At the management meeting held on 21 May 2005, four preliminary issues were referred to trial. These were;
(i) Whether or not the petition was served on time;
(ii) Whether there was proper service on the second respondent;
(iii) Whether security for costs was provided; and
(iv) Whether or not the second respondent was properly joined to the petition.
At the hearing, on noticing that the petition had been lodged with the Registrar of this Court on 15 April 2008, I raised the further issue of whether it was presented within the time limits set out in section 168(2) of the Electoral Act [Chapter 2:13], hereinafter called the Act.
The brief facts were these:
Tsitsi Veronica Muzenda, the petitioner, of the Zimbabwe African National Union (Patriotic Front) ZANU (PF) party, stood as a Senatorial candidate for the Gweru-Chirumanzu senatorial constituency during the harmonized elections held in Zimbabwe on 29 March 2008. She competed for office with Patrick Kombayi, the first respondent, of the Movement for Democratic Change-Tsvangirai party MDC-T. The election was run and conducted by the Zimbabwe Electoral Commission, the second respondent.
The petitioner became aware that the first respondent had won the seat on 5 April 2008 and filed the petition on 15 April 2008.
It was served on 6 May 2008, by the Deputy Sheriff, at Harvest House, the headquarters of the first respondent's political party. The return of service indicates that a court application was served on one Muzuva, a security officer, who accepted service on behalf of the first respondent.
Another copy was served on the second respondent at its place of business on the same day.
The petition did not show that security for costs had been furnished. The first respondent was not served with any recognizance.
Counsel for the petitioner was to advise the Court, from the bar, in argument, that the security for costs was paid in the sum set by the Registrar, and, out of an abundance of caution, recognizance entered at the same time on 23 April 2008.
The first respondent received the petition on 19 May 2008.
The petitioner provided minimal facts of the events that triggered the application. She did not provide the date on which the first respondent was declared the winner by the Constituency Election Officer in terms of section 66(1) of the Electoral Act. She referred to a recount of votes but did not provide any details on the date it was held and its outcome. Some of the facts that appear in her heads of argument were not pleaded in her founding affidavit.
The duty to present an election petition is cast on the losing candidate by section 167 of Electoral Act [Chapter 2:13].
Its format and period of presentation are set out in section 168 of the Electoral Act.
It has to be presented within 14 days after the date on which the declaration of the result in the last constituency for Senatorial elections is made.
The duty is placed by the Electoral Act on the petitioner to establish this fact. It is this fact alone which triggers this legal right for her. Failure by her to establish it would be fatal to her case for the reason that she would have failed to bring her self into the protective ambit of the Electoral Act.
The facts alleged in the affidavit deal with corrupt practices which occurred before and during the election but not after the elections.
It is only illegal practice, as defined, that occurred after the announcement by the Constituency Elections Officer in the last constituency that triggers the 30-day notice period from the date of the alleged illegal practice that is provided in the proviso to section 168(2) of the Electoral Act. The petitioner could only bring her petition within the 14 day period.
I, however, requested that the information that is required to initiate the petition be provided by the second respondent.
At the hearing counsel for the second respondent produced a document from the second respondent which showed that the declaration of the last result in a House of Assembly constituency had been made on 4 April 2008 for the Kariba constituency.
Counsel for the first respondent, correctly in my view, abandoned argument on whether or not the petition had been filed on time.
I accept his reasoning, that, if the result for the House of Assembly seat was announced in Kariba on 4 April 2008, it was unlikely that the result for the Senatorial constituency, which incorporated the Kariba constituency, would have been declared earlier given its size.
The effect of 4 April was that in terms of section 33(4) of the Interpretation Act [Chapter 1:01] the petitioner had at least until 21 April 2008 to present her petition as the 14-day period would have ended on 18 April, a public holiday, which was followed by a Saturday and Sunday: see Nyamapfeni v The Constituency Registrar for Mberengwa East & Others HH27-08 and the cases cited therein.
In casu, the petition, having been filed on 15 April 2008, was presented on time. The issue that I raised, therefore, falls away....,.
3. Whether the second respondent was properly joined as a party
Counsel for the second respondent objected to the citation of the second respondent in the petition. He relied on the definition of respondent found in Part XXIII in section 166 of the Electoral Act [Chapter 2:13]. The section reads as follows:
“166 Interpretation in Part XXIII
In this Part —
“'respondent' means the President, a Member of Parliament or Councillor whose election or qualification for holding the office is complained of in an election petition.
[Definition substituted by section 78 of Act 17 of 2007].”
He invoked the maxim expressio unius est exclusio alterius in aid of his objection.
According to FRANCIS BENNION in his book Statutory Interpretation, Butterworths, 1988…, the expression means “to express one thing is to exclude another.”
Counsel for the second respondent submitted that the legislature deliberately defined respondent in the Electoral Act so as to exclude the second respondent in circumstances where it would automatically have been included by virtue of its overarching role in running and conducting elections. He advanced six reasons upon which he based his submission that the exclusion was deliberate.
