The applicant, one Lovedale Mangwana (“Mangwana”), filed this application through the urgent Chamber Book.
He filed it in terms of Rules 59(6) and 107 of the High Court Rules 2021.
He is moving me to grant him a declaratur and consequential relief.
He premises his application on section 85(1) of the Constitution of Zimbabwe as read with section 23(3) of the Electoral Act [Chapter 2:13] (“the Act”).
His suit is against one Saviour Kasukuwere (“Kasukuwere”) whom he cites as the first respondent and also against the Zimbabwe Electoral Commission (“the Commission”) and the Minister of Justice, Legal and Parliamentary Affairs (“the Minister”) who are, respectively, the second and third respondents herein.
His bone of contention is that the Commission, which sat as the Nomination Court on 21 June 2023, acted in error when it accepted Saviour Kasukuwere's nomination paper for election to the office of the President of Zimbabwe in the election which shall be held on 23 August 2023.
He insists that Saviour Kasukuwere, whom he claims was out of Zimbawe for more than eighteen (18) consecutive months, is, in terms of section 23(3) of the Electoral Act, no longer a registered voter.
He claims, that, as a person who ceased to be a registered voter, Saviour Kasukuwere cannot vote in the forthcoming election, and, because he cannot vote, he cannot be voted into any public office, let alone that of the President of Zimbabwe.
He, accordingly, seeks a declaration which is to the effect that the decision of the Nomination Court, which accepted Saviour Kasukuwere's papers as a candidate for election to the office of the President of Zimbabwe, violated section 91(1)(d) of the Constitution of Zimbabwe as read with section 23(3) of the Electoral Act.
The decision, he alleges, is a violation of his rights as contained in section 67(1)(a) and 67(1)(d) of the country's Constitution.
He, in short, moves me to grant him an order which is to the effect that Saviour Kasukuwere cannot be a candidate for election to the office of the President of Zimbabwe in the 23rd August 2023 plebiscite. He moves me, in consequence, to direct the Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) not to include the name of Saviour Kasukuwere in their preparation of ballot papers which will be used in the electoral process of 23 August 2023. He moves me, further, to interdict Saviour Kasukuwere from holding himself out to the public and to the electorate in this country, as well as abroad, physically or through any form of media, as a Presidential candidate for the forthcoming election.
Saviour Kasukuwere opposes the application.
The Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) did not file any notice of opposition. The Commission filed what it terms its notice to abide with the decision of the court. It filed the notice on 30 June 2023.
My view is that the Minister is also of the same view.
The non-attendance of the Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) leaves Lovedale Mangwana and Saviour Kasukuwere in the question.
Saviour Kasukuwere raises five (5) in limine matters, after which he proceeds to deal with the merits of the application. The preliminary issues which he raises are that:
(i) The court does not have the jurisdiction to hear and determine the matter;
(ii) The application is one for review which is disguised as a declarataur;
(iii) Lovedale Mangwana does not have what is normally referred to as the locus standi in judicio;
(iv) Lovedale Mangwana approached the court in terms of an incorrect law and in an incompetent forum; and
(v) Lovedale Mangwana violated the principle of subsidiarity.
He denies, on the merits, that he was out of his constituency, and, therefore, out of Zimbabwe, for more than eighteen (18) consecutive months.
He challenges Lovedale Mangwana to prove the allegation which he (Lovedale Mangwana) is making.
He avers that he is duly nominated to be a Presidential candidate in the forthcoming general election because he meets the legal requirements for nomination.
He challenges Lovedale Mangwana to state the manner in which his candidature would affect Lovedale Mangwana's constitutional rights.
He insists that he has a local address where he resides and is domiciled.
He claims that he left Zimbabwe on a temporary basis on medical grounds.
He avers that he is a registered voter and that the Zimbabwe Electoral Commission (the Commission) verified his address in terms of section 23(3) of the Electoral Act.
It is his appearance on the voters roll which makes him compliant with section 91 of the Constitution of Zimbabwe, according to him.
He alleges that he appears on the voters roll of Ward 40, Pfura Rural District Council, Mount Darwin South Constituency. He gives Chiunye Primary School A as his polling station.
He claims that Lovedale Mangwana makes bare allegations regarding his absence from Zimbabwe.
He contends that Lovedale Mangwana has not established any right which the court should protect.
Lovedale Mangwana has not, according to him, shown that he is a registered voter in the ward or the constituency he alleges to be registered. He insists that his inclusion on the ballot paper does not interfere with Lovedale Mangwana's right to vote.
Lovedale Mangwana, he claims, has not set out any substantial interest in the matter nor a factual cause to motivate the relief which he seeks.
There is, according to him, no legal basis for the Zimbabwe Electoral Commission's conduct to be set aside, and, consequently, for his nomination to be quashed.
He insists that the application does not meet the requirements of urgency.
Lovedale Mangwana, he avers, should have engaged the processes in terms of the Electoral Act well before 21 June 2023. The conduct of Lovedale Mangwana, he claims, is self-inflicted urgency.
He alleges that the application is no more than Lovedale Mangwana's attempt to curtail his right as it is provided for in section 67 of the country's Constitution.
He moves me to dismiss the application with costs which are at attorney and client scale.
The application succeeds.
ELECTION AND THE LAW
An election is, by its nature, a very emotive subject. Once it is at hand, people push and shove each other. They do so with one object in mind. They do so to either get into, or deny others from, entering or participating in the electoral race.
More often than not, the protagonists fail to find each other.
Where such occurs, they take each other to court which will resolve the dispute between them.
The court takes no side. All it does is to listen to the respective narratives of those who have approached it, the facts of each in particular, apply the relevant law to the same, and render a decision which, in its view, accords with the applicable law.
