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HB128-19 - 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST and NOMALANGA DABENGWA vs TINASHE KAMBARAMI and CITY OF BULAWAYO and ZIMBABWE ELECTORAL COMMISSION and MOVEMENT FOR DEMOCRATIC CHANGE ALLIANCE

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Procedural Law-viz declaratory order re consequential relief.
Procedural Law-viz declaratur re consequential relief.
Electoral Law-viz electoral petitions re criminal record of candidates iro section 119 of the Electoral Act [Chapter 2:13].
Electoral Law-viz electoral petitions re criminal conviction status of candidates iro section 119 of the Electoral Act [Chapter 2:13].
Local Authorities-viz dismissal of councillors re removal of Deputy Mayor.
Procedural Law-viz rules of evidence re documentary evidence.
Procedural Law-viz citation re legal status of litigants.
Procedural Law-viz locus standi re legal status of litigating parties.
Procedural Law-viz locus standi re electoral proceedings.
Electoral Law-viz tenure of office of Electoral Court bench re section 162 of the Electoral Act [Chapter 2:13].
Procedural Law-viz jurisdiction re electoral proceedings.
Procedural Law-viz jurisdiction re security for costs iro section 168 of the Electoral Act [Chapter 2:13].
Procedural Law-viz jurisdiction re security for costs iro section 169 of the Electoral Act [Chapter 2:13].
Electoral Law-viz electoral petitions re form of proceedings.
Procedural Law-viz cause of action re application proceedings iro Rule 226 of the High Court Rules.
Procedural Law-viz form of proceedings re motion proceedings iro Rule 226 of the High Court Rules.
Procedural Law-viz nature of proceedings re application procedure iro Rule 226 of the High Court Rules.
Procedural Law-viz declaratory order re section 14 of the High Court Act [Chapter 7:06].
Procedural Law-viz declaratur re section 14 of the High Court Act [Chapter 7:06].
Procedural Law-viz locus standi re public interest litigation.
Electoral Law-viz electoral petitions re grounds for disqualification of candidates iro section 119 of the Electoral Act [Chapter 2:13].

Locus Standi re: Approach and the Legal Capacity to Institute or Defend Legal Proceedings


The applicants herein filed a court application and sought the following relief, that;

(a) It be declared that the election of the first respondent as councilor for Ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act [Chapter 2:13] following his conviction of theft at the Bulawayo Magistrates Court under criminal record book number 1981/18 on 27 June 2018 and is therefore set aside on account of being null and void.

(b) Consequently, the election of the first respondent as the second respondent's Deputy Mayor be set aside.

(c) Costs of suit at an attorney and client scale against such party as will oppose the above relief sought.

Suffices at this stage to mention that only the first respondent opposed the relief sought.

The brief history of the matter is as follows:

Following a proclamation by the President of the Republic of Zimbabwe, in terms of section 144(2) of the Constitution of Zimbabwe as read with section 38(1)(c) of the Electoral Act [Chapter 2:13], setting the dates for the sitting of the Nomination Court and for the holding of a general election, the first respondent, who was an aspiring councillor representing the Movement for Democratic Change Alliance (MDC-A) successfully filed his nomination papers with the third respondent.

The Nomination Court set on 14 June 2018.

The first respondent's nomination papers were accepted by the third respondent and he was duly registered as the MDC-A candidate for Bulawayo, Ward 3 councillor.

It is now common cause, that, on 27 June 2018, albeit two (2) weeks after the Nomination Court, the first respondent was arrested and appeared before a magistrate, sitting at Bulawayo Magistrates Court. He was charged with the crime of theft in contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded guilty to the charge and was duly convicted and sentenced to a fine of $180 in default of payment 18 days imprisonment.

Needless to say, the general elections were held 33 days later, on 30 July 2018.

On 2 August 2018, the first respondent was declared duly elected councilor for Bulawayo, Ward 3 by the third respondent.

On 30 October 2018, the first applicant, through its legal practitioners of record, wrote a letter to the first respondent. The letter indicated to the first respondent, in effect, that he had been disqualified from holding office as councilor and Deputy Mayor for Bulawayo by reason of his conviction by a Criminal Court on 27 June 2018. The first applicant urged the first respondent to do what it called the “honourable thing” and voluntarily resign within 48 hours failing which an application would be filed with the court seeking the nullification of his election as councillor for Ward 3, and, subsequently, as Deputy Mayor of Bulawayo.

The first respondent did not resign, and, on 23 November 2018, the applicants filed this current application as narrated above.

The first applicant states, that, it is an organisation operating in terms of the laws of Zimbabwe with the right and power to sue and be sued in its own name. Its objectives are, inter alia, to promote economic development in the Matabeleland and Midlands provinces as well as lobbying for awareness for human rights and violations thereof, including speaking against corrupt tendencies by public officers.

The second applicant states that she is a registered voter in Bulawayo's ward 3 wherein the first respondent was elected and confirmed councillor.

To that extent, the applicants claim that they are affected as well as interested parties in this matter....,.

The first respondent challenged the applicants locus standi in judicio in filing the application....,.

