This is an appeal against the whole judgment of the High Court handed down on 1 June 2020 granting an interdict in favour of the first and second respondents (Lilian Timveos and Thabitha Kuhumalo).
BACKGROUND
On 3 April 2020, the second appellant (Douglas Mwonzora), in his capacity as Secretary General of the first appellant (Movement for Democratic Change-Tsvangirai), sent identical letters to the third and fourth respondents (Speaker of the National Assembly and President of the Senate) recalling the first and second respondents from the Parliament of Zimbabwe.
The reason for the recalls was that they had ceased to be members of the first appellant, Movement for Democratic Change-Tsvangirai (MDC-T).
On 5 May 2020, the third and fourth respondents informed their respective houses of the receipt of the second appellant's letter and vacancies created thereby.
The Zimbabwe Electoral Commission (ZEC) was duly informed of the same so that the electoral process could begin in terms of section 39(3) of the Electoral Act [Chapter 2:13] (herein after referred to as the Act).
The first and second respondents were aggrieved by the recalls. They approached the High Court with an urgent chamber application in a bid to stop the appellants from replacing their seats in Parliament.
The provisional order they sought was couched as follows:
“TERMS OF FINAL ORDER SOUGHT
It is ordered that:
1. It is hereby declared that first, second, and third respondents or anyone acting through them or on their behalf have no power or authority to replace second and third applicants (sic) who are members of the MDC–Alliance as members of the Senate and National Assembly respectively by members of the MDC-T, or any of their appointees and that such replacement of applicants is unlawful.
2. Pending a resolution of the applications in Case Nos. HC2308/20, HC2351/20 and HC2352/20 the replacements of applicants as Members of Parliament by the respondents be and is hereby stayed.
3. Respondents to bear the costs, jointly and severally, the one paying the other to be absolved.
INTERIM RELIEF SOUGHT
Pending confirmation or discharge of the provisional order, it is ordered that:
1. First, second, and third respondents or anyone acting through them or on their behalf be and are hereby interdicted, barred, and stopped from replacing applicants as members of the Senate and National Assembly, respectively, by members of MDC-T or any of their appointees.
2. Sixth respondent be temporarily interdicted from Gazetting the existence of vacancies in applicants Constituencies for purposes of taking steps to have them filled by nominees of first, second, and third respondents.”
PROCEEDINGS IN THE COURT A QUO
In their founding affidavit, the first and second respondents alleged that they did not belong to (MDC-T) but to Movement for Democratic Change Alliance (MDC-A) led by Nelson Chamisa, a party completely different from MDC-T.
According to them, only MDC-A could recall them from Parliament.
They further alleged that they were nominated to be voted into Parliament under MDC-A.
In opposing the application, the second appellant (Douglas Mwonzora) contended, that, the first appellant (MDC-T) was entitled to replace the first and second respondents as they were voted into office under the MDC-T party.
Further, he averred that the relief sought by the first and second respondents had an effect of interfering with the first appellant's right to replace its own members of Parliament.
He further stated, that, MDC-A is a pre-election pact of seven political parties that were constituted in terms of a Composite Political Agreement. The nominated candidates did not individually belong to the MDC-A, but to their respective political parties which formed the Alliance.
Further, he averred that the matter was not urgent.
The third appellant (Dr. Thokozani Khupe) raised the following preliminary points, that:
(i) The certificate of urgency was defective in that it did not state the date on which the need to act arose;
(ii) The Zimbabwe Electoral Commission ought to have been cited as a party and not citing the Chairperson;
(iii) The matter was not urgent as the founding affidavit did not have a cause of action;
(iv) There was material non-disclosure of the judgment under SC56-20 which nullified the appointment of Nelson Chamisa as president;
(v) The interim and final relief sought was the same;
(v) The court could not grant interim relief as the vacancies should be filled within 90 days.
On the merits, the third appellant associated herself with the arguments raised by the second appellant in as much as the argument that MDC-A is not a political party on its own.
She further averred, that, the first and second respondents have an alternative remedy which was to have the main matter resolved expeditiously.
The third and fourth respondents (Speaker of the National Assembly and President of the Senate) also filed their opposition.
In their opposition, they averred that the matter was not urgent as the alleged urgency was self-created.
They further contended, that, the High Court did not have jurisdiction to entertain the matter as the matter was a constitutional one.
They submitted, that, the first and second respondents case was based on the allegation that Parliament failed to fulfil its constitutional obligations by violating section 129(1)(k) of the Constitution. This allegation therefore placed the matter within the exclusive jurisdiction of the Constitutional Court in terms of section 167(2)(d) of the Constitution.
The court a quo dismissed all the points in limine.
It held that the certificate of urgency was not defective as it contained crucial information relating to the fears of the first and second respondents.
It further held that the matter was urgent.
