The Office of the Attorney General competes on an equal footing with all other law firms in the land. It is not exempted from abiding by the Rules of the Court. There is, in my view, no basis upon which this Court can accommodate excuses from this Office that it does not, in the ordinary course of events, accommodate from any other any other firm of lawyers. To accept from the legal profession as reasonable the excuses that the first respondent's legal practitioner attempted to proffer in this matter.will be be to open the entire system to disorder and erratic filing of pleadings to an extent where the system may collapse. Courts that bend over backwards to accommodate excuses for ineptitude and complete disregard of its Rules by the Office of the Attorney General open themselves up unnecessarily to suggestions that they are partial to the Executive, the clients that are solely represented by this Office.  

The applicant seeks an order setting aside the registration of an arbitral award granted in favour of the respondent. The award was submitted for registration at the High Court in terms of the provisions of the Labour Act [Chapter 28:01] and was duly registered on 25 February 2008.

The applicant submits that the registration of the award was defective in that it was done by way of a chamber application, without notice to the applicant, instead of a court application, which would have required notice to be served on the applicant….,.

Rule 230 of the High Court of Zimbabwe Rules, RGN 1047/1971, as amended, prescribes, in mandatory terms, that a court application shall be made in Form No. 29 or where it is ex parte, in Form No.29B, which latter form is generally used for chamber applications.

It is common cause that the form used by the applicant for the rescission of judgment is neither of the above stated forms, that is, it is in neither the court application form nor the chamber application form nor the hybrid ex parte court application form.

Now, Rule 4C gives the court or judge discretion to condone departures from the rules, while Rule 229C deals with a specific form of departure, viz., proceeding by way of court instead of chamber application and vice versa.

In his submissions on behalf of the applicant, counsel for the applicant sought to rely on Rule 229C arguing that the respondent had neither alleged nor demonstrated any prejudice. However, the applicant's error in this instance was not one of using one form instead of another but of using a completely different format from the authorized ones, and, therefore, falls directly under Rule 4C and not Rule 229C….,.

The format adopted by the applicant does not contain the plethora of procedural rights that the respondent is alerted to in Form 29 nor the summary of the grounds of the application required in Form 29B. Can this substantial departure from the rules be condoned under Rule 4C?

Rule 4C states as follows:

“The court or judge may, in relation to any particular case before it or him, as the case may be –

(a) Direct, authorize or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he, as the case may be, is satisfied that the departure is required in the interests of justice;

(b) Give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to it or him, as the case may be, to be just and expedient.”

In the cases of Simross Vintners (Pty) Ltd v Vermeulen, VRG Africa (Pty) Ltd v Walters t/a Trend Litho, Consolidated Credit Corporation (Pty) Ltd v Van der Westhuizen 1978 (1) SA 779, the applicants, in three applications for compulsory sequestration, had used the notice of motion prescribed in Form 2 of the South African Uniform Rules of Court, which was a form appropriate to ex parte applications. The applicant in the first application had not served the notice on the respondent but the applicants in the other two applications had so served the notices on the respondents. It was held that in the first application the use of the Form 2 was perfectly in order as the application was brought ex parte. However, as to the other two applications, it was held that as they were not brought ex parte, the notices of motion used in these applications (i.e., the Form 2 notice) were nullities and their use could not be condoned and the applications had to be struck off the roll:

“…,. This applicant also relies on a nulla bona return, but, it chose not only to address the Form 2 notice of motion to the respondent, but also to serve it on him. Hence, it is not brought ex parte and Rule 6(5) applies. It was suggested in some of the other applications which were eventually struck off the roll that this non-compliance might be condoned under Rule 27(3). I have considered that possibility in this case, but, apart from the fact that no cause at all is shown why there should be condonation, the more fundamental difficulty arises that the document which purports to be a notice of motion is, as I have indicated above, a nullity, and I have grave doubt whether the Court has power, under this Rule, to repair a nullity, a concept in law which carries within itself all the elements of irreparability…,. In addition it must be emphasized that Form 2(a) contains a description of the procedural rights of the respondent after service of the notice of motion. These rights are considerable and substantial. How could a Court, even if it were not a nullity, put a blue pencil through all these rights in the absence of the person in whom they reside and without notice to him that such an order which abrogates his rights might be made? This application is struck off the roll.”

Our own Supreme Court has agreed with the above approach to non-compliance with mandatory rules of court.

In the case of Jensen v Acavalos 1993 (1) ZLR 216 the superior court dealt with the non-compliance with provisions of Rule 29 of the Rules of the Supreme Court, RGN 380/1964 and said the following at p.220 A-D:

“The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs: De Jager v Diner & Anor 1957 (3) SA 567 (A) at 576 C-D.

In Hattingh v Pienaar 1977 (2) SA 182 (O) at p.183 KLOPPER JP held that a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule. With this view I most respectfully agree; for if the notice of appeal is incurably bad, then, to borrow the words of LORD DENNING, in McFoy v United Africa Co Ltd [1961] 3 All ER 1169 at 1172, 'every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it stay there. It will collapse.'”

As if the non-compliance with the mandatory rules noted above was not bad enough, the applicant has not bothered to apply for condonation of its failure to comply with the rules in spite of such non-compliance having been drawn to its attention as early as when the notice of opposition was served on it.

In my considered view, where the errant party has not applied for condonation in spite of its awareness of its non-compliance, it suffices for the objecting party merely to point out the non-compliance for the application to be struck off. Furthermore, the applicant's failure to even recognize the need to apply for condonation shows a cavalier approach to compliance with rules of court, which must be discouraged by an exemplary order of costs.

In Edson Nyamapfeni v The Zimbabwe Electoral Commission and 3 Others E/P 7/08, commenting on the provisions of section 165(4) of the Electoral Act and Order 1 Rule 4A of the High Court Rules, I…, said:-

“It is true that this court can rely on High Court Rules, but, the issue to be determined is whether or not the provisions of Rule 4A extend to time limits prescribed in an Act of Parliament.”

I, thereafter, commenting on Rule 4A, said:-

“The key words in Rule 4A are 'where anything is required by these rules or in any order of the court to be done within a particular number of days.'

This means the Rule applies to anything required to be done by any rule in the High Court Rules or an order of the court. It does not extend to situations not provided for by the rules or court orders. It therefore does not assist in the construction of section 46(19)(c) of the Electoral Act, which is not a provision of the High Court Rules, but a provision of the Electoral Act.”

The first applicant, the Movement for Democratic Change, is a political party, commonly known as the (“MDC”). It will be referred to as the first applicant. The second applicant, Mr Morgan Tsvangirai, is its President. He was the first applicant's Presidential candidate in the just ended harmonized elections held on 29 March 2008. He will be referred to as the second applicant.

The first respondent is the Chairman of the Zimbabwe Electoral Commission, a Commission established in terms of section 61(1) of the Constitution of Zimbabwe. He was appointed in terms of section 61(1)(a) of the Constitution. He will be referred to as the first respondent. The Zimbabwe Electoral Commission is commonly known as (“ZEC”), in reference to the abbreviation of its name. It will be referred to as ZEC in this judgment.

The second respondent is the Zimbabwe Electoral Commission's (ZEC) Chief Elections Officer appointed in terms of section 11 of the Zimbabwe Electoral Commission Act [Chapter 2:12], hereinafter called the Zimbabwe Electoral Commission Act. He will be referred to as the second respondent.

The Facts

The first respondent, through the Zimbabwe Electoral Commission (ZEC), conducted harmonised elections which were held on 29 March 2008. The elections were contested by candidates aspiring for the following positions, Councilors of local authorities, Members of the House of Assembly and the Senate, and President of the Republic of Zimbabwe.

It is common cause that the contestants of the first three positions now know the results of their elections. The results were announced at the Ward Constituency, House of Assembly and Senatorial constituency levels. The winners were declared by the respective Ward and Constituency Elections Officers. House of Assembly and Senatorial results have also been announced by the National Collation Centre presided over by the second respondent.

It is conceded, by the respondents, that this was merely for the benefit of the general public as the legal requirements had been satisfied at constituency level.

The applicants, who have an interest in Presidential election results, filed an urgent application seeking this court's provisional order, compelling the respondents to announce the results.

The respondents, while conceding that Presidential results have not yet been announced, contented that they will announce them when they are ready....,.

Procedural Issues

In response to counsel for the applicants submissions on the merits, counsel for the respondents raised several procedural issues which he should have raised as preliminary issues.

He, in his first procedural issue, contented that the applicants application was not made in the correct form. He submitted that it should have been in Form 29 with appropriate modifications.

Counsel for the applicants, in reply, submitted that the applicants' application was made in the correct form and that even if it was not in the correct form, Rule 229C provides that such failure shall not, in itself, be a ground for dismissing the application.

The court can, however, dismiss such an application if it has caused prejudice to the other party which cannot be cured by directions for service of the application on the other party with or without an order of costs.

An examination of the applicants application reveals that it is in Form 29B when it should be in Form 29 with relevant modifications as provided by the proviso to Rule 241(2).

The applicants have, however, not suffered any prejudice.

They were served with the application and they took no issue until during their counsel's response on the merits.

Even though the issue was raised no prejudice was alleged.

I am satisfied that nothing turns on this as either Rule 229C or Rule 4C could be resorted to, to condone the application's failure to strictly comply with the proviso to Rule 241(2).

Section 170(1) of the Electoral Act deals with the method and grounds of objection. It also sets out the period within which to object. That period would have to depend on the directions given by the Electoral Court as there are no prescribed Rules of Court at the moment.

On 12 December 2011, the applicant filed an application in this court under Case No. HC12336/11 seeking a prohibitory interdict against the respondents.

The remedy sought was to prevent the respondents from moving or accepting any motion from any member of the House of Assembly to dismiss the applicant without the matter of his dismissal first being brought before the Committee on Standing Rules and Orders (CSRO) or its sub-committee or other independent and impartial disciplinary authority.

On realising that, despite having filed the aforesaid application, the respondents were determined to proceed with the motion to have him dismissed, the applicant filed the instant urgent application whose amended interim relief is couched in the following terms:-

“1. Pending the determination of the Court Application under Case Number HC12336/11 the respondents are prohibited, restricted, and interdicted from continuing to debate and voting on any motion to dismiss the applicant.

2. Pending the determination of the Court Application under Case Number HC12336/11, any debate, voting, or decision on the motion to dismiss the applicant, with or without amendments, be and is hereby declared null and void ab initio and therefore of no force and effect.”...,.

ON MERITS

Having disposed of the preliminary points raised, I wish to focus on the substantive issues raised by the parties in this application.

The fundamental guiding principle in this case was eloquently summed up by Mr Shepherd Mushonga, the fourth respondent, when he put it in the following words:-

“The principle of separation of powers is he hallmark of a constitutional democracy which entails that the three (3) arms of State, namely, Parliament, the Executive, and the Judiciary are separate and independent of each other in so far as the exercise of their powers is concerned.

The Constitution vests Parliament with the powers to regulate its own affairs. Parliament exercise judicial powers in respect of certain matters that fall within its domain to the exclusion of the Courts.”…,.

I applaud the sentiments and indeed associate myself with same.

Be that as it may, one needs to appreciate the often overlapping function that characterize the legislature, the Executive, and the Judiciary.

Whilst these three arms of Government must enjoy their independence, they do not exist outside each other. They play a complimentary role.

The sovereignty of Parliament, or, to put it simply, the power enjoyed by Parliament is not absolute, for if it were so the citizens would be extremely vulnerable. It would mean that Parliament would do virtually everything it desired, including violating its own Rules and Regulations, to the detriment of its citizen with impunity. Such a scenario, in my view, would not be tenable. There must be some control mechanism through which Parliament is to be held accountable by disgruntled citizens: see The British Constitution by J.S. DUGDALE, M.A, published by Bath James Brodie Ltd, London 1962…,.

From my reading of the applicant's urgent chamber application, and the notices of opposition filed by the respondents, I discern the following issues to be pertinent and decisive in this matter;

(a) Whether or not the House of Assembly violated Standing Order 62(d) of the House of Assembly Standing Orders by continuing to debate and voting on the motion to dismiss the applicant after the applicant had filed case no HC12336/11....,.

(a) Alleged violation of Standing Order 62(d)

It was contended, by the applicant, that, after he had filed his application in this court seeking, among other things, to interdict the respondents from continuing to debate on the issue of his dismissal, and to force compliance with proper disciplinary procedures, the House of Assembly was obliged to follow the dictates of Standing Order 62(d) of the House of Assembly Standing Orders.

In countering this argument, the respondents argued that the existence of a court application could not operate as a bar to the conduct of Parliamentary business and that only a court order had the capacity to stop further debate on the motion that was already before the House.

The argument, by the respondents, in this regard, is quite pronounced in paragraph 8 of the joint Notice of Opposition filed by the first, second, fifth, sixth and seventh respondents.

In supporting the same argument, the fourth respondent, on his behalf and also duly authorised by the third respondent, re-affirmed the position that Parliamentary debate on the issue could not be stopped by the Court application alluded to by the applicant.

It is evident from the Hansard of the day that the members of the House offered conflicting views on this issue.

It is necessary to refer to the specific section in issue. The section reads as follows:-

“62 No member shall, while speaking to a question…,.

(d) Use derogatory, disrespectful, offensive or unbecoming words against the Head of State, Parliament or its members, the Speaker, nor reflect upon a statute unless for the purposes of moving for its repeal; nor shall a member refer to any matter on which a judicial decision is pending;”…,.

It appears to me that if one were to concentrate on the ordinary grammatical meaning of the Standing Order in question one would find it extremely difficult not to understand what the House intended when it crafted these rules of debate.

It is trite that in interpreting statutes the very basic approach is first to ascribe to the words used their ordinary grammatical meaning.

It is clear to me that the Standing Order referred to simply meant that when a matter is pending before the Courts, or when a matter is sub judice, House members are obliged to respect the Court process until a determination on that matter is made.

In this regard, I feel more inclined to lean on the views of the learned judge VAN DEN HEEVER JA when he remarked on the use of the word 'shall' as follows:-

“If a statutory command is couched in such peremptory terms it is a strong indication, in the absence of considerations pointing to another conclusion, that the issuer of the command intended disobedience to be visited with nullity”: Messenger of the Magistrate's Court. Dupbata v Pillay 1952 (3) SA 678 (AD)…,.

It will be noted that during debate on the issue, those who spoke in favour of proceeding with the tabled motion suggested, strangely so in my view, that the members of the House could only be stopped from debating the issue if, at the time, there was a Court order barring them from so acting.

With respect, the Standing Order in question does not say what the respondents, and those who contributed in support of the motion, desire it to mean. If Parliament intended the Standing Order to mean what the respondents say, surely Parliament could have had no difficulty in crafting the Standing Order to that effect.

It is not in dispute that the respondents, despite having been duly served with case no. HC12336/11 continued to debate the motion in complete defiance or violation of the Standing Order in question.

This belligerent attitude displayed by the respondents can only lead to one inevitable conclusion. That disobedience by the House of its own Standing Orders must be visited with “nullity” over what it did because it was not competent for the House to stubbornly ignore the clear provisions of section 62(d) of the House of Assembly Standing Orders.

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").

The appellants, as the applicants in the court a quo, sought the following relief set out in the draft order:

"WHEREUPON after perusing the documents filed of record and hearing counsel, it is hereby declared that:-

1. The election of (the) second respondent as the Speaker of the Parliament of Zimbabwe on 25 August 2008 is null and void and set aside.

2….,.

3. That the respondents jointly and severally pay the costs of suit."

(The applicants abandoned the relief set out in paragraph 2).

The appellants' main contention in the court a quo, and in this Court, is that the election of the Speaker was null and void because it was not conducted in terms of section 39 of the Constitution of Zimbabwe (hereinafter referred to as "the Constitution"), as read with Standing Order 6 of the Standing Orders of Parliament of Zimbabwe (hereinafter referred to as "the Standing Orders").

PATEL J dismissed the application. The appellants now appeal against that judgment.

The grounds of appeal are set out in the Notice of Appeal, which, in relevant part, reads as follows:

"Grounds of Appeal

1. The learned Judge a quo erred in finding that a proper election of Speaker of Parliament was conducted in terms of the Constitution and the law.

2. The learned Judge erred in condoning the first respondent's failure to implement and enforce his own procedures for the election.

3. The learned Judge a quo erred in finding that the participants' exposure of their completed ballot papers was not a violation of the secret ballot.

4. The learned Judge a quo erred in finding that a secret ballot took place.

5. The learned Judge a quo erred in interpreting section 39(2) of the Constitution, as read with Ordinance 6 of the House of Assembly Standing Orders, as directory and not peremptory."

The grounds of appeal set out in the Notice of Appeal, as read with the record and submissions by counsel, raise essentially the following two issues for determination in this appeal –

(a) Whether the exposure of the secret ballot before the depositing of the ballot papers in the ballot box by some Members of Parliament amounts to a violation of the voting by secret ballot, and, if so, whether that rendered the election of the Speaker null and void; and

(b) Whether the failure by the Clerk of Parliament of Zimbabwe (hereinafter referred to as "the Clerk") to control the voting process and the consequent chaotic conditions constitute a failure by the Clerk to conduct an election in terms of section 39 of the Constitution, as read with the Standing Orders.

