is declared invalid commands the same level of obedience.

Even if the applicant had properly taken the point that the law operates against his constitutional mandate to be independent, he would still have had to first comply with the law and issue the certificates nolle prosequi because the law remained extant. The applicant in this matter has not done so but has attacked the orders of the High Court and the Supreme Court in the Francis Maramwidze and Telecel Zimbabwe (Pvt) Ltd cases as interfering with his independence.

This does not exempt him from complying with the law as it is clearly stated….,.

The High Court and the Supreme Court have already issued orders that the applicant is obliged to issue certificates nolle prosequi in the two cases in question. Both courts made those orders upon their fully considered interpretation of section 16 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The applicant has not challenged, not successfully at any rate, the interpretation of that section by those courts. As far as we are concerned, their interpretations are in accordance with section 16 of the Criminal Procedure and Evidence Act [Chapter 9:07]. In other words, in terms of section 16 of the Criminal Procedure and Evidence Act [Chapter 9:07], the applicant is obliged to issue those certificates as that is what the law requires of him. What the courts have done is to simply interpret what the law says in sections 13 and 16 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The Court has no power to order the repeal of any legislation. Repeal of legislation is a legislative act and not a judicial act.

The declaration of constitutional invalidity of legislation is the judicial act.

It is axiomatic that Zimbabwe is a Constitutional in contradistinction to a Parliamentary democracy. See Biti & Anor v Minister of Justice, Legal and Parliamentary Affairs & Anor 2002 (1) ZLR 177 (S)…,.

This fundamental principle and its concomitant legal ramifications and obligations are codified in section 2 of the Constitution as follows:

“(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them.”

Section 3 of the Constitution enshrines the founding values and principles of Zimbabwe. In its relevant parts it provides that:

“(1) Zimbabwe is founded on respect for the following values and principles -

(a) Supremacy of the Constitution;

(b) The rule of law;

(c) Fundamental human rights and freedoms;

(d)…,.;

(e)…,.;

(f)….,.;

(g)…,.;

(h) Good governance; and

(i)…,.

(2) The principles of good governance, which bind the State and all institutions and agencies of Government at every level, include -

(a)…,.;

(b)…,.;

(c)…,.;

(d)…,.;

(e) Observance of the principle of separation of powers;

(f) Respect for the people of Zimbabwe, from whom the authority to govern is derived;

(g) Transparency, justice, accountability and responsiveness;

(h)…,.;

(i)…,.;

(j)…,.;

(k)…,.; and

(l)…,.”

By virtue of the foregoing principles, the Constitution demands strict compliance with its substantive provisions and all laws enacted under its aegis. It also demands meticulous adherence to the procedures and processes prescribed under the Constitution. These principles bind everyone…,.

In the instant case, the court a quo failed to assess whether or not it was “constitutionally appropriate to grant the interdict”. See National Treasury & Ors v Opposition to Urban Tolling Alliance & Ors 2012 (6) SA 223 (CC)…,.

In so doing, it failed to observe the time-honoured doctrine of separation of powers.

As was underscored in Doctors for Life International v Speaker of the National Assembly & Ors 2006 (6) SA 416 (CC)…,.:

“Courts must be conscious of the vital limits on judicial authority and the Constitution's design to leave certain matters to other branches of Government. They too must observe the constitutional limits of their authority. This means that the judiciary should not interfere in the processes of other branches of Government unless to do so is mandated by the Constitution.”

This principle was also clearly articulated in International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC)…,.:

“Where the Constitution or valid legislation has entrusted specific powers and functions to a particular branch of Government, courts may not usurp that power or function by making a decision of their preference. That would frustrate the balance of power implied in the principle of separation of powers. The primary responsibility of a court is not to make decisions reserved for or within the domain of other branches of Government, but, rather, to ensure that the concerned branches of Government exercise their authority within the bounds of the Constitution. This would especially be so where the decision in issue is policy-laden as well as polycentric.”…,.

