Benjamin Jengwa and Others v Zimbabwe Teachers Association (ZIMTA)

The applicants sought an order to bar the respondent (Zimbabwe Teachers Association - ZIMTA) from conducting national elections which were scheduled to run from 22-25 April 2005 in Victoria Falls. The applicants had initially filed an urgent chamber application (HC 2766/13) to stop the elections, which was dismissed as not being urgent. They then filed an ordinary court application on 17 April 2013 seeking the same remedy. The respondent filed its opposing affidavit on 3 May 2013, after the elections had already been held. Despite being informed that the elections had taken place, the applicants persisted by filing an answering affidavit, heads of argument, and proceeded to argue the matter on 17 October 2013.

• Whether the court could grant an order barring elections that had already taken place
• Whether the application had been overtaken by events and become moot
• Whether costs on a higher scale were appropriate given the conduct of the applicants

The application was withdrawn with costs on a higher scale awarded against the applicants.

It is incompetent for a court to grant an order barring the conduct of elections which have already taken place. An application seeking such relief is fundamentally moot and overtaken by events, and must fail. Where applicants persist with an application despite knowing that the relief sought has become impossible due to supervening events, the court may express its displeasure by awarding costs on a higher scale.

The court observed that the applicants had acted improperly in persisting with the application even after the elections had been held and this fact had been brought to their attention. The court noted that applicants filed an answering affidavit, heads of argument, and argued the matter despite it being apparent from the onset that the order sought had been overtaken by events. This conduct justified the award of costs on a higher scale as a mark of the court's displeasure.

This case illustrates the Zimbabwean courts' approach to applications that have become moot or overtaken by events, and demonstrates the court's willingness to express displeasure through adverse costs orders where litigants persist with hopeless applications. It serves as a warning to litigants about the consequences of pursuing applications that no longer have any practical utility, particularly where this wastes judicial resources and causes unnecessary legal costs.