Justice Katiyo Attacked For Making A Ruling, Is This Fair? | MAVAZA
16 August 2023
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By Dr MASIMBA Mavaza | OPINION | The CCC and its pathetic publicist Hopless Chin’ono are at it again. This time misleading the public and the election observers over the case where The High Court has rejected the opposition Citizens Coalition for Change’s (CCC) application to compel the Zimbabwe Electoral Commission (ZEC) to release the final voters’ roll, stating that the matter is not urgent.
Through their lawyers the CCC sought the High court to issue an order as in their draft order which is
“The Respondents to be directed to immediately publish a final List of Polling Stations which includes providing applicants with an up-to-date copy of the voters roll which is compliant with the peremptory provisions of section 21 of the Electoral Act in that it should:
Show all polling stations that will be used in the 2023 harmonised elections and have the same number of polling stations as the number in the final List of Polling Stations published by ZEC; Use the same names for polling stations as the names of the polling stations that will be used during the 2023 harmonised election and show the full and complete name of each polling station;Use the same ward and constituency boundaries as those that will be used during the 2023 harmonised elections;
Be fully searchable and analysable and in a format such as CSV, Excel or Access files.
Polling station codes;
The voter population of each polling station.

It is important to understand
the use of urgent chamber applications in the High Court. Put briefly, an urgent application is an application in which the applicant does not follow the normal process because they cannot afford to wait to ask a court for help. The client immediately approaches the court with an application that does not meet the prescripts of the Uniform Rules of Court and is unique.
This is a word that is sometimes used in ignorance as to what it means in the context of legal proceedings. Clients often want their matters to be dealt with by the courts urgently.

So urgent applications are made where an applicant considers the relief sought to be urgent. In such cases the Court first decides whether the matter is urgent before considering the merits, also called the substantive issues.
So the high court judge His honour judge Never Katiyo was seized with the task of deciding whether the issues raised makes the case an urgent application. The case may look urgent but the issue prayed for in the application even if it looks urgent it’s aim is hidden. The judge is bound by law to look at the consequences of the order he is about to give.

Firstly is the case urgent?
High Court rules of 2021, Rule 60 of the High Court Rules, 2021 (“the Rules”) provide for chamber applications. Rule 60(1) thereof states that: “A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form No. 25 duly completed and, except as is provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies. Provided that, where a chamber application is to be served on an interested party, it shall be in Form No.23 with appropriate modifications”

Rule 60(6) states that:
“Where a chamber application is accompanied by a certificate from a legal practitioner in sub rule 4(b) to the effect that the matter is urgent, giving reasons for its urgency, the registrar shall immediately submit it to the judge, handling urgent applications who shall consider the papers forthwith.”

According to rule 60(18) if the Judge considers the application not urgent he or she will strike it off the roll of urgent applications. Please note that at this stage the matter has not been heard on the merits. The Court has simply said the matter is not urgent. The according to rule 60(19) an urgent application that is struck off shall be referred to the roll of ordinary court applications and it shall not be necessary for the applicant to file a fresh application.

An applicant, his or her legal practitioner, has to convince the court that a matter is urgent. The court considers ceA AS rtain factors explained hereunder.
Requirement for a certificate of urgency from a legal practitioner
The starting point is that there has to be a certificate from another lawyer to the effect that the matter is urgent, per rule 60(6).According to the said presentation, under the old rules, in the case Chidawu & Ors v Sha & Ors 2013, the Supreme Court held as follows:

“It follows that a certificate of urgency is the sine qua non for the placement of an urgent chamber application before a judge. In turn the judge is required to consider the papers forthwith and has the discretion to hear the matter if he forms the opinion that the matter is urgent. In making a decision as to the urgency of the chamber application the judge is guided by the statements in the certificate by the legal practitioner as to its urgency in certifying the matter as urgent.”

