Did Ziyambi use non-existent law to bar Advocate Gauntlett?
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Tags: #ElectionPetitionZW #ZimElections2018 #ElectionsZW #ZimDecides2018, Advocate Jeremy Gauntlett, Justice Minister Ziyambi Ziyambi
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Nelson Chamisa was dealt a body blow on Monday when Justice Minister Ziyambi Ziyambi declined his request to draft-in top South African lawyer, Advocate Jeremy Gauntlett, to join his legal team for his Presidential Election petition being heard starting on Wednesday.
Ziyambi had earlier stated that “we will not block anyone… We don’t want to be seen to be blocking what they are trying to do.”
But in a surprise turn, a letter seen by ZimLive.com addressed to Chamisa’s lawyers said, “South Africa does not pass the test of reciprocity. Therefore application should be denied.”
Foreign lawyers not registered in Zimbabwe must obtain a certificate from the Justice Minister and seek authorisation from the Law Society of Zimbabwe before they can represent clients in court.
Legal experts immediately questioned Ziyambi’s ruling, pointing out he was using a non-existent law.
The requirement of reciprocity, according to the minister’s letter, is contained in Section 7 of the Legal Practitioners Act Chapter 27:07 which says in part: “Where the minister is satisfied that the law of any country other than Zimbabwe permits the admission to the practice of law in that country whether generally or in particular cases for particular purposes, of legal practitioners normally resident in Zimbabwe he may, after consultation with the Chief Justice and the Council for Legal Education, declare such country by statutory instrument to be a reciprocating country.”
Put simply, Ziyambi says South Africa does not allow Zimbabwean advocates to practise in the country, and therefore Zimbabwe is disinclined to allow their lawyers to work in Zimbabwe.
Ziyambi advised Chamisa to take the work permit route. A work permit would take a minimum seven working days to be approved – which would be too late for the Constitutional Court hearings in which Chamisa is seeking the nullification of results from the July 30 election favouring incumbent, Emmerson Mnangagwa.
Alex Magaisa, a Zimbabwean legal expert from Kent University in England, said Ziyambi was “conflicted” because he was Mnangagwa’s election agent.
“The minister is also using the wrong version of the Legal Practitioners Act. That’s why he refers to “subparagraph (iii) of paragraph (a) of subsection (1) of section five” which was removed in 2004 by the Law Reviser because it was an error,” Magaisa said.
In any case, Magaisa said, Ziyambi had failed to interpret the particular law he was citing.
He explained: “Ziyambi says South Africa is not a reciprocating country as a grounds for rejection. But that’s precisely the reason why a foreign lawyer is granted an exemption certificate. It’s because he is not normally resident in Zimbabwe or a reciprocating country.
“Ziyambi is under the misconception that an exemption certificate is granted to a lawyer who is resident in a reciprocating country, it’s the opposite. Since he says South Africa is not a reciprocating country, this is where the exemption certificate ought to be used.”
Gauntlett, who has represented former South African Presidents Nelson Mandela and Jacob Zuma, is lined up to argue a portion of Chamisa’s case, with the help of lead lawyer Advocate Thabani Mpofu.
Two other South African lawyers already in the country, Advocates Dali Mpofu and Tembeka Ngqukaitobi, will be assisting the team.
Advocate Gauntlett has worked in Zimbabwe before. He represented Morgan Tsvangirai in an unsuccessful 2002 election petition.
Mnangagwa narrowly secured a 50.8 percent outright victory to avoid a run-off election, according to the Zimbabwe Electoral Commission. But Chamisa, who polled 44.3 percent of the vote, says the Zanu PF leader was helped over the line by fake accounting by the electoral commission.
Statisticians and other experts have prepared documents proving the alleged electoral fraud, while ZEC says only a few clerical errors had resulted in Mnangagwa’s totals being inflated by margins too insignificant to alter the election result.
