Parliamentary Rules re: Approach, Peremptory Provisions and the Doctrines of Strict Compliance & Substantial Compliance

HH23-12 : AUSTIN ZVOMA vs LOVEMORE MOYO N.O. and NOMALANGA KHUMALO N.O .and BRIAN TSHUMA N.O. and SHEPPARD MUSHONGA N.O. and EDNA MADZONGWE N.O. and WILLIAS MADZIMURE N.O. and LYNETTE KARENYI N.O.
Ruled By: BERE J

On 12 December 2011, the applicant filed an application in this court under Case No. HC12336/11 seeking a prohibitory interdict against the respondents.

The remedy sought was to prevent the respondents from moving or accepting any motion from any member of the House of Assembly to dismiss the applicant without the matter of his dismissal first being brought before the Committee on Standing Rules and Orders (CSRO) or its sub-committee or other independent and impartial disciplinary authority.

On realising that, despite having filed the aforesaid application, the respondents were determined to proceed with the motion to have him dismissed, the applicant filed the instant urgent application whose amended interim relief is couched in the following terms:-

“1. Pending the determination of the Court Application under Case Number HC12336/11 the respondents are prohibited, restricted, and interdicted from continuing to debate and voting on any motion to dismiss the applicant.

2. Pending the determination of the Court Application under Case Number HC12336/11, any debate, voting, or decision on the motion to dismiss the applicant, with or without amendments, be and is hereby declared null and void ab initio and therefore of no force and effect.”...,.

ON MERITS

Having disposed of the preliminary points raised, I wish to focus on the substantive issues raised by the parties in this application.

The fundamental guiding principle in this case was eloquently summed up by Mr Shepherd Mushonga, the fourth respondent, when he put it in the following words:-

“The principle of separation of powers is he hallmark of a constitutional democracy which entails that the three (3) arms of State, namely, Parliament, the Executive, and the Judiciary are separate and independent of each other in so far as the exercise of their powers is concerned.

The Constitution vests Parliament with the powers to regulate its own affairs. Parliament exercise judicial powers in respect of certain matters that fall within its domain to the exclusion of the Courts.”…,.

I applaud the sentiments and indeed associate myself with same.

Be that as it may, one needs to appreciate the often overlapping function that characterize the legislature, the Executive, and the Judiciary.

Whilst these three arms of Government must enjoy their independence, they do not exist outside each other. They play a complimentary role.

The sovereignty of Parliament, or, to put it simply, the power enjoyed by Parliament is not absolute, for if it were so the citizens would be extremely vulnerable. It would mean that Parliament would do virtually everything it desired, including violating its own Rules and Regulations, to the detriment of its citizen with impunity. Such a scenario, in my view, would not be tenable. There must be some control mechanism through which Parliament is to be held accountable by disgruntled citizens: see The British Constitution by J.S. DUGDALE, M.A, published by Bath James Brodie Ltd, London 1962…,.

From my reading of the applicant's urgent chamber application, and the notices of opposition filed by the respondents, I discern the following issues to be pertinent and decisive in this matter;

(a) Whether or not the House of Assembly violated Standing Order 62(d) of the House of Assembly Standing Orders by continuing to debate and voting on the motion to dismiss the applicant after the applicant had filed case no HC12336/11....,.

(a) Alleged violation of Standing Order 62(d)

It was contended, by the applicant, that, after he had filed his application in this court seeking, among other things, to interdict the respondents from continuing to debate on the issue of his dismissal, and to force compliance with proper disciplinary procedures, the House of Assembly was obliged to follow the dictates of Standing Order 62(d) of the House of Assembly Standing Orders.

In countering this argument, the respondents argued that the existence of a court application could not operate as a bar to the conduct of Parliamentary business and that only a court order had the capacity to stop further debate on the motion that was already before the House.

The argument, by the respondents, in this regard, is quite pronounced in paragraph 8 of the joint Notice of Opposition filed by the first, second, fifth, sixth and seventh respondents.

In supporting the same argument, the fourth respondent, on his behalf and also duly authorised by the third respondent, re-affirmed the position that Parliamentary debate on the issue could not be stopped by the Court application alluded to by the applicant.

It is evident from the Hansard of the day that the members of the House offered conflicting views on this issue.

It is necessary to refer to the specific section in issue. The section reads as follows:-

“62 No member shall, while speaking to a question…,.

(d) Use derogatory, disrespectful, offensive or unbecoming words against the Head of State, Parliament or its members, the Speaker, nor reflect upon a statute unless for the purposes of moving for its repeal; nor shall a member refer to any matter on which a judicial decision is pending;”…,.

It appears to me that if one were to concentrate on the ordinary grammatical meaning of the Standing Order in question one would find it extremely difficult not to understand what the House intended when it crafted these rules of debate.

It is trite that in interpreting statutes the very basic approach is first to ascribe to the words used their ordinary grammatical meaning.

It is clear to me that the Standing Order referred to simply meant that when a matter is pending before the Courts, or when a matter is sub judice, House members are obliged to respect the Court process until a determination on that matter is made.

In this regard, I feel more inclined to lean on the views of the learned judge VAN DEN HEEVER JA when he remarked on the use of the word 'shall' as follows:-

“If a statutory command is couched in such peremptory terms it is a strong indication, in the absence of considerations pointing to another conclusion, that the issuer of the command intended disobedience to be visited with nullity”: Messenger of the Magistrate's Court. Dupbata v Pillay 1952 (3) SA 678 (AD)…,.

It will be noted that during debate on the issue, those who spoke in favour of proceeding with the tabled motion suggested, strangely so in my view, that the members of the House could only be stopped from debating the issue if, at the time, there was a Court order barring them from so acting.

With respect, the Standing Order in question does not say what the respondents, and those who contributed in support of the motion, desire it to mean. If Parliament intended the Standing Order to mean what the respondents say, surely Parliament could have had no difficulty in crafting the Standing Order to that effect.

It is not in dispute that the respondents, despite having been duly served with case no. HC12336/11 continued to debate the motion in complete defiance or violation of the Standing Order in question.

This belligerent attitude displayed by the respondents can only lead to one inevitable conclusion. That disobedience by the House of its own Standing Orders must be visited with “nullity” over what it did because it was not competent for the House to stubbornly ignore the clear provisions of section 62(d) of the House of Assembly Standing Orders.

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").The appellants, as the applicants in the court a quo, ...

"Grounds of Appeal

1. The learned Judge a quo erred in finding that a proper election of Speaker of Parliament was conducted in terms of the Constitution and the law.

2. The learned Judge erred in condoning the first respondent's failure to implement and enforce his own procedures for the election.

3. The learned Judge a quo erred in finding that the participants' exposure of their completed ballot papers was not a violation of the secret ballot.

4. The learned Judge a quo erred in finding that a secret ballot took place.

5. The learned Judge a quo erred in interpreting section 39(2) of the Constitution, as read with Ordinance 6 of the House of Assembly Standing Orders, as directory and not peremptory."

The grounds of appeal set out in the Notice of Appeal, as read with the record and submissions by counsel, raise essentially the following two issues for determination in this appeal –

(a) Whether the exposure of the secret ballot before the depositing of the ballot papers in the ballot box by some Members of Parliament amounts to a violation of the voting by secret ballot, and, if so, whether that rendered the election of the Speaker null and void; and

(b) Whether the failure by the Clerk of Parliament of Zimbabwe (hereinafter referred to as "the Clerk") to control the voting process and the consequent chaotic conditions constitute a failure by the Clerk to conduct an election in terms of section 39 of the Constitution, as read with the Standing Orders.

The background facts of this case are as follows:

The first respondent is the Clerk of the Parliament of Zimbabwe. Pursuant to Proclamation No.7 of 2008, the Clerk convened the first meeting of Parliament on 25 August 2008 for the purposes of swearing in the Members of Parliament and electing the presiding officers.

The Clerk's mandate to conduct these elections is derived from the Standing Orders – in the case of the House of Assembly, Standing Order No.6.

Two candidates were nominated for the office of Speaker, namely, Mr Paul Themba-Nyathi (hereinafter referred to as "Nyathi") and the second respondent (hereinafter referred to as "Moyo").

Standing Order No.6 provides that if more than one person is proposed as Speaker of Parliament, the Clerk shall conduct an election of the Speaker by ballot box.

The election took place and the Clerk announced that Nyathi had garnered ninety-eight votes and Moyo had garnered one hundred and ten votes. The Clerk accordingly declared Moyo the winner. Moyo assumed the office of Speaker.

The appellants want the election of Moyo as Speaker set aside.

I now wish to deal with the issue of whether the election was conducted by secret ballot as is required by section 39 of the Constitution, as read with Standing Order No.6 of the Standing Orders.

The appellants contend that some Members of Parliament from the MDC-T party, having marked their ballot papers in the secrecy of the polling booths, openly displayed their marked ballot papers before depositing them in the ballot box. The appellants contend that the majority of the Members of Parliament from the MDC-T party did this, while the respondents' position is equivocal.

The court a quo, however, concluded that of the two hundred and eight Members of Parliament who voted, most probably only six Members of Parliament displayed their votes in the manner alleged by the appellants. The Members of Parliament who are named as having done this are the Honourable Biti, the Honourable Khupe, the Honourable Chambati, the Honourable Chibaya, the Honourable Denga and the Honourable Moyo, the second respondent. In this regard, the court a quo concluded as follows at p11 of the cyclostyled judgment (judgment no. HH28-10):

"It is fairly clear that Hon. Biti took the lead in brandishing his vote and that several of his colleagues were then emboldened into emulating his possibly impolitic example. However, they did so of their own free will and, more significantly, they did so after having cast their votes in secret."

The conclusion of the court a quo that at least the six Members of Parliament named displayed their ballot papers after marking them but before depositing the ballot papers in the ballot box cannot be faulted.

This conclusion is fortified by the following factors:

It is specifically alleged by the appellants that Moyo displayed his ballot paper before depositing it. Moyo filed an affidavit in this case in which he does not deny this allegation. Five other Members of Parliament are named as having displayed their ballot papers before depositing them in the ballot box. None of these five Members of Parliament have deposed to affidavits denying the allegation.

In my view, it would have been easy for Moyo to secure such affidavits from the named Members of Parliament denying the conduct alleged. Moyo, instead, filed an affidavit from a Member of Parliament, the Honourable Mpariwa, in respect of whom no such allegation was made. The Honourable Mpariwa does not deny that the named Members of Parliament had conducted themselves in the manner alleged by the appellants. Indeed, if anything, she appears to concede that that in fact did occur.

In the result, I agree with the conclusion of the court a quo that at least six Members of Parliament displayed their ballot papers after marking them but before depositing them in the ballot box.

Having concluded that at least six Members of Parliament displayed their ballot papers before depositing them in the ballot box, the issue that falls for determination is the legal consequences of such conduct.

Section 39 of the Constitution provides as follows:

"(2) The Speaker shall be elected in accordance with Standing Orders from among persons who are or have been members of the House of Assembly and who are not members of the Cabinet, Ministers, or Deputy Ministers:

Provided that a person who is not a member of the House of Assembly shall not be elected as the Speaker unless he is qualified in accordance with Schedule 3 for election to the House of Assembly."

Standing Order 6 of the Standing Orders provides as follows:

"If more than one person is proposed as Speaker, the Clerk shall conduct the election of Speaker by a secret ballot."…,.

The Clerk issued specific instructions on how the secret ballot was to be conducted. According to the second appellant, Moses Mliza Ndlovu, the Clerk issued the following instructions:

"4. The first respondent announced the procedure to the effect that according to the Standing Rules, an election would be held by secret ballot. To this extent, he assured the Honourable Members present that all necessary provisions had been made to guarantee the secrecy of the ballot.

5. The first respondent then explained that in terms of the procedure, he would issue a ballot paper to each Member present. Thereafter, the Member would put a mark against the name of the candidate the Member would wish to be the Speaker of Parliament.

6. The ballot paper had two candidates for Speaker of Parliament, namely, the second respondent nominated by the Movement for Democratic Change (Tsvangirai) (MDC-T) and Mr Paul Themba-Nyathi nominated by the Movement for Democratic Change (MDC).

7. The first respondent then explained that the ballot paper, having been duly marked in secret in a booth, would be folded by the voting Member and deposited in a ballot box.

8. The first respondent then explained that, having cast the vote, the Honourable Member would then leave the House."

The Clerk does not deny that the above accurately reflects the instructions he gave. From the above, three essential elements of the secret ballot emerge –

(a) Each Member of Parliament was to be issued with a ballot paper;

(b) Each Member of Parliament was to mark the ballot paper in the privacy or secrecy of the polling booth; and

(c) Having marked the ballot paper in secret, the Member of Parliament was to fold the ballot paper to maintain the secrecy of the vote and deposit it in the ballot box, thus completing the process of secret voting.

It admits of no debate that the Clerk would then be required to count the vote to complete the process.

In my view, the counting of the votes cast is an essential part of the process of the election by secret ballot….,.

The appellants' case is that Standing Order 6 is peremptory and enjoins the Clerk to conduct an election of the Speaker by secret ballot.

Counsel for the appellants submitted that the display of the ballot papers before depositing them in the ballot box, by some Members of Parliament, is an aberration from the provisions of section 39 of the Constitution, as read with Standing Order 6 of the Standing Orders. He argued that such aberration rendered the election of the Speaker null and void.

Ms Damiso and Mr Chaskalson, for the respondents, submitted that the appellants' complaint is based on a fundamental misconception relating to the nature of a secret ballot.

They submitted that when an election takes place, by secret ballot, each voter has the right to have his or her vote kept secret. This right to secrecy, like any other right, can freely be waived by a voter who chooses to make known how he or she voted. The fact that any voter chooses to disclose how he or she voted cannot in itself compromise the secrecy of the ballot. They submitted that it is only when a voter is factually prevented from maintaining the secrecy of his or her vote that there is a violation of the secrecy of the ballot. On this basis, they argued that the display by six Members of Parliament of their ballot papers before depositing the ballot papers in the ballot box is not a violation of the principle of a secret ballot.

This argument found favour with the learned Judge in the court a quo. In this regard, he had this to say at p11 of the cyclostyled judgment:

"Having regard to the dictionary definitions and the case authorities cited by counsel, the gravamen of a secret ballot, in my view, is that each voter is enabled to cast his vote privately and in secret, without fear of having his voting choice identified or ascertained by others. In this respect, it is incumbent upon the regulating authority to provide the requisite wherewithal for that purpose. The courts should not interfere unless it is shown that the objective conditions put in place for the election precluded the possibility of a secret vote. Beyond this, it is then a matter purely for the individual voter if he chooses to divulge, whether publicly or in private, the specific manner in which he has cast his vote. If he does so of his own volition, without any external coercion or intimidation, and howsoever his conduct might influence other voters, this cannot detract from the secrecy of his vote or vitiate the secrecy of the ballot as a whole."

It was further argued that all that was required of the Clerk was for him to provide the guarantee that Members of Parliament voted in secret if they so wished. Those who wished to penetrate the veil of secrecy, as did the six Members of Parliament, were entitled to do so without contaminating the process.

In support of the above contention, both counsel for the respondents placed reliance on the case of Steel and Engineering Industries Federation and Ors v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (T)…, and on the case of J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920)…,.

Mr Chaskalson, in particular, submitted that the right to secrecy of the ballot, like any other right, can freely be waived by any voter who chooses to make known how he or she voted. He further submitted that this point has been made clear by United States judgments dealing with unsuccessful challenges to electoral laws. For this submission, he relied on the following remarks of BROWN J in J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920)…,:

"…, this privilege, of voting a secret ballot, has been held to be entirely a personal one. The provision has been generally adopted in this country for the protection of the voter, and for the preservation of his independence, in the exercise of this most important franchise. But, he has the right to waive his privilege and testify to the contents of his ballot. The voter has the right, at the time of voting, voluntarily to make public his ballot, and its contents in such case may be proven by the testimony of those who are present. Public policy requires that the veil of secrecy shall be impenetrable unless the voter himself voluntarily determines to lift it."

Mr Chaskalson also relied on the following passage from State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932)…,:

"…, it has been uniformly held that under such provisions as that contained in section 6 of Article VI of our Constitution the elector cannot be compelled to violate the right of secrecy of his ballot but the great weight of authority is to the effect that such constitutional provision guarantees a personal privilege which might be waived. In State vs Anderson 26 Fla 240, 8 So 1, this Court, speaking through MR CHIEF JUSTICE RAINEY, said:

'The Constitution provides, section 6, Article VI, that in all elections by the people the vote shall be by ballot, and in those by the Legislature it shall be viva voce. The material guarantee of this constitutional mandate of vote by ballot is inviolable secrecy as to the person for whom an elector shall vote. The distinguishing theory of the ballot system is that every voter shall be permitted to vote for whom he pleases, and that no one else shall be in position (sic) to know for whom he has voted, or shall know unless the voter shall of his own free will inform him.': COOLEY's Constitutional Limitations m.p. 604 et seq."…,.

Further reliance was placed on the following passage from COOLEY's work Constitutional Limitations 7ed 912:

"The system of ballot-voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases and with what party he pleases and that no one is to have the right or be in position (sic) to question his independent action, either then or at any subsequent time. The courts have held that a voter, even in case (sic) of a contested election, cannot be compelled to disclose for whom he voted; and for the same reason we think others who may accidentally, or by trick or artifice, have acquired knowledge on the subject should not be allowed to testify to such knowledge, or to give any information in the courts upon the subject. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it; his ballot is absolutely privileged…,."

Mr Chaskalson further submitted that the fact that any voter chooses to disclose how he or she voted cannot compromise the secrecy of the ballot. He argued that if this were the case secret ballots would be open to abuse by voters who, fearing that their candidates were at risk of losing the election, could invalidate a vote by merely waving their ballots about. It is only when a voter is factually prevented from maintaining the secrecy of his vote or her vote that there is a violation of the secrecy of the ballot. He further argued that on the facts of this case there is no suggestion of any such violation of the secrecy of the ballot. Consequently, the primary complaint of the appellants must be rejected.

The two cases cited by Mr Chaskalson, namely, J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920) and State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932), were concerned with the constitutionality of statutory provisions that permitted voting by absentee voters such as soldiers serving abroad. The basis of challenging the constitutionality of the statutes providing for the absentee voters was that they violated the secrecy of the ballot guaranteed by the State Constitution, Article VI section 6.

Section 6 of Article VI declared that all elections by the people shall be by ballot, and all elections by the General Assembly shall be viva voce….,.

The contention, which was dismissed in the above American cases in respect of which the above cited passages were made, was that statutes allowing absentee votes would of necessity lead to the identification of the voter, thereby violating the secrecy of the ballot guaranteed by the Constitution of the State of North Carolina. The ratio decidendi of the court, in dismissing the challenge, was that the impugned statutes, by allowing voters to vote by postal ballot, did not compel voters to disclose their votes leading to a breach of their right to voting in secrecy. The courts held that the impugned statutes simply provided the voter with a choice either to vote secretly by presenting himself or herself at the polling booth or vote by postal ballot if he so wished, thereby compromising the secrecy of his or her vote. The court held, in both cases, that a secret ballot is not compulsory so far as the voter is concerned, for the statute provides that the ballot may be deposited for the voter by the Registrar or by one of the judges of the election or by the voter himself if he so chooses.

I wish to make the following observations regarding the above cases.

The judgments cited above are judgments of foreign courts. They are not binding but they are persuasive. The higher the courts are in their jurisdictions the more persuasive are their judgments. The cited judgments are not from the highest courts in North Carolina.

The second observation I wish to make is that the courts in the cited cases were interpreting statutes in their jurisdictions. They were not making pronouncements on general jurisprudential principles.

When interpreting statutes, courts are guided primarily by the wording and the context of the statutes. A court should not simply translocate one court's interpretation of a statute in that court's jurisdiction to an interpretation of a statute differently worded in its own jurisdiction.

In the above judgments, the courts of North Carolina were interpreting Article VI section 6 of the Constitution of North Carolina, which provided that:

"In all elections by the people, the vote shall be by ballot, and, in those by the Legislature, it shall be viva voce."

The courts, in both J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920) and State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932) interpreted Article VI section 6 as conferring a right to vote in secret, which can be waived. They ascribed this meaning to Article VI section 6 despite the use of the peremptory word "shall" in the section. I have some doubts about the correctness of this interpretation.

Be that as it may, I accept the conclusion in those two cases that where a Constitutional provision confers on the voter the right to vote by secret ballot that right is intended to protect the voter and the voter has the right to waive that right without violating the secrecy of the ballot.

I also accept the proposition that public policy requires that the veil of secrecy shall be impenetrable unless the voter himself voluntarily determines to lift it: see also Boyer v Teague 106 NC 625; McRary on Elections 3ed…,; and Crolly Con. Lim. 7Ed…,.

However, section 39 of the Constitution, as read with Standing Order 6, is not a constitutional or statutory provision conferring the right to vote on a voter in the form of the Member of Parliament.

Section 39 of the Constitution, as read with Standing Order 6, prescribes how a particular officer in Parliament, namely, the Speaker, is to be elected. It expressly provides that if more than one person is proposed as Speaker the Clerk of Parliament shall conduct the election of the Speaker by a secret ballot. In other words, the use of the words "by a secret ballot" in the statute is prescribing the method by which a Speaker is to be elected.