In this jurisdiction, a judicial officer wears two hats during the period which leads onto, during, and after an election.
Depending on the facts of the case, the judicial officer can sit as an ordinary court or as an electoral court.
The position which he/she assumes largely depends on the substance of the suit which the parties place before him/her.
Because the case can fall into one law and its rules to the exclusion of the other law and its rules, it more often than not occurs that one litigant, plaintiff or applicant, files his/her case under one law and its rules which, from a prima facie perspective, are divorced from the substance of the case.
Where the litigant does so, he/she creates fertile ground for his/her adversary, defendant or respondent, who will be quick to tell the court that the litigant's suit is misplaced. Misplaced in the sense, that, it should have been lodged in terms of the other law and its rules.
APPLICATION
What I stated in the foregoing paragraphs of this judgment applies to the current application, whose substance is that of an electoral matter which has been filed in terms of the High Court Act and its rules and not in terms of the Electoral Act and its rules.
Lovedale Mangwana's adversary, for instance, remains of the view that the same should have been filed under the latter, and not the former piece of legislation.
Whether or not the stated matter reflects the correct position of the law depends, in a large measure, on the substance of the application, which, as is evident from Lovedale Mangwana's founding papers, is one for a declaratur and consequential relief.
It is pertinent for me, at this stage, to deal with Lovedale Mangwana's application.
In doing so, I remain alive to the preliminary issues which Saviour Kasukuwere raises.
Those technical issues are allowed by law. They are more often than not raised by the parties legal practitioners who are schooled in substantive law as well as in the law of practice and procedure.
The issues colour the case of the parties for better or for worse. Where they are properly raised, they have the effect of stifling the suit of the plaintiff or the applicant to a point where no further debate of it may be entertained by the court. They cannot therefore be wished away. They should be taken account of on the basis of the audi alteram partem rule which, simply considered, enjoins a court to hear both parties before it determines their dispute.
IN LIMINE MATTERS
APPLICATION IS A REVIEW DISGUISED AS A DECLARATUR
Whilst a review and a declaratur are intertwined, and at times, confusing to a student of law, the same are not synonymous. They are separate and distinct one from the other.
A review seeks to impugn a decision which has been made by a court of inferior jurisdiction, a quasi-judicial office, or an administrative authority. It has its domain in section 26 of the High Court Act as read with Rule 62 of the High Court Rules 2021.
In terms of the law of practice and procedure, an application for review states the grounds of review and the relief which the applicant moves the court to grant to him or her.
A declaratur, on the other hand, relates to rights of persons qua persons. These may be existing, future, or contingent in nature.
The Electoral Court, upon which Saviour Kasukuwere places reliance is a creature of statute. Its powers are circumscribed in section 161 of the Electoral Act. The section reads:
“(1) There is hereby established a court, to be known as the Electoral Court, which shall be a court of record.
(2) The Electoral Court shall have exclusive jurisdiction -
(a) To hear appeals, applications, and petitions in terms of this Act; and
(b) To review any decision of the Commission or any other persons or purporting to have been made under the Act and shall have power to give such judgments, orders, and directions in those matters as might be given by the High Court: provided that the Electoral Court shall have no jurisdiction to try any criminal case.
(3)…,.”
It is on the strength of the above cited subsections of section 161 of the Electoral Act that Saviour Kasukuwere insists that the application is one for review which is disguised as a declaratur.
He submits, erroneously in my view, that, the decision which the Zimbabwe Electoral Commission (the Commission) made in the exercise of its powers is judicial in character and therefore reviewable.
The catch words, according to him, is that the Electoral Court has exclusive jurisdiction to hear appeals, applications, and petitions in terms of the Electoral Act.
He submits further, that, because the dispute which Lovedale Mangwana placed before me emanates from the process that was conducted in terms of the Electoral Act, it is the Electoral Court, and not the High Court, that can deal with it.
What Saviour Kasukuwere fails to appreciate is that, as a creature of statute, the Electoral Court does not have the capacity to act outside the four corners of its enabling law.
The law allows it to hear and determine applications, among other matters. It does not confer upon it the jurisdiction to hear urgent court applications.
That matter is not provided for in the Electoral Act or in its Rules. It is, however, present in the High Court Act and its Rules.
Hence, the view is that the argument of Saviour Kasukuwere, on this aspect of the case, is misplaced.
As Lovedale Mangwana correctly submits, the contention that the application is a disguised review is difficult to comprehend.
It is not such.
It does not raise any grounds of review. It is filed in terms of Rule 107 and not Rule 62 of the rules of court.
The fact that a review could have been brought does not detract from the fact that it is an application for a declaratur.
It cannot be brought as a review under the Electoral Act because the same does not make provision for declaraturs.
Further, a review under the Electoral Act has no remedy for a declaratur.
The remedy for such is under the High Court Act and its Rules and not under the Electoral Act and its Rules.
The stated matter is moot.
The in limine matter is, therefore, devoid of merit and it is dismissed....,.
Saviour Kasukuwere does not come out clearly on what he intends to convey by this preliminary point.
He seems to suggest, that, Lovedale Mangwana should have proceeded in terms of the Electoral Act and its Rules as well as in the Electoral Court and not in this court.
If my understanding of this in limine matter is on all fours with what I have stated, then, I shall not repeat myself on the same.
I shall not do so because I traversed that aspect of the case extensively when I considered the in limine matter which he raised on the allegation that the application is one for review which is disguised as a declaratur.
I gave reasons as to why the current application cannot fall under a review as well as why it should be considered in the form and substance that Lovedale Mangwana filed it.
I state, for the avoidance of doubt, that, the application employed the correct law and is properly placed in the High Court, and not in the Electoral Court.
The preliminary point is therefore devoid of merit and it is dismissed as well.
