Before:
MALABA CJ, In Chambers
This
is an urgent chamber application for an order directing the Registrar
to set down for hearing on an urgent basis the main application the
applicants purported to file on 1 March 2018. The applicants are
political parties represented by Mr Mukwazhe, who is the leader
of the first applicant. In the application purportedly filed on
1 March 2018, under case no. CCZ 11/18 (the main
application), the applicants did not seek leave to file the
application. An endorsement was made on the application to the effect
that leave to apply for direct access to the Constitutional Court
(“the Court”) was not necessary. The parties in that application
are the same as those in the present application.
BACKGROUND
FACTS
The
applicants participated in the 2013 harmonised general
elections.
They are eager to participate in the 2018 harmonised elections. The
relief sought in the main application is an order barring the
President of Zimbabwe from proclaiming the call and the setting of
the dates for the forthcoming harmonised general elections until the
Political Parties (Finance) Act [Chapter
2:11]
(“the Act”) is repealed.
The
applicants take the view that the Act is ultra
vires
the Constitution. The reason given for the alleged invalidity is that
the Act does not protect small political parties. From the papers, it
appears that the applicants are unhappy with s 3(3) of the Act.
The papers do not specifically say so. The applicants allege in a
vague manner that the Act is in contravention of s 67(4) of the
Constitution. The section provides:
“For
the purpose of promoting multi-party democracy, an Act of Parliament
must provide for the funding of political parties.”
The
applicants contend that they have not been allocated funding in terms
of the Act, despite having participated in the 2013 harmonised
general elections. They interpret the provisions of s 67(4) of
the Constitution to mean that an Act of Parliament referred to must
ensure that funding is made available to every political party
registered to participate in a general election.
In
addition, the applicants contend that the President has an obligation
to uphold the Constitution. In their view, the obligation entails the
President using his influence over the ruling party, which has the
majority of seats in Parliament, to ensure that legislation providing
for the funding of every political party participating in a general
election is enacted. The applicants allege that if the harmonised
general elections were to be held under the prevailing conditions,
the political playing field would be in favour of the political
parties receiving funding in terms of s 3(3) of the Act.
The
main application is intended to achieve the following ends, by way of
the orders sought as gleaned from the founding and supporting
affidavits -
The
draft order sought is expressed in the following terms:
“WHEREUPON
after reading documents filed of record and hearing parties:
IT
IS ORDERED THAT:
The
first respondent be and is hereby ordered not to proclaim the
General Elections date until the Political Parties Finances Act of
2001 is repealed.
The
second respondent be and is hereby ordered to facilitate the
repealing of the Political Parties Finance Act.
The
third respondent be and is hereby ordered not to conduct any
elections under the current Political Parties Finance Act.
Parties
that participated in 2008 and 2013 elections to get US$420 000.00
before any elections are held.
Costs
be in the cause.”
The
first respondent opposed the application for an order that the main
application be set down for hearing on an urgent basis. He took as a
point in
limine
that, in terms of rule 21 of the Constitutional Court Rules,
SI 61 of 2016 (“the Rules”), the applicants ought to have
applied for direct access before they filed the main application. He
contended that the main application filed by the applicants is not
one that falls within the matters which do not require leave to
approach the Court directly. There cannot be a case for an urgent
hearing of a matter that is not properly before the Court. The first
respondent also opposed the application on the basis that the
applicants merely assert that the Act is unconstitutional without
indicating the specific provisions of the Act said to be invalid.
The
second respondent opposed the application on the basis that he is
incorrectly cited. He averred that the Constitution creates the
office of the Speaker of the National Assembly and not the “Speaker
of Parliament”. On this ground, the second respondent contended
that the applicants were non-suited. The second respondent also
raised a point relating to the non-joinder of the Minister of
Justice, Legal and Parliamentary Affairs, the President of the Senate
and the Minister of Finance and Economic Development. He alleged that
the Minister of Justice, Legal and Parliamentary Affairs should have
been cited as a party because he is the one who administers the Act.
The second respondent also contended that the Minister of Finance and
Economic Development was a necessary party, for the reason that he
administers the Treasury from which the claimed US$420 000
would
be paid. With regards to the non-joinder of the President of the
Senate, the second respondent contends that both the National
Assembly and the Senate make laws and the law-making function is not
restricted to the National Assembly.
The
third respondent contended that the main application was not properly
before the Court for the reason of non-compliance with r 21(1)
of the Rules, which required the applicants to seek authority to
access the Court directly before filing the application. The third
respondent also contended that the application did not comply with
r 16 of the Rules, for the reason that it was not in Form CCZ 1.
The
third respondent also raised the special plea of res judicata
against the applicants. She alleged that in 2013 the first applicant
filed an application under case no. CCZ 25/13 seeking funding in
terms of the Act. The application was dismissed by the Court on
26 June 2013.
On
the merits, the third respondent averred that the relief sought in
the main application was incompetent, as the proclamation of dates of
a general election is not an act of exercise of discretion by the
President. It is a constitutional requirement. She averred that no
court has the power to bar the President from proclaiming the dates
of a general election in terms of the Constitution. The third
respondent also said that the relief sought by the applicants is not
competent, for the reason that they have not sought a declaration of
constitutional invalidity of the Act.