The language is peremptory language.

It would be a different story if the wording of Standing Order 6 were to the effect: "If more than one Member is proposed Members of Parliament may vote by secret ballot to elect the Speaker."

The golden rule of interpretation is that one has to give the words of a statute their primary meaning.

If that rule is applied to Order 6 of the Standing Orders, then, the inescapable inference is that the Order is addressing the Clerk and is dictating to him the manner by which a Speaker should be elected.

In view of the explicit language of the statute, it is not open to the Clerk, or any Member of Parliament, to substitute the method of electing a Speaker with another method of their own choice, such as by open ballot. Put differently, it was not open, for instance, to Members of Parliament to tell the Clerk that they were waiving their right to vote for the Speaker by secret ballot or that they wished to vote for the Speaker by open ballot either individually or as a group. That option was not open to the Members of Parliament as a whole or to individual Members of Parliament.

Voting by secret ballot, as I have already stated, involves the following three essential procedures:

(i) Firstly, that each Member of Parliament receives a ballot paper;

(ii) Secondly, that each Member of Parliament indicates on that ballot paper the candidate of his choice in private and to the exclusion of the public; and

(iii) Thirdly, that, having done so, the Member of Parliament deposits his or her ballot paper into the ballot box privately without disclosing his or her ballot paper to the world.

Once the ballot paper has been deposited into the ballot box the process of voting by secret ballot, so far as the voter is concerned, is completed.

It would not be a violation of voting by secret ballot if the person discloses whom he has voted for at that stage. The voting by secret ballot by the voter is complete: see Steel and Engineering Industries Federation and Ors v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (T).

The next stage to complete the process provided for in terms of section 39 of the Constitution, as read with Standing Order 6, is for the Clerk to count the votes cast to determine the winner.

This stage, in my view, is an essential process in the election of the Speaker of Parliament by secret ballot:

Because of the peremptory language of section 39 of the Constitution, as read with Standing Order 6, the Clerk has no discretion over what procedure is to be followed when electing the Speaker. It has to be by secret ballot. The use of any other method to elect the Speaker would be a failure to comply with the provisions of section 39 of the Constitution, as read with Standing Order 6.

In casu, the appellants alleged that some Members of Parliament received ballot papers, marked the ballot papers in the privacy of the polling booth, and then, instead of folding the ballot papers to maintain the secrecy of their vote and before depositing them in the ballot box, they displayed them to fellow Members of Parliament to show them how they voted. Thereafter, they deposited the ballot papers in the ballot box.

The court a quo concluded that six Members of Parliament conducted themselves in this manner. The conclusion that only six out of the two hundred and eight voters voted in this manner is supported by the evidence and it cannot be faulted.

The learned Judge in the court a quo also concluded that the six Members of Parliament who displayed their votes complied with the requirement of a secret ballot because they were entitled to pierce the veil of secrecy without falling foul of section 39 of the Constitution, as read with Standing Order 6.

I respectfully disagree with the learned Judge in this regard.

The six Members of Parliament, by displaying their ballot papers before depositing them in the ballot box, violated the secrecy of their ballots, thereby rendering their votes invalid for the purposes of section 39 of the Constitution, as read with Standing Order 6. This rendered their votes ineligible for counting for the purpose of determining the election of the Speaker.

The Clerk proceeded to count these six votes as valid votes in determining the outcome of the election. This contaminated the process.

Put differently, he counted oranges and apples in a process where the law provides that only oranges be counted.

In short, the Clerk failed to act as directed by section 39 of the Constitution, as read with Standing Order 6, namely, to conduct an election by secret ballot. He conducted a cross-breed election, in that it was partly secret and partly open. That is not what the law provides for.

In this regard, I am satisfied that the Clerk failed to comply with the provisions of section 39 of the Constitution, as read with Standing Order 6.

Having concluded that the Clerk did not comply with the statutory requirements in his conduct of the election, the issue that falls for determination is, what are the legal consequences that flow from the failure to comply with the statutory provisions?

Section 39 of the Constitution, as read with Standing Order 6, has directed that the Clerk shall conduct an election of a Speaker by secret ballot but has not provided what should be the consequence of the non-compliance with this peremptory direction by Parliament.

This Court recently had occasion to deal with the issue of interpreting a statute that does not prescribe the consequences of non-compliance with a statutory provision in the case of Doctor Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor Judgment No. SC11-08.

In that case, I cited with approval a passage from BENNION Statutory Interpretation…, which sets out how courts should approach that issue.

The learned author states that a court charged with the enforcement of a statute that does not state the consequences of non-compliance needs to decide what consequence Parliament intended should follow from such failure to comply. In that case, I had this to say at pp21-23 of the cyclostyled judgment:

"It is the generally accepted rule of interpretation that the use of peremptory words such as 'shall' as opposed to 'may' is indicative of the legislature's intention to make the provision peremptory. The use of the word 'may' as opposed to 'shall' is construed as indicative of the legislature's intention to make a provision directory. In some instances the legislature explicitly provides that failure to comply with a statutory provision is fatal. In other instances, the legislature specifically provides that failure to comply is not fatal. In both of the above instances no difficulty arises.

The difficulty usually arises where the legislature has made no specific indication as to whether failure to comply is fatal or not.

In the present case, the consequences of failure to comply with the provisions of section 18 of the Zimbabwe Electoral Commission Act are not explicitly spelt out.

In those statutory provisions where the legislature has not specifically provided for the consequences of failure to comply, it has to be assumed that the legislature has left it to the Courts to determine what the consequences of failure to comply should be.

The learned author FRANCIS BENNION in his work Statutory Interpretation suggests that the courts have to determine the intention of the legislature using certain principles of interpretation as guidelines. He had this to say at pp21-22:

'Where a duty arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from breach of the duty.

This is an area where legislative drafting has been markedly deficient. Draftsmen find it easy to use the language of command. They say that a thing 'shall' be done. Too often they fail to consider the consequence when it is not done. What is not thought of by the draftsman is not expressed in the statute.

Yet the courts are forced to reach a decision.

It would be draconian to hold that in every case failure to comply with the relevant duty invalidates the thing done. So, the courts' answer has been to devise a distinction between mandatory and directory duties.

Terms used instead of "mandatory" include 'absolute', 'obligatory', 'imperative' and 'strict'. In place of "directory", the term 'permissive' is sometimes used. Use of the term 'directory' in the sense of permissive has been justly criticised: see CRAIES Statute Law (7th edn, 1971) p61 n74. However, it is now firmly rooted.

Where the relevant duty is mandatory, failure to comply with it invalidates the thing done. Where it is merely directory the thing done will be unaffected (though there may be some sanction for disobedience imposed on the person bound). {As to sanctions for breach of statutory duty see section 13 of this Code (criminal sanctions) and section 14 (civil sanctions)}.'

Thereafter, the learned author sets out some guiding principles for the determination of whether failure to comply with a statutory provision is fatal or a mere irregularity.

One of these guiding principles is the possible consequences of a particular interpretation. If interpreting non-compliance with a statutory provision leads to consequences totally disproportionate to the mischief intended to be remedied, the presumption is that Parliament did not intend such a consequence and therefore the provision is directory."

MAXWELL on The Interpretation of Statutes 12ed…, says much the same as the above cited excerpt from BENNION.

Thus, the issue before this Court is to determine what Parliament intended to be the consequence of the Clerk's breach of the statutory requirement to count only regular votes in determining the outcome of the election of the Speaker.

I have come to the conclusion that Parliament intended to render invalid an election wherein the Clerk fails to comply with the provisions of section 39 of the Constitution, as read with Standing Order 6. I have come to this conclusion for two reasons -

(i) Firstly, because of the peremptory language of the provision in question; and

(ii) Secondly, because of the use of different language from the one used by Parliament when it legislated on the same subject matter in another statute, namely, section 177 of the Electoral Act [Chapter 2:13].

Dealing with the issue of the use of peremptory language in section 39 of the Constitution, as read with Standing Order 6, there can be no doubt that the language of the relevant section is peremptory, having regard to the use of the word "shall".

I accept that there has been movement from the principle of strict exaction of compliance with the wording of the statute to avoid invalidity to a more flexible approach giving the courts some latitude in determining the consequences of non-compliance.

My understanding of the new approach is that, while the use of the word "shall" is no longer conclusive of the intention of Parliament to render invalid non-compliance, it certainly still remains cogent evidence of such intention. This Court has, in a number of recent cases, held that failure to comply with the peremptory direction of a statute leads to invalidity. In this regard, Rule 29 of the Supreme Court Rules provides as follows:

"29 Entry of appeal

(1) Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state –

(a) The date on which, and the court by which, the judgment appealed against was given;

(b) If leave to appeal was granted, the date of such grant;

(c) Whether the whole or part only of the judgment is appealed against;

(d) The grounds of appeal in accordance with the provisions of Rule 32;

(e) The exact nature of the relief which is sought;

(f) The address for service of the appellant or his legal practitioner."…,.

In Jensen v Acavalos 1993 (1) ZLR 216 this Court held that by use of the word "shall" compliance with the requirement of Rule 29 was peremptory and that failure to comply with the Rule rendered the Notice of Appeal a nullity and that such a notice cannot be condoned or amended.

KORSAH JA, at 219D, had this to say about the Notice of Appeal that did not comply with Rule 29 of the Supreme Court Rules:

"This Notice of Appeal was defective for non-compliance with the mandatory provisions of Rule 29, subrules (c), (d) and (e) which require the applicant or his legal representative to state: (i) whether the whole or only part of the judgment is appealed against; (ii) the ground of appeal to be set forth concisely and in separately numbered paragraphs; and (iii) the exact nature of the relief which is sought."

The learned JUDGE OF APPEAL further stated, at pp219H-220D:

"The Notice of Appeal, being bad for non-compliance with the Rules, was not cured by the filing, on 3 January 1990, of grounds of appeal without a prayer. Indeed, even if the grounds of appeal filed on 3 January 1990 had contained a prayer for relief, it would not have been effectual in validating the defective Notice of Appeal.

The reason is that a Notice of Appeal which does not comply with the Rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper Notice of Appeal to be filed, the appeal must be struck off the roll with costs: De Jager v Diner & Anor 1957 (3) SA 567 (A) at 574 C-D.

In Hattingh v Pienaar 1977 (2) SA 182 (O)…, at 183, KLOPPER JP held that a fatally defective compliance with the Rules, regarding the filing of appeals, cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant Rule.

With this view I most respectfully agree; for if the Notice of Appeal is incurably bad, then, to borrow the words of LORD DENNING in McFoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC) at 1172I, 'every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse'."

GUBBAY CJ and MANYARARA JA concurred.

In Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S) MALABA JA…, expressed the same sentiments when he stated at 149E-G:

"A nullity cannot be amended. In Jensen v Acavalos 1993 (1) ZLR 216 (S) KORSAH JA at 220B said that the reason why a fatally defective Notice of Appeal could not be amended was that:'…, it is not only bad but incurably bad.'

Citing Hattingh v Pienaar 1977 (2) SA 182 (O) at 183 for authority, the learned JUDGE OF APPEAL said that what should actually be applied for is an extension of time within which to comply with the relevant Rule and condonation of non-compliance.

In Business Equipment Corp v Baines Imaging Group 2002 (2) ZLR 354 (S), a Notice of Appeal which did not state the date on which the judgment appealed against was given, in contravention of section 29(1)(a) of the Rules of the Supreme Court, was held to be fatally defective, and the procedure stated in Jensen's case supra was approved as the appropriate remedy in having a proper Notice of Appeal placed before the court. See also Talbert v Yeoman Products (Pvt) Ltd S-111-99, SC111-99."

The learned JUDGE OF APPEAL further stated at p150B-C:

"As no valid Notice of Appeal was delivered and filed within fifteen days of the date when the decision of the Labour Court was given, there was no appeal before the court and to merely insert the relevant date in the defective Notice of Appeal, as suggested by Mr Muskwe, without an application for an extension of time within which to institute the appeal and for condonation of non-compliance with the Rules of Court, would be grossly irregular. The matter had to be struck off the roll."

It is quite clear from the above authorities that failure to comply with peremptory language of a statute can lead to a nullity.

Equally, there are decisions of this Court wherein it has been held that non-compliance with peremptory statutory provisions does not necessarily lead to a nullity. See Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S) and the cases referred to therein.

The above authorities can be reconciled on the basis that the use of peremptory language is one of a number of indicators of the legislative intent where such intent is not explicitly stated. This obviously is a departure from the principle of strict exaction of compliance with the wording of the statute that I referred to earlier.

In my view, the use of peremptory language, such as the words "shall" or "must" in a statute is no longer conclusive evidence of the intention of Parliament, but remains cogent evidence of such intention.

As I have already stated, I concluded that Parliament intended to render null and void an election in which irregular or invalid votes were counted together with valid votes to determine the outcome of the election of the Speaker for two reasons; namely, the peremptory language of the section and the use of different language from the one used by the Legislature on the same subject matter in a different statute.

The proposition that generally speaking Parliament, just like an individual, uses the same words or language to evince the same intent and different words or language to evince a different intent is grounded in elementary common sense.

MAXWELL on The Interpretation of Statutes 12ed devotes a whole chapter on the presumptions arising from the change of language in statutory interpretation…,. His opening paragraph of this subject matter reads:

"From the general presumption that the same expression is presumed to be used in the same sense throughout an Act or series of cognate Acts, there follows the further presumption that a change of wording denotes a change in meaning; Ricket v Metropolitan Railway Co. (1867) LR 2 HL 175, per LORD WESTBURY; ex p. Haines [1945] KB 183; Evans v Evans [1948] 1 KB 175.

'Where the Legislature,' said LORD TENTERDEN CJ, 'in the same sentence uses different words, we must presume that they were used in order to express different ideas'; R v Inhabitants of Great Bolton (1828) 8 B & C 71 at p74)."

For the presumption to arise, the change of words does not necessarily have to be in the same section or the same Act. It can be from one statute to another; see MAXWELL on The Interpretation of Statutes…, where the learned author states that:

"There are many modern cases on change of wording, and they fall roughly into three groups, according to whether the language alters (i) within the same section, (ii) within the same Act, (iii) from one statute to another."

For authority for the third category, which bears resemblance to the facts in casu, the learned author cites the following authorities; Att-Gen. for Northern Ireland v Gallagher [1963] AC 349; B v B and H (L intervening) [1962] 1 All ER 29; Re P. (infants) [1962] 1 WLR 1296; Irwin v White, Tomkins and Courage, Ltd [1964] 1 WLR 387; Att.-Gen. of the Duchy of Lancaster v Simcock [1966] Ch.1; Seabridge v H.Cox & Sons (Plant Hire) Ltd [1968] 2 QB 46; Wild v Wild [1968] 3 WLR 1148.

While the authorities cited by MAXWELL relate mainly to historically connected statutes, I see nothing in principle that should limit the presumption to preceding statutes to the exclusion of statutes on the same subject matter but not historically connected. After all, Parliament is presumed to be familiar with its own Acts. The corollary, that Parliament is ignorant of its own Acts, is simply untenable.

Thus, at the time of enacting Standing Order 6, in 2005, in terms of which the Clerk acted, Parliament was familiar with the provisions of section 177 of the Electoral Act, which was enacted earlier. This particular provision has been included in no less than nine electoral Acts in this country since 1928.

In my view, it is permissible for a court to look at the language of another statute on similar or the same subject matter in the exercise to ascertain the intention of Parliament.

Section 177 of the Electoral Act, as appears from its heading, deals with the subject of the consequences of non-compliance with the Electoral Act. It provides as follows:

"177 When non-compliance with this Act invalidates election

An election shall be set aside by the Electoral Court by reason of any mistake or non-compliance with the provisions of this Act if, and only if, it appears to the Electoral Court that –

(a) The election was not conducted in accordance with the principles laid down in this Act; and

(b) Such mistake or non-compliance did affect the result of the election."

Section 177 of the Electoral Act clearly provides that it is only when non-compliance with the Act affects the result of the election that the election should be set aside. In effect, this section incorporates into the Electoral Act the doctrine of substantial compliance.

Section 39 of the Constitution, as read with Standing Order 6, provides for the election of the Speaker, but does not incorporate the principle of substantial compliance. In my view, if Parliament had intended that only non-compliance that affected the outcome of the election of the Speaker would render invalid such an election it would have used the same or similar language.

Also, in determining the intention of Parliament, I took into account the fact that no draconian consequences would flow from a declaration of invalidity of the election.

Parliament consists of a little over two hundred Members and ordering a re-election of the Speaker does not pose financial or logistical problems of any magnitude. If properly organised, as it should be, I do not see the election of the Speaker taking more than an hour and it should require only a minimum of resources.

I am also mindful of the fact that Parliament is one of the most revered institutions in our, or any, society. It consists of the highest concentration of political leadership of the country. Parliament makes the laws that we all obey. Parliament should, therefore, lead by example and should scrupulously obey its own laws.

The election of the Speaker should be an example of how an election should be conducted. This is particularly so in Zimbabwe which is plagued by contestation of election results. Parliament should use the election of the Speaker to set the best example to the rest of the country. It is unacceptable that Parliament should seek to salvage a shambolic and chaotic election of a Speaker through the doctrine of substantial compliance.

I do not wish to be understood as setting aside the election of the Speaker on the ground that it was chaotic. I am satisfied that the chaos and the conduct of Members of Parliament, generally, did not, on their own, affect the election to the extent that it can be concluded that the Clerk did not conduct an election. I am merely expressing concern that the Clerk failed to stamp his authority on the election and insist that Members of Parliament conduct themselves in accordance with his instructions. I, however, do not think that conduct, alone, is sufficient, on its own, to constitute a basis for setting aside the election of the Speaker.

Before concluding, I feel constrained to make the following observation in the interests of clarity.

I have read the judgment of SANDURA JA.

It is a mis-interpretation of this judgment to conclude that it seeks to reinstate the old principle of strict compliance with the letter of the statute to avoid invalidity. This judgment is based on what I considered to be the intention of Parliament as evinced by the language of the statute, and by contrasting the language of section 39 of the Constitution, as read with Standing Order 6, with the language of section 177 of the Electoral Act.

I also do not agree that the principle that a peremptory enactment must be obeyed was abandoned in the case of Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S).

My understanding of Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S) is that it modified the principle by endorsing the movement away from strict compliance to a more flexible application of the principle. This is the only basis on which one can reconcile GUBBAY CJ's concurrence with the judgment of KORSAH JA in Jensen v Acavalos 1993 (1) ZLR 216 (S) and his judgment in Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S). MANYARARA JA concurred with both judgments. This Court re-affirmed the modification of the principle in Doctor Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor Judgment No. SC11-08.

In the result, I have come to the conclusion that the six named Members of Parliament did not vote by secret ballot, and, therefore, their votes were irregular. The inclusion of the irregular votes in the determination of the final outcome of the election of the Speaker constitutes a failure to comply with section 39 of the Constitution, as read with Standing Order 6, providing for the election of the Speaker of Parliament by secret ballot, thereby rendering it invalid.

For the foregoing reasons I would allow the appeal. In the result, I make the following order –

1. The appeal is allowed with costs to be paid by the respondents jointly and severally the one paying the other to be absolved.

2. The order made by the court a quo is set aside and the following substituted –

"The application succeeds and the election of the second respondent as Speaker is hereby set aside."

ZIYAMBI JA: I agree

GARWE JA: I agree

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").

The appellants, as the applicants in the court a quo, sought the following relief set out in the draft order:

"WHEREUPON after perusing the documents filed of record and hearing counsel, it is hereby declared that:-

1. The election of (the) second respondent as the Speaker of the Parliament of Zimbabwe on 25 August 2008 is null and void and set aside.

2….,.

3. That the respondents jointly and severally pay the costs of suit."

(The applicants abandoned the relief set out in paragraph 2).

The appellants' main contention in the court a quo, and in this Court, is that the election of the Speaker was null and void because it was not conducted in terms of section 39 of the Constitution of Zimbabwe (hereinafter referred to as "the Constitution"), as read with Standing Order 6 of the Standing Orders of Parliament of Zimbabwe (hereinafter referred to as "the Standing Orders").

PATEL J dismissed the application. The appellants now appeal against that judgment....,.

MALABA DCJ: I have read the opinion expressed by the learned CHIEF JUSTICE. I regret that I am unable to agree with the decision that section 39(2) of the Constitution, as read with Standing Order No.6 of the House of Assembly Standing Orders ("Standing Order 6"), by implication, compels the nullification of the election upon proof that the Clerk of Parliament ("the Clerk"), who was under the obligation to conduct the election of the Speaker of the House of Assembly ("the Speaker") by a secret ballot, unlawfully counted invalid votes as secret ballots.

This case came to the Supreme Court by way of an appeal against the judgment of the High Court. The court a quo dismissed with costs an application for an order declaring that the election of the second respondent as the Speaker of the House of Assembly ("the House") on 25 August 2008 is null and void and set aside.

