21 August 2018

Zimbabwe: SA-Based Lawyers Battle for Clearance

Photo: allafrica.com
South African legal heavyweights Dali Mpofu and Tembeka Ngcukaitobi, left. Opposition leader Nelson Chamisa and President Emmerson Mnangagwa, right (file photo).

Papers for the four South African-based lawyers intending to represent MDC Alliance leader Mr Nelson Chamisa are not in order and the legal practitioners will not make it for tomorrow's presidential election petition hearing at the Constitutional Court if they do not sort out their documentation.

Government, in line with the Legal Practitioners Act, yesterday requested detailed documentation from the lawyers to support an application for an exemption certificate they made last Friday.

The detailed documentation will be vital for Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi to begin processes needed to be fulfilled before an exemption certificate is issued.

With only a day left before the Constitutional Court sits, the four advocates are likely not to be part of the proceedings.

Advocates Daluxolo Mpofu, Jeremy Gauntlett, Tapiwa Shumba and Ngcukaitobi Thembeka Nicholas were set to lead Mr Chamisa's legal team contesting President Mnangagwa's victory in the July 30 harmonised elections.

It is not permissible at law for them to argue for MDC Alliance without the requisite authority from Government.

Minister Ziyambi yesterday said Government also needed clarity on who was acting on behalf of Advocate Ngcukaitobi after Artherstone and Cook Legal Practitioners and Mafume Law Chambers both wrote to him requesting for an exemption certificate.

The clarification is needed before the minister takes the first step towards the issuance of an exemption certificate.

The first step involves consulting the Council for Legal Education, a statutory body that regulates legal education and training in Zimbabwe.

Minister Ziyambi yesterday responded to the application made by the four lawyers last Friday saying he could not use a mere averment by the lawyers' legal practitioners to issue an exemption certificate.

"I acknowledge receipt of your letters dated 17 August 2018 received on the same date around 1400 hours wherein you are applying for the ministerial certificates for the above named advocates to represent Honourable Nelson Chamisa, the applicant in the Case of Nelson Chamisa and Emmerson Dambudzo Mnangagwa plus 24 others, Case No. CCZ 42/2018," he wrote to Artherstone and Cook Legal Practitioners .

"Section 7 (1) of the Legal Practitioners Act (Chapter 27:07) stipulates that the minister, after consultation with the Council for Legal Education is satisfied that, having regard to the importance, complexity or special circumstances of the matter, it is just and reasonable for a person to obtain the services of a legal practitioner who has special or particular experience relating to such matter and that such legal practitioner is not normally resident in Zimbabwe but is from a reciprocating country, he may grant a certificate exempting the legal practitioner concerned from satisfying the requirement of subparagraph (iii) of paragraph (a) of subsection (1) of Section Five of being normally resident in Zimbabwe or a reciprocating country."

Minister Ziyambi added: "In order to enable me to consult Council for Legal Education urgently furnish me with supporting documents showing that the legal practitioners concerned have special or particular experience relating to the matter and that they are not normally resident in Zimbabwe, as said in terms of the said provision."

Responding to Mafume Law Chambers who were also requesting an exemption certificate for Advocate Ngcukaitobi, Minister Ziyambi said: "I have received an application from Artherstone and Cook Legal Practitioners for a ministerial certificate on behalf of Advocate Thembeka Ngcukaitobi Nicholas. May I be advised as to which law firm is acting on his behalf in respect of the application before I consult Council for Legal Education?"

In an interview, Minister Ziyambi said: "The law requires that they attach supporting evidence with things like educational qualifications, experience, where one is registered among other things.

"It is this documentation that we use to write to Council for Legal Education seeking for advice. This is what the law says. If the response is positive, the ministry then writes to the Law Society and if it gives a greenlight, the High Court will register them to appear."

President Mnangagwa won the elections with 50,8 percent of the total vote cast while Mr Chamisa managed 44,3 percent.

Mr Chamisa wants the Constitutional Court to set aside President Mnangagwa victory, claiming that the official presidential results announced by the Zimbabwe Electoral Commission (ZEC) were not credible.

He cited alleged electoral fraud and malpractices during the elections in which Zanu-PF romped to victory, claiming a two-thirds parliamentary majority, with President Mnangagwa taking a 6,5 percent lead.

President Mnangagwa, along with 21 losing presidential candidates and ZEC, were all cited as respondents in the high-profile petition.

In his response, President Mnangagwa argued that there was no valid election petition before the courts challenging his victory.

He wants the apex court to dismiss the petition and confirm him the winner of the presidential poll held on July 30, arguing the petition was plagued with flagrant procedural irregularities.

President Mnangagwa contends that Mr Chamisa's petition is premised on alleged mathematical anomalies which have no factual basis.

ZEC, on the other hand, has also filed its response arguing that Mr Chamisa's petition as "fatally and incurably defective" to nullify the results.

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