The
third respondent further contended that s 67(4) of the
Constitution does to require the enactment of legislation that
provides for funding of every political party formed. The essence of
the third respondent's case was that the threshold prescribed under
s 3(3) of the Act to be reached by political parties to secure
entitlement to payment of moneys from the funds appropriated for the
purpose of
reimbursement
of campaign costs is a mechanism that has the effect of promoting
multi-party democracy.
The
third respondent prayed for costs on a legal practitioner and client
scale against the applicants. The reason given for the order sought
was that the application sought to be heard on an urgent basis sought
substantially the same relief as was sought in the application that
was dismissed by the Court on 26 June 2013.
At
the hearing of the application, the Court intimated to the parties
that, as the dates for the harmonised general elections could be set
by proclamation in terms of s 144(1) of the Constitution any
time soon and the applicants were not legally represented, it was
prudent to deal with the application as one for direct access.
Authority for the approach is found in r 5 of the Rules. The
respondents agreed. The applicants conceded that they ought to have
sought and obtained leave to file the main application. They also
agreed that the application be treated as one for direct access.
Mr Chimombe,
for the first respondent, argued that the main application had no
prospects of success. He said the application was frivolous and
vexatious. He argued that the applicants did not indicate the
specific provisions of the Act which they alleged violated the
provisions of s 67(4) of the Constitution. As a result of lack
of reference to specific provisions of the Act alleged to be invalid,
the relief sought was vague. He took the point that there was no
constitutional matter for determination by the Court.
Mr
Demo
agreed with Mr Chimombe
that the applicants had no prospects of success in the main
application. The reasons given were firstly that the President cannot
be barred by a court from complying with a constitutional obligation.
Secondly, the applicants could not expect to be granted an order
directing that they be paid money which is payable in terms of a
statute they claimed is invalid.
Mr
Kanengoni
argued that it was not in the interests of justice for the applicants
to be granted direct access to the Court. He argued that s 67(4)
of the Constitution does not guarantee to a political party a right
to funding based on its mere formation and participation in a general
election. He said the applicants failed to show that the Constitution
requires that the legislative measures put in place must ensure the
availability of funding to every political party formed.
Mr Kanengoni
took issue with the applicants' draft order. As the applicants
would be approaching the Court in terms of s 85(1)(a) of the
Constitution, they had to allege that their fundamental rights as
political parties had been or were being infringed by specific
provisions of the Act. None of the applicants' rights had been
violated. With regards to para 2 of the draft order, he argued
that the Court has no mandate to order the second respondent to
facilitate the repeal of a statute. Whilst the Court has power to
declare legislation unconstitutional, the applicants did not seek a
declaration of invalidity in respect of any provision of the Act. He
contended that the President cannot be stopped from performing a
constitutional obligation. He prayed that the application be
dismissed with costs on an attorney and client scale on the basis
that the first applicant had approached the Court with the same
issues in 2013 and failed.
DETERMINATION
OF THE ISSUES
WHETHER
THE APPLICANTS COULD FILE THEIR MAIN APPLICATION WITHOUT FIRST
OBTAINING DIRECT ACCESS
Mr Mukwazhe
had argued that s 167(5) of the Constitution allowed the
applicants to file the main application “with or without leave”.
The applicants' understanding of s 167(5) of the Constitution
was that a litigant had an option to either seek leave or approach
the Court directly without first seeking and obtaining leave to do
so.
Section 167(5)
of the Constitution provides as follows:
“(5)
Rules of the Constitutional Court must allow a person, when it is in
the interests of justice and with or without leave of the
Constitutional Court —
(a) to
bring a constitutional matter directly to the Constitutional Court;
(b) to
appeal directly to the Constitutional Court from any other court;
c) to
appear as a friend of the court.”
Section 167
of the Constitution prescribes the jurisdiction of the Court. The
Court has original, concurrent, exclusive and appellate jurisdiction
on constitutional matters only. As a result, it decides only
constitutional matters and issues connected with decisions on
constitutional matters. The Court makes the final decision whether a
matter is a constitutional matter or whether an issue is connected
with a decision on a constitutional matter.
Constitutional
matters over which the Court has original and exclusive jurisdiction
are specifically set out in s 167(2) of the Constitution. The
other provisions of the Constitution on constitutional matters or
issues in connection with a decision on a constitutional matter for
the hearing and determination of which direct access to the Court is
guaranteed are found in ss 113(7), 131(8)(b), 175(3), 175(4) and
para 9(2) of the Fifth Schedule.
In
respect of all the constitutional matters over which the Court has
concurrent or appellate jurisdiction the provisions of s 167(5)
(a) and (b) of the Constitution make it clear that the question
whether direct access to the Court is to be had with leave or without
such leave is to be determined by the Rules. The purpose of requiring
the Rules
to
prescribe the circumstances in which an application for leave for
direct access to the Court is necessary is to ensure that the Court
plays its role of supervising the maintenance of the constitutional
order.