The background facts of this case are as follows:

The first respondent is the Clerk of the Parliament of Zimbabwe. Pursuant to Proclamation No.7 of 2008, the Clerk convened the first meeting of Parliament on 25 August 2008 for the purposes of swearing in the Members of Parliament and electing the presiding officers.

The Clerk's mandate to conduct these elections is derived from the Standing Orders – in the case of the House of Assembly, Standing Order No.6.

Two candidates were nominated for the office of Speaker, namely, Mr Paul Themba-Nyathi (hereinafter referred to as "Nyathi") and the second respondent (hereinafter referred to as "Moyo").

Standing Order No.6 provides that if more than one person is proposed as Speaker of Parliament, the Clerk shall conduct an election of the Speaker by ballot box.

The election took place and the Clerk announced that Nyathi had garnered ninety-eight votes and Moyo had garnered one hundred and ten votes. The Clerk accordingly declared Moyo the winner. Moyo assumed the office of Speaker.

The appellants want the election of Moyo as Speaker set aside.

I now wish to deal with the issue of whether the election was conducted by secret ballot as is required by section 39 of the Constitution, as read with Standing Order No.6 of the Standing Orders.

The appellants contend that some Members of Parliament from the MDC-T party, having marked their ballot papers in the secrecy of the polling booths, openly displayed their marked ballot papers before depositing them in the ballot box. The appellants contend that the majority of the Members of Parliament from the MDC-T party did this, while the respondents' position is equivocal.

The court a quo, however, concluded that of the two hundred and eight Members of Parliament who voted, most probably only six Members of Parliament displayed their votes in the manner alleged by the appellants. The Members of Parliament who are named as having done this are the Honourable Biti, the Honourable Khupe, the Honourable Chambati, the Honourable Chibaya, the Honourable Denga and the Honourable Moyo, the second respondent. In this regard, the court a quo concluded as follows at p11 of the cyclostyled judgment (judgment no. HH28-10):

"It is fairly clear that Hon. Biti took the lead in brandishing his vote and that several of his colleagues were then emboldened into emulating his possibly impolitic example. However, they did so of their own free will and, more significantly, they did so after having cast their votes in secret."

The conclusion of the court a quo that at least the six Members of Parliament named displayed their ballot papers after marking them but before depositing the ballot papers in the ballot box cannot be faulted.

This conclusion is fortified by the following factors:

It is specifically alleged by the appellants that Moyo displayed his ballot paper before depositing it. Moyo filed an affidavit in this case in which he does not deny this allegation. Five other Members of Parliament are named as having displayed their ballot papers before depositing them in the ballot box. None of these five Members of Parliament have deposed to affidavits denying the allegation.

In my view, it would have been easy for Moyo to secure such affidavits from the named Members of Parliament denying the conduct alleged. Moyo, instead, filed an affidavit from a Member of Parliament, the Honourable Mpariwa, in respect of whom no such allegation was made. The Honourable Mpariwa does not deny that the named Members of Parliament had conducted themselves in the manner alleged by the appellants. Indeed, if anything, she appears to concede that that in fact did occur.

In the result, I agree with the conclusion of the court a quo that at least six Members of Parliament displayed their ballot papers after marking them but before depositing them in the ballot box.

Having concluded that at least six Members of Parliament displayed their ballot papers before depositing them in the ballot box, the issue that falls for determination is the legal consequences of such conduct.

Section 39 of the Constitution provides as follows:

"(2) The Speaker shall be elected in accordance with Standing Orders from among persons who are or have been members of the House of Assembly and who are not members of the Cabinet, Ministers, or Deputy Ministers:

Provided that a person who is not a member of the House of Assembly shall not be elected as the Speaker unless he is qualified in accordance with Schedule 3 for election to the House of Assembly."

Standing Order 6 of the Standing Orders provides as follows:

"If more than one person is proposed as Speaker, the Clerk shall conduct the election of Speaker by a secret ballot."…,.

The Clerk issued specific instructions on how the secret ballot was to be conducted. According to the second appellant, Moses Mliza Ndlovu, the Clerk issued the following instructions:

"4. The first respondent announced the procedure to the effect that according to the Standing Rules, an election would be held by secret ballot. To this extent, he assured the Honourable Members present that all necessary provisions had been made to guarantee the secrecy of the ballot.

5. The first respondent then explained that in terms of the procedure, he would issue a ballot paper to each Member present. Thereafter, the Member would put a mark against the name of the candidate the Member would wish to be the Speaker of Parliament.

6. The ballot paper had two candidates for Speaker of Parliament, namely, the second respondent nominated by the Movement for Democratic Change (Tsvangirai) (MDC-T) and Mr Paul Themba-Nyathi nominated by the Movement for Democratic Change (MDC).

7. The first respondent then explained that the ballot paper, having been duly marked in secret in a booth, would be folded by the voting Member and deposited in a ballot box.

8. The first respondent then explained that, having cast the vote, the Honourable Member would then leave the House."

The Clerk does not deny that the above accurately reflects the instructions he gave. From the above, three essential elements of the secret ballot emerge –

(a) Each Member of Parliament was to be issued with a ballot paper;

(b) Each Member of Parliament was to mark the ballot paper in the privacy or secrecy of the polling booth; and

(c) Having marked the ballot paper in secret, the Member of Parliament was to fold the ballot paper to maintain the secrecy of the vote and deposit it in the ballot box, thus completing the process of secret voting.

It admits of no debate that the Clerk would then be required to count the vote to complete the process.

In my view, the counting of the votes cast is an essential part of the process of the election by secret ballot….,.

The appellants' case is that Standing Order 6 is peremptory and enjoins the Clerk to conduct an election of the Speaker by secret ballot.

Counsel for the appellants submitted that the display of the ballot papers before depositing them in the ballot box, by some Members of Parliament, is an aberration from the provisions of section 39 of the Constitution, as read with Standing Order 6 of the Standing Orders. He argued that such aberration rendered the election of the Speaker null and void.

Ms Damiso and Mr Chaskalson, for the respondents, submitted that the appellants' complaint is based on a fundamental misconception relating to the nature of a secret ballot.

They submitted that when an election takes place, by secret ballot, each voter has the right to have his or her vote kept secret. This right to secrecy, like any other right, can freely be waived by a voter who chooses to make known how he or she voted. The fact that any voter chooses to disclose how he or she voted cannot in itself compromise the secrecy of the ballot. They submitted that it is only when a voter is factually prevented from maintaining the secrecy of his or her vote that there is a violation of the secrecy of the ballot. On this basis, they argued that the display by six Members of Parliament of their ballot papers before depositing the ballot papers in the ballot box is not a violation of the principle of a secret ballot.

This argument found favour with the learned Judge in the court a quo. In this regard, he had this to say at p11 of the cyclostyled judgment:

"Having regard to the dictionary definitions and the case authorities cited by counsel, the gravamen of a secret ballot, in my view, is that each voter is enabled to cast his vote privately and in secret, without fear of having his voting choice identified or ascertained by others. In this respect, it is incumbent upon the regulating authority to provide the requisite wherewithal for that purpose. The courts should not interfere unless it is shown that the objective conditions put in place for the election precluded the possibility of a secret vote. Beyond this, it is then a matter purely for the individual voter if he chooses to divulge, whether publicly or in private, the specific manner in which he has cast his vote. If he does so of his own volition, without any external coercion or intimidation, and howsoever his conduct might influence other voters, this cannot detract from the secrecy of his vote or vitiate the secrecy of the ballot as a whole."

It was further argued that all that was required of the Clerk was for him to provide the guarantee that Members of Parliament voted in secret if they so wished. Those who wished to penetrate the veil of secrecy, as did the six Members of Parliament, were entitled to do so without contaminating the process.

In support of the above contention, both counsel for the respondents placed reliance on the case of Steel and Engineering Industries Federation and Ors v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (T)…, and on the case of J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920)…,.

Mr Chaskalson, in particular, submitted that the right to secrecy of the ballot, like any other right, can freely be waived by any voter who chooses to make known how he or she voted. He further submitted that this point has been made clear by United States judgments dealing with unsuccessful challenges to electoral laws. For this submission, he relied on the following remarks of BROWN J in J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920)…,:

"…, this privilege, of voting a secret ballot, has been held to be entirely a personal one. The provision has been generally adopted in this country for the protection of the voter, and for the preservation of his independence, in the exercise of this most important franchise. But, he has the right to waive his privilege and testify to the contents of his ballot. The voter has the right, at the time of voting, voluntarily to make public his ballot, and its contents in such case may be proven by the testimony of those who are present. Public policy requires that the veil of secrecy shall be impenetrable unless the voter himself voluntarily determines to lift it."

Mr Chaskalson also relied on the following passage from State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932)…,:

"…, it has been uniformly held that under such provisions as that contained in section 6 of Article VI of our Constitution the elector cannot be compelled to violate the right of secrecy of his ballot but the great weight of authority is to the effect that such constitutional provision guarantees a personal privilege which might be waived. In State vs Anderson 26 Fla 240, 8 So 1, this Court, speaking through MR CHIEF JUSTICE RAINEY, said:

'The Constitution provides, section 6, Article VI, that in all elections by the people the vote shall be by ballot, and in those by the Legislature it shall be viva voce. The material guarantee of this constitutional mandate of vote by ballot is inviolable secrecy as to the person for whom an elector shall vote. The distinguishing theory of the ballot system is that every voter shall be permitted to vote for whom he pleases, and that no one else shall be in position (sic) to know for whom he has voted, or shall know unless the voter shall of his own free will inform him.': COOLEY's Constitutional Limitations m.p. 604 et seq."…,.

Further reliance was placed on the following passage from COOLEY's work Constitutional Limitations 7ed 912:

"The system of ballot-voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases and with what party he pleases and that no one is to have the right or be in position (sic) to question his independent action, either then or at any subsequent time. The courts have held that a voter, even in case (sic) of a contested election, cannot be compelled to disclose for whom he voted; and for the same reason we think others who may accidentally, or by trick or artifice, have acquired knowledge on the subject should not be allowed to testify to such knowledge, or to give any information in the courts upon the subject. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it; his ballot is absolutely privileged…,."

Mr Chaskalson further submitted that the fact that any voter chooses to disclose how he or she voted cannot compromise the secrecy of the ballot. He argued that if this were the case secret ballots would be open to abuse by voters who, fearing that their candidates were at risk of losing the election, could invalidate a vote by merely waving their ballots about. It is only when a voter is factually prevented from maintaining the secrecy of his vote or her vote that there is a violation of the secrecy of the ballot. He further argued that on the facts of this case there is no suggestion of any such violation of the secrecy of the ballot. Consequently, the primary complaint of the appellants must be rejected.

The two cases cited by Mr Chaskalson, namely, J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920) and State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932), were concerned with the constitutionality of statutory provisions that permitted voting by absentee voters such as soldiers serving abroad. The basis of challenging the constitutionality of the statutes providing for the absentee voters was that they violated the secrecy of the ballot guaranteed by the State Constitution, Article VI section 6.

Section 6 of Article VI declared that all elections by the people shall be by ballot, and all elections by the General Assembly shall be viva voce….,.

The contention, which was dismissed in the above American cases in respect of which the above cited passages were made, was that statutes allowing absentee votes would of necessity lead to the identification of the voter, thereby violating the secrecy of the ballot guaranteed by the Constitution of the State of North Carolina. The ratio decidendi of the court, in dismissing the challenge, was that the impugned statutes, by allowing voters to vote by postal ballot, did not compel voters to disclose their votes leading to a breach of their right to voting in secrecy. The courts held that the impugned statutes simply provided the voter with a choice either to vote secretly by presenting himself or herself at the polling booth or vote by postal ballot if he so wished, thereby compromising the secrecy of his or her vote. The court held, in both cases, that a secret ballot is not compulsory so far as the voter is concerned, for the statute provides that the ballot may be deposited for the voter by the Registrar or by one of the judges of the election or by the voter himself if he so chooses.

I wish to make the following observations regarding the above cases.

The judgments cited above are judgments of foreign courts. They are not binding but they are persuasive. The higher the courts are in their jurisdictions the more persuasive are their judgments. The cited judgments are not from the highest courts in North Carolina.

The second observation I wish to make is that the courts in the cited cases were interpreting statutes in their jurisdictions. They were not making pronouncements on general jurisprudential principles.

When interpreting statutes, courts are guided primarily by the wording and the context of the statutes. A court should not simply translocate one court's interpretation of a statute in that court's jurisdiction to an interpretation of a statute differently worded in its own jurisdiction.

In the above judgments, the courts of North Carolina were interpreting Article VI section 6 of the Constitution of North Carolina, which provided that:

"In all elections by the people, the vote shall be by ballot, and, in those by the Legislature, it shall be viva voce."

The courts, in both J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920) and State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932) interpreted Article VI section 6 as conferring a right to vote in secret, which can be waived. They ascribed this meaning to Article VI section 6 despite the use of the peremptory word "shall" in the section. I have some doubts about the correctness of this interpretation.

Be that as it may, I accept the conclusion in those two cases that where a Constitutional provision confers on the voter the right to vote by secret ballot that right is intended to protect the voter and the voter has the right to waive that right without violating the secrecy of the ballot.

I also accept the proposition that public policy requires that the veil of secrecy shall be impenetrable unless the voter himself voluntarily determines to lift it: see also Boyer v Teague 106 NC 625; McRary on Elections 3ed…,; and Crolly Con. Lim. 7Ed…,.

However, section 39 of the Constitution, as read with Standing Order 6, is not a constitutional or statutory provision conferring the right to vote on a voter in the form of the Member of Parliament.

Section 39 of the Constitution, as read with Standing Order 6, prescribes how a particular officer in Parliament, namely, the Speaker, is to be elected. It expressly provides that if more than one person is proposed as Speaker the Clerk of Parliament shall conduct the election of the Speaker by a secret ballot. In other words, the use of the words "by a secret ballot" in the statute is prescribing the method by which a Speaker is to be elected.

The language is peremptory language.

It would be a different story if the wording of Standing Order 6 were to the effect: "If more than one Member is proposed Members of Parliament may vote by secret ballot to elect the Speaker."

The golden rule of interpretation is that one has to give the words of a statute their primary meaning.

If that rule is applied to Order 6 of the Standing Orders, then, the inescapable inference is that the Order is addressing the Clerk and is dictating to him the manner by which a Speaker should be elected.

In view of the explicit language of the statute, it is not open to the Clerk, or any Member of Parliament, to substitute the method of electing a Speaker with another method of their own choice, such as by open ballot. Put differently, it was not open, for instance, to Members of Parliament to tell the Clerk that they were waiving their right to vote for the Speaker by secret ballot or that they wished to vote for the Speaker by open ballot either individually or as a group. That option was not open to the Members of Parliament as a whole or to individual Members of Parliament.

Voting by secret ballot, as I have already stated, involves the following three essential procedures:

(i) Firstly, that each Member of Parliament receives a ballot paper;

(ii) Secondly, that each Member of Parliament indicates on that ballot paper the candidate of his choice in private and to the exclusion of the public; and

(iii) Thirdly, that, having done so, the Member of Parliament deposits his or her ballot paper into the ballot box privately without disclosing his or her ballot paper to the world.

Once the ballot paper has been deposited into the ballot box the process of voting by secret ballot, so far as the voter is concerned, is completed.

It would not be a violation of voting by secret ballot if the person discloses whom he has voted for at that stage. The voting by secret ballot by the voter is complete: see Steel and Engineering Industries Federation and Ors v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (T).

The next stage to complete the process provided for in terms of section 39 of the Constitution, as read with Standing Order 6, is for the Clerk to count the votes cast to determine the winner.

This stage, in my view, is an essential process in the election of the Speaker of Parliament by secret ballot:

Because of the peremptory language of section 39 of the Constitution, as read with Standing Order 6, the Clerk has no discretion over what procedure is to be followed when electing the Speaker. It has to be by secret ballot. The use of any other method to elect the Speaker would be a failure to comply with the provisions of section 39 of the Constitution, as read with Standing Order 6.

In casu, the appellants alleged that some Members of Parliament received ballot papers, marked the ballot papers in the privacy of the polling booth, and then, instead of folding the ballot papers to maintain the secrecy of their vote and before depositing them in the ballot box, they displayed them to fellow Members of Parliament to show them how they voted. Thereafter, they deposited the ballot papers in the ballot box.

The court a quo concluded that six Members of Parliament conducted themselves in this manner. The conclusion that only six out of the two hundred and eight voters voted in this manner is supported by the evidence and it cannot be faulted.

The learned Judge in the court a quo also concluded that the six Members of Parliament who displayed their votes complied with the requirement of a secret ballot because they were entitled to pierce the veil of secrecy without falling foul of section 39 of the Constitution, as read with Standing Order 6.

I respectfully disagree with the learned Judge in this regard.

The six Members of Parliament, by displaying their ballot papers before depositing them in the ballot box, violated the secrecy of their ballots, thereby rendering their votes invalid for the purposes of section 39 of the Constitution, as read with Standing Order 6. This rendered their votes ineligible for counting for the purpose of determining the election of the Speaker.

The Clerk proceeded to count these six votes as valid votes in determining the outcome of the election. This contaminated the process.

Put differently, he counted oranges and apples in a process where the law provides that only oranges be counted.

In short, the Clerk failed to act as directed by section 39 of the Constitution, as read with Standing Order 6, namely, to conduct an election by secret ballot. He conducted a cross-breed election, in that it was partly secret and partly open. That is not what the law provides for.

