Prime Minister Morgan Tsvangirai cannot directly sue President Robert Mugabe over his alleged unilateral appointment of 10 provincial governors without seeking leave to do so from the High Court, it was heard yesterday.
Representing Mugabe, Harare lawyer Terence Hussein said the case in which Tsvangirai is suing the President was therefore not properly before the court.
“This aspect is dealt with in rule 18 of the High Court which states that before taking any action or lawsuit against a sitting High Court judge or the President, leave must be sought from the court without which there cannot be any action against them,” Hussein said.
“In this application they have not sought leave and therefore there is no application for which the President can respond to. He is the Head of State and Commander- in-Chief of the Defence Forces and cannot be distracted from his duties by willy-nilly applications such as this one.”
But Tsvangirai’s lawyer Advocate Thabani Mpofu argued that Mugabe was being sued in his personal capacity and therefore rule 18 could not apply.
“Before the 1st Respondent (Mugabe) can rely on immunity it must be shown that the application before this court is frivolous and vexatious, without which provisions of rule 18 cannot apply,” Mpofu said.
Mpofu then sought leave to apply for condonation in the event the court ruled the matter could not be heard on merits, but Hussein opposed the application.
However, High Court Judge President George Chiweshe yesterday reserved judgment in the lawsuit.
Tsvangirai filed a lawsuit last November against Mugabe, alleging he violated the Constitution and the power-sharing agreement. The Premier said he sought the annulment of Mugabe’s alleged unilateral appointment of 10 provincial governors in October last year, which he alleged in court papers intentionally violated the Constitution.