According to an opposing affidavit in Radio VOP’s possession filed by Mugabe’s lawyer, Maxwell Ranga, the application by Tsvangirai seeking to reverse the appointment of the 10 governors should be dismissed because Tsvangirai was “ill advised and rash in approaching” the High Court.
Ranga said in terms of Rule 18 of the High Court Rules, RGN1047/1971, it was not possible to sue a sitting President.
The rule reads: “No summons or other civil process of the court may be sued out against the President or against any of the judges of the High Court without the leave of the court granted on court application being made for that purpose.”
Ranga said it was clear from the said Rule that leave to institute proceedings against the President was required before an application could be instituted against him.
“The Applicant (Tsvangirai) has neither alleged that he obtained such leave, nor has he attached to this application proof of such leave. It is respectfully submitted that no such leave has been obtained in terms of the Rules of this Honourable Court,” said Ranga.
He added that this Rule had been the subject of a number of decisions of the High Court and of the Supreme Court of Zimbabwe and that these decisions had unequivocally stated that a failure to comply with this Rule was fatal.
“I am advised that this rule which is peremptory has been in existence in our statutes mutatis mutandis for the past seventy-one years and can be traced back to the 1939 Rules of this honourable court. It is pertinent to note that the Applicant (Tsvangirai) has not sought to explain why he has not complied with this mandatory legal position nor why he believes he should be exempt from compliance,” said Ranga.
He further added that President Mugabe was therefore not required to address any other issues raised in Tsvangirai’s lawsuit as the objection raised was dispositive of the matter.
“The First Respondent (President Mugabe) will suffice to say at this stage, that the Applicant (Tsvangirai) has been ill-advised and rash in approaching this Honourable Court. The political posturing exhibited in the Court Application has very little to do with legal rights but more to do with grandstanding for an audience which will not be found in the dignified forum of this Honourable Court,” reads part of Mugabe’s affidavit.
The lawyer said President Mugabe humbly prayed that “this ill-conceived application” be dismissed as the Rule relating to the requirement to seek leave was clear and unambiguous and had been frequently clarified by the High Court.
Tsvangirai maintains that as Prime Minister of Zimbabwe as defined in the Global Political Agreement signed by the three principals, Mugabe should have consulted him before re-appointing the governors.