NDOU J: The
applicants seek an order in the following terms:
“It is hereby ordered that:
The third respondent be and is hereby ordered and directed to
gazette a date for elections within 14 days of granting of this order in the
following House of Assembly Constituencies:-
(i)
Nkayi
South
(ii)
Lupane
East
(iii)
Bulilima
East”
The background facts of this application are the
following. All three applicants were
elected members of the National Assembly in the 2008 general elections under
MDC ticket. They represented Nkayi
South, Lupane East and Bulilima East constituencies respectively. They fell out of favour with their MDC party
resulting in their expulsion from the party in 2009. The MDC party ensured that the applicants had
their membership of parliament terminated.
By notices pursuant to the provisions of section 41(1) (E) of the
Constitution of Zimbabwe the Clerk of Parliament notified them that their membership
of the august house had been terminated with effect from 22 July 2009. The Speaker of the House of Assembly notified
the 3rd respondent in terms of section 39(11) of the Electoral Act
[Chapter 2:13] of the vacancies in the above-mentioned constituencies. The said notice was dated 17 August
2009. Up to date of the issuance of the
application the 3rd respondent had not acted in terms of section 39
in order to fill these vacancies. This
is the pith and marrow of this application.
Section 39 supra provides:
“(1) A
vacancy in the membership of Parliament which exists otherwise than by reason
of a dissolution of parliament shall, subject to this section, be notified to
the President and the Commission in writing by the Speaker as soon as possible
after the Speaker becomes aware of the vacancy.
(2) The President shall, within a period of
fourteen days after-
(a) he
or she has been notified of this section of a vacancy in the membership of
Parliament; or
(b) a
declaration is made by the Chief Elections Officer in terms of section fifty;
of
(c)
a nomination day or the last nomination day as the case may be, where no person
has been duly nominated for election publish a notice in the Gazette ordering a
new election to fill the vacancy in the same manner, with any changes that may
be necessary, as is provided in section thirty-eight in regard to a general
election and the provisions of this Act shall apply accordingly.”
The third respondent in answer to this application does not
deny that a notice was given to him in terms of section 39(1) of the Act. The 3rd respondent contends that
section 39(2) supra, should be
interpreted as directory and not peremptory, arguing that such an approach to
interpretation would be reasonable given the lack of funds for holding
elections. It is trite that language of
a predominantly imperative nature is generally taken to be indicative of
peremptoriness. The verb “shall” is one
such word – Messenger of Magistrates
Court, Durban v Pillay 1952(3) SA
678 (A); R v Busa 1959 (3) SA 385 (A), Maharaj
and Ors v Ramperstad 1964 (4) SA
638 (A) at 644. But, a court called upon
to determine whether a particular provision is peremptory or directory must
construe the language of the concerned provision in the context, scope and
object of the Act of which it forms part – Charlestown
Town Board v Vilakazi 1951 (3) SA
361 (A). In Maharaj and Ors v Ramperstad,
supra at pages 643 G to 644 B the court had this to say:
“Appellants' counsel pointed out that the regulation used the
word “shall” … in relation to the requirement of attaching to the application a
plan or map tracing, and on the authority of such decisions as Messenger of the Court, Durban v Pillay 1952 (3) SA 678 A … he contended
that this was a “strong indication” that the requirement was peremptory. In the former of the two cases referred to
immediately above, VAN DEN HEEVER JA described the word “moet” (“shall”) in Katian terms as embodying the “categorical
imperative”. It would be a work of
supererogation to refer to the long list of examples in our reported case law
where that word, in the light of considerations pointing to another conclusion
has had to surrender this resounding accolade and been reduced to the status of
a mere directory verb.”
Further, in Nkisimane
and Ors v Santam Insurance Co Ltd
1978 (2) SA 430 (A), TROLLIP JA had this to say:
“Preliminarily I should say that statutory requirements are
often categorized as “peremptory” or “directory”. They are well known concise and convenient
labels to use for the purpose of differentiating between the two
categories. But the earlier clear cut
distinction between them (the former requiring exact compliance and the latter
merely substantial compliance) now seems to have become somewhat blurred. Care must therefore be exercised not to infer
merely from the use of such labels what degree of compliance is necessary and
what the consequences are of non – or defective compliance. These must ultimately depend upon the proper
construction of the statutory provision in question, or in other words, upon
the intention of the law giver as ascertained from the language, scope and
purpose of the enactment as a whole and the statutory requirement in particular
(see the remarks of VAN DEN HEEVER J in
Lion Match Co Ltd v Wessels 1946
OPD 376 at 380). Thus, on the one hand,
a statutory requirement construed as peremptory usually still needs exact
compliance for it to have the stipulated legal consequence, and any purported
compliance falling short of that is a nullity.
