Constitutional Court
Mawarire v Mugabe NO & Ors
Chidyausiku CJ
open the right to seek relief in terms of s 24(1) to any and every citizen who is affected by a
failure by a public officer to uphold the law. Hence, the applicant states his Apprehension of
likely infringement of his rights under s 18(1 a) as follows:
"I also persist that the absence of Parliament is not only unconstitutional, and
thus lead to a rule by decree, but will also lead to a paralysis in governance.
In addition, the fact of the fourth respondent's insistence that elections can be
held as late as 30 October 2013, coupled with his insistence that the
Parliamentary vacuum that will eventuate between 29 June 2013 and 30
October 2013 is legal amounts to a violation, or likely violation, of my
fundaments rights under the Bill of Rights."
The pre-2009 discourse pertaining to the need to establish a right infringed or Likely to
be contravened under Chapter 3 before having recourse to s 24(1) is captured in the following
opinion in United Parties v Minister of Justice, Legal and Parliamentary Affairs and Ors
1997 (2) ZLR 254 CS):
"Much turns on the meaning of the phrase 'likely to be contravened'.
Certainly, it does not embrace any fanciful or remote prospect of the
Declaration of Rights being contravened. Nor does it refer to the Declaration
of Rights being liable to contravention ... Rather it means a reasonable
probability of such a contravention occurring."
In Tsvangirai v Registrar General and Ors 2002 (1) ZLR 268 (S) the following was said:
''The first observation to be made is that a bold, unsubstantiated allegation
will not satisfy the requirements of the section. The applicant must aver in his
founding affidavit facts, which is proved would establish that a fundamental
right enshrined in the declaration of rights has been contravened in respect of
himself ... (p. 25G to 271A)''
And:
"Although in the founding affidavit the applicant did not specify which
section of the Declaration of Rights was contravened .... I do not think that
the failure to do so is fatal (especially as) the omission was remedied by the
heads of argument filed by counsel for the applicant .. .." (p 276E-F).
See also: Catholic Commission for Justice and Peace in Zimbabwe v Attorney General and
Ors 1993 (1) ZLR 242 (S), and Law Society of Zimbabwe and Ors v Minister of Finance 1999
(2) ZLR 213 (S)
Even under the pre-2009 requirements, it appears to me that the applicant is entitled to
approach this Court for relief. Certainly, this Court does not expect to appear before it only
those who are dripping with the blood of the actual infringement of their rights or those who
are shivering incoherently with the fear of the impending threat which has actually engulfed
them. This Court will entertain even those who calmly perceive a looming infringement and
issue a declaration or appropriate order to stave the threat, more so under the liberal post-2009
requirements.
(b) When do harmonised general elections become due?
It is common cause amongst all the parties that Parliament shall stand dissolved, by the
affliction of time, on 29 June 2013. Whilst the papers before this Court are voluminous and at
times unnecessarily argumentative, the issue before this Court is in fact a simple one, which
can be reduced to one question - "When, after the accepted dissolution of Parliament by the
effluxion of time in terms of the Constitution should the harmonised elections be held?"
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