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vs Clerk of Parliament - Patel J - High Court
Court of Zimbabwe
March 03, 2010
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MOSES MZILA NDLOVU
AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE
HIGH COURT OF
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
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.
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.
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.
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.
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 However, these objections were withdrawn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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