PATEL
JA: This
appeal emanates from an election petition lodged with the Electoral
Court to nullify the election of the respondent and to declare the
petitioner (the appellant herein) duly elected as the Member of
Parliament for Chegutu West. The disputed election was held on
30 July 2018.
Background
After
the relevant election forms
were
collated and compiled, the respondent was declared duly elected by
10,932 votes as opposed to 10,828 votes attributed to the appellant.
The appellant asserted that the Zimbabwe Electoral Commission (ZEC)
officials made mistakes in capturing data from the ward centres. He
lodged a complaint with the ZEC District Elections Officer after the
discovery of the mistake which was then admitted by ZEC. Before the
Electoral Court, the appellant sought the correction of the erroneous
declaration. The respondent took various points in
limine.
Judgment
of the Electoral Court
The
court a
quo
considered the provisions of the Electoral (Applications, Appeals and
Petitions) Rules 1995 (S.I. 74 of 1995). It found that r21 of the
Rules sets out certain peremptory requirements pertaining to the form
and content of an election petition. Amongst other things, r21
requires the petitioner to state the grounds of the petition and the
exact nature of the relief sought on the face of the petition. The
court took the view that r21 is peremptory and must be strictly
complied with and that substantial compliance is not acceptable.
Consequently, a petition that fails to comply with the form and
content as set out in r21 is fatally defective.
In
the instant case, the court found that the exact relief sought by the
appellant was clear ex
facie
the petition and that the appellant was entitled to bring the
petition in terms of s167 of the Electoral Act [Chapter
2:13]
to rectify the alleged irregularity.
The
court further found that the relief seeking the nullification of the
declaration by ZEC of the appellant as having been duly elected was
competent by virtue of s171 of the Electoral Act. The court
accordingly dismissed the points in
limine
taken by the respondent on these three aspects.
As
regards the fourth point in
limine,
the court reiterated that it was imperative for a petitioner to
follow the format prescribed in r21.
In
casu,
the appellant brought the petition on notice and therefore fell foul
of r21.
The
form and content of the petition did not comply with r21, rendering
it fatally defective. The appellant had failed to present his case in
the proper format required by law. There was therefore no valid
petition before the court.
In
the event, the court could do nothing to salvage the situation, even
where the petition might appear to have merit. The court's residual
power to condone infractions in electoral matters was curtailed. The
petition was accordingly dismissed with costs. Additionally, the
Registrar was directed to serve copies of the order on ZEC and the
Clerk of Parliament.
Grounds
of appeal and respondent's preliminary objections
The
gravamen of the appeal against the judgment a
quo
is threefold.
(i)
The first is that the petition was not fatally defective for having
been brought on notice as s169 of the Electoral Act makes such notice
mandatory.
(ii)
The second is that the court a
quo
could have condoned non-compliance with the Rules as s17(9) of the
Electoral Act vests the court with such competence to condone.
(iii)
The third is that the court failed to consider the merits of the
petition despite ZEC having acknowledged the error that resulted in
the undue return complained against.
On
12 April 2019, the respondent gave written notice, in terms of r51 of
the Supreme Court Rules 2018, that he intended to rely on two
preliminary objections in the proceedings.
The
less consequential objection is that the relief sought in the notice
of appeal is both incompetent and defective in seeking that the
matter be referred to trial on the merits before a different judge of
the Electoral Court.
The
more significant and weighty objection is that the adjudication of
the present appeal is now statute barred on account of s182(2) of the
Electoral Act.
At
the hearing of the appeal, following an exchange with the Court,
counsel did not motivate any argument on the former point and focused
their submissions on the latter objection.
Submissions
by counsel
Mr
Zhuwarara,
for the respondent, submits that s182(2) of the Electoral Act imposes
a clear statutory bar on the adjudication of an electoral appeal.
Once the prescribed period of 3 months has expired, the Court has no
jurisdiction to entertain the matter. The appellant was the dominus
litis
and was required to ensure that the matter was heard within the
prescribed period by approaching the Registrar to expedite the
matter.
Mr
Mafukidze,
for the appellant submits that s182 of the Electoral Act does not
operate to bar the Court from determining this appeal since the
appellant has already filed process and the matter is pending. No
directions were issued in this matter, as provided by s182, and the
provision was not intended to non-suit a litigant who is already
before the Court.
There
is no provision barring the Court from hearing and determining a
matter that is already pending before it.
The
Court should adopt a reasonable interpretation that is
constitutionally compliant. Any provision ousting the Court's
jurisdiction must be clear and unequivocal and restrictively
interpreted. There is nothing in s182 to oust the Court's
jurisdiction in clear terms.
