On 28 July 2023, this Court dismissed, with no order as to costs, an appeal against the judgment of the High Court under judgment number HH418-23 dated 12 July 2023.At the end of the proceedings, this Court indicated that the reasons for this decision would be availed in due course. ...
On 28 July 2023, this Court dismissed, with no order as to costs, an appeal against the judgment of the High Court under judgment number HH418-23 dated 12 July 2023.
At the end of the proceedings, this Court indicated that the reasons for this decision would be availed in due course. Set out hereunder are the Court's reasons thereof.
THE PARTIES
The appellant is a prospective Presidential candidate in the forthcoming Presidential Election slated for 23 August 2023. The first respondent is a registered voter in Ward 1 Mhondoro Ngezi Constituency. The second respondent is the Zimbabwe Electoral Commission (ZEC), established in terms of section 238 of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 (the Constitution). It is responsible for the administration of elections in Zimbabwe. The third respondent is the Minister of Justice, Legal and Parliamentary Affairs. He is cited in his official capacity.
FACTUAL BACKGROUND
The facts founding the instant appeal are as follows:
On 21 June 2023, the appellant, amongst other prospective candidates, successfully lodged his nomination papers as a Presidential candidate before the Nomination Court. The first respondent became aware of the appellant's nomination and acceptance of candidature through the social media.
He took exception to the acceptance of the appellant's candidature.
In a letter dated 22 June 2023, addressed to the Chief Elections Officer, the first respondent stated, that, the appellant had not been resident in his constituency, and in the country, for a continuous period of eighteen (18) months.
He further stated, that, the appellant did not therefore meet the requirements set out under section 91(c)–(d) of the Constitution.
He also stated that section 23(1) and (3) of the Electoral Act [Chapter 2:13] (the Act) mandated that a registered voter ceased to be retained on the voters roll if he had not resided in that constituency for a continuous period of eighteen (18) months.
In reply to the letter, the second respondent advised the first respondent to approach the Electoral Court for relief.
The first respondent, thereafter, filed, in the High Court, an urgent court application under section 85(1)(a) of the Constitution alleging that his fundamental rights under section 56(1), section 67(1)(a) and 67(3) had been violated.
He contended, that, the decision of the Nomination Court to accept the nomination for candidature of the appellant violated section 91(1)(c)–(d) as read together with paragraph 1(2) of the 4th Schedule to the Constitution as read with section 23(3) of the Electoral Act.
The first respondent averred, that, he approached the High Court as he was of the view that the Electoral Court does not have the jurisdiction to issue declaratory relief.
He further averred, that, the Electoral Act and Electoral (Applications Appeals and Petitions) Rules 1995 (S.I.74A of 1995) (the Electoral Rules) did not provide him with any relief.
In opposing the application, the appellant raised several preliminary objections:
He stated, that, the court a quo did not have the jurisdiction to hear and determine electoral matters in which the Electoral Court has exclusive jurisdiction. He argued, that, the first respondent could have proceeded in terms of section 28(1) and 33(1) of the Electoral Act.
He further stated, that, the first respondent had no locus standi to bring the application.
The appellant further alleged, that, the first respondent approached the court a quo on wrong choice of law, and in violation of the principle of subsidiarity.
On the merits, the appellant stated that the first respondent failed to show how the decision of the Nomination Court violated his constitutional rights.
The appellant admitted that he temporarily left the country on medical grounds but denied that he was out of the country for a continuous period of eighteen (18) months.
The second respondent filed a notice indicating that it would abide by the decision of the court a quo.
FINDINGS BY THE COURT A QUO
On the preliminary points raised, the court a quo made the following findings:
(a) On jurisdiction, that it had jurisdiction in terms of section 171(1)(a) and (c) as read with section 85(1) of the Constitution;
(b) In respect to locus standi of the first respondent, it found that he had the locus by virtue of section 85(1)(a) of the Constitution, which accords an individual the right to approach a court alleging a violation of his fundamental rights;
(c) On wrong choice of law, it found that the Electoral Court does not have the necessary jurisdiction to issue declaratory orders. It further found, that, the application was not a review disguised as a declarator as the first respondent had no remedy of review under any other law; and
(d) On the question of breach of the principle of subsidiarity, it held that the first respondent had no other remedy under any other law but to approach a court under section 85(1)(a) of the Constitution.
On the merits, the court a quo made the following findings:
(a) That, once the first respondent had made a negative averment, which was admitted by the appellant, that the appellant had left the country, the onus shifted to the appellant to prove that he was not out of the country and his constituency for a continuous period of eighteen (18) months;
(b) That, the appellant had failed to discharge the reverse onus placed upon him;
(c) In interpreting section 23(3) of the Electoral Act, it held that once a person is absent from the country, and, therefore his/her constituency, for the prescribed period, he/she is deemed, by operation of law, to have ceased to be a registered voter.
