The applicants in this case allege that their right to freedom of association, guaranteed by sections 21(1) and 21(2) of the Constitution of Zimbabwe (“the Constitution”), and their right to protection of the law, guaranteed by section 18(1) of the Constitution, were violated by the second respondent, an employee of ...
The applicants in this case allege that their right to freedom of association, guaranteed by sections 21(1) and 21(2) of the Constitution of Zimbabwe (“the Constitution”), and their right to protection of the law, guaranteed by section 18(1) of the Constitution, were violated by the second respondent, an employee of the first respondent.
The alleged violation of the applicants' rights occurred in the course of the second respondent's employment with the first respondent.
THE FACTS
The applicants in this case are leaders of two different political parties. Both applicants wished to contest the Presidential Election conducted on 29 March 2008. The election which the respondents wanted to contest is complete and the outcome has been announced.
The applicants are seeking a declaratory order that their rights were violated.
Counsel for the applicants submitted that the outcome of this application has no bearing on the already completed election. He contends, however, that this application for a declaratory order is more than a mere academic exercise. He contends that a determination by this Court will provide a useful guideline for the future conduct of election officials.
Put differently, the completed electoral process will not be affected by the outcome of this case.
15 February 2008 was the nomination day for the Presidential Election conducted on 29 March 2008. All aspiring candidates wishing to contest the 29 March 2008 Presidential Election were required to file their nomination papers by four o'clock on the afternoon of 15 February 2008.
The first applicant avers that on 15 February 2008 he arrived at and entered the Nomination Court at or about 15:45 hours. This was fifteen minutes before the official closing time for nominations.
He submitted his nomination papers to the second respondent who advised him to wait until the official had finished attending to the second applicant. The second applicant at that time was filling in some forms.
He sat in the Nomination Court awaiting his turn to be attended to and to file his own nomination papers.
When the second applicant finished filling in his papers, he presented them to the second respondent, only to be told that the Nomination Court had closed and his nomination papers would not be accepted.
When the second applicant was told that his nomination papers could not be accepted, the first applicant moved forward to submit his own nomination papers as he had been advised to wait until the nomination officer had finished attending to the second applicant. The first applicant contends that upon presenting his nomination papers he too was told that his nomination papers could not be accepted as the Nomination Court had closed.
He protested at this turn of events to no avail.
What transpired thereafter is not entirely clear from the affidavits filed by the parties.
The first applicant sets out his version of what transpired in paragraph 11 of the founding affidavit, while the first respondent sets out its version of what transpired in paragraph 6 of the opposing affidavit.
The two versions do not present a clear chronology of the events which occurred thereafter.
Counsel for the respondents, in both the High Court and the Electoral Court proceedings, made certain submissions which were accepted by the applicants as correct. These submissions, to some extent, clarified what transpired after the rejection of the applicants' nomination papers.
The following appears to have happened:
After the rejection of their nomination papers, the applicants launched a Chamber Application in the High Court. The chamber application to the High Court is attached to this application. In terms of the draft order, the applicants sought the following relief from the High Court:
“1. The respondent is ordered to accept the applicants' papers.
2. The respondent is ordered to declare the applicants duly nominated for the March 2008 Presidential Elections.
3. That the respondent pays costs of suit.”
According to counsel for the respondents, the matter was argued before GUVAVA J, sitting as a High Court Judge. She dismissed the Chamber application on the basis that the High Court had no jurisdiction to entertain the application and that it was the Electoral Court that had jurisdiction to deal with the matter in terms of section 46(19) of the Electoral Act [Chapter 2:13] (“the Act”).
Thereafter, the application found its way to the Electoral Court in terms of section 46(19) of the Electoral Act.
According to counsel for the respondents, the application was heard by UCHENA J, sitting as a Judge of the Electoral Court.
The application was dismissed on the ground that the matter had prescribed.
In terms of section 46(19)(b) of the Electoral Act [Chapter 2:13], a candidate has a right of appeal against a decision of the Nomination Officer to a Judge of the Electoral Court. In terms of section 46(19)(c) of the Electoral Act, the right of appeal lapses after four days and the decision of the Nomination Officer becomes final.
After the dismissal of the appeal by the Electoral Court nothing happened until 15 April 2008 when the present application was launched in this Court.
This application is made in terms of section 24(1) of the Constitution.
As already stated, the applicants are asking for a declarator that does not seek to change the outcome of the already completed election.
THE ISSUES
The averments of the applicants, as to what transpired at the Nomination Court, have not been put in issue by the respondents. In particular, the second respondent has not filed an affidavit disputing the allegations made against him relating to his conduct during the Nomination Court proceedings.
Given this situation, this Court has to accept, as a fact, that the applicants arrived at the Nomination Court at least fifteen minutes before the closing time on the nomination day.
