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Constitutional Law re: Separation of Powers and Disputes Between the Arms of State

HH36-08 : MASIMBA KUCHERA and MICHAEL MUZA and TAFADZWA RUGOHO vs MINSTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA J

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) ...
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HH46-08 : PATRICK CHABVAMUPERU and OHERS vs EDMOND JACOB and OTHERS
Ruled By: MAKARAU JP

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 ...
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HH23-12 : AUSTIN ZVOMA vs LOVEMORE MOYO N.O. and NOMALANGA KHUMALO N.O .and BRIAN TSHUMA N.O. and SHEPPARD MUSHONGA N.O. and EDNA MADZONGWE N.O. and WILLIAS MADZIMURE N.O. and LYNETTE KARENYI N.O.
Ruled By: BERE J

On 12 December 2011, the applicant filed an application in this court under Case No. HC12336/11 seeking a prohibitory interdict against the respondents.The remedy sought was to prevent the respondents from moving or accepting any motion from any member of the House of Assembly to dismiss the applicant without the ...
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Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

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 ...
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Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

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 ...
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Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").The appellants, as the applicants in the court a quo, ...
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HH01-09 : CONSTANTINOS BAKARIS vs GEORGE KATTAVENOS
Ruled By: KUDYA J

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 Prescribed Rate of Interest Act [Chapter 8:10] is one piece of legislation which empowers the Minister of Justice, Legal and Parliamentary Affairs to revalorize ...
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View Appeal
HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO
Ruled By: PATEL J

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 ...
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Appealed
HH86-11 : MOVEN KUFA and THE VOICE FOR DEMOCRACY TRUST vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE N.O and THE PRIME MINISTER OF THE REPUBLIC OF ZIMBABWE N.O and OTHERS
Ruled By: CHIWESHE JP

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. An anomaly has admittedly arisen, but, in my view, that anomaly does not warrant the grant of the order sought. In any ...
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SC05-13 : IGNATIOUS CHOMBO vs PARLIAMENT OF ZIMBABWE and SPEAKER OF PARLIAMENT and PRESIDENT OF THE SENATE and CLERK OF PARLIAMENT and TANGWARA MATIMBA and HON. SIMON HOVE
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA and GARWE JA and GOWORA JA and OMERJEE AJA

It follows from this that in an appropriate case a Cabinet Minister can have locus standi to sue another arm of the State.
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CC13-17 : IN RE: PROSECUTOR-GENERAL OF ZIMBABWE ON HIS CONSTITUTIONAL INDEPENDENCE AND PROTECTION FROM DIRECTION AND CONTROL vs x
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, MAVANGIRA JCC and UCHENA JCC

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 ...
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CC03-18 : ZIMBABWE DEVELOPMENT PARTY and VOICE OF THE PEOPLE vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE and SPEAKER OF PARLIAMENT and CHAIRPERSON – ZIMBABWE ELECTORAL COMMISSION
Ruled By: MALABA CJ

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.
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SC68-17 : JUDICIAL SERVICE COMMISSION vs ROMEO TAOMBERA ZIBANI and OTHERS
Ruled By: HLATSHWAYO JA, PATEL JA and ZIYAMBI AJA

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 ...
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Appealed
SC41-18 : MARIAN CHOMBO vs IGNATIOUS CHOMBO
Ruled By: MALABA CJ, HLATSHWAYO JA and UCHENA JA

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.
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Appealed
SC14-19 : JUDITH ISHEMUNYORO (NEE MANDIDEWA) vs ANTHONY ISHEMUNYORO and TYNSERVE DISTRIBUTORS (PVT) LTD and THE REGISTRAR OF DEEDS and THE SHERIFF FOR ZIMBABWE
Ruled By: GWAUNZA JA, HLATSHWAYO JA and ZIYAMBI AJA

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 ...
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HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O.
Ruled By: MAFUSIRE J

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 ...
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SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

In framing an appropriate order that is just and equitable, the courts are at large to take into account all the relevant circumstances of the case, including the nature of the right infringed and the nature of the infringement. Moreover, whilst being attuned and sensitive to the doctrine of separation ...
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HH173-17 : F. MUTATA and OTHERS vs THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND URBAN DEVELOPMENT
Ruled By: CHITAKUNYE J and NDEWERE J

