Prof Jonathan Moyo and Margret Dongo v President Robert Mugabe N.O. and Zimbabwe Electoral Commission and Minister of Justice Legal and Parliamentary Affairs

The applicants, a sitting Member of Parliament and an aspiring candidate, filed an urgent application challenging Proclamation 2 of 2008, which set the nomination court date for 8 February 2008. They argued that the proclamation was defective because it did not comply with s 61A(11) of the Constitution, as the President failed to publish ward and constituency boundaries before setting the nomination date. On 24 January 2008, the President dissolved Parliament and fixed 29 March 2008 for general elections. On 1 February 2008, Proclamation 3 of 2008 was published setting out constituency boundaries but incorporating ward boundaries by reference to the Zimbabwe Electoral Commission's Delimitation Report. On 6 February 2008, the President postponed the nomination court date to 15 February 2008 via Proclamation 4 of 2008. The applicants claimed they could not adequately prepare for nominations and that Proclamation 3 was defective as it did not describe wards in full but only incorporated the Delimitation Report by reference.

• Whether the matter was urgent at the time of hearing given that the nomination court date had been postponed
• Whether Proclamation 3 of 2008 complied with s 61A(11) of the Constitution by incorporating the Delimitation Report by reference rather than describing ward boundaries in full
• Whether punitive costs de bonis propris should be awarded against the applicants' legal practitioners

Application dismissed with costs on the ordinary scale

A presidential proclamation declaring ward and constituency boundaries complies with s 61A(11) of the Constitution when it incorporates by reference the Zimbabwe Electoral Commission's Delimitation Report containing the ward boundary descriptions, provided the proclamation specifies where the Report may be inspected. Incorporation by reference makes the referenced document part of the proclamation itself. A matter is not urgent when the relief sought has been overtaken by events or where there is no evidence of actual prejudice or attempts to access publicly available information after its lawful publication.

The court observed that the Electoral Court was established to enable every person with a grievance about election conduct to approach the court for relief. While courts frown on frivolous applications and may award punitive costs, an order for costs de bonis propris against legal practitioners is not lightly given and is reserved for cases of abject dereliction of duty. In borderline cases involving interpretation of newly enacted provisions, courts should err on the side of leniency. Public bodies like the Zimbabwe Electoral Commission, being involved in running elections, will invariably be called upon to explain their actions to affected persons, which is a normal incident of their functions.

This case establishes important principles regarding electoral law challenges in Zimbabwe. It clarifies that incorporation by reference in a presidential proclamation is sufficient to comply with constitutional requirements to publish ward and constituency boundaries. The judgment reinforces the test for urgency in electoral matters, requiring that the matter cannot wait and that irreparable harm will result. It also confirms that while the Electoral Court is accessible for election grievances, applications must still meet procedural requirements of urgency and be supported by evidence. The case demonstrates judicial restraint in awarding punitive costs against legal practitioners in electoral matters involving interpretation of new constitutional provisions, recognizing the public interest in enabling access to the Electoral Court.