The
Constitution delegated the power of setting the conditions for direct
access to the Court (in matters over which the Court does not have
exclusive jurisdiction) to the makers of the Rules. A litigant cannot
rely on s 167(5) of the Constitution and ignore the Rules which
give effect to the Constitution. It is the provisions of the Rules
that litigants have to comply with. It was not for the officials of
the applicants to decide whether or not to seek leave for direct
access to the Court. There is no rule that authorises a litigant
seeking the kind of relief sought by the applicants on the grounds
stated to approach the Court directly without leave.
The
Rules
set
out the objective factors a litigant has to state in a chamber
application for direct access for consideration by the Court or Judge
in the determination of the question whether it is in the interests
of justice to grant direct access. There must be filed with the
registrar, and served on all parties with direct or substantial
interest in the relief claimed, an application setting out the
grounds on which it is claimed it is in the interests of justice that
direct access be granted.
Absent
the grounds on which it is claimed that it is in the interests of
justice that direct access be granted, the Court or Judge has no
basis on which to decide whether or not to grant direct access. A
finding has to be made by the Court or Judge of the existence of the
interests of justice requiring that a decision that direct access be
granted be made. Direct access to the Court in matters over which
other courts have jurisdiction is a discretionary procedure, which is
granted only in exceptional cases - see Betlane
v Shelley Court
CC 2011 (1) SA 388 (CC), 2011 (3) BCLR 264 [22]; A
Party and Another v
The Minister for Home Affairs and Others, Moloko and Others v
The Minister for Home Affairs and Another
2009 (3) SA 649 (CC), 2009 (6) BCLR 611 (CC) [70].
Currie
and De Waal, in “The
Bill of Rights Handbook”,
6 ed (2013) at pp 127-128 have the following to say on the
subject:
“Direct
access means that a matter is heard by the Constitutional Court at
first instance. … The Rules provide for direct access to the
Constitutional Court in matters over which concurrent jurisdiction is
exercised, where the matter is of sufficient public importance or
urgency that direct access will be in the interests of justice.
Direct access is an extraordinary procedure that has been granted by
the Constitutional Court only in a handful of cases.”
The
applicants were required by law to seek leave to approach the Court
directly with their main application. They did not attempt to argue
that theirs is a matter over which leave to approach the Court
directly is not required.
WHETHER
IT IS IN THE INTERESTS OF JUSTICE TO GRANT THE APPLICANTS DIRECT
ACCESS
The
Court has analysed the matter and has come to the conclusion that it
would not be in the interests of justice to grant the applicants
direct access. Pursuit of justice must be shown to be at the heart
of
every legal remedy sought to be granted by a court of law.
The
requirements for an application for direct access are set out in r
21(3) of the Rules as follows:
“(3) An
application in terms of subrule (2) shall be filed with the
Registrar and served on all parties with a direct or substantial
interest in the relief claimed and shall set out –
(a) the
grounds on which it is contended that it is in the interests of
justice that an order for direct access be granted; and
(b) the
nature of the relief sought and the grounds upon which such relief is
based; and
(c) whether
the matter can be dealt with by the Court without the hearing of oral
evidence or, if it cannot, how such evidence should be adduced and
any conflict of facts resolved.”
Further,
in elaborating r 21(3)(a), r 21(8) of the Rules provides as
follows:
“(8) In
determining whether or not it is in the interest of justice for a
matter to be brought directly to the Court, the Court or Judge may,
in addition to any other relevant consideration, take the following
into account -
(a) the
prospects of success if direct access is granted;
(b) whether
the applicant has any other remedy available to him or her; and
(c) whether
there are disputes of fact in the matter.”
All
these requirements are punctuated by s 167(5) of the
Constitution, which requires that the Rules must provide that direct
access to the Court ought to be availed where it is in the interests
of justice to do so. What must always be borne in mind by the Court
or Judge deciding the issue
of
direct access is the fact that the Court occupies a special position
in the scheme for the protection of the constitutional order. It is
the only court whose jurisdiction is specifically limited to hearing
and determining constitutional matters only or issues connected with
decisions on constitutional matters. These are ordinarily matters
that require consideration of issues of law relating to the
interpretation, protection or enforcement of constitutional
provisions. The interests of justice are the overriding
consideration.
In
order for direct access to be granted, the applicants had to show
that they had prospects of success in the main matter. In Transvaal
Agricultural Union v Minister of Land Affairs and Another
1996 (12) BCLR 1573, 1997 (2) SA 621 (CC) at para [46], the
Constitutional Court of South Africa said in part:
“[46]
The applicant has failed to establish that this is a case in which
the ordinary procedures ought not to have been followed. There are
important issues which are within the jurisdiction of the Supreme
Court and which need to be resolved by it before this Court is
approached for relief. As far as the other issues are concerned there
is neither the urgency nor
the prospects of success necessary to justify direct access to this
Court.
The application for direct access must therefore be dismissed. (my
emphasis)
In
Bruce and Another v Fleecytex Johannesburg CC and Others 1998
(2) SA 1143 (CC), 1998 (4) BCLR 415 (CC) at para [7],
chaskalson p
remarked:
“[7] Whilst
the prospects of success are clearly relevant to applications for
direct access to this Court, there are other considerations which are
at least of equal importance.
