Raymond Majongwe and Others v The President of the Republic of Zimbabwe N.O. and Others

The applicants participated in Zimbabwe's constitution-making process led by the Constitutional Parliamentary Committee (COPAC), which held stakeholder conferences and produced a final draft Constitution on 31 January 2013. The applicants were dissatisfied with the draft and publicly adopted a "VOTE NO" stance for the Constitutional Referendum. On 15 February 2013, the first respondent proclaimed 16 March 2013 as the Referendum date through Proclamation No. 1 of 2013. COPAC subsequently issued a public notice on 20 February 2013 announcing public awareness campaigns urging a "VOTE YES" commencing on 25 February 2013. The applicants wrote to the second respondent on 25 February 2013, alleging that COPAC's partisan stance violated their constitutional rights to freedom of assembly and association, and that COPAC was unduly influencing the electorate. The second respondent responded on 26 February 2013, but the applicants did not pursue the matter further until filing an urgent application on 13 March 2013, two days before the scheduled Referendum.

• Whether the matter qualified as urgent to justify being heard on an urgent basis
• Whether the Proclamation setting the Referendum date gave insufficient time for the applicants to exercise their political rights
• Whether COPAC's conduct in advocating for a 'VOTE YES' campaign violated the applicants' constitutional rights
• Whether the Zimbabwe Electoral Commission failed to meaningfully address the applicants' concerns
• Whether the Zimbabwe Broadcasting Corporation failed to provide fair and balanced coverage

The application to hear the matter on an urgent basis was refused with costs. The application was removed from the roll.

In constitutional matters, an order of urgency is only granted in the clearest and most exceptional cases. An applicant seeking to have a constitutional matter heard on an urgent basis must demonstrate in the founding affidavit and certificate of urgency factors that distinguish the case from others to justify preferential treatment without breach of the principle that similarly situated litigants are entitled to be treated alike. Urgency which stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the Rules. What constitutes urgency is not only the imminent arrival of the day of reckoning but also whether, at the time the need to act arises, the matter cannot wait. Self-created urgency will not be countenanced by the courts. An application stands or falls on the founding affidavit, which must adequately address the question of urgency even where a certificate of urgency is filed.

The Court noted that had the matter proceeded to the merits, various defenses were available to the respondents. The Court observed that the second respondent had raised the point that the remedy for alleged infringement of rights was provided for in section 161 of the Electoral Act, which gave the Electoral Court the power to review decisions made by the Commission. The Court also noted the first respondent's argument that the applicants failed to assert that the date declared for the Referendum was irrational, and that no grounds had been presented to justify a declaration that the Proclamation was ultra vires section 23A(1)(c) of the Constitution. Additionally, the Court acknowledged the fifth respondent's submission that COPAC was a creation of Article 6 of the Global Political Agreement, meaning any expectation that it would be non-partisan was not supported by the enabling Agreement. The Court emphasized that the requirement for a certificate of urgency does not obviate the need to relate to the question of urgency in the founding affidavit.

This case is significant in South African and Zimbabwean jurisprudence for establishing important principles regarding urgent applications in constitutional matters. It reinforces that constitutional urgency is an extraordinary remedy granted only in the clearest cases, requiring applicants to demonstrate exceptional circumstances justifying preferential treatment over other litigants. The judgment clarifies that self-created urgency through delay and inaction will not be countenanced by the courts, even in constitutional matters involving fundamental rights. It emphasizes the principle of equality of treatment among litigants and confirms that both the certificate of urgency and the founding affidavit must adequately address the question of urgency. The case also illustrates the principle that an application stands or falls on its founding affidavit and that urgency which stems from deliberate or careless abstention from action until a deadline approaches is not the type of urgency contemplated by procedural rules.