The applicants, who are members of the House who had taken part in the election of the Speaker, disavowed the application as an application for review. The substance of the relief sought and the reliance on the provisions of section 4(1) of the Administration of Justice Act [Chapter 10:28], however, show that it was an application for review.

The applicants alleged, in effect, that the Clerk who, as the administrative authority, was given the power to conduct the election of the Speaker by a secret ballot, in accordance with the machinery prescribed under section 39(2) of the Constitution, as read with Standing Order 6, failed to act in accordance with the requirements of the rule against counting invalid votes as secret ballots, and, as a result, affected their rights or legitimate expectation in the election.

A perusal of the papers filed in support of the application shows that the relief was sought on two grounds:

(i) The first ground was that there was "noise, utter chaos, and disorder" in the Chamber of the House at the time appointed by the Clerk for the holding of the election of the Speaker such that the environment never became conducive for conducting the election by a secret ballot.

(ii) The second ground was that, in violation of the secrecy of the ballot, and in defiance of the procedure laid down by the Clerk, some members of the MDC-T party came out of the polling booth with ballot papers, on which they had marked their votes, unfolded. The allegation was that they displayed the ballot papers to others to disclose for whom they had voted before folding the ballot papers and depositing them in the ballot boxes.

As part of the second ground, it was alleged that the Clerk was under a duty to stop or prevent the members of the MDC-T party from doing what they did, but, in disobedience of his duty, failed to do so.

It was not the applicants' case that the election of the second respondent, as the Speaker of the House, should be declared null and void because the Clerk counted invalid votes as secret ballots, thereby distorting the result of the election. The reason is that to do so would have involved an admission by the applicants of the fact that there was counting of secret ballots produced by the electoral process the applicants alleged had not taken place.

As the learned CHIEF JUSTICE arrived at the conclusion, with which I disagree, on the ground that the Clerk counted invalid votes as secret ballots, I will deal with the question whether in the machinery for the election of the Speaker, prescribed under section 39(2) of the Constitution, as read with Standing Order 6, the unlawful conduct of the Clerk, in counting invalid votes as secret ballots, automatically nullifies the election.

My view of the case is that the application ought to have been dismissed or granted on the grounds on which the applicants made it.

Before determining the question whether the applicants established the grounds on which they sought the relief from the court a quo, I set out and construe the law in terms of which the election of the Speaker, by a secret ballot, was required to be conducted.

It is for the Legislature to make provision, by legislation, for matters relating to elections to office in institutions of a democratic Government. All matters relating to the organisation and procedure for election to the office of the Speaker of the House must be determined on the construction of the broad terms of the legislation enacted for the purpose by Parliament.

Section 39(1) of the Constitution imposes on the House an obligation to elect a presiding officer, to be known as the Speaker, at its first meeting after dissolution of Parliament and before proceeding to transact any other business. The election must therefore be held at the time prescribed under section 39(1) of the Constitution.

It is required to be an election by a secret ballot - only a secret ballot under the statute can give rise to a "result of the election."

The right to vote in the election of the Speaker, where more than one person is proposed for the post, is given to members of the House who would have subscribed the oath of loyalty and are present in the Chamber of the House at the time the election is called by the Clerk.

By section 39(2) of the Constitution, as read with Standing Order 6, the Clerk is appointed as the official to conduct the election required by section 39(1) where more than one person is proposed as Speaker. By the same provisions, the Clerk is enjoined to conduct the election of the Speaker by a secret ballot.

When the members elect a Speaker from candidates nominated they do so in their individual capacity. They are not acting as representatives of the people who elected them to the House.

Where the words "conduct the election" are used as they are used in section 39(2) of the Constitution, as read with Standing Order 6, in respect of a situation where more than one person is proposed for election for a post, it is clear that the word "election" is used with the intention that it should be understood to mean the whole combined and continuous process for bringing about the result of the election. It is a process consisting of a number of material steps prescribed by law, beginning with the call for the election and ending in the declaration of the result of the election.

For the purposes of section 39(2) of the Constitution, as read with Standing Order 6, all these steps were driven by the free exercise of the right to vote by the electors directed by the Clerk entrusted with the responsibility of conducting the election by a secret ballot.

The words "conduct the election" compendiously describe the number of duties the Clerk would be expected to carry out to ensure that members who were desirous to elect the Speaker by means of a secret ballot did so freely. So, to "conduct the election" in the context of section 39(2) of the Constitution, as read with Standing Order 6, denotes the concept of legality, in the sense that it contemplates the making of decisions or the taking of actions in the performance of duties, the effect of which is to direct or manage the activities of the voters according to the prescribed requirements of the law to achieve the object or purpose of ensuring the election of the Speaker based on universal, equal, direct, and personal vote freely expressed by a secret ballot.

In construing section 39(2) of the Constitution, as read with Standing Order 6, it is important to bear in mind that the right to vote vested in the members present and voting at the first meeting of the House is not affected by the requirement that the election should be conducted by a secret ballot. The statute relates to procedure alone and directs the mode in which the right to vote is to be exercised by the electors.

The Legislature chose the secret ballot for its optimum benefits and prescribed it as the only method by which the elector would validly exercise his or her right to vote for the Speaker. At the same time, it imposed on the Clerk the general obligation to provide the mechanisms and procedures for the recording, processing, and protection of the secret ballot to bring about the election of the Speaker.

Every voter was entitled to express his or her will on the candidates by voting "for" or "against" through the legally permitted form of voting.

As section 39(2) of the Constitution, as read with Standing Order 6, prescribes a secret ballot and its attendant requirements as a condition the elector has to perform if he or she is desirous to give a valid vote for a candidate in the election of the Speaker, it is addressed to both the voter and the Clerk who has to conduct the election by a secret ballot. The validity of a vote and of any act performed by the Clerk must be measured in terms of its conformity with the requirements of a secret ballot prescribed as the essence of the election of the Speaker.

In my view, it is wrong to place on section 39(2) of the Constitution, as read with Standing Order 6, a narrow construction which views it as directed at the Clerk only. The Clerk does not vote. He does not produce the result of the election. His functions are managerial. The elector is the driver of the election by a secret ballot. The Clerk and the voter must be viewed in the context of the legal relationship of the rights and duties they have to exercise or discharge to achieve the statutory objective or purpose.

The prescription of a secret ballot, as the method for the election of the Speaker, is based on the acceptance of the principle that it promotes and protects freedom of expression of choice of a preferred candidate without undue influence, intimidation, and fear of disapproval by others. The elector is given the right to mark the choice of one candidate from another, or others, in secret. The words "secret ballot" are used in the wide and narrow sense to mean the process by which the ballot is recorded, processed, and protected, as well as the ballot in which there is complete and inviolable secrecy designed to drive away the fear of disclosure and secure to the voter freedom from undue influence, intimidation, and fear of disapproval by others.

A "secret ballot" is therefore a ballot cast freely by a voter, in secret, when no other person is present and aware of what is happening.

The ballot is secret to the voter, in the sense that he or she is the only person who knows for whom he or she is voting.

Whilst the caster of the vote remains unknown, the secrecy of the ballot is maintained and the vote has been effectively cast in the election of the Speaker. It is the valid vote to be counted to ascertain the result of the election of the Speaker by a secret ballot.

To maintain the secrecy, made to be extremely material as the foundation to the validity of the vote itself, the voter must meet certain conditions.

He or she is required not to put on the ballot paper, on which the vote is given, any writing or mark by which his or her identity as the voter can be known by any other person looking at the ballot paper. The voter is also required not to display or expose the ballot paper after he or she has given the vote so as to disclose to any other person for whom he or she voted before depositing the ballot paper in the ballot box.

So essential is the secrecy of the ballot to its validity that any departure by the voter from these conditions, designed for the purpose of ensuring the maintenance thereof, must render the vote void.

The mandatory obligation imposed on the Clerk was to perform the duties put on him to provide the mechanisms and procedures that enabled the voter who was desirous to exercise the right to vote by a secret ballot to do so. The duties he had to perform were to ensure that the vote, given in secret, was recorded, processed, protected, and counted, to bring about the election of the Speaker.

The primary object of any act performed by the Clerk in the discharge of the obligation to conduct the election of the Speaker by a secret ballot would have been the maintenance of the secrecy of the ballot given by the voter, unless the voter himself or herself failed to observe, strictly, the conditions essential to the validity of the vote as a secret ballot. The Clerk, as the official appointed by the Legislature, and given the responsibility of conducting the election of the Speaker by means of a secret ballot, was under an absolute duty not to do anything in the execution of his duties that would have the effect of compelling the voter to violate the secrecy of the ballot.

Although it does not say in express terms that the Clerk cannot record the vote in some other way, it is clear that section 39(2) of the Constitution, as read with Standing Order 6, makes the prescribed manner of recording the ballot by means of a ballot paper, properly drawn up and with the names of the candidates and the appropriate spaces where the mark by which the vote would be given, the only manner in which a secret ballot was to be given.

The Clerk has no discretion as to how the election should be conducted. He must conduct it by a secret ballot.

The valid vote in an election had to be one given for a candidate by means of a secret ballot. It was, therefore, the duty of the Clerk to provide the official ballot papers. It was his duty to put in place the polling booth in which the voters would mark the ballot papers, screened from observation by other potential voters. It was his duty to provide sealed and translucent ballot boxes in which the voters would deposit the marked ballot papers for safekeeping before counting.

The Clerk discharged these duties in accordance with the requirements of the law. He put in the Chamber of the House the polling booth and two ballot boxes and provided the ballot papers.

It was also the Clerk's duty to provide the procedure by which the secret ballot was to be recorded, processed, protected, counted, and results of the election based on it declared.

He, again, complied with this requirement.

The Clerk explained to the members that the voter would only mark his or her vote on a ballot paper delivered by him just before proceeding to the polling booth and that the ballot paper had to have an official stamp marked on the back. Upon receipt of the ballot paper, the member was to go immediately into the polling booth and there mark his or her ballot paper to express his or her choice. The voter was then required to fold the ballot paper up whilst in the polling booth, so as to conceal the vote, and then go and deposit the ballot paper, so folded up, into the ballot box. The voter was required to exhibit to the Clerk the official stamp on the back of the folded ballot paper before dropping it into the ballot box.

The procedure met the purpose of the legislation of ensuring equality of conditions for election to the office of Speaker for the candidates and the occurrence of an election based on universal, equal, direct, and personal suffrage freely expressed by a secret ballot.

It was the duty of the Clerk to monitor the proceedings and keep a continuous oversight of the actions of the voter as he or she moved from the polling booth to drop the ballot paper into the ballot box. In that way he would be able to detect conduct inconsistent with the exercise by the voter of the right to elect the Speaker in accordance with the procedure prescribed to ensure the maintenance of the secrecy of the ballot.

Once he detected such conduct, it was the Clerk's duty to act judicially and determine that the conduct of the voter had stripped the ballot of secrecy and declare the vote invalid and not to be counted.

At the end of the poll, the Clerk was required to open the ballot box in the presence of the agents of the candidates. It was his duty to empty the ballot box and open each and every folded ballot paper and inspect it to ensure that only those ballot papers which were not contrary to the provisions and spirit of section 39(2) of the Constitution, as read with Standing Order 6, as to secrecy, were counted in the election of the Speaker.

Before counting the valid ballot papers, the Clerk was required to group and arrange them under the names of the respective candidates by placing, in separate parcels, those which were secret ballots opposite the name of the same candidate and rejecting all invalid ballot papers.

The results of the election to be declared by the Clerk in an election of the Speaker conducted in terms of section 39(2) of the Constitution, as read with Standing Order 6, would not be the number of votes cast. The reason is that some of the votes would have lost their secrecy as they moved through the process, from the time they were given on the ballot paper in the polling booth to the time they were canvassed after the opening of the ballot box. The result of the election, under section 39(2) of the Constitution, as read with Standing Order 6, is the outcome of secret ballots counted as such.

The result of an election cannot include invalid votes because it is unlawful to count invalid votes as secret ballots. Courts do not ordinarily nullify that which has been done lawfully. Nullification is a remedy intended to be used to redress a wrong.

There is yet another important aspect of the right to secrecy of the ballot which needs to be considered before the determination of the question whether the applicants established the grounds on which they sought relief in the court a quo.

It is that the right to secrecy of the ballot, protected under section 39(2) of the Constitution, as read with Standing Order 6, is subject to the principle that everyone has a right to waive an advantage of a law made solely for his or her benefit and protection in his or her private capacity. He or she may dispense with the benefit or advantage, provided he or she does so without infringing any public right or public policy. See MAXWELL on The Interpretation of Statutes 12ed…,.

There is no legal obligation that a voter must vote by secret ballot.

The requirement of a vote by a secret ballot is justified on the principle which, without unacceptably encroaching on the rights of the persons concerned to stay out of the prescribed system of election, fosters the values of honesty, freedom, and reliability that should characterise electoral choice. As the voter must exercise the right to vote for the Speaker by a secret ballot given on the ballot paper freely, he or she can waive the right to the secrecy of the ballot at the time the vote is cast or at any time before he or she deposits the ballot paper in the ballot box.

The right to vote by a secret ballot includes the right of the voter to disclose to any other person for whom he or she voted. He or she can, in the exercise of that freedom, decide to put a writing or mark on the ballot paper at the time he or she casts the vote by which he or she can be identified as the voter and for whom he or she voted. He or she may decide to display to others the ballot paper so as to share the knowledge for whom he or she voted. So, a voter can, of his or her own free will, inform whomsoever he or she chooses for whom he or she voted. A secret ballot is not compulsory insofar as the voter who is not desirous of taking part in the election by a secret ballot is concerned.

The rule that there should be no writing or mark put by the voter on the ballot paper by which his or her identity as the voter can be revealed, and that the ballot paper should not be displayed to any other person so as to disclose for whom the vote was given, prescribes a condition of the validity of the vote.

The question whether there is a secret ballot for the purposes of the validity of the vote will depend for its answer on the actions of the individual voter.

In Jenkins v Board of Elections 180 NC 169 (1920), cited by Mr Chaskalson, it is correctly stated by BROWN J that:

"…, voting by ballot, as distinguished from viva voce voting, means a secret ballot, and…, the elector, in casting his ballot, has the right to put it in the box and to refuse to disclose for whom he voted and that he cannot be compelled to do so. But, this privilege of voting a secret ballot has been held to be entirely a personal one. The provision has been generally adopted…, for the protection of the voter and for the preservation of his independence in the exercise of this most important franchise. But, he has the right to waive his privilege and testify to the contents of his ballot."

In State Ex Rel. Hutchins v Tucker et al 106 Fla 905 (1932), also cited by Mr Chaskalson in argument, BUFORD CJ quoted from COOLEY Constitutional Limitations 7ed…, where the learned author states:

"The system of ballot-voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases and with what party he pleases and that no one is to have the right or be in a position to question his independent action either then or at any subsequent time. The courts have held that a voter, even in case of a contested election, cannot be compelled to disclose for whom he voted; and, for the same reason, we think others who may accidentally or by trick or artifice have acquired knowledge on the subject should not be allowed to testify to such knowledge or to give any information in the courts upon the subject. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it, his ballot is absolutely privileged."

I turn now to determine the question whether the applicants established the grounds on which they based the application for the relief sought.

On the first ground, the first applicant, in the founding affidavit, said that there was "too much noise in the House" at the beginning of the process for the election of the Speaker.

The intention was to show that the Clerk was unable to manage the activities of the members according to the prescribed procedure for the achievement of the purpose of the electoral law.

He said the noise was caused by members belonging to MDC-T party who were pacing up and down the Chamber conferring noisily with each other in support of the second respondent. He said that was done "in a manner that created utter disorder and raised very serious tensions in the House."

After describing how the Honourable Biti displayed the ballot paper, after he had cast his vote in the polling booth, so as to disclose to others for whom he had voted, before folding the ballot paper up and depositing it into the ballot box, the first applicant said, in paragraph 32 of the founding affidavit:

"Honourable Biti's shocking and unprecedented conduct caused more than a fracas in the House as Honourable Members started shouting objections and counter objections, including trading insults, at the top of their voices, while the voting process degenerated into total disorder…,."

In paragraphs 3.9, 3.10, 3.15, 5, 6, and 11 of the opposing affidavit the Clerk said:

"3.9 The mood and atmosphere in the House of Assembly, on the occasion, was neither unique nor unprecedented. Members of the House of Assembly were meeting together for the first time after a fiercely contested general election. As can be expected, under the circumstances, the conversation was lively and the exchanges exuberant. There was a fair amount of good-humoured raillery, including political taunting, verbal sparring and bantering, all done by Members from all the political parties represented in what appeared to be a good spirit of joviality. This kind of conduct is not unusual in our Parliament or any other Parliament for that matter, and, accordingly, I did not consider it a cause for concern on this occasion.

3.10 It is my submission that what has been described by (the) applicant as 'gross disorder, chaos or fracas' in the House was actually nothing more sinister than increased hustle and bustle in the House, in turn the result of the increase in number of Members of the House (an increase in the membership from 150 to 210 as a result of Constitutional Amendment No.18)…,.

3.15 Notwithstanding the environment in the House that I have described in paragraphs 3.9 and 3.10 of this affidavit I was able to manage the entire proceedings of the day according to my present programme without a hitch of any kind. It is, therefore, my submission that quite contrary to (the) applicants' allegations of 'utter disorder and fracas' the proceedings progressed exceptionally smoothly…,.

5. I deny that at the time immediately before the elections took place there was too much noise and there existed a state of utter disorder in the House. I also totally deny witnessing any manifestation of serious tensions. What I did witness in the House was the atmosphere that I have described in paragraphs 3.9 and 3.10 of this affidavit.

6. Save to confirm that I did call the House to order whenever I deemed it necessary, and, by so doing, achieved a continuing level of order which enabled me to discharge my obligation and safeguard the progress and integrity of the voting process as well as all other proceedings of that day the contents of this paragraph (25 of the founding affidavit) warrant no comment….,.

11. I totally deny that there was total disorder in the House which I failed to control. If such a state of disorder had existed, the process of voting would have been impossible - which it was not. Generally, Members remained in their places, heard their names being called, followed the order on the list, approached, took possession of the ballot papers, and proceeded to vote privately. After voting they resumed their places without impediment in an exceptionally orderly manner given their numbers and the congestion in the Chamber."

The court a quo found, on the facts, that there was not so much noise as to cause chaos or utter disorder, as described by the first applicant.

The finding was justified by the evidence.

The relevance of raising the issue of noise was to show that the Clerk was disabled from performing his duties to conduct the election of the Speaker by a secret ballot. The applicants did not refer to specific duties the Clerk failed to perform because of the noise. To the contrary, the facts showed that all the Members who were present and desirous to vote did so.

Each of the two hundred and eight members received a ballot paper from the Clerk and went into the polling booth where he or she marked his or her vote on the ballot paper in secret. Some of the members came out of the polling booth with their ballot papers folded to conceal the vote and dropped the ballot papers into the ballot boxes after exhibiting the official stamp on the back to the Clerk. Other members came out of the polling booth with their ballot papers unfolded and displayed them to others so as to disclose for whom they had voted before folding them and dropping the ballot papers into the ballot box.

All the members responded to the alphabetical order in which their surnames were called.

They could not have done that in the context of the environment of chaos or utter disorder described by the applicants.

The first applicant conceded, in paragraph 25 of the founding affidavit, that the Clerk occasionally intervened to restore order when it was necessary to do so.

It was indeed the duty of the Clerk to maintain order during the electoral process.

By that admission, the first applicant corroborated the Clerk, who said that he was able to act and control the situation when he considered that the noise would interfere with his ability to conduct the election by a secret ballot as required by the law.

The Clerk was not a mere moderator. He was the governor of the electoral process for the purposes of securing the proper conduct of the election. As such, his evidence had to be accorded appropriate weight, where it was supported by that given by the applicants.

It is of interest to note that the Minister of Youth Development, Indigenisation and Empowerment, the Honourable Kasukuwere, and the Honourable Member, Mr Zhuwawo, admit, in the affidavits filed in support of the applicants, that when they called out to draw the attention of the Clerk to the objections they were raising to what they considered was a violation of the requirements of a secret ballot by members of the MDC-T party, who displayed their ballot papers to others so as to disclose for whom they had voted, the Clerk told them not to make noise.

According to the two members, what was shouted were objections to the conduct of displaying ballot papers. The objections were not intended to obstruct the Clerk in the conduct of the election. They were not the confused and undesirable sounds characteristic of noise. The environment cannot be accurately described as characterized by complete absence of order.

In view of the fact that all the two hundred and eight members went through the process by which they gave their votes on the ballot papers and dropped them into the ballot boxes, with some displaying their ballots to others so as to show for whom they had voted, the allegation that there was so much noise that the atmosphere was not conducive for conducting the election of the Speaker by a secret ballot was not substantiated. The atmosphere was characterised by the factors described by the Clerk, which enabled him to conduct the election of the Speaker fairly and efficiently.

The first ground on which the application for relief was based was not proved.

The second ground was based on the allegation that it was unlawful for the members of the MDC-T party who displayed their ballot papers to do so and for the Clerk not to stop or prevent them from doing what they did.

