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Moyo vs Clerk of Parliament - Patel J - High Court
High Court of Zimbabwe
March 03, 2010

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JONATHAN NATHANIEL MOYO
and
MOSES MZILA NDLOVU
and
PATRICK DUBE
and
SIYABONGA NCUBE
versus
AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE
and
LOVEMORE MOYO

HIGH COURT OF ZIMBABWE
PATEL J

Opposed Application

HARARE, 9 July 2009 and 9 March 2010

Mr. T. Hussein, for the applicants
Ms. Damiso, for the 1st respondent
Adv. Chaskalson, for the 2nd respondent

PATEL J: The applicants in this matter are all duly elected Members of Parliament. The 1st respondent is the Clerk of Parliament, cited herein in his official capacity. The 2nd 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 2nd respondent’s election as Speaker on several grounds. They originally sought an order setting aside the 2nd 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 1st 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 Order Nos. 4 and 6.

According to the applicants, what ensued in Parliament thereafter was chaotic and disorderly and quite contrary to the requirements of a secret ballot. The 1st 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 2nd 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 his opposing papers, the 2nd respondent questioned the jurisdiction of this Court and the nature of the relief claimed by the applicants. In particular, it was averred that the matter fell within the purview of Parliamentary privilege and was therefore not justiciable and that the declaratory relief sought by the applicants could not properly be granted in the circumstances of this case. However, these objections were withdrawn and not specifically pursued by counsel at the hearing of this matter.

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