Suspension of Constitutional Provisions by Intended Executive Action

In doctrinal terms, the amendability of Constitutional provisions has been theorised in recent judicial and academic discourse within the framework of the implicit limits doctrine or the basic structure doctrine. The gravamen and implications of both doctrines, as I comprehend them, are essentially the same insofar as concerns the juridical conclusions to be derived from them.

It is generally accepted that the present Constitution was prepared after a prolonged and rigorous people-centred constitution making process. It was the result of extensive consultations and negotiations in striking an appropriate balance of constitutional values, systems, and structures chosen by the people of Zimbabwe. It may therefore aptly be characterised as being autochthonous (albeit not entirely original in formulation or content) and as an exercise of the so-called constituent power.

On that premise, where an act is performed in proper exercise of the constituent power's mandate, a court cannot properly stay that conduct on the basis that a constituted power, i.e. the legislature, may eventually decide to approach the matter differently. It would follow that to stay the choice of the people in enacting section 180 of the Constitution, pending a proposed contrary view by the legislature, would be to stultify the greater voice of the people so that a lesser power that they have constituted may be exercised.

It was contended, on behalf of the third respondent, that the court below was correct in granting the impugned interdict pending the proposed amendment of the Constitution. No reasonable judge, so it was argued, could have ignored evidence from the Executive indicating its intention to rectify an alleged defect in the Constitution.

With all due deference to the over-arching political role of the Executive, this argument is not only startling but patently outlandish in its disdain for the established norms of constitutionalism. It postulates the very anti-thesis of the rule of law. One of the objectives of a constitutional democracy is to reign in the unbridled abuse of State power and resources. To that end, the introductory remarks of MOGOENG CJ in Economic Freedom Fighters v Speaker of the National Assembly & Others [2016] ZACC 11…., are very pertinent:

“To achieve this goal, we adopted accountability, the rule of law and the supremacy of the Constitution as values of our constitutional democracy. For this reason, public office bearers ignore their constitutional obligations at their peril. This is so because constitutionalism, accountability, and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck.”

It is trite that constitutional order hinges on the rule of law. For that reason, the learned Chief Justice opines, at paragraph 75, that:

“The rule of law requires that no power be exercised unless it is sanctioned by law and no decision or steps sanctioned by law may be ignored based purely on a contrary view we hold. It is not open to any of us to pick and choose which of the otherwise effectual consequences of the exercise of constitutional or statutory power will be disregarded and which given heed to.”

The third respondent's conduct, in seeking to have the operation of a constitutional provision suspended on the basis of a proposed constitutional amendment is obviously inconsistent with his obligations in terms of section 2(2) of the Constitution. For a court to grant the privilege that he seeks would be tantamount to condoning a violation of those obligations thereby posing a serious threat to the rule of law enshrined in section 3(1)(b) of the Constitution.

In light of the constitutional imperative to maintain the rule of law, the judiciary is obliged to give effect to the provisions of the Constitution that are in force at any given time. Consequently, it is not open to the judiciary to pander to the whims of the Executive by granting an interdict on the basis of a proposal to amend an extant law.

A constitutionally-mandated process, which is binding and being carried out in terms of the law, cannot be suspended on the back of a mere spes that there might be an amendment in the future - the full effect of which is unknown. In other words, a court of law cannot ignore a valid and binding provision of the Constitution in order to effectuate the mere intention of one arm of the State to tinker with that provision - particularly when the process of tinkering is in itself fraught with legal uncertainty.

As counsel for the appellant quite aptly phrased it, a Constitutional Bill is no “walk in the park.”

In terms of section 328 of the Constitution, the precise terms of the Bill must be gazetted at least 90 days before it is presented in the Senate or the House of Assembly. Additionally, members of the public must be invited to express their views on the proposed Bill through written submissions and public meetings.

It is therefore undoubtedly irrational to suspend the operation of a Constitutional provision by way of an interdict pending the completion of such an arduous process. Indeed, as counsel for the third respondent was eventually constrained to concede, Parliament is not a mere rubberstamp. Thus, there was no certainty that, after having debated the matter, Parliament would necessarily accept the draft Bill and enact it into law without any alteration. In the interim, the office of Chief Justice would have remained vacant, in clear contravention of the appellant's obligation under section 324 to implement the requirements of section 180 by filling that vacancy “diligently and without delay.”