The intention was to show that the actions of the voters concerned, and the failure to act by the Clerk, undermined the process by which the object of the electoral law was to be achieved, thereby violating the rights of the applicants to elect the Speaker, or be elected as the Speaker, by a secret ballot. In that regard, the first applicant said, in the answering affidavit:

"100: It is particularly notable that (the) second respondent himself was one of the Honourable Members from the MDC-T party that unlawfully opened and displayed their marked ballot papers and this fact alone, which is captured in the DVD evidence, is enough to show that his claim to be Speaker is legally vacuous….,.

103. The fact that some Honourable Members, actually most of them belonging to (the) second respondent's MDC-T party including (the) second respondent, defiantly opened and displayed their marked ballot papers simply means that there was no lawful election and (the) second respondent is wishfully wrong to claim that he was lawfully elected from an election that was in fact unlawful."…,.

The applicants invariably described the conduct of the members of the MDC-T party, in displaying their ballot papers to others so as to disclose for whom they had voted, in terms which show that they considered the conduct unlawful.

They said it was "shocking behaviour"; "a brazen violation of the secret ballot"; a "deliberate and defiant violation of the election procedure"; "open and defiant violation of the secret ballot"; "blatant misconduct"; "the failure to observe and respect a fundamental Parliamentary Rule in the election of (the) Speaker"; "the rampant and systematic violation of the secret ballot"; "the failure to conduct the votes in secret as required"; and "an irregularity which is a grave breach of the Rules of Parliament."

The effect of the contention advanced by counsel for the appellants, on appeal, was that the members of the MDC-T party, who displayed the ballot papers to others so as to disclose for whom they had voted, had no right to do so.

In paragraph 6 of the answering affidavit, the first applicant emphasised the fact that he considered the failure by the Clerk to stop or prevent the members of the MDC-T party who displayed their ballots from doing so as unlawful. He said:

"6. His failure principally arose from his inability or unwillingness, for whatever reasons, to ensure that no Member left the polling booth, after voting, with an unfolded ballot paper, and that no Member openly displayed his or her marked ballot paper to any other Member for whatever reason."

In paragraph 178 of the answering affidavit, the first applicant summarized the issue for determination by the Court as follows:

"At issue is only the unchallenged fact in the papers, namely, that unfolded and marked ballot papers were displayed by many Honourable Members of the MDC-T party, including (the) second respondent, outside the polling booth during the election and that this was in violation of the procedure that marked ballot papers should be folded in the polling booth and (the) first respondent did nothing to stop this violation."

Counsel for the appellants argued, on appeal, that the failure by the Clerk to prevent or stop the members of the MDC-T party from displaying their ballot papers was evidence of breach by him of the duty to conduct the election of the Speaker by a secret ballot.

The court a quo found, on the facts, that only six members of the MDC-T party were shown to have come out of the polling booth with unfolded ballot papers and to have displayed the ballot papers to others so as to disclose for whom they had voted.

The finding was, again, justified.

Although the first and second applicants had alleged, in their affidavits, that "many" members of the MDC-T party had displayed their ballots, no evidence was produced to support the allegation.

The use of the word "many", in a case in which they were not able to state the number of the members of the MDC-T party who acted in the manner alleged, suggests that there was an element of exaggeration.

This is particularly so when regard is had to the fact that the applicants also said "some" members of the MDC-T party displayed their ballot papers so as to disclose to others for whom they had voted.

Given the fact that the applicants were seeking an order of nullification of the election, it was necessary that their case be based on clear evidence of the number of voters who displayed their ballot papers. The legal consequence would have been that the voters concerned had disenfranchised themselves by their own conduct.

Proceeding as the parties did on appeal, on the basis that six members displayed their ballots so as to disclose for whom they had voted, did the applicants show that those voters acted unlawfully? Did they ipso facto show that the Clerk acted unlawfully in failing to stop or prevent those voters from behaving in the manner they did?

I must add that the only reasonable inference from the circumstances of the case is that the six members displayed their ballot papers to other members of the MDC-T party to disclose to them that they had voted for the second respondent.

All members, including the six who displayed their ballot papers, had the right to waive the right to the secrecy of their votes.

In displaying the ballot papers to others, the six members exercised their right to share with any other person the knowledge for whom they voted.

As long as they were not coerced or compelled to expose their ballot papers to others, the voters acted lawfully. The power conferred on the Clerk, to conduct the election of the Speaker by a secret ballot, is limited by the right of the voter not to maintain the secrecy of his or her ballot.

The Clerk was not under any duty to stop or prevent the voters from voluntarily displaying their ballot papers to others so as to disclose for whom they had voted.

Whilst the duty on the Clerk, to maintain the secrecy of the ballot given by the voter, requires that he should refrain from doing anything that would compel the voter to disclose to any other person how he or she voted, it cannot be relied upon to justify conduct by which the voter would be prevented from freely exercising the right to disclose to whomsoever he or she chooses for whom he or she voted because the secrecy of the ballot is protected under the law for the benefit of the voter.

The Clerk owed the duty not to do anything to compel the voter to disclose for whom he or she voted to the voter. He cannot discharge the duty to the detriment of the interests of the voter by preventing or stopping him or her from exercising the right of disclosure of information as to how he or she voted.

It is clear that the duty on the Clerk was not to interfere with the recording, processing, and protection of a secret ballot as long as the voter maintained the secrecy of the ballot.

The applicants did not show that the Clerk acted unlawfully by not stopping or preventing the six members from displaying their ballot papers to others so as to disclose that they had voted for the second respondent. His duty was to manage and direct the activities of the electors in accordance with the rules designed to ensure a free and fair election by a secret ballot.

The applicants failed to establish the two grounds on which they sought the relief from the High Court by way of an order declaring the election of the second respondent as the Speaker of the House null and void and set aside.

The application ought to have been dismissed at that stage of the proceedings.

As I disagree with the learned Judge, on the comments he made on the legal consequences of the conduct of the six members in displaying their ballot papers to others so as to disclose for whom they voted, and also disagree with the learned CHIEF JUSTICE on the conclusion he reached that the counting by the Clerk of invalid votes cast by the six members as secret ballots nullified the election of the second respondent as the Speaker of the House, and not just the affected votes, I proceed to express my opinion on these matters.

The words "shall conduct the election of Speaker by a secret ballot" are placed in a statute by the provisions of which the Legislature recognised the possession by the members of the House present at its first meeting of the right to vote for the Speaker by a secret ballot.

The rule of law is that a right to vote must be exercised strictly according to the terms of the statute which confers it.

What this means, on the facts of this case, is that when the six members displayed their ballot papers to others, so as to disclose for whom they had voted, they voluntarily took their votes out of the system of the election by a secret ballot prescribed under section 39(2) of the Constitution, as read with Standing Order 6. By the same conduct by which they waived the right to the secrecy of their ballots, the voters lifted the veil of secrecy from the ballots rendering them void and of no value in the election of the Speaker.

I do not accept, as a correct statement of the law, the contention advanced by Mr Chaskalson and Ms Damiso, on behalf of the respondents, and accepted by the learned Judge in the court a quo, that the six ballots remained valid votes, notwithstanding the fact that they had been displayed by the voters concerned to others so as to disclose for whom they had been given.

The learned Judge, at p11 of the cyclostyled judgment, said:

"The courts should not interfere unless it is shown that the objective conditions put in place for the election precluded the possibility of a secret vote. Beyond this, it is then a matter purely for the individual voter if he chooses to divulge, whether publicly or in private, the specific manner in which he has cast his vote. If he does so of his own volition, without any external coercion or intimidation and howsoever his conduct might influence other voters, this cannot detract from the secrecy of his vote or vitiate the secrecy of the ballot as a whole."…,.

The statement that, a voluntary display by a voter of the ballot paper so as to disclose to other people for whom he or she voted does not "detract from the secrecy" of the vote, cannot be a correct statement of the legal effect of such conduct on the secrecy of the ballot affected.

The object of the ballot prescribed under section 39(2) of the Constitution, as read with Standing Order 6, is to secure complete secrecy as a condition of its validity, to be maintained not only by the voter desirous to elect the Speaker but by the official entrusted with the responsibility of conducting the election by a secret ballot during the electoral process, including the time when the counting of the votes takes place.

How can the official be able to maintain complete secrecy of a ballot in the face of conduct by the voter which removes the secrecy from the ballot? How the ballot can retain its secrecy thereafter I cannot imagine.

The secrecy is conferred on the ballot at the time the vote is given on the ballot paper in the polling booth. It must, however, be maintained thereafter to ensure the validity of the vote in the election of the Speaker.

It is clear, from the object of the statute and the procedure for voting, that a ballot paper which has a writing or mark made on it by which the identity of the voter can be known or one that is displayed to other people so as to disclose for whom the vote was cast, gets stripped of the secrecy of the ballot. The secret as a secret ceases to exist.

The ballot becomes void and cannot be counted in the election by a secret ballot.

The view expressed by the learned Judge did not take into account the effect of the requirement of the procedure provided by the Clerk for voting by a secret ballot.

The duty put on the voter desirous of maintaining the validity of his or her ballot in the election of the Speaker was that, after marking the ballot paper in the privacy of the polling booth, he or she would fold the ballot paper so as to conceal the ballot and keep it so folded until he or she deposited the ballot paper in the ballot box for safekeeping. The rule was to ensure the preservation of the secrecy of the ballot for the purpose of its validity in the election.

The direct effect of the voter displaying the ballot paper to other people, so as to disclose to them for whom he or she voted, is the invalidation of the ballot as a secret ballot.

Without pretending that there was no criterion by which a secret ballot had to be identified, I think the conclusion that the ballots displayed by the six voters to others, so as to disclose to them for whom they had voted, did not lose their secrecy, does not accord with what seems to have been the intention of the Legislature.

The proposition that the invalidity of the votes does not occur at the time the ballot papers are displayed so as to disclose for whom the vote was given would create a situation which would be quite unclear, and, to a certain extent, even illogical. Every exercise of a right has a direct consequence. The exercise of the right to vote which removes the secrecy of the ballot cannot have the same consequence as the exercise of the right which maintains the secrecy of the vote.

Failure by the Clerk to respond to the actions of the six voters and formally declare the ballots void did not change the fact that the ballots had been rendered invalid by the very actions of the voters.

The votes remained invalid at the time the Clerk counted them as secret ballots. He was not under any duty to count invalid votes as secret ballots. The statute is, in effect, clear that in no case will votes be allowed which are in any form other than the form of a secret ballot.

The result of the election of the Speaker, by a secret ballot, was not the number of votes cast, as some of them would have lost the essential element of secrecy as they travelled in their journey from the time they were cast to the time of counting. The result of the election was who was elected by a secret ballot.

The counting of invalid votes that had lost their secrecy affected two classes of voters:

(a) The first class is of voters who deliberately exercised their right to waive the benefits of the secrecy of the ballot by displaying the ballot papers to others so as to disclose for whom they had voted.

(b) The second class is that of voters who kept the knowledge for whom they voted to themselves.

The first class of voters had no right or legitimate expectation that their votes would be counted as valid votes. In this case, they did not, as a matter of fact, seek to enforce any such right or legitimate expectation. They appreciated the fact that they did not have such a protection. If anything, the legitimate expectation would have been that the votes they had voluntarily stripped of secrecy be not counted as secret ballots.

The second class of voters had the right or legitimate expectation that their votes and the election based on them be declared lawful. The applicants belonged to this class of voters. It appears that they are acting against their own interests and those of other voters in this class.

What right did they seek to protect or enforce by an order of nullification of the election?

If it is the right to a fair and free election by a secret ballot, they had to first show that it was violated by the respondents. They failed to show that violation.

Where there is proof of violation of electoral rights, such as the right to vote or to stand for election, the need to enforce the rights under judicial protection may require that the election be set aside if it was shown that the violation had undue influence on the result of the election.

There cannot be a remedy without proof of violation of a right.

The learned CHIEF JUSTICE reached the conclusion that nullification of the election was the only remedy for the unlawful conduct by the Clerk, of counting invalid votes as secret ballots. The reason was that, whilst imposing on the Clerk the mandatory obligation to conduct the election of the Speaker by a secret ballot, section 39(2) of the Constitution, as read with Standing Order 6, did not provide a remedy for the disobedience of the command.

The conclusion that nullification of the election was the only remedy for what, in reality, was a nullity in respect of the six votes, could only have been reached by implication of what is the intention of Parliament. It would be based on a construction of section 39(2) of the Constitution, as read with Standing Order 6, which presumes that it is the intention of the Legislature that voters who had complied strictly with the law and voted by a secret ballot for the Speaker should lose their valid votes on account of a failure by an official to discharge his duty not to count invalid votes as secret ballots.

The principle of law to be applied is that where an enactment imposes an obligation but is silent as to the remedy to be awarded for disobedience, a court must ascertain, from the language by which the obligation is imposed, whether it is the intention of the Legislature that nullification of the offending conduct should be the remedy to be awarded without any limit as to the scope of its operation or application.

MAXWELL on The Interpretation of Statutes 12ed…, summarises the principles to be applied as follows:

"…, when a statute requires that something shall be done or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance: is the requirement to be regarded as imperative (or mandatory) or merely as directory (or permissive)?

In some cases, the conditions or forms prescribed by the statute have been regarded as essential to the act or thing regulated by it and their omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the regard to them involving nothing more than liability to a penalty, if any, were imposed for breach of the enactment.

'An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.' Woodward v Sarsons (1875) LR 10 CP 733.

It is impossible to lay down any general rule for determining whether a provision is imperative or directory.

'No universal rule', said LORD CAMPBELL LC, 'can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.' Liverpool Borough Bank v Turner (1860) 2 De. G F & J 502 at pp507, 508.

And LORD PENZANCE said:

'I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the Act; and, upon a review of the case in that aspect, decide whether the matter is what is called imperative or only directory.' Howard v Bodington (1877) 2 PD 203 at p211."

See also Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S).

There is no question that section 39(2) of the Constitution, as read with Standing Order 6, is a mandatory enactment, the subject-matter of which is the election of the Speaker of the House. The object of the statute is to secure an election of the Speaker by members of the House qualified to vote by a secret ballot. The object is also to ensure, by the imposition of the obligation on the Clerk to conduct the election of the Speaker by a secret ballot, that there is provided mechanisms and procedures for the recording, processing, protecting, and counting of the secret ballot.

In other words, it is to ensure the establishment of an effective system for the election of the Speaker by a secret ballot conducted fairly, efficiently, and impartially.

The Clerk did put in place the mechanisms and procedures for the recording, processing, protection and counting of secret ballots.

Of the two hundred and eight members who voted, two hundred and two complied strictly with the requirements of the law for the exercise of their right to vote for the Speaker by a secret ballot - that is the main object for the achievement of which the provisions of section 39(2) of the Constitution, as read with Standing Order 6, were enacted.

He had assembled together all the necessary mechanisms which were required by the law governing the election to be put in place at the time prescribed to ensure delivery of the election of the Speaker by a secret ballot.

The six members who displayed their ballot papers to others, so as to disclose for whom they had voted, did so in the context of the mechanisms and procedures.

The failure committed by the Clerk was not to declare the invalid ballots void. It was the unlawful conduct of counting invalid ballots as secret ballots that has been used as a justification for the proposed award of the order of nullification of the election of the Speaker.

The disobedience did not relate to a secret ballot.

In other words, it is not a case of the Clerk failing to record, process, or count a secret ballot or declaring a secret ballot to be an invalid vote.

Had that been the case, the result of the election of the Speaker would have been affected by the disobedience of the Clerk to the duty to conduct the election of the Speaker by a secret ballot.

He had no power to decide what should be counted to ascertain the result of the election. He was told by the law what to count and for what purpose.

In this case, the Clerk counted what was at law a nullity as a secret ballot. His conduct did not give value to the invalid votes and did not in any way affect the result of the election of the Speaker.

The discounting of the invalid votes as well as the declaration of the conduct of the Clerk to be unlawful would not give rise to any difficulty in the determination of who the winner of the election of the Speaker was. The result of the election would not change.

The nullification of the election, based on a secret ballot, would subvert the purpose of the statute.

The general rule is that a declaration of nullity must be confined to the conduct in respect of a particular vote or class of votes, the invalidity of which has been established, unless the non-observance of the requirements of the law governing the specific duty is of a character which is contrary to the principle of an election by a secret ballot and is so great that it might have permeated the process and affected the result of the election: Phillips v Goff (1886) 17 QB 805.

There are numerous cases in which courts have struck off the invalid votes and declared conduct in respect of them void without affecting the election. The principle applied has been that to nullify the results of the election based on votes given by a secret ballot in strict compliance with the requirements of the law governing the election would imply that the provisions of the law complied with are misleading.

Had the Clerk declared the invalidity of the six votes at the appropriate stage in the election process, the declaration would have affected those votes only and not the other votes validly cast.

Why should the court, upon review of his conduct, in failing to do the right thing at the right time, go farther than the remedy the law had placed at his disposal had he acted lawfully?

The purpose of voting is not only the differentiation of the electorate and the expression of the will of the individual voters but also the ability to accept such decisions based on the will of the majority.

In my view, the principle of majority rule, on the basis of which results of democratic elections are determined, requires that courts should refrain from interfering with the will of the majority of voters expressed in accordance with the requirements of the law, on the ground that the official entrusted with the responsibility of conducting the election by a secret ballot unlawfully counted non-secret ballots as secret ballots - especially where there would be no confusion at all as to who is the winner following the discounting of the invalid votes.

An election may be set aside if it is not clear, upon determination of the conduct forming the ground on which the validity of the election is impugned, who was the winner.

In this case, there is clear evidence of the election of the Speaker of the House in accordance with the mode of voting prescribed by the law governing the election concerned.

The general principles of the law on which I have based my decision in this case and believe are applicable in the resolution of the questions raised were stated by LORD COLERIDGE CJ in Woodward v Sarsons (1875) LR 10 CP, referred to with approval in Chanter v Blackwood (1904) 1 CLR 39…,. He said:

"As the first point, we are of opinion that the true statement is that an election is to be declared void by the common law applicable to Parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws.

As to the first, the tribunal should be so satisfied, i.e., that there was no real electing by the constituency at all, if it were proved, to its satisfaction, that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer.

This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation or to be prevented from voting by want of the machinery necessary for so voting, as by polling stations being demolished, or not open or by other of the means of voting according to law not being supplied, or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes or false declaration of numbers by a Returning Officer, or by other such acts or mishaps.

And we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred.

But, if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void….,."

I am of the view that the construction of section 39(2) of the Constitution, as read with Standing Order 6, for the purpose of establishing the intention of the Legislature regarding the nullification of the election for the unlawful conduct of the Clerk, in counting invalid votes as secret ballots, does not justify the conclusion that it is the intention of the Legislature that breach of any of the numerous duties imposed on the Clerk, under the general obligation to conduct the election of the Speaker by a secret ballot, should attract an order of nullification of the election regardless of the nature of the neglect of duty and its effect on the "result of the election".

There can be no doubt that the majority of the voters freely expressed their preference of the candidate they wished to be the Speaker in the secrecy of the polling booth and exercised their right to maintain the secrecy of the ballot in accordance with the requirements of section 39(2) of the Constitution, as read with Standing Order 6.

The majority of the voters were enabled by the process conducted by the Clerk to freely elect, by a secret ballot, the Speaker from the two candidates.

To declare such an election void would be to declare void what is lawful.

The remedy awarded would be wholly disproportionate to the wrong committed. There was, in fact, no failure by the Clerk to conduct the election by a secret ballot within the meaning of the statute. The ballots which were effectively cast decided who was elected as the Speaker of the House.

The fact that the Clerk counted invalid votes as secret ballots because he had not seen the conduct by which they were rendered void did not change their invalid status.

The question is whether the purpose for which the powers to conduct the election of the Speaker by a secret ballot were conferred on the Clerk was fulfilled.

A close interpretation of the facts leads to the conclusion that the purpose of the statute was accomplished.

An appropriate remedy is one which accords with the intention of the Legislature.

In this case, it is the one that upholds the result of the election of the Speaker by a secret ballot.

The valid result is that the second respondent was elected the Speaker of the House by a majority of voters who cast secret ballots.

It would, in my view, be contrary to fairness and justice to say, as a matter of principle, that the Legislature intended that the election of the Speaker conducted by a secret ballot in terms of the law be nullified on account of, say, a single invalid vote counted by the official conducting the election as a secret ballot. The intention of the Legislature must be that only irregularities which undermined the achievement of the object or purpose of the legislation, of ensuring an election of the Speaker based on universal, equal, direct, and personal vote freely expressed by a secret ballot, should vitiate the election.

In the exercise of review powers, the court a quo came to the conclusion that the improper counting of invalid votes as secret ballots was not an irregularity of the class the Legislature intended would vitiate the election.

The conclusion is, in my view, not evidence of a misdirection on the part of the court a quo.

It is when the irregularity affected the actual discharge of the positive duty to conduct the election by a secret ballot, and not by any other type of vote, that it may be used as a ground for challenging the validity of the election by a secret ballot.

The Legislature prescribed the standard which had to be used by everyone, including the court, as an accurate and reliable criterion for determining the ballot papers which had to be counted to ascertain the result of the election.

