The applicant is an independent candidate for the Hurungwe West By-Election scheduled for 10 June 2015. He, by ordinary application, applied for an order suspending the holding of elections in Hurungwe West on 10 June 2015 due to alleged violence and intimidation.
In the alternative, he seeks orders compelling the first (Chairperson, Zimbabwe Electoral Commission), second (Zimbabwe Electoral Commission), fourth (Ignatious Chombo), and sixth to tenth respondents (Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau) to make statements through fliers and radio correcting the impression created by the third to tenth respondents (ZANU-PF, Ignatious Chombo, Keith Guzha, Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau) about how voters in the constituency shall go to the polls and vote on 10 June 2015.
The first respondent is the Chairperson of the Zimbabwe Electoral Commission to whom the applicant complained, by letters dated 12 and 14 May 2015, about the violence and intimidation which was being unleashed in Hurungwe West by the third to tenth respondents (ZANU-PF, Ignatious Chombo, Keith Guzha, Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau).
The second respondent is the Zimbabwe Electoral Commission.
The third respondent is Zimbabwe African National Union (Patriotic Front) ZANU-PF, a political party which fielded the fifth respondent (Keith Guzha) for the Hurungwe West by-election.
The fourth respondent (Ignatious Chombo) is the Secretary for Administration for the third respondent who is being sued in his personal capacity for inciting violence and intimidation in Hurungwe West Constituency.
The fifth respondent (Keith Guzha) is a contestant fielded by the third respondent for election as a Member of Parliament for Hurungwe West in the 10 June by-elections.
The sixth to tenth respondents (Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau) are traditional leaders who the applicant alleges have been tasked with the role of systematically heading their subjects to polling stations and monitoring how they will vote to identify those who will vote for the applicant.
The eleventh respondent is the President of Zimbabwe, cited in his official capacity as the official responsible for proclaiming dates for elections.
As already said, the applicant applied, by ordinary application, for the above mentioned orders.
He, in that application, sought to have the application set down for the fifth of June 2015 even though he only served the application on the sixth to tenth respondents on 6 June 2015. It was served on the first, second, third, and fourth respondents on 2 June 2015. The Registrar set it down for 8 June 2015. Most of the respondents were served with notices of set down on 8 June 2015.
On 8 June, the respondents counsel raised three preliminary issues:
Counsel for the third and fifth respondents raised a preliminary issue on his clients being entitled to the dies induciae permitted in terms of the Rule the applicant used to file his application.
Counsel for the first and second respondents raised a preliminary issue on whether or not this court has jurisdiction to hear the applicant's application.
Counsel for the fourth and sixth to eleventh respondents raised a preliminary issue alleging that the fourth respondent had been incorrectly cited in his personal capacity.
I, after hearing submissions from the parties, postponed the case to 9 June 2015, when I ruled in favour of the third and fifth respondents preliminary issue and dismissed the first, second and fourth respondents preliminary issues.
I indicated that my reasons for judgment would follow, these are they.
Dies Induciae
In his submission, counsel for the third and fifth respondents argued, that, the applicant consciously chose the procedure through which he brought his application to this Court. That procedure determines the time frames within which the respondents are expected to file their responses.
He submitted, that, where an applicant files an ordinary application in terms of Rule 231(3) of the High Court Rules 1971, which the applicant used, a respondent is, in terms of Rule 232, entitled to file his response within not less than 10 days, exclusive of the day of service, plus one day for every additional 200 kilometres or part thereof where the place of service is more than 200 kilometres from the court where the application is to be heard.
He submitted, that, the application has been prematurely set down as the dies induciae has not yet lapsed and the third and fifth respondents are entitled to file their responses within the time permitted by the Rules.
Counsel for the applicant, instead of relying on the procedure in the High Court Rules which the applicant used in filing the application, and invoking corrective measures, sought to expedite the hearing of the application by invoking the provisions of Rule 31 of the Electoral Court's Rules S.I.74A of 1995.
Rule 31 of the Electoral Court Rules SI74A of 1995 provides as follows;
“The Registrar, and all parties, to any stated case, petition, appeal or application referred to in these rules shall take all steps necessary to ensure that the matter is dealt with as quickly as possible.”
He submitted, that, the applicant gave the respondents three days to respond in view of the provisions of Rule 31 of the Electoral Court Rules S.I.74A of 1995.
This submission is not consistent with what the applicant said in his founding affidavit, on p10 para 12, where he said;
“I have given the respondents three days to respond. This is a modification of the rules of the High Court as contemplated in section 164(4).”
Counsel for the third and fifth respondents, in response, submitted, that, Rule 31 of the Electoral Court Rules SI74A of 1995 is not applicable to the present application as it is not one of the applications mentioned in those Rules.
He analysed the applications covered by the 1995 Electoral Court Rules and demonstrated how those rules do not apply to the applicant's application.
He further submitted, that, the applicant cannot unilaterally decide on the dies induciae especially after choosing the ordinary application procedure instead of using the urgent application procedure in terms of which an applicant can, in terms of the proviso to Rule 232 of the High Court Rules, specify a shorter dies induciae if the court “on good cause shown, agrees to such shorter period.”
He further submitted, that, the applicant should have applied by urgent chamber application accompanied by a certificate of urgency in terms of Rule 244 of the High Court Rules.
The need to hear electoral cases urgently is not in dispute. I accept that such cases should be heard as soon as possible, but, an applicant has to follow the correct procedures to achieve that objective.
It does not assist the smooth and efficient administration of justice, for an applicant to apply for remedies on the 11th hour, and for his legal practitioners to choose a wrong procedure, and, thereafter, expect the court to extricate them from their chosen timing and procedure, without their doing what the law of procedure requires them to do to achieve that objective.
Section 165(4) of the Electoral Act provides for the use of High Court Rules as follows;
“(4) Until rules of court for the Electoral Court are made in terms of this section, the rules of the High Court shall apply, with such modifications as appear to the Electoral Court to be necessary, with respect to election petitions and other matters over which the Electoral Court has jurisdiction.”
Section 165(4) of the Electoral Act makes it clear that modifications of the High Court rules must “appear to the Electoral Court” to “be necessary.” This means, an applicant cannot unilaterally decide that issue, but has to first convince the court of the necessity of the modification.
The applicant did not do so.
He, while using the procedure which gives the respondents the longest dies induciae, unilaterally modified the Rule to reduce that period.
In my view, the applicant should have simply applied by urgent application, which, in terms of Rule 244, allows a judge to call parties to make submissions on the issue of urgency.
Rule 244 of the High Court Rules reads;
“244. Where a chamber application is accompanied by a certificate from a legal practitioner in terms of paragraph (b) of subrule (2) of Rule 242 to the effect that the matter is urgent, giving reasons for its urgency, the registrar shall immediately submit it to a judge, who shall consider the papers forthwith.
Provided, that, before granting or refusing the order sought, the judge may direct that any interested person be invited to make representations, in such manner and within such time as the judge may direct, as to whether the application should be treated as urgent.”…,.
Rule 244 of the High Court Rules makes it clear that urgency has to be determined by a judge after hearing the parties submissions on it.
In this case, it was not possible to determine that issue within an ordinary application in terms of Rule 232, to which Rule 244 does not apply.
It is for these reasons why the third and fifth respondents insistence on the dies induciae provided for in Rule 232 cannot be interfered with, unless the applicant invokes remedial remedies to enable the hearing of its application without having to wait for the expiry of the dies induciae he trapped himself into.
The applicant's application must, therefore, be removed from the roll.