It further found, that, cessation of registration as a voter in turn disqualifies one from nomination as a Presidential candidate;
(d) That, the appellant was not resident in the country, and, as such, not resident in his constituency for a continuous period of eighteen (18) months.
Accordingly, the court found, that, the appellant had ceased to be a registered voter, and, consequently did not qualify for nomination as a Presidential candidate.
Following the above findings, the court a quo issued the following order:
“IT IS DECLARED:
1. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 was a violation of the provisions of section 91(1)(c) and (d) read together with paragraph 1(2) of the Fourth Schedule of the Constitution of Zimbabwe 2013 as further read together with section 23(2) of the Electoral Act.
2. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 is in violation of applicant's constitutional rights as set out in sections 56(1), 67(2)(a) and 67(3)(a) of the Constitution of Zimbabwe 2013.
3. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 is declared null and void and of no force and effect and hereby set aside.
4. That, first respondent is not a candidate for election to the office of President of Zimbabwe in the elections scheduled to be conducted on 23 August 2023.
ACCORDINGLY, IT IS ORDERED:
5. Second and third respondents shall not include the name of first respondent in the preparation of ballot papers to be used in the elections scheduled to be conducted on 23 August 2023.
6. First respondent is interdicted from representing of holding himself out to the general public and electorate in Zimbabwe of abroad, whether physically or through any form of media, as a candidate for election to the office of the President of Zimbabwe in elections scheduled to be held on 23 August 2023.
7. Each party shall bear its own costs.”
Dissatisfied with the court a quo's decision, the appellant filed the instant appeal on the following grounds:
“GROUNDS OF APPEAL
1. The court a quo erred at law in finding that it had the requisite jurisdiction to deal with the matter when the dispute before it clearly emanated from the Electoral Act [Chapter 2:13], and, in particular, sections 23, 28 and 33 thereof.
2. By finding that the 1st respondent had locus standi in judicio and adopting a liberal approach to it in a clearly non-constitutional matter, the court a quo committed an error at law which must be impeached by this Court.
3. By finding that the General Notice 1128-2023 made in terms of section 106 of the Electoral Act [Chapter 2:13] did not constitute law, the court a quo grossly erred and misdirected itself as it ignored the provisions of section 15A and 20 of the Interpretation Act [Chapter 1:01].
4. By entertaining the application on constitutional basis as it did, the court a quo erred and violated the constitutional principle of subsidiarity as it ignored specific provisions in the Electoral Act [Chapter 2:13], Administrative Justice Act [Chapter 10:28] and/or common law, which provide specific, adequate, and satisfactory remedies to the 1st respondent.
5. A fortiori, the court a quo erred in making an uncanny finding, that, the decision of the Nomination Court did not constitute a reviewable decision at law thereby dismissing the preliminary point that the application was a disguised review process.
6. The court a quo further erred in placing reverse onus to the appellant to prove his residence status in violation of the law and in complete disregard of the averments that were made by the 1st respondent in evidence.
7. Further, the court a quo erred in making a finding that the averments pertaining to the residence status of the appellant, as made by the 1st respondent, were in the negative thereby improperly applying the law.
8. Related to ground number 7 above, the court a quo grossly misdirected itself in making a factual finding that the appellant was not or has not been in the country for a period stipulated in section 23(3) of the Electoral Act in the absence of evidence establishing the same.
9. In taking purported judicial notice of the alleged absence of the appellant from Zimbabwe, the High Court erred, in using the principle of judicial notice to assist the 1st respondent in discharging an onus that he had miserably failed to establish on the founding papers.
10. The court a quo erred and misconstrued section 23 of the Electoral Act in deeming the appellant removed from the voters roll without having regard to section 28 of the same which posits a process which must be followed in removing a registered voter from the voters roll thereby disqualifying him as a Presidential candidate for the forthcoming plebiscite.
11. All in all, the court a quo erred at law by granting as it did, an unspeaking order with the result that no one knows what relief exactly was granted in the absence of an un-issued draft order which does not form part of the disposition of the judgment.
12. The court a quo erred at law in granting an application without making a positive finding on the infringement of section 67 of the Constitution.
RELIEF SOUGHT
The appellant prays that the appeal be allowed with costs and that the judgment of the court a quo, handed down under EC10/23, on 12 July 2023, be set aside and in its place and stead thereof be substituted with the following:
'IN THE MAIN, the court declines its jurisdiction.
IN THE ALTERNATIVE, the application is struck off the roll with costs.
IN THE ALTERNATIVE, the application is dismissed with costs on an attorney-client scale.'”