Applying the test, the Clerk came to a wrong conclusion in respect of the six ballots cast for the second respondent. They were not secret ballots qualified to be counted.

The court a quo was, on the facts, in a position to apply the criterion to the ballot papers and arrive at the conclusion the Clerk ought to have reached in respect of the invalidity of the six ballots had he properly applied the prescribed test.

If it had to set aside anything, the court a quo should have set aside the counting of the ballot papers made by the Clerk and not the election itself.

The legality of the election was dependent upon the will of the electorate having been freely expressed by a secret ballot reflected by accurate and reliable results. The unlawful act of counting six invalid votes as secret ballots because of the wrong application of the prescribed standards of differentiating secret ballots from non-secret ballots did not disable the court, which had jurisdiction to do so, from objectively scrutinising the facts and obtaining a reliable result of the election. The court would be acting within the bounds and limits of the requirement that there should have been brought about an election of the Speaker by secret ballot on the basis of universal, equal, direct, and personal right to vote freely expressed according to the principle of majority rule.

I would therefore dismiss the appeal....,.

The appeal is dismissed with no order for costs.

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

The appellants, as the applicants in the court a quo, sought the following relief set out in the draft order:

"WHEREUPON after perusing the documents filed of record and hearing counsel, it is hereby declared that:-

1. The election of (the) second respondent as the Speaker of the Parliament of Zimbabwe on 25 August 2008 is null and void and set aside.

2….,.

3. That the respondents jointly and severally pay the costs of suit."

(The applicants abandoned the relief set out in paragraph 2).

The appellants' main contention in the court a quo, and in this Court, is that the election of the Speaker was null and void because it was not conducted in terms of section 39 of the Constitution of Zimbabwe (hereinafter referred to as "the Constitution"), as read with Standing Order 6 of the Standing Orders of Parliament of Zimbabwe (hereinafter referred to as "the Standing Orders").

PATEL J dismissed the application. The appellants now appeal against that judgment....,.

SANDURA JA: I have read the judgment prepared by CHIDYAUSIKU CJ, but respectfully disagree with it.

The judgment is based on the principle that a peremptory enactment must be obeyed or fulfilled exactly, and that in respect of a directory enactment substantial compliance therewith will suffice.

That principle was disapproved of and abandoned by this Court, about twenty-two years ago, in Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (SC).

At 301B-302B GUBBAY JA …, with the concurrence of McNALLY JA and MANYARARA JA, said the following:

"The categorisation of an enactment as 'peremptory' or 'directory', with the consequent strict approach that if it be the former it must be obeyed or fulfilled exactly, while if it be the latter substantial obedience or fulfilment will suffice, no longer finds favour.

As was pertinently observed by VAN DEN HEEVER J (as he then was) in Lion Match Co. Ltd v Wessels 1946 OPD 376 at 380 the criterion is not the quality of the command but the intention of the legislator, which can only be derived from the words of the enactment, its general plan, and objects.

The same sentiment was expressed by MILNE J in J.E.M. Motors Ltd v Boutle & Anor 1961 (2) SA 320 (N) at 327 in fine – 328B.

This approach received the imprimatur of the South African Appellate Division in Maharaj & Ors v Rampersad 1964 (4) SA 638 (A), where, after concluding that the provision with which he was concerned was imperative, VAN WINSEN AJA went on to enquire whether the failure in strict compliance therewith was fatal. He propounded the following test at 646C-E:

'The enquiry, I suggest, is not so much whether there has been "exact", "adequate" or "substantial" compliance with this injunction, but, rather, whether there has been compliance therewith.

This enquiry postulates an application of the injunction to the facts and a resultant comparison between what the position is and what, according to the requirements of the injunction, it ought to be. It is quite conceivable that a Court might hold that, even though the position as it is, is not identical with what it ought to be, the injunction has nevertheless been complied with.

In deciding whether there has been a compliance with the injunction the object sought to be achieved by the injunction and the question of whether this object has been achieved are of importance.'…,.

See also Shalala v Klerksdorp Town Council & Anor 1969 (1) SA 582 (T) at 587H-588B; Nkisimane & Ors v Santam Insurance Co. Ltd 1978 (2) SA 430 (A) at 433H-434E; and, more recently, Ex p Dow 1987 (3) SA 829 (D) at 831B-D.

Judges in this country also have not been slow to move away from the traditionally strict approach. See Swift Transport Services (Pvt) Ltd v Pittman NO & Ors 1975 (2) RLR 226 (GD) at 228C-229C, 1976 (1) SA 827 at 828; Macara v Minister of Information, Immigration and Tourism & Anor 1977 (1) RLR 67 (GD) at 70H; Ex p Ndlovu 1981 ZLR 216 (GD) at 217F-G.

Testing the matter then in the manner approved by these authorities, one is constrained to discover the object of section 3(1) of the Regulations to determine whether that object is fundamental to the policy of the enactment, and, if it is, to decide whether it is defeated or frustrated by the non-compliance complained of. The degree of observance and non-compliance is another relevant consideration."

In that case, GUBBAY JA was considering whether section 3(1) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, 1985 ("the Regulations") (now repealed) had been complied with.

The facts in that case are set out in the headnote, which, in relevant part, reads as follows:

"In July 1987, the appellant, the respondent's employer, suspended the respondent from her employment without pay, pending the outcome of the appellant's request to the Ministry of Labour for her dismissal on the grounds of having stolen a confidential document from the company. The relevant section of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations required that (the) application be made to a labour relations officer, but, the appellant applied to an acting regional hearing officer in the Ministry…..,."

Having found that the object of the requirement of section 3(1) of the Regulations (i.e. that upon suspension of an employee without pay and other benefits the employer was to apply forthwith to a labour relations officer for an order or determination terminating the contract of employment) was predominantly the protection of the interests of the employee, that that object was not frustrated or materially impaired by the employer proceeding in the manner it did, and that the degree of non-compliance was by no means great, the Court held that section 3(1) of the Regulations had been complied with.

In my view, the principles set out in the above authorities are the principles which should be applied in the present case in order to determine whether Standing Order No. 6 ("the Standing Order") was complied with in the election of the Speaker.

In this regard, the following questions arise for consideration –

1. What is the object sought to be achieved by the Standing Order?; and

2. Was that object achieved in the election of the Speaker?

I shall deal with the questions in turn.

What is the object sought to be achieved by the Standing Order?

The Standing Order reads as follows:

"If more than one person is proposed as Speaker, the Clerk shall conduct the election of the Speaker by a secret ballot."

In my view, the object sought to be achieved by this Standing Order is the same as the object sought to be achieved by the secret ballot system all over the world. It is to protect the voter, mainly against intimidation and victimisation, by enabling him or her to vote freely and in secret for the candidate of his or her choice, without fearing that other people would know for which candidate he or she has voted.

The secret ballot system, in this country, has its origin in the Ballot Act 1872, which introduced a secret system of voting in Parliamentary and Municipal elections in Great Britain. Before the Ballot Act was enacted, in 1872, Britain had an open system of voting in Parliamentary and Municipal elections.

In Parliamentary elections, the voter would go onto a platform at the polling station and announce his choice of candidate to an officer, who then recorded it in what was called a Poll Book. Intimidation and victimization were rife. Employees were required, by their employers, to vote for particular candidates or lose their employment. The same applied to tenants. If they did not vote as the landlord wanted them to vote, they were evicted from the premises they occupied. In the circumstances, there was a growing demand for the protection of the voter against intimidation and victimisation by enabling him to vote freely and in secret. As a result, the Ballot Act 1872, which introduced a secret system of voting, was enacted in order to meet that demand.

The Act required that Parliamentary and Municipal elections be by secret ballot. Subsequently, when this country became a colony of Great Britain the secret ballot system was introduced in the country.

In my view, the object sought to be achieved by the secret ballot system in Great Britain is the same as the object sought to be achieved by the Standing Order. That object is fundamental to the policy of the Standing Order.

Was the object sought to be achieved by the Standing Order achieved in the election of the Speaker?

In my view, there can be no doubt whatsoever that the answer to that question is in the affirmative.

All the two hundred and eight Members of Parliament ("MPs") present marked their ballot papers in the secrecy of the polling booths. Each MP was protected against intimidation and victimization, and was enabled to vote freely and in secret for the candidate of his or her choice, without fearing that other people would know for which candidate he or she had voted.

Some MPs emerged from the polling booths with their ballot papers folded, whilst others emerged from the polling booths not having folded their ballot papers. However, there was no evidence suggesting that any MP who had wanted to keep his or her ballot paper folded at all times outside the polling booth had been prevented from doing so. In addition, no MP ever complained to the Clerk of Parliament that he or she had been compelled to display his or her marked ballot paper to any other person.

However, assuming that it is correct that the six MPs who displayed their marked ballot papers did not comply with the Standing Order, the object sought to be achieved by the Standing Order was, nevertheless, not defeated or frustrated by the non-compliance complained of.

Of the two hundred and eight MPs who voted, only six (i.e. about 2.9 percent of the total) displayed their marked ballot papers before depositing them in the ballot boxes, whilst two hundred and two (i.e. about 97.1 percent of the total) voted in accordance with the provisions of the Standing Order.

Quite clearly, the degree of non-compliance was insignificant, whereas the degree of compliance was nearly one hundred percent.

In the circumstances, as the object sought to be achieved by the Standing Order was achieved and not defeated or frustrated by the non-compliance complained of, and, as the degree of the alleged non-compliance was insignificant, it follows that the Standing Order was complied with in the election of the Speaker.

Finally, I would like to comment on section 177 of the Electoral Act [Chapter 2:13] ("section 177 of the Act"). It reads as follows:

"An election shall be set aside by the Electoral Court by reason of any mistake or non-compliance with the provisions of this Act if, and, only if, it appears to the Electoral Court that –

(a) The election was not conducted in accordance with the principles laid down in this Act; and

(b) Such mistake or non-compliance did affect the result of the election."

Section 177 of the Electoral Act has its origin in the Ballot Act 1872 ("the Ballot Act"), which introduced the secret ballot system in Britain. Section 13 of the Ballot Act provided as follows:

"No election shall be declared invalid by reason of a non-compliance with the rules contained in the First Schedule to this Act if it appears to the tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of this Act, and that such non-compliance or mistake did not affect the result of the election."

Subsequently, section 13 of the Ballot Act was reproduced, in almost identical language, by the Legislature of the Colony of Southern Rhodesia, in the Electoral Act 1928. Section 60 of that Act read as follows:

"No election shall be set aside by the court by reason of any mistake or non-compliance with the provisions of this Chapter, if it appears to the court that the election was conducted in accordance with the principles laid down in this Chapter, and that such mistake or non-compliance did not affect the result of the election."

Thereafter, section 60 of the Electoral Act 1928, was reproduced, in almost identical terms, in every Electoral Act enacted in this country, as can be seen from the following provisions –

1. Section 85 of the Electoral Act 1938;
2. Section 85 of the Electoral Act [Chapter 2];
3. Section 88 of the Electoral Act 1951;
4. Section 182 of the Electoral Act 1969;
5. Section 156 of the Electoral Act 1979;
6. Section 38 of the Electoral Amendment Act 1987;
7. Section 142 of the Electoral Act 1990;
8. Section 149 of the Electoral Act [Chapter 2:01]; and
9. Section 177 of the Electoral Act [Chapter 2:13].

Thus, the principle that an election will not be set aside by the court for non-compliance with the provisions of the electoral law if the election was conducted in accordance with the principles of the electoral law, and the non-compliance did not affect the result of the election, is well-established and has been part of the electoral law of this country for at least eighty-two years.

It is based on common sense, for there would be no good reason for setting aside an election on the basis of an irregularity which did not affect the result of the election.

However, as I have already determined that the election of the Speaker was conducted in accordance with the principles of the Standing Order, and, as it was common cause that the non-compliance complained of did not affect the result of the election, the only remaining issue for me to determine is whether the principle that the court would not set aside an election on the basis of an irregularity which did not affect the result of the election, applies to the election of the Speaker.

I have no doubt in my mind that it does. In fact, there is no logical reason whatsoever why it should not apply.

In my view, the fact that the Standing Order does not state the principle is of no significance. The principle is based on common sense, and common sense dictates that if an irregularity does not affect the result of the election, it cannot form a basis for the nullification of the election.

In addition, when the Standing Order was drafted, Parliament must have been aware that the principle had been part of the electoral law of this country for a very long time, and must have felt that there was no need to include in the Standing Order an obvious principle based on common sense. In any event, one would not expect the sort of details which usually appear in a statute to be set out in a Standing Order.

Finally, I would like to comment on the following statement in the majority judgment:

"It is unacceptable that Parliament should seek to salvage a shambolic and chaotic election of a Speaker through the doctrine of substantial compliance."

In my view, the description of the election as "shambolic and chaotic" is not borne out by the finding made by the learned Judge in the court a quo, which was as follows:

"As regards the conduct of the election in casu, generally, the papers before the Court evince several conflicts of fact as to what transpired at the time. The applicants' assertions that the proceedings were brazenly unruly are squarely rebutted by the averments of the first respondent. In this situation, the approach to be adopted was explained by GUBBAY JA (as he then was) in Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S) at 339, as follows:

'It is, I think, well established that in motion proceedings a court should endeavour to resolve the dispute raised in affidavits without the hearing of evidence. It must take a robust and common sense approach and not an over fastidious one; always provided that it is convinced that there is no real possibility of any resolution doing an injustice to the other party concerned. Consequently, there is a heavy onus upon an applicant seeking relief in motion proceedings, without the calling of evidence, where there is a bona fide and not merely an illusory dispute of fact.'

Having regard to the overall scenario prevailing in the House on the day in question, it seems reasonably clear that the election proceedings under review were not conducted in an ideal manner. Nevertheless, despite the imperfections alluded to above, it cannot be said that the process was so disorderly as to be utterly chaotic. On the contrary, all the Members in the House were duly called upon to vote and were able to cast their votes in the polling booths provided.

Taking into account the usual volatility associated with the conduct of Parliamentary business generally, I am inclined to take the robust view that the election proceedings, as a whole, were sufficiently regulated to enable the election to take place to a satisfactory conclusion."…,.

In any event, as the appellants elected to proceed by way of motion proceedings in the court a quo, any disputes of fact between the parties had to be resolved in favour of the respondents: see Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

In this regard, it is pertinent to note that the allegation that the election was chaotic was denied by the respondents.

Accordingly, I would dismiss the appeal with costs.

View Appeal
HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO
Ruled By: PATEL J

The applicants in this matter are all duly elected Members of Parliament. The first respondent is the Clerk of Parliament, cited herein in his official capacity.

The second respondent was elected to the position of Speaker of the House of Assembly on the 25th of August 2008.

The applicants challenge the validity of the second respondent's election as Speaker on several grounds.

They originally sought an order setting aside the second respondent's election, and, consequentially, an order nullifying all acts performed by him qua Speaker. However, at the hearing of this case, counsel for the applicants conceded the excessiveness and enormity of the consequential relief sought and opted not to pursue that aspect.

Background

By virtue of section 39(2) of the Constitution of Zimbabwe, the Speaker must be elected in accordance with the Standing Orders of the House of Assembly.

On the 25th of August 2008, following the swearing-in of Members of Parliament (Members), the first respondent announced the procedure for the election of the Speaker. As there was more than one person proposed as Speaker, the election was to be conducted by secret ballot as enjoined by Standing Order Nos. 4 and 6 of the House of Assembly.

According to the applicants, what ensued in Parliament thereafter was chaotic and disorderly and quite contrary to the requirements of a secret ballot.

The first respondent concedes that there was an unprecedented number of Members in the Chamber on that day but denies that the voting process was disorderly or improper. The second respondent supports this position and also raises several preliminary objections to the application, pertaining to locus standi, non-joinder, and the exhaustion of domestic remedies.

The Issues

In the event, the preliminary and substantive issues for determination in this matter, as I perceive them, are as follows:

(i)...,.

(ii)...,.

(iii) Whether the applicants should have exhausted domestic remedies available in Parliament before approaching this Court....,.

Exhaustion of Domestic Remedies

The second respondent avers that the applicants did not lodge any formal objection or complaint with the first respondent before the election result was announced. It was incumbent upon the applicants to have exhausted relevant Parliamentary processes before approaching this Court. In this regard, counsel for the second respondent relies upon the decision in Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC)…,

He submits, quite correctly, that the nature of the relief sought by the applicants carries far-reaching implications for the separation of powers doctrine because it asks the judiciary to interfere with the internal proceedings of Parliament. Consequently, the Court should not recognise the applicants' locus standi to claim such relief unless they have made proper and diligent attempts in Parliament to redress the conduct complained of or provide a satisfactory explanation for their failure to do so.

As is clearly recognised in section 5 of the Privileges, Immunities and Powers of Parliament Act [Chapter 2:08], Members enjoy full freedom of speech and debate in Parliament and the proceedings of Parliament are generally immune from being questioned or impeached in any court of law. In other words, as a general rule, Parliament is at large to regulate its own proceedings without external interference.

However, it is well-established that in a constitutional democracy, such as ours, this general immunity is necessarily and invariably subject to the provisions of the Constitution. This subordination to the primacy of the Constitution is entrenched and clearly recognised in sections 3 and 49 of the Constitution. See Smith v Mutasa N.O. & Another 1989 (3) ZLR 183 (SC)…,; Chairman, Public Service Commission & Others v Zimbabwe Teachers Association & Others 1996 (1) ZLR 637 (S)…,.

The election of the Speaker is a process that is not exclusive to Parliamentary privileges and powers. It is explicitly regulated by section 39 of the Constitution and there can be no doubt that it is a matter that is justiciable by the courts to ensure due compliance with the Constitution and the Standing Orders.

Nevertheless, I fully endorse the approach enunciated by the Constitutional Court of South Africa in Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC) and concur that this Court should be loathe to interfere with the internal proceedings of Parliament unless it is shown that the applicants have attempted to exhaust relevant Parliamentary processes in the first instance.

In the instant case, it appears from the first applicant's affidavit that several queries were raised by certain Members during the election process but the first respondent refused to take any questions throughout the election.

What is not clear from the papers is whether the queries that were raised were by way of formal objection or mere interjection.

In this respect, counsel for the first respondent submits that the first respondent was entitled to ignore informal protests or interjections and that any MP wishing to be heard had to make a formal objection by standing up and raising a “point of order” as envisaged in Standing Order Nos. 49 and 61.

As against this, counsel for the applicants argues that, although the conduct of normal Parliamentary business does admit the possibility of formal objections, there is no equivalent procedure prescribed in the Constitution or in the Standing Orders with respect to the election of the Speaker that enables the Clerk of Parliament to deal with formal objections.

Having regard to the Standing Orders, taken as a whole, I am inclined to agree with counsel for the applicants. Standing Order Nos. 49 and 61, relating to formal speeches and objections, are contained in the Section titled PUBLIC BUSINESS, and, more specifically, in the sub-section titled Order in House and Rules of Debate.

As appears from Standing Order Nos. 7 and 17, the Speaker holds the Chair for the conduct of public business generally. In the absence of the Speaker, the Deputy Speaker assumes the Chair, and, in the absence of both, the Chair is assigned to the Deputy Chairperson of Committees or a member of the Chairperson's panel.

At no stage does the Clerk of Parliament exercise the powers of the Chair in the conduct of ordinary public business to which the procedures outlined in Standing Order Nos. 49 and 61 apply.

The only occasion on which the Clerk holds the Chair is for the purpose of conducting the election of the Speaker in terms of Order Standing Order Nos. 3 to 7.

These Standing Orders are contained in the section titled PROCEEDINGS ON MEETING OF NEW PARLIAMENT.

As I have already noted, Standing Order Nos. 49 and 61, which provide for formal objections, are to be found in an entirely different section, and, therefore, they do not apply to Standing Order Nos. 3 to 7 governing the election of the Speaker.

Arguably, the power of the Chair to take and deal with formal objections could and should be implied, mutatis mutandis, in the latter context as well. However, a strict interpretation of the Standing Orders precludes any such importation in the absence of clear language to that effect.

It follows from all of this that the Standing Orders do not prescribe any procedure for the raising of formal objections during the election of the Speaker and before the election result is announced. It also follows that, in the absence of any such procedure, there was no internal Parliamentary process that the applicants could be required to exhaust before approaching this Court for the relief that they seek.

That being so, the second respondent's preliminary objection in this regard cannot succeed and must be dismissed....,.

As I have already stated earlier, Parliament is generally at large to regulate its own proceedings without external interference. As a rule, the courts should be loathe to interfere with the internal proceedings of Parliament unless there is a failure to comply with Constitutional strictures.

CC10-18 : INNOCENT GONESE and JESSIE MAJOME vs PRESIDENT OF ZIMBABWE and PARLIAMENT OF ZIMBABWE and MINISTER OF LOCAL GOVERNMENT AND PUBLIC WORKS AND NATIONAL HOUSING N.O.
Ruled By: GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, UCHENA JCC and BHUNU JCC

Section 139(1) of the Constitution deals with the regulation of the proceedings of the Senate and the National Assembly by Rules known as Standing Orders. In terms of section 139(2): “Standing Orders may provide for - (a) The passing of Bills; (b)…,.; (c)…,.; (d)…,.; (e)…,.; (f)…,.; and (g) Generally, the regulation and orderly conduct of business and proceedings in and between the Houses.” The broad objectives of ...