This Court is the highest Court on all constitutional matters.” (my
emphasis)
The
correct approach in dealing with an application for an order of
direct access to the Court
is one that accepts the principle that all relevant factors required
to be taken into account must be made available for consideration.
The Court or Judge must consider all the relevant factors in deciding
the question whether the interests of justice would be served by an
order granting direct access to the Court. The weight
placed
on the different factors in the process of decision making will
depend on the circumstances of each case and the broader interests of
a society governed by the rule of law.
In
De Lacy
and Another v South African Post Office
2011 (9) BCLR 905 (CC) at para [50] the Court of South Africa,
whilst considering the approach in the application of the provisions
of s 167(6) of the Constitution of South Africa,
remarked:
“[50]
Section 167(6)
of
the Constitution requires this Court to allow a person to bring a
matter directly should it be in the interests of justice to do so.
Where the interests of justice lie depends on the outcome of a
meticulous weighing-up of relevant considerations. Chief
of these, but not solely decisive, would be whether there are
prospects of success.
For instance, the public importance of the issue raised or its impact
on the administration of justice may well favour granting direct
access in a matter in which prospects of success may be open to some
doubt.” (my emphasis)
See
also Dormehl
v Minister
of Justice and Others
2000 (2) SA 987 (CC).
The
applicants seek in the main application an order interdicting the
President from proclaiming the dates for the harmonised general
elections. Paragraph 12 of the founding affidavit states:
“12.
This is an application wherein the applicants are seeking an order to
have the first respondent hold the pronouncement of election dates
until the Political Parties Finance Act is repealed since it is
ultra vires
the Constitution as it does not protect the other political parties,
especially section 3 that says '… each political party whose
candidates received at least five per
centum
of the total number of votes cast in the most recent general
election' …”.
Paragraph 1
of the draft order relates to the same relief.
Section 144(1)
of the Constitution, in terms of which the President is to act in
setting the dates for the harmonised general elections, is mandatory.
It provides:
“144
General election resulting from dissolution of Parliament
-
Where
Parliament has not earlier passed resolutions to dissolve in terms
of section 143(2), the President must by proclamation call and
set dates for a general election to be held within the period
prescribed in section 158.”
The
timing of the elections is governed by s 158(1)(a) of the
Constitution, which provides as follows:
“158
Timing of elections
(1)
A general election must be held so that polling takes place not more
than —
(a) thirty
days before the expiry of the five-year period specified in section
143; …”.
The
President is obliged under s 144(1), as read with s 158(1)(a),
of the Constitution to set dates by proclamation for the holding of
harmonised general elections within the period prescribed. The use of
the word “must” in both ss 144(1) and 158(1) of the
Constitution underscores the fact that the obligation imposed on the
President to do what is specified for the specific purpose stated and
in the manner prescribed is a mandatory obligation. The immutable
requirement is that when the time comes for him to do so, the
President has no option but to do what he is specifically bound by
the Constitution to do. Section 90(1) of the Constitution
imposes on the President the duty to obey the Constitution. Once the
President has called and set the dates for the harmonised general
elections in terms of s 144(1) of the Constitution, s 158(1)(a)
makes it clear that those elections must be held on the dates set.
No-one,
including the courts, has power to alter what is mandated by the
Constitution in clear, unambiguous and mandatory terms. It would be
unconstitutional for a Court or Judge to order the President not to
call and set dates for the holding of the harmonised general
elections as prayed for by the applicants. The mandatory obligation
is imposed on the President by the Constitution for the benefit of
all the people of Zimbabwe.
It
is the Constitution itself which dictates what the President must do.
The proclamation is directly demanded by the Constitution. The
Constitution is the supreme law of the land and the courts cannot
abrogate it. Their duty is to enforce what the Constitution demands.
The
applicants have no right which may conceivably be injured by the
lawful performance by the President of the constitutional obligation.
From the nature of the relief sought, it is clear that the applicants
have no right, let alone a prima facie
right, to payment of the money payable under the Act to any political
party whose candidates received at least five per
centum
of the total number of votes cast in the most recent general
election.
The
principle that an interdict cannot be granted to prevent the
occurrence of a lawful act has become part of our law. In other
words, a court of law has no competence to make such an order which
is by nature and effect contrary to the rule of law.
In
Minister of Lands v Paliouras; Minister of Lands v Wiggill
2001 (2) ZLR 22 (S), chidyausiku acj
(as he then was) at 28G-29A stated as follows:
“The
respondents' contention that the appellant is prohibited from
exercising any of the above powers which he is expressly authorised
by Parliament to exercise raises the fundamental issue of
jurisdictional competence. Can a court interdict the appellant from
acquiring land for redistribution in accordance with explicit
provisions of an Act of Parliament? Not only is this a debatable
point, but the wisdom of such an interdict is questionable. The
interdiction of patently lawful conduct can hardly further the rule
of law. That issue however is not before the court and will have to
await determination another day.”
