So High Court Judge George Chiweshe has gone away to consider his verdict on whether President Mugabe should be allowed to appeal to the Supreme Court against a decision allowing Prime Minister Morgan Tsvangirai to sue him for making senior appointments without consultation.

Tsvangirai says Mugabe violated the constitution and he does not need to apply for permission from the court to seek constitutional justice. Mugabe says he does. Justice Chiweshe has heard the arguments. A decision aganist Tsvangirai might render the whole case academic unless the Supreme Court acts quickly.

Justice Chiweshe initially dismissed Mugabe’s objection to allowing the Prime Minister to appeal to the courts over his violation of the Constitution which clearly states that all senior appointments in government should be done in consultation with the Prime Minister.

But President Mugabe last week appealed to the Judge, arguing that prospects were high that the Supreme Court would agree with him that Rule 18 requires Tsvangirai to seek permission of the court first to sue him for violating the Constitution.

His lawyer said the court had erred in not accepting that in terms of Rule 18 and common law, leave to sue the President should first be sought and granted before instituting legal proceedings against him in the High Court.

Tsvangirai’s lawyer, however, said that Rule 18 no longer had any place in the country’s legal system as it had been superseded by superior legislation, a fact which had already been confirmed by the Supreme Court, so the High Court had inherent jurisdiction to determine, without the aid or hindrance of Rule 18, whether any process issued against the Office of the President is frivolous and vexatious and whether it ought to be dismissed on that basis.

Even assuming Rule18 was still part of Zimbabwe’s laws, the High Court had discretion in terms of Rule 4C to depart from its provisions in the interests of justice, he argued. Justice Chiweshe had already agreed with him, saying: “…the Supreme Court has ruled that the Rule falls foul of constitutional and statutory provisions” when he dismissed the application.

Secretary for Justice and Legal Affairs Mr David Mangota had previously submitted in an affidavit that Justice Chiweshe’s decision would set a bad precedent, entitling all who believe they have a claim against the President to lodge such claims in the High Court without first seeking leave to do so.

“The Office of the President is an extremely important national institution and cannot be weighed down by what amounts to spurious wish lists presented to it through unprocedural court proceedings,” he stated in the affidavit.

His plea that the Supreme Court be allowed to decide on this was dismissed by Tsvangirai’s lawyer who said Justice Chiweshe’s ruling was a mere procedural ruling, which cannot be appealed against, even with leave of the judge.

The ball is still in Justice Chiweshe’s court and his decision will also determine whether the case will become a mere academic exercise in law or whether it will actually grant some relief to Tsvangirai. For it to do so it would have to be treated as an urgent matter by the Supreme Court in the shorted possible time, since the government has less than 12 months left in office.

The ramifications are significant as we reported here.