The learned judge Justice Chatikobo in 1998 in the case ofKuvarega v Registrar General & Anor, 1998, he said
“What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if at the time the need act to arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timeous action if there has been any delay”.
In this case which CCC is trying to incite violence by telling the public wrong facts Justice Katiyo applied his wisdom and knowledge of the law. After reading and understanding the documents lodged before him he came to a conclusion that the matter was not urgent and what is being prayed for is not urgent.
It has to be taken into account bearing in mind the dicta by Justice Chatikobo that has any application made before. Did the applicants wait for the deadline?in the case before Justice Katiyo it was important to note that all parties must be ready for elections by now. They have been preparing for these elections for the past five years. Procrastination is a thief of time. Now the case has become a constitutional issue. Courts are not there to conduct elections. Surelly why were they holding meetings to agree on non violence issues with ZEC without bringing the so called urgent issue up. Why bringing the issue at 11:59 to elections. The actions of the CCC are the ones described by Justice Chatikobo as last minute trials which are meant to disturb a constitutional process “the election “The effect of such an application is to stop the whole election which is not Constitutional. CCC is trying to use the courts to postpone tne elections. Where were they and are they the only party involved in these elections. Which ammendent are they talking about in this case and have they just seen it today. Is it a fact that there is an ammended voters roll. Is it what they are refferring to. The CCC has always played with people’s emotions. If they gave ZEC 48 hours to respond why are they seeking a different relief.

It is very clear that CCC is not ready for these elections so they just want to whip emotions into the public. CCC’s Strategy of ambuguity is backfiring in this and it’s a shame that the sought to blame the impartial and legal fountain Justice Katiyo. They have thelseves to blame.
CCC has realised that they will lose come 23 August. So they are using the courts to stop the elections. In Shona kurova Imbwa vaka viga mupinyi.”
We are left with six days to elections and this frivolous vague and misleading application which is embarrassing is pushed infront of the courts hoping that the election will be stopped by the courts.

Now in a malicious and unprecedented way they have published the judge’s phone number so that the judge be intimidated by the callers. Now they are using judge intimidation as a means to get what they want. It is witch craft to publish the judges number and ask people to call the judge.

They have resorted to the court of public opinion and judge intimidation. In the mean time they have requested the judge to address them on the issue of urgency and yet they are already makng noise.
What CCC must tell their noise makers is that when you receive an urgent chamber matter you can read and endorse not urgent if it’s not urgent. But if the party feels has to address and convince the judge they are free to do so. This is what they should have done first before insulting the judicial system. Public does not know this because the CCC is not generous with the truth.
It is important to borrow some legal understanding from Marah JP as she was stated her understanding of CHATIKOBO J as follows: “I understand CHATIKOBO J in the above remarks to be saying that a matter is urgent if when the cause of action arises giving rise to the need to act the harm suffered or threatened must be redressed or arrested there and then for in waiting for the wheels of justice to grind at their ordinary pace, the aggrieved party would have irretrievably lost the right or legal interest that it seeks to protect and any approaches to Court thereafter on that cause of action will be academic and of no direct benefit to the applicant”. So coming to court at the eleventh hour was academic.

It is true that urgency is a matter of both time and harm. In the case of Gwarada v Johnson & Ors, 2009 in which the Court stated that: Urgency arises when an event occurs which requires contemporaneous resolution, the absence of which would cause extreme prejudice to the applicants.
The existence of circumstances which may, in their very nature, be prejudicial to the applicant is not the only factor that a Court has to take into account, time being of the essence in the sense that the applicant must exhibit urgency in the manner in which he has reacted to the event or the threat, whatever it may be. For the past five years CCC only reacted now.

