THE High Court has reserved judgment in the case in which President Mugabe has sought leave from the court to appeal at the Supreme Court against a decision allowing Prime Minister Morgan Tsvangirai to sue him for reappointing provincial governors.
The President had his objection to allow PM Tsvangirai sue him without seeking permission from the High Court dismissed by Judge President George Chiweshe.
Justice Chiweshe on Tuesday heard President Mugabe's application and reserved judgment to a later date after hearing arguments from both parties' lawyers.
Through his lawyer, Mr Terrence Hussein of Hussein, Ranchhod and Company, the President argued that his prospects of success on appeal were very high.
At the Supreme Court, the court will determine whether or not Rule 18 of the court, which requires a person to seek leave to sue the President, must be complied with first.
Mr Hussein, in his grounds of appeal, argues that: "The court a quo erred in not accepting that in terms of Rule 18 and the common law, leave to sue the President should first be sought and granted before instituting legal proceedings against him in the High Court."
He further argued that Rule 18 applies to the President in both his personal and official capacities and no departure from this rule can be properly condoned. Justice Chiweshe gave reasons for the interlocutory order he granted two weeks ago.
In his ruling, the judge accepted submissions by the PM's lawyer Advocate Thabani Mpofu that Rule 18 no longer has any place in the country's legal system.
"It has been superseded by superior legislation, a fact confirmed by the highest court of the land. Yet it is trite that the Office of the President should not be harassed by frivolous and vexatious proceedings.
"This court has inherent jurisdiction to determine, without the aid or hindrance of R18, whether any process issued against the Office of the President is frivolous and vexatious and whether it ought to be dismissed on that basis," said Justice Chiweshe.
He threw out the objection raised by the respondents, saying it was untenable.
". . . assuming R18 is still part of our laws, this court has discretion in terms of Rule 4C to depart from its provisions in the interests of justice.
"However, the Supreme Court has ruled that the Rule falls foul of constitutional and statutory provisions. For this reason the Rule automatically falls away. I would respectfully bring the attention of the Rule Committee to this fact. It was for these reasons that I dismissed the application," said Justice Chiweshe.
Secretary for Justice and Legal Affairs Mr David Mangota, who deposed an affidavit on behalf of the respondents in their bid for leave to appeal, argued that Justice Chiweshe's decision, materially changes not only the prevailing common law, but Rule 18 itself.
"It is submitted that the very basis that R18 was enacted would be rendered nugatory by this decision," stated Mr Mangota in his affidavit.
This, he said, 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.
Mr Mangota further stated: "As it was submitted before this court, 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 said it was proper that leave be granted to file an appeal against the court's decision in the superior court to clarify the position.
But Adv Mpofu argued that Justice Chiweshe's ruling was a mere procedural ruling, which cannot be appealed against, even with leave of the judge.
"The substantive order of the judge is correct because R18 does not apply," said Adv Mpofu.
However, Justice Chiweshe's decision is in conflict with a previous decision by former Judge President Paddington Garwe, now a Supreme Court judge, in the case of
Nicolle vs Minister of Lands, Agriculture and Rural Resettlement and Another.
In that case, Justice Garwe stated that it was unacceptable to sue a judge and simultaneously seek an order granting relief against the judge.
Such a departure from the rule, Justice Garwe stated could not be condoned, saying leave has first to be sought and granted.