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Will Xenophobia Lawsuit Compelling South Africa to Declare State of Emergency Succeed?

FILE: Zimbabwe's President Robert Mugabe (L) gestures as South Africa's President Jacob Zuma looks on at the end of a press briefing at the Union building in Pretoria, April 8, 2015.

Some of the country’s leading legal experts are expressing mixed feelings over a lawsuit by the Black Business Forum Zimbabwe and the Zimbabwe Exiles Forum to compel South African president Jacob Zuma’s administration to declare a state of emergency in xenophobic hot spots in terms of the state of emergency act 64 of 1997.

The two groups have filed an urgent chamber application in the South African High Court citing the president, home affairs minister and foreign affairs minister to take measures against xenophobic attacks that have so far claimed 7 lives.

The applicants also wants Zulu king Goodwill Zwelithini and Mr. Zuma's son, Edward, among other people implicated in fanning the anti-immigrant violence to be investigated, arrested and prosecuted for the crimes.

Constitutional law professor, Lovemore Madhuku, says the chances of the case succeeding are very slim saying, “the doctrine of separation of powers makes it difficult for the judiciary to interfere with the executive. The courts will always give the president room to maneuver in cases like this. The court can only interfere in extreme cases, but in this case it will be difficult for the courts to say (president) Zuma has not done enough.”

Harare lawyer Terence Hussein concurs saying the applicants have an uphill task trying to convince the court to compel Mr. Zuma to declare a state of emergency.

“Courts are usually hesitant to compel presidents to use discretionary powers vested in them. The judiciary usually believes that the electorate in voting for the president will trust his judgement in making such decisions. But it’s important to note that the applicants will have sent a clear message to President Zuma that the world is watching.”

But human rights lawyer, Dewa Mavhinga, has a different take saying, “applicants stand a good chance and have a genuine case because the South African government reacted too slowly to the spreading wave of xenophobic violence.”

Secretary for economic affairs in the Black Business Forum Zimbabwe, Washington Mehlomakulu, said Pretoria has been slow in taking action on the xenophobic attacks.

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