CHIDYAUSIKU
CJ:
The
applicants in this case allege that their right to freedom of
association, guaranteed by sections 21(1) and 21(2) of the
Constitution of Zimbabwe (“the Constitution”), and their right to
protection of the law, guaranteed by section 18(1) of the
Constitution, were violated by the second respondent, an employee of
the first respondent.
The
alleged violation of the applicants' rights occurred in the course
of the second respondent's employment with the first respondent.
THE
FACTS
The
applicants in this case are leaders of two different political
parties. Both applicants wished to contest the Presidential Election
conducted on 29 March 2008. The election which the respondents wanted
to contest is complete and the outcome has been announced.
The
applicants are seeking a declaratory order that their rights were
violated.
Mr
Fitches, for the applicants, submitted that the outcome of this
application has no bearing on the already completed election. He
contends, however, that this application for a declaratory order is
more than a mere academic exercise. He contends that a determination
by this Court will provide a useful guideline for the future conduct
of election officials.
Put
differently, the completed electoral process will not be affected by
the outcome of this case.
15
February 2008 was the nomination day for the Presidential Election
conducted on 29 March 2008. All aspiring candidates wishing to
contest the 29 March 2008 Presidential Election were required to file
their nomination papers by four o'clock on the afternoon of 15
February 2008.
The
first applicant avers that on 15 February 2008 he arrived at and
entered the Nomination Court at or about 15.45 hours. This was
fifteen minutes before the official closing time for nominations.
He
submitted his nomination papers to the second respondent who advised
him to wait until the official had finished attending to the second
applicant. The second applicant at that time was filling in some
forms.
He
sat in the Nomination Court awaiting his turn to be attended to and
to file his own nomination papers.
When
the second applicant finished filling in his papers, he presented
them to the second respondent, only to be told that the Nomination
Court had closed and his nomination papers would not be accepted.
When
the second applicant was told that his nomination papers could not be
accepted, the first applicant moved forward to submit his own
nomination papers as he had been advised to wait until the nomination
officer had finished attending to the second applicant. The first
applicant contends that upon presenting his nomination papers he too
was told that his nomination papers could not be accepted as the
Nomination Court had closed.
He
protested at this turn of events to no avail.
What
transpired thereafter is not entirely clear from the affidavits filed
by the parties.
The
first applicant sets out his version of what transpired in para 11 of
the founding affidavit, while the first respondent sets out its
version of what transpired in para 6 of the opposing affidavit.
The
two versions do not present a clear chronology of the events which
occurred thereafter.
Mr
Chikumbirike, who appeared for the respondents in both the High Court
and the Electoral Court proceedings, made certain submissions, which
were accepted by the applicants as correct. These submissions, to
some extent, clarified what transpired after the rejection of the
applicants' nomination papers.
The
following appears to have happened.
After
the rejection of their nomination papers, the applicants launched a
Chamber application in the High Court. The chamber application to the
High Court is attached to this application. In terms of the draft
order the applicants sought the following relief from the High Court:
“1.
The respondent is ordered to accept the applicants' papers.
2.
The respondent is ordered to declare the applicants duly nominated
for the March 2008 Presidential Elections.
3.
That the respondent pays costs of suit.”
According
to Mr Chikumbirike, the matter was argued before GUVAVA J, sitting as
a High Court Judge. She dismissed the Chamber application on the
basis that the High Court had no jurisdiction to entertain the
application and that it was the Electoral Court that had jurisdiction
to deal with the matter in terms of section 46(19) of the Electoral
Act [Cap. 2:13] (“the Act”).
Thereafter,
the application found its way to the Electoral Court in terms of
section 46(19) of the Act.
According
to Mr Chikumbirike, the application was heard by UCHENA J, sitting as
a Judge of the Electoral Court.
The
application was dismissed on the ground that the matter had
prescribed. In terms of section 46(19)(b) of the Act, a candidate has
a right of appeal against a decision of the nomination officer to a
Judge of the Electoral Court. In terms of section 46(19)(c) the right
of appeal lapses after four days and the decision of the nomination
officer becomes final.
After
the dismissal of the appeal by the Electoral Court nothing happened
until 15 April 2008 when the present application was launched in this
Court.
This
application is made in terms of section 24(1) of the Constitution.
As
already stated, the applicants are asking for a declarator that does
not seek to change the outcome of the already completed election.
THE
ISSUES
The
averments of the applicants as to what transpired at the Nomination
Court have not been put in issue by the respondents. In particular,
the second respondent has not filed an affidavit disputing the
allegations made against him relating to his conduct during the
Nomination Court proceedings.
Given
this situation, this Court has to accept as a fact that the
applicants arrived at the Nomination Court at least fifteen minutes
before the closing time on the nomination day.
In
terms of section 46(7) of the Act, a candidate who is within the
Nomination Court at close of business is entitled to have his
nomination papers accepted by the Nomination Court.
The
proposition that what is not denied in affidavits must be taken as
admitted is not disputed by the respondents and is supported by
authorities. See Fawcett Security Operations P/L v Director of
Customs and Excise and Ors 1993 (2) ZLR 121 (S) at 127F; Nhidza v
Unifreight Ltd SC-27-99; and Minister of Lands and Agriculture v
Commercial Farmers Union SC-111-2001 at 60.
Mr
Chikumbirike, for the second respondent, has raised three defences:
(i)
Firstly, he argues that the remedy available to the applicants upon
the rejection of their nomination papers was an appeal to a Judge of
the Electoral Court in terms of section 46(19) of the Act.
When
the applicants failed to do so timeously the decision of the
nomination officer became final in terms of section 46(19)(c) of the
Act.
An
application to this Court in terms of section 24(1), so he submitted,
is a disguised appeal against the decision of the Electoral Court or
the nomination officer. He argues that this is not permissible.
The
decision of the nomination officer, if not appealed against in terms
of section 46(19)(b) of the Act, becomes final in terms of section
46(19)(c).
The
applicants, as I understand his argument, failed to avail themselves
of the protection of the law by failing to comply with the procedure
laid down in section 46 of the Act.
(ii)
Secondly, Mr Chikumbirike submitted that this application should be
dismissed on the basis that this matter arose from proceedings in
both the High Court and the Electoral Court and therefore can only
find its way to the Supreme Court by referral in terms of section
24(2) of the Constitution.
He
further argued that section 24(3) of the Constitution specifically
prohibits the making of an application to this Court in terms of
section 24(1) of the Constitution in respect of matters arising from
proceedings in the High Court or any subordinate adjudicating
authority.
In
response, Mr Fitches, for the applicants, argued that section 46(19)
did not apply to the applicants because their papers were not
rejected by the second respondent in terms of section 46(10) or
section 46(16) of the Act. The remedy of an appeal to an electoral
Judge provided for in section 46(19) of the Act is limited to
litigants whose nomination papers are rejected in terms of section
46(10) or section 46(16) of the Act.
Mr
Fitches also submitted that the present application did not arise
from proceedings in the High Court or in the Electoral Court and
accordingly the applicants are not barred from approaching this Court
by section 24(3) of the Constitution.
(iii)
Mr Chikumbirike also raised the issue of citation and submitted that
the first respondent was wrongly cited having regard to the
provisions of section 18 of the Zimbabwe Electoral Commission Act
[Cap. 2.12].
This
was disputed by Mr Fitches.
On
the basis of the foregoing, three issues emerge on the papers -
(1)
Whether or not the first respondent was correctly cited;
(2)
Whether or not the applicants' nomination papers were rejected in
terms of section 46(10) or section 46(16) of the Act, in which case
the applicants should have followed the procedures provided in
section 46(19) of the Act; and
(3)
Whether the alleged violation of the applicants' rights in the
present application is a question that arose in proceedings in the
High Court and/or the Electoral Court.
I
will deal with the second issue first:
Does
section 46 of the Act apply to the applicants?
The
second issue raises the question of the correct interpretation of
subsections 46(8), (9), (10) and (19) of the Act. Subsections 46(8),
(9), (10) and (19) of the Act provide as follows:
“(8)
The nomination officer shall examine every nomination paper lodged
with him or her which has not been previously examined by him or her
in order to ascertain whether it is in order and shall give any
candidate or his or her chief election agent an opportunity to
rectify any defect not previously rectified and may adjourn the
sitting of the court for that purpose from time to time: Provided
that the sitting shall not be adjourned to any other day that is not
a nomination day.
(9)
If, on examining a nomination paper which specifies that the
candidate concerned is to stand for or be sponsored by a political
party, the nomination officer is doubtful that such fact is true, the
nomination officer may require the candidate or his or her chief
election agent to produce proof as to such fact, and may adjourn the
sitting of the court for that purpose from time to time: Provided
that the court shall not be adjourned to any other day that is not a
nomination day.
(10)
Subject to subsections (8) and (9), the nomination officer in open
court shall reject any nomination paper lodged with him or her at any
time –
(a)
if he or she considers that any symbol or abbreviation specified
therein in terms of paragraph (b) or (c) of subsection (1) –
(i)
is indecent or obscene; or
(ii)
is too complex or elaborate to be reproduced on a ballot paper; or
(iii)
so closely resembles –
A.
the symbol of any other candidate contesting the election in the
constituency concerned; or
B.
the recognised symbol or abbreviation of any political party, other
than the political party, if any, for which the candidate concerned
is standing or which is sponsoring him or her; as to be likely to
cause confusion; or
(b)
if any symbol specified therein in terms of paragraph (b) of
subsection (1) is a prohibited symbol; or
(c)
if the nomination paper states that the candidate concerned is to
stand for or be sponsored by a political party and the nomination
officer has reason to believe that that fact is not true; or
(d)
if in his or her opinion the nomination paper is for any other reason
not in order; and subsection (19) shall apply.…
(19)
If a nomination paper has been rejected in terms of subsection (10)
or been regarded as void by virtue of subsection (16) –
(a)
the nomination officer shall forthwith notify the candidate or his or
her chief election agent, giving reasons for his or her decision; and
(b)
the candidate shall have the right of appeal from such decision to a
judge of the Electoral Court in chambers and such judge may confirm,
vary or reverse the decision of the nomination officer and there
shall be no appeal from the decision of that judge; and
(c)
if no appeal in terms of paragraph (b) is lodged within four days
after the receipt of notice of the decision of the nomination
officer, the right of appeal of the candidate shall lapse and the
decision of the nomination officer shall be final; and
(d)
if an appeal in terms of paragraph (b) is lodged, the judge concerned
may –
(i)
direct that any further proceedings under this section in relation to
that election shall be suspended, if necessary, pending determination
of the appeal; and
(ii)
specify a day or days on which any poll in terms of this Part and
Part XIII shall be held; and if he or she does so, the Chief
Elections Officer shall cause notice thereof to be published in the
Gazette.”
A
proper reading of the above subsections reveals that the applicants'
contention that the nomination papers of the applicants were not
rejected in terms of subsection (10) of section 46 of the Act, cannot
but be correct.
I,
however, come to this conclusion for reasons different from those
advanced by the applicants.
The
applicants contend that section 46 of the Act does not apply to
Presidential Elections.
It
does by reason of the provisions of section 104(3) of the Act.
In
my view, if the applicants' nomination papers were rejected other
than in terms of section 46(10) or section 46(16) of the Act, then
the remedy provided for in subsection 46(19) was not available to
them.
Subsection
46(10) clearly states that it is subject to subsections 46(8) and
46(9).
Put
differently, the application of subsection (10) is conditional upon
the fulfilment of the requirements of subsections (8) and (9).
Subsections
(8) and (9) envisage that nomination papers are submitted to the
nomination officer who in turn accepts and examines the nomination
papers. It is only after a nomination officer has accepted and
examined the nomination papers that he can act or do any of the
things provided for in terms of subsection (10).
The
facts of this case clearly show that the nomination papers of the
first applicant were never accepted by the nomination officer. The
second applicant's nomination papers were rejected on
re-submission.
I
will proceed on the basis that the second applicant's nomination
papers were also rejected.
Without
first accepting and examining the nomination papers a nomination
officer cannot comply with subsections (8) and (9) and consequently
act in terms of subsection (10).
It
is quite clear on the papers that the nomination papers were rejected
for failure to comply with subsection 46(7) of the Act, which
provides that nomination papers have to be submitted by four o'clock
in the afternoon of the nomination day.
The
second respondent has not filed an affidavit in this case.
The
inescapable inference from the accepted facts, as deposed to by the
applicants, is that the nomination officer rejected the nomination
papers because, in his view, the nomination papers were submitted
after 4 o'clock on the nomination day.
Indeed,
that is what the applicants were told by the second respondent.
The
applicants, however, contend that they were inside the Nomination
Court by close of nominations and that in terms of the proviso to
section 46(7) of the Act their nomination papers should have been
accepted and examined by the second respondent.
Section
46(7) of the Act provides:
“(7)
No nomination paper shall be received by the nomination officer in
terms of subsection (6) after four o'clock in the afternoon of
nomination day or, where there is more than one nomination day for
the election concerned, the last such nomination day: Provided that,
if at that time a candidate or his or her chief election agent is
present in the court and ready to submit a nomination paper in
respect of the candidate, the nomination officer shall give him or
her an opportunity to do so.”
It
is quite clear to me that the applicants' nomination papers were
rejected by the second respondent for non-compliance with section
46(7) of the Act, contrary to the explicit provisions of section
46(7) of the Act.
On
a proper reading of the Act, a candidate whose nomination papers have
been wrongfully rejected for non-compliance with section 46(7) of the
Act cannot appeal to a Judge of the Electoral Court in terms of
section 46(19) of the Act.
Indeed
the Act does not provide a remedy for such a candidate.
This
appears to be an oversight by the draftsperson.
Where
no specific remedy is provided for in the Act the High Court can
exercise its inherent jurisdiction of review.
It
would appear to me therefore that the approach to the High Court in
the first instance was correct and, had the cause of action been
properly pleaded, the probabilities are that the High Court would
have exercised its review jurisdiction and determined the matter.
As
things stand, the High Court declined to determine the matter on the
ground that it had no jurisdiction.
I
am satisfied that section 46(10), section 46(16) and section 46(19)
of the Act do not apply to the applicants and their contention in
this regard succeeds.
Are
the allegations of violations of the applicants' rights in the
present application questions that arose in proceedings in the High
Court and/or the Electoral Court? If so, are the applicants barred
from direct approach to this Court?
It
is common cause that before launching the present application to this
Court the applicants approached the High Court and the Electoral
Court. Both courts declined to hear the matter on the ground that
they had no jurisdiction.
In
the case of the High Court the court erroneously ruled that it lacked
jurisdiction because this was a matter for determination by the
Electoral Court in terms of section 46(19) of the Act.
The
Electoral Court declined jurisdiction because the matter had
prescribed in terms of the Act.
Mr
Chikumbirike's contention, as I understand it, is that the basis of
the applicants' complaint in both the High Court and the Electoral
Court was the conduct of the second respondent during nomination
proceedings. The same conduct of the second respondent is the basis
of the present application. The only difference, he submitted, is
that in the High Court and the Electoral Court the applicants
categorised the second respondent's conduct as unlawful, while in
the present application the applicants categorise the second
respondent's conduct as violating the applicants' rights.
On
this basis, he further argued, the present application is a matter
that arose during proceedings in the High Court and the Electoral
Court. The applicants' right to approach this Court in terms of
section 24(1) of the Constitution had they not first approached the
High Court and/or the Electoral Court cannot be disputed.
The
issue for determination is: Does the applicants' approach to the
High Court and the Electoral Court make this application a matter
arising from the proceedings in the High Court or the Electoral Court
within the meaning of section 24(2) of the Constitution, thus barring
the applicants from directly approaching this Court in terms of
section 24(1) of the Constitution?
In
the case of Tsvangirai v Mugabe and Anor S-84-05 this Court had
occasion to consider what constitutes a matter arising from
proceedings in the High Court in terms of section 24(2) of the
Constitution.
The
facts of that case were as follows:
The
applicant was the petitioner in an election petition brought
following the Presidential Election held in March 2002. Amongst the
grounds on which the petition was based was the allegation that
section 158 of the Act and certain statutory instruments enacted
thereunder, in terms of which the election was conducted, were
constitutionally invalid.
Several
months after the petition was lodged, and after urging from the
applicant, a pre-trial conference was held, at which the parties
agreed that the trial of the election petition would deal first with
submissions and argument on the constitutional validity of section
158 and the statutory instruments and orders made under its
authority.
The
trial finally commenced about a year later, after the applicant had
obtained a writ of mandamus compelling the Registrar of the High
Court to set the matter down for trial.
The
Judge heard submissions and argument on the constitutional issues and
reserved judgment on these issues.
Seven
months after judgment was reserved, the Judge issued an order, in
terms of which the contentions advanced on behalf of the applicant
were dismissed. No reasons were given in spite of a promise to do so
within two weeks.
There
was no appeal noted by the applicant against the order within fifteen
days of the date it was given, as required by Rule 30 of the Rules of
the Supreme Court.
A
month later, the resumed trial was set down for a date in September
2004.
In
August 2004 the applicant asked for a postponement of the trial
because it was necessary to examine ballot papers and other election
material, the production of which had been ordered by the court.
In
the meantime, the applicant continued to seek the Judge's reasons
for his decision, although it was not until February 2005 that it was
made clear that he was seeking the Judge's reasons in order to
decide whether or not to appeal.
No
reasons having been forthcoming by July 2005, the applicant
approached the Supreme Court for redress in terms of section 24(1) of
the Constitution, alleging that the rights to protection of the law
and to a fair hearing within a reasonable time, guaranteed to him and
protected against infringement under sections 18(1) and 18(9) of the
Constitution respectively, had been contravened by the High Court.
He
sought an order setting aside the Judge's order and putting the
matter before the Supreme Court for decision.
It
was argued on behalf of the first respondent that the matter was not
properly before the Supreme Court because the constitutional question
arose in the proceedings in the High Court and as such the applicant
was obliged to comply with the procedure prescribed in section 24(2).
The
applicant argued that there were no proceedings in the High Court,
the only proceedings being the hearing on the constitutional
argument, and thus he was not obliged to request the Judge to refer
the constitutional issue to the Supreme Court in terms of section
24(2). In addition, as the Judge was accused of being the principal
cause of the delay, by reason of his continued failure in the hearing
and determination of the election petition by failing to give
reasons, he would have become a judge in his own cause in breach of
the rules of natural justice.
This
Court held:
“(1)
The word 'proceedings' in section 24(2) is a general term,
referring to the action or application itself and the formal and
significant steps taken by the parties in compliance with procedures
laid down by the law for the purpose of arriving at a final judgment
on the matter in dispute.
There
are proceedings in being in the High Court from the moment an action
is commenced or an application made until termination of the matter
in dispute or withdrawal of the action or application.
There
was no need to limit the very general words of section 24(2) by
saying that the question as to the contravention of the Declaration
of Rights arises only when the court is actually sitting.
The
proceedings in the High Court were still pending.
Whilst
the request for the reference of the question to the Supreme Court
must be made to the Judge whilst he is actually sitting in court, the
question itself does not have to arise when the court is sitting. It
may arise on the pleadings or from the circumstances of the case.
The
applicant should have had the application for reference of the
question set down for hearing by the Judge.
(2)
The argument that the Judge would have become a judge in his own
cause had the request been made of him to refer the question to the
Supreme Court for determination ignores the fact that compliance with
the procedure prescribed in section 24(2) is mandatory.
If
the Judge had, out of selfish interest and in bad faith, held that
the raising of the question by the applicant was merely frivolous or
vexatious, he would have infringed the applicant's right to the
protection of the law guaranteed under section 18(1). The applicant
would then have been entitled to apply to the Supreme Court for
redress in terms of section 24(1) of the Constitution. He would have
discharged his duty to comply with the procedure prescribed in
section 24(2).”
Thus,
it would appear from Tsvangirai's case supra that once proceedings
are commenced in the High Court or any subordinate court and a
constitutional point arises from the pleadings or circumstances of
the case the constitutional point has arisen from proceedings in that
court.
In
casu, there is no doubt that an application was made to the High
Court and the Electoral Court. The High Court heard submissions from
counsel but did not adjudicate on the merits of the matter because it
concluded that it had no jurisdiction. Similarly, the matter was
commenced in the Electoral Court. The Electoral Court did not
adjudicate on the merits of the application because the application
or appeal was out of time.
On
these facts, can it be contended that the constitutional point arose
from proceedings in the High Court or the Electoral Court within the
meaning of section 24(2) of the Constitution?
The
present case is distinguishable from Tsvangirai's case supra in two
significant respects.
(i)
Firstly, both the High Court and the Electoral Court declined to
entertain the matter on the merits on the basis that they had no
jurisdiction.
Can
it be said that there are proceedings in a court that has declined
jurisdiction?
The
court dealing with Tsvangirai's case had jurisdiction.
(ii)
Secondly, in respect of Tsvangirai's case the High Court
proceedings had not concluded.
In
the present case, the proceedings of both the High Court and the
Electoral Court were concluded in the sense that both courts had made
a final determination that they had no jurisdiction.
Given
the facts set out above, can it be said that the application before
this Court arose from proceedings in the High Court or the Electoral
Court within the meaning of section 24(2) of the Constitution?
There
is no doubt that it was open to the applicants to apply to the High
Court or the Electoral Court to refer this case to the Supreme Court.
I,
however, do not think that the mere existence of an opportunity to
apply for a referral creates an obligation on the applicants to
comply with section 24(2) of the Constitution and bars them from
approaching this Court in terms of section 24(1) of the Constitution.
Common
sense dictates that where a court has declined jurisdiction there
cannot be proceedings before it thereafter.
It
seems to me that one of the objects of section 24(2) and section
24(3) of the Constitution is to prevent parallel proceedings in two
courts and the possibility of two conflicting outcomes.
Where
the one court has concluded that it has no jurisdiction that
possibility is eliminated.
It
also appears to me incongruous to hold that a matter arises from a
proceeding in another court when that other court has declined
jurisdiction.
In
Tsvangirai's case supra the court had yet to determine the matter
on the merits.
In
the present case, both the High Court and the Electoral Court had
made a final determination that they had no jurisdiction.
I
also find nothing in the language of section 24, and in particular in
subsection (3), which suggests that the Legislature intended to bar a
litigant whose matter cannot be determined on the merits by the High
Court or other adjudicating authority because of lack of jurisdiction
from approaching this Court directly in terms of section 24(1) of the
Constitution.
On
the facts of this case, I am satisfied that the applicants can
approach this Court in terms of section 24(1) of the Constitution.
In
the result, Mr Chikumbirike's contention that the applicants are
barred from approaching this Court in terms of section 24(3) of the
Constitution fails.
Was
the first respondent wrongly cited?
Turning
to the final point raised, namely that the first respondent was
wrongly cited. A perusal of the relevant provisions of the Zimbabwe
Electoral Commission Act [Cap 2:12] and the State Liabilities Act
[Cap. 8:14] clearly shows that Mr Chikumbirike is correct and the
Chairperson of the first respondent should have been cited instead of
the first respondent.
The
relevant provisions provide as follows:
Section
18 of the Zimbabwe Electoral Commission Act provides as follows:
“18
Legal proceedings against Commission
The
State Liabilities Act [Chapter 8:14] applies with necessary changes
to legal proceedings against the Commission, including the
substitution of references therein to a Minister by references to the
Chairperson of the Commission.”
The
above provision is fairly explicit.
It
states quite clearly that whenever there is a reference to a Minister
in the State Liabilities Act the litigant substitutes “Minister”
with “Chairperson of the Commission”.
The
Zimbabwe Electoral Commission Act therefore provides that the
Chairperson of the Electoral Commission (“the Commission”) is to
be cited whenever the Electoral Commission is being sued.
Failure
to cite the Chairperson of the Commission or the citing of the
Commission itself instead of the Chairperson constitutes a failure to
comply with section 18 of the Zimbabwe Electoral Commission Act.
The
applicants in this case therefore did not comply with section 18 of
the Zimbabwe Electoral Commission Act.
That
being the case, the issue that falls for determination is what are
the legal consequences that flow from the applicants'
non-compliance with section 18 of the Zimbabwe Electoral Commission
Act.
I
shall revert to this issue shortly.
The
relevant provisions of the State Liabilities Act that are
incorporated by section 18 of the Zimbabwe Electoral Commission Act
provide as follows:
“2
Claims against the State cognizable in any competent court
Any
claim against the State which would, if that claim had arisen against
a private person, be the ground of an action in any competent court,
shall be cognizable by any such court, whether the claim arises or
has arisen out of any contract lawfully entered into on behalf of the
State or out of any wrong committed by any officer or employee of the
State acting in his capacity and within the scope of his authority as
such officer or employee, as the case may be.
3.
Proceedings to be taken against Minister of department concerned
In
any action or other proceedings which are instituted by virtue of
section two, the plaintiff, the applicant or the petitioner, as the
case may be, may make the Minister to whom the headship of the
Ministry or department concerned has been assigned nominal defendant
or respondent: Provided that, where the headship of the Ministry or
department concerned has been assigned to a Vice-President, he may be
made nominal defendant or respondent.” (the emphasis is mine)
On
a proper interpretation of the above sections, the words “may make
the Minister” the defendant or the respondent have to be
interpreted as directing the plaintiff or the applicant to cite the
Minister as the defendant or the respondent.
To
interpret the above words as conferring on the plaintiff or the
applicant unfettered discretion to cite the Minister or any other
person of their choice would lead to an obvious absurdity that could
not have been intended by the legislature.
In
the same vein, section 18 of the Zimbabwe Electoral Commission Act
directs the applicant to cite the Chairperson of the Commission as
the defendant or the respondent.
In
my view, the correct interpretation to be ascribed to section 18 of
the Electoral Commission Act, as read with the State Liabilities Act,
is that whenever an employee of the Commission is being sued and the
plaintiff or the applicant wishes to join the Commission, the
Chairperson of the Commission and not the Commission itself has to be
cited.
The
same would apply when the Commission alone is being sued for the
misconduct of its employees or its own misconduct – the Chairperson
is to be cited as representing the Commission.
I
therefore do not accept the contention of the applicants that the use
of the word “may” in the above provision entitled the applicants
to cite whomever they wished in place of the Chairperson of the
Commission.
Mr
Chikumbirike further argued that the applicants' failure to comply
with section 18 of the Zimbabwe Electoral Commission Act, as read
with sections 2 and 3 of the State Liabilities Act, rendered these
proceedings a nullity.
In
other words, Mr Chikumbirike's submission is that section 18 of the
Zimbabwe Electoral Commission Act is peremptory and failure to comply
with the section renders the proceedings a nullity.
I
do not accept the contention that section 18 of the Zimbabwe
Electoral Commission Act, as read with the State Liabilities Act, is
peremptory for a number of reasons.
In
section 18 of the Zimbabwe Electoral Commission Act, as read with the
State Liabilities Act, the word “may” as opposed to the word
“shall” is used. This is indicative of a directory and not a
peremptory intent of the legislature.
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 pp 21-22:
“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 n 74.} 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 s13 of this Code (criminal sanctions) and s14
(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.
The
purpose of section 18 of the Zimbabwe Electoral Commission Act is to
ensure that the Chairperson of the Commission, as an interested
party, is not sidelined in litigation against the Commission.
He
has not been sidelined as he is aware of the proceedings in this
matter. He has filed an affidavit.
On
the facts of this case, to hold that the proceedings are a nullity
for failure to comply with section 18 of the Zimbabwe Electoral
Commission Act would result in a consequence totally disproportionate
to the mischief intended to be remedied.
In
the result I hold the view that section 18 of the Zimbabwe Electoral
Commission Act is directory and not peremptory.
This
is not to say that in a proper case the Court will not dismiss an
application or mulct an offending litigant in costs for failure to
comply with section 18 of the Zimbabwe Electoral Commission Act.
Legal practitioners should stand forewarned that in a proper case the
Court may dismiss an application for failure to comply with section
18 of the Zimbabwe Electoral Commission Act.
On
the facts of this case, I am satisfied that no prejudice has been
caused to any party by the failure to comply with section 18 of the
Zimbabwe Electoral Commission Act and that in the interests of
bringing speedy finality to litigation the Court should exercise its
discretion and condone the applicants' irregularity in this regard.
This approach will facilitate a speedy resolution of the substantive
issues in this case.
CONCLUSION
In
conclusion, on the version of events as stated by the applicants, it
is quite clear that the refusal to accept their nomination papers was
not in accordance with the law, in particular section 46(7) of the
Act. The second respondent's refusal to accept the applicants'
nomination papers was therefore null and void.
As
I have already said, the election in question is complete, having
taken place on 29 March 2008, and the applicants do not seek an order
that affects that election. To that extent, this exercise is somewhat
academic. However, the application succeeds and an order is made in
terms of the draft.
SANDURA
JA: I agree
ZIYAMBI
JA: I agree
MALABA
JA: I agree
GARWE
JA: I agree
Chinyama
& Associates, applicants' legal practitioners
Civil
Division of the Attorney-General's Office, respondents' legal
practitioners