By consent, the above grounds were amended by adding the following:
“13. In dealing with the question of the perceived absence of the appellant from a constituency, and not cessation of residence in a constituency, the court a quo erred, and, by so doing, conducted a wrong enquiry leading to a judgment that is contrary to the dictates of section 23(3) of the Electoral Act.
The court a quo erred at law in disposing of the matter before it on the basis of perceived absence from a constituency when the law upon which the application was predicated, section 23(3) of the Electoral Act, relates to cessation to reside in a constituency, a totally different concept that has its own different requirements.”
PROCEEDINGS BEFORE THIS COURT
Prior to the hearing of this appeal, the appellant had, by letter dated 21 July 2023, and addressed to the Registrar, requested the appointment of a five-member Bench to determine whether or not the case of Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21 was properly decided.
At the commencement of the proceedings, the appellant abandoned the request and submitted that the matter should proceed before the Bench as constituted.
Counsel for the second and counsel for the third respondent submitted that they would abide by the decision of the court....,.
JURISDICTION OF THE COURT A QUO
In dealing with the merits of the appeal, the appellant raised a new point of law without notice to the other side.
The new point related to jurisdiction of the court a quo, and, by extension, to this Court.
It was submitted, that, in terms of section 167(2)(b) of the Constitution, it is only the Constitutional Court that can hear and determine disputes relating to election to the office of President.
It was further submitted, that, the section relates, not only to election petitions but also to every facet of the process of electing the President, starting with the nomination process under consideration.
It was submitted, that, section 161 of the Electoral Act creates the Electoral Court as a specialized division of the High Court with exclusive jurisdiction to hear and determine all electoral matters except for petitions relating to disputes on the election of the President and criminal cases.
It was further submitted, that, the Electoral Court, being a division of the High Court, has powers to give judgments, orders, and directions - which powers include issuing declaratory orders.
The above submissions were made contrary to the concession made in the appellant's heads of argument, that, the Electoral Court does not have the power to issue a declaratory order.
Upon being engaged by the court on this apparent contradiction, the appellant submitted that he was withdrawing the concession as it was bad at law.
For this submission, he relied on the case of Moven Kufa & Anor v The President of Zimbabwe & Anor CC22-17.
It was submitted, that, the first respondent could not approach the court a quo in terms of section 85(1) of the Constitution as his remedy lies in the Electoral Court.
It was further submitted, that, whilst section 171(1) of the Constitution granted the court a quo the right to hear and determine constitutional matters, it did not take away the jurisdiction of the Electoral Court in electoral matters.
It was further argued, that, in Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21 the court did not consider the import of section 161 of the Electoral Act, and, in particular, that the court is a division of the High Court and has the same powers as the High Court.
In concluding his submissions on this point, the appellant submitted that the judgment was per incuriam and it did not have to be followed as a precedent of the court.
Per contra, the first respondent objected to the new point of law, arguing that such a point cannot be taken without notice.
It was also submitted, that, this point was not raised in the court a quo neither was it addressed in the appellant's heads of argument before this Court.
Notwithstanding the objection, the respondent submitted as follows:
There is a distinction between nomination and election. Nomination is a process that precedes an election.
In the event that a person is unhappy with the nomination process, he appeals to the Electoral Court in terms of Part IV of the Electoral (Applications Appeals and Petitions) Rules 1995 (SI74A of 1995) (the Electoral Rules). However, in the event that there is a dispute relating to the election of the President into office, one can only approach the Constitutional Court directly.
The process of nomination takes place long before an election.
It was further submitted that Rule 10 of the Electoral (Applications Appeals and Petitions) Rules 1995 (S.I.74A of 1995) (the Electoral Rules) provides that an appeal to the Electoral Court may only be made by a candidate.
The first respondent, not being a candidate, would not have been able to bring an appeal in terms of the Electoral Act and its Rules.
The first respondent, therefore, did not have a remedy in the Electoral Court.
In relation to the issue raised in the first ground of appeal, the first respondent asserted that section 161 of the Electoral Act is only applicable when the court is seized with an application or an appeal in terms of the Electoral Act.
It was argued, that, the application before the court a quo was brought in terms of section 85(1) of the Constitution wherein the first respondent was seeking a declaratory order.
The first respondent, desirous to bring a constitutional application, had the right to approach the court a quo as the court was given the power, under section 171 of the Constitution, to hear and determine constitutional applications.
The court a quo's finding, that the Electoral Court does not have jurisdiction to issue declaratory orders, is grounded in a judgment of the Supreme Court itself in Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21.
It was further submitted, that, the Electoral Court has the same powers as the High Court only in the limited circumstances set out in the Electoral Act and discussed in Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21.
The decision in that case was binding on the court a quo.
Having considered the submissions by the parties, this Court finds that the court a quo had jurisdiction to hear and determine the application in terms of section 85(1) of the Constitution which reads as follows:
“85 Enforcement of fundamental human rights and freedoms
(1) Any of the following persons, namely -
(a) Any person acting in their own interests;
(b)…,.
