Zimbabwe Anti-Corruption Commission v The Clerk of Court Harare Criminal Magistrates Court N.O and Others

The Zimbabwe Anti-Corruption Commission (ZACC) arrested the ninth respondent, Maxmore Njanji, on 30 June 2022 on charges of contravening section 173 of the Criminal Law (Codification and Reform) Act and the Money Laundering and Proceeds of Crime Act. He was placed on remand with bail conditions including surrendering his passport. On 8 September 2022, the second respondent (a magistrate) granted the ninth respondent's application for temporary release of his passport until 30 September 2022. ZACC learned of this from a Herald online publication on 9 September 2022. On 21 September 2022, the third respondent ordered the release of the passport to the ninth respondent after he complained that ZACC had blocked the temporary release. ZACC filed an urgent chamber application on 23 September 2022 seeking to have the order of 21 September declared a nullity and directing the National Prosecuting Authority to notify it of all proceedings relating to matters it brings for prosecution.

• Whether the application met the requirements of urgency
• Whether the certificate of urgency was valid when it predated the founding affidavit
• Whether ZACC had locus standi to seek the relief claimed
• Whether ZACC had a right to be notified of all court proceedings relating to accused persons it arrests
• Whether the requirements for a mandatory interdict/mandamus were met

The application was struck off the roll with costs.

A certificate of urgency is fatally defective when prepared before the founding affidavit exists, as the certifying legal practitioner cannot have properly applied his mind to non-existent facts. An anti-corruption commission's constitutional mandate to investigate corruption and refer cases for prosecution does not confer locus standi to direct courts or prosecuting authorities on how to conduct proceedings or to demand notification of all court proceedings relating to accused persons it arrests. Constitutional bodies must operate within their prescribed mandates and cannot exercise oversight over other independent constitutional bodies unless expressly empowered by law. Self-created urgency through delay in bringing an application, particularly after the event giving rise to the application has already occurred, defeats the requirement of urgency.

The court observed that every litigant wishes to have their matter heard urgently, but not every matter meets the requirements of urgency. Urgent applications are only appropriate where failure to act would render the eventual relief nugatory. The court noted that ZACC appeared to be attempting to impose itself on other constitutionally established bodies, and emphasized that while constitutional bodies must cooperate with each other for proper administration of justice, none should exercise an oversight role over others unless expressly authorized by law. The court commented that the application appeared to be filed merely to show ZACC's intention to impose itself on other bodies, rather than to achieve real and substantial justice. The judge also noted that magistrates, as judicial officers, are not subject to the control or direction of anyone in the discharge of their judicial functions and work independently of all independent commissions, including ZACC.

This case is significant for clarifying the limits of ZACC's constitutional powers under section 255 of the Zimbabwe Constitution. It establishes that ZACC's mandate is limited to investigating corruption and referring cases for prosecution, and does not extend to supervising or directing the judiciary or prosecuting authorities in how they conduct proceedings. The judgment reinforces the principle of institutional independence among constitutional bodies and emphasizes that anti-corruption commissions cannot encroach upon the functions of other constitutional organs. It also provides guidance on the requirements for valid certificates of urgency and the doctrine of self-created urgency in urgent chamber applications.