On 28 July 2023, this Court dismissed, with no order as to costs, an appeal against the judgment of the High Court under judgment number HH418-23 dated 12 July 2023.
At the end of the proceedings, this Court indicated that the reasons for this decision would be availed in due course. Set out hereunder are the Court's reasons thereof.
THE PARTIES
The appellant is a prospective Presidential candidate in the forthcoming Presidential Election slated for 23 August 2023. The first respondent is a registered voter in Ward 1 Mhondoro Ngezi Constituency. The second respondent is the Zimbabwe Electoral Commission (ZEC), established in terms of section 238 of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 (the Constitution). It is responsible for the administration of elections in Zimbabwe. The third respondent is the Minister of Justice, Legal and Parliamentary Affairs. He is cited in his official capacity.
FACTUAL BACKGROUND
The facts founding the instant appeal are as follows:
On 21 June 2023, the appellant, amongst other prospective candidates, successfully lodged his nomination papers as a Presidential candidate before the Nomination Court. The first respondent became aware of the appellant's nomination and acceptance of candidature through the social media.
He took exception to the acceptance of the appellant's candidature.
In a letter dated 22 June 2023, addressed to the Chief Elections Officer, the first respondent stated, that, the appellant had not been resident in his constituency, and in the country, for a continuous period of eighteen (18) months.
He further stated, that, the appellant did not therefore meet the requirements set out under section 91(c)–(d) of the Constitution.
He also stated that section 23(1) and (3) of the Electoral Act [Chapter 2:13] (the Act) mandated that a registered voter ceased to be retained on the voters roll if he had not resided in that constituency for a continuous period of eighteen (18) months.
In reply to the letter, the second respondent advised the first respondent to approach the Electoral Court for relief.
The first respondent, thereafter, filed, in the High Court, an urgent court application under section 85(1)(a) of the Constitution alleging that his fundamental rights under section 56(1), section 67(1)(a) and 67(3) had been violated.
He contended, that, the decision of the Nomination Court to accept the nomination for candidature of the appellant violated section 91(1)(c)–(d) as read together with paragraph 1(2) of the 4th Schedule to the Constitution as read with section 23(3) of the Electoral Act.
The first respondent averred, that, he approached the High Court as he was of the view that the Electoral Court does not have the jurisdiction to issue declaratory relief.
He further averred, that, the Electoral Act and Electoral (Applications Appeals and Petitions) Rules 1995 (S.I.74A of 1995) (the Electoral Rules) did not provide him with any relief.
In opposing the application, the appellant raised several preliminary objections:
He stated, that, the court a quo did not have the jurisdiction to hear and determine electoral matters in which the Electoral Court has exclusive jurisdiction. He argued, that, the first respondent could have proceeded in terms of section 28(1) and 33(1) of the Electoral Act.
He further stated, that, the first respondent had no locus standi to bring the application.
The appellant further alleged, that, the first respondent approached the court a quo on wrong choice of law, and in violation of the principle of subsidiarity.
On the merits, the appellant stated that the first respondent failed to show how the decision of the Nomination Court violated his constitutional rights.
The appellant admitted that he temporarily left the country on medical grounds but denied that he was out of the country for a continuous period of eighteen (18) months.
The second respondent filed a notice indicating that it would abide by the decision of the court a quo.
FINDINGS BY THE COURT A QUO
On the preliminary points raised, the court a quo made the following findings:
(a) On jurisdiction, that it had jurisdiction in terms of section 171(1)(a) and (c) as read with section 85(1) of the Constitution;
(b) In respect to locus standi of the first respondent, it found that he had the locus by virtue of section 85(1)(a) of the Constitution, which accords an individual the right to approach a court alleging a violation of his fundamental rights;
(c) On wrong choice of law, it found that the Electoral Court does not have the necessary jurisdiction to issue declaratory orders. It further found, that, the application was not a review disguised as a declarator as the first respondent had no remedy of review under any other law; and
(d) On the question of breach of the principle of subsidiarity, it held that the first respondent had no other remedy under any other law but to approach a court under section 85(1)(a) of the Constitution.