In this regard, I am satisfied that the Clerk failed to comply with the provisions of section 39 of the Constitution, as read with Standing Order 6.

Having concluded that the Clerk did not comply with the statutory requirements in his conduct of the election, the issue that falls for determination is, what are the legal consequences that flow from the failure to comply with the statutory provisions?

Section 39 of the Constitution, as read with Standing Order 6, has directed that the Clerk shall conduct an election of a Speaker by secret ballot but has not provided what should be the consequence of the non-compliance with this peremptory direction by Parliament.

This Court recently had occasion to deal with the issue of interpreting a statute that does not prescribe the consequences of non-compliance with a statutory provision in the case of Doctor Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor Judgment No. SC11-08.

In that case, I cited with approval a passage from BENNION Statutory Interpretation…, which sets out how courts should approach that issue.

The learned author states that a court charged with the enforcement of a statute that does not state the consequences of non-compliance needs to decide what consequence Parliament intended should follow from such failure to comply. In that case, I had this to say at pp21-23 of the cyclostyled judgment:

"It is the generally accepted rule of interpretation that the use of peremptory words such as 'shall' as opposed to 'may' is indicative of the legislature's intention to make the provision peremptory. The use of the word 'may' as opposed to 'shall' is construed as indicative of the legislature's intention to make a provision directory. In some instances the legislature explicitly provides that failure to comply with a statutory provision is fatal. In other instances, the legislature specifically provides that failure to comply is not fatal. In both of the above instances no difficulty arises.

The difficulty usually arises where the legislature has made no specific indication as to whether failure to comply is fatal or not.

In the present case, the consequences of failure to comply with the provisions of section 18 of the Zimbabwe Electoral Commission Act are not explicitly spelt out.

In those statutory provisions where the legislature has not specifically provided for the consequences of failure to comply, it has to be assumed that the legislature has left it to the Courts to determine what the consequences of failure to comply should be.

The learned author FRANCIS BENNION in his work Statutory Interpretation suggests that the courts have to determine the intention of the legislature using certain principles of interpretation as guidelines. He had this to say at pp21-22:

'Where a duty arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from breach of the duty.

This is an area where legislative drafting has been markedly deficient. Draftsmen find it easy to use the language of command. They say that a thing 'shall' be done. Too often they fail to consider the consequence when it is not done. What is not thought of by the draftsman is not expressed in the statute.

Yet the courts are forced to reach a decision.

It would be draconian to hold that in every case failure to comply with the relevant duty invalidates the thing done. So, the courts' answer has been to devise a distinction between mandatory and directory duties.

Terms used instead of "mandatory" include 'absolute', 'obligatory', 'imperative' and 'strict'. In place of "directory", the term 'permissive' is sometimes used. Use of the term 'directory' in the sense of permissive has been justly criticised: see CRAIES Statute Law (7th edn, 1971) p61 n74. However, it is now firmly rooted.

Where the relevant duty is mandatory, failure to comply with it invalidates the thing done. Where it is merely directory the thing done will be unaffected (though there may be some sanction for disobedience imposed on the person bound). {As to sanctions for breach of statutory duty see section 13 of this Code (criminal sanctions) and section 14 (civil sanctions)}.'

Thereafter, the learned author sets out some guiding principles for the determination of whether failure to comply with a statutory provision is fatal or a mere irregularity.

One of these guiding principles is the possible consequences of a particular interpretation. If interpreting non-compliance with a statutory provision leads to consequences totally disproportionate to the mischief intended to be remedied, the presumption is that Parliament did not intend such a consequence and therefore the provision is directory."

MAXWELL on The Interpretation of Statutes 12ed…, says much the same as the above cited excerpt from BENNION.

Thus, the issue before this Court is to determine what Parliament intended to be the consequence of the Clerk's breach of the statutory requirement to count only regular votes in determining the outcome of the election of the Speaker.

I have come to the conclusion that Parliament intended to render invalid an election wherein the Clerk fails to comply with the provisions of section 39 of the Constitution, as read with Standing Order 6. I have come to this conclusion for two reasons -

(i) Firstly, because of the peremptory language of the provision in question; and

(ii) Secondly, because of the use of different language from the one used by Parliament when it legislated on the same subject matter in another statute, namely, section 177 of the Electoral Act [Chapter 2:13].

Dealing with the issue of the use of peremptory language in section 39 of the Constitution, as read with Standing Order 6, there can be no doubt that the language of the relevant section is peremptory, having regard to the use of the word "shall".

I accept that there has been movement from the principle of strict exaction of compliance with the wording of the statute to avoid invalidity to a more flexible approach giving the courts some latitude in determining the consequences of non-compliance.

My understanding of the new approach is that, while the use of the word "shall" is no longer conclusive of the intention of Parliament to render invalid non-compliance, it certainly still remains cogent evidence of such intention. This Court has, in a number of recent cases, held that failure to comply with the peremptory direction of a statute leads to invalidity. In this regard, Rule 29 of the Supreme Court Rules provides as follows:

"29 Entry of appeal

(1) Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state –

(a) The date on which, and the court by which, the judgment appealed against was given;

(b) If leave to appeal was granted, the date of such grant;

(c) Whether the whole or part only of the judgment is appealed against;

(d) The grounds of appeal in accordance with the provisions of Rule 32;

(e) The exact nature of the relief which is sought;

(f) The address for service of the appellant or his legal practitioner."…,.

In Jensen v Acavalos 1993 (1) ZLR 216 this Court held that by use of the word "shall" compliance with the requirement of Rule 29 was peremptory and that failure to comply with the Rule rendered the Notice of Appeal a nullity and that such a notice cannot be condoned or amended.

KORSAH JA, at 219D, had this to say about the Notice of Appeal that did not comply with Rule 29 of the Supreme Court Rules:

"This Notice of Appeal was defective for non-compliance with the mandatory provisions of Rule 29, subrules (c), (d) and (e) which require the applicant or his legal representative to state: (i) whether the whole or only part of the judgment is appealed against; (ii) the ground of appeal to be set forth concisely and in separately numbered paragraphs; and (iii) the exact nature of the relief which is sought."

The learned JUDGE OF APPEAL further stated, at pp219H-220D:

"The Notice of Appeal, being bad for non-compliance with the Rules, was not cured by the filing, on 3 January 1990, of grounds of appeal without a prayer. Indeed, even if the grounds of appeal filed on 3 January 1990 had contained a prayer for relief, it would not have been effectual in validating the defective Notice of Appeal.

The reason is that a Notice of Appeal which does not comply with the Rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper Notice of Appeal to be filed, the appeal must be struck off the roll with costs: De Jager v Diner & Anor 1957 (3) SA 567 (A) at 574 C-D.

In Hattingh v Pienaar 1977 (2) SA 182 (O)…, at 183, KLOPPER JP held that a fatally defective compliance with the Rules, regarding the filing of appeals, cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant Rule.

With this view I most respectfully agree; for if the Notice of Appeal is incurably bad, then, to borrow the words of LORD DENNING in McFoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC) at 1172I, 'every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse'."

GUBBAY CJ and MANYARARA JA concurred.

In Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S) MALABA JA…, expressed the same sentiments when he stated at 149E-G:

"A nullity cannot be amended. In Jensen v Acavalos 1993 (1) ZLR 216 (S) KORSAH JA at 220B said that the reason why a fatally defective Notice of Appeal could not be amended was that:'…, it is not only bad but incurably bad.'

Citing Hattingh v Pienaar 1977 (2) SA 182 (O) at 183 for authority, the learned JUDGE OF APPEAL said that what should actually be applied for is an extension of time within which to comply with the relevant Rule and condonation of non-compliance.

In Business Equipment Corp v Baines Imaging Group 2002 (2) ZLR 354 (S), a Notice of Appeal which did not state the date on which the judgment appealed against was given, in contravention of section 29(1)(a) of the Rules of the Supreme Court, was held to be fatally defective, and the procedure stated in Jensen's case supra was approved as the appropriate remedy in having a proper Notice of Appeal placed before the court. See also Talbert v Yeoman Products (Pvt) Ltd S-111-99, SC111-99."

The learned JUDGE OF APPEAL further stated at p150B-C:

"As no valid Notice of Appeal was delivered and filed within fifteen days of the date when the decision of the Labour Court was given, there was no appeal before the court and to merely insert the relevant date in the defective Notice of Appeal, as suggested by Mr Muskwe, without an application for an extension of time within which to institute the appeal and for condonation of non-compliance with the Rules of Court, would be grossly irregular. The matter had to be struck off the roll."

It is quite clear from the above authorities that failure to comply with peremptory language of a statute can lead to a nullity.

Equally, there are decisions of this Court wherein it has been held that non-compliance with peremptory statutory provisions does not necessarily lead to a nullity. See Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S) and the cases referred to therein.

The above authorities can be reconciled on the basis that the use of peremptory language is one of a number of indicators of the legislative intent where such intent is not explicitly stated. This obviously is a departure from the principle of strict exaction of compliance with the wording of the statute that I referred to earlier.

In my view, the use of peremptory language, such as the words "shall" or "must" in a statute is no longer conclusive evidence of the intention of Parliament, but remains cogent evidence of such intention.

As I have already stated, I concluded that Parliament intended to render null and void an election in which irregular or invalid votes were counted together with valid votes to determine the outcome of the election of the Speaker for two reasons; namely, the peremptory language of the section and the use of different language from the one used by the Legislature on the same subject matter in a different statute.

The proposition that generally speaking Parliament, just like an individual, uses the same words or language to evince the same intent and different words or language to evince a different intent is grounded in elementary common sense.

MAXWELL on The Interpretation of Statutes 12ed devotes a whole chapter on the presumptions arising from the change of language in statutory interpretation…,. His opening paragraph of this subject matter reads:

"From the general presumption that the same expression is presumed to be used in the same sense throughout an Act or series of cognate Acts, there follows the further presumption that a change of wording denotes a change in meaning; Ricket v Metropolitan Railway Co. (1867) LR 2 HL 175, per LORD WESTBURY; ex p. Haines [1945] KB 183; Evans v Evans [1948] 1 KB 175.

'Where the Legislature,' said LORD TENTERDEN CJ, 'in the same sentence uses different words, we must presume that they were used in order to express different ideas'; R v Inhabitants of Great Bolton (1828) 8 B & C 71 at p74)."

For the presumption to arise, the change of words does not necessarily have to be in the same section or the same Act. It can be from one statute to another; see MAXWELL on The Interpretation of Statutes…, where the learned author states that:

"There are many modern cases on change of wording, and they fall roughly into three groups, according to whether the language alters (i) within the same section, (ii) within the same Act, (iii) from one statute to another."

For authority for the third category, which bears resemblance to the facts in casu, the learned author cites the following authorities; Att-Gen. for Northern Ireland v Gallagher [1963] AC 349; B v B and H (L intervening) [1962] 1 All ER 29; Re P. (infants) [1962] 1 WLR 1296; Irwin v White, Tomkins and Courage, Ltd [1964] 1 WLR 387; Att.-Gen. of the Duchy of Lancaster v Simcock [1966] Ch.1; Seabridge v H.Cox & Sons (Plant Hire) Ltd [1968] 2 QB 46; Wild v Wild [1968] 3 WLR 1148.

While the authorities cited by MAXWELL relate mainly to historically connected statutes, I see nothing in principle that should limit the presumption to preceding statutes to the exclusion of statutes on the same subject matter but not historically connected. After all, Parliament is presumed to be familiar with its own Acts. The corollary, that Parliament is ignorant of its own Acts, is simply untenable.

Thus, at the time of enacting Standing Order 6, in 2005, in terms of which the Clerk acted, Parliament was familiar with the provisions of section 177 of the Electoral Act, which was enacted earlier. This particular provision has been included in no less than nine electoral Acts in this country since 1928.

In my view, it is permissible for a court to look at the language of another statute on similar or the same subject matter in the exercise to ascertain the intention of Parliament.

Section 177 of the Electoral Act, as appears from its heading, deals with the subject of the consequences of non-compliance with the Electoral Act. It provides as follows:

"177 When non-compliance with this Act invalidates election

An election shall be set aside by the Electoral Court by reason of any mistake or non-compliance with the provisions of this Act if, and only if, it appears to the Electoral Court that –

(a) The election was not conducted in accordance with the principles laid down in this Act; and

(b) Such mistake or non-compliance did affect the result of the election."

Section 177 of the Electoral Act clearly provides that it is only when non-compliance with the Act affects the result of the election that the election should be set aside. In effect, this section incorporates into the Electoral Act the doctrine of substantial compliance.

Section 39 of the Constitution, as read with Standing Order 6, provides for the election of the Speaker, but does not incorporate the principle of substantial compliance. In my view, if Parliament had intended that only non-compliance that affected the outcome of the election of the Speaker would render invalid such an election it would have used the same or similar language.

Also, in determining the intention of Parliament, I took into account the fact that no draconian consequences would flow from a declaration of invalidity of the election.

Parliament consists of a little over two hundred Members and ordering a re-election of the Speaker does not pose financial or logistical problems of any magnitude. If properly organised, as it should be, I do not see the election of the Speaker taking more than an hour and it should require only a minimum of resources.

I am also mindful of the fact that Parliament is one of the most revered institutions in our, or any, society. It consists of the highest concentration of political leadership of the country. Parliament makes the laws that we all obey. Parliament should, therefore, lead by example and should scrupulously obey its own laws.

The election of the Speaker should be an example of how an election should be conducted. This is particularly so in Zimbabwe which is plagued by contestation of election results. Parliament should use the election of the Speaker to set the best example to the rest of the country. It is unacceptable that Parliament should seek to salvage a shambolic and chaotic election of a Speaker through the doctrine of substantial compliance.

I do not wish to be understood as setting aside the election of the Speaker on the ground that it was chaotic. I am satisfied that the chaos and the conduct of Members of Parliament, generally, did not, on their own, affect the election to the extent that it can be concluded that the Clerk did not conduct an election. I am merely expressing concern that the Clerk failed to stamp his authority on the election and insist that Members of Parliament conduct themselves in accordance with his instructions. I, however, do not think that conduct, alone, is sufficient, on its own, to constitute a basis for setting aside the election of the Speaker.

Before concluding, I feel constrained to make the following observation in the interests of clarity.

I have read the judgment of SANDURA JA.

It is a mis-interpretation of this judgment to conclude that it seeks to reinstate the old principle of strict compliance with the letter of the statute to avoid invalidity. This judgment is based on what I considered to be the intention of Parliament as evinced by the language of the statute, and by contrasting the language of section 39 of the Constitution, as read with Standing Order 6, with the language of section 177 of the Electoral Act.

I also do not agree that the principle that a peremptory enactment must be obeyed was abandoned in the case of Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S).

My understanding of Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S) is that it modified the principle by endorsing the movement away from strict compliance to a more flexible application of the principle. This is the only basis on which one can reconcile GUBBAY CJ's concurrence with the judgment of KORSAH JA in Jensen v Acavalos 1993 (1) ZLR 216 (S) and his judgment in Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S). MANYARARA JA concurred with both judgments. This Court re-affirmed the modification of the principle in Doctor Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor Judgment No. SC11-08.

In the result, I have come to the conclusion that the six named Members of Parliament did not vote by secret ballot, and, therefore, their votes were irregular. The inclusion of the irregular votes in the determination of the final outcome of the election of the Speaker constitutes a failure to comply with section 39 of the Constitution, as read with Standing Order 6, providing for the election of the Speaker of Parliament by secret ballot, thereby rendering it invalid.

For the foregoing reasons I would allow the appeal. In the result, I make the following order –

1. The appeal is allowed with costs to be paid by the respondents jointly and severally the one paying the other to be absolved.

2. The order made by the court a quo is set aside and the following substituted –

"The application succeeds and the election of the second respondent as Speaker is hereby set aside."

ZIYAMBI JA: I agree

GARWE JA: I agree

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").

The appellants, as the applicants in the court a quo, sought the following relief set out in the draft order:

"WHEREUPON after perusing the documents filed of record and hearing counsel, it is hereby declared that:-

1. The election of (the) second respondent as the Speaker of the Parliament of Zimbabwe on 25 August 2008 is null and void and set aside.

2….,.

3. That the respondents jointly and severally pay the costs of suit."

(The applicants abandoned the relief set out in paragraph 2).

The appellants' main contention in the court a quo, and in this Court, is that the election of the Speaker was null and void because it was not conducted in terms of section 39 of the Constitution of Zimbabwe (hereinafter referred to as "the Constitution"), as read with Standing Order 6 of the Standing Orders of Parliament of Zimbabwe (hereinafter referred to as "the Standing Orders").

PATEL J dismissed the application. The appellants now appeal against that judgment....,.

MALABA DCJ: I have read the opinion expressed by the learned CHIEF JUSTICE. I regret that I am unable to agree with the decision that section 39(2) of the Constitution, as read with Standing Order No.6 of the House of Assembly Standing Orders ("Standing Order 6"), by implication, compels the nullification of the election upon proof that the Clerk of Parliament ("the Clerk"), who was under the obligation to conduct the election of the Speaker of the House of Assembly ("the Speaker") by a secret ballot, unlawfully counted invalid votes as secret ballots.

This case came to the Supreme Court by way of an appeal against the judgment of the High Court. The court a quo dismissed with costs an application for an order declaring that the election of the second respondent as the Speaker of the House of Assembly ("the House") on 25 August 2008 is null and void and set aside.