View Appeal
HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO
Ruled By: PATEL J

I agree with counsel for the applicants that the provisions of section 39(2) of the Constitution, as read with Standing Order No.6, are peremptory and must be strictly complied with.

Appealed
SC110-21 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

A statutory prohibition is mandatory and binding on the parties as everyone is presumed to know the law regardless of whether one has read and understood the law.

CC04-23 : EDWIN MUSHORIWA and FIRINNE TRUST OPERATING AS VERITAS and BRIAN CROZIER and VALERIE INGRAM-THORPE vs PARLIAMENT OF ZIMBABWE and PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

In this application, the applicants seek an order declaring that the Parliament of Zimbabwe (“Parliament”) and the President of the Republic of Zimbabwe (“the President of Zimbabwe” or simply 'the President') have failed to fulfil certain constitutional obligations delineated in section 328 of the Zimbabwe Constitution in passing Constitution of Zimbabwe Amendment (No.2) Act 2021 (“the Constitution Amendment Act”).

More specifically, the applicants allege that the Bill that was eventually passed by Parliament, on 7 May 2021, contained a number of major and material amendments to the original Bill.

Maintaining that the Bill that is passed by Parliament must be the same Bill as that originally gazetted, they seek, as consequential relief, an order setting aside the entire Constitution Amendment Act; alternatively, an order striking down the particular sections of the Constitution Amendment Act which they consider to have been irregularly enacted.

Various objections were taken in limine by the respondents, both in their opposing papers and heads of argument. The applicants also raised a number of preliminary points arising from the opposing papers filed by the respondents.

The court, of its own motion, invited Ms Sanhanga to appear as amicus curiae, and, consequent to that invitation, she filed heads of argument dealing with the various contentions raised by the parties.

Having considered the facts of this matter in their totality and the submissions by the parties, as well as amicus curiae, I reach the conclusion, that, the Constitution Amendment Act was properly passed.

The application must therefore fail....,.

FACTUAL BACKGROUND

The first applicant, Edwin Mushoriwa (“Mushoriwa”) is a Member of Parliament for the Dzivarasekwa Constituency in Harare, having been so elected in the 2018 harmonised elections.

The second applicant, Firinne Trust operating as Veritas (“Firinne Trust”), is a trust constituted in accordance with the laws of this country. It is a human rights organisation involved in the advocacy of human rights and constitutionalism in Zimbabwe. It further states that part of its mandate is to publicise the work of Parliament and analyse Bills and legislation to ensure adherence to constitutional principles and respect for human rights.

The third applicant, Brian Crozier (“Crozier”), is a registered legal practitioner, who, for many years, worked as the Chief Legal Draughtsman in the Ministry of Justice, Legal and Parliamentary Affairs. With others, he was involved in the drafting of the 2013 Constitution. He states that he has devoted much of his life in defending the rule of law and human rights.

The first respondent, the Parliament of Zimbabwe (“Parliament”) is the organ of State that is charged with the responsibility of initiating, preparing, considering, and rejecting legislation. Its legislative authority is exercised through the enactment of Acts of Parliament. The Legislature of Zimbabwe consists of Parliament which passes Bills and the second respondent, the President of Zimbabwe, who assents to and signs Bills presented to him by Parliament to enable Bills to become Acts of Parliament.

The Constitution of Zimbabwe Amendment (No.2) Bill (“the Constitution Amendment Bill”) was gazetted as Bill HB23/2019 on 31 December 2019 through General Notice 216/2019. It was eventually passed by Parliament on 7 May 2021.

It is common cause, that, during its second reading, the Minister of Justice, Legal and Parliamentary Affairs, in response to points made during the debate, gave notice that he would be moving amendments to the Bill at the Committee Stage scheduled for the following day. The suggested amendments were published in the order paper for the following day. In addition to the amendments proposed by the Minister, other amendments were proposed from the floor.

These amendments were accepted and adopted during the Committee Stage.

It is these amendments and their constitutionality that the applicants take issue with.

APPLICANTS CASE BEFORE THIS COURT

In his founding affidavit, Edwin Mushoriwa states that the Bill that was eventually passed by Parliament, on 7 May 2021, contained major and material amendments that were incorporated into the original Bill.

He states, that, it is unlawful for Parliament to pass a Constitutional Bill which is not, in express terms, the same as that which was originally gazetted in terms of section 328(3) of the Constitution. In other words, so he averred, the Bill that is passed by Parliament must be the same Bill as that originally gazetted.

Because the Bill that was eventually passed contained major amendments, it became materially different from the original Bill and was, consequently, invalid.

He avers that where, as in this case, there are major and material amendments to a Constitutional Bill that has been gazetted in terms of section 328(3) of the Constitution of Zimbabwe, then, such amendments should be gazetted for a further period of ninety (90) days in terms of the same section and subjected to further debate by members of the public in public meetings and through written submissions as provided for in subsection (4) of section 328 of the Constitution.

In failing to ensure that section 328 of the Constitution was complied with, both Parliament and the President failed to fulfil the constitutional obligation to pass a Bill that complied with section 328 of the Constitution.

The Bill was passed by both the National Assembly and the Senate in May 2021 and was signed and gazetted into law by the President on 7 May 2021 as Constitution of Zimbabwe Amendment (No.2), Act No.2 of 2021.

The applicants itemise the amendments they say were material that were introduced at the Committee Stage of Parliament as being the following:

(a) The proviso that was added to section 124 of the Constitution relating to a proposal by Priscilla Mushonga, for political parties to ensure that ten of the sixty women members would be persons under the age of thirty five; that women with disabilities are represented on party lists, and young women with disabilities are represented on their party lists in terms of an Act of Parliament.

(b) The amendment to section 180 of the Constitution which now made provision that an appointment of a Judge could be made by the President whenever it becomes necessary to do so rather than whenever a vacancy arose.

(c) The amendment to section 186 of the Constitution increasing the retirement age of Judges from 70 to 75 years subject to an election by the Judge to continue and approval by the President. It further provided, that, notwithstanding the provisions of section 328(7) of the Constitution, the amendment would apply to the continuation in office of the Chief Justice, Deputy Chief Justice, Judges of the Constitutional Court and Supreme Court.

(d) The amendment to section 199 providing that 10% of persons to be employed in the public service would be persons with disabilities.

(e) The amendment to section 268 providing that members of a provincial council should include ten women elected by a system of proportional representation.

(f) The amendment to section 327 excluding from Parliamentary scrutiny loans and agreements referred to in section 300(3) and (4) of the Constitution.

PARLIAMENT'S NOTICE OF OPPOSITION

The notice of opposition was deposed to by the Speaker of Parliament, Jacob Mudenda.

In his opposing affidavit, he disputed that Parliament was required to re-gazette the amendments that were incorporated into the original Bill or that there was an obligation, on the part of Parliament, to invite members of the public, once again, to express their views in respect of the same.

He stated that there is no provision in the Constitution which requires amendments to be re-gazetted or subjected to further public meetings and consultation. It was his further contention, that, had the intention been that a gazetted Bill should be passed without amendments, the section in question would have stated accordingly.

In any event, so he argued, there would be no purpose in having parliamentary debates if Parliament is not allowed, at the end of the day, to make amendments where it deems fit. Such an interpretation of section 328 of the Constitution would lead to an absurdity.

He further averred, that, Parliament did, in fact, comply with the provisions of section 328(3) of the Constitution.

The Speaker duly gazetted the Bill as required by section 328(3) of the Constitution. Thereafter, pursuant to subsection (4), Parliament duly invited members of the public to express their views on the Bill, both in public meetings and through written submissions. He further stated, that, the amendments came about as a result of parliamentary debate and that the amendments did not, in any event, change the complexion of the Bill.

Endorsing the Bill with obvious shortcomings would have constituted a failure on the part of Parliament to perform its constitutional obligation.

He further stated, that, since there is no provision which prohibits Parliament from making amendments to a Constitutional Bill, the matter does not therefore fall within the ambit of section 167(2)(d) of the Constitution.

THE PRESIDENT'S NOTICE OF OPPOSITION

The opposing affidavit of the President was deposed to by the Attorney-General who has averred that he has been authorised by the President to depose to the affidavit.

The Attorney-General has taken a number of preliminary points:

(i) First, that the application is fatally defective, having been brought in terms of section 16(2)(d) of the Constitution, which is a non-existent provision.

(ii) Second, that not having alleged a contravention of their fundamental rights espoused in Chapter 4 of the Constitution, the applicants have no legal standing to challenge the validity of the Constitution Amendment Act.

(iii) Third, that the same matter is pending before this court in the application filed by the second applicant jointly with Eric Matinenga and Ors in CCZ14/21. The matter is therefore already pending before this court and the present application ought therefore to be dismissed with costs.

(iv) Fourth, that Brian Carston Brown has no authority to bring these proceedings on behalf of Firinne Trust.

The resolution attached to the founding affidavit gives general authority to the director of the Trust, one Dr Ingram Thorpe, to institute court proceedings, which she did in case number CCZ14/21. Brian Carston Brown was given alternative authority to depose to an affidavit only in situations where Dr Thorpe would have failed to do so.

(v) Fifth, that Firinne Trust, being a trust, has not established that it has been given legal capacity, in terms of its constitution, to institute proceedings in its own name as opposed to the names of its trustees. The assertion that it has power to sue and be sued remains a bald one.

On the merits, the Attorney-General states that he does not accept that there were material differences between the Bill that was gazetted and the Bill that was eventually passed.

Further that, in any event, there is nothing in the Constitution which prevents Parliament from effecting amendments to a Bill that is passed as a law.

He also submits that no attempt has been made to identify the specific constitutional obligation that is alleged to have been breached by Parliament or the President.

He has further stated, that, the Bill in question was subjected to all the necessary requirements in terms of section 328 of the Constitution of Zimbabwe.

There is no constitutional requirement for any amendments effected to a Bill to be gazetted for the second time.

The averments made by the applicants, in their founding affidavits, show that there was publication of the Bill and interested persons were given the opportunity to make contributions in respect of the contents of the Bill.

He argues, that, the applicants are therefore introducing an additional constitutional requirement where none exists.

He states, that, taken to its logical conclusion, the proposition by the applicants is that amendments that are proposed after gazetting must themselves constitute a separate Constitutional Bill and become subject to further gazetting and the ninety-day notice in the Gazette.

On the amendments introduced during the Committee Stage, he submits that there is nothing in the Constitution that precludes Parliament from incorporating into the Bill suggestions made by members of Parliament during the Committee Stage. The intention of having debates in Parliament is to ensure that the Bills are fine-tuned, adjusted, and amended to suit the needs of society.

APPLICANTS ANSWERING AFFIDAVITS

In their answering affidavits, the applicants state that the President has duties that are defined in Part 2 of Chapter 5 of the Constitution. Section 90(1) of the Constitution makes it clear that he must uphold, defend, obey, and respect the Constitution. To the contrary, they allege that he and Parliament are responsible for its mutilation.

The applicants also take issue with the affidavit deposed to by the Speaker on behalf of Parliament.

Accepting that the Speaker is the head of Parliament, they state, however, that he is not Parliament, which consists of two chambers. The two houses should have separately resolved to defend this matter and given him specific authority to defend this application.

They further argue, that, the effect of introducing material amendments at the Committee Stage of Parliament is to deny the imperator prescribed in subsections (2), (3) and (4) of section 328 of the Constitution.

A holistic and contextual construction of section 328 of the Constitution is imperative. It must be one that seeks to protect the Constitution and not destroy it.

The applicants accept that Parliament has the right to debate a Bill and to reject some of its provisions. But, they do not accept that Parliament, at the instance of the executive, or anyone else, can introduce material amendments that were not part of the original Bill when gazetted.

Where there is a counter-proposal in the ensuing debate in Parliament, the executive must go back to the drawing board and re-gazette a fresh amendment arising out of those consultations.

In other words, the Bill presented and gazetted in terms of section 328(1), (2) and (3) of the Constitution cannot have amendments that by-pass the obligation for public participation as well as the obligation for the Speaker to give at least ninety days notice of such Bill in the Gazette specifying the precise terms of the Bill.

The applicants also take the point, that, it is not competent for the Attorney-General to depose to an affidavit on behalf of the President who is his client.

On the point taken by the President, that, the applicants cannot approach this court in terms of section 16 (2)(d) of the Constitution, the applicants say that this is an “ipse dixit…, raised by hired guns, acting on behalf of the 2nd respondent, who has no morality, no conscience, no decency other than their bottom line.”

They further state, that, the objection is “nothing but sophistry pedantism and typical of those who do not respect the Constitution and who do not respect the rule of law in this country.”

On the suggestion that the present application was the result of cutting and pasting of the Eric Matinenga and Ors CCZ14/21 application, the applicants deny that the respective causes of action are similar, regard being had to the fact, that, in Eric Matinenga and Ors CCZ14/21, the application is based on the doctrine of basic structures, which is not the position in the present matter. They submit that conflating the two applications would have been undesirable.

The applicants state further, that, the Firinne Trust has the legal capacity to sue and be sued.

They aver however that even if it does not have such capacity, the first and third applicants, who are natural persons, are before the court.

They state that there is no point “raising an objection that does not advance any cause other than irritation.”

Brian Carston Brown avers, that, the Deed of Trust of the second applicant authorises the Trust to bring and defend proceedings. He does not, however, attach a copy of the Trust Deed.

The applicants further stress, that, no material amendments can be passed at the Committee Stage of Parliament and neither can amendments which would not have been subjected to a process of participatory democracy in terms of section 328 of the Constitution.

They argue that if this were to be allowed, it would mean the Executive would ambush the public by introducing major material and far-reaching amendments on an unsuspecting public.

APPLICANTS HEADS OF ARGUMENT

In their heads of argument, the applicants submit that both Parliament and the President failed to fulfil their constitutional obligations in respect of the passage of the Constitution Amendment Act, and, more specifically, in enacting “ungazetted and unconsulted amendments.”

In summary, they submit that it is unconstitutional for Parliament to pass amendments that are not expressed in the terms originally gazetted in terms of section 328(3) of the Constitution, that have not been gazetted for ninety (90) days as required by section 328(3) and that have not been subjected to a process of public inquiry as mandated by section 328(4) of the Constitution.

They further submit that the Executive must justify its actions and show that it correctly fulfilled its constitutional obligations.

The applicants further argue that the Executive cannot, through the back door, allow such extensive amendments without them having been gazetted and debated.

They further submit, that, in interpreting section 328 of the Constitution, this court should not rely on the literal meaning of the words used but must read all the provisions of the Constitution holistically and in a generous and purposive manner.

If that approach is adopted, the conclusion would be reached that it was wrong and unconstitutional to introduce extensive amendments not previously gazetted or subjected to public scrutiny at the Committee Stage of Parliament.

They argue, that, nowhere in the Fifth Schedule to the Constitution is there provision for amendments to be made at the Committee Stage as stated in the Standing Orders. The procedure for amendments at the Committee Stage applies to normal Bills but not Constitutional Bills.

Section 328(4) of the Constitution implicitly excludes amendments that have neither been gazetted nor scrutinised by the public as there can never be amendments in respect of which members of the public are not invited to express their views on the proposed Bill.

On the remedy, the applicants submit that this is not a proper case for the court to employ a blue pencil test and excise the impugned provisions from the Constitution Amendment Act No.2. Instead, the Court should set aside the Act in its entirety.

At the hearing of the matter before this court, counsel for the applicants abandoned the preliminary point previously taken, that the Attorney-General cannot properly swear to an affidavit on behalf of the President.

Having abandoned that preliminary point, he nevertheless suggested that the judgment of this court should, obiter, express its views on the propriety of the Attorney General representing the President.

He further submitted, that, in the event that this court agrees with the applicants and holds that the amendment was unconstitutional, such decision should not have retrospective effect.

It was also his further submission, that, the Standing Orders of Parliament must be consistent with the Constitution which provides that all existing laws must be read in conformity with the Constitution.

Asked during the hearing in what way the President failed to fulfil his constitutional obligations, he told the court that the President has the obligation to scrutinise all Bills before assenting to them.

FIRST RESPONDENT'S SUBMISSIONS

In heads of argument filed on its behalf, Parliament took two preliminary points:

(i) The first was that the application ought to fail, the applicants having purported to approach this court in terms of section 16(2)(d) of the Constitution.

(ii) The second was that there has been a fatal non-joinder of both the Attorney-General and the Minister of Justice, Legal and Parliamentary Affairs, who is the Minister assigned the administration of the Act and who has a direct and substantial interest in the matter.

On the merits, Parliament has submitted as follows:

It followed the required procedure in amending the Constitution. The Bill was gazetted before it was tabled in Parliament. The requisite ninety days period of notice of the precise terms of the Bill was given.

Section 117(2) of the Constitution confers on Parliament the legislative authority to amend the Constitution in accordance with section 328. Subsection (2) of section 328 provides that an Act of Parliament that amends the Constitution must do so in express terms.

The interpretation placed on section 328 of the Constitution, by the applicants, cannot be correct.

The section requires the Speaker to give notice in the Gazette of the precise terms of the Bill before presenting it in Parliament. In other words, the terms in the Gazette, from the time of gazetting and presentation in Parliament, cannot be changed. Thereafter, Parliament must invite members of the public to express their views on the Bill. Such invitation must be done before the Bill is presented in the house, and, once it is presented, it cannot be re-gazetted or referred back to the public.

The Bill must also be passed, at its last reading, by an affirmative vote of at least two-thirds of the membership of each house.

It was Parliament's further submission, that, regard being had to section 131(4) and the Fifth Schedule of the Constitution, it has the power to amend a Bill that has been transmitted to either house of Parliament.

Paragraph 5(3) of the Fifth Schedule, in particular, provides that a Bill, which, having been transmitted to a house of Parliament, is passed by that house with amendments must be returned to the originating house with the amendments duly certified by the Clerk of Parliament and the house to which it is returned may reject, agree to or amend any of those amendments.

Subparagraph (3) also provides that where a Bill is returned to the originating house with amendments, and such amendments are rejected, or amended by the originating house, the other house may, by resolution, withdraw the amendments or agree to it being amended.

Bearing in mind the definition of “amend” in section 332 of the Constitution, it is clear that during debate, the houses may amend, vary, alter, modify, add to, delete or adapt the gazetted Bill.

It was Parliament's contention that the Constitution does not provide for any amendments effected to a gazetted Constitutional Bill to be re-gazetted or subjected to further public meetings and consultations. Had the intention been that the gazetted Bill should not be passed with amendments or that such amendments be further published and subjected to public scrutiny, then, Parliament would have said so.

Parliament further re-states, that, there would be little purpose in having debate in Parliament, from the first to the third reading, if Parliament were not to be allowed to make amendments where it deems fit.

In oral submissions, counsel for Parliament abandoned the preliminary point that the application was invalid, having been filed in terms of a non-existent section 16(2)(d) of the Constitution.

He, however, persisted with the preliminary point taken on the fatal non-joinder of the Minister of Justice, Legal and Parliamentary Affairs and the Attorney-General.

Counsel for Parliament made the following further submissions:

The Constitution provides, in paragraph 12 of Part 4 of the Sixth Schedule, that the Standing Orders that were in force before the effective date continue in force until replaced or amended in terms of the Constitution.

Therefore, it is not permissible for the applicants to challenge conduct that is allowed by a law without challenging the law that allows it.

The Standing Orders provide for amendments at the Committee Stage. Therefore, it is impermissible to impugn a process which is part and parcel of the Constitution.

He further submitted, that, the Speaker, being the presiding officer of the activities of Parliament, can quite properly attest to an opposing affidavit on behalf of Parliament.

He also argued, that, the constitutional obligation on Parliament is to solicit the views of the public in public meetings and to give the public ninety (90) days notice of the precise terms of the Bill.

That requirement was complied with in this case.

The argument whether an amendment is major or material does not arise from any of the provisions of the Constitution. Whether an amendment is major cannot be determined by this court and would require the court to delve into the actual processes of Parliament in order to make such a determination.

The argument by the applicants that a Constitutional Bill cannot be amended, as happened in this case, fails to appreciate that members of Parliament are the representatives of the masses. They make the final decisions on what to bring up during debate.

He further submitted, that, they have no legal obligation to take up the views expressed by the public during public meetings and in written submissions.

It was quite proper for proposals to be made during the debate in plenary and for amendments to be made to the Bill consequent thereto. Section 328 of the Constitution does not state what Parliament must do with the views expressed by the public. The process was intended to inform members of Parliament of the views expressed by members of the public they represent in Parliament.

SUBMISSIONS BY THE PRESIDENT OF ZIMBABWE

In heads of argument filed on his behalf, the President has submitted that section 328(3) of the Constitution does not impose any obligations on him as the President of Zimbabwe. It merely imposes obligations on the Speaker of Parliament to publish, on ninety days notice in the Gazette, the precise terms of a Constitutional Bill to be submitted to Parliament.