In May 2023 the Zimbabwe Electoral Commission (ZEC) has said everyone who registered to vote will not be disenfranchised as the electoral body will rectify any anomalies that will be detected during the ongoing voters roll inspection exercise.
ZEC opened the voters roll for inspection in May and the process was extended.
ZEC was very clear that more than 11 000 centres have been opened countrywide to enable voters who registered on or before April 28 to check their registration details. So the complaint that the polling stations are now twelve thousand is not an issue. ZEC had said it clearly that it was over 11000 so 12 thousand is over than 11thousand.
Apart from the physical assessment of the voters roll, Econet and NetOne mobile phone subscribers were able to check their registration status using the *265# facility. At that time CCC was covered in the state of ambiguity. Now they want to spread the fruits of ambiguity to the courts. The fruits of ambiguity is confusion.
In a contemptuous and criminal way anither criminal responded to Justice Katiyo’s ruling, expressing concerns in an open letter to election observers. He questioned how the matter of accessing the voters’ roll could be deemed non-urgent, as it is a fundamental aspect of the forthcoming election, potentially impacting its credibility and fairness.
This criminal is quick to sale his warped unpatriotic mind to the observers just for him to seek relevance. Observers should look at the law.
The CCC requests that the respondents be and are directed to immediately publish a final List of Polling Stations. They make such an application without knowing wether ZEC has such a list.
When you consider how many applications are struck off the roll in our courts for lack of urgency every week, then it may be that not all practitioners grasp the essence of when an application will pass muster as urgent. The lawyers in the CCC case have faile to grasp set the correct principles for determining when a matter is urgent to better enable them to advise their clients correctly and sharpen up their drafting skills when it comes to preparing papers for an urgent application.
Put briefly, an urgent application is an application in which the applicant does not follow the normal process because they cannot afford to wait to ask a court for help. The client immediately approaches the court with an application that does not meet the prescripts of the Uniform Rules of Court and is unique. At the hearing, they must first convince the court that their application is urgent, so that the court will grant them condonation for not following the Rules and permit them to enroll their application on the Urgent Roll for immediate hearing, despite its defects.
In urgent applications the court or a judge may dispense with the forms and service provided for in these rules and may dispose of such matter at such time and place and in such manner and in accordance with such procedure (which shall as far as practicable be in terms of these rules) as it deems fit.
(b) In every affidavit or petition filed in support of any application , the applicant must set forth explicitly the circumstances which is averred render the matter urgent and the reasons why the applicant claims that applicant could not be afforded substantial redress at a hearing in due course.
A person against whom an order was granted in such person’s absence in an urgent application may by notice set down the matter for reconsideration of the order.”

Granted, it is natural to see harm as the equivalent of urgency, since without harm or some threat there would never be a need to bring an urgent application. However, the notions of harm and a lack of substantial redress in due course should be kept separate, and the test for urgency should not be obscured by a confusion between the two.

More importantly, the Applicant must state the reasons why he claims that he cannot be afforded substantial redress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in an application in due course. The rules allow the court to come to the assistance of a litigant because if the latter were to wait for the normal course laid down by the rules it will not obtain substantial redress.
It is important to note that the rules require absence of substantial redress. This is not equivalent to the irreparable harm that is required before the granting of an interim relief. It is something less.

He may still obtain redress in an application in due course but it may not be substantial. Whether an applicant will not be able obtain substantial redress in an application in due course will be determined by the facts of each case.”
The import of this is that the test for urgency begins and ends with whether the applicant can obtain substantial redress in due course. It means that a matter will be urgent if the applicant can demonstrate, with facts, that he requires immediate assistance from the court, and that if his application is not heard earlier than it would be in due course, any order that he might later be granted will by then no longer be capable of providing him with the legal protection he requires.

As such, harm does not found urgency. Rather, harm is a mere precondition to urgency. Where no harm has, is, or will be suffered, no application may be brought, since there would be no reason for a court to hear the matter. However, where harm is present, an application to address the harm will not necessarily be urgent. It will only be urgent if the applicant cannot obtain redress for that harm in due course. Thus: harm is an antecedent for urgency, but urgency is not a consequence of harm.

It should be as well important to understand that ZEC chief elections officer Mr Utloile Silaigwana has always said the electoral management body is transparent in its operations hence its decision to take the voters roll to the doorstep of communities.

“Why does ZEC take the voters roll to the people? It is because we want the voters themselves who are the owners of the voters roll to audit the roll by checking their names and their details. They should check whether they are placed in the correct polling station, ward and constituency. In the event there are anomalies detected by the voters, ZEC will ensure they are corrected,” he said
Mr Silaigwana said voters that identify anomalies will be made to complete forms as part of the process to effect the corrections.”

So the attack on Justice Never Katiyo by the CCC is uncalled for.

With all of this in mind, it should be clear that when a client approaches a practitioner about an urgent application, the practitioner should determine the facts of the matter and whether the client can obtain real relief to protect his rights in due course. If not, then urgent proceedings should be recommended. The founding affidavit for the urgent application should contain a separate chapter, supported by explicit facts, devoted to why the applicant cannot obtain substantial redress in due course and, consequently, why he must be immediately assisted by the court. This CCC failed to understand and resorted to attacking Justice Never Katiyo. [email protected]