Counsel for the petitioner, on the other hand submitted that the second respondent was properly cited because it is an interested party which is charged with the responsibility of giving effect to the order of court. He based his submission on the common law principle of joinder and relied on Tsvangirai v Mugabe and The Electoral Supervisory Commission HH109-05.
He contended that the second respondent would have no obligation to give effect to the determination of Court arising from proceedings in which it did not participate.
He further argued that grave injustice would visit the petitioner if the second respondent's officials, who are implicated in electoral malpractice, are not called to testify.
He seemed to believe that they could only testify if the second respondent was cited as a respondent.
I am persuaded by the six reasons that were advanced by counsel for the second respondent. They clearly demonstrate that the legislature deliberately excluded the citation of the Zimbabwe Electoral Commission as a respondent in electoral petitions brought under Part XXXIII of the Electoral Act.
With the full knowledge of the second respondent's mandate in election matters, the legislature;
(i) Firstly, in section 166 of the Electoral Act did not include it as a respondent, obviously in a bid to guarantee its neutrality in the conduct of elections.
(ii) Secondly, the second respondent is excluded from the protective ambit of section 168(3).
(iii) Thirdly, in section171(3)(b)(ii) it mandated the Electoral Court to certify its determination to, amongst others, the second respondent, which, in itself, would be an anomalous method of alerting a respondent who is before it of its decision. In fact, the other persons who are notified are not respondents but public officials.
(iii) Fourthly, in section 171(a) and (b) the second respondent may be made to pay costs, or a portion thereof, for the culpable conduct of its officials, an obvious fate that befalls any losing or maligned respondent.
(iv) Fifthly, in section 158 as read with section 171(4)(b) any person alleged to have committed an electoral malpractice may be called to vindicate his or her name before such a finding is made against him or her.
In any event, “means” is the operative word in section 166 of the Electoral Act. It carries a different import from such words as “includes”. It is peremptory in nature.
I find that the force of reasoning in Movement for Democratic Change & Anor v Mudede N.O. & Others 2000 (2) ZLR 152 (S) is such that in defining respondent, in section 166 of the Electoral Act, the legislature intended to demonstrate, beyond doubt, the centrality of the winning candidate in election petitions.
The challenge is to him or her. His conduct is impugned in terms of section 167 of the Electoral Act and measured against the principles set out in section 3 of the Electoral Act.
Sections 155 to 157 make the winner liable for the acts of commission or omission that he or his agents or any other person commits with his or their knowledge and consent or approval.
A finding that the election was tainted to such an extent, as would materially affect its outcome, triggers, by operation of law, the holding of a new election.
The second respondent does not have the authority, luxury, or inclination to decline to hold such an election in those circumstances.
I therefore discern of no conceivable reason, in either law or logic, why the second respondent should be cited as a respondent under Part XXXIII of the Electoral Act.
MFALILA J was of the same view, at page 166E-H, in Pio v Smith 1986 (2) ZLR 12 (SC). He held that the predecessor functionaries of the second respondent could not be cited as a respondent under the then prevailing Electoral Act.
The reliance placed by counsel for the petitioner on Tsvangirai v Mugabe and The Electoral Supervisory Commission HH109-05, as authority for the proposition that the first respondent was properly cited, was misplaced.
HLATSHWAYO J…, based his decision for approving the joinder of the Electoral Supervisory Commission, the predecessor of the second respondent, on the common law principle of locus standi and Rules 85, 86 and 87 of the High Court Rules.
The only difficulty I have with reference to the common law is that an election petition is unknown to common law: see Hove v Gumbo SC143-04…,.
Further, it does not appear to me that the Rules of the High Court would supercede the definition of respondent set out in section 166 of the Electoral Act.
In any event, as was submitted by counsel for the second respondent, as his sixth reason, Tsvangirai v Mugabe and The Electoral Supervisory Commission HH109-05 is distinguishable from the present matter in that it concerned a Presidential election petition while the present involves a Parliamentary election petition.
The Electoral Act [Chapter 1:01], under consideration in that case, did not, in section 102, define respondent for Presidential petitions. Under that old Act, petitions were referred to the High Court and not, as at present, to the Electoral Court, a special court created under the Electoral Act No.25/2004.
Citing the second respondent, or, more correctly, its Chairman, is not permitted by the Electoral Act in election petitions.
I fail to see how citing the second respondent can be said to be in substantial compliance with the Electoral Act when the Act excludes it.
The citation of the second respondent, in name, is contrary to the provisions of section 18 of the Zimbabwe Electoral Commission Act which incorporates the modus operandi set out in section 3 of the State Liabilities Act [Chapter 8:14] for citing Government ministries and departments.
It directs that the Chairman of the second respondent be cited.
The citation of the wrong party renders the petition as against the second respondent void: see Savanhu v Post Master General 1992 (2) ZLR 455 and Sibanda v Post Master General HH263-90.
Thus, even if the second respondent were properly joined in the petition, I would still dismiss it on the basis that the wrong party was cited.
I, however, hold that the Zimbabwe Electoral Commission was improperly joined as a party in this petition....,.
It is declared that the Zimbabwe Electoral Commission was wrongly cited and is hereby removed as a party to this petition. The petitioner shall bear its costs.
