THE PRESIDENT v BHEBHE & ORS 2012 (2) ZLR 323 (H)

Flynote

Court — judicial officer — functus officio — when court is functus officio — court order giving party until stated date to comply with legal obligations — appeal court upholding such order but setting new date — order of lower court still extant — lower court entitled to grant further extension of time

Headnote

D The three respondents were elected members of Parliament but, following their expulsion from the party they represented, their membership of Parliament was terminated at the behest of the party. The speaker of the House of Assembly notified the President (the applicant in casu) of the vacancies so created, as required of him in terms of s 39(1) of the Electoral Act [Chapter 2:13]. The applicant did not take the necessary steps to fill the vacancies as required by law. The respondents obtained an order compelling the applicant, within 14 days of the order, to gazette a date for by-elections to fill the vacancies in the three constituencies. The applicant appealed. The Supreme Court dismissed the appeal and ordered that dates for the by-elections be published not later than 30 August 2012. By consent, the date was extended to 1 October 2012. The applicant then brought another application to extend the date to 31 March 2013. The reason given — which was the same as that given previously — was lack of funds to conduct the by-elections. The respondents, despite consenting to the previous extension, argued that the High Court had no jurisdiction to alter the judgment given by a superior court, the Supreme Court.

Held, that this matter originated in the High Court and the High Court issued the original order directing the applicant to issue the notice to hold the three by-elections within 14 days from the date of that order. The Supreme Court confirmed that order and directed that the applicant should comply with it within a prescribed period. Although the Supreme Court order altered the judgment of the court a quo, it did not do so in any material respect. At most it confirmed substantially the same order of the High Court, though in different words. The order being confirmed was the order of the High Court. It would be different if the Supreme Court had set aside the High Court order and substituted it with its own. B Under those circumstances, the High Court would have no jurisdiction to entertain an application such as the present.

Held, further, that the alteration of the High Court's original order to reflect a new time scale was necessitated by the passage of time. A new time frame was introduced because the original time frame had been overtaken by events, and, having lapsed, could no longer be complied with. That alteration did not substantially change the nature of the original order, which remained extant and the High Court retained jurisdiction. This was not an alteration of the order of the court in circumstances where the court had become functus officio; rather, it was an extension of time within which to execute that order. It was a procedural rather than substantive matter in which the court may, on good cause shown, exerciseits discretion in favour of the applicant.

Held, further, that the applicant had offered a reasonable explanation for the indulgence he sought and, by approaching the court timeously, had demonstrated his wish to abide by the court's order but for the constraints he alluded to. The application would therefore be granted.