Attorney General Virginia Mabiza has defended the process through which President Emmerson Mnangagwa appointed 10 Senators, arguing that the Constitution does not require the nominees to be independent, apolitical or free from previous political involvement.
Mabiza made the submissions in an opposing affidavit filed at the Constitutional Court in response to an application by Thamsanqa Ncube and Ibhetshu Likazulu challenging the appointments.
The applicants are challenging, among other issues, the process followed in consulting the National Assembly and the suitability of the 10 appointees under Section 120(1)(e) of the Constitution.
Mabiza, who is cited as the fourth respondent and deposed to the affidavit on behalf of the President, also argued that the application was improperly brought as an urgent matter.
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“At the outset, I object to the purported enrolment of this matter as an urgent application.”
She argued that although the applicants had filed a certificate of urgency, they had not filed a separate affidavit seeking urgent treatment as required by Rule 20 of the Constitutional Court Rules, 2025.
“The Applicants have filed a certificate of urgency but no separate affidavit seeking urgent treatment in the manner prescribed by rule 20.”
Mabiza further argued that the case had been filed prematurely because, when the application was instituted, the President had not yet formally made the appointments.
“My reading of the application is that it is predicted on wrong facts. At the time of the application, the President had not yet made any appointment as to sustain any allegation of defective appointment.”
She said the appointments were subsequently gazetted, rendering the application moot.
“The application has now become moot. Not only have the appointments been made, they have been made pursuant to a lawful and extant legal process.”
On the challenge to the parliamentary consultation process, Mabiza argued that the Constitution does not require consultation to take the form of a plenary debate or a specific motion in the National Assembly.
She said Parliament’s official record showed that the matter was placed before the House on August 18, 2026.
“The official parliamentary record confirms that on 18 August 2026 the Speaker addressed the National Assembly regarding the ten persons contemplated by section 120(1)(e).”
According to Mabiza, the Hansard records that the President expressed his intention to appoint the 10 individuals, after which the recommendations were placed before the National Assembly and agreed to.
“The record must be read in its own terms, and any inconsistent gloss placed upon it is denied.”
She rejected the applicants’ argument that the absence of debate, questions or a point of order demonstrated that Parliament had not been properly consulted.
“An absence of debate, questions or a point of order does not prove that consultation was absent.”
Mabiza said Section 339 of the Constitution sets out the requirements for constitutional consultation but does not prescribe a particular parliamentary procedure.
“Section 339 of the Constitution states what constitutional consultation requires; it does not insist upon a plenary debate or a motion of any particular form.”
A central issue in the case is whether the 10 Senators were required to be politically independent or non-partisan.
Mabiza rejected the argument, saying Section 120(1)(e) requires the President to select the Senators on the basis of their professional skills and other competencies after consulting the National Assembly.
“The wording of section 120(1)(e) is admitted. It provides for ten Senators appointed by the President, selected for their professional skills and other competencies, after consultation with the National Assembly.”
“It contains no requirement that an appointee be independent, non-partisan, apolitical, technocratic or without previous involvement in politics.”
She argued that the applicants were seeking to introduce qualifications that do not appear in the constitutional provision.
“Each of those proposed limitations is absent from the constitutional text.”
Mabiza also rejected reliance on parliamentary explanations and legislative material suggesting that the additional Senate seats were intended to bring specialist skills and broaden participation.
She argued that such material could not override the wording of the Constitution.
“A legislative purpose of widening the range of expertise, strengthening oversight, enlarging participation or easing political and social divisions is not equivalent to a prohibition against appointing a person with political experience or affiliation.”
She also said comments by Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi during parliamentary proceedings did not amount to a commitment that the appointees would have no political affiliations.
“Neither the Third Respondent’s statement nor the Constitution declares political affiliation to be a disqualification where the prescribed skills or competencies are present.”
Mabiza rejected the applicants’ contention that the nominees’ political backgrounds rendered them unsuitable for appointment.
“The political labels assigned to the nominees do not establish an absence of professional skills or other competencies.”
She also argued that the Constitution does not require the nominees’ curricula vitae to be tabled or published as a precondition for their appointment.
“Section 120(1)(e) does not make the tabling or publication of curricula vitae a precondition to appointment.”
Mabiza further dismissed arguments that the constitutional provision could not be implemented before amendments to the Electoral Act or the adoption of new Standing Orders.
“The offices in question are filled by appointment, not election.”
“The Constitution creates the seats, vests the appointment power, states the qualifying criterion and, in section 339, defines the required consultation.”
She said there was therefore no legal gap preventing the provision from operating.
“There is no lacuna of the kind alleged. Section 120(1)(e) is presently operative, while section 339 supplies the applicable rules of consultation.”
Mabiza also denied allegations that the Speaker of Parliament lacked authority to preside over proceedings relating to the appointments.
“It is denied that the Speaker lacked power to preside over the relevant proceedings or to place the matter before the National Assembly merely because he is not an ordinary voting member of that House.”
She rejected allegations that Ziyambi misled Parliament or the public about the purpose of the constitutional amendment.
“The charge that the Third Respondent misled Parliament or the public is emphatically denied.”
Mabiza said the applicants had failed to demonstrate that Mnangagwa exceeded his constitutional powers or that the nominees did not meet the required threshold of professional skills and competencies.
“The allegation of a calculated betrayal is denied as unsupported advocacy.”
She argued that the court should determine the legality of the appointments based on the Constitution and evidence rather than the political histories attributed to the nominees.
“The proper enquiry is whether that power was exercised within its constitutional limits, not whether the Applicants approve of the political histories which they attribute to the proposed appointees.”
The Attorney-General also opposed the applicants’ attempt to prevent the Senators from being sworn in pending the determination of the case.
She argued that the court retained the power to provide a remedy if it ultimately found the appointments unconstitutional.
“An interim interdict cannot properly be issued upon the unproven premise that the appointments are already invalid.”
The Constitutional Court will determine the applicants’ challenge to the process followed in making the appointments and their constitutionality.
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