No S.C. 31\03
Application No 71\02
GENERAL OF ELECTIONS (2) MINISTER OF JUSTICE
(3) MINISTER OF HOME AFFAIRS
COURT OF ZIMBABWE
OCTOBER 21, 2003
for the applicants
for the respondent
CHIDYAUSIKU CJ, in Chambers in terms of the
appeal in this case was set down for hearing on 2 June 2003. On
that date in spite of the applicants averment that it considered
this matter to be very important, there was no appearance for the
appellants (now applicants).
for the respondent moved that the appeal be dismissed for want of
prosecution with costs. The application was granted
and the appeal
was dismissed for want of prosecution with costs. On 6 June 2003
the applicants filed an urgent Chamber application
affidavit in support of the application from the Registrar-General
reads, in part, as follows:-
March 2002, I filed an appeal against part of the judgment of the
High Court handed down by the Honourable Justice Adam in Case No.
was set down for the 2nd
believed that my lawyers were taking care of the matter.
June 2003 at about 6 pm I was informed by my lawyers that this appeal
had been dismissed for want of prosecution.
inquiry I was advised that Mrs Matanda-Moyo
who was seized with the matter had been taken ill and had been unable
to attend this hearing. See her Supporting Affidavit.
was also advised that due to the lack of phones at the Civil Division
a Clerk of the Supreme Court attended personally at Civil
09:45 hours to enquire why there was no appearance on my behalf.
I am further
advised that a Law Officer attended court to explain that Mrs
had been taken ill. However the Law Officer arrived at the Supreme
Court at approximately 10:00 hours in the company of the Clerk
was advised by the Registrar Mrs Mazabane that the matter had been
dealt with and dismissed for want of prosecution.
this matter is one of national importance I approach this court for
directions on how to proceed given the circumstances surrounding
non-attendance by my lawyers.
terms of s 26(1) of the Supreme Court Act I cannot appeal against any
judgment or order of this Honourable Court. I now approach
court on directions how to proceed.
Honourable Court in Registrar-General
v Judith Todd
SC-158-02 upheld the validity of section 9(7) of the Citizenship Act
of Zimbabwe Amendment Act No. 12/2001.
effect of the dismissal of the appeal under SC-71-2002 is to uphold
the ruling in High Court Case No HC-12092-2001 handed down
Honourable Justice Adam which is at conflict with the above quoted
Supreme Court ruling. In the end we do have two Supreme
rulings which appear to be in direct conflict.
is my understanding that this latest ruling by this Honourable Court
was not on the merits. Therefore the law as it stands is
v Judith Todd
that I am faced with is that I have people attending at my offices
claiming rights in terms of the High Court Judgment
Yet that is not the law because the law is as stated by this
Honourable Court in Registrar-General
v Judith Todd
am advised that a case of this nature is without precedence and my
only remedy is to come to this Honourable Court and ask for
on rescission of this Honourable Courts decision.
still intend to prosecute this matter.
I wish to
refer to the supporting affidavit of Loyce Matanda-Moyo.
explains the default in an affidavit which reads as follows:-
am the Director of Civil Division, Applicants Legal Practitioners.
was set down before this Honourable Court on 2nd
17 June 2002 I gave birth through caesarian section. I did not take
the three months maternity leave but came back after one
since there was shortage of staff in the Civil Division.
30 May 2003 the operation started giving me problems and I have a
serious backache. To date I am still resting as per my doctors
advice. See Annexure B.
a result of my sudden illness I was unable to allocate the matter to
the time I got through to the office it was already after 9.30 hours.
understand Ms Mudenda arrived at court after the matter had been
certificate of urgency was issued on the basis that the dismissal of
the appeal created confusion in the law in that the Supreme
judgment was in conflict with a High Court judgment and another
judgment of the Supreme Court.
is no indication on the papers in terms of which Supreme Court Rules
this Chamber application was being made. The Supreme
Court Rules do
not expressly provide for Chamber applications for directions.
However, Rule 58 of the Supreme Court Rules provides
that in any
matter not dealt with in the Supreme Court Rules the practice and the
procedure of this court shall, subject to any direction
contrary by the court or a judge, follow as near as may be, the
practice and procedures of the High Court. Order 23 of the
Court Rules provides for a Chamber application for direction in
respect of any interlocutory matter on which a decision may
am unable to extend the application of the High Court Rules to the
present application for two reasons.
first applicant is essentially asking for legal advice and not
directions from this court That is not the function of this
and Order 23 of the High Court Rules was never intended to enable
litigants to obtain legal advice from a judge ahead of a
The first applicant in effect is saying I failed to appear in court
please advise me on what to do next.
more importantly the first applicant is seeking directions that are
clearly provided for in the Supreme Court Rules. Rule
36(4) of the
Supreme Court Rules provides as follows:-
at the time of the hearing of an appeal, there is no appearance for
the appellant, and no written arguments have been filed
by him, the
court may dismiss the appeal and make such order as to costs as it
may think fit.
that an appeal dismissed in terms of this subrule may thereafter on
application by the appellant, be reinstated.
the first applicants counsel had bothered to read the Supreme
Court Rules, as he should have done, before launching this
he would have realised that the Rules provide what an
appellant wishing to have an appeal dismissed in circumstances of
is required to do to have the dismissed appeal
prepared to deal with this application as an application in terms of
section 36(4) of the Supreme Court rules. Mr Elliot,
for the respondent, objected to that course of action. While the
objection is certainly unreasonable and smacks of an attitude
should I be difficult when I can be impossible the objection is based
on a sound legal basis. A respondent is entitled to
know the case
he has to meet before coming to court. Mr Elliots
objection is sustained. To do otherwise would be to aid and abet
the crass ineptitude and inefficiency with which the Civil Division
of the Attorney-Generals office has handled this matter.
the result, while it is entirely open to the applicant to bring an
application in terms of Rule 36(4) of the Supreme Court Rules,
application is dismissed with costs.