The Zimbabwean Exiles Forum (ZEF) has lodged an urgent application to the SADC Tribunal to prevent President Robert Mugabe from attending the regional body's summit this weekend.

ZEF spokesman Gabriel Shumba said the application was faxed to the Southern African Development Community Tribunal in Windhoek, Namibia, on Friday.

"We expect by now it has already been sent," he said around 1pm.

"Mugabe was not lawfully elected and so he cannot take his seat at the [SADC] table. It shouldn't require legal action for SADC to recognise this."

Shumba said it was hoped the tribunal would withdraw SADC's
invitation to Mugabe to attend the weekend summit of heads of state and government in Johannesburg and also declare his rule as illegitimate.

The application had only been brought on the eve of the summit as the forum had not anticipated that Mugabe would be invited because he was not lawfully the head of state, he said.

"We want relief... Mugabe must not be recognised as the lawful head of state."

The SADC chair was in violation of its principles which were clear that a state party should act in accordance with its laws and respect the rule of democracy, Shumba said.

He said SADC had declared the run-off elections on June 27 not free, fair or reflective of the democratic will of the people.

"Zimbabwe law says that if [run-off] elections are not held within 21 days, then the Zimbabwean Electoral Commission must declare the legal winner, in this case Morgan Tsvangirai, as president."

He said the forum, through its legal action to the tribunal, wanted to "force" SADC's hand to not recognise Mugabe as the president of Zimbabwe and to recognise that the elections were unconstitutional.

The application was brought on behalf of the ZEF by the Southern African Litigation Centre (SALC).

The SALC said it was required under African Union law that the state party be suspended immediately once there had been an unconstitutional change in government.

"It makes clear that 'any refusal by an incumbent government to relinquish power' belongs in the same category of coups d'etat."

SALC director Nicole Fritz said legal action could be brought against SADC itself in terms of the SADC Tribunal's protocol.

"SADC has repeatedly said it will not recognise unconstitutional changes in government and we intend holding them to this commitment," she said.

The Tribunal's clerk of the court could not be immediately reached to confirm if the application had been received.