(See authorities quoted in Shalala
v Klerksdorp Town Council & Anor
1969 (1) SA 582 (T) at 587A-C). On the
other hand, compliance with a directory statutory requirement, although
desirable, may sometimes not be necessary at all, and non – or defective
compliance therewith may not have any legal consequence (see for example, Sutter v Scheepers 1932 AD 165). In
between those two kinds of statutory requirements it seems that there may now
be another kind which, while it is regarded as peremptory, nevertheless only
requires substantial compliance in order to be legally effective (see JEM Motors Ltd v Boutle and Anor 1961 (2) SA 320 (N) at 327 in fin – 328B and Shalala's case supra at 587F – 588H, and of Maharaj
and Others v Rampersad 1964 (4)
SA 638 (A) at 646C-E). It is unnecessary
to say anything about the correctness or otherwise of this trend in such
decisions. Then, of course, there is
also the common kind of directory requirement which need only be substantially
complied with to have full legal effect (see for example Rondalia Versekerings – Korporasie Bpk v Lemmer 1966 (2) SA 245 (A) at 257H-258H).”
It is thus clear that the mere use of labels such as the word
“shall” does not necessarily mean that the provision is peremptory. Such language, in many cases, represented little
more than the first stage of the enquiry.
“It is the duty of the courts of justice to try to get at the real
intention of the legislature by carefully attending to the whole scope of the
statute concerned to be construed: - Crawford
and Ors v Borough of Eshowe &
Anor 1956 (1) SA 147 (NPD) and Vita
Food Products, Incorporated v Unus
Shipping Co Ltd 1939 AC at 293. The
court must carefully examine the object at the Act and the public importance of
compliance with it. Such case has to be
considered on its merits – Liverpool
Borough Bank v Turner 2d G.F. and
J. 502, 507. It is not the first time
that I have to decide whether section 39(2) is peremptory or directory. In Sibanda
v The President of the Republic of
Zimbabwe HB-46-08 the same issue arose.
In that case considered on its merits, I held that the language of
section 39(2) is peremptory.
However, there are exceptions to this general rule – JEM Motors Ltd v Boutle & Anor – supra and New Zealand case of Simpson v Attorney General [1955] NZLR 271 (discussed in De Smith's Judicial Review of Administrative Action
(4th Ed) by J M Evans at p 144).
In the Simpson case it was
held that procedural requirements should not be construed as mandatory
(peremptory) if serious public inconvenience would result. Further, in his book Interpretation of Statutes (Juta & Co) G.E. Devenish at page
228 states that courts do frequently condone non-compliance with ostensibly
mandatory provisions by weighing up all the relevant considerations such as, inter alia, public convenience, justice
and the object of the Act. The court has
to consider whether interpreting the Act in a peremptory sense would cause
hardships and inconveniences to rate payers.
According to Maxwell 10th Ed at page 381 provisions of a
statute which relate to the performance of a public duty seem to be generally
understood as mere instructions for guidance and government of those on whom
the duty in imposed, that is to say as directory only, where the invalidation
of actions done in neglect of them would work serious general inconvenience or
injustice to persons who have no control over those entrusted with the duty and
where invalidation would not promote the essential aims of the legislature.
The view attributed to the learned author Maxwell, supra, makes a lot of sense and
should, in my humble view, be adopted in the construction of section 39(2), supra.
Such an interpretation would be reasonable given that if the court were
to make an order that by-elections be held when the relevant funds for holding
such elections are not there the order would be brutum fulmen and this would clearly be an undesirable
situation. If the government were to
commit the little available funds and resources to the holding of by-elections
this would result in serious general inconvenience to the general public. In the circumstances of this case it should
be accepted that the provisions of section 39(2) should be understood as
nothing more than mere instructions for guidance to the President when he
carries out his public duty to gazette election dates. Clearly ordering the President to gazette
by-elections in the absence of the required financial resources would not only
disrupt the smooth running of the country but would cause serious inconvenience
to the public.
Accordingly, from the facts of this case, the interpretation
of the word “shall” is therefore, directory.
Ms Chimbaru, for the 3rd
respondent submitted that the 3rd respondent would have no problem
in the order sought by the applicants being granted after the lapse of two
months from the date of the hearing. The
two months has lapsed so I have no option but
grant the order. Before I grant
the order I wish to make a few observations.
The legal practitioners in casu,
based their legal arguments primarily from what is not contained in the
evidence filed in their respective papers.
The litigants' case is really what the affidavits and annexures state
and not some legal argument that is not tandem with the evidence therein. The applicants' papers were not amended to
evince that the fiscus now has the requisite funds to hold by-elections. This was stated by the applicants' legal
practitioner from the bar. The court
cannot take judicial notice of the fiscus's ability to fund an election. The 3rd respondent's legal
practitioner also made some factual submission from the bar on the government's
ability to hold elections within two months.
The litigants should amend their papers to reflect changed
circumstances.
I accordingly, make an order in the following terms:
It is ordered that:
1.
The
3rd respondent be and is hereby directed to gazette a date for
elections within fourteen days of service of this order on him in the following
House of Assembly constituencies, Nkayi South, Lupane East and Bulilima East.
2.
There
is no order as to costs.
Messrs Phulu & Ncube, applicants' legal practitioners
Civil Division, Attorney General's Office 3rd
respondent's legal practitioners