On the merits, the court a quo made the following findings:
(a) That, once the first respondent had made a negative averment, which was admitted by the appellant, that the appellant had left the country, the onus shifted to the appellant to prove that he was not out of the country and his constituency for a continuous period of eighteen (18) months;
(b) That, the appellant had failed to discharge the reverse onus placed upon him;
(c) In interpreting section 23(3) of the Electoral Act, it held that once a person is absent from the country, and, therefore his/her constituency, for the prescribed period, he/she is deemed, by operation of law, to have ceased to be a registered voter.
It further found, that, cessation of registration as a voter in turn disqualifies one from nomination as a Presidential candidate;
(d) That, the appellant was not resident in the country, and, as such, not resident in his constituency for a continuous period of eighteen (18) months.
Accordingly, the court found, that, the appellant had ceased to be a registered voter, and, consequently did not qualify for nomination as a Presidential candidate.
Following the above findings, the court a quo issued the following order:
“IT IS DECLARED:
1. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 was a violation of the provisions of section 91(1)(c) and (d) read together with paragraph 1(2) of the Fourth Schedule of the Constitution of Zimbabwe 2013 as further read together with section 23(2) of the Electoral Act.
2. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 is in violation of applicant's constitutional rights as set out in sections 56(1), 67(2)(a) and 67(3)(a) of the Constitution of Zimbabwe 2013.
3. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 is declared null and void and of no force and effect and hereby set aside.
4. That, first respondent is not a candidate for election to the office of President of Zimbabwe in the elections scheduled to be conducted on 23 August 2023.
ACCORDINGLY, IT IS ORDERED:
5. Second and third respondents shall not include the name of first respondent in the preparation of ballot papers to be used in the elections scheduled to be conducted on 23 August 2023.
6. First respondent is interdicted from representing of holding himself out to the general public and electorate in Zimbabwe of abroad, whether physically or through any form of media, as a candidate for election to the office of the President of Zimbabwe in elections scheduled to be held on 23 August 2023.
7. Each party shall bear its own costs.”
Dissatisfied with the court a quo's decision, the appellant filed the instant appeal on the following grounds:
“GROUNDS OF APPEAL
1. The court a quo erred at law in finding that it had the requisite jurisdiction to deal with the matter when the dispute before it clearly emanated from the Electoral Act [Chapter 2:13], and, in particular, sections 23, 28 and 33 thereof.
2. By finding that the 1st respondent had locus standi in judicio and adopting a liberal approach to it in a clearly non-constitutional matter, the court a quo committed an error at law which must be impeached by this Court.
3. By finding that the General Notice 1128-2023 made in terms of section 106 of the Electoral Act [Chapter 2:13] did not constitute law, the court a quo grossly erred and misdirected itself as it ignored the provisions of section 15A and 20 of the Interpretation Act [Chapter 1:01].
4. By entertaining the application on constitutional basis as it did, the court a quo erred and violated the constitutional principle of subsidiarity as it ignored specific provisions in the Electoral Act [Chapter 2:13], Administrative Justice Act [Chapter 10:28] and/or common law, which provide specific, adequate, and satisfactory remedies to the 1st respondent.
5. A fortiori, the court a quo erred in making an uncanny finding, that, the decision of the Nomination Court did not constitute a reviewable decision at law thereby dismissing the preliminary point that the application was a disguised review process.
6. The court a quo further erred in placing reverse onus to the appellant to prove his residence status in violation of the law and in complete disregard of the averments that were made by the 1st respondent in evidence.
7. Further, the court a quo erred in making a finding that the averments pertaining to the residence status of the appellant, as made by the 1st respondent, were in the negative thereby improperly applying the law.
8. Related to ground number 7 above, the court a quo grossly misdirected itself in making a factual finding that the appellant was not or has not been in the country for a period stipulated in section 23(3) of the Electoral Act in the absence of evidence establishing the same.
9. In taking purported judicial notice of the alleged absence of the appellant from Zimbabwe, the High Court erred, in using the principle of judicial notice to assist the 1st respondent in discharging an onus that he had miserably failed to establish on the founding papers.
