UCHENA J: The applicant was an aspiring MDC T candidate for
the council by-election for Ward 12 Gweru, which was scheduled for 12 April
2014. He on 10 April 2014 filed an urgent application in the High Court, for an
interdict against the holding of that by-election under the conditions which
had been communicated to his lawyers by the third respondent.
The first respondent was the aspiring ZANU PF candidate.
The second respondent was the aspiring candidate for the National
Constitutional Assembly party. The third respondent is the Chief Elections
Officer. The fourth respondent is the Registrar General of Voters.
The applicant's application was triggered by the third
respondent's reply dated 25 March 2014, to a letter from the applicant's
lawyers in which he said';
“We confirm that those who voted on the 31st
July 2013 using voter registration slips will be allowed to use them as the
voters roll which is going to be used is the one that closed on the 10th
July 2013”.
The applicant sought an interim order on the following
terms;
1.
Interdicting the 3rd respondent from allowing persons other than
persons who are on the voters roll or supplementary voters roll for Ward 12
Gweru to vote in the by –election set for Ward 12 Gweru on the 12th
of April 2014;
2.
Specifically the 3rd Respondent be and is hereby ordered not to
allow people to vote using voter registration slips in the by-election in
question.
3.
4th respondent be and is hereby ordered to supply the 3rd
Respondent with a copy of the updated voters roll.
Mr Nyika for the third respondent raised a point
in limine on the jurisdiction of this court as the Electoral court has
exclusive jurisdiction over electoral cases. He referred the Court to s 161 (2)
of the Electoral Act which provides as follows;
“(2) The Electoral Court shall have exclusive jurisdiction—
(a) to hear appeals, applications and petitions in
terms of this Act; and
(b) to review any decision of the Commission or
any other person made or purporting
to have been made under this Act;”
Mr Mwonzora for the applicant in response relied
on ss 2 (1) and 171 of the Zimbabwe Constitution, Amendment (No. 20) Act, 2013,
which he submitted invalidates s 161 (2) of the Electoral Act and bestows
jurisdiction on this court.
After hearing submissions from the parties, I, in
appreciation of the pending by-election, and the possibility of the applicant
having to apply to the Electoral Court, briefly adjourned the proceedings. When
the proceedings resumed, I ruled that this court has no jurisdiction because
the Electoral Court has exclusive jurisdiction and indicated that detailed
reasons for my judgment would follow. The following are my reasons for that
decision.
Mr Nyika's reliance on s 161 (2) of the Electoral
Act is supported by the golden rule of interpretation. Words in a statute must
be given their ordinary grammatical meaning. This was stressed by SANDURA JA in
the case of Madoda v Tanganda Tea Company Ltd 1999 (1) ZLR
374 (SC) @ 377 A-D where he said;
“By adopting that approach to the interpretation of s 7 of
the code the learned judge in the court a quo departed from the
ordinary grammatical meaning of the section and, therefore, erred. As JOUBERT
JA said in Coopers & Lybrand & Ors v Bryant 1995 (3)
SA 761 (A) at 767D-F:
'The matter is essentially one
of interpretation. I proceed to ascertain the common intention of the parties
from the language used in the instrument. Various canons of Constitution are
available to ascertain their common intention at the time of concluding the
cession. According to the 'golden rule' of interpretation the language in
the document is to be given its grammatical and ordinary meaning, unless this
would result in some absurdity, or some repugnancy or inconsistency with the
rest of the instrument."
The same view was subsequently
expressed by my brother McNALLY in Chegutu Municipality v Manyora
1996 (1) ZLR 262 (S) at 264D-E where he said:
"There is no magic about
interpretation. Words must be taken in their context. The grammatical and
ordinary sense of the words is to be adhered to, as Lord WENSLEYDALE said in Grey
v Pearson (1857) 10 ER 1216 at 1234, 'unless that would lead to some
absurdity, or some repugnance or inconsistency with the rest of the instrument,
in which case the grammatical and ordinary sense of the words may be modified
so as to avoid that absurdity and inconsistency, but no
further'."
Section 161 (2) according to the ordinary grammatical
meaning of the words used, specifically gives the Electoral Court exclusive
jurisdiction;
“(a) to hear appeals, applications and petitions
in terms of this Act; and
(b) to review any decision of the Commission or
any other person made or purporting
to have been made under this Act;”
The third respondent's decision was obviously made in terms
of the Electoral Act. Therefore any application or review, against it is covered
by s 161 (2) of the Electoral Act.
It is true that s 2 (1) of the New Constitution invalidates
the provisions of any law which is inconsistent with the provisions of the
Constitution which is the supreme law of Zimbabwe. Section 2 (1) provides as follows;
“(1) This Constitution is the supreme law of Zimbabwe and
any law, practice, custom or conduct inconsistent with it is invalid to the
extent of the inconsistency.”
A court should however not lightly invalidate laws in
terms of this section. It must first establish, the inconsistence, and its
extend, before doing so. A law may be partially inconsistent with the
Constitution. In such a case it is the part which is inconsistent which is
invalidated leaving the consistent party unaffected.