The inescapable conclusion to be drawn from all of the foregoing is abundantly clear. It is that the Constitution cannot, under any circumstances, be abrogated, superseded or suspended by intended Executive action relating to the prospective amendment of its provisions.

In short, and with all due respect, the reasoning and judgment of the court a quo defy logic and all established tenets of Constitutional Law.

It is not in dispute that the farm was leased to the respondent by the acquiring authority. That was an Executive decision which the Court cannot interfere with.

Re-allocating the farm, or any part of it, would be irregular as it would amount to the court usurping the Executive powers of the acquiring authority.

Section 176 of the Constitution…, vests, in our higher courts, the power to protect and regulate their own processes and “to develop common law or the customary law, taking into account the interests of justice and the provisions of this Constitution.”…,.

Judicial activism, while having a place in our legal system, as in many others, and, in appropriate cases, however, has its limits. The major limitation to the law-making role of the courts is the need for the judiciary not to step onto the toes of the Legislature - whose primary mandate is to make laws through Parliament.

I have no doubt in my mind that section 176 of the Constitution is not meant to vest the judiciary with authority to usurp the legislative responsibility of the Legislature.

Counsel for the second respondent contended that the traditional test for an interlocutory interdict, as set out in the locus classicus, Setlogelo v Setlogelo 1914 AD 221 over 100 years ago and which has been followed in numerous subsequent cases is in respect of interdicts between private individuals. It is not wholly applicable where the other party is the State and where the challenge is in respect of its legislative power.

He referred to the South African e-tolling cases, National Treasury and Ors v Opposition to Urban Tolling Alliance & Ors 2012 (6) SA 229; Opposition to Urban Tolling Alliance & Ors v South African National Roads Agency Limited 2013 (4) All SALR 639 (Judgment No. 90/2013 of the Supreme Court of Appeal of South Africa) and the yet to be reported Blair Atholl Homeowners Association & Ors v The City of Tshwane Metropolitan Municipality Case No. 63280/11. The latter case was decided in the South African North Gauteng High Court in April this year. It was in respect of the power of a municipality to levy charges on homeowners in a township under the jurisdiction of the municipality.

Counsel for the first respondent was more bullish. She would take no prisoners on this. There was no cause of action for the court to decide, she argued. It was impossible for this court to sit to review a legislative function of the executive arm of Government. What the Minister of Transport had done, in promulgating S.I.106 of 2014 was an exercise of a legislative function. This is a function different from the Minister's other administrative functions.

She gave an example.

A dispute over mining concessions or mining claims first goes to the Mining Commissioner for determination. From there an appeal lies to the Minister of Mines. In determining the appeal, the Minister of Mines is exercising a purely administrative function. That is reviewable by the courts exercising their ordinary review powers. Not when the Minister is making regulations. He is now exercising delegated authority to make law. The courts have no jurisdiction to review such a function….,.

The nub of the matter is, in my view, the extent to which the legislative function of the executive arm of Government is reviewable by the judicial arm of Government under the doctrine of the separation of powers….,.

Counsel for the first respondent's argument, that it is impossible for a court to review the legislative function of Government, is a ghost. It was buried in 1985 in PF-ZAPU v Minister of Justice 1985 (2) ZLR 305 (SC). A three judge Bench of the Supreme Court, headed by DUMBUTSHENA CJ, held that the exercise of an executive prerogative is not necessarily an act the validity of which is beyond the jurisdiction of the court. It is only those acts of State in respect of which the jurisdiction of the court is ousted that the court may not review. Such executive prerogatives are now very few and far between. Whenever the exercise of executive prerogative affects the private rights, interests and legitimate expectation of the citizens, the jurisdiction of the courts is not ousted.