The applicants, who are members of the House who had taken part in the election of the Speaker, disavowed the application as an application for review. The substance of the relief sought and the reliance on the provisions of section 4(1) of the Administration of Justice Act [Chapter 10:28], however, show that it was an application for review.

The applicants alleged, in effect, that the Clerk who, as the administrative authority, was given the power to conduct the election of the Speaker by a secret ballot, in accordance with the machinery prescribed under section 39(2) of the Constitution, as read with Standing Order 6, failed to act in accordance with the requirements of the rule against counting invalid votes as secret ballots, and, as a result, affected their rights or legitimate expectation in the election.

A perusal of the papers filed in support of the application shows that the relief was sought on two grounds:

(i) The first ground was that there was "noise, utter chaos, and disorder" in the Chamber of the House at the time appointed by the Clerk for the holding of the election of the Speaker such that the environment never became conducive for conducting the election by a secret ballot.

(ii) The second ground was that, in violation of the secrecy of the ballot, and in defiance of the procedure laid down by the Clerk, some members of the MDC-T party came out of the polling booth with ballot papers, on which they had marked their votes, unfolded. The allegation was that they displayed the ballot papers to others to disclose for whom they had voted before folding the ballot papers and depositing them in the ballot boxes.

As part of the second ground, it was alleged that the Clerk was under a duty to stop or prevent the members of the MDC-T party from doing what they did, but, in disobedience of his duty, failed to do so.

It was not the applicants' case that the election of the second respondent, as the Speaker of the House, should be declared null and void because the Clerk counted invalid votes as secret ballots, thereby distorting the result of the election. The reason is that to do so would have involved an admission by the applicants of the fact that there was counting of secret ballots produced by the electoral process the applicants alleged had not taken place.

As the learned CHIEF JUSTICE arrived at the conclusion, with which I disagree, on the ground that the Clerk counted invalid votes as secret ballots, I will deal with the question whether in the machinery for the election of the Speaker, prescribed under section 39(2) of the Constitution, as read with Standing Order 6, the unlawful conduct of the Clerk, in counting invalid votes as secret ballots, automatically nullifies the election.

My view of the case is that the application ought to have been dismissed or granted on the grounds on which the applicants made it.

Before determining the question whether the applicants established the grounds on which they sought the relief from the court a quo, I set out and construe the law in terms of which the election of the Speaker, by a secret ballot, was required to be conducted.

It is for the Legislature to make provision, by legislation, for matters relating to elections to office in institutions of a democratic Government. All matters relating to the organisation and procedure for election to the office of the Speaker of the House must be determined on the construction of the broad terms of the legislation enacted for the purpose by Parliament.

Section 39(1) of the Constitution imposes on the House an obligation to elect a presiding officer, to be known as the Speaker, at its first meeting after dissolution of Parliament and before proceeding to transact any other business. The election must therefore be held at the time prescribed under section 39(1) of the Constitution.

It is required to be an election by a secret ballot - only a secret ballot under the statute can give rise to a "result of the election."

The right to vote in the election of the Speaker, where more than one person is proposed for the post, is given to members of the House who would have subscribed the oath of loyalty and are present in the Chamber of the House at the time the election is called by the Clerk.

By section 39(2) of the Constitution, as read with Standing Order 6, the Clerk is appointed as the official to conduct the election required by section 39(1) where more than one person is proposed as Speaker. By the same provisions, the Clerk is enjoined to conduct the election of the Speaker by a secret ballot.

When the members elect a Speaker from candidates nominated they do so in their individual capacity. They are not acting as representatives of the people who elected them to the House.

Where the words "conduct the election" are used as they are used in section 39(2) of the Constitution, as read with Standing Order 6, in respect of a situation where more than one person is proposed for election for a post, it is clear that the word "election" is used with the intention that it should be understood to mean the whole combined and continuous process for bringing about the result of the election. It is a process consisting of a number of material steps prescribed by law, beginning with the call for the election and ending in the declaration of the result of the election.

For the purposes of section 39(2) of the Constitution, as read with Standing Order 6, all these steps were driven by the free exercise of the right to vote by the electors directed by the Clerk entrusted with the responsibility of conducting the election by a secret ballot.

The words "conduct the election" compendiously describe the number of duties the Clerk would be expected to carry out to ensure that members who were desirous to elect the Speaker by means of a secret ballot did so freely. So, to "conduct the election" in the context of section 39(2) of the Constitution, as read with Standing Order 6, denotes the concept of legality, in the sense that it contemplates the making of decisions or the taking of actions in the performance of duties, the effect of which is to direct or manage the activities of the voters according to the prescribed requirements of the law to achieve the object or purpose of ensuring the election of the Speaker based on universal, equal, direct, and personal vote freely expressed by a secret ballot.

In construing section 39(2) of the Constitution, as read with Standing Order 6, it is important to bear in mind that the right to vote vested in the members present and voting at the first meeting of the House is not affected by the requirement that the election should be conducted by a secret ballot. The statute relates to procedure alone and directs the mode in which the right to vote is to be exercised by the electors.

The Legislature chose the secret ballot for its optimum benefits and prescribed it as the only method by which the elector would validly exercise his or her right to vote for the Speaker. At the same time, it imposed on the Clerk the general obligation to provide the mechanisms and procedures for the recording, processing, and protection of the secret ballot to bring about the election of the Speaker.

Every voter was entitled to express his or her will on the candidates by voting "for" or "against" through the legally permitted form of voting.

As section 39(2) of the Constitution, as read with Standing Order 6, prescribes a secret ballot and its attendant requirements as a condition the elector has to perform if he or she is desirous to give a valid vote for a candidate in the election of the Speaker, it is addressed to both the voter and the Clerk who has to conduct the election by a secret ballot. The validity of a vote and of any act performed by the Clerk must be measured in terms of its conformity with the requirements of a secret ballot prescribed as the essence of the election of the Speaker.

In my view, it is wrong to place on section 39(2) of the Constitution, as read with Standing Order 6, a narrow construction which views it as directed at the Clerk only. The Clerk does not vote. He does not produce the result of the election. His functions are managerial. The elector is the driver of the election by a secret ballot. The Clerk and the voter must be viewed in the context of the legal relationship of the rights and duties they have to exercise or discharge to achieve the statutory objective or purpose.

The prescription of a secret ballot, as the method for the election of the Speaker, is based on the acceptance of the principle that it promotes and protects freedom of expression of choice of a preferred candidate without undue influence, intimidation, and fear of disapproval by others. The elector is given the right to mark the choice of one candidate from another, or others, in secret. The words "secret ballot" are used in the wide and narrow sense to mean the process by which the ballot is recorded, processed, and protected, as well as the ballot in which there is complete and inviolable secrecy designed to drive away the fear of disclosure and secure to the voter freedom from undue influence, intimidation, and fear of disapproval by others.

A "secret ballot" is therefore a ballot cast freely by a voter, in secret, when no other person is present and aware of what is happening.

The ballot is secret to the voter, in the sense that he or she is the only person who knows for whom he or she is voting.

Whilst the caster of the vote remains unknown, the secrecy of the ballot is maintained and the vote has been effectively cast in the election of the Speaker. It is the valid vote to be counted to ascertain the result of the election of the Speaker by a secret ballot.

To maintain the secrecy, made to be extremely material as the foundation to the validity of the vote itself, the voter must meet certain conditions.

He or she is required not to put on the ballot paper, on which the vote is given, any writing or mark by which his or her identity as the voter can be known by any other person looking at the ballot paper. The voter is also required not to display or expose the ballot paper after he or she has given the vote so as to disclose to any other person for whom he or she voted before depositing the ballot paper in the ballot box.

So essential is the secrecy of the ballot to its validity that any departure by the voter from these conditions, designed for the purpose of ensuring the maintenance thereof, must render the vote void.

The mandatory obligation imposed on the Clerk was to perform the duties put on him to provide the mechanisms and procedures that enabled the voter who was desirous to exercise the right to vote by a secret ballot to do so. The duties he had to perform were to ensure that the vote, given in secret, was recorded, processed, protected, and counted, to bring about the election of the Speaker.

The primary object of any act performed by the Clerk in the discharge of the obligation to conduct the election of the Speaker by a secret ballot would have been the maintenance of the secrecy of the ballot given by the voter, unless the voter himself or herself failed to observe, strictly, the conditions essential to the validity of the vote as a secret ballot. The Clerk, as the official appointed by the Legislature, and given the responsibility of conducting the election of the Speaker by means of a secret ballot, was under an absolute duty not to do anything in the execution of his duties that would have the effect of compelling the voter to violate the secrecy of the ballot.

Although it does not say in express terms that the Clerk cannot record the vote in some other way, it is clear that section 39(2) of the Constitution, as read with Standing Order 6, makes the prescribed manner of recording the ballot by means of a ballot paper, properly drawn up and with the names of the candidates and the appropriate spaces where the mark by which the vote would be given, the only manner in which a secret ballot was to be given.

The Clerk has no discretion as to how the election should be conducted. He must conduct it by a secret ballot.

The valid vote in an election had to be one given for a candidate by means of a secret ballot. It was, therefore, the duty of the Clerk to provide the official ballot papers. It was his duty to put in place the polling booth in which the voters would mark the ballot papers, screened from observation by other potential voters. It was his duty to provide sealed and translucent ballot boxes in which the voters would deposit the marked ballot papers for safekeeping before counting.

The Clerk discharged these duties in accordance with the requirements of the law. He put in the Chamber of the House the polling booth and two ballot boxes and provided the ballot papers.

It was also the Clerk's duty to provide the procedure by which the secret ballot was to be recorded, processed, protected, counted, and results of the election based on it declared.

He, again, complied with this requirement.

The Clerk explained to the members that the voter would only mark his or her vote on a ballot paper delivered by him just before proceeding to the polling booth and that the ballot paper had to have an official stamp marked on the back. Upon receipt of the ballot paper, the member was to go immediately into the polling booth and there mark his or her ballot paper to express his or her choice. The voter was then required to fold the ballot paper up whilst in the polling booth, so as to conceal the vote, and then go and deposit the ballot paper, so folded up, into the ballot box. The voter was required to exhibit to the Clerk the official stamp on the back of the folded ballot paper before dropping it into the ballot box.

The procedure met the purpose of the legislation of ensuring equality of conditions for election to the office of Speaker for the candidates and the occurrence of an election based on universal, equal, direct, and personal suffrage freely expressed by a secret ballot.

It was the duty of the Clerk to monitor the proceedings and keep a continuous oversight of the actions of the voter as he or she moved from the polling booth to drop the ballot paper into the ballot box. In that way he would be able to detect conduct inconsistent with the exercise by the voter of the right to elect the Speaker in accordance with the procedure prescribed to ensure the maintenance of the secrecy of the ballot.

Once he detected such conduct, it was the Clerk's duty to act judicially and determine that the conduct of the voter had stripped the ballot of secrecy and declare the vote invalid and not to be counted.

At the end of the poll, the Clerk was required to open the ballot box in the presence of the agents of the candidates. It was his duty to empty the ballot box and open each and every folded ballot paper and inspect it to ensure that only those ballot papers which were not contrary to the provisions and spirit of section 39(2) of the Constitution, as read with Standing Order 6, as to secrecy, were counted in the election of the Speaker.

Before counting the valid ballot papers, the Clerk was required to group and arrange them under the names of the respective candidates by placing, in separate parcels, those which were secret ballots opposite the name of the same candidate and rejecting all invalid ballot papers.

The results of the election to be declared by the Clerk in an election of the Speaker conducted in terms of section 39(2) of the Constitution, as read with Standing Order 6, would not be the number of votes cast. The reason is that some of the votes would have lost their secrecy as they moved through the process, from the time they were given on the ballot paper in the polling booth to the time they were canvassed after the opening of the ballot box. The result of the election, under section 39(2) of the Constitution, as read with Standing Order 6, is the outcome of secret ballots counted as such.

The result of an election cannot include invalid votes because it is unlawful to count invalid votes as secret ballots. Courts do not ordinarily nullify that which has been done lawfully. Nullification is a remedy intended to be used to redress a wrong.

There is yet another important aspect of the right to secrecy of the ballot which needs to be considered before the determination of the question whether the applicants established the grounds on which they sought relief in the court a quo.

It is that the right to secrecy of the ballot, protected under section 39(2) of the Constitution, as read with Standing Order 6, is subject to the principle that everyone has a right to waive an advantage of a law made solely for his or her benefit and protection in his or her private capacity. He or she may dispense with the benefit or advantage, provided he or she does so without infringing any public right or public policy. See MAXWELL on The Interpretation of Statutes 12ed…,.

There is no legal obligation that a voter must vote by secret ballot.

The requirement of a vote by a secret ballot is justified on the principle which, without unacceptably encroaching on the rights of the persons concerned to stay out of the prescribed system of election, fosters the values of honesty, freedom, and reliability that should characterise electoral choice. As the voter must exercise the right to vote for the Speaker by a secret ballot given on the ballot paper freely, he or she can waive the right to the secrecy of the ballot at the time the vote is cast or at any time before he or she deposits the ballot paper in the ballot box.

The right to vote by a secret ballot includes the right of the voter to disclose to any other person for whom he or she voted. He or she can, in the exercise of that freedom, decide to put a writing or mark on the ballot paper at the time he or she casts the vote by which he or she can be identified as the voter and for whom he or she voted. He or she may decide to display to others the ballot paper so as to share the knowledge for whom he or she voted. So, a voter can, of his or her own free will, inform whomsoever he or she chooses for whom he or she voted. A secret ballot is not compulsory insofar as the voter who is not desirous of taking part in the election by a secret ballot is concerned.

The rule that there should be no writing or mark put by the voter on the ballot paper by which his or her identity as the voter can be revealed, and that the ballot paper should not be displayed to any other person so as to disclose for whom the vote was given, prescribes a condition of the validity of the vote.

The question whether there is a secret ballot for the purposes of the validity of the vote will depend for its answer on the actions of the individual voter.

In Jenkins v Board of Elections 180 NC 169 (1920), cited by Mr Chaskalson, it is correctly stated by BROWN J that:

"…, voting by ballot, as distinguished from viva voce voting, means a secret ballot, and…, the elector, in casting his ballot, has the right to put it in the box and to refuse to disclose for whom he voted and that he cannot be compelled to do so. But, this privilege of voting a secret ballot has been held to be entirely a personal one. The provision has been generally adopted…, for the protection of the voter and for the preservation of his independence in the exercise of this most important franchise. But, he has the right to waive his privilege and testify to the contents of his ballot."

In State Ex Rel. Hutchins v Tucker et al 106 Fla 905 (1932), also cited by Mr Chaskalson in argument, BUFORD CJ quoted from COOLEY Constitutional Limitations 7ed…, where the learned author states:

"The system of ballot-voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases and with what party he pleases and that no one is to have the right or be in a position to question his independent action either then or at any subsequent time. The courts have held that a voter, even in case of a contested election, cannot be compelled to disclose for whom he voted; and, for the same reason, we think others who may accidentally or by trick or artifice have acquired knowledge on the subject should not be allowed to testify to such knowledge or to give any information in the courts upon the subject. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it, his ballot is absolutely privileged."

I turn now to determine the question whether the applicants established the grounds on which they based the application for the relief sought.

On the first ground, the first applicant, in the founding affidavit, said that there was "too much noise in the House" at the beginning of the process for the election of the Speaker.

The intention was to show that the Clerk was unable to manage the activities of the members according to the prescribed procedure for the achievement of the purpose of the electoral law.

He said the noise was caused by members belonging to MDC-T party who were pacing up and down the Chamber conferring noisily with each other in support of the second respondent. He said that was done "in a manner that created utter disorder and raised very serious tensions in the House."

After describing how the Honourable Biti displayed the ballot paper, after he had cast his vote in the polling booth, so as to disclose to others for whom he had voted, before folding the ballot paper up and depositing it into the ballot box, the first applicant said, in paragraph 32 of the founding affidavit:

"Honourable Biti's shocking and unprecedented conduct caused more than a fracas in the House as Honourable Members started shouting objections and counter objections, including trading insults, at the top of their voices, while the voting process degenerated into total disorder…,."

In paragraphs 3.9, 3.10, 3.15, 5, 6, and 11 of the opposing affidavit the Clerk said:

"3.9 The mood and atmosphere in the House of Assembly, on the occasion, was neither unique nor unprecedented. Members of the House of Assembly were meeting together for the first time after a fiercely contested general election. As can be expected, under the circumstances, the conversation was lively and the exchanges exuberant. There was a fair amount of good-humoured raillery, including political taunting, verbal sparring and bantering, all done by Members from all the political parties represented in what appeared to be a good spirit of joviality. This kind of conduct is not unusual in our Parliament or any other Parliament for that matter, and, accordingly, I did not consider it a cause for concern on this occasion.

3.10 It is my submission that what has been described by (the) applicant as 'gross disorder, chaos or fracas' in the House was actually nothing more sinister than increased hustle and bustle in the House, in turn the result of the increase in number of Members of the House (an increase in the membership from 150 to 210 as a result of Constitutional Amendment No.18)…,.

3.15 Notwithstanding the environment in the House that I have described in paragraphs 3.9 and 3.10 of this affidavit I was able to manage the entire proceedings of the day according to my present programme without a hitch of any kind. It is, therefore, my submission that quite contrary to (the) applicants' allegations of 'utter disorder and fracas' the proceedings progressed exceptionally smoothly…,.

