Urgent
Chamber Application
HUNGWE J: This matter was
placed before me through the chamber book as an urgent application on
March 10, 2008. Applicant seeks the following provisional order
against the respondent:
“Pending confirmation or
discharge of this Provisional Order;
1. The respondent be and is
forthwith hereby interdicted and restrained from using the
applicant's name and materials and posters resembling the
applicant's materials and posters in his campaign for the House of
Assembly seat of Mabvuku-Tafara.
2. The respondent be and is
hereby ordered to forthwith remove the posters he plastered in and
around the Constituency, failing which the applicant's structures
in Mabvuku-Tafara Constituency be and are hereby authorised to remove
the said posters in the company of the Deputy Sheriff or members of
the Zimbabwe Republic Police, if necessary.
SERVICE OF THE PROVISIONAL ORDER
This Provisional Order shall be
served by the respondent by the applicant's Legal Practitioners or
the Deputy Sheriff of Chinhoyi. (sic)”
No attention has been paid to the drawing of the papers in this
matter as is demonstrated by the careless errors contained in the
last paragraph of the order sought relating to service.
Unfortunately this is becoming more the norm rather than the
exception in papers drawn for placement before this court. Legal
practitioners need not be reminded about the importance of care and
diligence when drafting court papers.
The applicant is a registered political formation in terms of the
laws of Zimbabwe. The respondent is the out-going Member of the House
of Assembly for the Mabvuku-Tafara constituency for the applicant.
The applicant has fielded hundreds of candidates in the forthcoming
harmonised Presidential, Senatorial, Parliamentary and Council
elections. In an internal candidate selection process, the respondent
failed to garner the support of his political party to stand as that
party's chosen representative for the House of Assembly seat of
Mabvuku-Tafara constituency. Instead one Shepherd Madamombe is the
official candidate for the applicant.
Applicant approaches this court for the above relief.
Sekai Holland, the Applicant's Secretary for Policy Research and
Ideology deposed to the founding affidavit.
In it she states that applicant, on 14 February 2008, notified the
Zimbabwe Electoral Commission of its intention to substitute the
respondent with Shepherd Madamombe.
On 15 February 2008, the
Nomination Court sat to receive the nomination of candidates.
Shepherd Madamombe's papers were accepted as representing the
applicant. Respondent, who had earlier been endorsed by applicant
also, filed his nomination papers but as an independent. His papers
were accepted by that Court as such.
Applicant now seeks to interdict respondent from conducting his
campaign using its materials and posters.
This application has been brought to the wrong Court.
The Nomination Court is the proper court to decide the eligibility of
each candidate.
Once it was satisfied that a candidate is eligible to be registered,
and registered him, then it was up to the applicant to deal with the
question of use of its materials in terms of its internal
disciplinary procedures, if any was applicable.
The applicant does not say in its papers that respondent is no longer
its member.
If he is, then all the more reason this matter should have been dealt
with internally. There is no evidence to suggest that all internal
remedies had been exhausted by applicant nor is there an averment
that respondent has been expelled from that party so as to require
the adoption of conflict management mechanisms available in terms of
Part XX1A of the Electoral Laws Amendment Act Number 17 of 2007.
Assuming in favour of the applicant that once it had accepted a
candidate's nomination, the Nomination Court and the Electoral
Court had no role to play in respect of how candidates conducted
their campaigns, I am unable to hold that this is not self-create
urgency.
Applicant, by it own admission, approved the candidature of the
respondent in the impending election.
I also must assume that in preparation for the election campaign, it
incurred all the expenses usually associated with a national election
like printing materials and posters for use by its candidates and
generally making its political manifesto public.
It would have appropriately armed such of its candidates as it had
settled upon. This included the respondent.
The papers do not show that upon request for the return of such
material, the respondent had refused.
The applicant has already incurred such cost as are incidental to the
running of its campaign.
I am unable to point to what extra harm or prejudice applicant would
suffer from allowing one of its own to continue with that campaign.
From the papers applicant at some point recommended the respondent to
the Nomination Court. It sought to withdraw this recommendation “at
the door of Court” so to speak and succeeded. Respondent had, in
all probability, prepared his personal campaign materials for the job
at hand. To interdict him on the present papers in my view would
result in more harm to an otherwise properly laid campaign course.
In any event, it seems to me that this Court cannot grant, on an
urgent basis, relief that will, in effect, limit an election
candidate's entrenched constitutional right to political activity.
There is no evidence on the papers that he has breached the country's
criminal laws, or that his conduct, on the face of it, will create or
occasion a breach of the peace. The applicant, without more, cannot
succeed in securing, by an order of court, a curtailment of lawful
political activity.
Section 21 of the Constitution guarantees a private citizen's
freedom of association and assembly. This right, like any other
right, is subject to lawful limitations which place a duty upon such
citizen not to act in a manner that infringes other citizen's
rights. Section 21 of the Constitution of Zimbabwe accords with
Article 13 of the African Charter on Human and Peoples' Rights and
the general tenor of Article 22 of the International Covenant on
Civil and Political Rights.
Further, the likely prejudice which a political party suffers in such
circumstances as obtain in the present case is far outweighed by the
need to protect and promote the right in question. It is a right that
supersedes any prejudice the applicant may lawfully lay claim to.
Generally passing-off as applicable in commercial disputes involves
unfair trade competition.
I do not agree, with respect, that a political party can claim
successfully that one of its members is passing-off when such member
uses that party's political campaign material for the furtherance
of the party's common political objective.
It seems to me the better approach is to promote the right which
serve the principle of democratic participation of the wider public
in the running of their affairs than to stifle such participation by
way of court interdicts as sought here.
In the result I remove the matter from the roll of urgent matters.
Mbidzo Muchadehama & Makoni, legal practitioners for the
applicant