10. The court a quo erred and misconstrued section 23 of the Electoral Act in deeming the appellant removed from the voters roll without having regard to section 28 of the same which posits a process which must be followed in removing a registered voter from the voters roll thereby disqualifying him as a Presidential candidate for the forthcoming plebiscite.
11. All in all, the court a quo erred at law by granting as it did, an unspeaking order with the result that no one knows what relief exactly was granted in the absence of an un-issued draft order which does not form part of the disposition of the judgment.
12. The court a quo erred at law in granting an application without making a positive finding on the infringement of section 67 of the Constitution.
RELIEF SOUGHT
The appellant prays that the appeal be allowed with costs and that the judgment of the court a quo, handed down under EC10/23, on 12 July 2023, be set aside and in its place and stead thereof be substituted with the following:
'IN THE MAIN, the court declines its jurisdiction.
IN THE ALTERNATIVE, the application is struck off the roll with costs.
IN THE ALTERNATIVE, the application is dismissed with costs on an attorney-client scale.'”
By consent, the above grounds were amended by adding the following:
“13. In dealing with the question of the perceived absence of the appellant from a constituency, and not cessation of residence in a constituency, the court a quo erred, and, by so doing, conducted a wrong enquiry leading to a judgment that is contrary to the dictates of section 23(3) of the Electoral Act.
The court a quo erred at law in disposing of the matter before it on the basis of perceived absence from a constituency when the law upon which the application was predicated, section 23(3) of the Electoral Act, relates to cessation to reside in a constituency, a totally different concept that has its own different requirements.”
PROCEEDINGS BEFORE THIS COURT
Prior to the hearing of this appeal, the appellant had, by letter dated 21 July 2023, and addressed to the Registrar, requested the appointment of a five-member Bench to determine whether or not the case of Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21 was properly decided.
At the commencement of the proceedings, the appellant abandoned the request and submitted that the matter should proceed before the Bench as constituted.
Counsel for the second and counsel for the third respondent submitted that they would abide by the decision of the court....,.
APPELLANT'S RESIDENCY STATUS
The appellant submitted as follows:
The first respondent made a bare averment in his founding affidavit before the court a quo that the appellant was outside the country, without providing any evidence. This is a positive averment, and, therefore, the first respondent had the onus to prove that the appellant was out of the country.
Whilst conceding that the appellant was out of the country temporarily on medical grounds, the concession was not a basis for reversing the onus.
The court a quo was therefore wrong in finding that the appellant had reverse onus.
It was further submitted as follows:
The court a quo misconstrued section 23(3) of the Electoral Act. The said provision relates to cessation of registration as a voter as opposed to absence from the country and constituency.
The first respondent's founding affidavit was premised on absence.
The court a quo embarked on a wrong inquiry, whether the appellant was absent from the country and his constituency instead of inquiring into whether he had ceased to be a voter.
Further, that section 23 of the Electoral Act is not a deeming provision.
It does not render the appellant automatically removed from the voters roll.
Section 28 of the Electoral Act is the relevant provision that ought to be engaged in order to remove a registered voter from the voters roll - after complying with the procedure set out thereunder.
The failure by the first respondent to engage the procedure set out in section 28 of the Electoral Act was detrimental to his case.
In response, the first respondent submitted as follows:
The averment by the first respondent, that the appellant was not in the country, was a negative averment. Such an averment could not be proved by the first respondent.
Once the appellant conceded, as he did in his opposing affidavit, that he had indeed left the country it was incumbent upon him to state when he returned.
It was submitted, that, the interpretation of section 23(3) of the Electoral Act has been interpreted by the Constitutional Court in a number of cases, and the Supreme Court is therefore bound by the decisions in those cases.
The crux of the appellant's complaint on this issue is that the court a quo arrived at an incorrect factual conclusion regarding whether or not he was in the country and his constituency for a continuous period of eighteen (18) months.