5. I deny that at the time immediately before the elections took place there was too much noise and there existed a state of utter disorder in the House. I also totally deny witnessing any manifestation of serious tensions. What I did witness in the House was the atmosphere that I have described in paragraphs 3.9 and 3.10 of this affidavit.

6. Save to confirm that I did call the House to order whenever I deemed it necessary, and, by so doing, achieved a continuing level of order which enabled me to discharge my obligation and safeguard the progress and integrity of the voting process as well as all other proceedings of that day the contents of this paragraph (25 of the founding affidavit) warrant no comment….,.

11. I totally deny that there was total disorder in the House which I failed to control. If such a state of disorder had existed, the process of voting would have been impossible - which it was not. Generally, Members remained in their places, heard their names being called, followed the order on the list, approached, took possession of the ballot papers, and proceeded to vote privately. After voting they resumed their places without impediment in an exceptionally orderly manner given their numbers and the congestion in the Chamber."

The court a quo found, on the facts, that there was not so much noise as to cause chaos or utter disorder, as described by the first applicant.

The finding was justified by the evidence.

The relevance of raising the issue of noise was to show that the Clerk was disabled from performing his duties to conduct the election of the Speaker by a secret ballot. The applicants did not refer to specific duties the Clerk failed to perform because of the noise. To the contrary, the facts showed that all the Members who were present and desirous to vote did so.

Each of the two hundred and eight members received a ballot paper from the Clerk and went into the polling booth where he or she marked his or her vote on the ballot paper in secret. Some of the members came out of the polling booth with their ballot papers folded to conceal the vote and dropped the ballot papers into the ballot boxes after exhibiting the official stamp on the back to the Clerk. Other members came out of the polling booth with their ballot papers unfolded and displayed them to others so as to disclose for whom they had voted before folding them and dropping the ballot papers into the ballot box.

All the members responded to the alphabetical order in which their surnames were called.

They could not have done that in the context of the environment of chaos or utter disorder described by the applicants.

The first applicant conceded, in paragraph 25 of the founding affidavit, that the Clerk occasionally intervened to restore order when it was necessary to do so.

It was indeed the duty of the Clerk to maintain order during the electoral process.

By that admission, the first applicant corroborated the Clerk, who said that he was able to act and control the situation when he considered that the noise would interfere with his ability to conduct the election by a secret ballot as required by the law.

The Clerk was not a mere moderator. He was the governor of the electoral process for the purposes of securing the proper conduct of the election. As such, his evidence had to be accorded appropriate weight, where it was supported by that given by the applicants.

It is of interest to note that the Minister of Youth Development, Indigenisation and Empowerment, the Honourable Kasukuwere, and the Honourable Member, Mr Zhuwawo, admit, in the affidavits filed in support of the applicants, that when they called out to draw the attention of the Clerk to the objections they were raising to what they considered was a violation of the requirements of a secret ballot by members of the MDC-T party, who displayed their ballot papers to others so as to disclose for whom they had voted, the Clerk told them not to make noise.

According to the two members, what was shouted were objections to the conduct of displaying ballot papers. The objections were not intended to obstruct the Clerk in the conduct of the election. They were not the confused and undesirable sounds characteristic of noise. The environment cannot be accurately described as characterized by complete absence of order.

In view of the fact that all the two hundred and eight members went through the process by which they gave their votes on the ballot papers and dropped them into the ballot boxes, with some displaying their ballots to others so as to show for whom they had voted, the allegation that there was so much noise that the atmosphere was not conducive for conducting the election of the Speaker by a secret ballot was not substantiated. The atmosphere was characterised by the factors described by the Clerk, which enabled him to conduct the election of the Speaker fairly and efficiently.

The first ground on which the application for relief was based was not proved.

The second ground was based on the allegation that it was unlawful for the members of the MDC-T party who displayed their ballot papers to do so and for the Clerk not to stop or prevent them from doing what they did.

The intention was to show that the actions of the voters concerned, and the failure to act by the Clerk, undermined the process by which the object of the electoral law was to be achieved, thereby violating the rights of the applicants to elect the Speaker, or be elected as the Speaker, by a secret ballot. In that regard, the first applicant said, in the answering affidavit:

"100: It is particularly notable that (the) second respondent himself was one of the Honourable Members from the MDC-T party that unlawfully opened and displayed their marked ballot papers and this fact alone, which is captured in the DVD evidence, is enough to show that his claim to be Speaker is legally vacuous….,.

103. The fact that some Honourable Members, actually most of them belonging to (the) second respondent's MDC-T party including (the) second respondent, defiantly opened and displayed their marked ballot papers simply means that there was no lawful election and (the) second respondent is wishfully wrong to claim that he was lawfully elected from an election that was in fact unlawful."…,.

The applicants invariably described the conduct of the members of the MDC-T party, in displaying their ballot papers to others so as to disclose for whom they had voted, in terms which show that they considered the conduct unlawful.

They said it was "shocking behaviour"; "a brazen violation of the secret ballot"; a "deliberate and defiant violation of the election procedure"; "open and defiant violation of the secret ballot"; "blatant misconduct"; "the failure to observe and respect a fundamental Parliamentary Rule in the election of (the) Speaker"; "the rampant and systematic violation of the secret ballot"; "the failure to conduct the votes in secret as required"; and "an irregularity which is a grave breach of the Rules of Parliament."

The effect of the contention advanced by counsel for the appellants, on appeal, was that the members of the MDC-T party, who displayed the ballot papers to others so as to disclose for whom they had voted, had no right to do so.

In paragraph 6 of the answering affidavit, the first applicant emphasised the fact that he considered the failure by the Clerk to stop or prevent the members of the MDC-T party who displayed their ballots from doing so as unlawful. He said:

"6. His failure principally arose from his inability or unwillingness, for whatever reasons, to ensure that no Member left the polling booth, after voting, with an unfolded ballot paper, and that no Member openly displayed his or her marked ballot paper to any other Member for whatever reason."

In paragraph 178 of the answering affidavit, the first applicant summarized the issue for determination by the Court as follows:

"At issue is only the unchallenged fact in the papers, namely, that unfolded and marked ballot papers were displayed by many Honourable Members of the MDC-T party, including (the) second respondent, outside the polling booth during the election and that this was in violation of the procedure that marked ballot papers should be folded in the polling booth and (the) first respondent did nothing to stop this violation."

Counsel for the appellants argued, on appeal, that the failure by the Clerk to prevent or stop the members of the MDC-T party from displaying their ballot papers was evidence of breach by him of the duty to conduct the election of the Speaker by a secret ballot.

The court a quo found, on the facts, that only six members of the MDC-T party were shown to have come out of the polling booth with unfolded ballot papers and to have displayed the ballot papers to others so as to disclose for whom they had voted.

The finding was, again, justified.

Although the first and second applicants had alleged, in their affidavits, that "many" members of the MDC-T party had displayed their ballots, no evidence was produced to support the allegation.

The use of the word "many", in a case in which they were not able to state the number of the members of the MDC-T party who acted in the manner alleged, suggests that there was an element of exaggeration.

This is particularly so when regard is had to the fact that the applicants also said "some" members of the MDC-T party displayed their ballot papers so as to disclose to others for whom they had voted.

Given the fact that the applicants were seeking an order of nullification of the election, it was necessary that their case be based on clear evidence of the number of voters who displayed their ballot papers. The legal consequence would have been that the voters concerned had disenfranchised themselves by their own conduct.

Proceeding as the parties did on appeal, on the basis that six members displayed their ballots so as to disclose for whom they had voted, did the applicants show that those voters acted unlawfully? Did they ipso facto show that the Clerk acted unlawfully in failing to stop or prevent those voters from behaving in the manner they did?

I must add that the only reasonable inference from the circumstances of the case is that the six members displayed their ballot papers to other members of the MDC-T party to disclose to them that they had voted for the second respondent.

All members, including the six who displayed their ballot papers, had the right to waive the right to the secrecy of their votes.

In displaying the ballot papers to others, the six members exercised their right to share with any other person the knowledge for whom they voted.

As long as they were not coerced or compelled to expose their ballot papers to others, the voters acted lawfully. The power conferred on the Clerk, to conduct the election of the Speaker by a secret ballot, is limited by the right of the voter not to maintain the secrecy of his or her ballot.

The Clerk was not under any duty to stop or prevent the voters from voluntarily displaying their ballot papers to others so as to disclose for whom they had voted.

Whilst the duty on the Clerk, to maintain the secrecy of the ballot given by the voter, requires that he should refrain from doing anything that would compel the voter to disclose to any other person how he or she voted, it cannot be relied upon to justify conduct by which the voter would be prevented from freely exercising the right to disclose to whomsoever he or she chooses for whom he or she voted because the secrecy of the ballot is protected under the law for the benefit of the voter.

The Clerk owed the duty not to do anything to compel the voter to disclose for whom he or she voted to the voter. He cannot discharge the duty to the detriment of the interests of the voter by preventing or stopping him or her from exercising the right of disclosure of information as to how he or she voted.

It is clear that the duty on the Clerk was not to interfere with the recording, processing, and protection of a secret ballot as long as the voter maintained the secrecy of the ballot.

The applicants did not show that the Clerk acted unlawfully by not stopping or preventing the six members from displaying their ballot papers to others so as to disclose that they had voted for the second respondent. His duty was to manage and direct the activities of the electors in accordance with the rules designed to ensure a free and fair election by a secret ballot.

The applicants failed to establish the two grounds on which they sought the relief from the High Court by way of an order declaring the election of the second respondent as the Speaker of the House null and void and set aside.

The application ought to have been dismissed at that stage of the proceedings.

As I disagree with the learned Judge, on the comments he made on the legal consequences of the conduct of the six members in displaying their ballot papers to others so as to disclose for whom they voted, and also disagree with the learned CHIEF JUSTICE on the conclusion he reached that the counting by the Clerk of invalid votes cast by the six members as secret ballots nullified the election of the second respondent as the Speaker of the House, and not just the affected votes, I proceed to express my opinion on these matters.

The words "shall conduct the election of Speaker by a secret ballot" are placed in a statute by the provisions of which the Legislature recognised the possession by the members of the House present at its first meeting of the right to vote for the Speaker by a secret ballot.

The rule of law is that a right to vote must be exercised strictly according to the terms of the statute which confers it.

What this means, on the facts of this case, is that when the six members displayed their ballot papers to others, so as to disclose for whom they had voted, they voluntarily took their votes out of the system of the election by a secret ballot prescribed under section 39(2) of the Constitution, as read with Standing Order 6. By the same conduct by which they waived the right to the secrecy of their ballots, the voters lifted the veil of secrecy from the ballots rendering them void and of no value in the election of the Speaker.

I do not accept, as a correct statement of the law, the contention advanced by Mr Chaskalson and Ms Damiso, on behalf of the respondents, and accepted by the learned Judge in the court a quo, that the six ballots remained valid votes, notwithstanding the fact that they had been displayed by the voters concerned to others so as to disclose for whom they had been given.

The learned Judge, at p11 of the cyclostyled judgment, said:

"The courts should not interfere unless it is shown that the objective conditions put in place for the election precluded the possibility of a secret vote. Beyond this, it is then a matter purely for the individual voter if he chooses to divulge, whether publicly or in private, the specific manner in which he has cast his vote. If he does so of his own volition, without any external coercion or intimidation and howsoever his conduct might influence other voters, this cannot detract from the secrecy of his vote or vitiate the secrecy of the ballot as a whole."…,.

The statement that, a voluntary display by a voter of the ballot paper so as to disclose to other people for whom he or she voted does not "detract from the secrecy" of the vote, cannot be a correct statement of the legal effect of such conduct on the secrecy of the ballot affected.

The object of the ballot prescribed under section 39(2) of the Constitution, as read with Standing Order 6, is to secure complete secrecy as a condition of its validity, to be maintained not only by the voter desirous to elect the Speaker but by the official entrusted with the responsibility of conducting the election by a secret ballot during the electoral process, including the time when the counting of the votes takes place.

How can the official be able to maintain complete secrecy of a ballot in the face of conduct by the voter which removes the secrecy from the ballot? How the ballot can retain its secrecy thereafter I cannot imagine.

The secrecy is conferred on the ballot at the time the vote is given on the ballot paper in the polling booth. It must, however, be maintained thereafter to ensure the validity of the vote in the election of the Speaker.

It is clear, from the object of the statute and the procedure for voting, that a ballot paper which has a writing or mark made on it by which the identity of the voter can be known or one that is displayed to other people so as to disclose for whom the vote was cast, gets stripped of the secrecy of the ballot. The secret as a secret ceases to exist.

The ballot becomes void and cannot be counted in the election by a secret ballot.

The view expressed by the learned Judge did not take into account the effect of the requirement of the procedure provided by the Clerk for voting by a secret ballot.

The duty put on the voter desirous of maintaining the validity of his or her ballot in the election of the Speaker was that, after marking the ballot paper in the privacy of the polling booth, he or she would fold the ballot paper so as to conceal the ballot and keep it so folded until he or she deposited the ballot paper in the ballot box for safekeeping. The rule was to ensure the preservation of the secrecy of the ballot for the purpose of its validity in the election.

The direct effect of the voter displaying the ballot paper to other people, so as to disclose to them for whom he or she voted, is the invalidation of the ballot as a secret ballot.

Without pretending that there was no criterion by which a secret ballot had to be identified, I think the conclusion that the ballots displayed by the six voters to others, so as to disclose to them for whom they had voted, did not lose their secrecy, does not accord with what seems to have been the intention of the Legislature.

The proposition that the invalidity of the votes does not occur at the time the ballot papers are displayed so as to disclose for whom the vote was given would create a situation which would be quite unclear, and, to a certain extent, even illogical. Every exercise of a right has a direct consequence. The exercise of the right to vote which removes the secrecy of the ballot cannot have the same consequence as the exercise of the right which maintains the secrecy of the vote.

Failure by the Clerk to respond to the actions of the six voters and formally declare the ballots void did not change the fact that the ballots had been rendered invalid by the very actions of the voters.

The votes remained invalid at the time the Clerk counted them as secret ballots. He was not under any duty to count invalid votes as secret ballots. The statute is, in effect, clear that in no case will votes be allowed which are in any form other than the form of a secret ballot.

The result of the election of the Speaker, by a secret ballot, was not the number of votes cast, as some of them would have lost the essential element of secrecy as they travelled in their journey from the time they were cast to the time of counting. The result of the election was who was elected by a secret ballot.

The counting of invalid votes that had lost their secrecy affected two classes of voters:

(a) The first class is of voters who deliberately exercised their right to waive the benefits of the secrecy of the ballot by displaying the ballot papers to others so as to disclose for whom they had voted.

(b) The second class is that of voters who kept the knowledge for whom they voted to themselves.

The first class of voters had no right or legitimate expectation that their votes would be counted as valid votes. In this case, they did not, as a matter of fact, seek to enforce any such right or legitimate expectation. They appreciated the fact that they did not have such a protection. If anything, the legitimate expectation would have been that the votes they had voluntarily stripped of secrecy be not counted as secret ballots.

The second class of voters had the right or legitimate expectation that their votes and the election based on them be declared lawful. The applicants belonged to this class of voters. It appears that they are acting against their own interests and those of other voters in this class.

What right did they seek to protect or enforce by an order of nullification of the election?

If it is the right to a fair and free election by a secret ballot, they had to first show that it was violated by the respondents. They failed to show that violation.

Where there is proof of violation of electoral rights, such as the right to vote or to stand for election, the need to enforce the rights under judicial protection may require that the election be set aside if it was shown that the violation had undue influence on the result of the election.

There cannot be a remedy without proof of violation of a right.

The learned CHIEF JUSTICE reached the conclusion that nullification of the election was the only remedy for the unlawful conduct by the Clerk, of counting invalid votes as secret ballots. The reason was that, whilst imposing on the Clerk the mandatory obligation to conduct the election of the Speaker by a secret ballot, section 39(2) of the Constitution, as read with Standing Order 6, did not provide a remedy for the disobedience of the command.

The conclusion that nullification of the election was the only remedy for what, in reality, was a nullity in respect of the six votes, could only have been reached by implication of what is the intention of Parliament. It would be based on a construction of section 39(2) of the Constitution, as read with Standing Order 6, which presumes that it is the intention of the Legislature that voters who had complied strictly with the law and voted by a secret ballot for the Speaker should lose their valid votes on account of a failure by an official to discharge his duty not to count invalid votes as secret ballots.

The principle of law to be applied is that where an enactment imposes an obligation but is silent as to the remedy to be awarded for disobedience, a court must ascertain, from the language by which the obligation is imposed, whether it is the intention of the Legislature that nullification of the offending conduct should be the remedy to be awarded without any limit as to the scope of its operation or application.

MAXWELL on The Interpretation of Statutes 12ed…, summarises the principles to be applied as follows:

"…, when a statute requires that something shall be done or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance: is the requirement to be regarded as imperative (or mandatory) or merely as directory (or permissive)?

In some cases, the conditions or forms prescribed by the statute have been regarded as essential to the act or thing regulated by it and their omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the regard to them involving nothing more than liability to a penalty, if any, were imposed for breach of the enactment.

'An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.' Woodward v Sarsons (1875) LR 10 CP 733.

It is impossible to lay down any general rule for determining whether a provision is imperative or directory.

'No universal rule', said LORD CAMPBELL LC, 'can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.' Liverpool Borough Bank v Turner (1860) 2 De. G F & J 502 at pp507, 508.

