On 26 January 2002, in case HC 24/2002, the court issued a provisional order requiring the applicant (Registrar General of Elections) to publish notices for nomination of candidates for Harare City Council and mayoral elections to be held on 11 February 2002, as ordered by the Supreme Court in case SC 348/2001. However, the Electoral Act (Modification) (Postponement of Harare City Council Elections) Notice 2002 (S.I. 13A of 2002) ("the Notice") had been issued, which purported to postpone the elections to 9-10 March 2002 and declared that any court order would be of no effect. The applicant published the required notice on 1 February 2002 (instead of 31 January as ordered) and then sought to appeal the provisional order. The Supreme Court in SC 4/2002 directed the applicant to seek leave to appeal from the High Court. The applicant then applied for leave to appeal before Chinhengo J.
Leave to appeal was refused.
The phrase "any other law" in section 158(2)(a) of the Electoral Act does not include court orders. The provision empowers the President to suspend or amend provisions of statute law concerned with elections, but does not authorize the suspension or amendment of court orders. Where a statutory instrument purports to suspend a court order when the enabling provision does not specifically authorize such action, the statutory instrument is ultra vires the enabling provision. The use of the words "provisions of" in the context of "any other law" indicates that statute law was contemplated by the Legislature, not court orders.
The court observed that it would be absurd or at least inelegant to refer to "provisions of a court order." The court also noted that common law is likely not included in "any other law" in section 158(2)(a), particularly as there is no common law that applies to elections. The court commented that if the Legislature had intended to include court orders within the meaning of "any other law," it could have easily done so explicitly, as was done in the Notice itself. The court noted that the Notice's specific inclusion of the words "or court order" demonstrated an implicit recognition that court orders were not encompassed by the phrase "any other law" in the enabling provision.
This case is significant in Zimbabwean administrative and electoral law as it established important limitations on executive power to interfere with court orders through delegated legislation. It affirmed the separation of powers principle by holding that statutory provisions authorizing the President to modify or suspend "any other law" do not extend to suspending or amending court orders. The judgment reinforces judicial independence and the supremacy of court orders, preventing the executive from using broad statutory powers to circumvent judicial decisions. It also provides guidance on statutory interpretation of the phrase "any other law" in the Zimbabwean context, adopting the South African approach that such phrases refer to statute law of the same kind and do not include court orders or common law.