The applicant, one Lovedale Mangwana (“Mangwana”), filed this application through the urgent Chamber Book.He filed it in terms of Rules 59(6) and 107 of the High Court Rules 2021.He is moving me to grant him a declaratur and consequential relief.He premises his application on section 85(1) of the Constitution of ...
The applicant, one Lovedale Mangwana (“Mangwana”), filed this application through the urgent Chamber Book.
He filed it in terms of Rules 59(6) and 107 of the High Court Rules 2021.
He is moving me to grant him a declaratur and consequential relief.
He premises his application on section 85(1) of the Constitution of Zimbabwe as read with section 23(3) of the Electoral Act [Chapter 2:13] (“the Act”).
His suit is against one Saviour Kasukuwere (“Kasukuwere”) whom he cites as the first respondent and also against the Zimbabwe Electoral Commission (“the Commission”) and the Minister of Justice, Legal and Parliamentary Affairs (“the Minister”) who are, respectively, the second and third respondents herein.
His bone of contention is that the Commission, which sat as the Nomination Court on 21 June 2023, acted in error when it accepted Saviour Kasukuwere's nomination paper for election to the office of the President of Zimbabwe in the election which shall be held on 23 August 2023.
He insists that Saviour Kasukuwere, whom he claims was out of Zimbawe for more than eighteen (18) consecutive months, is, in terms of section 23(3) of the Electoral Act, no longer a registered voter.
He claims, that, as a person who ceased to be a registered voter, Saviour Kasukuwere cannot vote in the forthcoming election, and, because he cannot vote, he cannot be voted into any public office, let alone that of the President of Zimbabwe.
He, accordingly, seeks a declaration which is to the effect that the decision of the Nomination Court, which accepted Saviour Kasukuwere's papers as a candidate for election to the office of the President of Zimbabwe, violated section 91(1)(d) of the Constitution of Zimbabwe as read with section 23(3) of the Electoral Act.
The decision, he alleges, is a violation of his rights as contained in section 67(1)(a) and 67(1)(d) of the country's Constitution.
He, in short, moves me to grant him an order which is to the effect that Saviour Kasukuwere cannot be a candidate for election to the office of the President of Zimbabwe in the 23rd August 2023 plebiscite. He moves me, in consequence, to direct the Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) not to include the name of Saviour Kasukuwere in their preparation of ballot papers which will be used in the electoral process of 23 August 2023. He moves me, further, to interdict Saviour Kasukuwere from holding himself out to the public and to the electorate in this country, as well as abroad, physically or through any form of media, as a Presidential candidate for the forthcoming election.
Saviour Kasukuwere opposes the application.
The Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) did not file any notice of opposition. The Commission filed what it terms its notice to abide with the decision of the court. It filed the notice on 30 June 2023.
My view is that the Minister is also of the same view.
The non-attendance of the Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) leaves Lovedale Mangwana and Saviour Kasukuwere in the question.
Saviour Kasukuwere raises five (5) in limine matters, after which he proceeds to deal with the merits of the application. The preliminary issues which he raises are that:
(i) The court does not have the jurisdiction to hear and determine the matter;
(ii) The application is one for review which is disguised as a declarataur;
(iii) Lovedale Mangwana does not have what is normally referred to as the locus standi in judicio;
(iv) Lovedale Mangwana approached the court in terms of an incorrect law and in an incompetent forum; and
(v) Lovedale Mangwana violated the principle of subsidiarity.
He denies, on the merits, that he was out of his constituency, and, therefore, out of Zimbabwe, for more than eighteen (18) consecutive months.
He challenges Lovedale Mangwana to prove the allegation which he (Lovedale Mangwana) is making.
He avers that he is duly nominated to be a Presidential candidate in the forthcoming general election because he meets the legal requirements for nomination.
He challenges Lovedale Mangwana to state the manner in which his candidature would affect Lovedale Mangwana's constitutional rights.
He insists that he has a local address where he resides and is domiciled.