(c)…,.
(d)…,.
(e)…,.
Is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”
The Court's finding in this regard finds expression in the words of MALABA DCJ…, in the case of Meda v Sibanda 2016 (2) ZLR 232 (CCZ)…, where he remarked that:
“It is clear from a reading of section 85(1) of the Constitution that a person approaching the Court in terms of the section only has to allege an infringement of a fundamental human right for the Court to be seized with the matter.
The purpose of the section is to allow litigants as much freedom of access to courts on questions of violation of fundamental human rights and freedoms with minimal technicalities.
The facts on which the allegation is based must, of course, appear in the founding affidavit. Whether or not the allegation is subsequently established as true is a question which does not arise in an enquiry as to whether the matter is properly before the Court in terms of section 85(1).
In this case, the applicant alleged, in the founding affidavit, that her right to property had been infringed. Whether her allegation is true or not is not the issue. What matters is that she alleged a violation of a fundamental human right, and, as such, the Court was properly seized with the matter.
The question of the veracity of the allegation would have been tested on the basis of evidence placed before the Court.”
Considering that Meda v Sibanda 2016 (2) ZLR 232 (CCZ) is a decision of the Constitutional Court, it is final and binding on all subordinate courts.
That being the case, the court a quo undoubtedly had the requisite jurisdiction, in terms of section 171(1) of the Constitution, as it was dealing with a constitutional application brought in terms of section 85(1) of the Constitution.
The appellant went to great lengths arguing, that, what was before the court a quo was an electoral matter which should have been filed before the Electoral Court on the basis that it has exclusive jurisdiction to hear all electoral matters.
The submissions by the appellant raise the issue whether the conferment of exclusive jurisdiction on the Electoral Court, in terms of section 161 of the Electoral Act, ousts the court a quo's jurisdiction in electoral matters.
That issue was resolved by Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21 where it was stated that:
“25. The Electoral Act does not provide, nor purport to give the court the jurisdiction to grant declaratory orders. A declaratur, by nature, is a special remedy open to any individual who has an interest in any matter who seeks a declaration on existing or future rights. The power of the High Court to grant declaratory orders is entrenched in section 14 of the High Court Act. Section 14 provides as follows:
'14. High Court may determine future or contingent rights
The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.'
26. It seems to me that section 14 of the High Court Act is a special provision which flows from the fact that the High Court has inherent jurisdiction which the Electoral Court does not have. The remedy of a declaration of rights is a remedy which the High Court grants within its discretion. That is not a remedy which may be shared by a court which has limited jurisdiction.
27. It could not have been the intention of the legislature to give the Electoral Court the power to grant declaratory orders through the amendment of section 161 of the Act. In my view, section 161 of the Act was amended so as to provide the Electoral Court with wider powers so that it is not restricted to dealing only with election petitions as was the position prior to 2012.”
See ZIMASCO (Pvt) Ltd v Maynard Marikano 2014 (1) ZLR 1.
The decision in Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21, that the Electoral Court does not have jurisdiction to issue declaratory orders, is final and binding.
The correctness and finality of decisions of the Supreme Court cannot be impugned as was enunciated in Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Limited & Anor 2018 (2) ZLR 743 (CCZ)…, where it was held that:
“The principles that emerge from section 169(1) of the Constitution, as read with section 26 of the Act (Supreme Court Act) are clear. A decision of the Supreme Court, on any non-constitutional matter in an appeal is final and binding on the parties and all courts except the Supreme Court itself….,.
What is clear is that the purpose of the principle of finality of decisions of the Supreme Court on all non-constitutional matters is to bring to an end the litigation on the non-constitutional matters.
A decision of the Supreme Court on a non-constitutional matter is part of the litigation process.
The decision is therefore correct because it is final. It is not final because it is correct. The correctness of the decision, at law, is determined by the legal status of finality. The question of the wrongness of the decision would not arise. There cannot be a wrong decision of the Supreme Court on a non-constitutional matter.”
The submission by the appellant, that the decision in Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21 is in per incuriam, is without merit.
This Court engaged the import of section 161 of the Electoral Act in coming up with its decision.
The fact that the Electoral Court is a division of the High Court does not detract from the fact that it is a creature of statute with limited jurisdiction.
The court a quo was therefore correct as it was bound to follow the decision in Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21.
This Court finds that the Electoral Court did not have jurisdiction to issue a declaratory order which was sought by the first respondent in the court a quo. Accordingly, this Court finds no merit to the challenge to the court a quo's jurisdiction.
Having found that the court a quo had jurisdiction, in terms of section 85(1) of the Constitution, to the exclusion of the Electoral Court, the question of subsidiarity falls away.
