Moffat Mungazi
Trust Maanda
Legal Position
COURTS are deigned to deal with live controversies.
The dispute must be in existence and the situation the court is sought to intervene on must still be in existence.
If a matter has been overtaken by events, courts do not want to close the stable door after the horse has bolted.
The courts provide remedies rather than deal with academic issues.
If an order to stop something from happening is not obtained, it cannot be sought after the event it seeks to stop has happened.
This happening of the event makes the issue before the courts moot.
Any judgment of the court would not have any impact on litigants’ situation and no practical consequences would flow from the relief sought after the event has happened.
The court must deal with a controversy that is live and not one that is moot.
A court may decline to hear the matter because of the occurrence of events outside the record which terminate the controversy.
If the dispute becomes academic by reason of changed circumstances the court’s jurisdiction ceases and the case becomes moot.
An example of a moot case is the case of Citizens Coalition of Change And Others v Innocent Ncube And Others SCB 68/23.
In that case, members of the CCC who had their nomination papers rejected as election candidates went to court. Their application was dismissed and they appealed to the Supreme Court.
At the time of the hearing of the appeal, elections in respect of which their nomination was rejected had been held.
The elections having been held and councillors sworn into office, the court found that the matter had been overtaken by events and had become moot.
The case of Khupe & Anor v Parliament of Zimbabwe & Ors 2019 (3) ZLR 915 (CC) sets out what the doctrine of mootness entails.
First, it sets out what constitutes mootness and its impact on the proceedings before the court.
This was explained as follows: “A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic by reason of changed circumstances the court’s jurisdiction ceases and the case becomes moot . . . The question of mootness is an important issue that the court must take into account when faced with a dispute between parties. It is incumbent upon the court to determine whether an application before it still presents a live dispute as between the parties.”
The court further held as follows: “The position of the law is that a court hearing a matter will not readily accept an invitation to adjudicate on issues which are of ‘such a nature that the decision sought will have no practical effect or result.”
The system of litigation envisages a situation where the determination of the matters in dispute would have practical and tangible consequences for the contending parties.
Courts do not find it to be in the interests of justice to determine a moot case where its decision has no practical effect on the parties.
Where a judgment would not have any impact on the parties’ situation and no practical consequences would flow from granting the relief sought, the matter is regarded as moot.
The court must deal with a controversy that is live and not one that is moot.
Where the court makes a finding that a matter is moot and declines to exercise its discretion to hear the matter in the interests of justice, the court dismisses the matter.
This rule of mootness is not absolute, however.
There are circumstances where the court may still hear the matter.
The Khupe case then sets out circumstances under which the courts may entertain a matter even though it has been deemed moot.
This was clearly set out as follows: “The mere fact that the matter is moot does not constitute an absolute bar to a court to hear a matter. Whilst a matter may be moot as between the parties, that does not without more render it unjustifiable. The court retains a discretion to hear a moot case where it is in the interests of justice to do so.”
In the CCC case, the court’s view was that it was not in the interests of justice for the matter to be considered on the merits.
This was for the reason that the nomination of candidates can only relate to a general election that is pending.
The facts on which that appeal turned did not raise any peculiar issues, factual or legal, which would require the court to exercise its discretion to consider the merits of the matter.
The matter not having been concluded before the 2023 general elections, had been overtaken by events.
The determination of that matter on the merits would be academic.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646.
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