The
determination of the issue came in Airfield
Investments (Pvt) Ltd v Minister of Lands, Agriculture and Rural
Resettlement and Others
2004
(1) ZLR 511 (S).
The Court said at 518B-E:
“When
the appellant lodged the application for the interim relief before
the court a
quo the
acquisition of the land by the State was a fait
accompli, all
rights of ownership having been extinguished on its part. The
acquiring authority having done everything it was obliged by the law
to do to acquire the land for resettlement purposes, there was no
outstanding act against the performance of which the acquiring
authority could be temporarily interdicted. An interim interdict is
not a remedy for prohibiting lawful conduct. At the time the first
respondent made the order by which the appellant was deprived of
ownership of the land, he acted lawfully in the exercise of the power
conferred upon him. Subsection (1) of s 8 of the Act gave
him the power to make the order and its effect reflected the legal
consequences of that lawful act.
To
suspend the effects of the order of acquisition lawfully made and
intended by the legislature would amount to striking down the Act of
Parliament or rendering it completely ineffective, thereby creating a
vacuum pending determination of the constitutionality of the impugned
sections of the Act. That would be improper for the court to do
because the clear intention of the legislature was that an order of
acquisition, properly made in terms of subs (1) of s 8 of the Act,
should have the effect of depriving the owner or occupier of the
rights of ownership in the land and vesting them in the acquiring
authority.”
gowora ja
weighed in on this principle in Zimbabwe
Revenue Authority v
Packers International (Private) Limited SC 28/16
where,
at pp 16-17 of the cyclostyled judgment, she held:
“An
interdict serves to protect a right not an obligation. The papers
filed on behalf of Packers did not identify any right that ZIMRA had
threatened. The court a
quo
found as a matter of fact that ZIMRA had acted in terms of the law in
assessing VAT which remained unpaid. Once this finding was made
including the further finding that the agent had been appointed
lawfully, there was no lawful justification at law for suspending
payment for a week.
I
am fortified in this view by the remarks of the learned deputy
chief justice malaba
in the Mayor
Logistics
case supra
to the following effect:
'The
subject of the application is not the kind of subject matter an
interdict, as a remedy, was designed to deal with. An interdict is
ordinarily granted to prevent continuing or future conduct which is
harmful to a prima facie
right, pending final determination of that right by a court of law.
Its object is to avoid a situation in which, by the time the right is
finally determined in favour of the applicant, it has been injured to
the extent that the harm cannot be repaired by the grant of the
right.
It
is axiomatic that the interdict is for the protection of an existing
right. There has to be proof of the existence of a prima facie
right. It is also axiomatic that the prima facie
right is protected from unlawful conduct which is about to infringe
it. An interdict cannot be granted against past invasions of a right
nor can there be an interdict against lawful conduct. Airfield
Investments (Pvt) Ltd v Minister of Lands & Ors 2004
(1) ZLR 511 (S); Stauffer
Chemicals v Monsato Company
1988 (1) SA 895; Rudolph
& Another v Commissioner for Inland Revenue & Others
1994 (3) SA 771.'
The
applicant accepted in the founding affidavit that the respondent
acted lawfully in enforcing the obligation to pay the tax
notwithstanding the noting by it of the appeal to the Fiscal Appeal
Court against the correctness of the assessment. It did not allege
any unlawful conduct on the part of the respondent which would
justify the granting of an interdict. It also accepted that at the
time the respondent put in place measures to collect the tax, the
provisions of ss 36 of the VAT Act and 69(1) of the Income Tax
Act were binding on it. That means that the applicant had no
prima facie
right in existence at the time not to pay the amount of tax it was
liable to pay to the fiscus.
Sections 36 of the VAT Act and 69(1) of the Income Tax Act
protect a duty, not a right.”
See
also Judicial
Service Commission v Zibani and Others
SC 68/17.
As
correctly submitted by Mr Kanengoni,
the proclamation can only be challenged after it is made and the
challenge can only be on the ground that it has not complied with the
relevant provisions of the Constitution.
The
applicants also allege as follows:
“13. In
terms of the Constitution of Zimbabwe, Chapter 4, Part 2,
section 67(4) states that '… for the purpose of promoting
multi-party democracy, an Act of Parliament must provide for the
funding of political parties' meaning all political parties
administered by the Zimbabwe Electoral Commission and this includes
the applicants.
14. The
applicants have never been allocated such funding to promote
multi-party democracy to enable them to prepare and effectively
participate in the forthcoming General Elections, as is enshrined in
the esteemed Constitution of the land, despite having participated in
several elections.
15. To
this end, the parties which are getting such funding are thus having
an unfair advantage over the applicants since they are not getting
the funds. This is infringing on the Constitutional rights of the
applicants.”
There
is no merit in this argument. The Legislature complied with the
obligation to enact an Act of Parliament. Section 3 of the Act
provides:
“3
Financing of political parties
(1)
Subject to this Act, every political party shall be entitled in each
Parliamentary year to receive from the State the sums of money that
are payable to it in terms of this Act.
