Sebastian Piroro v Registrar General of Citizenship and Tobaiwa Mudede

### Preamble
1
HH 292-11
HC 10390/11
2
HH 292-11
HC 10390/11
Ref: HC 8313/11
HC 7248/10
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SEBASTIAN PIRORO

versus

REGISTRAR GENERAL OF CITIZENSHIP

and

TOBAIWA MUDEDE

HIGH COURT OF

BHUNU J

HARARE, 27 October 2011 and 30 November 2011

Mr Elliot, for the applicant

Ms Mudenda, for the respondent

Urgent Chamber Application

BHUNU J: The applicant is a Zimbabwean citizen and the holder of a Zimbabwean passport issued in 2000. The passport expired on 18 June 2010. Since then he has been attempting to renew it without success.

The second respondent is the Registrar General of Citizenship whose office is responsible for the issuing and renewal of passports.

Following his failure to obtain renewal of his expired passport the applicant sued the first respondent, the Co-Ministers of Home Affairs, the Minister of Justice and Legal Affairs and the Minister of Constitutional Affairs under case number HC 7248/10 in which he obtained the following order on 31 March 2011:

“IT IS ORDERED THAT:

The Applicant is a citizen of Zimbabwe by birth in terms of s 5 of the Constitution of Zimbabwe.

The provisions (of) s 9 (7) of the Citizenship of Zimbabwe Act [Cap 4: 01] in so far as it relates to citizenship by birth, are ultra vires the powers vested in the Parliament of Zimbabwe in terms of s 9 of the Constitution of Zimbabwe and are in consequence of no force or effect.

ACCORDINGLY IT IS ORDERED THAT:

The first respondent shall within 14 days of the date of this Order renew the applicant’s Zimbabwean Passport.

The first respondent shall pay the applicant’s costs of suit.”

There having been no compliance with the above order, the applicant instituted contempt of court proceedings under case number HC 831/ 1 on  10 October 2011 against both respondents. That application is yet to be set down for hearing. Apparently frustrated by the slow pace at which his application was being processed for set down the applicant lodged the current application before me on 20 October 2011. That is to say, 7 months after having obtained the order directing the respondents to renew his passport within 14 days from 31 March 2011.

In that application he seeks an order directing that the contempt of court proceedings under case number HC 8313/11 be set down as a matter of urgency.

In fact, the applicant is seeking to convert an ordinary court application into an urgent court application thereby jumping the queue of other litigants who approached the court before him. Ideally cases should be strictly heard on a first come first served basis. It is only in exceptional if not extraordinary circumstances that a litigant should be allowed to jump the queue.

While the applicant is entitled to assert his rights to a speedy determination of his case, in doing so he must take care not to trample over the rights of others who have an equal right to expeditious and speedy justice, particularly those who will have approached the court before him.

Whenever the court decides whether or not to grant a litigant the right to jump the queue it should be conscious of the rights of the silent majority particularly those who lack the means or benefit of legal representation but are patiently waiting for their turn. Their turn might however, never come if queue jumpers with legal resources are allowed to jump the queue at will under the guise of urgent applications.

The court takes judicial notice of the serious backlog of cases both at the courts and the Passport Office with the result that there is a serious stampede and scramble for the services of both institutions. It is a truism that whenever there are shortages people tend to devise unorthodox means of jumping the queue and in the process taking advantage of others waiting for the same services. Over the years I have noticed a general trend where lawyers are now resorting more and more to the urgent application procedure to circumvent the delays attendant in normal court procedures.

The net result is that judicial process is now being abused for the purposes of jumping the queue to the loss and prejudice of others. The facts of this matter clearly establish that when there was no compliance within the prescribed fourteen day period, the applicant did not himself consider the matter to be urgent. It took him seven months to file an ordinary court application for contempt of court against the respondents. If he had at that stage considered the matter to be urgent he would undoubtedly have filed an urgent court application as opposed to an ordinary court application if this form of procedure was available to him as his lawyer would now want us to believe.

There has been no cogent explanation as to why the applicant initially filed an ordinary court application which he now wants converted into an urgent court application.

It appears he only decided to take the urgent court application route as an after thought when he realized seven months later that the ordinary court application route was fraught with delays. This is the sort of self created urgency which CHATIKOBO J was talking about when he said in the case of Kuvarega v Registrar General 1998 ZLR 188 at 193 E–G.

“There is an allied problem of practitioners who are in the habit of certifying that a case is urgent when it is not one of urgency. In the present case, the applicant was advised by the first respondent on 13 February 1998 that people will not be barred from putting on the T-shirts complained of. It was not until 20 February 1998 that this application was launched. The certificate of urgency does not explain why no action was taken until the very last day before the election began. No explanation was given about the delay. What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless  abstention from action until the deadline  draws near is not the type of Urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the no timeous action  if there has been any delay”. (My emphasis).

Common human experience has taught us that in times of want it is the queue jumpers who often cause havoc and disorder in civilized society. This type of unbecoming conduct must be prescribed at all costs as it might lead to national strife.

Having come to the conclusion that the urgency in this matter is self created I have no hesitation whatsoever in finding as a matter of fact, that this application is not urgent. Failure to establish urgency renders it wholly unnecessary to delve into the merits of the application and other preliminary issues raised by the respondents. In the case of Madzivanzira & Ors v Dexprint Investments (Pvt) Ltd & Anor 2002 (2) ZLR 316 (H) this court held that it is unnecessary to consider the merits of the application when urgency has not been established. I am in total agreement with that wise judicial observation.

In the result it is ordered that the application be and is hereby dismissed with costs.

Zimbabwe Lawyers for Human Rights, applicant’s legal practitioners

Mudenda Attorneys & Company, respondents’ legal practitioners c/o IEG Musimbe & Associates

.