On the question of non-citation of the Zimbabwe Electoral Commission (ZEC) the court a quo held, that, the citation of the Chairperson of ZEC, instead of the Zimbabwe Electoral Commission was proper.
It reasoned, that, the citation of the Zimbabwe Electoral Commission (ZEC) in legal proceedings is governed by section 14 of the Electoral Act which provides that the State Liabilities Act [Chapter 8:14] applies whenever ZEC is to be cited in legal proceedings.
The State Liabilities Act provides that when suing a Ministry, the Minister is to be cited.
The court held, that, equating the Zimbabwe Electoral Commission (ZEC) to a Ministry, the citing of the Chairperson of ZEC is proper.
In this regard, the court a quo also relied on the case of Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65 (S)...,.
On the issue of material non-disclosure, the court a quo held that judgments of the courts are in the public domain.
It further held that the Supreme Court judgment declared what the position in the MDC was and this did not pertain to the expulsion of the first and second respondents from Parliament.
It also found that the substance of the interim relief sought and the final order sought was not the same.
On the merits, the court a quo found that the first and second respondents had established a prima facie right which must be protected. It thus granted the order on the premise, that, the first and second respondents had established a prima facie case for the grant of the provisional order.
The order granted reads as follows:
“Pending the determination, or disposal by this Court, of the proceedings under the reference case nos. HC2351/20 and HC2352/20, the first, second and third respondents, or anyone acting through them, or on their behalf, shall refrain and desist from, and they are hereby interdicted, barred, and restrained from submitting any nomination papers in terms of section 39(4)(b) of the Electoral Act [Chapter 2:13], or submitting or supplying the names of any other person for the purposes of filling up any perceived vacancies in the Parliament of Zimbabwe in respect of the seats held by the first and second applicants in the Senate and National Assembly, respectively, as at 3 April 2020.”
Dissatisfied with the decision of the court a quo, the appellants noted this appeal. The appellants raised ten (10) grounds of appeal.
SUBMISSIONS BEFORE THIS COURT
In motivating the appeal, counsel for the appellants, on reflection, abandoned the first two grounds relating to findings on urgency. He also seemed to have abandoned grounds 4 and 10 as he did not address these grounds.
The grounds that remained pertained to:
(i) The findings that the joinder of the Zimbabwe Electoral Commission (ZEC) was not necessary;
(ii) That, the interim relief was not the same as the final relief;
(iii) That, the court a quo had jurisdiction to grant the interdict as it did not interfere with the process by the Zimbabwe Electoral Commission (ZEC); and
(iv) That, the respondents had established a case for the interdict.
Before counsel could make detailed submissions on the remaining grounds of appeal, the court drew the attention of counsel for the parties to the order granted by the court a quo and whether such was in sync with the relief the first and second respondents had approached the court for.
In addressing this point, counsel for the appellants submitted that though the grounds of appeal had not succinctly captured this anomaly, grounds 8 and 9, on the interim relief being the same as the final relief, were in fact intended to address the fact that the order granted was not proper as it was final in nature when the respondents had only sought a provisional order.
He further submitted, that, the court a quo erred in granting a final order upon a finding that only a prima facie case had been established.
It was his view that this Court may exercise its powers in terms of section 25 of the Supreme Court Act [Chapter 7:13].
As regards the citation of the Chairperson of the Zimbabwe Electoral Commission (ZEC) and not ZEC, counsel for the appellants submitted that the court a quo also erred in finding that the joinder of the Zimbabwe Electoral Commission was not necessary and the non-joinder was not fatal.
He also submitted, that, the court a quo erred in law in not finding that it had no jurisdiction to interdict a lawful process, namely, that it could not interdict the filling of vacancies that have arisen by operation of law.
Counsel for the first and second respondents conceded, that, the court a quo erred by granting a final order based on a finding that the first and second respondents had only established a prima facie case.
He submitted, that, the only amendment he made to the interim relief sought was the abandonment of paragraph 2 which sought to temporarily interdict the Zimbabwe Electoral Commission (ZEC) from gazetting the existence of vacancies in their respective constituencies. There was thus no other amendment to their prayer warranting the order that was granted.
He confirmed that what the court a quo granted was not what his clients had approached the court for.
Just as with the appellants counsel, he submitted that he only saw that the court had granted such an order upon reading the judgment.
In the circumstances, he was not averse to this Court exercising its powers in terms of section 25 of the Supreme Court Act in resolving the irregularity.
Regarding the citation of the Chairperson of the Zimbabwe Electoral Commission (ZEC) instead of ZEC, counsel insisted that the citation or joinder of the Zimbabwe Electoral Commission was not necessary, and failure to do so was not fatal, as no order was made against it.
Counsel for the third and fourth respondents (Speaker of the National Assembly and President of the Senate) had no submissions to make save to indicate that his clients would abide by the decision of the court.