The Speaker's omission, if any, cannot be subjected to the jurisdiction of this court under section 167(2)(d) of the Constitution. Subsection (4) imposes an obligation on Parliament to invite members of the public to express their views in public meetings and through written submissions.

The President has also raised two preliminary points:

(i) First, that in purporting to approach this court under section 16(2)(d) of the Constitution, which section bears no relationship to the relief sought, the application is invalid and must be dismissed on that basis alone.

(ii) Secondly, that the relief sought in the application in Eric Matinenga and Ors CCZ14/21 is identical to that sought in this matter. The matter is accordingly lis pendens.

On the merits he has submitted as follows:

Section 328(3) of the Constitution imposes a disability as opposed to an obligation in that it limits the right of Parliament to receive a Constitutional Bill to only those bills that would have been published by the Speaker in the manner set out in that provision.

Therefore, a breach of section 328(3) of the Constitution does not constitute a failure to fulfil a constitutional obligation as such an obligation must be a positive duty imposed by that section.

He has further submitted, that, the public functionary upon whom the Constitution imposes a positive obligation is the Speaker of Parliament who must give at least ninety days notice in the Gazette of the precise terms of the Bill.

Neither Parliament nor the President had an obligation to gazette the Bill in terms of section 328(3) of the Constitution.

The Speaker, in compliance with section 328(3) of the Constitution, published the terms of the Bill in the Gazette and the Bill was presented to Parliament more than ninety days after such gazetting. The Bill that was presented to Parliament was the same Bill that had been published in the Gazette by the Speaker.

He submitted, that, whilst section 328(4) of the Constitution imposes an obligation on Parliament to ensure public participation, it imposes no obligation on him as President. For that reason, if the Court finds that Parliament breached that provision, such breach cannot be imputed to him as President.

He further submitted, that, immediately after gazetting the precise terms of the Bill, as was done in this matter, Parliament was required to do three things:

(i) Firstly, it was supposed to invite members of the public to express their views on the Bill.

(ii) Secondly, it was required to convene meetings and provide facilities to enable the public to air their views.

(iii) Thirdly, it was required to hold public hearings and receive written submissions.

He submitted, that, in respect of all three requirements, there was compliance by Parliament. The Bill was gazetted on 17 January 2020; the first invitation for the public to air its views was made on 22 January 2020, five days after the gazetting. Such invitation was therefore immediate; Parliament further convened public meetings during which members of the public aired their views on the Bill. There were also radio programmes and zoom meetings.

In oral submissions, counsel for the President abandoned two preliminary points previously raised. These are:

(i) Whether the application is invalid for citing section 16(2)(d) of the Constitution; and

(ii) Whether there is a pending matter involving the same parties and in which the same relief is sought.

He however submitted, that, the applicants have employed insulting and abusive language in their answering affidavit, and, for that reason, should bear the costs of the application.

On the competence of the Attorney General to represent the President, he submitted, that, since the applicants had abandoned this point, the court should not determine the matter as urged by the applicants as there is a lot of material that is not before the court; in particular, details on the sui generis position of the Attorney-General.

On the substance, he submitted that section 328 of the Constitution does not impose any obligation on the President, and, further, that there is no obligation on the President to supervise proceedings in Parliament.

In terms of section 131 of the Constitution, the President is required to assent to Bills or refuse to do so. In the context of this matter, that is his only obligation. He cannot be accused of breaching the Constitution where Parliament has committed a breach of its Rules.

SUBMISSIONS BY AMICUS CURIAE

Ms Sanhanga, as amicus curiae, submitted that it was common cause that the original Bill was duly gazetted for the minimum period of ninety days and that the public had an opportunity to comment on it before it was debated in Parliament. It was also common cause that the Bill which was originally gazetted was the same Bill which was presented to the National Assembly. It was also common cause that the Bill was amended at the Committee Stage by the National Assembly and that the Bill, as amended, was not again gazetted after the amendments and that no further consultation of members of the public took place. The Bill was then passed in both houses with the requisite two-thirds majority and was assented to by the President and gazetted on 7 May 2021.

Section 328(2) of the Constitution provides that an Act of Parliament that amends the Constitution must do so in express terms. The section refers to an Act and not a Bill. The amendments made by the Act are in express terms.

Therefore, section 328(2) of the Constitution was complied with.

She further submitted, that, whilst Parliament has the general power to amend the Constitution, pursuant to section 117(2)(a) as read with section 328 of the Constitution, there is no express provision in the Constitution for the amendment of Bills.

However, paragraph 5 of the Fifth Schedule to the Constitution provides for the amendment of Bills in general, which would also include a Constitutional Bill.

It was also her submission, that, contrary to the assertions made by the respondents, section 5 of the Fifth Schedule provides for amendments to be made to Bills in the house of Parliament to which the Bill has been transmitted and not the originating house. In other words, the section does not provide for amendments to be made by the originating house, unlike in this case where the amendments were made in the National Assembly.

Section 139 provides for Standing Orders which govern the passing of Bills, and, in section 154 of the Standing Orders, provision is made for the amendment of Bills in the National Assembly as the originating house. Based on those provisions, the originating house of Parliament is therefore entitled to amend Bills, including Constitutional Bills.

It was her further submission, that, section 328(4) of the Constitution merely provides for consultation through public meetings and written submissions. In other words, the public simply gives its opinion on the proposed amendment, and, although the legislative authorities are expected to listen to those views, they are not obliged to act on them.

It is Parliament, through the two houses, which would then take into account those views and craft a Bill which accords with the views of the public and constituencies as represented by each member of Parliament.

In her view, in such a situation, there is no requirement for gazetting the amendments as the stage for consultation would have been passed.

In any event, the applicants have not stated what the views of the public were.

Accordingly, there has been no violation of section 328(3)(4) of the Constitution and the suggestion that this court should infer requirements which are not expressly stated as being mandatory would impermissibly undermine the legislature which is itself a representative of the people.

This, she further submitted, would not only result in arbitrariness in the law but would have, as a consequence, the judiciary amending the Constitution.

ISSUES ARISING FOR DETERMINATION

From the foregoing, it is apparent that a number of preliminary issues arise and that they require to be determined in limine.

In the event that the preliminary issues are not dispositive of the dispute between the parties, the sole issue that would arise for determination is whether the amendments effected to the Bill should have followed the procedure provided in sub-sections (3) and (4) of section 328 of the Constitution....,.

The only issue that remains for determination is whether there was compliance, on the part of Parliament and the Speaker, with the provisions of section 328(2), (3) and (4) of the Constitution....,.

WAS THERE COMPLIANCE WITH SECTION 328 OF THE CONSTITUTION

This is the nub of the dispute between parties. The facts giving rise to the proceedings, which are largely common cause, are worth regurgitating:

On 31 December 2019, the Speaker of Parliament gazetted the Constitutional Amendment Bill HB23/19. It consisted of twenty seven clauses that dealt with an extensive list of constitutional issues. These dealt with various issues, chief among which were the removal of the running mate clause for Vice-Presidents; increasing the number of non-constituency Ministers who could be appointed; increasing the tenure of office of female proportional representative members of Parliament; the appointment of Judges as well as their tenure; the appointment of the Prosecutor-General; and the removal of Members of Parliament from the membership of Provincial Councils.

In accordance with subsection (4) of section 328 of the Constitution, Parliament duly invited members of the public to express their views on the Bill in public meetings and through written submissions.

In accordance with its processes, Parliament proceeded with the first and second reading of the Bill.

In concluding and winding up debate on the Bill, the Minister of Justice, Legal and Parliamentary Affairs responded to points made during the debate and gave notice that he would be moving amendments during the Committee Stage that was scheduled for the following day.

The amendments were duly published in the order paper for the following day, that is, 15 April 2021.

On 15 April 2021, the Minister proposed a number of amendments whilst others were proposed from the floor by the Minister himself and Priscilla Mushonga, a Member of Parliament.

It is these amendments, which were then accepted and adopted during the Committee Stage, that the applicants seek to impugn.

The process leading up to the debate in Parliament is not impugned and no issues arise before this court in that regard.

It is the applicants contention that Parliament cannot make 'major' or 'material' amendments to a Constitutional Bill, and that, if such amendments are made, the amendments would constitute a new Constitutional Bill and the processes provided in sub-sections (3) and (4) of section 328 of the Constitution must again be complied with.

Counsel for the applicants submitted, that, there is no stage known in our Constitution as the Committee Stage in Parliament and that the Standing Orders that allow amendments at the Committee Stage are not consistent with section 328 of the Constitution as there cannot be a procedure for a Committee Stage in respect of a Constitutional Bill.

In light of this submission, there is need, therefore, to take a closer look at the provision in question in order to determine whether, on a holistic, contextual, and purposive interpretation of section 328 of the Constitution, which he urges this court to adopt, it means what the applicants contend it does, namely, that where there are major or material amendments effected to a Constitutional Bill, then, the process provided for in subsections (3) and (4) of section 328 of the Constitution must once again be resorted to.

In short, should section 328 of the Constitution be interpreted to include such an obligation?

CONSTITUTIONAL INTERPRETATION

In urging this court to adopt a holistic, contextual, and purposive approach to the interpretation of section 328 of the Constitution, the applicants say nothing about the ordinary meaning of the words used in the section.

The position is now firmly established, that, a Constitution is not simply a statute which mechanically defines the structures of Government and the relations between the Government and its citizens.

Expressed differently, a Constitution is not an ordinary legal document, and, in interpreting it in any given case, it behoves a court to go beyond the literal meaning of the words used and to adopt a contextual, holistic, and purposive approach in order to give full effect to the provisions of the Constitution.

The interpretation accorded must be a generous rather than a legalistic one, aimed at securing the full benefit of the Constitution.

However, one must pay due regard to the language which has been used and to the traditions and usages which have given meaning to that language.

Where the words employed in the Constitution are clear and unambiguous, and allow of no absurdity or repugnance with the rest of the provisions in the Constitution, or with the context, then, such a literal interpretation should be adopted: see Stanley Nhari v Robert Gabriel Mugabe and Ors SC161-20.

As a general rule, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of other statutes. One must look to the words actually used and deduce what they mean within the context in which they appear. If the words used are precise and un-ambiguous and accord with the context, then, no more is necessary than to expound them in their natural and ordinary sense.

One does not depart from the literal and grammatical meaning unless this leads to such an absurdity that could not have been contemplated by the legislature: see Stanley Nhari v Robert Gabriel Mugabe and Ors SC161-20.

Put another way, the provisions of the Constitution ought to be given their ordinary grammatical meaning if such meaning is compatible with their complete context: see Anna Colleta Chihava (2) Boas Mapuya (3) Zishe Chizani v The Provincial Magistrate, Francis Mapfumo N.O. (2) The Prosecutor General 2015 (2) ZLR 31 (S)…,.; Mupungu v Minister of Justice, Legal and Parliamentary Affairs and Others CC07-21…,.

WHETHER PARLIAMENT CAN AMEND A BILL

The applicants appear to accept that Parliament does have the power to amend a Constitutional Bill, but, state that such an amendment should not be 'major' or 'material'.

A consideration of the Constitution shows, that, in terms of section 117 of the Constitution, Parliament does have the power to make law and to amend the Constitution in accordance with section 328 of the Constitution.

Section 131(4) of the Constitution, in turn, provides that the procedure to be followed by the National Assembly and the Senate with regards to Bills is as set out in the Fifth Schedule of the Constitution. The Fifth Schedule, in Part 2, provides for the amendment of Bills by a house to which a Bill has been transmitted by the other House.

It is apparent from the foregoing, that, there is no specific power given to Parliament to amend a Bill in terms of the Constitution.

Section 139 of the Constitution, however, provides for rules known as Standing Orders made by either House, individually or jointly, on the recommendation of the Committee on Standing Rules and Orders.

Paragraph 12 of Part 4 of the Sixth Schedule provides that the Standing Orders that were in force immediately before the effective date continue in force as Standing Orders of the Senate and National Assembly until they are replaced or amended in accordance with the Constitution.

That provision is very clear, that, any Standing Orders in force before the effective date continue to have effect until replaced or amended.

It was counsel for the applicants argument, that, the Standing Orders are now inconsistent with the Constitution.

He argued further, that, as Standing Orders relate to ordinary Bills and not to Constitutional Bills, there is a lacuna in the law as there is no provision in the Constitution for an amendment during the Committee Stage.

I am unable to agree with counsel for the applicants contention in this regard.

The Constitution states, in no uncertain terms, that, the procedure for “Bills” is as set out in the Fifth Schedule.

The Fifth Schedule does not distinguish the procedure to be followed by Parliament with regards to ordinary Bills, on the one hand, and Constitutional Bills, on the other.

What this means is that, for purposes of the Constitution, an ordinary Bill is as much a Bill as a Constitutional Bill.

It is also clear that Standing Orders 141 and 142 treat a Constitutional Bill as any other Bill, the only significant difference between the two being, that, in introducing a Constitutional Bill in Parliament, the procedure provided for in section 328 of the Constitution must be strictly and religiously followed.

As noted elsewhere in this judgment, the Constitution provides for the Standing Orders that were in force to remain effective notwithstanding the coming into effect of the 2013 Constitution.

The Constitution, therefore, deliberately avoided the possibility of a lacuna in the procedures of Parliament by providing, in un-ambiguous terms, that the Standing Orders that were in existence on the effective date would remain operative until they are replaced or amended.

Section 139(2) of the Constitution is pertinent - it states, that, Standing Orders may provide for the manner in which a Bill may be passed.

Standing Order 143 of the National Assembly Standing Orders (Public Business), (Ninth Edition, 2020) provides for referral of Bills to an appropriate Portfolio Committee. It further provides that the Committee shall have fourteen days, in the case of an ordinary Bill, and ninety days in the case of a Constitutional Bill for presentation of its report at the second reading stage.

The Portfolio Committee is then required to table its report containing its deliberations and recommendations on a Bill at the second reading stage. Once a Bill has been read a second time, it is then committed to the Committee of the Whole House, which, in terms of Standing Order 154, can make amendments to the Bill.

Standing Order 154 provides as follows:

“Amendments in Committee

154(1) The committee of the whole House, when considering a Bill, has the power to make any amendments to the Bill under consideration by amending a clause or inserting new clauses at the appropriate places in the Bill:
(2)…,. (not relevant).”

Standing Order 154 remains extant. By command of the Constitution itself, it remains effective.

It allows for the amendment of clauses in a Bill or the insertion of new clauses at appropriate places in a Bill. The only qualification in the Standing Order to such amendments or new clauses is that any amendments must be:

“(a) Relevant to the subject matter of the Bill; or
(b) Made pursuant to any instruction, and are otherwise in conformity with these Standing Orders.”

I am, therefore, unable to agree with counsel for the applicants, that, Standing Order 154 is no longer consistent with the current Constitution or that it is irrelevant in this case.

The Constitution itself says it remains effective until repealed or amended.

In any event, the position is settled in this jurisdiction, that, it is improper for the applicants to impugn, on a constitutional basis, things done in terms of the provisions of the Standing Orders without simultaneously impugning the validity of the Standing Orders themselves.

In this regard, attention may be drawn to the remarks of this court in Berry (Nee Ncube) and Anor v Chief Immigration Officer and Anor 2016 (1) ZLR 38 (CC)…, in which it was emphasised that:

“…, one cannot impugn, on a constitutional basis, conduct that constitutes a proper, lawful application of the law, without challenging the constitutional validity of the same law, or actions premised on a misinterpretation of it.”

CC12-23 : DIVINE HOVE vs PARLIAMENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

At the end of proceedings in this matter, by unanimous decision, the Court issued an order as follows:

“1. It is declared that in respect of S.I.144 of 2022, which was published in the Gazette dated 19 August 2022, the respondent failed to fulfil its constitutional obligation under section 152 of the Constitution.

2. The respondent is ordered to comply with its constitutional obligation under section 152 of the Constitution by not later than close of business on the 16th of June 2023.

3. There shall be no order as to costs.

4. Reasons for this order are to follow in due course.”

The following are the reasons for the order handed down by the full bench of this Court.

The Background

The applicant is the President of a political party known as the Nationalists Alliance Party and is a member of the Political Actors Dialogue (“the POLAD”). He stood for election to the office of President during the 2018 harmonised elections.

The respondent is the Parliament of Zimbabwe, the constitutional organ reposed with primary law-making authority in Zimbabwe.

The petition before this Court is centred around the allegation, that, the respondent failed to fulfil its purported constitutional obligation of examining every statutory instrument published in the Gazette and considering whether any provision of the statutory instrument contravened any provision of the Constitution.

More specifically, this contention relates to the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), Statutory Instrument 144 of 2022 (S.I.144/22), which was published in the Gazette dated 19 August 2022.

The impugned statutory instrument was published by the Zimbabwe Electoral Commission (hereinafter “ZEC”) on the aforesaid date.

It increased the nomination fee for aspiring presidential candidates in the imminent 2023 general elections and beyond, from US$1,000 to US$20,000. Similarly, the nomination fee for aspiring candidates for National Assembly and Senate elections was increased from US$50 to US$1,000.

It is these hefty and apparently prohibitive hikes, and, in particular, the perceived procedural irregularities that followed the promulgation of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), SI144 of 2022 that drew the ire of the applicant.

In his founding papers before this Court, the applicant averred, that, as an ordinary citizen with aspirations to run for election as President, he would not be able to afford the US$20,000 nomination fee. He added that none of the members of his political party would be able to afford US$1,000 to run for public office as Members of Parliament.

Against this background, the applicant sought an order declaring that Parliament failed to fulfil its constitutional obligation in terms of section 152(3)(c) of the Constitution.

It was contended, that, the respondent had an immutable obligation to examine every statutory instrument published in the Gazette and consider whether any provision of the statutory instrument contravened any provision of the Constitution.

The applicant alleged, that, the respondent had failed to discharge this obligation in respect of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I. 144 of 2022.

He based his standing on the belief that every citizen of Zimbabwe has automatic standing to challenge any failure by an institution of the State to fulfil a constitutional obligation.

It was the applicant's view, that, the use of the words 'examine' and 'consider' in the cited constitutional provision required the respondent to take a serious view of the imperative to protect the supreme law of the land.

In this regard, it was contended that the respondent failed to fulfil its obligation in that it did not treat the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I. 144/22 in accordance with the provisions of section 152(3)(c) of the Constitution, following which it should have produced a report on the constitutionality of the statutory instrument.

Alternatively, it was argued that the fact that the respondent did not find that the statutory instrument infringed the rights of citizens provided for and protected by section 67 of the Constitution was evidence of a failure to “examine” or “consider” the impugned Regulations within the contemplation of section 152(3) of the Constitution.

The appellant took aim at the respondent's perceived “lackadaisical” approach to the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), SI 144/22, which conduct was alleged to have failed to meet the requirement to 'examine' and “consider” within the meaning of section 152(3)(c) of the Constitution.

The applicant averred, that, no reasonable Parliament acting in compliance with the mandatory obligation under section 152(3)(c) of the Constitution would have failed to consider that the Regulations in the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1),Statutory Instrument 144/22 were patently unconstitutional for infringing the electoral and civil rights of citizens under section 67 of the Constitution.

From the applicant's perspective, had the respondent performed its constitutional obligation, the Regulations ought to have been repealed or referred to this Court pursuant to paragraph 9 of the Fifth Schedule to the Constitution.

The requirement to pay the nomination fee, expressly in United States Dollars, was also stated to be an infringement of the rights contained in section 67 of the Constitution.

On the foregoing basis, the applicant sought the following order:

“1. That, it be and is hereby declared that in respect of Statutory Instrument 144 of 2022 which was published in the Gazette dated 19th August 2022, the Respondent (Parliament of Zimbabwe) failed to fulfil its constitutional obligation under section 152(3)(c) of the Constitution of examining every statutory instrument published in the Gazette and considering whether any provision of the statutory instrument contravenes any provision of the Constitution.

2. As a consequence arising from paragraph 1 of this order, that it be and is hereby declared that the Electoral (Nomination of Candidates) (Amendment) Regulations, 2022 (No.1): Statutory Instrument 144 of 2022 are null and void and of no force or effect.

3. There shall be no order as to costs.”

The respondent duly opposed the application.

Its opposing affidavit was deposed to by Jacob Mudenda, the Speaker of the National Assembly.

He refuted the allegation, that, the respondent had failed to fulfil a constitutional obligation. According to the respondent, the provisions of section 152(3)(c) of the Constitution were unambiguous — the obligation to examine every statutory instrument which had been published in the Gazette lay squarely on the Parliamentary Legal Committee (hereinafter “the PLC”).

Accordingly, the said provisions did not impose a constitutional obligation on Parliament itself, as was alleged by the applicant.

Contrary to the applicant's averments, the respondent submitted that the Parliamentary Legal Committee (PLC) did consider the Regulations on 26 September 2022, and, thereafter, resolved “not to issue a non-adverse certificate until they have had a meeting with the Zimbabwe Electoral Commission concerning the fees in Statutory Instrument 144 of 2022.”

Consequently, the Clerk of Parliament wrote a letter, on the same day, to the Zimbabwe Electoral Commission (ZEC) inviting it to appear before the Parliamentary Legal Committee (PLC).