And LORD PENZANCE said:

'I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the Act; and, upon a review of the case in that aspect, decide whether the matter is what is called imperative or only directory.' Howard v Bodington (1877) 2 PD 203 at p211."

See also Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S).

There is no question that section 39(2) of the Constitution, as read with Standing Order 6, is a mandatory enactment, the subject-matter of which is the election of the Speaker of the House. The object of the statute is to secure an election of the Speaker by members of the House qualified to vote by a secret ballot. The object is also to ensure, by the imposition of the obligation on the Clerk to conduct the election of the Speaker by a secret ballot, that there is provided mechanisms and procedures for the recording, processing, protecting, and counting of the secret ballot.

In other words, it is to ensure the establishment of an effective system for the election of the Speaker by a secret ballot conducted fairly, efficiently, and impartially.

The Clerk did put in place the mechanisms and procedures for the recording, processing, protection and counting of secret ballots.

Of the two hundred and eight members who voted, two hundred and two complied strictly with the requirements of the law for the exercise of their right to vote for the Speaker by a secret ballot - that is the main object for the achievement of which the provisions of section 39(2) of the Constitution, as read with Standing Order 6, were enacted.

He had assembled together all the necessary mechanisms which were required by the law governing the election to be put in place at the time prescribed to ensure delivery of the election of the Speaker by a secret ballot.

The six members who displayed their ballot papers to others, so as to disclose for whom they had voted, did so in the context of the mechanisms and procedures.

The failure committed by the Clerk was not to declare the invalid ballots void. It was the unlawful conduct of counting invalid ballots as secret ballots that has been used as a justification for the proposed award of the order of nullification of the election of the Speaker.

The disobedience did not relate to a secret ballot.

In other words, it is not a case of the Clerk failing to record, process, or count a secret ballot or declaring a secret ballot to be an invalid vote.

Had that been the case, the result of the election of the Speaker would have been affected by the disobedience of the Clerk to the duty to conduct the election of the Speaker by a secret ballot.

He had no power to decide what should be counted to ascertain the result of the election. He was told by the law what to count and for what purpose.

In this case, the Clerk counted what was at law a nullity as a secret ballot. His conduct did not give value to the invalid votes and did not in any way affect the result of the election of the Speaker.

The discounting of the invalid votes as well as the declaration of the conduct of the Clerk to be unlawful would not give rise to any difficulty in the determination of who the winner of the election of the Speaker was. The result of the election would not change.

The nullification of the election, based on a secret ballot, would subvert the purpose of the statute.

The general rule is that a declaration of nullity must be confined to the conduct in respect of a particular vote or class of votes, the invalidity of which has been established, unless the non-observance of the requirements of the law governing the specific duty is of a character which is contrary to the principle of an election by a secret ballot and is so great that it might have permeated the process and affected the result of the election: Phillips v Goff (1886) 17 QB 805.

There are numerous cases in which courts have struck off the invalid votes and declared conduct in respect of them void without affecting the election. The principle applied has been that to nullify the results of the election based on votes given by a secret ballot in strict compliance with the requirements of the law governing the election would imply that the provisions of the law complied with are misleading.

Had the Clerk declared the invalidity of the six votes at the appropriate stage in the election process, the declaration would have affected those votes only and not the other votes validly cast.

Why should the court, upon review of his conduct, in failing to do the right thing at the right time, go farther than the remedy the law had placed at his disposal had he acted lawfully?

The purpose of voting is not only the differentiation of the electorate and the expression of the will of the individual voters but also the ability to accept such decisions based on the will of the majority.

In my view, the principle of majority rule, on the basis of which results of democratic elections are determined, requires that courts should refrain from interfering with the will of the majority of voters expressed in accordance with the requirements of the law, on the ground that the official entrusted with the responsibility of conducting the election by a secret ballot unlawfully counted non-secret ballots as secret ballots - especially where there would be no confusion at all as to who is the winner following the discounting of the invalid votes.

An election may be set aside if it is not clear, upon determination of the conduct forming the ground on which the validity of the election is impugned, who was the winner.

In this case, there is clear evidence of the election of the Speaker of the House in accordance with the mode of voting prescribed by the law governing the election concerned.

The general principles of the law on which I have based my decision in this case and believe are applicable in the resolution of the questions raised were stated by LORD COLERIDGE CJ in Woodward v Sarsons (1875) LR 10 CP, referred to with approval in Chanter v Blackwood (1904) 1 CLR 39…,. He said:

"As the first point, we are of opinion that the true statement is that an election is to be declared void by the common law applicable to Parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws.

As to the first, the tribunal should be so satisfied, i.e., that there was no real electing by the constituency at all, if it were proved, to its satisfaction, that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer.

This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation or to be prevented from voting by want of the machinery necessary for so voting, as by polling stations being demolished, or not open or by other of the means of voting according to law not being supplied, or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes or false declaration of numbers by a Returning Officer, or by other such acts or mishaps.

And we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred.

But, if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void….,."

I am of the view that the construction of section 39(2) of the Constitution, as read with Standing Order 6, for the purpose of establishing the intention of the Legislature regarding the nullification of the election for the unlawful conduct of the Clerk, in counting invalid votes as secret ballots, does not justify the conclusion that it is the intention of the Legislature that breach of any of the numerous duties imposed on the Clerk, under the general obligation to conduct the election of the Speaker by a secret ballot, should attract an order of nullification of the election regardless of the nature of the neglect of duty and its effect on the "result of the election".

There can be no doubt that the majority of the voters freely expressed their preference of the candidate they wished to be the Speaker in the secrecy of the polling booth and exercised their right to maintain the secrecy of the ballot in accordance with the requirements of section 39(2) of the Constitution, as read with Standing Order 6.

The majority of the voters were enabled by the process conducted by the Clerk to freely elect, by a secret ballot, the Speaker from the two candidates.

To declare such an election void would be to declare void what is lawful.

The remedy awarded would be wholly disproportionate to the wrong committed. There was, in fact, no failure by the Clerk to conduct the election by a secret ballot within the meaning of the statute. The ballots which were effectively cast decided who was elected as the Speaker of the House.

The fact that the Clerk counted invalid votes as secret ballots because he had not seen the conduct by which they were rendered void did not change their invalid status.

The question is whether the purpose for which the powers to conduct the election of the Speaker by a secret ballot were conferred on the Clerk was fulfilled.

A close interpretation of the facts leads to the conclusion that the purpose of the statute was accomplished.

An appropriate remedy is one which accords with the intention of the Legislature.

In this case, it is the one that upholds the result of the election of the Speaker by a secret ballot.

The valid result is that the second respondent was elected the Speaker of the House by a majority of voters who cast secret ballots.

It would, in my view, be contrary to fairness and justice to say, as a matter of principle, that the Legislature intended that the election of the Speaker conducted by a secret ballot in terms of the law be nullified on account of, say, a single invalid vote counted by the official conducting the election as a secret ballot. The intention of the Legislature must be that only irregularities which undermined the achievement of the object or purpose of the legislation, of ensuring an election of the Speaker based on universal, equal, direct, and personal vote freely expressed by a secret ballot, should vitiate the election.

In the exercise of review powers, the court a quo came to the conclusion that the improper counting of invalid votes as secret ballots was not an irregularity of the class the Legislature intended would vitiate the election.

The conclusion is, in my view, not evidence of a misdirection on the part of the court a quo.

It is when the irregularity affected the actual discharge of the positive duty to conduct the election by a secret ballot, and not by any other type of vote, that it may be used as a ground for challenging the validity of the election by a secret ballot.

The Legislature prescribed the standard which had to be used by everyone, including the court, as an accurate and reliable criterion for determining the ballot papers which had to be counted to ascertain the result of the election.

Applying the test, the Clerk came to a wrong conclusion in respect of the six ballots cast for the second respondent. They were not secret ballots qualified to be counted.

The court a quo was, on the facts, in a position to apply the criterion to the ballot papers and arrive at the conclusion the Clerk ought to have reached in respect of the invalidity of the six ballots had he properly applied the prescribed test.

If it had to set aside anything, the court a quo should have set aside the counting of the ballot papers made by the Clerk and not the election itself.

The legality of the election was dependent upon the will of the electorate having been freely expressed by a secret ballot reflected by accurate and reliable results. The unlawful act of counting six invalid votes as secret ballots because of the wrong application of the prescribed standards of differentiating secret ballots from non-secret ballots did not disable the court, which had jurisdiction to do so, from objectively scrutinising the facts and obtaining a reliable result of the election. The court would be acting within the bounds and limits of the requirement that there should have been brought about an election of the Speaker by secret ballot on the basis of universal, equal, direct, and personal right to vote freely expressed according to the principle of majority rule.

I would therefore dismiss the appeal....,.

The appeal is dismissed with no order for costs.

The applicant herein is the Minister of State responsible for Presidential Affairs. He was formerly the Minister responsible for Land Reform and Resettlement. The applicant originally sought an order, inter alia, staying and eventually setting aside the execution of a warrant of arrest issued against him on the 6th of October 2009.

The warrant of arrest was then cancelled on the 9th of October, on the very day that this application was filed, and is no longer of any concern.

Nevertheless, the applicant still seeks an interim order barring the first respondent, who was the presiding magistrate in a criminal matter before the Chinhoyi Magistrates Court, from compelling him to testify in that matter. He also seeks a final order setting aside the subpoena issued on the 2nd of October 2009 for him to attend and testify in the criminal matter.

The latter involves the prosecution of the fourth respondent under the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] and has been set down to resume on the 4th of November 2009....,.

Basis of Application

The present application is by way of criminal review in terms of section 29 of the High Court Act [Chapter 7:06].

It was raised, in the course of argument, by counsel, that, the application is formally defective in that it has not been brought as a court application pursuant to Rule 256 of the High Court Rules, 1971...,.

As regards the first point, I take the view that Rule 256 is confined to civil matters and proceedings and does not apply to criminal reviews. In any event, it seems unnecessary for me to decide the point for present purposes, as I am inclined to entertain this matter on the robust approach adopted in State v Strowitzki 1995 (2) SA 525…, to wit:

“It is not the form of the procedure used which matters so much as the nature and substance of the application itself.”

In the earlier case of Sanlam Insurance Company Limited v Paget 1981 ZLR 132, GUBBAY J..., had this to say..., -  

Rule 58 of the Supreme Court Rules provides as follows:-

“In any matter not dealt with in these Rules the practice and procedure of the Supreme Court shall, subject to any direction to the contrary by the Court or a Judge, follow, as near as may be, the practice and procedure of the High Court.”

The respondent in this matter issued summons out of the Magistrates Court of Bulawayo on the 14th August 2008. In that summons he claimed a “sharing of property” and “custody of children”.

At the same time, the respondent filed an affidavit, sworn to by himself, in which he alleged that he had been customarily married to the appellant in 1995 which union still subsisted and that there were three minor children born of the union, namely, Perfect Dube, born on 2nd April 1996, Prince Dube, born on 3 January 2000, and Priscilla Dube, born on 19 August 2004.

In that affidavit, the respondent persisted in his claim for custody of the children and a division of the property between himself and the appellant.

On the 6th May 2008, he filed an additional affidavit in which he sought to amend his papers by withdrawing House No.15913 Nkulumane 12, Bulawayo from the list of the property to be shared alleging that it belonged to his employer, Delta Beverages (Pvt) Ltd.

The appellant did not file any notice of appearance to defend, neither did she file a plea or notice of opposition.

The matter was set down for hearing on the 12th May 2008 on which date some kind of a trial commenced with the appellant in attendance.

The appellant verbally told the court that she was opposed to the claim made by the Respondent and both parties gave evidence before the Magistrate.

During the trial, the respondent told the Court that he was claiming the “matrimonial house” because he acquired it with the assistance of his employer who provided a loan for the construction of a two-roomed house. The house was completed in 1997 at which point he and the respondent moved in and although he produced Deed of Transfer No.629/02 with no mortgage bond registered on it, showing that the house is in his name, the respondent maintained that the house belonged to his employer.

The appellant also testified in Court to the effect that herself and the respondent acquired the house together after which they agreed that she should go and work in Botswana to raise money to improve the house as the respondent's income was too meagre for them to develop the house. With the extra income she got from Botswana, they managed to add six (6) more rooms to the house which now proudly stands as an eight (8) roomed house.

The appellant maintained that she wanted to remain in that house with the children and should be awarded custody of the said children.

The court allowed the two elder children to testify and both of them unequivocally told the court that they preferred staying with their mother. In fact, Perfect Dube said he preferred staying with his mother because his father “does not buy vegetables”; and, although Prince Dube insisted he wanted to live with his mother he did not give reasons for that.

In its judgment, the court a quo concluded that as the parties were living together as husband and wife both contributed to the extension of the house, and, for that reason, the appellant was entitled to a share of the house.

As there appeared to be no dispute on the sharing of the movable assets, the court a quo awarded the stove, two (2) blankets, colour television, double bed, and sofas to the respondent. The appellant was awarded another stove, kitchen utensils, three (3) blankets, mosquito net, display, radio, curtains, and a room divider.

The house was shared at the ratio of 80% to the respondent and 20% to the appellant with the respondent being allowed to buy out the appellant in order to retain the house.

The respondent was awarded custody of two (2) of the children, namely, Perfect and Prince - despite their avowed preference to be with their mother; while the youngest child, a girl, was awarded to the appellant.

Unhappy with that decision, the appellant appealed to this Court on the grounds, inter alia, that the division of the assets was not equitable and that she is the better custodian parent.

At the hearing of the appeal, the appellant, who appeared in person, exhorted us to overturn the decision of the court a quo and award her a 50% share of the house and custody of all the children together with maintenance especially as the respondent has now remarried and is unable to look after the children properly in those circumstances.

This matter presents some difficulty.

The first problem arises from the fact that the matter appears to be a hybrid of trial action and application procedure. The respondent issued a summons commencing action which was supported by affidavit. This was an unacceptable mixture of procedure which was not picked by both the Clerk of Court and the trial magistrate.

Without following the Rules relating to the filing of pleadings and the holding of a pre-trial conference before a trial could be conducted, the magistrate proceeded to trial and heard viva voce evidence from the parties while also accepting affidavits filed by the respondent. As stated in Mandava v Chasweka HH42-08 (as yet unreported)…,;

“All Magistrates' Courts in this country are formal courts whose proceedings are governed by a set of rules and established procedures.

It is trite that the pre-setting of rules of procedure is, to date, the widely accepted manner of avoiding arbitrariness and ensuring fairness in the airing of disputes by litigants. Rules of Court are framed for a purpose and any procedure done outside the Rules is susceptible of being set aside as being unprocedural.”

It is clearly incompetent for the Magistrates' Court to invent a new procedure of dealing with disputes which procedure is not provided for in the Rules of the Court and is a mixture of summons action and application procedure.

That procedure simply does not exist.

The two procedures are mutually exclusive and cannot be employed at the same time to resolve the same dispute. See Mandava v Chasweka HH42-08.

INTERPRETATION OF PRACTICE DIRECTION 3/13

It was the applicant's contention that the application was being brought in terms of paragraph 5 of Practice Direction 3 of 2013. In my view, it is necessary, for the sake of completeness, that I cite the relevant portion of the Practice Direction which relates to matters which have been struck off the roll:

“Struck off the roll

3. The term shall be used to effectively dispose of matters which are fatally defective and should not have been enrolled in that form in the first place.

4. In accordance with the decision in Matanhire v BP & Shell Marketing Services ( Pvt) Ltd 2004 (2) ZLA 147 (S) and S v Ncube 1990 (2) ZLR 303 (SC), if a Court issues an order that a matter is struck off the roll, the effect is that such a matter is no longer before the Court.

5. Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned.

Provided that a judge may on application and for good cause shown, reinstate the matter, on such terms as he deems fit.”…,.

It seems to me that a proper interpretation of paragraph 5 of the Practice Direction 3/13 is that the applicant must, within thirty days, rectify the defect by applying for condonation for the late noting of appeal and an extension of time within which he should comply with the Rules. He may not do so after the window period which he has been given to rectify the defect as the matter will be deemed to have been abandoned. It seems to me that the restriction on the period within which to rectify the defect was included in the Practice Directive in order to manage cases which would have been struck off the roll so that the registry would not be cluttered with “dead” files. Thus, a litigant who wished to pursue his matter was granted a limited time within which to apply to cure the defect failing which the matter would be deemed abandoned.

In this case, the applicant correctly filed an application within the prescribed period of thirty days. However, an application for reinstatement is not the appropriate remedy.

This position is confirmed by the case of Hattingh v Pienaar 1977 (2) SA 182 (O) where the court had occasion to deal with a defective compliance of the Rules, such as in the present matter. The court held as follows:

“…, a fatally defective compliance with the Rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant Rule.”

I respectfully agree with this view.

The appeal, having been found to be fatally defective, cannot be reinstated after being struck off the roll. The applicant's remedy to rectify the defect is to apply for condonation and extension of time within which to file a fresh notice of appeal in terms of Rule 6 of the Supreme Court (Miscellaneous Appeals and References) Rules. He should do so within the period of thirty days provided for in the Practice Directive.

DISPOSITION

An act done in violation of the Rules of Court cannot be valid.