He claims that he left Zimbabwe on a temporary basis on medical grounds.
He avers that he is a registered voter and that the Zimbabwe Electoral Commission (the Commission) verified his address in terms of section 23(3) of the Electoral Act.
It is his appearance on the voters roll which makes him compliant with section 91 of the Constitution of Zimbabwe, according to him.
He alleges that he appears on the voters roll of Ward 40, Pfura Rural District Council, Mount Darwin South Constituency. He gives Chiunye Primary School A as his polling station.
He claims that Lovedale Mangwana makes bare allegations regarding his absence from Zimbabwe.
He contends that Lovedale Mangwana has not established any right which the court should protect.
Lovedale Mangwana has not, according to him, shown that he is a registered voter in the ward or the constituency he alleges to be registered. He insists that his inclusion on the ballot paper does not interfere with Lovedale Mangwana's right to vote.
Lovedale Mangwana, he claims, has not set out any substantial interest in the matter nor a factual cause to motivate the relief which he seeks.
There is, according to him, no legal basis for the Zimbabwe Electoral Commission's conduct to be set aside, and, consequently, for his nomination to be quashed.
He insists that the application does not meet the requirements of urgency.
Lovedale Mangwana, he avers, should have engaged the processes in terms of the Electoral Act well before 21 June 2023. The conduct of Lovedale Mangwana, he claims, is self-inflicted urgency.
He alleges that the application is no more than Lovedale Mangwana's attempt to curtail his right as it is provided for in section 67 of the country's Constitution.
He moves me to dismiss the application with costs which are at attorney and client scale.
The application succeeds.
ELECTION AND THE LAW
An election is, by its nature, a very emotive subject. Once it is at hand, people push and shove each other. They do so with one object in mind. They do so to either get into, or deny others from, entering or participating in the electoral race.
More often than not, the protagonists fail to find each other.
Where such occurs, they take each other to court which will resolve the dispute between them.
The court takes no side. All it does is to listen to the respective narratives of those who have approached it, the facts of each in particular, apply the relevant law to the same, and render a decision which, in its view, accords with the applicable law.
In this jurisdiction, a judicial officer wears two hats during the period which leads onto, during, and after an election.
Depending on the facts of the case, the judicial officer can sit as an ordinary court or as an electoral court.
The position which he/she assumes largely depends on the substance of the suit which the parties place before him/her.
Because the case can fall into one law and its rules to the exclusion of the other law and its rules, it more often than not occurs that one litigant, plaintiff or applicant, files his/her case under one law and its rules which, from a prima facie perspective, are divorced from the substance of the case.
Where the litigant does so, he/she creates fertile ground for his/her adversary, defendant or respondent, who will be quick to tell the court that the litigant's suit is misplaced. Misplaced in the sense, that, it should have been lodged in terms of the other law and its rules.
APPLICATION
What I stated in the foregoing paragraphs of this judgment applies to the current application, whose substance is that of an electoral matter which has been filed in terms of the High Court Act and its rules and not in terms of the Electoral Act and its rules.
Lovedale Mangwana's adversary, for instance, remains of the view that the same should have been filed under the latter, and not the former piece of legislation.
Whether or not the stated matter reflects the correct position of the law depends, in a large measure, on the substance of the application, which, as is evident from Lovedale Mangwana's founding papers, is one for a declaratur and consequential relief.
It is pertinent for me, at this stage, to deal with Lovedale Mangwana's application.
In doing so, I remain alive to the preliminary issues which Saviour Kasukuwere raises.
Those technical issues are allowed by law. They are more often than not raised by the parties legal practitioners who are schooled in substantive law as well as in the law of practice and procedure.
The issues colour the case of the parties for better or for worse. Where they are properly raised, they have the effect of stifling the suit of the plaintiff or the applicant to a point where no further debate of it may be entertained by the court. They cannot therefore be wished away. They should be taken account of on the basis of the audi alteram partem rule which, simply considered, enjoins a court to hear both parties before it determines their dispute.
