Mlindazwe Sithole v Michael Mhene and David Tizauone

The applicant was employed as a Township Superintendent by Gokwe Town Council. In October 2013, he was arrested by the 2nd respondent (a Detective Sergeant) on a charge of criminal abuse of office relating to the re-allocation of a stand. The 1st respondent (a Public Prosecutor) prosecuted the matter. Applicant subsequently issued summons claiming US$50,000 in damages for malicious arrest and prosecution, contumelia, and special damages. Both respondents entered appearance to defend through the Prosecutor General's office on 18 February 2014, and later filed another notice of appearance through the Civil Division of the Attorney-General's Office on 25 February 2014. The Prosecutor General's Office also filed a plea on behalf of the 2nd respondent on 20 February 2014, and a special plea was filed on 25 February 2014. When applicant attempted to serve replications, officers at the Prosecutor General's office disowned the respondents' papers and refused service. The applicant then filed a chamber application seeking directions to expunge all the respondents' filed documents on the basis that the Prosecutor General's Office had no mandate or locus standi to represent individual respondents in civil proceedings, and that the Attorney-General's Office had not yet been constituted under section 114 of the new Constitution.

• Whether the Prosecutor General's Office had the mandate and locus standi to represent individual respondents in civil proceedings under the transitional provisions of the Constitution of Zimbabwe Amendment (No. 20) Act 2013
• Whether the filed notices of appearance to defend and pleas were nullities due to being filed by entities without constitutional authority
• The proper interpretation of the Sixth Schedule (sections 329 and 332) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 relating to transitional provisions for the Prosecutor General

The application was dismissed in its entirety. Costs were ordered to be in the cause.

During the transitional period following the enactment of the Constitution of Zimbabwe Amendment (No. 20) Act 2013, and pursuant to paragraph 19 of the Sixth Schedule, the Prosecutor General's office was authorized to continue performing functions previously exercised by the Attorney General's office, including civil litigation on behalf of state employees, until the new Attorney General was appointed. The divisions that fell under the Attorney General's office continued to fall under the Prosecutor General's office during the transitional period. The person who held office as Attorney-General immediately before the effective date of the new Constitution continued in office as Prosecutor-General and could exercise both sets of functions during the transition.

The court observed that any interpretation other than allowing the Prosecutor General to perform the Attorney General's functions during the transition would result in a lacuna causing chaos and confusion in the manner in which Government conducted its litigation and other business. The court also noted, without elaborating, that issues regarding the special plea could be dealt with in terms of the rules of court, suggesting there were alternative procedural remedies available to address any irregularities in that pleading.

This case is significant in Zimbabwean constitutional law as it provides judicial interpretation of the transitional provisions in the Sixth Schedule of the Constitution of Zimbabwe Amendment (No. 20) Act 2013. It clarifies the continuity of government legal representation during the constitutional transition period between the old Attorney General's office and the establishment of the separate offices of Prosecutor General and Attorney General. The judgment establishes that during the transitional period, the Prosecutor General could exercise functions that would later fall under the Attorney General's office, ensuring continuity in government litigation and preventing a vacuum in legal representation. This pragmatic interpretation prevented chaos in the administration of justice during the constitutional transition.