The first applicant, the Movement for Democratic Change, is a political party, commonly known as the (“MDC”). It will be referred to as the first applicant. The second applicant, Mr Morgan Tsvangirai, is its President. He was the first applicant's Presidential candidate in the just ended harmonized elections held on ...
The first applicant, the Movement for Democratic Change, is a political party, commonly known as the (“MDC”). It will be referred to as the first applicant. The second applicant, Mr Morgan Tsvangirai, is its President. He was the first applicant's Presidential candidate in the just ended harmonized elections held on 29 March 2008. He will be referred to as the second applicant.
The first respondent is the Chairman of the Zimbabwe Electoral Commission, a Commission established in terms of section 61(1) of the Constitution of Zimbabwe. He was appointed in terms of section 61(1)(a) of the Constitution. He will be referred to as the first respondent. The Zimbabwe Electoral Commission is commonly known as (“ZEC”), in reference to the abbreviation of its name. It will be referred to as ZEC in this judgment.
The second respondent is the Zimbabwe Electoral Commission's (ZEC) Chief Elections Officer appointed in terms of section 11 of the Zimbabwe Electoral Commission Act [Chapter 2:12], hereinafter called the Zimbabwe Electoral Commission Act. He will be referred to as the second respondent.
The Facts
The first respondent, through the Zimbabwe Electoral Commission (ZEC), conducted harmonised elections which were held on 29 March 2008. The elections were contested by candidates aspiring for the following positions, Councilors of local authorities, Members of the House of Assembly and the Senate, and President of the Republic of Zimbabwe.
It is common cause that the contestants of the first three positions now know the results of their elections. The results were announced at the Ward Constituency, House of Assembly and Senatorial constituency levels. The winners were declared by the respective Ward and Constituency Elections Officers. House of Assembly and Senatorial results have also been announced by the National Collation Centre presided over by the second respondent.
It is conceded, by the respondents, that this was merely for the benefit of the general public as the legal requirements had been satisfied at constituency level.
The applicants, who have an interest in Presidential election results, filed an urgent application seeking this court's provisional order, compelling the respondents to announce the results.
The respondents, while conceding that Presidential results have not yet been announced, contented that they will announce them when they are ready....,.
After the court's ruling on the issue of jurisdiction, counsel for the applicants submitted that the application was urgent and outlined the facts establishing the urgency. In response, counsel for the respondents submitted that the application is not urgent and should have been brought by way of ordinary application....,.
Urgency
After the ruling on the issue of jurisdiction, counsel for the applicants made submissions on the urgency of the application.
He submitted that section 110(3) of the Electoral Act [Chapter 2:13] hereinafter called the Electoral Act, provides, for a re-run within 21 days after the previous election in the event of no candidate obtaining a clear majority in the election. This, he submitted, means a delay in announcing the election results will deprive candidates of sufficient time to prepare for the re-run. He also submitted that the respondents would not have enough time to prepare for the re-run.
Counsel for the respondents submitted that there was no urgency in the applicant's application because its cause of action was based on the announcement of the results of the Presidential poll. He argued that those results where not due as the provisions of the Second Schedule have not yet been complied with. He therefore reasoned that the cause of action would arise when the provisions of the Second Schedule of the Electoral Act would have been complied with. He summed up by submitting that the applicants cause of action, as stated in Tendai Biti's founding affidavit, has not yet arisen hence the absence of urgency in the application.
Counsel for the applicants, in response, disputed counsel for the respondents submission that the cause of action had not yet risen. He submitted that Tendai Biti's affidavit complains of delays and the respondent's wasting time on already declared election results instead of doing what they are mandated to do; that is, the collation and verification of Presidential results and their announcement.
A reading of Tendai Biti's founding affidavit confirms that though he, in some paragraphs, emphasised the announcement of results he clearly brought out a case against the general delay. That was in fact the theme of the applicants' complaint in paragraphs 5, 11, 12, 13, 14, 16, 17, 24, 26 and 27.
I am therefore satisfied that the applicants' application is premised on delays and the respondents' wasting time doing everything else other than what they should have been doing. Therefore, the cause of action has arisen though the wording of the provisional draft order seeks the announcement of results within four hours of the service of it on the respondents.
This can be corrected by a variation in terms of Rule 246(2) of the High Court Rules, 1971 which provides as follows:
“(2) Where, in an application for a provisional order, the judge is satisfied that the papers establish a prima facie case he shall grant a provisional order either in terms of the draft filed or as varied.”
This means an application for a provisional order which has been prima facie proved cannot be dismissed because of a poorly drafted order. The court can vary it and grant a correctly formulated provisional order consistent with the prima facie case proved.
In fact, on being granted, the order becomes the court's order. The court must therefore be satisfied by its formulation before granting it.
It was for these reasons, that I found the application was urgent and proceeded to hear it on the merits.