By letter dated 28 September 2022, the Chief Elections Officer of the Zimbabwe Electoral Commission (ZEC) advised the Clerk of Parliament that ZEC was constrained in discussing the matter as it was sub judice. According to the respondent, this was the sole reason that the Parliamentary Legal Committee (PLC) had postponed its consideration of the Regulations until the High Court had passed its determination on their legality.

All in all, the respondent denied that the Parliamentary Legal Committee (PLC) had breached the Constitution in any way.

In any event, the respondent assiduously sought to distance itself from assuming responsibility for the Parliamentary Legal Committee's conduct. The respondent maintained, that, an alleged omission or breach by the PLC did not amount to failure by Parliament itself to fulfil a constitutional obligation.

Submissions by Counsel

Counsel for the applicant submitted, that, the applicant's locus standi was founded on section 2 of the Constitution.

It was described as the supremacy clause which provided a basis for the applicant to vindicate the supremacy of the Constitution as a citizen. He submitted, that, the obligation in terms of section 152(3)(c) of the Constitution was imposed on Parliament by virtue of being specifically imposed on the Parliamentary Legal Committee (PLC).

He referred to decisions of this Court from which it could be inferred that the actions of the Parliamentary Legal Committee (PLC) were attributable to the respondent itself.

He added that the Parliamentary Legal Committee (PLC), being a component of Parliament, was a functionary of the respondent and thus the cited obligation fell squarely upon the latter.

It was also contended, that, there were concessions on record by the respondent to the effect that it had not complied with its constitutional obligation.

Counsel for the applicant insisted that the said obligation could not be delayed by pending litigation on the same issue in the High Court.

This was so despite the import of Standing Order 98(1)(e) of the National Assembly Standing Orders (Public Business) Ninth Edition 2020.

The Standing Order provides that “no member shall, while speaking to a question –
(e)…, refer to any matter on which a judicial decision is pending.”

He submitted that the Standing Order applied only in respect of non–constitutional issues.

Counsel for the applicant also argued, that, the applicant was entitled to rely on the competence of the first respondent to carry out its constitutional obligations and that any perceived failure to pursue an Administrative Law action ought not to non–suit him before this Court.

Per contra, counsel for the respondent submitted, that, the respondent had clearly fulfilled the constitutional obligation in question, contrary to the applicant's position.

He referred to minutes of the Parliamentary Legal Committee (PLC) on record as evidence that the respondent had considered the constitutionality of the impugned statutory instrument. He argued that the process thereafter was only stalled by the Zimbabwe Electoral Commission's refusal to engage the PLC due to the pendency of litigation in the High Court.

He further reasoned, that, there was no timeline for submitting the report from the Parliamentary Legal Committee (PLC) to Parliament and that any order to that effect would be an undue intrusion into its domain.

In response, counsel for the applicant maintained, that, the Parliamentary Legal Committee (PLC) had a duty to examine and report on the constitutionality of the impugned statutory instrument. The two were deemed to be concurrent obligations that could not be separated as was argued on behalf of the respondent.

In this respect, he referred to Standing Order 36(6)(d) which specifically stipulates a twenty-six day period for the Parliamentary Legal Committee (PLC) to submit its report to Parliament.

After some initial reservation, counsel for the applicant accepted, that, a mandamus by the Court would be a competent remedy, consistent with the Court's authority under section 167(2)(d) of the Constitution to interfere with the respondent's processes....,.

Functions and Obligations of the Parliamentary Legal Committee (PLC) under Section 152(3) of the Constitution

Section 152(3) of the Constitution, in its relevant portions, provides as follows:

“The Parliamentary Legal Committee must examine –…,

(c) Every statutory instrument published in the Gazette;…,.
and must report to Parliament…, whether it considers any provision in the…, statutory instrument…, contravenes or, if enacted, would contravene any provision of this Constitution.”…,.

The obligation of the Parliamentary Legal Committee (PLC) under paragraph (c) of section 152(3) of the Constitution is self-evident. It is essentially two-fold:

(i) To examine every statutory instrument published in the Gazette; and

(ii) To report to Parliament on the constitutionality or otherwise of the statutory instrument.

The two functions are not only mandatory but are also conjunctive.

The examination of an instrument, without the submission of a report thereon, does not suffice to satisfy the obligation imposed upon the Parliamentary Legal Committee (PLC) by section 152(3)(c) of the Constitution. Moreover, by dint of section 324 of the Constitution “all constitutional obligations must be performed diligently and without delay.”

Counsel for the respondent accepts, that, the Parliamentary Legal Committee (PLC) is obligated to examine every statutory instrument, but, contends that it is only required to submit its report to Parliament, or other functionary identified in section 152(3) of the Constitution, where it decides to issue an adverse report on the instrument.

This would be the case both where the Parliamentary Legal Committee (PLC) considers the instrument to be in contravention of the Constitution, as per section 152(3) of the Constitution, or where it deems it to be ultra vires its enabling Act, as per section 152(4) of the Constitution. Thereafter, the adverse report is debated by the National Assembly and the Senate.

Counsel for the applicant contends otherwise.

He submits, that, the Parliamentary Legal Committee (PLC) must examine and report on every statutory instrument. Whether its report is adverse or not is quite immaterial in determining the constitutionality or vires of the instrument.

In this respect, the Parliamentary Legal Committee (PLC) cannot justify the need to consult the Zimbabwe Electoral Commission (ZEC) in delaying the submission of its report.

I fully agree with counsel for the applicant.

Firstly, I am unable to find anything in section 152 of the Constitution, or elsewhere in the Constitution, to justify the contention that the Parliamentary Legal Committee's obligation to present its report on the constitutionality or otherwise of statutory instruments is confined to those instances where it decides to issue an adverse report on the instrument under consideration.

Secondly, the Parliamentary Legal Committee's functions, under section 152(3) of the Constitution, are peculiar to its own mandated obligation thereunder and must be fulfilled independently of any other institution or public office.

In this connection, the Parliamentary Legal Committee (PLC) cannot invoke the need to consult or interact with the Zimbabwe Electoral Commission (ZEC) as a valid ground for withholding the submission of its report to Parliament.

To do so would be to violate the constitutional injunction to perform its obligation diligently and without delay.

Standing Orders 33 and 98

In assessing the functions of the Parliamentary Legal Committee (PLC), it is necessary to have regard to certain provisions of the National Assembly Standing Orders (Public Business), 9th edition, 2020.

The conduct of the proceedings of the Parliamentary Legal Committee (PLC) is governed by Order 33.

In terms of sub-order (6)(d), the Parliamentary Legal Committee (PLC) must present its report to the House, in the case of a statutory instrument published in the Gazette, within a period of twenty-six business days beginning on the first day of the month next following the month in which the instrument was published.

By virtue of sub order (7)(a), the Speaker, in consultation with the President of the Senate, may, upon application by the Chairperson of the Parliamentary Legal Committee (PLC), extend that period for a further period of twenty six business days. The Speaker may do so, if he or she considers it proper on account of the length or complexity of the instrument or the prevailing workload of the PLC or for any other sufficient reason.

Turning to Order 98, which prescribes the rules to be observed by Members, sub-order (1)(e) stipulates that:

“No member must, while speaking to a question –…,.
(e) Refer to any matter on which a judicial decision is pending;…,."

The other restrictions placed upon Members relate to, inter alia, the irreverent use of the name of the President, inappropriate references to other Members, the use of derogatory, disrespectful, offensive, or unbecoming words, using the right of speech for the purpose of obstructing proceedings of the House, and anticipating the discussion of any other subject which appears on the Order Paper.

Having regard to sub order (1)(e) in particular, the question that arises is whether or not the Parliamentary Legal Committee (PLC) was justified in withholding its report on the constitutionality or otherwise of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), SI144 of 2022.

The respondent's position in this respect is that the Parliamentary Legal Committee (PLC) was so justified so as to avoid canvassing issues that were sub judice before the High Court in Case No. HC6083/22.

Counsel for the respondent submits, that, Order 98(1)(e) precludes any comment on any matter pending before any court. In this case, the Parliamentary Legal Committee (PLC) had already taken the view that the impugned statutory instrument did not violate the Constitution and was simply awaiting consideration of the statutory vires of the instrument as envisaged by section 152(4) of the Constitution.

Counsel for the respondent further relies on Standing Order 33(3) which enables the Parliamentary Legal Committee (PLC) to receive such evidence as is required for the performance of its functions in terms of the Constitution. The PLC was therefore entitled to await the views of the Zimbabwe Electoral Commission (ZEC) before concluding and submitting its report on both the constitutionality as well as the vires of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I.144 of 2022.

Counsel for the applicant, on the other hand, submits that Order 98(1)(e) relates to the decorum of Members when speaking in Parliament. It does not impact upon the obligation of the Parliamentary Legal Committee (PLC) under section 152(3) of the Constitution to examine and report on every published statutory instrument.

The restriction imposed by sub-order (1)(e) is subordinate to the obligation of the Parliamentary Legal Committee (PLC) to fulfil its constitutional functions and is not relevant to the performance of those functions.

Counsel for the applicant also relies on the timeline requirement of twenty-six days stipulated by Order 33(6)(d), within which period the Parliamentary Legal Committee (PLC) is enjoined to submit its report to Parliament.

This timeframe must be complied with and does not permit any delay based on the need to consult or take evidence from other public bodies.

Having regard to the wording of Order 33(3), there can be no doubt that the Parliamentary Legal Committee (PLC) was duly authorised to receive evidence from the Zimbabwe Electoral Commission (ZEC) in the process of conducting its examination of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I. 144/22.

The more critical question is whether or not it was entitled to wait indefinitely in so doing.

Given the peremptory language of Order 33(6), spelling out “the periods within which the [PLC] must report to the House” the answer to this question must be given in the negative.

The impugned statutory instrument was promulgated on 19 August 2022.

Allowing for the period of twenty-six business days prescribed by sub order (6)(d), coupled with the additional twenty six business days permitted by sub-order (7)(a), assuming that the Parliamentary Legal Committee (PLC) had applied for and been granted this extension, the deadline for the submission of the PLC's report to Parliament would have expired in the middle of November 2022.

As at the date when this matter was heard, i.e. in June 2023, the time that had elapsed was a period of seven months beyond the stipulated deadline. This is patently outside the timeframe contemplated by Order 33(6)(d).

The next question concerns the requirements of Order 98(1), and sub-order (1)(e) in particular.

It stipulates that: “No Member must, while speaking to a question…, refer to any matter on which a judicial decision is pending.”

The argument that the remainder of Order 98(1) is largely devoted to issues pertaining to the decorum and proper conduct of Members during the course of proceedings is fairly attractive. However, I do not think that the broader context of Order 98(1) can legitimately be allowed to detract from the specific stricture contained in sub order (1)(e).

It is sui generis in nature and its mandatory prohibition cannot be disregarded. Whether it is applicable and enforceable in casu is an entirely separate matter.

It cannot be disputed that Order 98(1)(e) is quite obviously an extant law in the broadest sense and that it must therefore be complied with unless and until it is set aside: see Biti & Anor v Minister of Justice, Legal and Parliamentary Affairs & Anor SC10-02.

On the other hand, the injunction embodied in section 152(3) of the Constitution is unequivocally clear. The Parliamentary Legal Committee (PLC) “must examine” every published statutory instrument and thereafter “must report to Parliament” on the constitutionality or otherwise of the instrument so examined.

In my opinion, the Parliamentary Legal Committee (PLC) is duty bound to carry out both of those functions notwithstanding anything to the contrary contained in the Standing Orders of Parliament.

Section 152(3) of the Constitution undoubtedly constitutes a normative injunction of a higher order, while Order 98(1)(e) must be regarded as a subordinate or subservient norm, which must therefore defer and succumb to the superior authority of section 152(3) of the Constitution.

To the extent that Order 98(1)(e) is inconsistent with, or prejudices, the fulfilment of the obligation mandated by section 152(3) of the Constitution, it is the latter that must prevail.

And, I am amply fortified in this approach from my analysis of the purpose of the subjudice rule and the established qualifications to that rule.

The Sub Judice Rule

The term sub judice is defined in Black's Law Dictionary as meaning “before a court or judge for determination.”

Depending on the circumstance or setting of its usage, it may be viewed as a rule of court, a statutory rule, a parliamentary convention, or simply a practice that has developed in the interaction between the media and public officials. At its core, it is aimed at preventing the publication of statements that may prejudice court proceedings.

In the context of the present case, the focus of the sub judice rule is centred on the relationship between Parliament and the judiciary under the lens of the separation of powers doctrine.

To what extent can Parliament deal with a matter that is the subject of legal proceedings in a court of law?

The question emanates from the clearly defined constitutional parameters of the two institutions as explicated in the celebrated case of Smith v Mutasa & Anor 1989 (3) ZLR 183 (SC)…,.

The general principle is that when the judiciary is seized with a matter, even Parliament has to defer to the judicial process.

The primary purpose of the sub judice rule is to obviate a real risk of interference with the due administration of justice: see S v Hartmann & Anor 1983 (2) ZLR 186 (SC)…,.

It is aimed at preventing external factors from influencing the determination or outcome of legal proceedings, and, consequently, the course of justice: see Kwaramba v Bhunu N.O. 2012 (2) ZLR (S)…,.

The specific duty of Parliament to observe the sub judice rule was expressly recognised and re-affirmed in Zvoma N.O. v Moyo & Ors 2012 (1) ZLR (H)…,.

The rule is recognised as an essential component of the rule of law, and, from that perspective, as binding on the conduct of Parliament.

Having set out the underlying objective of the sub-judice rule, I turn to consider the extent to which it may be qualified or departed from in practice.

And, in the particular context of the present matter, to what extent can Parliament, through the Parliamentary Legal Committee (PLC), resile from the sub judice rule in fulfilling its obligations under section 152(3) of the Constitution?

In the United Kingdom, the sub judice rule has been formalised and entrenched in its Parliamentary practice, both in the House of Lords and in the House of Commons. As appears from Companion to the Standing Orders and Guide to the Proceedings of the House of Lords (21st edition, 2007):

“The privilege of freedom of speech in Parliament places a corresponding duty on members to use the freedom responsibly. This is the basis of the sub judice rule. Under the rule, both Houses abstain from discussing the merits of disputes about to be tried and decided in the courts of law.”

The 2007 Companion and Guide also cites a resolution adopted by the House of Lords on 11 May 2000 which reads as follows:

“That, subject to the discretion of the Lord Speaker, and to the right of the House to legislate on any matter or to discuss any delegated legislation, the House in all its proceedings (including proceedings of committees of the House) shall apply the following rules on matters sub judice….,.”…,.

This approach is also confirmed vis-a-vis the House of Commons by ERSKINE MAY: Parliamentary Practice, 21st edition, 1989:

“The House has resolved, that, no matter awaiting or under adjudication by a court of law should be brought before it by a motion or otherwise….,. This rule may be waived at the discretion of the Chair….,. The general rule also applies to motions for leave to bring in Bills but the House has expressly resolved that the sub judice rule is qualified by the right of the House to legislate on any matter.”…,.

The foregoing exposition demonstrates, that, the sub judice rule is firmly established in the Parliamentary practice and procedures of both England and Zimbabwe.

However, it also demonstrates that the rule is not absolute or immutable and has been qualified through proactive Parliamentary practice designed to facilitate and enhance the performance of Parliamentary duties and functions.

Furthermore, with particular reference to England, the rule is explicitly qualified by the right of Parliament to legislate on any matter or to discuss any delegated legislation.

The latter qualification is of singular significance in the context of the present application.

This arises from the provisions of sections 3 and 4 of the Privileges, Immunities and Powers of Parliament Act [Chapter 2:08].

By virtue of section 3(b) of the Privileges, Immunities and Powers of Parliament Act:

“Parliament and members and officers of Parliament shall hold, exercise and enjoy –…,.

(b) All such other privileges, immunities and powers…, as were applicable in the case of the House of Commons of the Parliament of the United Kingdom, its members and officers, respectively, on the 18th April 1980.”

The provisions of section 3(b) are buttressed by section 4 of the Privileges, Immunities and Powers of Parliament Act which stipulates that:

“The privileges, immunities and powers of Parliament and members and officers of Parliament shall be part of the general and public law and it shall not be necessary to plead them but they shall be judicially noticed in all courts.”

The intention and effect of these provisions are unquestionably clear.

Our Parliament, as well as its members and officers, enjoy the same privileges, immunities, and powers as were applicable and enjoyed in the House of Commons as at 18 April 1980.

As I have earlier postulated, the Parliamentary Legal Committee (PLC) is an intrinsic and essential component of Parliament itself.

By the same token, the procedures and functions of the Parliamentary Legal Committee (PLC) are inextricably intertwined with the legislative processes of Parliament. Thus, when the PLC is engaged in performing its functions under section 152(3) of the Constitution, it is also involved in exercising the power and right of Parliament to legislate on any matter or to discuss any delegated legislation.

On that premise, having regard to the established practice of the House of Commons, the Parliamentary Legal Committee (PLC) should not be hamstrung by the strictures of the sub judice rule in the course of examining and reporting on legislation under section 152(3) of the Constitution.

In short, for this reason and the reasons stated earlier pertaining to the subordinate status of Standing Orders generally, the sub judice restriction imposed by Standing Order 98(1)(e) does not apply to the circumstances of the present matter.

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Parliamentary Rules re: Approach, Peremptory Provisions and the Doctrines of Strict Compliance & Substantial Compliance

HH23-12 : AUSTIN ZVOMA vs LOVEMORE MOYO N.O. and NOMALANGA KHUMALO N.O .and BRIAN TSHUMA N.O. and SHEPPARD MUSHONGA N.O. and EDNA MADZONGWE N.O. and WILLIAS MADZIMURE N.O. and LYNETTE KARENYI N.O.
Ruled By: BERE J

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

View Appeal
HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO
Ruled By: PATEL J

CC10-18 : INNOCENT GONESE and JESSIE MAJOME vs PRESIDENT OF ZIMBABWE and PARLIAMENT OF ZIMBABWE and MINISTER OF LOCAL GOVERNMENT AND PUBLIC WORKS AND NATIONAL HOUSING N.O.
Ruled By: GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, UCHENA JCC and BHUNU JCC

View Appeal
HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO
Ruled By: PATEL J

Appealed
SC110-21 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

CC04-23 : EDWIN MUSHORIWA and FIRINNE TRUST OPERATING AS VERITAS and BRIAN CROZIER and VALERIE INGRAM-THORPE vs PARLIAMENT OF ZIMBABWE and PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

CC12-23 : DIVINE HOVE vs PARLIAMENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

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Law Portal Zimbabwe

Parliamentary Rules re: Approach, Peremptory Provisions and the Doctrines of Strict Compliance & Substantial Compliance

HH23-12 : AUSTIN ZVOMA vs LOVEMORE MOYO N.O. and NOMALANGA KHUMALO N.O .and BRIAN TSHUMA N.O. and SHEPPARD MUSHONGA N.O. and EDNA MADZONGWE N.O. and WILLIAS MADZIMURE N.O. and LYNETTE KARENYI N.O. Ruled By: BERE J

Appealed SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

View Appeal HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO Ruled By: PATEL J

CC10-18 : INNOCENT GONESE and JESSIE MAJOME vs PRESIDENT OF ZIMBABWE and PARLIAMENT OF ZIMBABWE and MINISTER OF LOCAL GOVERNMENT AND PUBLIC WORKS AND NATIONAL HOUSING N.O. Ruled By: GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, UCHENA JCC and BHUNU JCC

View Appeal HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO Ruled By: PATEL J

Appealed SC110-21 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

CC04-23 : EDWIN MUSHORIWA and FIRINNE TRUST OPERATING AS VERITAS and BRIAN CROZIER and VALERIE INGRAM-THORPE vs PARLIAMENT OF ZIMBABWE and PRESIDENT OF THE REPUBLIC OF ZIMBABWE Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

CC12-23 : DIVINE HOVE vs PARLIAMENT OF ZIMBABWE Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

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HH23-12 : AUSTIN ZVOMA vs LOVEMORE MOYO N.O. and NOMALANGA KHUMALO N.O .and BRIAN TSHUMA N.O. and SHEPPARD MUSHONGA N.O. and EDNA MADZONGWE N.O. and WILLIAS MADZIMURE N.O. and LYNETTE KARENYI N.O.
Ruled By: BERE J

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

View Appeal
HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO
Ruled By: PATEL J

CC10-18 : INNOCENT GONESE and JESSIE MAJOME vs PRESIDENT OF ZIMBABWE and PARLIAMENT OF ZIMBABWE and MINISTER OF LOCAL GOVERNMENT AND PUBLIC WORKS AND NATIONAL HOUSING N.O.
Ruled By: GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, UCHENA JCC and BHUNU JCC

View Appeal
HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO
Ruled By: PATEL J

Appealed
SC110-21 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

CC04-23 : EDWIN MUSHORIWA and FIRINNE TRUST OPERATING AS VERITAS and BRIAN CROZIER and VALERIE INGRAM-THORPE vs PARLIAMENT OF ZIMBABWE and PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

CC12-23 : DIVINE HOVE vs PARLIAMENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC