I am inclined to agree with the remarks by the court a quo that:

“The provisions of s103(2) are peremptory and in the absence of a cogent argument as to why council should not comply with the said provision I am unable to find that s89 applies in the removal of a mayor from office.”

This is an appeal against a judgment of the Labour Court which dismissed an appeal by the appellant (“Murawo”) against the termination of his contract of employment by the respondent, the Grain Marketing Board (“the GMB”).

The background facts are as follows:

Murawo was employed by the GMB as a Safety, Health and Environment Officer. Between 4 March and 7 March 2004 the GMB held a strategic planning workshop (“the workshop”) at Troutbeck Inn, Nyanga. Those eligible to attend the workshop were divisional heads and departmental heads. Officers below departmental heads could also attend the workshop if invited.

Murawo was neither a divisional head nor a departmental head.

On 5 March 2004, Murawo attended the workshop and presented his paper. However, it later turned out that Murawo's attendance at the workshop had not been authorised by the GMB directorate. He was, therefore, asked to leave the workshop.

On 6 March 2004, Murawo left the workshop and checked out of the hotel, but remained within the hotel premises because he had a cheque to give to Mrs Zemura (“Zemura”), the GMB's Public Relations Manager, who was participating in the workshop.

However, Murawo's continued presence at the hotel offended the GMB directorate.

Consequently, the directorate called upon Mhonde, Murawo's head of department, to ensure that Murawo left the hotel premises. Subsequently, Murawo left Troutbeck Inn after giving Zemura the cheque that he was supposed to give her.

Thereafter, on 8 March 2004, Murawo was suspended without pay and benefits on the ground that he had committed two acts of misconduct in terms of the GMB Code of Conduct (“the Code”). In relevant part, the letter of suspension, written by Mhonde, reads as follows:

“On Wednesday the 3rd of March 2004, you communicated to me that the Marketing Director had invited you to the Strategic Planning Workshop. This, however, turned out to be untrue.

On Saturday morning, at about 08.30am, on the 6th March 2004, I told you to leave the Troutbeck Inn immediately as you were not invited to the meeting. However, up to lunchtime you were still at the premises and now purporting to have been tasked by the A/CEO to discuss issues related to workers with the Union representatives, Mr Munodawafa and Mr Mhunza, and present them in the seminar. This also turned out to be untrue.

Given the scenario explained above, Management has decided that you be suspended without pay and benefits with immediate effect, and you are being charged in line with the GMB Code of Conduct as follows:

1. Category I section 1: 'Insubordination – wilful and unreasonable disobedience of a lawful order from a superior'.

2. Category I section 5: '…, activities inconsistent with the express or implied condition of his contract of employment.'…,.

In keeping with the provisions of our Code of Conduct you are required to reply in writing answering to the above charges…,. Your reply must, of necessity, cover the following aspects:

(a) Admit or deny the charges.

(b) Facts to be taken into account if you admit the charges.

(c) If you deny the charges, offer an explanation of the basis of your defence…,.”

On 9 March 2004, Murawo replied to the letter of suspension. His letter, in relevant part, reads as follows:

“I confirm that I did not receive a written invitation to present a paper at the Troutbeck Retreat. I, however, thought, in good faith, that, since this was an important strategic planning session of the organisation our department could take advantage of the gathering of eminent people in the organisation to market the Health and Safety portfolio which was launched some eight months ago.

I prepared a document for presentation. Initially, the presentation was short and just a small section of the presentation of the Engineering Department. I, however, developed a longer presentation which I thought could be incorporated in the Engineering Report. I thought I was contributing to the organisation's cause. I did not know that in doing so I was contravening any section of the GMB Code of Conduct.

Therefore, if at all I contravened category I section 1 and 5 of the Code, the contravention was not wilful.

When I was excused from the activities of the 6th of March 2004, I checked out of the hotel. I, however, realised that I had forgotten to give a cheque I had been asked to bring to Mrs Zemura. As the morning session had already started, I thought it was not wise to disturb the session. I waited for an opportune moment to give the cheque to Mrs Zemura. That moment presented itself at lunchtime and I duly handed over the cheque to Mrs Zemura. At the same time, some apples and potatoes I had ordered away from the hotel, after checking out, were only delivered to me around the same time. I then left for Harare…,.”

On 18 March 2004, Murawo appeared before a disciplinary hearing committee which found him guilty on both counts, and recommended his dismissal. He was subsequently dismissed with effect from the date of his suspension, i.e. 8 March 2004.

Thereafter, on 3 May 2004, Murawo appealed to the Acting Chief Executive Officer (“Muvuti”) against the dismissal. In that appeal he alleged that he had attended the workshop because Mhonde had indicated to him that he (Mhonde) would be comfortable if he (i.e. Murawo) attended the workshop and presented his own paper as an addendum to his (i.e. Mhonde's) report. He also denied being ordered by Mhonde to leave Troutbeck Inn.

Nevertheless, on 30 May 2004, Muvuti dismissed the appeal.

Aggrieved by that decision, Murawo appealed to the Labour Court. After hearing evidence and considering written submissions filed on behalf of the parties, the Labour Court allowed the appeal in respect of the first count, i.e. the count alleging “wilful and unreasonable disobedience of a lawful order from a superior”, but, dismissed the appeal in respect of the second count, i.e. the count alleging that Murawo committed “activities inconsistent with the express or implied condition of his contract of employment.”

Dissatisfied with that result, Murawo appealed to this Court....,.

The main issue in this appeal is whether Murawo was properly found guilty of “activities inconsistent with the express or implied condition of his contract of employment.”

However, before dealing with that issue, I would like to consider a submission by Murawo's counsel in his heads of argument.

The submission was that the Labour Court erred in its interpretation of the act of misconduct specified in section 5 of category I offences, and that, in terms of the eiusdem generis rule of statutory interpretation the conduct complained of by the GMB does not constitute the act of misconduct specified in section 5.

The act of misconduct specified in section 5 reads as follows:

“Incitement, intimidation, indulging in disorderly behaviour or activities inconsistent with the express or implied condition of his contract of employment.”

As already indicated, Murawo was charged with “activities inconsistent with the express or implied condition of his contract of employment.”

The submission by Murawo's counsel was that the activities inconsistent with the express or implied condition of an employee's contract of employment, envisaged in section 5, must be activities in the same genus or class as incitement, intimidation and indulging in disorderly behaviour.

The learned author, GAIL-MARYSE COCKRAM, states the eiusdem generis rule as follows, at p153 of her work, The Interpretation of Statutes 3ed:

“Where a list of items which form a genus or class is followed by a general expression, the general expression is, in the absence of a contrary intention in the statute, construed eiusdem generis to include only other things of the same class as the particular words.”

I should now determine whether the eiusdem generis rule applies to the interpretation of Employment Codes of Conduct.

I do not think it does.

I say so because, in general, Employment Codes of Conduct are not drafted with the same expertise and precision required for the drafting of statutes. Almost invariably, Employment Codes of Conduct are drafted by laymen with little or no knowledge of law.

However, even if the eiusdem generis rule applied to Employment Codes of Conduct, I am of the view that the rule should have no application in the present case because it would lead to an absurdity. It would mean that “activities inconsistent with the express or implied condition of his contract of employment” which are in the same genus or class as “incitement, intimidation (and) indulging in disorderly behaviour” would constitute acts of misconduct, whilst other “activities inconsistent with the express or implied condition of his contract of employment”, which are not in the same genus or class as “incitement, intimidation (and) indulging in disorderly behaviour”, which could be more serious activities, would not constitute acts of misconduct.

In any event, the eiusdem generis rule is not a rule of general application, and has to be applied with caution.

This point was made by SOLOMON CJ, in Rex v Nolte 1928 AD 377…, where the learned CHIEF JUSTICE said:

“Moreover, the rule itself is one that has to be applied with caution, and is not of general application. Thus, LORD ESHER, in Anderson v Anderson (1895 1 QB 752) in commenting upon the rule, said:

'I am not surprised to find that the modern tendency of the Courts has been to construe general words in their ordinary sense'…,.”

Similar views were expressed by BARON JA in S v Makandigona 1981 (4) SA 439 (Z AD)…, as follows:

“It must be remembered that the eiusdem generis rule is only one of many rules of construction; it is not to be invoked automatically whenever general words follow particular words. Thus, Craies on Statute Law 7ed says at 181:

'The eiusdem generis rule is one to be applied with caution and not pushed too far, as in the case of many decisions, which treat it as automatically applicable, and not as being what it is, a mere presumption, in the absence of other indications of the intention of the legislature.'”

In the circumstances, I am satisfied that the Labour Court did not err in its interpretation of the act of misconduct specified in section 5 of Category I offences. I am also satisfied that the conduct complained of by the GMB constitutes the act of misconduct specified in section 5.

This is a labour dispute between the parties. A brief history of the matter is as follows:

The appellant (the Corporation) employed the respondent (Mr Moyana) on 20 October 1980 as a Marketing Executive. The contract was a simple one, providing that his functions were to be assigned to him from time to time. His starting salary was specified and it was provided that "salary reviews are carried out in Nedlaw as and when an executive shows himself to have performed well and produced results."

(Nedlaw was the Corporation's holding company).

There was also provision for one month's notice of termination of the contract to be given by either side.

Mr Moyana became a Training Officer in the Training Department in 1981 and a Principal Training Officer on 9 January 1982.

On 27 May 1986, the Group Personnel and Training Director wrote complaining about certain alleged shortcomings in Mr Moyana's work, and Mr Moyana replied rejecting the complaints. He claimed that the problems arose out of shortage of staff, and pointed out that the Training Manager had been transferred and not replaced. He claimed that his request for a salary review had been ignored and asserted that he was entitled to an acting allowance during the absence of the Training Manager.

The Corporation's Chairman then wrote withdrawing the letter of 27 May 1986 and adding "Your reply dated 2 June 1986 therefore falls away."

Mr Moyana at once responded that he did not withdraw his claim to be paid as a Training Manager from the time the actual Training Manager had left. (He did not, at any stage, rely on an actual appointment as Training Manager).

After a certain amount of bickering, which need not be set out, the Corporation suspended Mr Moyana without pay with effect from 16 July 1986 and referred the dispute to a Labour Relations Officer in terms of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985 (S.I.371 of 1985).

Thereafter, events developed as follows:

1. On 1 October 1986, the Hearing Officer made a determination that Mr. Moyana be reinstated and paid $12,000 in "Back payment in salary."

2. The Corporation appealed to the Regional Hearing Officer, but, meanwhile, on 6 October 1986, reinstated Mr Moyana as directed.

3. On 22 December 1986, the Regional Hearing Officer upheld the Hearing Officer's decision and increased the "back payment" from $12,000 to $15,184.

4. On 25 March 1987, the High Court, in Judgment No. HH168-87, set aside both these determinations on the grounds of procedural irregularity. In doing so, it commented: "It may well be that, in practical terms, the applicant will be obliged to approach the Labour Relations Officer once again for authority to dismiss the second respondent, but, that is not the concern of this court."

5. Ignoring this advice, and after further criticism by the Corporation's senior officers of Mr Moyana's performance, the Chairman wrote to him, on 28 May 1987, formally terminating his contract of employment and giving him a month's pay in lieu of notice.

6. On 8 June 1987, Mr Moyana referred this dismissal and his claim for an acting allowance of $33,750 to a Labour Relations Officer.

7. The matter was referred to the Labour Relations Board in terms of section 109(2)(d) of the Labour Relations Act, 1985.

8. The Labour Relations Board made determination on 8 April 1988. In summary, it ordered:

(a) Payment of an acting allowance for the twenty-four months preceding the date of the order. Page 307 of 1989 (1) ZLR 304 (SC).

(b) Payment of emoluments from the date of illegal termination to date.

(c) Termination of the contract of employment forthwith (ie with effect from 8 April 1988) on the ground of incompatibility.

9. The Corporation appealed against this decision to the Labour Relations Tribunal which, in an undated judgment apparently handed down on 12 October 1988, ordered as follows:

"1. That the termination of Mr Moyana's contract of employment, as per the Corporation's letter of 28 May 1987, was of no force or effort.

2. That Mr Moyana be and is hereby reinstated as the Corporation's Principal Training Officer without loss of salary or other benefit accompanying his post.

3. That the Corporation pay Mr Moyana acting allowance for carrying out the functions of a Training Manager for a period of 24 months extending from 8 July 1987 and dating back to 7 July 1985 at the rate for the job less his salary as Principal Training Officer.

4. That there be no order as to costs."

Against this order, the Corporation appealed to the Supreme Court. It alleged a number of procedural irregularities and sought a reversal of each of the orders made by the Tribunal.

I will deal with them in turn.

(A) THE VALIDITY OF MR MOYANA'S DISMISSAL ON 28 MAY 1987

I noted earlier that the Corporation seemed to ignore the advice of the High Court that it should, again, seek authority to dismiss Mr Moyana.

The letter of 28 May 1987 is very curiously worded. It begins by saying:

"This letter is to inform you of the termination of your employment with the Art Printers Group in terms of sections 3(a), 3(b), 3(g) and 3(h) of Statutory Instrument 371 [of 1985]."

Yet, those subsections do not deal with termination of employment. They deal with summary suspension without pay.

The Corporation was well aware of this because earlier, on 16 July 1986, it had acted under this section and had summarily suspended Mr Moyana. It is difficult to understand how the Corporation thought it could dismiss Mr Moyana under this section.

Before us, counsel for the appellant did not seek either to defend or explain these contradictions. He asserted that the letter of 28 May 1987 was a dismissal on one month's notice and contended that dismissal on notice was lawful in terms of the Labour Relations Act. Insofar as section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985, S.I.371 of 1985 contradicted the assertion, it was, he claimed, ultra vires the Labour Relations Act 1985.

I will assume that the letter of 28 May 1987 can be regarded as a dismissal on notice because it reads in part:

"However, the Company intends nevertheless to pay you not only your salary in respect of May 1987 (which has already been paid) but also a month's pay in lieu of notice, that is to the 30th June 1987."

Despite this, I remain un-persuaded that the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985, S.I.371 of 1985 are ultra vires.

Basically, I agree with the reasoning of the President of the Tribunal, who relied, in turn, upon a decision of the Judge President of the High Court in Jarvis v Commercial Careers College (1980) (Pvt) Ltd HH312-88.

I will therefore set out my reasons only briefly.

Counsel for the appellant's central submission was that section 12(1)(a) of the Labour Relations Act No.16 of 1985, enshrines the right of an employer to terminate a contract on notice. That being so, the Minister has no power, by Regulations, to qualify or, a fortiori, to eliminate that right.

I will accept, for purposes of argument, that the conclusion is correct. It is the premise, in my view, which is false.

Section 12(1)(a) of the Labour Relations Act reads as follows:

"Except where a longer period of notice has been provided for in any contract or in any relevant enactment, every contract of employment made without reference to time, not being a contract to perform some specific service, shall be deemed, in the case where -

(a) The contract is to pay wages at a monthly rate, to be a contract from month to month, terminable by either party at any time upon giving not less than one month's notice, terminating on the last day of a month…,."

This section does not enshrine the right of an employer to terminate a contract on notice. All it does is to introduce a statutory term into employment contracts which are " made without reference to time."

The section in fact says nothing about the contract with which we are concerned, because that contract did specify a month's notice. It was not "made without reference to time." I am entirely satisfied that the section is no more that a deeming section. It speaks only of the content of a contract of employment; it says nothing about the enforceability of the terms deemed to be part of the contract.

It is interesting, as confirmation of the above, that sections 13, 14 and 15 of the Labour Relations Act 1985, to which counsel for the appellant referred by way of analogy, all contain the words "shall be entitled".

No such words appear in section 12 of the Labour Relations Act 1985.

There is a further reason, if further reasons are necessary, why I am unable to accept the submission that section 12(1)(a) of the Labour Relations Act 1985 enshrines the right of an employer to terminate a contract of employment on notice.

Insofar as there is ambiguity in the provisions, although I do not believe there is any, one must look for an interpretation which is consistent with the context within which the words came into existence. In looking at the context, one has in mind the words of SCHREINER JA in Jaga v Donges NO & Anor: Bhana v Donges NO & Anor 1950 (4) SA 653 (A)…,.:

"'[T]he context' as here used is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted.

Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its backgrounds."

The long title of the Labour Relations Act No.16 of 1985 sets out its purpose to be:

"To declare and define the fundamental rights of employees; to define unfair labour practices; to regulate conditions of employment and other related matters…,."

The provisions of the Labour Relations Act No.16 of 1985 itself confirm the clear impression that one of its fundamental objects is to improve the lot of the employee. Thus -

(a) There is no definition or declaration of the fundamental rights of employers, whereas Part II sets out the fundamental rights of employees;

(b) Part III sets out unfair labour practices which may be committed by employers, by trade unions, and by worker' committees. There is no specific references to unfair labour practices by individual employees, though section 20 allows the Minister to prescribe acts or omissions which constitute unfair labour practice by employees. Apart from failure to comply with the provisions of a Collective Bargaining Agreement (section 87(3) of the Labour Relations Act) no such practice has been defined: see the Third Schedule to S.I.368 of 1985;

(c) The general conditions of employment defined are all minimum requirements and may be improved, in favour of the employee, by contract or by Regulations, industrial agreement, or determination: see generally Part IV of the Labour Relations Act;

(d) Specifically, section17 of the Labour Relations Act gives the Minister regulatory powers for the "development, improvement, protection, regulation, and control of employment and conditions of employment."

These Regulations have overriding force: see section 17(2) of the Labour Relations Act No.16 of 1985.

In the wider context, too, one construes the Labour Relations Act No.16 of 1985 according to its historical setting and in terms of the "mischief" rule.

LORD SIMON of GLAISDALE, in his speech in Cheng v Governor of Pentonville Prison [1973] 2 All ER 204 (HL)…, spoke of:

"…, ascertaining, first, the general situation in which Parliament was legislating, and, secondly, the particular situation for which Parliament was providing a remedy. These are really different aspects of the same canon of construction; though the former is sometimes called construction according to 'historical setting', the latter 'the mischief rule'. "

Thus, when the decision in S v Jovner 1982 (2) ZLR 252 (SC) showed that the Employment Act 1980, in its section 8, and the Employment (Conditions of Service) Regulation 1981, in section 4, did not serve to prevent termination on notice, the President clarified the State's intentions by means of the Emergency Powers (Termination of Employment) Regulations 1982, published in S.I.714B of 1982.

The existence of the statutory instrument was obviously known to the Legislature when the Labour Relations Act was enacted in 1985 and the overwhelming probability must be that the Legislature did not intend to go back to the status quo ante.

Indeed, one has only to look at the difference between section 17(2) of the 1985 statute and section 5(2)(a) of the 1980 statute to appreciate that the Legislature intended to confirm the reversal of S v Jovner 1982 (2) ZLR 252 (SC) achieved by section 4 and 5 of the Emergency Powers (Termination of Employment) Regulations 1982, published in S.I.714B of 1982 which were only finally repealed by S.I.77 of 1987.

I have taken this further argument more or less directly from the heads of page 311 of 1989 (1) ZLR 304 (SC) argument of Mr Gillespie in Jarvis v Commercial Careers College (1980) (Pvt) Ltd HH312-88 which was heard some days after the present appeal was argued.

I acknowledge the force of the submissions, and I adopt them, without deviating from my primary view that the words of the enactment are clear and do not require interpretation.

Once it is accepted that section 12 of the Labour Relations Act No.16 of 1985 does not give or enshrine a right to give notice, then one may turn again to section 17 of the Labour Relations Act No.16 of 1985, which begins:

" (1) Subject to the provisions of this Act, the Minister may make regulations providing for the development, improvement, protection, regulation, and control of employment and conditions of employment. "

Clearly, the Minister's power, under this sub-section, to "regulate" dismissal on notice, is not subject to the provisions of section 12.

Section 12 of the Labour Relations Act 1985, as we have seen, concerns only the content of contracts of employment, and section 17(2) of the Labour Relations Act 1985 makes it clear that Regulations override content, when it says -

"Regulations made by the Minister, in terms of subsection (1), shall, unless such regulations otherwise provide, prevail over the provisions of any other statutory instrument or of any agreement or arrangement whatsoever…,."

Finally, the Minister's power is defined in section 17(3)(r) of the Labour Relations Act 1985 which permits him to make regulations -

"…, specifying or otherwise restricting the circumstances in which contracts of employment may be terminated summarily or otherwise."

I am therefore satisfied that section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985, S.I. 371/1985 is not ultra vires the powers granted to the Minister in terms of section 17 of the Labour Relations Act No.16 of 1985 and is not in conflict with the provisions of section 12 of the Labour Relations Act No.16 of 1985.

The first point must therefore be decided against the appellant.

The first applicant is a nominated Parliamentary candidate for the Movement For Democratic Change, the (“MDC”). He will stand for the Goromonzi West House of Assembly constituency seat in Mashonaland East Province. The second applicant is the Movement for Democratic Change, a political party which fielded candidates for the Presidential, Parliamentary, Senatorial and Local Council elections.

The first respondent is the Chairman of the Zimbabwe Electoral Commission, which is responsible for the conducting of elections in Zimbabwe. The second respondent is the Registrar-General of Voters, responsible for the registration of voters, though he does so under the control and supervision of the first respondent.

The brief facts leading to this application are as follows:

The applicants, exercising their right under section 21(4) of the Electoral Act [Chapter 2:13], which I will refer to as the Electoral Act in this judgment, requested the respondents to supply them with electronic copies of the voters roll. They supplied the respondents with compact disks onto which the voters roll was to be copied. The applicants have since been given fifty compact disks, with voters rolls copied onto them - but in a format not acceptable to the applicants. They were advised that other disks could not presently be copied because of the breakdown of the respondents' computers.

The applicants, being spurred by the approaching election day on 29 March 2008, urgently want the Voters Roll, hence the filing of an urgent application. They seek an order compelling the respondents to give them electronic copies of the voters roll in a format they have specified.

Counsel for the respondents raised a point in limine.

He submitted that this court, being a creature of statute, does not have jurisdiction to determine issues arising from the provisions of section 21 of the Electoral Act as that section does not confer jurisdiction on the Electoral Court.

He submitted that this court can only exercise jurisdiction in cases where the Electoral Act specifically confers jurisdiction on it.

He further submitted that the Electoral Act specifies instances when the court has jurisdiction, meaning, in instances where jurisdiction is not specifically conferred the legislature did not intend to confer jurisdiction. He relied on the expressio unius est exclusio alterius rule of interpretation.

Counsel for the applicants, in response, submitted that this court was created to deal with electoral matters, and, therefore, has jurisdiction to hear and determine matters arising from failure to comply with any provisions of the Electoral Act.

He submitted that the use of the words “and other matters in terms of this Act”, means and other cases arising from this Act confers jurisdiction on this court in instances where the legislature did not specifically do so.

He summed up by saying the Electoral Court was created to hear and determine electoral cases.

He pointed out various provisions in which various officials are required to act in one way or the other and asked what would happen if they did not comply. He submitted that this court should intervene and order the officials to comply as should be done in this case.

Counsel for the respondents, in reply, submitted that the applicants are not left without remedy as they can apply to the High Court which has inherent jurisdiction and can hear and determine matters for which the Electoral Court has no jurisdiction.

Creature of Statute

This court was created in terms of section 161(1) of the Electoral Act. There is no doubt that it is a creature of statute.

As a creature of statute, it can only exercise the jurisdiction conferred on it by the statute which created it. Its powers are confined within the provisions of the creating Act.

In the case of Vengesai & Ors v Zimbabwe Glass Industries Ltd 1998 (2) ZLR 593 (H)…, GILLESPIE J said:

“The concept of the rule of practice is peculiarly appropriate only to superior courts of inherent jurisdiction. Any other court, tribunal, or authority is a creature of statute and bound by the four corners of its enabling legislation.”

See also the cases of Chairman, Public Service Commission and Ors v Zimbabwe Teachers Association & Ors 1996 (1) ZLR 637 (S)…,; Harare City v TA Prop (Pvt) Ltd 1994 (2) ZLR 82 (S)…,; and Gwalazimba v PG Merchandising Ltd and Anor 1993 (2) ZLR 215 (S)…, where McNALLY JA said:

“This submission is undoubtedly correct. The Tribunal is a creature of statute and can only hear appeals as provided in the Labour Relations Act 16 of 1985.”

In the case of PTC v Mahachi 1997 (2) ZLR 71 (H)…, CHATIKOBO J, commenting on the powers of a court created by statute, said:

“The Tribunal was established by section 83(1) of the Labour Relations Act [Cap 28:01] (“the Act”). Being a creature of statute, the Tribunal has no powers other than those conferred upon it by the legislature either expressly or by necessary implication.”

The important observation made by CHATIKOBO J, which I respectfully agree with, is that the Act which confers jurisdiction on the creature of statute can do so expressly or by necessary implication. This means the enabling Act must be analysed to determine whether or not the implied jurisdiction, which, in this case, counsel for the applicants seems to rely on, was conferred. The implied jurisdiction must be discovered from the provisions of the Electoral Act.

The provision in dispute

Section 161(1) of the Electoral Act provides as follows:

“(1) There is hereby established a court to be known as the Electoral Court for the purpose of hearing and determining election petitions and other matters in terms of this Act.”

There is no dispute on the meaning of the part of section 161(1) which establishes the Electoral Court. It is common cause that this court has jurisdiction to hear and determine election petitions.

The dispute arises from the interpretation of the later part of section 161(1), namely, the words “and other matters in terms of this Act.”

Most of the words in that phrase present no difficulties as their meanings are obvious. They are not ambiguous as they admit of no other meanings besides their ordinary grammatical meanings. It is the word “terms” which the parties rely on in arriving at their respective constructions of the phrase in question.

Construction of the phrase

The meaning of the phrase “and other matters in terms of this Act” can be discovered by assigning an ordinary, literal, or grammatical meaning to every word in the phrase.

In Keyter v Minister of Agriculture 1908 NLR 522…, BALE CJ said:

“It is the duty of the court to give effect to every word which is used in a statute unless necessity or absolute intractability of the language employed compels the Court to treat the words as not written. (Salmon v Duncombe & Ors 7 NLR 182).

Another cardinal rule, in ascertaining the meaning of a statute, is that in construing the words used we are to ascertain the meaning from the words themselves, and not from what we imagine to have been the intention of the legislature.”

In the case of The Queen v Bishop of Oxford 4 QBD 261, it was said a statute “should be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant.”

In the case of Chegutu Municipality v Manyora 1996 (1) ZLR 262 (SC)…, McNALLY JA said:

“There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to, as LORD WENSLEYDALE said in Grey v Pearson (1857) 10 ER 1216 at 1234, 'unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency - but no further.'”

In this case, the word “and” in the phrase is a conjunction joining the other matters which this court can hear and determine to petitions, which are agreed can be heard and be determined by this court.

The word “other” simply means other than the petitions already referred to.

The word “matters” means other cases which can be heard and determined along side the petitions which it is common cause can be heard by this court.

The word “in” directs the inquirer to the source from which he or she can look for the “other matters” which can be heard and determined by this court.

The word “terms” refers to what qualifies a matter to be heard and determined by this court. It is the word whose true meaning has to be construed to determine whether or not this court has jurisdiction to hear this case….,.

The remaining words “of this Act” directs the inquirer to look within the Electoral Act for the other cases or matters which can be heard and determined by the Electoral Court.

In this case, the key word is “terms”.

Its interpretation should be based on its ordinary, literal, grammatical meaning.

In the case of Expedite Haulage (Pvt) Ltd v Scotfin Ltd 2000 (2) ZLR 113 (HC)…, CHATIKOBO J said:

“On the face of it, the contention advanced by Mr de Bourbon seems to be closer to the wording of the statute than that advanced by Mr Colgrave, and, of course, the cardinal rule of construction is that the words of a statute must be given their ordinary, literal, grammatical meaning, unless to do so would lead to a glaring absurdity.”

The same principles were expressed by the Supreme Court in the case of Endevour Foundation & Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S)…, where GUBBAY CJ said:

“The general principle of interpretation is that the ordinary, plain, literal meaning of the word or expression, that is as popularly understood, is to be adopted, unless that meaning is at variance with the intention of the legislature as shown by the context, or such other indicia as the court is justified in taking into account, or creates an anomaly or otherwise produces an irrational result. See Stellenbosch Farmers' Winery Ltd v Distillers' Corp (SA) Ltd & Anor 1962 (1) SA 458 (A) at 476E-F.

The same notion was expressed in another way by MARGO J in Loryan (Pvt) Ltd v Solarsh Tea & Coffee (Pvt) Ltd 1984 (3) SA 834 (W) at 846G-H:

'Dictionary definitions of a particular word are very often of fundamental importance in the judicial interpretation of that word in a statute or in a contract or in a Will. Nevertheless, the task of interpretation is not always fulfilled by recourse to a dictionary definition, for what must be ascertained is the meaning of that word in its particular context, in the enactment, or contract, or other document.'”

The inquiry, according to these cases, must encompass the following rules of interpretation:

(a) The literal rule, to establish the ordinary, literal, grammatical or dictionary meaning of the word;

(b) Intention of the legislature to determine the contextual meaning of the word as guided by the clear intention of the legislature; and

(c) Other indicia or rules of interpretation to confirm the presence or absence of anomalies and absurdity in the resultant meaning established through the use of the above-mentioned.

The Literal Interpretation

It is trite that a court can rely on a dictionary meaning in the construction of statutes. See the cases of Endevour Foundation & Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S) and Chegutu Municipality v Manyora 1996 (1) ZLR 262 (SC).

The ordinary grammatical meaning of the word “terms”, according to the Shorter Oxford English Dictionary, means:

“(i)(a) limit in space, duration, etc, that which limits the extent of anything; a limit, extremity, boundary, bound; (b) Utmost or extreme limit, end; (c) That to which movement or action is directed or tends, as its object, end or goal.

(ii) A limit in time; a space of time.

(iii) Limiting conditions pl. Conditions or stipulations limiting, what is proposed to be granted or done.”

The dominant meaning of the word “term” clearly has something to do with limiting, conditioning, bounding, and directing, whatever is to be done.

In the context of this case, this means the jurisdiction of this court, is as is limited, conditioned, bound, and directed by the Electoral Act. In simple language, the jurisdiction of the Electoral Court is as is provided by the Electoral Act.

The word “term” has acquired a well known judicial meaning.

In the Law of Contract, when one refers to the terms of a contract, the clear meaning is the conditions on which the contract is premised.

In a Will, it means as is provided by the testator in the Will.

Similarly, in an enactment, it means as is provided by the provisions of the enactment.

In the result, the literal, ordinary, plain, and technical meaning of the word “terms”, as used in section 161 of the Electoral Act, and in the context of the Electoral Act, means as stipulated, limited, or provided by the Electoral Act.

The Intention of the Legislature

Counsel for the applicants took this court through the various sections of the Electoral Act for which no court is vested with jurisdiction to enforce compliance in the event the officer who is required to act does not do so.

He argued that in such situations the Electoral Court has jurisdiction.

He obviously had in mind the implied intention of the legislature referred to in PTC v Mahachi 1997 (2) ZLR 71 (H) or the assumed or imagined intention of the legislature, referred to in Keyter v Minister of Agriculture 1908 NLR 522.

Counsel for the respondents argued that, in such circumstances, the aggrieved party should apply to the High Court which has inherent jurisdiction. He referred to section 13 of the High Court Act [Chapter 7:06].

It is correct that the High Court has inherent jurisdiction and can hear such cases, but, the issue is: does the Electoral Court have jurisdiction to hear such cases as submitted by counsel for the applicants?

This can be determined by ascertaining the expressed or implied intention of the Legislature from the construction of the sections which confer jurisdiction on the Electoral Court and a careful study and construction of the scheme of the Electoral Act.

This calls for an analysis of the sections conferring jurisdiction on this court and other courts.

In Part V of the Electoral Act, aggrieved parties are, in terms of section 25(6), referred to a designated magistrate for the province in which the affected constituency is situated for redress in the case of a dispute over claims for transfer of registration.

In Part VI, sections 27(3)(a) and (b), 28(3)(b) and 29 of the Electoral Act confers jurisdiction on a designated magistrate to hear appeals against objections by the Constituency Registrar or a voter.

Section 30(1) to (4) provides for the submission of a stated case by the designated magistrate to a judge of the High court for his opinion.

In Part X, section 44(7) confers jurisdiction on the Electoral Court to hear and determine petitions against the decision of the presiding officer over the election of the Council of Chiefs and of President and Deputy President of the Council of Chiefs and other Senator Chiefs.

In Part XI, section 46(19)(b) and (c) confers jurisdiction on the Electoral Court to hear and determine appeals from the Nomination Court.

In Part XIII, section 66(2) provides for the presence of an Electoral Court Judge at the drawing of lots to determine the winning candidate. Section 66(4) confers jurisdiction on the Electoral Court to hear and determine a petition against the decision of the Chief Elections Officer. Section 70(3)(b), (4), (5), and (8) confers jurisdiction on the Electoral Court to determine issues and make orders in relation to the destruction or preservation of electoral documents.

In Part XIV, section 81 confers jurisdiction on the High Court to, on convicting a person for inducing any person to obtain a ballot paper and influencing him or her to vote in favour of a particular candidate, to declare the convicted person disqualified from voting in any election for a period not exceeding five years.

In Part XVII, section 111 confers jurisdiction on the Electoral Court to hear and determine petitions on an undue return or an undue election of a person to the office of President, while section 112A as read with the Fifth Schedule, confers jurisdiction on the Chief Justice to preside over the electoral college for the election of a President.

In Part XVIIIA, in sections 133E and 138, confers jurisdiction on the High Court to impose additional punishment, of a civil nature, to a person it will have convicted for intimidatory practices. The same jurisdiction is conferred on the High Court in terms of section 150. Identical jurisdiction is conferred on the Electoral Court by section 155, but after the hearing of a petition after the election. It is clear the legislature conferred jurisdiction on two different courts on this aspect. The High Court deals with intimidatory and illegal practices before the elections, while the Electoral Court deals with the same situations and can impose the same additional penalties after the elections.

In Part XXI, sections 155 to section 158 confer jurisdiction on the Electoral Court to hear and determine petitions and applications and make appropriate orders specified in the various sections.

In Part XXII, section 161 establishes the Electoral Court, and, in subsection (1) and (2) specifies what it can or cannot do.

In Part XXIII, section 167 provides for the presentation of election petitions to the Electoral Court. Section 170(1) confers jurisdiction on the Electoral Court to hear and determine objections on the sufficiency of the security provided by an applicant to an election petition. Section 171(1) confers jurisdiction on the Electoral Court to hear and determine election petitions. Sections 177, 179, 180, and 181 provide for the other powers the Electoral Court may exercise in the hearing of petitions.

In Part XXIV, section 183 confers jurisdiction on the Electoral Court to hear and determine applications by persons convicted on perjured or false evidence, for the removal of the incapacity imposed at the time of conviction.

An examination of the sections conferring jurisdiction on the various courts clearly demonstrates the legislature's deliberate intention as to which court it intended to deal with which situation.

There is no doubt in my mind that where the legislature intended to confer jurisdiction on this court it did so by conferring it through a specific provision in the Electoral Act. There is clearly no room for the conferring of jurisdiction by implication.

The legislature's specific mention of the instances where this court has jurisdiction means where it did not confer jurisdiction it intended not to confer jurisdiction.

This would support counsel for the respondents submission that the application of the expressio unius est exclusio alterius rule to the specific conferring of jurisdiction in some instances means this court has no jurisdiction where it is not specifically conferred.

In the case of Nkomo & Anor v Attorney-General & Ors 1993 (2) ZLR 422 (SC)…, GUBBAY CJ said:

“To ascribe a sensible meaning to subs (5) and to avoid superfluity necessitates the legitimate recourse of construing the general words 'any sentence' in subs (6) as excluding the specific reference to 'a sentence of death' in subs (5). This is no more than an application of the rule embodied in the maxim 'expressio unius exclusio alterius.' It draws attention to the fairly obvious linguistic point that in many contexts the mention of some matters warrants an inference that other cognate matters were intentionally excluded. See MAXWELL on The Interpretation of Statutes 12ed at p293.”

In the case of Eagle Insurance Co. Ltd v Grant 1989 (3) ZLR 278 (SC)…, KORSAH JA, commenting on the operation of the maxim, said:

“A rule which is variably resorted to in the interpretation of statutes, the expressio unius rule, is that the mention of one or more things of a particular class may be regarded as silently excluding all other members of the class.”

The use of the words “may be regarded as silently excluding”, leaves room for the inapplicability of the rule in some cases. This is confirmed in the case of Chivinge v Mushayakarara & Anor 1998 (2) ZLR 500 (SC); at p506E-F GUBBAY CJ said:

“The same result is arrived at, so it seems to me, by a cautious application of the maxim expressio unius est exclusio alterus: see Taylor v Prime Minister & Anor 1954 SR 94 at 165; 1954 (3) SA 956 (SR) at 965B-D; R v Ndhlovu (1) 1980 ZLR 96 (G) at 100A-D; Hewlett v Minister of Finance & Anor 1981 ZLR 571 (S) at 596C-E; National Automobile & Allied Workers Union v Borg-Warner 1994 (3) SA 15 (A) at 26H–I.

The specific mention of the instances of permissible discharge of termination on notice by a permanent employee, to my mind, leads to the unavoidable inference that it was not the intention of the parties to the contract to allow termination on notice of a permanent employee.”

The need to exercise caution before relying on the expressio unius rule is because a conclusion based on it is a product of a logical deduction inferred from the specific mention of the other thing being an implied exclusion of that which was not mentioned.

In the case of Commissioner of Taxes v F Kristiansten (Pvt) Ltd 1994 (1) ZLR 412 (SC)…, the Supreme Court, commenting on the nature of the rule, said:

“It may be that one cannot rely on that uncertain principle of interpretation known as the 'expressio unius exclusio alterius' in this situation.”

The uncertainty of the expressio unius est exclusio alterius rule was again commented on by the Supreme Court in the case of Davies and Ors v Minister of Lands, Agriculture & Water Development 1996 (1) ZLR 681 (SC)…, where GUBBAY CJ said:

“Mr Anderson's counter to this argument was that the principle expressio unius est exclusio alterius was one of limited application to be applied with great caution. This is of course true, but, whereas here something which is not on the face of it acquisition is specifically stated so to be, there is a strong indication that acquisition is to otherwise be given its ordinary meaning.”

In the present case, a careful reading of the sections of the Electoral Act conferring jurisdiction on this court and other courts, together with section 161 of the Electoral Act, whose interpretation restricts the search for jurisdiction within the Electoral Act, the express mention of the instances where this court has jurisdiction is a clear indication that where no jurisdiction was specifically conferred the legislature did not intend to confer jurisdiction on this court. In the context of the whole Act, the words “and other matters in terms of this Act” means and other matters in which jurisdiction has been conferred by provisions of this Electoral Act.

Other indicia

Counsel for the applicants referred this court to section 157 of the Electoral Act and submitted that reference in it to “petitions and applications” when no specific jurisdiction in terms of the Act is conferred on this court to hear and determine petitions means applications such as the applicant's are the “other matters” which can be heard and be determined by this court.

This tends to suggest that the literal meaning, as established above, should include applications as provided in section 157.

The expressio unius est exclusio alterius rule would not be applicable as the mentioning of applications, without providing for them in any specific sections of the Electoral Act, would leave this court with jurisdiction in circumstances mentioned by counsel for the applicants. That would not be consistent with the plain meaning of the phrase “and other matters in terms of this Act.” It would entitle this court to depart from the plain, literal, and grammatical meaning to avoid the inconsistency or the absurdity: see the case of Chegutu Municipality v Manyora 1996 (1) ZLR 262 (SC).

Counsel for the first respondent submitted that the word “application” means petition. He therefore argued that its being mentioned in section 157 is of no significance. He relied on section 15(2) of the Interpretation Act [Chapter 1: 01] which provides as follows:

“Any reference in an enactment to a petition to a court shall be construed as a reference to an application to the court or to a judge, magistrate, or other judicial officer of the court, made in accordance with rules of the court.”

Counsel for the first respondent's submission is persuasive but does not explain why the legislature would convey the same concept using two different words of the same meaning in succession. This would suggest that one of the words is superfluous. If the use of both words was out of caution then why would the legislature use the word “or” between them suggesting that it should be one or the other?

A careful reading of section 157 of the Electoral Act is called for. It provides:

“(1) When it appears to the Electoral Court, either on application or upon an election petition, that –

(a) Any act or omission of a candidate at an election or of his or her chief election agent or of another agent or person, which but for this section would be an illegal practice, has been done or made in good faith through inadvertence or accidental miscalculation or some other reasonable cause of a like nature; and

(b) By reason of the circumstances it would be just that the candidate or his or her chief election agent or other agent or person, or any of them, should not be subject to any of the consequences under this Act of the said act or omission;
the Electoral Court, may make an order allowing the act or omission to be an exception from the provisions of this Act which would otherwise make the act or omission an illegal practice, and thereupon the candidate, agent or person shall not be subject to any of the consequences under this Act of the said act or omission.

(2) Where application is made for relief in terms of subsection (1), the Electoral Court, before hearing the application, shall be satisfied that reasonable notice of the application has been given in the constituency or area in which the election was held.”

The clear meaning of section 157 of the Electoral Act is that the Electoral Court, may, during the hearing of a petition or when an application is made to it in terms of sub-section (2), make an order allowing an otherwise illegal practice an exception to the provisions of the Electoral Act.

The provisions of section 15 of the Interpretation Act are therefore not applicable in this case.

Subsection (2) specifically provides for the making of an application to the Electoral Court, and confers jurisdiction on it to hear and determine such applications.

I, with respect, do not agree with both counsel for the applicants and counsel for the respondents' respective interpretations of section 157 of the Electoral Act: therefore, the interpretation of the words “and other matters in terms of this Act,” as discussed above, remains unaffected by the provisions of section 157 of the Electoral Act.

Even if subsection (2) of section 157 had not clarified the issue, there are other sections of the Electoral Act which confer jurisdiction on this court to hear and determine applications.

Section 179(2) of the Electoral Act provides for an application for substitution of a petitioner. Section 183 provides for an application to the Electoral Court for the removal of any incapacity imposed upon conviction based on perjured or false evidence.

It is therefore beyond doubt that the instances in which this court has jurisdiction to hear and determine applications are specifically provided for in the Electoral Act.

As already indicated, that means all the instances in which the legislature intended to confer jurisdiction on this court are specified leaving no room for this court to assume jurisdiction in circumstances referred to by counsel for the applicants.

Counsel for the respondents sought costs on the legal practitioner and client scale against the applicants on the basis that his clients were unnecessarily dragged to a court which does not have jurisdiction to hear the application.

It is true that, with careful reading of the Electoral Act, the applicants should have known that they were suing the respondent in a court which did not have jurisdiction. It is however apparent from counsel for the respondents own failure to appreciate that the Electoral Act confers jurisdiction on this court to hear applications that the Electoral Act, as recently amended, is still to be fully understood by legal practitioners - especially those who infrequently appear before this court.

There is need for guidance through the judgments of this court.

I can therefore not grant punitive costs in circumstances which clearly call for the guidance of this court.

In the result, the applicant's application is dismissed with costs.

Section 2(2) of the Defence (Regular Force) (Non-Commissioned Members) Regulations, Statutory Instrument 172 of 1989 states that any other term used in the Defence (Regular Force) (Non-Commissioned Members) Regulations, Statutory Instrument 172 of 1989 that is defined in the Defence Act [Chapter 11:02] shall be so defined in the Defence (Regular Force) (Non-Commissioned Members) Regulations, Statutory Instrument 172 of 1989.

What this means, is that the Defence (Regular Force) (Non-Commissioned Members) Regulations, Statutory Instrument 172 of 1989 import the definition section of the enabling Defence Act [Chapter 11:02] as applicable where the same terms are used. Where an undefined term is used in the Defence (Regular Force) (Non-Commissioned Members) Regulations, Statutory Instrument 172 of 1989 but is defined in the

Defence Act [Chapter 11:02], that definition applies to the Defence (Regular Force) (Non-Commissioned Members) Regulations, Statutory Instrument 172 of 1989.

On 12 December 2011, the applicant filed an application in this court under Case No. HC12336/11 seeking a prohibitory interdict against the respondents.

The remedy sought was to prevent the respondents from moving or accepting any motion from any member of the House of Assembly to dismiss the applicant without the matter of his dismissal first being brought before the Committee on Standing Rules and Orders (CSRO) or its sub-committee or other independent and impartial disciplinary authority.

On realising that, despite having filed the aforesaid application, the respondents were determined to proceed with the motion to have him dismissed, the applicant filed the instant urgent application whose amended interim relief is couched in the following terms:-

“1. Pending the determination of the Court Application under Case Number HC12336/11 the respondents are prohibited, restricted, and interdicted from continuing to debate and voting on any motion to dismiss the applicant.

2. Pending the determination of the Court Application under Case Number HC12336/11, any debate, voting, or decision on the motion to dismiss the applicant, with or without amendments, be and is hereby declared null and void ab initio and therefore of no force and effect.”...,.

ON MERITS

Having disposed of the preliminary points raised, I wish to focus on the substantive issues raised by the parties in this application.

The fundamental guiding principle in this case was eloquently summed up by Mr Shepherd Mushonga, the fourth respondent, when he put it in the following words:-

“The principle of separation of powers is he hallmark of a constitutional democracy which entails that the three (3) arms of State, namely, Parliament, the Executive, and the Judiciary are separate and independent of each other in so far as the exercise of their powers is concerned.

The Constitution vests Parliament with the powers to regulate its own affairs. Parliament exercise judicial powers in respect of certain matters that fall within its domain to the exclusion of the Courts.”…,.

I applaud the sentiments and indeed associate myself with same.

Be that as it may, one needs to appreciate the often overlapping function that characterize the legislature, the Executive, and the Judiciary.

Whilst these three arms of Government must enjoy their independence, they do not exist outside each other. They play a complimentary role.

The sovereignty of Parliament, or, to put it simply, the power enjoyed by Parliament is not absolute, for if it were so the citizens would be extremely vulnerable. It would mean that Parliament would do virtually everything it desired, including violating its own Rules and Regulations, to the detriment of its citizen with impunity. Such a scenario, in my view, would not be tenable. There must be some control mechanism through which Parliament is to be held accountable by disgruntled citizens: see The British Constitution by J.S. DUGDALE, M.A, published by Bath James Brodie Ltd, London 1962…,.

From my reading of the applicant's urgent chamber application, and the notices of opposition filed by the respondents, I discern the following issues to be pertinent and decisive in this matter;

(a) Whether or not the House of Assembly violated Standing Order 62(d) of the House of Assembly Standing Orders by continuing to debate and voting on the motion to dismiss the applicant after the applicant had filed case no HC12336/11....,.

(a) Alleged violation of Standing Order 62(d)

It was contended, by the applicant, that, after he had filed his application in this court seeking, among other things, to interdict the respondents from continuing to debate on the issue of his dismissal, and to force compliance with proper disciplinary procedures, the House of Assembly was obliged to follow the dictates of Standing Order 62(d) of the House of Assembly Standing Orders.

In countering this argument, the respondents argued that the existence of a court application could not operate as a bar to the conduct of Parliamentary business and that only a court order had the capacity to stop further debate on the motion that was already before the House.

The argument, by the respondents, in this regard, is quite pronounced in paragraph 8 of the joint Notice of Opposition filed by the first, second, fifth, sixth and seventh respondents.

In supporting the same argument, the fourth respondent, on his behalf and also duly authorised by the third respondent, re-affirmed the position that Parliamentary debate on the issue could not be stopped by the Court application alluded to by the applicant.

It is evident from the Hansard of the day that the members of the House offered conflicting views on this issue.

It is necessary to refer to the specific section in issue. The section reads as follows:-

“62 No member shall, while speaking to a question…,.

(d) Use derogatory, disrespectful, offensive or unbecoming words against the Head of State, Parliament or its members, the Speaker, nor reflect upon a statute unless for the purposes of moving for its repeal; nor shall a member refer to any matter on which a judicial decision is pending;”…,.

It appears to me that if one were to concentrate on the ordinary grammatical meaning of the Standing Order in question one would find it extremely difficult not to understand what the House intended when it crafted these rules of debate.

It is trite that in interpreting statutes the very basic approach is first to ascribe to the words used their ordinary grammatical meaning.

It is clear to me that the Standing Order referred to simply meant that when a matter is pending before the Courts, or when a matter is sub judice, House members are obliged to respect the Court process until a determination on that matter is made.

In this regard, I feel more inclined to lean on the views of the learned judge VAN DEN HEEVER JA when he remarked on the use of the word 'shall' as follows:-

“If a statutory command is couched in such peremptory terms it is a strong indication, in the absence of considerations pointing to another conclusion, that the issuer of the command intended disobedience to be visited with nullity”: Messenger of the Magistrate's Court. Dupbata v Pillay 1952 (3) SA 678 (AD)…,.

It will be noted that during debate on the issue, those who spoke in favour of proceeding with the tabled motion suggested, strangely so in my view, that the members of the House could only be stopped from debating the issue if, at the time, there was a Court order barring them from so acting.

With respect, the Standing Order in question does not say what the respondents, and those who contributed in support of the motion, desire it to mean. If Parliament intended the Standing Order to mean what the respondents say, surely Parliament could have had no difficulty in crafting the Standing Order to that effect.

It is not in dispute that the respondents, despite having been duly served with case no. HC12336/11 continued to debate the motion in complete defiance or violation of the Standing Order in question.

This belligerent attitude displayed by the respondents can only lead to one inevitable conclusion. That disobedience by the House of its own Standing Orders must be visited with “nullity” over what it did because it was not competent for the House to stubbornly ignore the clear provisions of section 62(d) of the House of Assembly Standing Orders.

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").

The appellants, as the applicants in the court a quo, sought the following relief set out in the draft order:

"WHEREUPON after perusing the documents filed of record and hearing counsel, it is hereby declared that:-

1. The election of (the) second respondent as the Speaker of the Parliament of Zimbabwe on 25 August 2008 is null and void and set aside.

2….,.

3. That the respondents jointly and severally pay the costs of suit."

(The applicants abandoned the relief set out in paragraph 2).

The appellants' main contention in the court a quo, and in this Court, is that the election of the Speaker was null and void because it was not conducted in terms of section 39 of the Constitution of Zimbabwe (hereinafter referred to as "the Constitution"), as read with Standing Order 6 of the Standing Orders of Parliament of Zimbabwe (hereinafter referred to as "the Standing Orders").

PATEL J dismissed the application. The appellants now appeal against that judgment.

The grounds of appeal are set out in the Notice of Appeal, which, in relevant part, reads as follows:

"Grounds of Appeal

1. The learned Judge a quo erred in finding that a proper election of Speaker of Parliament was conducted in terms of the Constitution and the law.

2. The learned Judge erred in condoning the first respondent's failure to implement and enforce his own procedures for the election.

3. The learned Judge a quo erred in finding that the participants' exposure of their completed ballot papers was not a violation of the secret ballot.

4. The learned Judge a quo erred in finding that a secret ballot took place.

5. The learned Judge a quo erred in interpreting section 39(2) of the Constitution, as read with Ordinance 6 of the House of Assembly Standing Orders, as directory and not peremptory."

The grounds of appeal set out in the Notice of Appeal, as read with the record and submissions by counsel, raise essentially the following two issues for determination in this appeal –

(a) Whether the exposure of the secret ballot before the depositing of the ballot papers in the ballot box by some Members of Parliament amounts to a violation of the voting by secret ballot, and, if so, whether that rendered the election of the Speaker null and void; and

(b) Whether the failure by the Clerk of Parliament of Zimbabwe (hereinafter referred to as "the Clerk") to control the voting process and the consequent chaotic conditions constitute a failure by the Clerk to conduct an election in terms of section 39 of the Constitution, as read with the Standing Orders.

The background facts of this case are as follows:

The first respondent is the Clerk of the Parliament of Zimbabwe. Pursuant to Proclamation No.7 of 2008, the Clerk convened the first meeting of Parliament on 25 August 2008 for the purposes of swearing in the Members of Parliament and electing the presiding officers.

The Clerk's mandate to conduct these elections is derived from the Standing Orders – in the case of the House of Assembly, Standing Order No.6.

Two candidates were nominated for the office of Speaker, namely, Mr Paul Themba-Nyathi (hereinafter referred to as "Nyathi") and the second respondent (hereinafter referred to as "Moyo").

Standing Order No.6 provides that if more than one person is proposed as Speaker of Parliament, the Clerk shall conduct an election of the Speaker by ballot box.

The election took place and the Clerk announced that Nyathi had garnered ninety-eight votes and Moyo had garnered one hundred and ten votes. The Clerk accordingly declared Moyo the winner. Moyo assumed the office of Speaker.

The appellants want the election of Moyo as Speaker set aside.

I now wish to deal with the issue of whether the election was conducted by secret ballot as is required by section 39 of the Constitution, as read with Standing Order No.6 of the Standing Orders.

The appellants contend that some Members of Parliament from the MDC-T party, having marked their ballot papers in the secrecy of the polling booths, openly displayed their marked ballot papers before depositing them in the ballot box. The appellants contend that the majority of the Members of Parliament from the MDC-T party did this, while the respondents' position is equivocal.

The court a quo, however, concluded that of the two hundred and eight Members of Parliament who voted, most probably only six Members of Parliament displayed their votes in the manner alleged by the appellants. The Members of Parliament who are named as having done this are the Honourable Biti, the Honourable Khupe, the Honourable Chambati, the Honourable Chibaya, the Honourable Denga and the Honourable Moyo, the second respondent. In this regard, the court a quo concluded as follows at p11 of the cyclostyled judgment (judgment no. HH28-10):

"It is fairly clear that Hon. Biti took the lead in brandishing his vote and that several of his colleagues were then emboldened into emulating his possibly impolitic example. However, they did so of their own free will and, more significantly, they did so after having cast their votes in secret."

The conclusion of the court a quo that at least the six Members of Parliament named displayed their ballot papers after marking them but before depositing the ballot papers in the ballot box cannot be faulted.

This conclusion is fortified by the following factors:

It is specifically alleged by the appellants that Moyo displayed his ballot paper before depositing it. Moyo filed an affidavit in this case in which he does not deny this allegation. Five other Members of Parliament are named as having displayed their ballot papers before depositing them in the ballot box. None of these five Members of Parliament have deposed to affidavits denying the allegation.

In my view, it would have been easy for Moyo to secure such affidavits from the named Members of Parliament denying the conduct alleged. Moyo, instead, filed an affidavit from a Member of Parliament, the Honourable Mpariwa, in respect of whom no such allegation was made. The Honourable Mpariwa does not deny that the named Members of Parliament had conducted themselves in the manner alleged by the appellants. Indeed, if anything, she appears to concede that that in fact did occur.

In the result, I agree with the conclusion of the court a quo that at least six Members of Parliament displayed their ballot papers after marking them but before depositing them in the ballot box.

Having concluded that at least six Members of Parliament displayed their ballot papers before depositing them in the ballot box, the issue that falls for determination is the legal consequences of such conduct.

Section 39 of the Constitution provides as follows:

"(2) The Speaker shall be elected in accordance with Standing Orders from among persons who are or have been members of the House of Assembly and who are not members of the Cabinet, Ministers, or Deputy Ministers:

Provided that a person who is not a member of the House of Assembly shall not be elected as the Speaker unless he is qualified in accordance with Schedule 3 for election to the House of Assembly."

Standing Order 6 of the Standing Orders provides as follows:

"If more than one person is proposed as Speaker, the Clerk shall conduct the election of Speaker by a secret ballot."…,.

The Clerk issued specific instructions on how the secret ballot was to be conducted. According to the second appellant, Moses Mliza Ndlovu, the Clerk issued the following instructions:

"4. The first respondent announced the procedure to the effect that according to the Standing Rules, an election would be held by secret ballot. To this extent, he assured the Honourable Members present that all necessary provisions had been made to guarantee the secrecy of the ballot.

5. The first respondent then explained that in terms of the procedure, he would issue a ballot paper to each Member present. Thereafter, the Member would put a mark against the name of the candidate the Member would wish to be the Speaker of Parliament.

6. The ballot paper had two candidates for Speaker of Parliament, namely, the second respondent nominated by the Movement for Democratic Change (Tsvangirai) (MDC-T) and Mr Paul Themba-Nyathi nominated by the Movement for Democratic Change (MDC).

7. The first respondent then explained that the ballot paper, having been duly marked in secret in a booth, would be folded by the voting Member and deposited in a ballot box.

8. The first respondent then explained that, having cast the vote, the Honourable Member would then leave the House."

The Clerk does not deny that the above accurately reflects the instructions he gave. From the above, three essential elements of the secret ballot emerge –

(a) Each Member of Parliament was to be issued with a ballot paper;

(b) Each Member of Parliament was to mark the ballot paper in the privacy or secrecy of the polling booth; and

(c) Having marked the ballot paper in secret, the Member of Parliament was to fold the ballot paper to maintain the secrecy of the vote and deposit it in the ballot box, thus completing the process of secret voting.

It admits of no debate that the Clerk would then be required to count the vote to complete the process.

In my view, the counting of the votes cast is an essential part of the process of the election by secret ballot….,.

The appellants' case is that Standing Order 6 is peremptory and enjoins the Clerk to conduct an election of the Speaker by secret ballot.

Counsel for the appellants submitted that the display of the ballot papers before depositing them in the ballot box, by some Members of Parliament, is an aberration from the provisions of section 39 of the Constitution, as read with Standing Order 6 of the Standing Orders. He argued that such aberration rendered the election of the Speaker null and void.

Ms Damiso and Mr Chaskalson, for the respondents, submitted that the appellants' complaint is based on a fundamental misconception relating to the nature of a secret ballot.

They submitted that when an election takes place, by secret ballot, each voter has the right to have his or her vote kept secret. This right to secrecy, like any other right, can freely be waived by a voter who chooses to make known how he or she voted. The fact that any voter chooses to disclose how he or she voted cannot in itself compromise the secrecy of the ballot. They submitted that it is only when a voter is factually prevented from maintaining the secrecy of his or her vote that there is a violation of the secrecy of the ballot. On this basis, they argued that the display by six Members of Parliament of their ballot papers before depositing the ballot papers in the ballot box is not a violation of the principle of a secret ballot.

This argument found favour with the learned Judge in the court a quo. In this regard, he had this to say at p11 of the cyclostyled judgment:

"Having regard to the dictionary definitions and the case authorities cited by counsel, the gravamen of a secret ballot, in my view, is that each voter is enabled to cast his vote privately and in secret, without fear of having his voting choice identified or ascertained by others. In this respect, it is incumbent upon the regulating authority to provide the requisite wherewithal for that purpose. The courts should not interfere unless it is shown that the objective conditions put in place for the election precluded the possibility of a secret vote. Beyond this, it is then a matter purely for the individual voter if he chooses to divulge, whether publicly or in private, the specific manner in which he has cast his vote. If he does so of his own volition, without any external coercion or intimidation, and howsoever his conduct might influence other voters, this cannot detract from the secrecy of his vote or vitiate the secrecy of the ballot as a whole."

It was further argued that all that was required of the Clerk was for him to provide the guarantee that Members of Parliament voted in secret if they so wished. Those who wished to penetrate the veil of secrecy, as did the six Members of Parliament, were entitled to do so without contaminating the process.

In support of the above contention, both counsel for the respondents placed reliance on the case of Steel and Engineering Industries Federation and Ors v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (T)…, and on the case of J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920)…,.

Mr Chaskalson, in particular, submitted that the right to secrecy of the ballot, like any other right, can freely be waived by any voter who chooses to make known how he or she voted. He further submitted that this point has been made clear by United States judgments dealing with unsuccessful challenges to electoral laws. For this submission, he relied on the following remarks of BROWN J in J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920)…,:

"…, this privilege, of voting a secret ballot, has been held to be entirely a personal one. The provision has been generally adopted in this country for the protection of the voter, and for the preservation of his independence, in the exercise of this most important franchise. But, he has the right to waive his privilege and testify to the contents of his ballot. The voter has the right, at the time of voting, voluntarily to make public his ballot, and its contents in such case may be proven by the testimony of those who are present. Public policy requires that the veil of secrecy shall be impenetrable unless the voter himself voluntarily determines to lift it."

Mr Chaskalson also relied on the following passage from State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932)…,:

"…, it has been uniformly held that under such provisions as that contained in section 6 of Article VI of our Constitution the elector cannot be compelled to violate the right of secrecy of his ballot but the great weight of authority is to the effect that such constitutional provision guarantees a personal privilege which might be waived. In State vs Anderson 26 Fla 240, 8 So 1, this Court, speaking through MR CHIEF JUSTICE RAINEY, said:

'The Constitution provides, section 6, Article VI, that in all elections by the people the vote shall be by ballot, and in those by the Legislature it shall be viva voce. The material guarantee of this constitutional mandate of vote by ballot is inviolable secrecy as to the person for whom an elector shall vote. The distinguishing theory of the ballot system is that every voter shall be permitted to vote for whom he pleases, and that no one else shall be in position (sic) to know for whom he has voted, or shall know unless the voter shall of his own free will inform him.': COOLEY's Constitutional Limitations m.p. 604 et seq."…,.

Further reliance was placed on the following passage from COOLEY's work Constitutional Limitations 7ed 912:

"The system of ballot-voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases and with what party he pleases and that no one is to have the right or be in position (sic) to question his independent action, either then or at any subsequent time. The courts have held that a voter, even in case (sic) of a contested election, cannot be compelled to disclose for whom he voted; and for the same reason we think others who may accidentally, or by trick or artifice, have acquired knowledge on the subject should not be allowed to testify to such knowledge, or to give any information in the courts upon the subject. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it; his ballot is absolutely privileged…,."

Mr Chaskalson further submitted that the fact that any voter chooses to disclose how he or she voted cannot compromise the secrecy of the ballot. He argued that if this were the case secret ballots would be open to abuse by voters who, fearing that their candidates were at risk of losing the election, could invalidate a vote by merely waving their ballots about. It is only when a voter is factually prevented from maintaining the secrecy of his vote or her vote that there is a violation of the secrecy of the ballot. He further argued that on the facts of this case there is no suggestion of any such violation of the secrecy of the ballot. Consequently, the primary complaint of the appellants must be rejected.

The two cases cited by Mr Chaskalson, namely, J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920) and State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932), were concerned with the constitutionality of statutory provisions that permitted voting by absentee voters such as soldiers serving abroad. The basis of challenging the constitutionality of the statutes providing for the absentee voters was that they violated the secrecy of the ballot guaranteed by the State Constitution, Article VI section 6.

Section 6 of Article VI declared that all elections by the people shall be by ballot, and all elections by the General Assembly shall be viva voce….,.

The contention, which was dismissed in the above American cases in respect of which the above cited passages were made, was that statutes allowing absentee votes would of necessity lead to the identification of the voter, thereby violating the secrecy of the ballot guaranteed by the Constitution of the State of North Carolina. The ratio decidendi of the court, in dismissing the challenge, was that the impugned statutes, by allowing voters to vote by postal ballot, did not compel voters to disclose their votes leading to a breach of their right to voting in secrecy. The courts held that the impugned statutes simply provided the voter with a choice either to vote secretly by presenting himself or herself at the polling booth or vote by postal ballot if he so wished, thereby compromising the secrecy of his or her vote. The court held, in both cases, that a secret ballot is not compulsory so far as the voter is concerned, for the statute provides that the ballot may be deposited for the voter by the Registrar or by one of the judges of the election or by the voter himself if he so chooses.

I wish to make the following observations regarding the above cases.

The judgments cited above are judgments of foreign courts. They are not binding but they are persuasive. The higher the courts are in their jurisdictions the more persuasive are their judgments. The cited judgments are not from the highest courts in North Carolina.

The second observation I wish to make is that the courts in the cited cases were interpreting statutes in their jurisdictions. They were not making pronouncements on general jurisprudential principles.

When interpreting statutes, courts are guided primarily by the wording and the context of the statutes. A court should not simply translocate one court's interpretation of a statute in that court's jurisdiction to an interpretation of a statute differently worded in its own jurisdiction.

In the above judgments, the courts of North Carolina were interpreting Article VI section 6 of the Constitution of North Carolina, which provided that:

"In all elections by the people, the vote shall be by ballot, and, in those by the Legislature, it shall be viva voce."

The courts, in both J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920) and State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932) interpreted Article VI section 6 as conferring a right to vote in secret, which can be waived. They ascribed this meaning to Article VI section 6 despite the use of the peremptory word "shall" in the section. I have some doubts about the correctness of this interpretation.

Be that as it may, I accept the conclusion in those two cases that where a Constitutional provision confers on the voter the right to vote by secret ballot that right is intended to protect the voter and the voter has the right to waive that right without violating the secrecy of the ballot.

I also accept the proposition that public policy requires that the veil of secrecy shall be impenetrable unless the voter himself voluntarily determines to lift it: see also Boyer v Teague 106 NC 625; McRary on Elections 3ed…,; and Crolly Con. Lim. 7Ed…,.

However, section 39 of the Constitution, as read with Standing Order 6, is not a constitutional or statutory provision conferring the right to vote on a voter in the form of the Member of Parliament.

Section 39 of the Constitution, as read with Standing Order 6, prescribes how a particular officer in Parliament, namely, the Speaker, is to be elected. It expressly provides that if more than one person is proposed as Speaker the Clerk of Parliament shall conduct the election of the Speaker by a secret ballot. In other words, the use of the words "by a secret ballot" in the statute is prescribing the method by which a Speaker is to be elected.

The language is peremptory language.

It would be a different story if the wording of Standing Order 6 were to the effect: "If more than one Member is proposed Members of Parliament may vote by secret ballot to elect the Speaker."

The golden rule of interpretation is that one has to give the words of a statute their primary meaning.

If that rule is applied to Order 6 of the Standing Orders, then, the inescapable inference is that the Order is addressing the Clerk and is dictating to him the manner by which a Speaker should be elected.

In view of the explicit language of the statute, it is not open to the Clerk, or any Member of Parliament, to substitute the method of electing a Speaker with another method of their own choice, such as by open ballot. Put differently, it was not open, for instance, to Members of Parliament to tell the Clerk that they were waiving their right to vote for the Speaker by secret ballot or that they wished to vote for the Speaker by open ballot either individually or as a group. That option was not open to the Members of Parliament as a whole or to individual Members of Parliament.

Voting by secret ballot, as I have already stated, involves the following three essential procedures:

(i) Firstly, that each Member of Parliament receives a ballot paper;

(ii) Secondly, that each Member of Parliament indicates on that ballot paper the candidate of his choice in private and to the exclusion of the public; and

(iii) Thirdly, that, having done so, the Member of Parliament deposits his or her ballot paper into the ballot box privately without disclosing his or her ballot paper to the world.

Once the ballot paper has been deposited into the ballot box the process of voting by secret ballot, so far as the voter is concerned, is completed.

It would not be a violation of voting by secret ballot if the person discloses whom he has voted for at that stage. The voting by secret ballot by the voter is complete: see Steel and Engineering Industries Federation and Ors v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (T).

The next stage to complete the process provided for in terms of section 39 of the Constitution, as read with Standing Order 6, is for the Clerk to count the votes cast to determine the winner.

This stage, in my view, is an essential process in the election of the Speaker of Parliament by secret ballot:

Because of the peremptory language of section 39 of the Constitution, as read with Standing Order 6, the Clerk has no discretion over what procedure is to be followed when electing the Speaker. It has to be by secret ballot. The use of any other method to elect the Speaker would be a failure to comply with the provisions of section 39 of the Constitution, as read with Standing Order 6.

In casu, the appellants alleged that some Members of Parliament received ballot papers, marked the ballot papers in the privacy of the polling booth, and then, instead of folding the ballot papers to maintain the secrecy of their vote and before depositing them in the ballot box, they displayed them to fellow Members of Parliament to show them how they voted. Thereafter, they deposited the ballot papers in the ballot box.

The court a quo concluded that six Members of Parliament conducted themselves in this manner. The conclusion that only six out of the two hundred and eight voters voted in this manner is supported by the evidence and it cannot be faulted.

The learned Judge in the court a quo also concluded that the six Members of Parliament who displayed their votes complied with the requirement of a secret ballot because they were entitled to pierce the veil of secrecy without falling foul of section 39 of the Constitution, as read with Standing Order 6.

I respectfully disagree with the learned Judge in this regard.

The six Members of Parliament, by displaying their ballot papers before depositing them in the ballot box, violated the secrecy of their ballots, thereby rendering their votes invalid for the purposes of section 39 of the Constitution, as read with Standing Order 6. This rendered their votes ineligible for counting for the purpose of determining the election of the Speaker.

The Clerk proceeded to count these six votes as valid votes in determining the outcome of the election. This contaminated the process.

Put differently, he counted oranges and apples in a process where the law provides that only oranges be counted.

In short, the Clerk failed to act as directed by section 39 of the Constitution, as read with Standing Order 6, namely, to conduct an election by secret ballot. He conducted a cross-breed election, in that it was partly secret and partly open. That is not what the law provides for.

In this regard, I am satisfied that the Clerk failed to comply with the provisions of section 39 of the Constitution, as read with Standing Order 6.

Having concluded that the Clerk did not comply with the statutory requirements in his conduct of the election, the issue that falls for determination is, what are the legal consequences that flow from the failure to comply with the statutory provisions?

Section 39 of the Constitution, as read with Standing Order 6, has directed that the Clerk shall conduct an election of a Speaker by secret ballot but has not provided what should be the consequence of the non-compliance with this peremptory direction by Parliament.

This Court recently had occasion to deal with the issue of interpreting a statute that does not prescribe the consequences of non-compliance with a statutory provision in the case of Doctor Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor Judgment No. SC11-08.

In that case, I cited with approval a passage from BENNION Statutory Interpretation…, which sets out how courts should approach that issue.

The learned author states that a court charged with the enforcement of a statute that does not state the consequences of non-compliance needs to decide what consequence Parliament intended should follow from such failure to comply. In that case, I had this to say at pp21-23 of the cyclostyled judgment:

"It is the generally accepted rule of interpretation that the use of peremptory words such as 'shall' as opposed to 'may' is indicative of the legislature's intention to make the provision peremptory. The use of the word 'may' as opposed to 'shall' is construed as indicative of the legislature's intention to make a provision directory. In some instances the legislature explicitly provides that failure to comply with a statutory provision is fatal. In other instances, the legislature specifically provides that failure to comply is not fatal. In both of the above instances no difficulty arises.

The difficulty usually arises where the legislature has made no specific indication as to whether failure to comply is fatal or not.

In the present case, the consequences of failure to comply with the provisions of section 18 of the Zimbabwe Electoral Commission Act are not explicitly spelt out.

In those statutory provisions where the legislature has not specifically provided for the consequences of failure to comply, it has to be assumed that the legislature has left it to the Courts to determine what the consequences of failure to comply should be.

The learned author FRANCIS BENNION in his work Statutory Interpretation suggests that the courts have to determine the intention of the legislature using certain principles of interpretation as guidelines. He had this to say at pp21-22:

'Where a duty arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from breach of the duty.

This is an area where legislative drafting has been markedly deficient. Draftsmen find it easy to use the language of command. They say that a thing 'shall' be done. Too often they fail to consider the consequence when it is not done. What is not thought of by the draftsman is not expressed in the statute.

Yet the courts are forced to reach a decision.

It would be draconian to hold that in every case failure to comply with the relevant duty invalidates the thing done. So, the courts' answer has been to devise a distinction between mandatory and directory duties.

Terms used instead of "mandatory" include 'absolute', 'obligatory', 'imperative' and 'strict'. In place of "directory", the term 'permissive' is sometimes used. Use of the term 'directory' in the sense of permissive has been justly criticised: see CRAIES Statute Law (7th edn, 1971) p61 n74. However, it is now firmly rooted.

Where the relevant duty is mandatory, failure to comply with it invalidates the thing done. Where it is merely directory the thing done will be unaffected (though there may be some sanction for disobedience imposed on the person bound). {As to sanctions for breach of statutory duty see section 13 of this Code (criminal sanctions) and section 14 (civil sanctions)}.'

Thereafter, the learned author sets out some guiding principles for the determination of whether failure to comply with a statutory provision is fatal or a mere irregularity.

One of these guiding principles is the possible consequences of a particular interpretation. If interpreting non-compliance with a statutory provision leads to consequences totally disproportionate to the mischief intended to be remedied, the presumption is that Parliament did not intend such a consequence and therefore the provision is directory."

MAXWELL on The Interpretation of Statutes 12ed…, says much the same as the above cited excerpt from BENNION.

Thus, the issue before this Court is to determine what Parliament intended to be the consequence of the Clerk's breach of the statutory requirement to count only regular votes in determining the outcome of the election of the Speaker.

I have come to the conclusion that Parliament intended to render invalid an election wherein the Clerk fails to comply with the provisions of section 39 of the Constitution, as read with Standing Order 6. I have come to this conclusion for two reasons -

(i) Firstly, because of the peremptory language of the provision in question; and

(ii) Secondly, because of the use of different language from the one used by Parliament when it legislated on the same subject matter in another statute, namely, section 177 of the Electoral Act [Chapter 2:13].

Dealing with the issue of the use of peremptory language in section 39 of the Constitution, as read with Standing Order 6, there can be no doubt that the language of the relevant section is peremptory, having regard to the use of the word "shall".

I accept that there has been movement from the principle of strict exaction of compliance with the wording of the statute to avoid invalidity to a more flexible approach giving the courts some latitude in determining the consequences of non-compliance.

My understanding of the new approach is that, while the use of the word "shall" is no longer conclusive of the intention of Parliament to render inva