The
appellant herein acted timeously by filing the appeal and his heads
of argument in time. It was the duty of the Chief Justice or Judge
President to issue the directions envisaged in s182(3) of the Act.
Such directions should have been issued generally for dealing with
all election petitions and appeals as soon as s182(3) was introduced.
In
response, Mr Zhuwarara
reiterates that the petitioner in an electoral matter is the dominus
litis
and cannot simply sit back. What is involved is a party driven
process. The appellant's interpretation gives rise to the absurdity
that an electoral appeal can be dealt with whenever a petitioner
deems fit, even after the challenged electoral term of office has
expired.
Section
182(3) of the Act requires that the directions in question must meet
the timeframes stipulated in s182(1) and s182(2). These time limits
are immutable and must be complied with. If the prescribed time limit
is extended beyond 3 months, then the rule of law is violated.
Where
a statutory power is being exercised, the Court cannot assume and
exercise its inherent powers beyond or outside the governing
statutory provision.
In
this case, the appellant did nothing to expedite the appeal process.
Section 182(3) of the Act does not envisage the issuing of general
directions. The directions should be specific to each case having
regard to the particular circumstances of that case.
Lastly,
Mr Zhuwarara
submits that s182 of the Act is not directory but peremptory and the
prescribed timelines must be strictly complied with. Rule 4 of the
Supreme Court Rules 2018 only applies to departures from the Rules.
It does not allow any departure or condonation for breach of a
statute unless that statute specifically allows such departure or
condonation.
Following
the foregoing submissions by counsel on the import of s182 of the
Electoral Act, the Court reserved judgment on the preliminary
objection relating to compliance with the time limits stipulated in
that provision.
Timeous
disposal of election petitions and appeals
Section
182 of the Electoral Act governs the time within which election
petitions and appeals are to be determined. The provision that was
originally in force was repealed and substituted by s34 of the
Electoral Amendment Act, No. 6 of 2018.
Section
182 in its present form stipulates as follows:
“(1)
Every election petition shall be determined within six months from
the date of presentation.
(2)
An appeal under section 172(2) shall be determined within three
months from the date of the lodging of the appeal.
(3)
For the purpose of ensuring that an election petition or an appeal is
determined within the time-limit prescribed in subsection (1) or (2),
as the case may be —
(a)
the Judge President of the High Court or the presiding judge of the
Electoral Court, in the case of an election petition; and
(b)
the Chief Justice or the senior presiding judge of the Supreme Court,
in the case of an appeal from a decision on an electoral petition;
may, notwithstanding any other enactment, give such directions as to
the filing of documents and the hearing of evidence and argument as
will, in his or her opinion, ensure that the time-limit is met, and
the parties shall comply with those directions.”
The
interpretation and application of the provisions of s182 raise the
following questions for consideration in
casu:
(i)
Upon whom does the duty lie to ensure compliance with the time limits
stipulated in that section and how is that duty to be performed? and
(ii)
what are the consequences of the failure to meet the prescribed time
limits?
Both
questions were fully canvassed and definitively determined in the
recent judgment of this Court in Sibanda
& Anor
v Ncube
& Ors
/ Khumalo
& Anor
v Mudimba
& Ors
SC158/2020 (handed down on 20 November 2020).
In
addressing the first question, it was held, at p.12:
“……..
it is incumbent upon all the players involved in the adjudication of
electoral matters to ensure compliance with the time limits
stipulated in subss (1) and (2) of s182. That this is so is made
abundantly clear by the provisions of subs (3) of s182. What is not
explicitly articulated is the extent to and manner in which each
player is expected to carry out his or her respective role in the
adjudicative process. These are matters to be inferred from other
relevant statutory provisions and from the rules of practice and
procedure generally.”
It
was further held, at p.13:
“Ultimately,
it seems to me that it is for the parties themselves, and the
petitioner or appellant in particular, qua
dominus litis,
to initiate the process of seeking and obtaining the requisite
directions envisaged in s182(3) of the Act.
It
is they and their legal practitioners who should be especially
vigilant in monitoring and managing the progress of their own cases
in order to meet the stipulated time limits. And it is the parties,
through their lawyers, who should take the initiative to approach the
relevant Registrar to apprise him or her of the specific difficulty
that may have been encountered in complying with the provisions of
subss (1) or (2) of s182, as the case may be.
Indeed,
this is entirely consistent with prevailing practice in the conduct
of litigation generally insofar as concerns adherence to the
procedural timelines set out in all our rules of court.”
