Obey Shava v President, Republic of Zimbabwe

The applicant, a member of the legal fraternity, sought to declare Statutory Instrument 127 of 2021 unconstitutional. The instrument was promulgated by the first respondent (President of Zimbabwe) on 26 May 2021 and published in the Government Gazette Extraordinary. The applicant claimed to have an interest in human rights and the rule of law and brought the application under s 85(1)(d) of the Constitution. The instrument defined the relationship between the Reserve Bank of Zimbabwe and bankers, foreign exchange dealers and traders. The second respondent (Minister of Finance and Economic Development) opposed the application, arguing that the applicant lacked locus standi as he had no direct or substantial interest in the instrument, and that the rights of bankers, foreign exchange dealers and traders were more proximately affected.

• Whether the applicant had locus standi to challenge the constitutionality of Statutory Instrument 127 of 2021
• Whether the applicant could bring the application in the public interest under s 85(1)(d) of the Constitution
• What constitutes a direct and substantial interest in constitutional litigation
• What is the proper test for public interest standing under s 85(1)(d) of the Constitution

The application was dismissed with costs.

Locus standi in constitutional matters requires a direct and substantial interest that is evident from the papers filed, not established through argument. A legal practitioner cannot claim standing to challenge legislation by purporting to represent classes of persons (such as bankers, foreign exchange dealers and traders) without actually representing specific clients from those classes. Public interest standing under s 85(1)(d) of the Constitution is reserved for marginalized or underprivileged persons who, due to poverty, disability or socioeconomic disadvantages, are unable to approach court to vindicate their own rights. Economically able parties who have the capacity to sue for themselves do not qualify for public interest representation, as they can vindicate their own constitutional rights.

The court observed that the applicant was "like a voice crying in the wilderness" and was "moaning more than the bereaved." The judge noted that the first and third respondents should be treated as not having opposed the application since they filed no notice of opposition or supporting affidavits, despite the second respondent's claim that they had authorized him to represent them. The court also commented that the applicant was inviting it to "walk with him along a garden path which leads to nowhere" and to "engage in an academic exercise which brings no meaningful result."

This case provides important guidance on the requirements for locus standi in constitutional challenges in Zimbabwe, particularly regarding public interest standing under s 85(1)(d) of the Constitution. It clarifies that: (1) locus standi requires a direct and substantial interest that is evident from the papers, not merely argued; (2) legal practitioners cannot assert standing simply by claiming to represent undefined classes of persons without actually representing specific clients; (3) the public interest ground under s 85(1)(d) is limited to cases involving marginalized or underprivileged persons who lack the capacity to vindicate their own rights due to poverty, disability or socioeconomic disadvantages; and (4) economically able parties such as bankers and traders cannot be the subject of public interest litigation as they have the means to pursue their own remedies. The judgment reinforces restrictive requirements for standing to prevent courts from engaging in academic exercises without real parties with concrete interests.