This is an appeal against the judgment of the magistrate sitting at Harare in which he granted an order for the eviction of the appellants from certain premises owned by the Government.The appellants are retrenched or retired civil servants who occupied houses situate in the Messengers' Camp in Highfields, Harare.The ...
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CC04-20 : INNOCENT GONESE and JESSIE MAJOME vs PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF THE SENATE and EMMERSON MNANGAGWA N.O. and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and BHUNU JCC

The two applicants are Members of Parliament. They brought two separate applications in terms of section 167(2)(d) of the Constitution of Zimbabwe Amendment (No.20) 2013 (“the Constitution”), as read with Rule 27 of the Constitutional Court Rules.They alleged failure by Parliament to fulfil the constitutional obligation to act in accordance ...
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SC30-20 : GODFREY TAPEDZA AND ZIMBABWE ENERGY WORKERS UNION AND OTHERS vs ZIMBABWE ENERGY REGULATORY AUTHORITY AND NATIONAL EMPLOYMENT COUNCIL FOR THE ENERGY INDUSTRY
Ruled By: GWAUNZA JA, HLATSHWAYO JA and PATEL JA

What the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication.This was well captured in Mukwereza v Minister of Home Affairs Anor 04-SC-027, SC27-04…, ...
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SC11-08 : DOCTOR DANIEL SHUMBA and ADVOCATE BRUCE CHIOTA vs THE ZIMBABWE ELECTORAL COMMISSION and MR MUSHANGWE N.O.
Ruled By: CHIDYAUSIKU CJ, SANDURA JA, ZIYAMBI JA, MALABA JA and GARWE JA

The applicants in this case allege that their right to freedom of association, guaranteed by sections 21(1) and 21(2) of the Constitution of Zimbabwe (“the Constitution”), and their right to protection of the law, guaranteed by section 18(1) of the Constitution, were violated by the second respondent, an employee of ...
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SC11-08 : DOCTOR DANIEL SHUMBA and ADVOCATE BRUCE CHIOTA vs THE ZIMBABWE ELECTORAL COMMISSION and MR MUSHANGWE N.O.
Ruled By: CHIDYAUSIKU CJ, SANDURA JA, ZIYAMBI JA, MALABA JA and GARWE JA

The applicants in this case allege that their right to freedom of association, guaranteed by sections 21(1) and 21(2) of the Constitution of Zimbabwe (“the Constitution”), and their right to protection of the law, guaranteed by section 18(1) of the Constitution, were violated by the second respondent, an employee of ...
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CC04-18 : GABRIEL SHUMBA and SIBONILE MFUMISI and DARLINGTON NYAMBIYA vs MINISTER OF JUSTICE and CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

There is a presumption that Parliament is aware of court judgments...,.; When enacting laws that might impact on a certain area, the Legislature is presumed to be aware of the judgments of the courts on those issues.As far back as 2002 and 2005, in the cases of Registrar General of ...
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CC04-18 : GABRIEL SHUMBA and SIBONILE MFUMISI and DARLINGTON NYAMBIYA vs MINISTER OF JUSTICE and CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

This is an application in terms of section 85(1)(a) of the Constitution and the background to the matter is as follows:-The applicants are all citizens of, but are not resident in, Zimbabwe. They give different reasons for their absence, with the first applicant citing political reasons. The second applicant cites ...
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HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE
Ruled By: MWAYERA J

Superior courts, inclusive of the High Court, have inherent jurisdiction to protect and regulate their own process and develop common law in so far as the interests of justice are maintained: see section 176 of the Constitution.In the case of Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143 ...
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SSC46-12 : CHARLES KWARAMBA vs THE HONOURABLE MR JUSTICE BHUNU N.O.
Ruled By: CHIDYAUSIKU CJ

The legal practitioners representing Mr Charles Kwaramba (hereinafter referred to as "the applicant") placed before the Registrar of this Court the following letter:"REQUEST FOR DIRECTIONSWe act on behalf of Mr Charles Kwaramba at whose instance we write. Mr Kwaramba, who is a legal practitioner and an officer of this Court, ...
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SC78-21 : ZIMBABWE HOMELESS PEOPLES FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

After hearing argument from the parties, the High Court of Zimbabwe made an order dismissing the application filed by the appellants in terms of section 85(1) of the Constitution of Zimbabwe. The court also ordered the appellants to pay the costs of the application.This followed a finding by the court ...
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