Morgan Richard Tsvangirai v The President of Zimbabwe, Robert Gabriel Mugabe and Others

The applicant, Morgan Richard Tsvangirai, in his official capacity as Prime Minister of the Republic of Zimbabwe and in his personal capacity, brought an application seeking a declaratur nullifying the appointment of the second to tenth respondents as provincial governors. The applicant argued that such appointments were ultra vires and/or in contravention of the Constitution of Zimbabwe. The appointments were made by the first respondent, President Robert Gabriel Mugabe, in his official capacity. The application was brought in the context of the Global Political Agreement governing Zimbabwe at the time. The respondents raised a preliminary objection (point in limine) that the applicant had failed to comply with Rule 18 of the High Court Rules, which requires leave of the court before suing out process against the President or judges of the High Court.

• Whether Rule 18 of the High Court Rules requiring leave to sue the President was validly complied with
• Whether the court could exercise its discretion under Rule 4C to condone non-compliance with Rule 18
• Whether Rule 18 remains valid law in light of constitutional and statutory provisions permitting proceedings against the President in his official capacity
• Whether the application against the President was frivolous and vexatious
• Whether the President could be sued in his official capacity without prior leave

The point in limine raised by the respondents was dismissed. The respondents were granted leave to file and serve their opposing papers within 10 days. The parties were directed to proceed in terms of the Rules of Court. The matter was set down for hearing on the merits on 10 July 2012 at 10:00 hours. Costs were reserved to be costs in the cause. Reasons were to be contained in the main judgment.

Rule 18 of the High Court Rules, requiring leave to sue the President, is inconsistent with and overridden by section 4 of the State Liabilities Act and section 31K of the Constitution, which permit proceedings to be instituted against the President in his official capacity as of right. Where there has been non-compliance with Rule 18, the court may exercise its discretion under Rule 4C to condone the departure from the rules in the interests of justice, particularly where the applicant has presented a substantial cause of action that is not frivolous or vexatious. The test is whether a reasonable court would have granted leave under Rule 18; if so, the court may condone non-compliance. Rule 18 was intended to prevent harassment by frivolous or vexatious claims, not to deny access to justice to persons with substantial causes of action.

The court observed that Rule 18 no longer has any place in the Zimbabwean legal system, having been superseded by superior legislation, and brought this to the attention of the Rules Committee for removal. The court noted that it retains inherent jurisdiction to determine whether any process issued against the President is frivolous and vexatious without the aid or hindrance of Rule 18. The court expressed the view that requiring dismissal followed by a fresh application for leave would be circuitous and unnecessary where the application clearly has merit. The judge commented that procedural expediency requires a practical approach where non-compliance with Rule 18 occurs but an arguable case devoid of frivolity is presented.

This case is significant for clarifying and reaffirming the ability to sue the President of Zimbabwe in his official capacity without requiring prior leave of court under Rule 18. It confirms the supremacy of constitutional and statutory provisions (section 31K of the Constitution and section 4 of the State Liabilities Act) over procedural rules. The judgment establishes that Rule 18 has effectively been superseded and should be removed from the High Court Rules. The case is important for access to justice, ensuring that substantial constitutional challenges of national importance are not blocked by procedural technicalities. It also demonstrates judicial willingness to interpret procedural rules purposively and to exercise discretion under Rule 4C in the interests of justice where matters of public importance are at stake.