This Court finds, that, the court a quo was correct in finding, as a fact proved, that the appellant was outside the country, and, therefore his constituency, for a continuous period of eighteen (18) months.
Section 91(1) of the Constitution sets out the factual premise that must be satisfied regarding the residency status of a Presidential candidate. It is worded as follows:
“91 Qualifications for election as President and Vice-President
(1) A person qualifies for election as President or appointment as Vice-President; if he or she —
(a) Is a Zimbabwean citizen by birth or descent;
(b) Has attained the age of forty years;
(c) Is ordinarily resident in Zimbabwe; and
(d) Is registered as a voter.”…,.
It is apparent from the above that a person aspiring to be a President must be ordinarily resident in Zimbabwe and must be a registered voter.
The question to be answered is whether the appellant was ordinarily resident in Zimbabwe and a registered voter at the time the Nomination Court accepted his nomination as a Presidential candidate for the forthcoming elections.
The first respondent's contention is that the appellant had not been resident in Zimbabwe for a continuous period of eighteen (18) months and had therefore been deemed to have ceased to be a registered voter.
The appellant conceded leaving the country, temporarily, for purposes of receiving medical care.
The Court agrees with the first respondent's submissions.
It is trite that what is admitted need not be proved.
Therefore, this Court holds that once the appellant conceded that he left the country, and, therefore, his constituency, the onus shifted to him to prove that he was not absent from the country and his constituency for a continuous period of eighteen (18) months.
This is so because this is information which is specifically within his knowledge.
As was stated in Musanhi v Mt Darwin Rushinga Co-operative Union 1997 (1) ZLR 120 the question whether an averment is positive or negative is not material. GUBBAY CJ remarked at p123 that:
“The learned Judge President took the view, that, as the respondent could not be required to prove a negative, that is, non-delivery, the onus was on the appellant to prove the deliveries on a preponderance of probabilities. This he had failed to do. Counsel for the appellant argued before this court, that, it is not a rule of our law that the onus of proof cannot lie upon the party who makes a negative allegation. It still has to be determined who can be said to assert and who to deny.
I agree with that submission.
It is not very helpful, in my opinion, to ask whether a party is making a positive or negative allegation. This is because by adroit linguistic manipulation a positive averment can always be couched into a negative statement: see Hoffmann and Zeffertt South African Law of Evidence 4ed at 511.
I prefer, and commend, the approach of Grosskopf JA in Eskom v First National Bank of Southern Africa Ltd 1995 (2) SA 386 (A) where, at 392D-E, the learned Judge of Appeal remarked:
'It has often been said that determining the incidence of the onus of proof 'is merely a question of policy and fairness based on experience in the different situations:' Wigmore as quoted in Mabaso v Felix 1981 (3) SA 865 (A) at 873C and During NO v Boesak & Anor 1990 (3) SA 661 (A) at 673A.
As a matter of fairness and sound judicial policy, it seems reasonable, that, where one party has the means of establishing a particular fact and his opponent not, the onus should rather be on the former than on the latter. Although this factor would not be conclusive, it should, in my view, be accorded some weight. It was taken into consideration in Mabaso's case supra at 873E-F in determining the onus in civil cases where a defendant relies on self defence as a justification for what would otherwise be an assault.'
And continued at 393D-F:
'…,. It is not a principle of our law that the onus of proof of a fact lies on the party who has peculiar or intimate knowledge or means of knowledge of that fact. The incidence of the onus is determined by law. In many cases, the person burdened by the onus, as laid down in the sources of our law, may be required to prove a fact which is peculiarly within the knowledge of his adversary. This does not, however, mean that a court, where the incidence of the onus of proof in a particular situation is uncertain and has to be determined, may not have regard, inter alia, to matters of practical convenience and fairness such as the sources of knowledge available to the rival parties.'”…,.
The court a quo cannot be faulted for holding that the appellant had the onus of proving when he returned to the country as the evidence of his return was in his exclusive knowledge.
It is common cause that the appellant is not within the country.
The court a quo was correct in taking judicial notice, as this Court also does, of the fact that all the appellant's affidavits, in relation to this matter, are being notarised from South Africa.