In terms of section 46(7) of the Electoral Act, a candidate who is within the Nomination Court at close of business is entitled to have his nomination papers accepted by the Nomination Court.
The proposition that what is not denied in affidavits must be taken as admitted is not disputed by the respondents and is supported by authorities: see Fawcett Security Operations P/L v Director of Customs and Excise and Ors 1993 (2) ZLR 121 (S)…,; Nhidza v Unifreight Ltd SC27-99; and Minister of Lands and Agriculture v Commercial Farmers Union SC111-01…,.
Counsel for the second respondent has raised three defences:
(i) Firstly, he argues that the remedy available to the applicants, upon the rejection of their nomination papers, was an appeal to a Judge of the Electoral Court in terms of section 46(19) of the Electoral Act.
When the applicants failed to do so timeously the decision of the Nomination Officer became final in terms of section 46(19)(c) of the Electoral Act.
An application to this Court, in terms of section 24(1), so he submitted, is a disguised appeal against the decision of the Electoral Court or the Nomination Officer. He argues that this is not permissible.
The decision of the Nomination Officer, if not appealed against in terms of section 46(19)(b) of the Electoral Act, becomes final in terms of section 46(19)(c) of the Electoral Act.
The applicants, as I understand his argument, failed to avail themselves of the protection of the law by failing to comply with the procedure laid down in section 46 of the Electoral Act.
(ii) Secondly, counsel for the second respondent submitted that this application should be dismissed on the basis that this matter arose from proceedings in both the High Court and the Electoral Court and therefore can only find its way to the Supreme Court by referral in terms of section 24(2) of the Constitution.
He further argued that section 24(3) of the Constitution specifically prohibits the making of an application to this Court in terms of section 24(1) of the Constitution in respect of matters arising from proceedings in the High Court or any subordinate adjudicating authority.
In response, counsel for the applicants argued that section 46(19) of the Electoral Act did not apply to the applicants because their papers were not rejected by the second respondent in terms of section 46(10) or section 46(16) of the Electoral Act. The remedy of an appeal to an electoral Judge, provided for in section 46(19) of the Electoral Act, is limited to litigants whose nomination papers are rejected in terms of section 46(10) or section 46(16) of the Electoral Act.
Counsel for the applicants also submitted that the present application did not arise from proceedings in the High Court or in the Electoral Court, and, accordingly, the applicants are not barred from approaching this Court by section 24(3) of the Constitution.
(iii) Counsel for the second respondent also raised the issue of citation and submitted that the first respondent was wrongly cited having regard to the provisions of section 18 of the Zimbabwe Electoral Commission Act [Chapter 2.12].
This was disputed by counsel for the applicants.
On the basis of the foregoing, three issues emerge on the papers -
(1) Whether or not the first respondent was correctly cited;
(2) Whether or not the applicants' nomination papers were rejected in terms of section 46(10) or section 46(16) of the Electoral Act, in which case the applicants should have followed the procedures provided in section 46(19) of the Electoral Act; and
(3) Whether the alleged violation of the applicants' rights in the present application is a question that arose in proceedings in the High Court and/or the Electoral Court.
I will deal with the second issue first:
Does section 46 of the Electoral Act apply to the applicants?
The second issue raises the question of the correct interpretation of subsections 46(8), (9), (10) and (19) of the Electoral Act. Subsections 46(8), (9), (10) and (19) of the Electoral Act provide as follows:
“(8) The nomination officer shall examine every nomination paper lodged with him or her which has not been previously examined by him or her in order to ascertain whether it is in order and shall give any candidate or his or her chief election agent an opportunity to rectify any defect not previously rectified and may adjourn the sitting of the court for that purpose from time to time: Provided that the sitting shall not be adjourned to any other day that is not a nomination day.
(9) If, on examining a nomination paper which specifies that the candidate concerned is to stand for or be sponsored by a political party, the nomination officer is doubtful that such fact is true, the nomination officer may require the candidate, or his or her chief election agent, to produce proof as to such fact, and may adjourn the sitting of the court for that purpose from time to time: Provided that the court shall not be adjourned to any other day that is not a nomination day.
(10) Subject to subsections (8) and (9), the nomination officer, in open court, shall reject any nomination paper lodged with him or her at any time –
(a) If he or she considers that any symbol or abbreviation specified therein in terms of paragraph (b) or (c) of subsection (1) –
(i) Is indecent or obscene; or
(ii) Is too complex or elaborate to be reproduced on a ballot paper; or
(iii) So closely resembles –
A. The symbol of any other candidate contesting the election in the constituency concerned; or
B. The recognised symbol or abbreviation of any political party, other than the political party, if any, for which the candidate concerned is standing or which is sponsoring him or her; as to be likely to cause confusion; or
(b) If any symbol specified therein in terms of paragraph (b) of subsection (1) is a prohibited symbol; or
(c) If the nomination paper states that the candidate concerned is to stand for or be sponsored by a political party and the nomination officer has reason to believe that that fact is not true; or
(d) If, in his or her opinion, the nomination paper is for any other reason not in order; and subsection (19) shall apply…,.
