Prime Minister Morgan Tsvangirai’s lawyer has received a letter from President Robert Mugabe’s lawyer stating his intention to apply directly to the Supreme Court for leave to appeal the High Court decision blocking his appeal over his appointment of governors which Tsvangisai says was illegal.

The law states that if a High Court judge refuses leave to appeal, a Supreme Court judge may nevertheless grant leave to appeal,  only to deal with the preliminary technical objection that will be up for discussion. 

When the application is made, it will be dealt with either by the Chief Justice or by one of the other Supreme Court judges to whom it is allocated by the Chief Justice.

According to Veritas the effect of this is that Justice Chiweshe cannot set a date for the hearing of  Tsvangirai’s main application in the High Court to argue the real constitutional issue.

"The President’s determined efforts to put an end to this case with his technical objection have up to now caused long delays preventing Mr Tsvangirai from having his day in court over the real issue in the case: whether the President breached the Constitution when he unilaterally appointed the provincial governors, and, if so, what the courts can or will do about it," said a spokesman for Veritas. 

Background 

In November 2010 Prime Minister Tsvangirai launched a High Court case seeking an order setting aside the President’s appointment earlier that year of ten ZANU-PF provincial governors.  His complaint was that the President had not secured his agreement to these appointments, although he was required to do according to Schedule 8 to the Constitution, incorporating Article 20 of the GPA, which provides for key appointments to be made by the President in consultation with the Prime Minister

President’s technical objection 

The President’s lawyer, Mr Hussein, objected to Mr Tsvangirai’s application on the grounds that Mr Tsvangirai had gone to court without first obtaining leave to do so from a High Court judge, arguing this was required by rule 18 of the High Court Rules.

Objection rejected 

It was not until 11th June this year, that Judge-President Chiweshe, who was the High Court judge hearing arguments for and against the President’s technical objection, ruled the objection not valid and that the main case should go ahead in the High Court; and the date was set for the 10th July.

President asks for leave to appeal to Supreme Court 

The President’s lawyer promptly filed an application for leave to appeal to the Supreme Court against this ruling.  This resulted in the High Court hearing set down for 10th July being indefinitely postponed pending a decision on the appeal application.  On 26th June Justice Chiweshe heard argument from sides on this application, and reserved his judgment.

Leave to appeal denied 

On 24th July Justice Chiweshe dismissed the President’s application for leave to appeal.  He said the proposed appeal had no prospect of succeeding, because the Supreme Court has already decided in a previous case that, notwithstanding Rule 18, the President can be sued in his official capacity without prior leave from a High Court judge.  No date was set for the main case to proceed.