The appellant failed to discharge the onus cast upon him.
The court a quo was therefore correct in making a factual finding that the appellant was not in the country, and his constituency, for a continuous period of eighteen (18) months.
It is trite that this Court does not lightly interfere with factual findings of a lower court: see Barros v Chimphonda 1999 (1) ZLR 58.
The court a quo thus properly exercised its discretion in making the factual finding, and, there is no basis upon which it can be impugned.
Section 23(3) of the Electoral Act provides:
“(3) A voter who is registered on the voters roll for a constituency, other than a voter who has been registered in that constituency in terms of the proviso to subsection (1), shall not be entitled to have his or her name retained on such roll, if, for a continuous period of eighteen months, he or she has ceased to reside in that constituency: Provided that nothing in this subsection shall prevent his or her name from being struck off such voters roll —
(a) On his or her being registered in another constituency; or
(b) If he or she becomes disqualified for registration as a voter.”…,.
The import of the provision was considered in the case of Bukaibenyu v The Chairman of the Zimbabwe Electoral Commission & Ors 2017 (1) ZLR 7 (CC), wherein MALABA DCJ…, held at 10H-A that:
“Section 23(3) required that a voter be ordinarily resident in the constituency in which he or she was to vote for purposes of being qualified for registration on the voters roll for that constituency. If the voter became absent from the constituency in which he or she was registered as a voter for a continuous period of twelve months, his or her name had to be removed from the voters roll of that constituency as he or she would be deemed to have ceased being a resident of that constituency.”…,.
See also Shumba & Ors v Minister of Justice, Legal and Parliamentary Affairs 2018 (1) ZLR 509 (CCZ).
Thus, it is apparent that section 23(3) of the Electoral Act is a deeming provision.
The import of the provision is that cessation of registration on the voters roll is an inescapable consequence of one's absence from his constituency for a continuous period of eighteen (18) months.
In other words, once a registered voter is absent from his constituency for the prescribed period, he automatically ceases to be a registered voter.
The appellant's contention, that he was absent from his constituency on medical grounds, appears to be premised on section 33(3) of the Electoral Act which provides:
“(3) In determining the period of absence of any person for the purposes of subsection (2), no account shall be taken of any period during which the person -
(d) Resides outside Zimbabwe on account of ill health and disability.”
That section relates to instances where the voter registration officer considers whether a voter has become disqualified for registration as a voter.
In those circumstances, the onus lies on the appellant to prove the reason for absenteeism.
Apart from his mere say so, the appellant did not produce any evidence to show that he was temporarily absent from his constituency on medical grounds for the duration of the prescribed period.
As correctly found by the court a quo, the appellant failed to prove that he was out of his constituency on medical grounds.
Proof of his absence, on medical grounds, was within his personal knowledge.
The appellant's absence therefore resulted in him being deemed to have ceased to be a registered voter by operation of law.
Accordingly, there is no merit in the appellant's appeal on this issue....,.
DISPOSITION
In summing up, this Court has made the following findings, that:
1. It has jurisdiction to hear and determine the appeal;
2. The court a quo had the jurisdiction to hear and determine the constitutional application before it in terms of section 85(1) of the Constitution, and, the question of subsidiarity does not arise;
3. The Electoral Court had no jurisdiction to issue a declarator;
4. The first respondent had locus standi;
5. The court a quo made the correct factual finding, that the appellant was absent from the country and therefore absent from his constituency for a continuous period of eighteen (18) months;
6. The court a quo correctly interpreted section 23(3) of the Electoral Act, to the effect that the appellant's absence from his constituency for the prescribed period entailed cessation of his registration as a voter, and, consequently, disqualified him from nomination as a Presidential candidate.
The above findings of fact and law are dispositive of the appeal, and, it is therefore not necessary to relate to other issues raised by the appellant.
That being the case, and on the basis of such findings, the appeal cannot succeed. This being a constitutional matter, it is customary not to award costs.
It was for the foregoing reasons that this Court dismissed the appeal with no order as to costs.