(19) If a nomination paper has been rejected in terms of subsection (10) or been regarded as void by virtue of subsection (16) –
(a) The nomination officer shall forthwith notify the candidate, or his or her chief election agent, giving reasons for his or her decision; and
(b) The candidate shall have the right of appeal from such decision to a judge of the Electoral Court in chambers and such judge may confirm, vary or reverse the decision of the nomination officer and there shall be no appeal from the decision of that judge; and
(c) If no appeal in terms of paragraph (b) is lodged within four days after the receipt of notice of the decision of the nomination officer, the right of appeal of the candidate shall lapse and the decision of the nomination officer shall be final; and
(d) If an appeal in terms of paragraph (b) is lodged, the judge concerned may –
(i) Direct that any further proceedings under this section, in relation to that election, shall be suspended, if necessary, pending determination of the appeal; and
(ii) Specify a day or days on which any poll in terms of this Part and Part XIII shall be held; and, if he or she does so, the Chief Elections Officer shall cause notice thereof to be published in the Gazette.”
A proper reading of the above sub-sections reveals that the applicants' contention, that the nomination papers of the applicants were not rejected in terms of subsection (10) of section 46 of the Electoral Act, cannot but be correct.
I, however, come to this conclusion for reasons different from those advanced by the applicants.
The applicants contend that section 46 of the Electoral Act does not apply to Presidential Elections.
It does, by reason of the provisions of section 104(3) of the Electoral Act.
In my view, if the applicants' nomination papers were rejected other than in terms of section 46(10) or section 46(16) of the Electoral Act, then the remedy provided for in subsection 46(19) was not available to them.
Subsection 46(10) clearly states that it is subject to subsections 46(8) and 46(9) of the Electoral Act.
Put differently, the application of sub-section (10) is conditional upon the fulfilment of the requirements of sub-sections (8) and (9).
Subsections (8) and (9) envisage that nomination papers are submitted to the nomination officer who in turn accepts and examines the nomination papers. It is only after a nomination officer has accepted and examined the nomination papers that he can act or do any of the things provided for in terms of subsection (10).
The facts of this case clearly show that the nomination papers of the first applicant were never accepted by the nomination officer. The second applicant's nomination papers were rejected on re-submission.
I will proceed on the basis that the second applicant's nomination papers were also rejected.
Without first accepting and examining the nomination papers, a nomination officer cannot comply with subsections (8) and (9), and, consequently, act in terms of sub-section (10).
It is quite clear, on the papers, that the nomination papers were rejected for failure to comply with subsection 46(7) of the Electoral Act, which provides that nomination papers have to be submitted by four o'clock in the afternoon of the nomination day.
The second respondent has not filed an affidavit in this case.
The inescapable inference, from the accepted facts, as deposed to by the applicants, is that the nomination officer rejected the nomination papers because, in his view, the nomination papers were submitted after 4 o'clock on the nomination day.
Indeed, that is what the applicants were told by the second respondent.
The applicants, however, contend that they were inside the Nomination Court by close of nominations, and, that in terms of the proviso to section 46(7) of the Electoral Act, their nomination papers should have been accepted and examined by the second respondent.
Section 46(7) of the Electoral Act [Chapter 2:13] provides:
“(7) No nomination paper shall be received by the nomination officer in terms of subsection (6) after four o'clock in the afternoon of nomination day, or, where there is more than one nomination day for the election concerned, the last such nomination day: Provided that, if at that time a candidate or his or her chief election agent is present in the court and ready to submit a nomination paper in respect of the candidate, the nomination officer shall give him or her an opportunity to do so.”
It is quite clear to me that the applicants' nomination papers were rejected by the second respondent for non-compliance with section 46(7) of the Electoral Act, contrary to the explicit provisions of section 46(7) of the Electoral Act.
On a proper reading of the Electoral Act, a candidate whose nomination papers have been wrongfully rejected for non-compliance with section 46(7) of the Electoral Act cannot appeal to a Judge of the Electoral Court in terms of section 46(19) of the Electoral Act.
Indeed, the Electoral Act does not provide a remedy for such a candidate.
This appears to be an oversight by the draftsperson.
Where no specific remedy is provided for in the Electoral Act, the High Court can exercise its inherent jurisdiction of review.
It would appear to me, therefore, that the approach to the High Court in the first instance was correct, and, had the cause of action been properly pleaded, the probabilities are that the High Court would have exercised its review jurisdiction and determined the matter.
As things stand, the High Court declined to determine the matter on the ground that it had no jurisdiction.
I am satisfied that section 46(10), section 46(16), and section 46(19) of the Electoral Act do not apply to the applicants and their contention in this regard succeeds.