The
answer to the second question hinges upon a consideration of whether
the stipulated time limits are mandatory or purely directory. Having
regard to the relevant rules of statutory interpretation, the Court
held as follows, at pp.19-20:
“The
legislative history of these provisions, captured in their genesis
and subsequent development, makes it abundantly clear that the
purpose for which they were designed was to expedite the final
determination of electoral petitions and appeals and thereby curtail
the perceived mischief of interminable electoral proceedings.
In
addition, the discretionary powers conferred by subs (3) were
deliberately inserted in 2018 so as to achieve and secure that
legislative purpose and design.
To
construe the provisions of s182, taken as a whole, as being merely
directory would only serve to frustrate and defeat the clear
intention of the legislature and the objective that it sought to
attain.
It
follows, in my view, that the provisions of subss (1) and (2) are
imperative and therefore mandatory and that the time limits
stipulated in those provisions cannot be exceeded under any
circumstances.
It
also follows that any adjudicative proceedings that may be conducted
beyond those time limits are rendered nugatory and must be regarded
as being null and void. Put differently, the courts are not at
liberty to entertain such proceedings outside the mandated timelines.
To
conclude this aspect of the matter, the foregoing construction of
s182 as demanding strict compliance with its prescribed time limits,
although seemingly draconian in effect, substantially accords with
its plain and grammatical meaning. In this respect, I am unable to
perceive any glaring absurdity or inconsistency in the adoption and
application of that construction.”
With
reference to the constitutional dimension, in particular, the
possible violation of the right to a fair hearing, the right of
access to the courts in all civil matters and the associated
entitlement to challenge election results, enshrined in ss69 and
157(1)(g) of the Constitution, the Court, at p.20, was not persuaded
by the argument that the strict interpretation of s182 operated to
violate any interpretive or substantive norm of the Constitution. In
this regard, the Court took the view, at p.21, that:
“the
restrictions imposed by s182 are eminently 'fair, reasonable,
necessary and justifiable in a democratic society', taking into
account the relevant factors delineated in s86(2) of the
Constitution.
In
particular, they are necessary in the general public interest to
secure the expeditious determination of electoral challenges.
Furthermore,
given that the timeframes stipulated are not unduly attenuated, they
do not operate to impose any greater restrictions on the rights
concerned than are necessary to achieve their intended purpose.
Lastly,
I am unable to conceive any less restrictive means of achieving the
purpose of the limitations imposed by s182.”
The
Court accordingly concluded as follows, at p.22:
“To
conclude my analysis of s182 of the Electoral Act, I take the view
that the time limits imposed by that provision on the determination
of election petitions and appeals are mandatory and must be strictly
complied with. Moreover, the adoption and application of this strict
construction does not entail any contravention or violation of
constitutional rights and freedoms.”
Disposition
The
petition in
casu
was lodged with the Electoral Court on 10 August 2018. It was
determined and dismissed by the court a
quo
on 18 October 2018, not on the merits but on a preliminary point
relating to non-compliance with the Electoral Rules.
The
present appeal was lodged on 2 November 2018. The appellant's heads
of argument on the merits were filed 4 months later on 7 March 2019
and the respondent's preliminary objections were noted on 12 April
2019. The appeal was first set down for hearing on 24 May 2019 and
then later reset to be heard on 29 July 2019.
In
terms of s182(2) of the Electoral Act, this appeal should have been
determined within 3 months of its having been lodged, i.e.
by 2 February 2019, a month before the appellant filed his heads of
argument.
I
am unable to perceive any cogent basis for departing from the
reasoning and consequent judgment of this Court in the Sibanda
/ Khumalo
case, supra.
This
is so notwithstanding the seemingly meritorious case instituted and
presented by the appellant in the proceedings before the court a
quo.
In
the result, the respondent's point in
limine,
challenging the continued adjudication of this appeal beyond the time
limit prescribed by s182(2) of the Electoral Act, is sustained and
must be upheld. Consequently, the appeal can no longer be heard or
determined by this Court for want of jurisdiction.
As
regards costs, there can be no doubt that the disposition of this
appeal revolves around a point of great public importance. It was
heard on 29 July 2019, only a few days after the hearing of the
appeal in the Sibanda
/ Khumalo
matter. In the event, I fully agree with the position taken by Mr
Zhuwarara
that each party should bear its own costs, whichever way the
preliminary objection in
casu
was eventually determined.
It
is accordingly ordered that the present appeal, having ceased to be
properly before this Court by reason of the time limit stipulated by
s182(2) of the Electoral Act having been exceeded, be and is hereby
removed from the roll with each party to bear its own costs.
BHUNU
JA: I
agree
BERE
JA: (No
longer in office)
DNM
Attorneys,
appellant's legal practitioners
Chambati,
Matoka & Makonese,
respondent's legal practitioners