Also relevant for present purposes is section 6 of the Supreme Court Act [Chapter 7:13]:

“In any matter relating to records, practice and procedure for which no special provision is contained in this Act or in Rules of Court, the matter shall be dealt with by the Supreme Court or a judge thereof as nearly as may be in conformity with the law and practice for the time being observed in England by the Court of Appeal.”…,.

It is necessary to address the import of section 6 of our Supreme Court Act.

Counsel for the first respondent submits that this provision, in its express reliance on the prevailing law and practice observed in England by the Court of Appeal, necessitates that it is English Law that we must turn to for the determination of the procedural question presently under review.

Counsel for the appellants takes a different view.

He contends that the practice observed in England is only to be resorted to if there is no adequate provision on the matter in issue in the Supreme Court Act or the Rules made thereunder. He further argues that the point at hand is one which is governed by the High Court Act and not the Supreme Court Act. Since section 43 of High Court Act makes specific provision on the subject, there is no lacuna in our law. Therefore, so he submits, the English position is of no application and there can be no justification for resorting to the practice of the Court of Appeal in England.

I think that there is merit in both positions.

There obviously is no lacuna in our law relative to the practice to be adopted on the question of leave to appeal against interlocutory orders or judgments. Thus, section 6 of the Supreme Court Act [Chapter 7:13] cannot be invoked to dictate slavish adherence to English practice in resolving the question at hand. Nevertheless, I do not accept that prevailing English practice and precedent can be dismissed as being entirely irrelevant to the question. Given the self-evident similarities between the governing statutory provisions in both jurisdictions, there can be no quarrel with the proposition that English case authorities are highly persuasive in any meaningful analysis of our procedural law.

As was stated by VAN WINSEN AJA in Federated Trust Ltd v Botha 1978 (3) SA 645 (A)…,.;

“Rules are not an end in themselves to be observed for their own sake. They are provided to secure the inexpensive and expeditious completion of litigation before the courts…,.”…,.

In Jockey Club of South Africa v Forbes 1993 (1) SA 649…, the learned KRIEGLER AJA stated:

“This case is a good example of the stultification inherent in reading Rule 53 as a law of the Medes and Persians…,.”

The above position finds favour in the case of Scottish Rhodesian Finance Ltd v Honiball 1973 (2) SA 747 (R)…, where BECK J stated as follows:

Counsel for the first respondent contested the validity and urgency of the application.

He submitted that the application does not comply with Rule 241(1) of the High Court Rules, 1971 in that the purported Form 29B does not contain a summary of the grounds on which the application is brought. For that reason there is no application at all before me.

Counsel for the applicant conceded the omission of the grounds which he however said are contained in the founding affidavit. He submitted that I should condone what he called “a minor omission.”

I take the view that the rules of court are there to assist the court in the discharge of its day to day function of dispensing justice to litigants. They certainly are not designated to impede the attainment of justice. Where there has been a substantial compliance with the rules and no prejudice is likely to be sustained by any party to the proceedings, the court should condone any minor infraction of the rules. In my view, to insist on the grounds for the application being incorporated in Form 29B when they are set out in abundance in the body of the application, is to worry more about form at the expense of the substance.

Accordingly, by virtue of the power reposed to me by Rule 4C of the High Court Rules, I condone the omission.

Counsel for the respondents also tried to deflect attention from the real issues by arguing that the applicant is wrongly cited as “Guta RaMwari” when their Constitution and other documents filed in court cite them as “Guta RaMwari Congregation” or “Guta RaMwari Religion.”

In my view, that is to worry too much about form instead of substance. It cannot be doubted that the church is known, generally, as Guta RaMwari and Rule 8A of the High Court Rules allows a party to be cited by its trading name; if that could be said about churches. It is also important to note that the respondents have been cited in their personal capacities and not as a rival church laying a claim to the same name.

What constitutes abuse of process was discussed in Beinash v Wixley 1997 (3) SA 721 (SCA) by MAHOMMED CJ..., as follows:

“There can be no doubt that every court is entitled to protect itself, and others, against an abuse of its processes. Where it is satisfied that the issue of a subpoena in a particular case indeed constitutes an abuse it is quite entitled to set it aside. As was said by De VILLIERS JA in Hudson v Hudson and Anor 1927 AD 259 at 268:

'When…, the court finds an attempt made to use, for ulterior purposes, machinery devised for the better administration of justice, it is the duty of the Court to prevent such abuse.'”

Whether a proceeding or certain conduct related thereto constitutes an abuse of the process of the court is a matter which can only be determined by the circumstances of each case. Consequently, there can be no all-encompassing definition of the concept of abuse of processes. However, it can be said, in general terms, that an abuse of process takes place where the procedures permitted by the Rules of the Court to facilitate the pursuit of the truth are used for a purpose extraneous to that objective.

See Standard Credit Corporation Ltd v Bester and Others 1987 (1) SA 812 (W)...,.; TAITZ, The Inherent Jurisdiction of the Supreme Court (1985)...,.

It also goes without saying that, as a general rule, where the Rules of Court or a Practice Direction prescribe a form to be followed when drafting court process, legal practitioners are enjoined to make use of that form….,.

The purpose of forms in Rules of Court and Practice Directions is to guide litigants as to the format of pleadings and process for the proper running of the courts.

The criticism that the learned judge in the court a quo placed more emphasis on form rather than substance cannot be denied.

Abuse of process - the employment of the judicial process for a purpose other than that for which it was intended.

This court is not in the habit of exercising its discretion in favour of those abusing its process: Zvidza & Anor v Mudoti HH422-14.

An abuse of court process is the use of the process of the court for purposes for which it is not meant.

It is unfortunate in the extreme and should be suppressed by all means possible as resort to it by litigants has always tended to bring the administration of justice to disrepute. The moment a litigant thinks he or she can come to court to seek shelter against imminent execution, not because the litigant has a cause of action but because they think they can mumble something in an application and hope that while the court struggles to decipher what it is they are saying, they can enjoy to shelter under the court's wings delaying the inevitable as much as possible, that is an abuse of court process. It is even more repugnant when it appears to be instigated by the involvement of a legal practitioner, who, as an officer of the court, should know better.

Rule 4C…, was crafted to enable the court to condone a departure from the rules on given procedure warranting such departure and for good cause shown; it was never inserted in the rules so that applicants can abuse it by crafting un-substantiated causes of action and non-existent procedural avenues.

On 20^th September 2016, the applicant filed an urgent chamber application for an order to be joined in the proceedings pending in this court under case number HC2208/16....,.

The application is resisted on the grounds set out in paragraph 29 of the founding affidavit in the following terms:

“As indicated earlier on, the application is fatally defective and if at all the applicant is eager for co-joinder proper applications should be filed. The applicant should not at all be joined in these proceedings, particularly by way of an urgent chamber application which does not even have a provisional order. One of the applicant's remedies is to file a procedurally proper application for co-joinder. Issues of environmental degradation can always be addressed by the Environmental Management Agency (EMA) if at all there are such fears. The applicant should never be allowed to succeed in an urgent chamber application couched in this fashion.”…,.

It is the clear position of the law that the purpose of Rule 87(2)(b) is to ensure that all matters in the cause may be effectively and completely determined and adjudicated upon. It is to prevent unnecessary multiplicity of litigation by adding anyone and everyone with a real and substantial interest as a party to the proceedings in order that justice may be done.

A clear reading of Rule 87(3) leaves no room for any doubt that an application for joinder should be made by way of a court application. Such an application shall be supported by affidavit except with the leave of the court.

The applicant in these proceedings has, despite the clear provision of the Rules, opted to proceed by way of an urgent chamber application….,.

As regards the appropriateness of the Form that has been used by the applicant to bring this application, I have already observed that the provision under Rule 87(3) envisages the filing of a court application. However, in terms of Rule 4C of the Rules, the court may order a departure from the rules as it deems fit. The Rule provides as follows:

“4C The court or a judge may, in relation to any particular case before him, as the case may be –

(a) Direct, authorize or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he, as the case may be, is satisfied that the departure is required in the interests of justice…,.”

See the cases of Sumbereru v Chirunda 1992 (1) ZLR 240 (H) and Village Construction (Pvt) Ltd v Alpha Brick (Pvt) Ltd HH52-92.

Whether the application is not properly before the court

The first respondent sought to argue that the application is not properly before the court by reason of failure to give adequate notice for the filing of opposing papers.

In terms of Rule 232 of the High Court Rules, 1971, the applicant was required to give the respondents at least 12 days notice to file their opposing papers.

The issue taken by the respondents is that the applicant failed to follow the proper procedure when it was indicated on the applicant's papers that 10 days instead of 12 days notice to oppose was required, regard being had to the fact that the place where the application was served was more than 200 kilometres from the court where the application is to be heard. It was contended that such defect in the time given for filing opposing papers meant that the papers were not properly before the court.

The first respondent's legal practitioner did not persist with this argument.

In any event, as correctly pointed out by the applicant's legal practitioner, the application was drafted in standard form and the applicant did not, by the mere insertion of the period of 10 days, insist that the respondent must respond within 10 days.

In any event, in my view, the applicant does not determine the time stipulations set out in the Rules of this court and therefore the respondents were not obliged to comply with the said 10-day time stipulation period but stood guided by the law as contained in the Rules. Further, and in any event, the respondents were able to file their opposing papers within the 10 day period. There was no prejudice suffered by the respondents as a result of the 10 day stipulation.

I therefore dispose of the first point in limine as lacking in merit and not fatal to the application.

Regarding the last point about the certificate of urgency not having been dated, counsel for the applicant explained that it was a harmless oversight that probably was occasioned by the haste in which urgent chamber applications are prepared.

I condoned the oversight.

Rule 4C, inter alia, empowers a judge, inter alia, to condone a departure from any provision of the rules in the interest of justice….,.

The rules are meant for the court and not the court for the rules.

In Mukaddam v Pioneer Foods (Pty) Ltd and Others 2013 (5) SA 89 (CC), the Constitutional Court of South Africa…, said:

“[39] Flexibility in applying requirements of procedure is common in our courts. Even where enacted rules of court are involved, our courts reserve for themselves the power to condone non-compliance if the interests of justice require them to do so. Rigidity has no place in the operation of court procedures. Recently, in PFE International and Others v Industrial Department Corporation of South Africa Ltd [2013 (1) SA 1 (CC)] this Court re-affirmed the principle that rules of procedure must be applied flexibly. There this Court said:

'Since the rules are made for courts to facilitate the adjudication of cases, the superior courts enjoy the power to regulate their own processes, taking into account the interests of justice. It is this power that makes every superior court the master of its own process. It enables a superior court to lay down a process to be followed in particular cases, even if that process deviates from what its rules prescribe. Consistent with that power, this Court may, in the interests of justice, depart from its own rules.'”…,.

Section 176 of the Constitution provides for the inherent power of the Court to protect and regulate its own process. It provides:

“176 Inherent powers of Constitutional Court, Supreme Court and High Court

The Constitutional Court, the Supreme Court and the High Court have inherent power to protect and regulate their own process and to develop the common law or the customary law, taking into account the interests of justice and the provisions of this Constitution.”…,.

Once a procedural matter is made the subject of a rule of court, and there is a general rule giving the Court the power to condone non-compliance with the procedural requirements, when it is in the interests of justice to do so, the fact that the procedural matter has its origin in the Constitution is no bar to the Court exercising its discretionary power in terms of the Rules….,.

It has been held that where the delay is relatively short and no prejudice is suffered, the court is likely to grant condonation of non-compliance with procedural requirements. See Oriani-Ambrosini MP v Sisulu MP, Speaker of the National Assembly 2012 (6) SA 588 (CC)…,.

The need to comply with the rules of court cannot be over-emphasized especially where the rule is peremptory. Where strict compliance with Rules of Court is required, litigants must so comply because anything less will potentially prejudice the other party. In Chikura & Anor v Al Sham's Global BVI Limited SC17-17, ZIYAMBI JA had occasion to remark that:

“The Rules are made for the proper running of the Court. Failure to comply with its mandatory provisions will render an appeal a nullity. See Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S).”

Rule 4C provides as follows:

“The court or a judge may, in relation to any particular case before it or him, as the case may be —

(a) Direct, authorize or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he, as the case may be, is satisfied that the departure is required in the interests of justice;

(b) Give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to it or him, as the case may be, to be just and expedient.”

Counsel for the applicants submitted that Rule 4C authorised a judge to direct a departure from the rules, and to fill gaps not provided for in the rules. Counsel for the respondents submitted that the rule shows that the court is not made for the rules but that the rules are made for the court. He agreed with counsel for the applicants that Rule 4C entitles a judge or the court to give directions on procedure where the rules do not provide for a matter before the court.

The legal practitioners are agreed on the court's power to direct a departure from any provision of the High Court Rules, (Rule 4C(a)), and to fill gaps in the rules where the rules do not provide for the circumstances of a case before the court (Rule 4C(b)).

Before dealing with the merits, there was a preliminary point that the claimants raised in respect of the Notice of Opposition filed by the judgment creditor. It was this. In his notice of opposition to the inter pleader notice, the judgment creditor cited the parties as “THE DEPUTY SHERIFF MARONDERA (Applicant) [v] VICEMAST SERVICES (PVT) LTD (Judgment Creditor) and MANDY MARGRET MAJONI (Judgment Debtor)”.

The correct citation, of course, was as set out on the face of this judgment.

In their heads of argument, the claimants took the point that there was no proper opposition to their claim and that the persons or entities cited by the judgment creditor were unknown.

In response, the judgment creditor filed a notice to amend his notice of opposition by citing the parties correctly.

At the hearing, counsel for the claimants persisted with the objection. I overruled it. My view was that the objection had been taken and persisted with purely as a matter of duty or routine. It was doubtless that, save for the foreign names appearing in the citation, the notice of opposition was answering to the inter-pleader notice by the applicant, and, paragraph by paragraph, to the claimants' own notice of opposition. The case number was correct. Counsel for the claimants conceded that no prejudice would be caused to the claimants if the amendment was allowed. Counsel for the judgment creditor explained that the wrong names were a result of a typing error by himself or his typist.

The wrong names were plainly a silly mistake. It was manifestly harmless. I considered that silly and harmless typing errors should not impede the adjudicating of the real disputes on the merits.

The first respondent's first technical objection was that the application was fatally defective for want of compliance with the Rules of the High Court, particularly Rule 241[1]. This is the rule that prescribes that Form No.29B shall accompany chamber applications unless the chamber application is one to be served on interested parties, in which case Form No.29 is to be used - but with appropriate modifications. These forms are set out in the Schedule of Forms at the back of the Rules….,.

The first respondent's point was that since the chamber application was one to be served, it had to be accompanied by Form 29, not 29B, with appropriate modifications. That not having being done, the argument concluded, the application was not only bad, but it was incurably bad….,.

I did not agree with the first respondent.

Raising this point was just a mandatory ritual: see Rufasha v Bindura University of Science Education & Ors HMA15-16. The point was a 'sterile dispute' about forms: see Zimbabwe Open University v Mazombwe SC12-13….,.

Where the courts have dismissed an application for want of form it is usually because the application would have been accompanied by neither Form 29B nor Form 29, but by something else completely alien to the Rules. This was not the case with the applicants' application herein. Therefore, I condoned their use of Form 29B, or their failure to modify Form 29.

Furthermore, and at any rate, in terms of Rule 229C, the use of one form instead of another, i.e. of Form 29B instead of Form 29, does not, in itself, constitute sufficient grounds for dismissing an application. It is necessary for a court or judge to conclude that an interested party has thereby suffered prejudice….,.

In The Sheriff of the High Court v Majoni & Ors HH689-15 I said that silly and harmless typing errors should not impede the determination of the real dispute between the parties: see also Zimbabwe Lawyers for Human Rights v Minister of Transport & Ors 2014 [2] ZLR 44 [H].

In the present case, the defects in the certificate of urgency that the first respondent complained of were inconsequential. I pardoned them.

To quash the respondents' second leg of their second point in limine, counsel for the applicant sprung an argument that neither formed part of its grounds of impeachment in the founding affidavit nor about which any notice had been given. He argued that it was a point of law which he could raise for the first time at any time. It was also an argument meant to bury the respondents' objection on urgency…,. It was a point that appeared ex facie the documents.

It was this:

S.I.106/2014 was titled “Toll Roads (Regional Trunk Roads Network) (Amendment) Regulations, 2014 (No.5)”.

Subsidiary legislation, such as statutory instruments, cites the author and the enabling Act under which they are promulgated. S.I.106 of 2014 said:

“IT is hereby notified that the Minister of Transport, Communication and Infrastructural Development has, in terms of section 6 of the Road Motor Transportation Act [Chapter 13:13] made the following regulations –

1….,.

2…..,.”

The reference to the Road Motor Transportation Act (“ROMTRA”) was a patent error. The Minister's power to fix toll fees by regulations is prescribed by the Toll Roads Act [Chapter 13:13] (TORA), not the Road Motor Transportation Act (ROMTRA). The Road Motor Transportation Act (ROMTRA) is not [Chapter 13:13]. It is [Chapter 13:15]. It is the Toll Roads Act (TORA) that is [Chapter 13:13].

Counsel for the applicant said that this was unforgivable.

The regulations were void ipso jure. The Minister of Transport had purported to act under a non-existent law. Under such circumstances there could be no presumption of validity. Both the purported legislative action of the Minister of Transport, in coming up with S.I.106 of 2014 and his administrative function to postpone the start date of the regulation drew their life-blood from a non-existent law. The court has an inherent power to remedy such an obvious illegality, counsel for the applicant charged….,.