Counsel for the fifth respondent (Chairperson of the Zimbabwe Electoral Commission) indicated that whilst his client would abide by the court's decision, there was, however, an unsatisfactory position of the law regarding whether the Zimbabwe Electoral Commission (ZEC) should have been cited or not.
In this regard, he alluded to section 14 of the Electoral Act as amended by Act 3 of 2012 and Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65 (S).
He juxtaposed these with section 4A of the Electoral Act as amended by Act 3 of 2012 on the corporate status of the Zimbabwe Electoral Commission (ZEC) and the Constitution of Zimbabwe Amendment (No.20) Act of 2013 which provides corporate status for independent commissions, of which ZEC is one.
ISSUES FOR DETERMINATION
Upon a careful consideration of the submissions made we are of the view that this appeal may be disposed of on the basis of the order granted.
The issue of citation is only pertinent in as far as it is necessary to bring to the fore the inconsistency alluded to.
The issues for determination may thus be restricted to:
(i) Whether or not the order granted by the court a quo was proper in the circumstances.
(ii) Whether or not the court a quo erred in finding that the citation of the chairperson of the Zimbabwe Electoral Commission (ZEC) was proper and that non-joinder of the Zimbabwe Electoral Commission, as a party, was not fatal to the proceedings as it was not necessary in terms of section 14 of the Electoral Act.
APPLICATION OF THE LAW TO THE FACTS
2. WHETHER OR NOT THE COURT A QUO ERRED IN FINDING THAT THE CITATION OF THE CHAIRPERSON OF THE ZIMBABWE ELECTORAL COMMISSION (ZEC) WAS PROPER AND THAT NON-JOINDER OF THE ZIMBABWE ELECTORAL COMMISSION AS A PARTY WAS NOT FATAL TO THE PROCEEDINGS AS IT WAS NOT NECESSARY IN TERMS OF SECTION 14 OF THE ELECTORAL ACT
The finding on the first issue in effect disposes of this appeal. However, we considered it pertinent, and for the sake of completeness, to address the issue of non-citation of the Zimbabwe Electoral Commission (ZEC) in view of the apparent inconsistencies in the law.
This matter brings to the fore the need for the appropriate authorities to address the unwelcome inconsistency through legislative intervention.
It is common cause, that, in arriving at its decision, the court a quo relied on section 14 of the Electoral Act as amended and Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65 (S)...,.
In that case, this court held, inter alia, that it was clear from section 18 of the Electoral Act that the Chairperson of the Zimbabwe Electoral Commission (ZEC) is to be cited wherever the Zimbabwe Electoral Commision is being sued.
The then section 18 of the Electoral Act was similar to the current section 14 of the Electoral Act relied upon by the court a quo which provides that:
“(1) Subject to subsection (1), the State Liabilities Act [Chapter 8:14] applies, with any necessary changes, to legal proceedings against the Commission as if the Chairperson of the Commission were a Minister.”
Whilst the law, as espoused in Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65 (S), was the legal position obtaining at the time, it is common cause that subsequent to that case, the Electoral Amendment Act 2012 (No.3 of 2012) was passed.
This amendment introduced, inter alia, section 4A to the Electoral Act which granted corporate status to the Zimbabwe Electoral Commission (ZEC) in these terms:
“(1) The Zimbabwe Electoral Commission shall be a body corporate capable of suing and being sued and subject to the Constitution and this Act, of performing all acts that bodies corporate may by law perform.”
An unsatisfactory state was created by the amended section 14 of the Electoral Act above which seemed to contradict the corporate status granted in section 4A of the Electoral Act. This position became untenable with the amendment of the Constitution of Zimbabwe in 2013.
The Constitution, as amended in 2013, provides for independent commissions, of which the Zimbabwe Electoral Commission (ZEC) is one, under Chapter 12. Section 319 of the Constitution states that:
“The commissions are bodies corporate with perpetual succession and are capable of suing and being sued in their own names.”
It is clear that section 14 of the Electoral Act is inconsistent with section 319 of the Constitution.
Such inconsistency is resolved by reference to section 2(1) of the Constitution which states that:
“This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.”
The position of the law, prior to the aforesaid amendments, where the Zimbabwe Electoral Commission (ZEC) could only be sued through its Chairperson is now invalid to the extent of that inconsistency.
The Zimbabwe Electoral Commission (ZEC) has been clothed with legal persona and is thus capable of suing or being sued in its own name.
The court a quo therefore erred in relying on the law prior to the aforesaid Constitutional Amendment.
Though the question as to whether the non-citation of the Zimbabwe Electoral Commission (ZEC) was fatal in this matter was contentious, it is our view, that, in the light of the fact that the first and second respondents abandoned the paragraph which sought to interdict the Zimbabwe Electoral Commission in its operations, and the order granted has no paragraph interdicting ZEC in its electoral processes, it is no longer necessary to determine the point.