(2)
The Minister shall, as soon as is practicable, and in any case no
later than thirty days after the beginning of the financial year,
publish, with the approval of the Minister responsible for finance, a
notice in the Gazette
specifying the total amount of moneys appropriated for all political
parties and the amount that shall be paid to each individual
political party in terms of this Act.
(3)
For the purpose of subsection (2), each political party whose
candidates received at least five per
centum of
the total number of votes cast in the most recent general election
shall be entitled to the same proportion of the
total
moneys appropriated as the total number of votes cast for its
candidates in the election bears to the aggregate
of
votes cast for all political parties that qualify to be paid moneys
in terms of this subsection:
Provided
that, where a candidate is declared elected in terms of section 46 or
49 of the Electoral Act [Chapter
2:01]
without a poll having taken place, he shall be deemed to have
received the votes of all the voters registered in the constituency
concerned.
(4)
Whenever a by-election to fill a vacancy in Parliament is held after
a general election, the Minister shall adjust the amounts payable to
political parties in respect of the Parliamentary year following that
in which the by-election was held, having regard to any changes in
the total number of votes cast consequent on such by-election:
Provided
that, where a candidate is declared (elected) in terms of section 46
or 49 of the Electoral Act [Chapter 2:01]
without a poll having taken place, he shall be deemed to have
received the votes of all the voters registered in the constituency
concerned.”
Zimbabwe
has adopted a system of representative government delivered through
multi-party democracy. Section 67(4) of the Constitution does
not require the enactment of an Act of Parliament which makes
provision for the funding of every political party formed as the
means of ensuring the achievement of the constitutional purpose of
promoting multi-party democracy. Section 67(4) of the
Constitution uses the words “political parties” and not “all
political parties”.
A
multi-party democracy is a political system in which multiple
political parties
across
the political spectrum participate in national elections and all have
a chance to gain control of government offices separately or in
coalition. (Wikipedia
https://en.wikipedia.org?wiki?multi-pa...). It
“contemplates a political order in which it is permissible for
different groups to organise, promote their views through public
debate and participate in free and fair elections”. President
of the Republic of South Africa
v United
Democratic Movement
2003 (1) SA 472 (CC) at para [26]. What this means is that upon
making the Constitution the people of Zimbabwe chose a political
system that allows
citizens
to express their consent to be governed in free, fair and regular
elections, participated in by multiple political parties.
Whilst
s 67(4) of the Constitution prescribes the “promotion of
multi-party democracy” as the legitimate objective to be pursued by
the Act of Parliament enacted, it leaves the choice of the best means
for the achievement of that objective to the Legislature. If the
means chosen by the Legislature is rationally related to the
objective of promoting multi-party democracy through the funding of
political parties, s 3(3) of the Act would not be held
unconstitutional.
Section 3(3)
of the Act makes it a requirement that for a political party to
qualify for financing, its candidates should have obtained at least
five per cent of the total number of votes cast in the most recent
general election. The amount payable to a political party is
calculated on the basis of what is the proportion of the total number
of votes cast for its candidates in the general election to the
aggregate of the votes cast for all political parties. Democracy is
demonstrably achievable when people who are registered voters choose
candidates in a free, fair and peaceful general election by casting
their votes.
It
is out of the results of votes cast in a general election that a
government of the people, by the people and for the people emerges.
Political parties play an important rôle in the democratic process
because they are the bodies that organise
the
people who vote in the general election for candidates sponsored by
them. In other words, in the system of multi-party democracy
established by the Constitution, political parties occupy central
stage and play a vital part in facilitating the exercise of political
rights. Ramakatsa
v Magashute
2013 (2) BCLR 202 (CC) at para [65]. The political parties take
part in the exercise of legislative authority as the ruling party or
opposition parties.
What
is clear from s 3(3) of the Act is that all political parties
are subjected to the same standard of having to aim at their
candidates receiving at least five percent of the total number of
votes cast in the general election immediately before the next
general election. In other words, the requirement applies to every
political party. The formation of a political party is not an income
generating project. The taxpayer's money cannot be used to fund any
upstart political party which may not be bona fide.
Placement of a reasonable limitation upon the payment of public funds
to political parties is beyond controversy. A situation where
political parties are formed and registered to participate in a
general election simply to secure funding by the State cannot have
the effect of promoting multi-party democracy.
The
applicants have not shown that they are eligible to get the financial
support on the basis of s 3(3) of the Act. In terms of the
section, entitlement only accrues after an election and not before an
election. The applicants are interpreting s 67(4) of the
Constitution to mean that the Act of Parliament should make provision
for the funding of any entity that has been registered as a political
party without regard to votes received by candidates sponsored by
political parties in a general election. The approach
urged
upon the Court that funding should solely depend on the mere
existence of a political party without reference to numbers of votes
received by candidates sponsored by the political parties in the most
recent
general
election ignores the fact that multi-party democracy recognises the
voter as the decision-maker.
The
Act applies to all the political parties. Contrary to what the
applicants allege, the mechanism adopted by the Legislature ensures
that there is a level playing field for all political parties
registered to take part in a general election. Entitlement to receive
the money payable accrues to every political party whose candidates
have reached the prescribed threshold of having received at least
five per
centum
of the total votes cast in the most recent general election.