In casu, counsel for the applicant's argument that S.I.106 of 2014 is unlawful because it refers to a wrong Act of Parliament is illusory. Whilst the error is patently obvious, it is so infinitesimal as to be inconsequential. It practically was a typing error, a slip of the pen by the typist, or of the tongue by whoever may have dictated the contents. A law cannot be knocked down for such a minor mistake.

There is no question that the Minister of Transport does have the power under the Toll Roads Act (TORA) to fix toll tariffs. There is no question that it is section 6 of the Toll Roads Act (TORA) that empowers the Minister of Transport to make subsidiary legislation. The the Toll Roads Act (TORA) is [Chapter 13:13] in the statute books. All the other provisions of SI106/2014 seem perfect except the erroneous reference to the Road Motor Transportation Act (ROMOTRA). It is not every mistake that affects the validity of a law. Even some far more serious mistakes or omissions than in the present matter have failed to upset an existing law.

In Blair Atholl Homeowners Association & Ors v The City of Tshwane Metropolitan Municipality Case No. 63280/11 MURPHY J said…,:

“Even though the notice might have been invalid for want of compliance with the time period, such procedural invalidity, in the face of substantial compliance and no notable prejudice, does not justify a declaration of invalidity with retrospective effect. Illegal acts can have factual consequences which, in all other respects, are lawful and have no on-going or prospective illegal effect. Sometimes invalid administrative action, in this case the non-compliance with statutory procedure, must be allowed to stand in the interests of finality, pragmatism and practicality, especially when non compliance is not material or prejudicial; Chairperson, Standing Tender Committee v JFE Sapela Electronics 2008 (2) SA (SCA) para 28. In such circumstances, a court, in its discretion, may decline to set aside the invalid action…,.”

On this particular point, the Minister of Transport is not being impugned for any procedural impropriety. He is being impeached for a typing error. This ground must fail.

This is an application for a joinder. The draft order attached to the application reads as follows:-

“1. The 6^th Respondent be and is hereby joined as the 6^th Respondent in Case No. HC1393/08.

2. The 6^th Respondent shall, if he wishes to defend the 1^st and 2^nd Applicants' claim, file a Notice of Opposition within (10) ten days of service of the pleadings in Case No. HC1393/08 on him.

3. The rest of the pleadings shall be dealt with in accordance with the rules of the Court.

4. There shall be no order as to costs.”

I give, here-below, a brief background to the relief sought.

On 7 March 2008 the applicants filed an application under case number HC1393/08 (the main matter) for the following relief:-

“IT IS ORDERED THAT:

1. The 1^st Respondent [the plaintiff herein] is hereby interdicted from transferring the property known as No. 98 Churchill Avenue, Harare, also known as a certain piece of land situate in District of Salisbury Township Lands measuring 3,066 square metres under Deed of Transfer 39/76 to anyone except the 1^st and 2^nd Applicants.

2. The property in paragraph 1 above be transferred to Asswell Africa Gurupira and Jean Jane Gurupira and the 2^nd Respondent [Sandra Muir] is directed to sign all the necessary documents to finalise the transfer within 10 days of the Order.

3. Should the 2^nd Respondent fail or refuse to sign the necessary documents to effect transfer, the 4^th or 5^th Respondent [Sheriff and Deputy Sheriff respectively] are hereby directed to sign all the necessary documents to effect the transfer by the 3^rd Respondent [Registrar of Deeds] to 1^st and 2^nd Applicants.

4. The 1^st and 2^nd Respondents shall bear all the costs of this application on attorney-client scale jointly and severally one paying the other to be absolved.”

On 21 May 2008, I granted the above order in default.

On 22 August 2008, the sixth respondent, in his capacity as the Managing Director of the first respondent, filed an application, under case number HC4211/08, for the rescission of the default judgment granted in favour of the applicant on 21 May 2008. I must mention that when the rescission application was filed, the default order had already been executed/enforced.

In paragraph 14 of the founding affidavit in the rescission application filed on 22 August 2008 in HC4211/08, the sixth respondent averred as follows:-

“14. I humbly submit that the Applicant has got a prima facie right and a bona fide defence to the 1^st and 2^nd Respondents claim. Applicant bought all the shares from the 3^rd Respondent, through its Managing Director, and took transfer of the shares well before the 16^th of June 2008 when the 1^st and 2^nd Respondents took transfer of the immovable property. In fact, the Order granted by this Honourable Court, see Annexure “I”, was granted in error. The alleged Agreement of Sale between 1^st, 2^nd and 3^rd Respondents was not for the sale of the immovable property but for the sale of shares. In fact, it is quite doubtful that the same could have been granted if the 1^st and 2^nd Respondents' Legal Practitioners had been candid with this Honourable Court and included Annexure “H” which is the Notice of Opposition to the Court Application. As it is, 1^st and 2^nd Respondents Legal Practitioners saw it fit to cherry pick the information and omitted to mention or attach the Opposing Affidavit to Case No. HC6660/07. In a nutshell, the transfer of the immovable property to the 1^st and 2^nd Respondents is null and void as the company shares in the Applicant were bought and transferred to JOHN LEGGETT, who, in his capacity as the sole shareholder, became the owner of all assets owned by the Applicant well before it purported to take transfer of the immovable property on the 16^th of June, 2008.”…,.

The first and the second respondents referred to in the above passage are the first and the second applicants herein. The third respondent is the second respondent in this matter. John Leggett, referred to in the above passage, is the sixth respondent that the applicant herein seeks to join in the main matter (HC1393/08).

The contents of the above passage are further reinforced in the answering affidavit filed by the sixth respondent on 25 September 2008 in HC4211/08 on behalf of the applicant therein. In paragraphs 6 and 7 of the answering affidavit, the sixth respondent states as follows:

“6. Annexures “B1” and “B2” clearly show that 3^rd Respondent transferred her shareholding to John Leggett. I also attach hereto, as Annexure “A” a Share Certificate which clearly shows that John Leggett is the owner of 100 fully paid ordinary shares in the Applicant. It is true that the Applicant was the owner of all its assets, including the immovable property in dispute, and the same (Applicant) was owned by the 3^rd Respondent hence her power to sell and transfer the shares to John Leggett who became the owner of the Applicant. Simple logic testifies that the purpose of purchasing shares is to own and control that company and how 'the deponent did not become the owner of the Applicant's property by acquiring shares in it' is confusing (for want of a better word).

Is it being suggested that Applicant's shareholder (John Leggett) elected to buy the name of the company and did not want to become owner of Applicant's property by acquiring shares in it?

The averments in this paragraph by the 1^st and 2^nd Respondents is, with respect, confusing. Initially, it is alleged that “3^rd Respondent did not transfer any shares to the Applicant. Then a few lines down it is alleged that 'the deponent did not become owner of the Applicant's Property by acquiring shares in it.'

The issue is not who entered into an Agreement with 3^rd Respondent first. The issue is simply, who took transfer of the shares first.

As at 28^th May 2008, John Leggett was the new shareholder and owner of the Applicant.

Annexure “A”, attached hereto, clearly shows that the Share Certificate was issued to John Leggett on the 5^th of June 2008 and 1^st and 2^nd Respondents took transfer improperly of the immovable property on the 16^th of June 2008. The 1^st and 2^nd Respondents either deliberately or through a genuine error on their party overlooked the fact that the Applicant has a new shareholder who took transfer of the Shares from 3^rd Respondent, and, as such, has got a vested interest in the matter. The Applicant is the owner of the immovable property and other movable property and if it cannot be the Applicant who deposes to the Founding Affidavit who should then be?

7. The Applicant had new Shareholders who should have been cited by the respondents. The law is quite clear.”…,.

As per his own averments, the sixth respondent was actually the new sole shareholder of the first respondent in casu. The foregoing brings to the fore the sixth respondent's vested interest in the main matter. Clearly, the relief sought in paragraph 2 of the draft order in the main matter (HC1393/08) would adversely impact on the vested interest of the sixth respondent. That position requires no argument and would indeed form the legal basis upon which a joinder is being sought.

When the rescission application was placed before PATEL J…, he directed that, because of the disputes of fact in the matter, it should go to trial.

The matter eventually went to trial before MAFUSIRE J who granted the rescission on 19 March 2014. The rescission meant that the main matter, (HC1393/08), should now be heard in terms of the rules of this court. However, before the hearing of the matter, the applicants correctly deemed it necessary to join the sixth respondent who was not cited in the main matter.

Curiously, the application for joinder is opposed by the sixth respondent. This is despite the fact that, according to him, he is now the Managing Director and sole shareholder of the first respondent. Ownership of the property, which is really at the center of the dispute between the parties, is said to vest in the first respondent, whose total shares the sixth respondent now claims to own.

In his founding affidavit, in casu, the first applicant explains, in part, as follows:

“8. On the 7^th of March 2008, I together with 2^nd Applicant filed a Court Application before this Honourable Court, seeking an order for specific performance against the 1^st and 2^nd Respondents, among other things. The order was granted in default and has since been rescinded by this Honourable Court. Parties are back to the previous status quo.

I beg leave to refer to the pleadings in 1393/08 as if specifically traversed herein. At the time of the issuing of the said application the 2^nd Respondent had in her possession on the Share Certificates reflecting her as the sole shareholder of the 1^st Respondent, the Company owning Stand 12896 Salisbury Township measuring 3,066 square metres also known as No.98 Churchill Avenue, Gunhill, Harare. I together with 2^nd Applicant, entered into an agreement to buy the said shares to facilitate ownership and control of Stand 12896 Salisbury Township measuring 3,066 square metres also known as No.98 Churchill Avenue, Gunhill, Harare.

However, it subsequently came out that the 2^nd Respondent had later purported to issue and sell the same shares in the 1^st Respondent to the 6^th Respondent, John Legett, without our knowledge. Therefore, the said John Legett clearly has an interest in the outcome of the Case No. HC1398/08 which seeks to have us declared the true shareholder of the 1^st Respondent and subsequently, the process of Stand 12896 Salisbury Township measuring 3,066 square metres also known as No.98 Churchill Avenue, Gunhill, Harare at 6^th Respondent's expense.

9. The 2^nd Applicant and I insist that we are the rightful shareholders in 1^st Respondent and believe that the purported transfer to John Legett was improper and a legal nullity.

We would want the court to rule that purported sale of the shares to John Legett be deemed null and void and it is only proper that the 6^th Defendant/Respondent be given an opportunity to give his side of the story.

10. Therefore, it is necessary that the 6^th Respondent, John Legett, be joined in this case to enable us to enforce the order we are seeking before this Honourable Court. In fact, the Court can properly determine the issue of the purported sale of shares to the 6^th Respondent by the 1^st and 2^nd Respondents as all the interested parties would be before it.”

Indeed, the relief sought in the main matter is the one reproduced in full at page 2 of this judgment. In the main, the applicants pray for the transfer of the property in dispute to themselves.

In the main matter, (HC1393/08), the opposing affidavit sworn to by the sixth respondent states, in part, as follows:-

“(a)…,.

(b) The 2^nd Respondent's interest in this matter ceased on the 28^th of May 2008 when 2^nd Respondent sold and transferred to me her two shares in the 1^st Respondent. I must mention that by this date I already held 98 shares in the 1^st Respondent.

(c) As from 11 December 2007 I had been the majority shareholder in the 1^st Respondent as I had ninety eight shares. Following the agreement of 28 May 2008 I had then assumed 100% shares of the 1^st Respondent.

(d)…,.”

The above is consistent with other averments made in the rescission application (HC4211/08) and already quoted in this judgment.

Notwithstanding the sixth respondent's clear interest in the main matter, (HC1393/08), he remains opposed to the joinder.

In his opposing affidavit in the main matter the sixth respondent states as follows:-

“4. The First Applicant has deliberately misrepresented the relevant facts of this matter which facts are well known to him. Undoubtedly, he has chosen to adopt a course based on incorrect and incomplete facts in order to justify this extremely belated application for joinder.

5. It is correct that on 7 March 2008 the Applicants instituted a Court Application in Case No. HC1393/2008. I was not cited as a party in that application. In that matter, the Applicants sought an order, without any factual or legal basis, for the transfer of the property in Churchill Avenue from the name of the First Respondent into their personal names. There had not been any proper service of the papers in the matter on the First Respondent, but, notwithstanding, a judgment in default was granted.

6. As soon as I learnt to the default judgment, I caused an application for rescission of that default judgment to be made on behalf the First Respondent, which was Case No. HC4211/2008. It was an application brought, in the main, by the First Respondent, for the rescission of the judgment obtained without notice or proper service and without any basis for the transfer to the Applicants of the property belonging to the First Respondent.

7. However, that application was referred to trial by the Honourable Mr Justice Patel on 24 September 2009 and the parties were directed to file pleadings. Among the pleadings filed was one termed “1^st and 2^nd Defendants' Counterclaim', filed on behalf of the present Applicants on 2 November 2009. In the so-called Counter-claim I was cited as the Second Defendant, and the relief sought in that Counterclaim was, in essence, precisely the same relief as is now being sought through the application for joinder. I attach a copy of that so-called Counter claim as Annexure “A” for the benefit of this Honourable Court.

Objection was taken to the attempt to join me as a party as none of the original papers had been served on me, and the legal practitioners representing the present Applicants thereafter withdrew the so-called Counterclaim. When the trial took place earlier this year before the Honourable Mr Justice Mafusire there was no claim made by the present Applicants against me in my personal capacity.

8. The result of that trial, handed down on 19 March 2014, was that the judgment given in default was set aside. Subsequent thereto, on 2 April 2014, I caused to be filed on behalf of the First Respondent the necessary opposing papers to the application brought in Case No. HC1393/2008, together with a counter-application for the eviction of the Applicants from the property belonging to the First Respondent.

The response thereto, on behalf of the Applicants, was to file, on 8 May 2014, the Applicants filed an opposing affidavit to the counter-application. The delay in filing that opposing affidavit had been the subject of correspondence between Gill, Godlonton & Gerrans and Sawyer & Mkushi. As agreement had been reached to allow the late filing of the Opposing Affidavit I make nothing of that delay.

10. On 30 May 2014, Heads of Argument for the Applicants were filed in Case No. HC1393/2008. I am advised that these Heads of Argument were filed out of time and that issue will be raised at the hearing of the application. Some five business day later the present application for joinder was filed and served.

12. The papers in Case No HC1393/2008 are now closed and the matter ready for hearing, rendering it inappropriate to reopen all those papers simply because the Applicants have eventually decided to bring an application for joinder. Most certainly, the Applicants have had since 19 March 2014 to make any such application, but have delayed, I would suggest, deliberately, until 6 June 2014 to bring that application in order to extend their unlawful occupation of the house in Churchill Avenue. It is also intended to interfere with the administration of justice and the proper determination of the issues raised in Case No. HC1393/2008.

11.3 Furthermore, more than three years have elapsed since the Applicants knew that I had entered into two agreements relating to the shares of the First Respondent. Those details had been set out in the founding papers which I caused to be filed on behalf the First Respondent in Case No. HC1393/2008 as long ago as 22 August 2008. I am therefore advised that the claim purported to be brought by way of the joinder application is prescribed and cannot be pursued.”

I take note of the withdrawal of the counter-claim wherein the sixth respondent had been cited.

In addition to the above objections, which I have, for the purpose of clarity, quoted at length, during the hearing of this application the sixth respondent raised another issue. It was an issue of law and the submission was:-

“19. The Form 29 used to institute this present application for joinder specifically states that the application is made in terms of Order 13 Rule 85 of the High Court Rules 1971. This reads:

'85. Subject to Rule 86 two or more persons may be joined together in one action as plaintiffs or defendants whether in convention or in reconvention where -

(a) If separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and

(b) All rights to relief claimed in the action, whether they are joint, several or alternative, are in respect of or arise out of the same transaction or series of transactions.

The Rule clearly applies solely to actions and not to applications. It is submitted that there has been no extension of this Rule in the procedure relating to applications. Therefore, the attempt to make an application in terms of Rule 85 in the present circumstances was ill-founded.

21. This is not to say that in application procedures and Order 32 the Court cannot order the joinder of an interested party. But it does mean that any such joinder cannot be to permit substantive relief different to that sought in the founding application to be claimed.”...,.

With regards to the legal issue, I acknowledge the fact that both Rules 85 and 87 appear to confine themselves to actions. However, I take the view that a rigid construction of those Rules will result in a miscarriage of justice. I therefore believe that reference to “any cause” in Rule 87 should enjoy a wider and encompassing meaning. In that case, an interested party can join or be joined as long as the matter is yet to be determined i.e. at any stage. It would therefore, in the circumstances, be appropriate to invoke Rule 4C of the High Court Rules 1971 which provides as follows:-

“4C. Departures from Rules and directions as to procedure

The court or a judge may, in relation to any particular case before it or him, as the case may be –

(a) Direct, authorize or condone a departure from any provision of these Rules, including an extension of any period specified therein, where it or he, as the case may be, is satisfied that the departure is required in the interests of justice;

(b) Give such directions as to procedure in respect of any matter not expressly provided for in these Rules as appear to it or him, as the case may be, to be just and expedient.”

In view of the foregoing and given the fact that this court can manage its own Rules in order to render justice to litigants, I am unable to accept that an application for joinder cannot be made in a matter/cause brought by way of application. That, in my view, would be an unfair law.