IN LIMINE MATTERS
URGENCY
What constitutes urgency is not the imminent arrival of the day of reckoning. A matter is urgent, if, at the time the need to act arises, the matter cannot wait: Kuvarega v Registrar-General 1988 (2) ZLR 189.
Where an urgent matter is allowed to wait, when it should not, it would be within the applicant's right to suggest to the court not to bother acting on his application when the harm which he seeks to prevent would have occurred.
It follows from the foregoing paragraph, that, when a matter is filed through the Urgent Chamber Book, and is placed before a judge for his or her consideration, the judge should quickly assess the case of the applicant; as he or she reads through the same and formulate an opinion on it.
Where he remains of the view that the same does not meet the requirements of urgency, he or she expresses his or her opinion on the application and does nothing about it unless and until the applicant persists that he or she be heard, in which case the judge will accord him or her the opportunity to do so.
An application which, in the opinion of the judge, has some urgency, enjoins the judge to attend to it with the minimum of delay.
The judge, therefore, allows the application to jump the queue of all matters which are filed before it so that it is heard earlier than them, to avert the harm which the applicant perceives he or she would suffer if his or her case is allowed to wait its turn in the normal roll of the court.
Lovedale Mangwana filed this application through the Urgent Chamber Book. He had a certificate of urgency prepared and filed with it.
His view is that his case, which relates to Saviour Kasukuwere's nomination as a Presidential candidate in the forthcoming election, should be treated with urgency. With urgency because processes which lead to preparation of the ballot paper and other election-related procedures are at hand. Saviour Kasukuwere's position should therefore be arrested before it goes further than the permissible point, according to him.
His narrative is that he treated his cause of complaint with the urgency that the same deserved.
He alleges that he approached the court within three working days of the event which he is impugning. He avers that he did not sit on his laurels but has been diligent in pursuing this matter.
He insists that a delay in deciding the case will render the whole process what, in legal parlance, is referred to as a brutum fulmen. This, according to him, occurs where the application is heard and determined after the election has been completed.
He, accordingly, moves me to grant him an urgent hearing.
Saviour Kasukuwere's position is to the contrary.
He argues, that, the application does not meet the requirements of urgency. He insists that Lovedale Mangwana was at liberty to activate the necessary processes to have him struck off the roll (sic). He claims that Lovedale Mangwana knew from the beginning that he (Saviour Kasukuwere) was a registered voter. He insists that Lovedale Mangwana should have engaged the processes in terms of the Electoral Act well in advance.
He submits, that, the application is self-inflicted urgency, because, according to him, Lovedale Mangwana had a long time to cause his removal from the list of voters if such was the latter's intention.
Lovedale Mangwana, he insists, has no interest on whether or not he is a registered voter. All what Lovedale Mangwana wants, he avers, is to scuttle his Presidential race and curtail his right under section 67 of the Constitution.
Saviour Kasukuwere's argument is, in my view, misplaced.
He is not having me believe that Lovedale Mangwana should have acted in a vacuum. Lovedale Mangwana, it stands to reason and logic, did not know which persons would throw their hats into the ring to request the electorate to vote for them into this or that office. He would therefore have played the role of a person who concerned himself with nothing which is of substance if he was to engage himself in having all the names of all persons whom he suspected would want to enter into the electoral race removed from the roll of voters as Saviour Kasukuwere is suggesting.
Such an exercise on Lovedale Mangwana's part would have portrayed him as a person who embarks on a fishing expedition with no end-in-sight, and, therefore, meaningless.
It was only the acceptance of Saviour Kasukuwere's papers by the Zimbabwe Electoral Commission (the Commission) which placed Lovedale Mangwana's mental state in focus. It is at that time, more than at any other, that he made up his mind to complain to the Commission.
The need to act, on the part of Lovedale Mangwana, did not arise prior to 21 June 2023. It arose on the mentioned date.
Lovedale Mangwana's application is not, therefore, self-created urgency. It, in the circumstances of the same, meets all the requirements of urgency.
