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 ...
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.
Jurisdiction
Counsel for the first and second respondents raised a preliminary issue on whether or not this court has jurisdiction to hear an application for which the Electoral Act does not specifically confer jurisdiction on it.
He, relying on the case of Makone & Another v Chairperson (ZEC) & Anor 2008 (1) ZLR 230 (H), submitted, that, this court can only exercise jurisdiction over cases where the Legislature specifically conferred jurisdiction on it.
Counsel for the applicant, in response, submitted, that, section 161(2) of the Electoral Act, as currently worded, confers jurisdiction on the Electoral Court in respect of all applications arising from the Electoral Act. He submitted that section 161 must be read as a whole to get its full meaning.
I agree, that, provisions of a statute must be construed within the context in which they are found.
The Electoral Act has been extensively amended since my decision in Makone & Another v Chairperson (ZEC) & Anor 2008 (1) ZLR 230 (H).
The wording of the current section 161 of the Electoral Act is totally different from the earlier version. In the 2004 version, which applied in 2008, section 161(1) of the Electoral Act provided as follows:
“161(1) There is hereby established a court, to be known as the Electoral Court, for the purpose of hearing and determining election petitions and other matters in terms of this Act.
(2) The Electoral Court shall have no jurisdiction to try any criminal case.
(3) The Electoral Court shall be a court of record.”
Section 161 of the Electoral Act, as amended by Act 3 of 2012, reads as follows:
“161(1) There is hereby established a court, to be known as the Electoral Court, which shall be a court of record.
(2) The Electoral Court shall have exclusive jurisdiction —
(a) To hear appeals, applications, and petitions in terms of this Act; and
(b) To review any decision of the Commission or any other person made or purporting to have been made under this Act; and shall have power to give such judgments, orders, and directions in those matters as might be given by the High Court:
Provided that the Electoral Court shall have no jurisdiction to try any criminal case.
(3) Judgments, orders, and directions of the Electoral Court shall be enforceable in the same way as judgments, orders, and directions of the High Court.”
Subsection (2) brought in changes which makes the decision, in Makone & Another v Chairperson (ZEC) & Anor 2008 (1) ZLR 230 (H) inapplicable.
The Electoral Court now has exclusive jurisdiction - which it did not have in 2008.
The word “exclusive” means this court now has a domain over which it does not share its jurisdiction with any other court. That domain is marked by section 161(2)(a) and (b) of the Electoral Act, which caps it all by adding, that, this court now has powers similar to those exercised by the High Court when it determines electoral issues.
The combination of exclusive jurisdiction, and the addition of powers similar to those exercised by the High Court, means, this court now enjoys unlimited jurisdiction over all electoral cases, except criminal cases, and cases which have been specifically allocated to other courts.
Applications are now specifically mentioned as falling within the Electoral Court's jurisdiction.
In 2008, they fell under “other matters.”
The Electoral Court now has “power to give such judgments, orders, and directions in those matters as might be given by the High Court.”
The granting to the Electoral Court of exclusive jurisdiction, and power to give such judgments, orders, and directions in those matters as might be given by the High Court, is a clear enhancement of the Electoral Court's jurisdiction after Makone & Another v Chairperson (ZEC) & Anor 2008 (1) ZLR 230 (H).
The fact that the Legislature, which is deemed to know the law, made these deliberate changes, means it intended to alter case law by giving this court jurisdiction the Makone case said it did not have.
Exclusive jurisdiction means this court does not share concurrent jurisdiction with any other court on matters it has jurisdiction on.
The granting of power to give judgments and orders the High Court might give enables this court to exercise jurisdiction over cases in which it used to decline jurisdiction and such cases would be heard by the High Court. It has simply been given exclusive jurisdiction, with unlimited power to hear and determine cases under the Electoral Act just as the High Court had jurisdiction to hear such cases during the era when the Electoral Court did not have exclusive jurisdiction.
I therefore find, that, this court has jurisdiction to hear and determine the applicant's application.
Citation of the Fourth Respondent
Counsel for the fourth and sixth to eleventh respondents submitted, that, the fourth respondent should have been cited in his Ministerial capacity in view of the alternative order sought by the applicant.
In paragraph 4 of his draft order, the applicant sought the following order:
“That, the 4th Respondent be and is hereby ordered to issue and cause to be circulated in Hurungwe West, the following statement in both Shona and English;
'Each voter has a right to go to the polling station at a time convenient to her/him and need not be accompanied by their village head'”
She submitted that the applicant can only make the statement sought in his capacity as the Minister of Local Government.
Counsel for the applicant, in response, submitted, that, the fourth respondent was correctly cited in his personal capacity because of what he is alleged to have said and done in Hurungwe West constituency. He referred to the applicant's allegations against the fourth respondent as the basis on which he was cited in his personal capacity. On p11 paragraph 16 of his application the applicant said:
“16. The 4th respondent, in the presence of the 5th respondent and in the name of the 3rd respondent, has addressed several campaign meetings at which he has issued threats against any person who intends to vote for me. There is video evidence of these meetings and the 4th respondent's utterances. If the 4th respondent denies ever making these statements, I will seek leave of the court to submit the video evidence.”
Counsel for the applicant further submitted, that, the fourth respondent can issue the statement sought in the alternative order in his personal capacity.
In response, counsel for the fourth and sixth to eleventh respondents submitted, that, if the statement is issued by the fourth respondent in his personal capacity it will not have the weight it would have if he made it in his ministerial capacity.
On p9 paragraph 5, the applicant clearly states that he is aware of the fourth respondent's Ministerial office but was suing him in his personal capacity.
The cumulative effect of paragraphs 4 and 9 of the applicant's founding affidavit indicates that the fourth respondent is being deliberately sued in his personal capacity for the threats and utterances he made at campaign meetings in his capacity as one of the leaders of the third respondent.
It is clear why the applicant sued the fourth respondent in his personal capacity.
It was a deliberate choice the applicant made well aware of the fourth respondent's official capacity.
I am satisfied, that, the fourth respondent's official capacity has nothing to do with the alleged threats and utterances. The applicant seems to be merely seeking a retraction of the utterances made by the fourth respondent at campaign meetings as opposed to a weighty Ministerial statement.
A litigant has a right to sue an official in his personal capacity if the alleged conduct has nothing to do with his office.
I am satisfied, that, the applicant correctly cited the fourth respondent in his personal capacity.
I therefore uphold the first preliminary issue and dismiss the second and third preliminary issues. In the result, I granted the following order;
1. The third and fifth respondents are entitled to the dies induciae provided for by the Rules in terms of the type of application the applicant filed.
2. The first and second respondents preliminary issue is dismissed with costs.
3. The fourth respondent's preliminary issue is dismissed with costs.
4. The applicant shall pay the third and fifth respondents costs.
5. The applicant's application is removed from the roll.