The
entitlement to funding accrues to as many political parties as have
managed out of their own efforts to reach the minimum threshold.
There can be no doubt that the purpose of the standard prescribed is
to ensure funding for the successful political parties consistent
with the provisions of s 67(4) of the Constitution. The fact
that some political parties end up not being funded does not mean
that no political parties are funded. Entitlement to payment of the
money from the public funds appropriated for the purpose of funding
political parties is not a fundamental right of a political party. It
is a statutory right claimable after a political party has met the
minimum requirements for entitlement to payment.
A
political party should have the support of the people and this is
shown by votes received. There has to be a criterion for political
parties' financing. In
United
Parties v
Minister of Justice, Legal and Parliamentary Affairs & Others
1997 (2) ZLR 254 (S) the Supreme Court determined the question of the
constitutionality of s 3(3) of the repealed Political Parties
(Finance) Act [Chapter 2:04].
The applicant in that case argued that s 3(3) of the repealed
Political Parties (Finance) Act [Chapter 2:04]
inhibited the exercise of its rights guaranteed under s 20(1),
s 21(1) or s 23 of the old Constitution.
In
determining the question of the constitutionality of s 3(3) of
the repealed statute in United
Parties case
supra
gubbay cj,
at 261A-262B, said:
“THE
POLITICAL PARTIES (FINANCE) ACT
(1)
THE NATURE AND STRUCTURE OF THE ACT
The
preamble to the Act states that its purpose is:
'…
to provide for the financing of political parties by the State and
for matters connected therewith or incidental thereto'.
In
order to qualify for financial support, a political party must apply
to the Minister of Justice, Legal and Parliamentary Affairs for
registration in terms of s 4. Any such application must identify
each of its candidates for election in the general election. Further
information prescribed by the Minister may also be required. If the
Minister is satisfied that the candidates identified are members of
the political party concerned, he must register it. An appeal lies to
the High Court against the Minister's refusal to entertain an
application by a political party.
Section 3
deals with the actual financing of political parties. Subsection (1)
stipulates that every registered political party shall be entitled to
receive from the State the sums of money payable to it under the Act.
Subsection (2) obliges the Minister, with the approval of the
Minister of Finance, to specify annually by notice in the Gazette (a)
the total amount of moneys payable to all registered political
parties; and (b) the moneys paid to each individual registered
political party. Subsection (3) reads:
'For
the purpose of paragraph (b) of subsection (2), each
registered political party shall be entitled to the same proportion
of the total moneys specified in terms of paragraph (a) of that
subsection as the number of elected members of Parliament who are
members of that political party bears to one hundred and twenty:
Provided
that, where fewer than fifteen elected members of Parliament are
members of a particular registered political party, that political
party shall not be entitled to any moneys in terms of this Act.' …
What
is most significant about this Act is that no registered political
party with less than fifteen elected members of Parliament will be
entitled to be paid any moneys by the State. Parties with the
requisite number of elected members will receive funding every year
and not only after a general election has taken place. The amount of
such funding is calculable on the basis of the number of their
members as a percentage of the one hundred and twenty common roll
constituencies. Plainly the funding is designed to subsidise
permanently the political parties that qualify and not merely to
reimburse their election expenses.”
The
learned chief justice
continued at 266E-267D:
“(4)
THE THRESHOLD OF FIFTEEN ELECTED MEMBERS OF A PARTICULAR REGISTERED
POLITICAL PARTY AS THE ENTITLEMENT TO RECEIVE FUNDING FROM THE STATE
The
justification for placing a reasonable limitation upon the payment of
State funds to political parties admits of no controversy. Its
purpose is understandable. It is to encourage serious political
parties or candidates to contest an election and thereby strive to
obtain representation in Parliament. Yet, on the other hand, it is to
discourage inability to attract an important following - to command a
significant proportion of the votes cast. Put differently, the aim is
to inhibit the proliferation of trifling parties; to prevent them
from participating in the election simply in order to secure public
moneys.
Jensen
op cit
at 113-114 points out that the regulation of public funding for
elections has been identified with the following five goals:
(i) to
ensure equality of opportunity in a liberal democracy characterised
by inequities in the distribution of wealth;
(ii) to
make enough money available that competitive campaigns can exist;
(iii) to allow new entrants,
while not encouraging frivolous candidates or propping up decaying
political organisations;
(iv) to
reduce the opportunity for undue influence; and
(v) to
prevent corruption.
In
the Zimbabwean setting, the first three of these goals are
particularly apposite, but are not achieved by s 3(3) of the
Political Parties (Finance) Act. Obviously, the mere presence of
public funds is not sufficient. It must be provided in a manner that
is non-exclusionary and tolerant of political pluralism and electoral
competition. Otherwise it will do no more than entrench and reinforce
the regime of the major political parties, and treat far less fairly
their minor or new opponents. Thus a high threshold for entitlement
to receive State funding makes it extremely unlikely that small but
meaningful voices will be heard. In a relatively non-affluent
society, where nothing like adequate funding from private sources is
available, such a threshold renders it virtually impossible for other
political parties to gain any real margin of success.”
