5
HH 307-18
HC 4863/18
Affairs and 2 others CCZ 12/2015 in which the Constitutional Court, declared all marriages
involving persons below the legal age of majority (18 years) to be unlawful, and struck out
offending provisions of the law in this aspect from Marriages Act Statutes, the purport of s 85 (1)
(d) of the Constitution was authoritatively interrogated. In short, the court held that s 85 (1) should
not be restrictively interpreted. It should be given a wide interpretation. The wide interpretation
would necessarily mean that a person needs not only have a direct interest in the matter but an
indirect interest would equally give the applicant locus standi. It follows that given the objectives
of the applicant and its activities as acknowledged by the respondent, the applicant would have
locus standi on this additional ground of public interest under s 85 (1) (d). Mr Kanengoni’s
argument that the applicant’s trustees can only act for themselves individually and not for the
generality of the public does not appeal to me, is misplaced, and I see no merit in it. In any event,
in terms of order 2A rule 8 of the High Court Rules, 1971, an association can sue or be sued in the
name of the association and the word “association” is defined as including, a trust. See Ignatius
Musemwa & Ors v Gwanyai Family Trust & Ors HH 136/16. Electoral issues undoubtedly raise
the public interest since entrenched human rights whose infringement, actual or reasonably
contemplated infringement not only concern but affect the public’s enjoyment and exercise of
political rights to choose their leaders and in the process ensure a creation and existence of a
constitutional democracy which the Constitution has decreed Zimbabwe to be.
Having determined that the applicant has locus standi and is acting bona fides. I express
my reservation on whether or not the applicant can properly wear two hats and allege two, locus
standis. The applicant should choose one locus standi and not plead an alternative locus standi.
The issue of alternative locus standi was dealt with obiter in the Mudzuru case. The constitutional
court indicated therein that a person can only properly found locus standi under s 85 (1) of the
Constitution on one of the grounds of locus standi set out therein. The applicant must choose which
locus standi to rely upon and not plead alternative locus standi.
I now turn to the substance of the application. In considering the merits of the application,
I mention in passing that the urgency of the application was common cause between the parties.
Secondly, I remain mindful that what the applicant seeks from the court is an interim order. In
terms of order 32 r 246 (2) of the High Court Rules, 1971, I am legally obligated to grant the
provisional order as sought, or as varied by myself if on the papers filed, which I must consider