Jacob Mafume and Arnold Batirai Dube and People's Democratic Party v Minister of Local Government and Public Works N.O. and Others

The first and second applicants were elected councilors for Wards 17 and 24 in Harare and Bulawayo respectively in July 2018 on tickets of the People's Democratic Party (PDP), which contested under the MDC-A coalition. The first applicant was also the Mayor of Harare. The PDP had split into two factions: PDP-T led by Tendai Biti and PDP-M led by Lucia Matibenga. In HC 5292/20, this court granted a default judgment declaring that the applicants belonged to PDP-T, that Settlement Chikwinya was the Secretary General of PDP-T, and that Benjamin Rukanda (seventh respondent) had no authority to act on behalf of PDP-T or recall its members. On 22 March 2022, the seventh respondent wrote to the Minister of Local Government (first respondent) purporting to recall the applicants on the basis they had joined the Citizens Coalition for Change (CCC). On 28 March 2022, the Minister declared the wards vacant and directed the Town Clerks to notify the Zimbabwe Electoral Commission to conduct by-elections. The applicants approached the court urgently to set aside the recall and interdict the respondents from acting on it.

• Whether the seventh respondent had authority to recall the applicants in light of the extant court order in HC 5292/20
• Whether the Minister's letter declaring the wards vacant was valid
• Whether the applicants established the requirements for a provisional interdict: prima facie right, well-grounded apprehension of irreparable harm, balance of convenience, and absence of alternative remedy
• Whether the matter was urgent
• Whether the interim relief sought was competent

A provisional order was granted in terms of the draft. The second to sixth respondents were interdicted from acting on or complying with the Minister's letter dated 28 March 2022. The Town Clerks were prohibited from notifying the Zimbabwe Electoral Commission of any vacancy in wards 17 and 24. If such notification had been made, the Electoral Commission was interdicted from acting on it. The letter by the seventh respondent dated 22 March 2022 was set aside as null and void and of no legal consequence. Costs were awarded against the first and seventh respondents.

A person who has been barred by court order from acting on behalf of a political party faction cannot purport to recall members of that faction, and any such recall letter is a nullity. Administrative actions taken in reliance on such a nullity are invalid and must be set aside. An extant court order remains binding on all parties until it is set aside by a competent court, and actions taken in contravention of such an order have no legal effect. For a provisional interdict to be granted, an applicant must establish: (1) a clear or prima facie right; (2) a well-grounded apprehension of irreparable harm; (3) that the balance of convenience favors the grant of the interdict; and (4) the absence of an alternative remedy. An interdict cannot be granted against past conduct but can properly restrain future actions that would give effect to unlawful past conduct.

The court observed that the seventh respondent's contradictory positions (claiming to be unaware of the court order while simultaneously asserting the PDP had met with full knowledge of it) smacked of dishonesty and lack of probity. The court noted that the seventh respondent was "simply an opportunist posing as the Secretary General for the PDP T." The court commented on the ritual of commencing almost every application with objections in limine. The court noted the irony that Mr Simango, who admitted in earlier proceedings that the PDP had split, now appeared for the respondent insisting the PDP was one. The court emphasized that political party members' constitutional rights under sections 56, 58, 67 and 68 cannot be violated through unlawful recall processes.

This case is significant in Zimbabwean law as it reinforces the principle that court orders must be respected and obeyed until set aside by a competent court. It demonstrates that actions taken in contravention of valid court orders are nullities and cannot form the basis for further administrative action. The case is important for electoral and local government law, protecting elected officials from unlawful recalls by persons who lack authority. It also affirms the requirements for provisional interdicts and the court's willingness to act urgently to protect constitutional rights under sections 56, 58, 67 and 68 of the Constitution of Zimbabwe. The judgment emphasizes that political party factionalism must be resolved through proper legal processes, and that unauthorized individuals cannot purport to act on behalf of party factions to which they do not belong.