Finally,
at 272C-G gubbay cj
held:
“It
is my view that the whole of s 3(3) of the Political Parties
(Finance) Act, and not merely its proviso, should be declared
inconsistent with s 20(1) of the Constitution. This is because,
as mentioned earlier, it is, in essence, the scheme upon which State
funding is paid that abridges the protection of freedom of
expression. Even if the threshold of the number of elected members
were set far below fifteen, the requirement of there having to be
representation by a registered political party in Parliament, in
order to qualify for annual funding, would still put aspiring
opposition political parties at a severe monetary disadvantage in
mounting an electoral campaign; and, thereafter, in maintaining
potent political survival. It
seems probable that an appreciation of this factor was the motivation
for other countries passing legislation which makes the entitlement
to funding dependent upon the attainment of a fairly low percentage
of the overall number of votes cast at a general election (if the
funding is to be provided annually, which is the policy in Zimbabwe).
It
may be true to say that at the next general election the hurdle for
smaller or emerging political parties will remain fairly formidable.
Yet, assuming a reasonable threshold is fixed by Parliament on the
basis of a percentage of the total number of votes cast, it should be
reached with less difficulty than under a regulatory system that
effectively entrenches the status quo.
As
the striking down of subs (3) renders the allied provisions
contextually inappropriate, it will be incumbent upon the Legislature
to replace the whole of s 3 of the Political Parties (Finance)
Act in conformity with this judgment.” (The underlining is mine for
emphasis)
The
current s 3(3) of the Act is a direct result of the judgment in the
United
Parties
case supra.
The applicants have not asked the Court to revisit that judgment. The
judgment states that a scheme of entitlement to State funding based
on a reasonable threshold of votes received by candidates of
political parties, being a fairly low percentage of the total votes
cast in the most recent general election, would be constitutional.
There
is no doubt that setting the minimum threshold for entitlement to
State funding for a political party as the votes received by its
candidates which should be at least five percent of the total votes
cast in the most recent general election promotes multi-party
democracy. Political parties do not have to secure representation in
Parliament. Under the current legislative scheme for entitlement to
payment of State funding, small political parties that fail to win a
seat in Parliament but have candidates who manage to receive the five
percent of the total votes cast in the most recent general election
are entitled to receive payment.
Multi-party
democracy is not defined in terms of seats political parties have in
Parliament. Multi-party democracy is promoted by encouraging
political parties to compete for funding by seeking to reach the
minimum threshold for entitlement to payment of monies appropriated
for funding political parties. The political parties are encouraged
to use freedom of speech during campaigns in the general election to
persuade voters to vote for their candidates so that they meet the
minimum threshold and get funding. The voter becomes the
decision-maker. The requirements for entitlement to payment of monies
from the public funds appropriated in terms of the Act for funding
political parties ensure the effectiveness of the funding as a means
of promoting multi-party democracy as required by the Constitution.
The
applicants contended that the Act should be repealed. The Court has
no power to order the repeal of any legislation. Repeal of
legislation is a legislative act and not a judicial act. The
declaration of constitutional invalidity of legislation is the
judicial act. It was not sought by the applicants. The applicants
cannot seek to have the validity of the Act impugned whilst also
asking for an order that they be paid US$420 000 payable only in
terms of the Act. As such, the main application has no prospects of
success because what the applicants seek is not grantable.
The
third respondent took the point that the dispute in question is
res judicata.
An examination of the founding affidavit on which the application in
CCZ 25/13 was based shows that there are material differences in
the nature of the causes of action pleaded. Although vaguely pleaded,
the applicants' cause of action in CCZ 11/18 was that s 3(3)
of the Act contravenes the provisions of s 67(4) of the
Constitution. They did not, of course, say which of their fundamental
rights were infringed by the alleged invalidity of s 3(3) of the
Act. On that assumed invalidity, the applicants went on to pray for
non-grantable
reliefs.
In respect of CCZ 25/13 the first applicant did not plead a
cause of action. All he did was to state the provisions of the Act
and the Constitution before praying for an order that it be paid the
money payable to political parties that met the qualification
requirements prescribed by s 3(3) of the Act for entitlement to
payment. The plea of res judicata
raised by the third respondent and ipso facto
the prayer for costs against the applicants on the scale of legal
practitioner and own client scale cannot succeed.
COSTS
The
first and second respondents prayed that the application for direct
access be dismissed with no order as to costs. The third respondent
had adopted a different position on costs because of the plea of
res judicata
raised against the applicants.
Now
that the special plea has not been upheld, there is no good reason
for treating the third respondent differently from the other
respondents on the question of costs. The order given is consistent
with the general principle on the question of the award of costs in
constitutional litigation where the State is the successful party.
DISPOSITION
In
the result the following order is made:
“The
application for direct access to the Court is dismissed with no order
as to costs.”
Civil
Division of the Attorney General's Office,
first respondent's legal practitioners
Chihambakwe
Mutizwa and Partners,
second respondent's legal practitioners
Nyika,
Kanengoni and Partners,
third respondent's legal practitioners