Mr Mwonzora based his attack on s 161 (2) of the
Electoral Act on the provisions of s 171 (1) (a) of the Constitution which
provides as follows;
“(1) The High Court—
(a) has
original jurisdiction over all civil and criminal matters throughout
Zimbabwe.”
The
dicta in the Madoda case (supra) would equally apply to the
construction of ss 2 (1) and 171 (1) (a) of the Constitution subject to the
contextual interpretation which is a Constitutional requirement.
Mr Nyika for the third respondent submitted that the
provisions of s 171 (1) (a) should be read and construed together with s 174
(c) which provides for the creation of other courts subordinate to the High
Court. He further submitted that the High Court should co-exist with such other
courts and defer to their exclusive jurisdiction. Section 174 of the
Constitution provides as follows;
“An Act of Parliament may provide for the establishment,
composition and jurisdiction of—
(a) magistrates courts, to adjudicate on civil and
criminal cases;
(b) customary law courts whose jurisdiction
consists primarily in the application of
customary law;
(c) other courts subordinate to the High Court;and
(d) tribunals for arbitration, mediation and other forms of
alternative dispute
resolution.”
I agree that the provisions of s 171 (1) (a) of the
Constitution should not be read in isolation. That would in fact be
unconstitutional as s 46 (1) (d) as read with s 331 of the Constitution
provides for the contextual and purposive interpretation of provisions of the
Constitution. They provides as follows;
“46 (1) (d) When interpreting this
Chapter, a court, tribunal, forum or body—
(d) must pay due regard to all the
provisions of this Constitution, in particular the principles and
objectives set out in Chapter 2; and in addition to considering all other
relevant factors that are to be taken into account in the interpretation of a
Constitution.”.
“331 Section 46 applies, with any necessary
changes, to the interpretation of this Constitution apart from Chapter
4.” (emphasis added)
It is therefore a Constitutional rule of interpretation
that all provisions of the Constitution must be considered in construing a
provision of the Constitution. Section 46 makes this rule applicable to Chapter
4 of the Constitution while s 331 makes it applicable to the whole
Constitution.
The purpose for which the Constitution provides for various
courts and vested in them concurrent civil and criminal jurisdiction with the
High Court, should guide the court in establishing whether or not the High
Court's original jurisdiction outs other court's civil and criminal
jurisdiction. The fact that the Constitution permits the Legislature, to create
and confer jurisdiction of its choice, on such courts must also be taken into consideration.
It is in-fact trite that the Constitution vests criminal and civil jurisdiction
in courts inferior to the High Court in spite of the High Court having original
jurisdiction over such cases. See the provisions of section 174 (a) to (d) of
the Constitution.
Mr Mwonzora's interpretation of s 171 (1) (a) of
the Constitution ignores the Constitutional rule of interpretation imposed by
ss 46 and 331. It leads to a meaning which ignores the Constitution's
provisions on the creation of other court's which it vests with civil
jurisdiction. This means the High Court though vested with original
jurisdiction over all civil and criminal matters does not have exclusive
jurisdiction over all such matters. This is because the Constitution in s 174,
provides for the creation of other courts, by the Legislature which it
authorises to determine their composition and jurisdiction.
The fact that the High Court has inherent or original
jurisdiction over all civil and criminal cases, does not,therefore, mean that
it should crowd out other Courts established in terms of the laws provided for
in the Constitution. These courts lawfully exist alongside it to hear and
determine specified cases. Where no exclusive jurisdiction is provided for, a
litigant can chose whether to litigate in the High Court or the subordinate
Court. Where the legislature gives the other Court exclusive jurisdiction as
was done by s 161 (2) of the Electoral Act, the High Court though clothed with
original jurisdiction can not hear such cases. They were lawfully taken away
from it and given to another court of competent jurisdiction. This is confirmed
by the provisions of s 162 of the Constitution which provides as follows;
“Judicial authority derives from the people of Zimbabwe and
is vested in the courts, which comprise—
(a) the Constitutional Court;
(b) the Supreme Court;
(c) the High Court;
(d) the Labour Court;
(e) the Administrative Court;
(f) the magistrates courts;
(g) the customary law courts; and
(h) other courts established by or under an Act of Parliament.”
Section 162 of the Constitution specifically vests judicial
authority in the mentioned courts and those established by or under an Act of
Parliament. This clearly means it authorises the creation of such courts and
their being conferred with jurisdiction of the Legislature's choice.
In view of the above s 2 (1) of the Constitution does not
invalidate s 161 (2) of the Electoral Act. The establishment of the Electoral
Court is permissible under ss 162 (h) and 174 (c) of the Constitution. The
provisions of s 161 (2) of the Electoral Act are therefore not inconsistent
with the Constitution. They lawfully allocate exclusive jurisdiction over
electoral appeals, applications, petitions and reviews to the Electoral Court.
The applicant therefore filed his application in a Court
which does not have the necessary jurisdiction to hear it. These therefore are
my reasons for finding that this Court has no jurisdiction to hear the
applicant's application.
Mwonzora & Associates,
applicant's legal practitioners
Nyika Kanengoni & Partners,3rd respondent's legal practitioners
Attorney
General's Civil Division,4th respondent's legal practitioners
