Masimba Kuchera and Others v The Minister of Justice, Legal and Parliamentary Affairs

The first and second applicants were visually impaired persons, and the third applicant was physically handicapped without use of his arms and legs. All three were registered voters wishing to exercise their rights in the elections scheduled for 29 March 2008. On 17 March 2008, the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No 2) Regulations, 2008 SI 43/2008 were promulgated. These Regulations allowed a police officer to be present and assist voters who required assistance due to incapacity. The applicants challenged these Regulations and sections 59 and 60 of the Electoral Act as amended by the Electoral Laws Amendment Act, 2007, arguing they violated their rights. The applicants sought urgent relief four days before the elections to suspend the operation of these provisions and allow them to be assisted by persons of their own choice when voting.

• Whether the application was urgent and properly brought as an urgent chamber application
• Whether a court has power to suspend the operation of legislation
• Whether the Presidential Powers Regulations were ultra vires the Presidential Powers (Temporary Measures) Act
• Whether sections 59 and 60 of the Electoral Act and the Presidential Powers Regulations violated the constitutional rights of disabled voters
• Whether a final order could be granted in urgent chamber proceedings without citing the Attorney General

The application was dismissed with costs on the basis that it was not urgent. The court declined to grant any of the relief sought, including suspension of the Presidential Powers Regulations or sections 59 and 60 of the Electoral Act for the elections on 29 March 2008.

The binding legal principles established are: (1) A court has no power to suspend the operation of legislation, whether an Act of Parliament or subordinate legislation such as regulations - such provisions remain in full force until declared void and set aside; (2) Urgency for purposes of urgent chamber applications does not arise from deliberate or careless abstention from action until a deadline approaches - applicants who sit on their rights until the eleventh hour cannot claim urgency; (3) Final relief cannot properly be granted in urgent chamber proceedings where only a prima facie case need be established; (4) The Attorney General must be cited in all matters involving the striking down of legislation to allow the government's chief legal advisor an opportunity to make submissions.

The court made non-binding observations that: (1) The circumstances under which four persons (presiding officer, two electoral officers, and a police officer) acting together would conspire to interfere with a disabled voter's rights would be difficult to imagine; (2) The Presidential Powers Regulations could not be viewed in isolation but must be examined in the context of the overall assistance provisions in sections 59 and 60 of the Electoral Act; (3) The position might have been different had the Regulations sought to remove the other three assistants and substitute them with only a police officer; (4) If the third applicant could sign so elegantly before the Commissioner of Oaths, he should be able to place an X on the ballot paper; (5) The applicants had raised serious concerns about the use of Presidential Powers and constitutionality that deserved proper consideration with appropriate parties cited and adequate time for preparation; (6) It would be improper for a court to make final determinations on important constitutional issues where the respondent had only three hours notice before argument.

This case is significant in Zimbabwean jurisprudence (though it is a Zimbabwean case, not South African) for establishing important principles regarding urgent applications and the limits of judicial power over legislation. It reinforces that courts cannot suspend the operation of legislation even temporarily, that self-created urgency will not be indulged, and that proper procedures including citation of the Attorney General must be followed when challenging the validity of legislation. The case also demonstrates the high threshold for obtaining urgent relief and the court's careful approach to constitutional challenges brought on short notice without proper procedure.