PRESIDENT Mugabe is challenging the decision by the High Court in Bulawayo directing him to gazette a date for by-elections in three vacant House of Assembly constituencies.
Nkayi South, Bulilima East and Lupane East constituencies fell vacant after their respective legislators were dismissed from the MDC.
The trio subsequently lost their parliamentary positions.
The former legislators Abednico Bhebhe, Njabuliso Mguni and Norman Mpofu instituted the court action after declaring their interest to contest in the constituencies as independent candidates.
Justice Nicholas Ndou in October last year directed the President to ensure the by-elections for the three vacant posts in Nkayi South, Bulilima East and Lupane East are held despite the financial challenges Government is facing.
The President, through Justice and Legal Affairs Minister Patrick Chinamasa, submitted in the High Court proceedings that there were more than three constituencies awaiting by-elections.
This, he argued, required U.S. $38 million. Tomorrow the Supreme Court is expected to hear the appeal.
In the appeal papers filed by the Civil Division in the Attorney General's Office, the President argues that the High Court correctly interpreted Section 39(2) of the Electoral Act, but went on to give an order contrary to the law.
Section 39(2) of the Electoral Act reads:
"The President shall within a period of 14 days after he or she has been notified of this section of a vacancy in the membership of Parliament or a declaration is made by the chief election officer in terms of Section 50:
"of a nomination day or the last nomination day as the case may be, where no person has been duly nominated for election, publish a notice in the Gazette ordering a new election to fill the vacancy in the same manner with changes that may be necessary as is provided in Section 38 in regard to general election and the provisions of this Act shall apply accordingly."
The President argues that the High Court wrongly granted a mandatory order against the Head of State and Government when the Act relied upon did not make the proclamation of the election date peremptory.
"It is appellant's (President) respectful submission that, having found that there was no duty for the appellant to act in terms of Section 39(2) of the Act, the court thereafter grossly misdirected itself when it went on to create such a duty itself and to impose the same on the appellant.
"That was simply on the basis of submissions allegedly made from the bar by counsel for the appellant, which submissions were not supported by papers filed of record.
"The court a quo erred in law and grossly misdirected itself when, having upheld the argument by the appellant that the word "shall" in the said statute was to be taken as being "directory", then went on to make an order which is inconsistent and in conflict with the earlier finding.
"It is trite that where no duty to act exists in the law, then the court cannot create such a duty on behalf of the litigant," read part of the heads of argument.
Bhebhe, Mguni and Mpofu were elected members of the House of Assembly in the 2008 general election under the MDC ticket and they fell out of favour with their party resulting in their expulsion in 2009.
In terms of Section 4(1)(e) of the Constitution of Zimbabwe, the Clerk of Parliament notified the three that their membership had been terminated with effect from July 22 2009.
The Speaker of Parliament notified the President of the development as required by the law on August 17 2009.
The President did not make the expected proclamation, prompting the trio to approach the higher court.