Acts of State that may be exercised by the President, in terms of the Constitution, in respect of which the jurisdiction of the court is ousted include the appointment, accreditation, reception and recognition of diplomatic agents; the conclusion and ratification of international conventions, treaties or agreements; the proclamation or declaration of martial law or war, etc. Others include the granting of a pardon to convicted persons or the remission or suspension of their sentences, etc. Even then, the superior court said, should the exercise of these prerogatives be done under unlawful conditions or be performed outside the law the courts have a duty to review them….,.

In my view, the doctrine of the separation of powers in a Constitutional democracy is such that the three arms of Government, namely, the legislature, the judiciary and the executive, have each exclusive domains of operation. They apply their training, if any, their experience, the information available to them and all the other resources at their disposal to put out the best for the nation. One arm may not interfere with the other arms. But, our Constitutional democracy has a system of checks and balances. One arm may pry into and poke its nose in the other's domain. For example, the prerogative to sentence a convicted person to an appropriate term of imprisonment is that for the judiciary. What would amount to an appropriate sentence is for the court to decide in its own discretion. But, it is not always like that. The legislature can “interfere” with the exercise of that discretion by imposing, through legislation, minimum or maximum penalties for specified offences. The executive can also “interfere”. The President can pardon, commute or remit certain punishments imposed by the courts. Likewise, the judiciary plays an oversight role in making sure that as the legislature and the executive go about executing their functions they do so lawfully or procedurally. A law promulgated un-procedurally or any other administrative function carried out without regard to the law will be knocked down by the judiciary or set aside. That is how the machinery of State functions….,.

The judgment of the Constitutional Court of South Africa, in National Treasury and Ors v Opposition to Urban Tolling Alliance & Ors 2012 (6) SA 229; Opposition to Urban Tolling Alliance & Ors v South African National Roads Agency Limited 2013 (4) All SALR 639 (Judgment No.90/2013 of the Supreme Court of Appeal of South Africa)…, cited with approval the following passage in the case of Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC) 2006 (12) BCLR1399;

“(W)here the Constitution or valid legislation has entrusted specific powers and functions to a particular branch of Government, courts may not usurp that power or function by making a decision of the their preference that would frustrate the balance of power implied in the principle of separation of powers. The primary responsibility of a court is not to make decisions reserved for or within the domain of other branches of Government, but, rather, to ensure that the concerned branches of Government exercise their authority within the bounds of the Constitution. This would especially be so where the decision in issue is policy-laden as well as polycentric.”

In paragraphs 66 to 68, on page 241, the court held as follows:

“[66] A court must carefully consider whether the grant of the temporary restraining order pending a review will cut across or prevent the proper exercise of a power or duty that the law has vested in the authority to be interdicted. Thus, courts are obliged to recognise and assess the impact of temporary restraining orders when dealing with those matters pertaining to the best application, operation and dissemination of public resources. What this means is that a court is obliged to ask itself not whether an interim interdict against an authorised State functionary is competent but rather whether it is constitutionally appropriate to grant the interdict.

[67] The harm and inconvenience to motorists, which the High Court relies on, result from a national executive decision about the ordering of public resources, over which the executive Government disposes and for which it, and it alone, has the public responsibility. Thus, the duty of determining how public resources are to be drawn upon and re-ordered lies in the heartland of executive-Government function and domain. What is more, absent any proof of unlawfulness or fraud or corruption, the power and the prerogative to formulate and implement policy on how to finance public projects reside in the exclusive domain of the national executive subject to budgetary appropriations by Parliament.

[68] Another consideration is that the collection and ordering of public resources inevitably call for policy-laden and polycentric decision-making. Courts are not always well suited to make decisions of that order. It bears repetition that a court considering the grant of an interim interdict against the exercise of power within the camp of Government must have the separation of powers consideration at the very fore front.”

I adopt the same approach in this case.

I do find nothing un-procedural in the way the Minister of Transport promulgated S.I.106 of 2014. It was within his power to craft it. It was an action within the exclusive domain of the executive to decide how road construction, rehabilitation and maintenance should be funded. Such a decision is manifestly policy-laden and polycentric….,.

The courts exercise the powers of review within those bounds as have been developed through case law such as PF-ZAPU v Minister of Justice 1985 (2) ZLR 305 (SC) and the e-tolling cases referred to above.