As regards the second applicant, the first respondent argued, that, there was no evidence before the court showing that she is a registered voter in Ward 3 nor that she participated in the election....,.

In Mpukuta v Motor Insurance Pool & Ors 2012 (1) ZLR 192 (H), the applicant was a Zimbabwean citizen permanently resident in Botswana. He would regularly drive into Zimbabwe to visit his family. Upon entry into Zimbabwe, he would obtain a temporary import permit for his foreign registered vehicle and other costs. He made an application for a declaratory order for, inter alia, re-imbursement of the expenses which he incurs when he travels. His company in Botswana refused to refund him on the grounds that his purported entries into Zimbabwe were not insured by “a registered and licenced” insurer.

The court held, that, the condition precedent to the grant of a declaratory order is that –

(a) The applicant must be an interested person, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The court must relate to an existing, future, and contingent right as the court will not decide on abstract, academic, or hypothetical questions as was the situation in that case.

(b) At the second stage, it is incumbent upon the court to decide whether or not the case in question is a proper one for the exercise of its discretion under section 14 of the High Court Act [Chapter 7:06].

The said section 14 of the High Court Act states as follows as regard the determination of future or contingent rights:

“14. The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future, or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”...,.

I am satisfied, therefore, from the above legal position, both statutory and from precedents, that, the applicants are in the category of interested persons qualified to make such an application.

Having said that, it follows, therefore, that it is an erroneous reasoning to hold that only those who “participated” in the 30 July 2018 election “would qualify to approach this court....,."

The first respondent seems to argue that “participants” for purposes of an election petition would mean those affected, especially losing candidates in the same election that he won.

Locus Standi re: Public Interest Litigation


The applicants herein filed a court application and sought the following relief, that;

(a) It be declared that the election of the first respondent as councilor for Ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act [Chapter 2:13] following his conviction of theft at the Bulawayo Magistrates Court under criminal record book number 1981/18 on 27 June 2018 and is therefore set aside on account of being null and void.

(b) Consequently, the election of the first respondent as the second respondent's Deputy Mayor be set aside.

(c) Costs of suit at an attorney and client scale against such party as will oppose the above relief sought.

Suffices at this stage to mention that only the first respondent opposed the relief sought.

The brief history of the matter is as follows:

Following a proclamation by the President of the Republic of Zimbabwe, in terms of section 144(2) of the Constitution of Zimbabwe as read with section 38(1)(c) of the Electoral Act [Chapter 2:13], setting the dates for the sitting of the Nomination Court and for the holding of a general election, the first respondent, who was an aspiring councillor representing the Movement for Democratic Change Alliance (MDC-A) successfully filed his nomination papers with the third respondent.

The Nomination Court set on 14 June 2018.

The first respondent's nomination papers were accepted by the third respondent and he was duly registered as the MDC-A candidate for Bulawayo, Ward 3 councillor.

It is now common cause, that, on 27 June 2018, albeit two (2) weeks after the Nomination Court, the first respondent was arrested and appeared before a magistrate, sitting at Bulawayo Magistrates Court. He was charged with the crime of theft in contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded guilty to the charge and was duly convicted and sentenced to a fine of $180 in default of payment 18 days imprisonment.

Needless to say, the general elections were held 33 days later, on 30 July 2018.

On 2 August 2018, the first respondent was declared duly elected councilor for Bulawayo, Ward 3 by the third respondent.

On 30 October 2018, the first applicant, through its legal practitioners of record, wrote a letter to the first respondent. The letter indicated to the first respondent, in effect, that he had been disqualified from holding office as councilor and Deputy Mayor for Bulawayo by reason of his conviction by a Criminal Court on 27 June 2018. The first applicant urged the first respondent to do what it called the “honourable thing” and voluntarily resign within 48 hours failing which an application would be filed with the court seeking the nullification of his election as councillor for Ward 3, and, subsequently, as Deputy Mayor of Bulawayo.

The first respondent did not resign, and, on 23 November 2018, the applicants filed this current application as narrated above.

The first applicant states, that, it is an organisation operating in terms of the laws of Zimbabwe with the right and power to sue and be sued in its own name. Its objectives are, inter alia, to promote economic development in the Matabeleland and Midlands provinces as well as lobbying for awareness for human rights and violations thereof, including speaking against corrupt tendencies by public officers.

The second applicant states that she is a registered voter in Bulawayo's ward 3 wherein the first respondent was elected and confirmed councillor.

To that extent, the applicants claim that they are affected as well as interested parties in this matter....,.

The first respondent challenged the applicants locus standi in judicio in filing the application....,.

As regards the second applicant, the first respondent argued, that, there was no evidence before the court showing that she is a registered voter in Ward 3 nor that she participated in the election....,.

In Mpukuta v Motor Insurance Pool & Ors 2012 (1) ZLR 192 (H), the applicant was a Zimbabwean citizen permanently resident in Botswana. He would regularly drive into Zimbabwe to visit his family. Upon entry into Zimbabwe, he would obtain a temporary import permit for his foreign registered vehicle and other costs. He made an application for a declaratory order for, inter alia, re-imbursement of the expenses which he incurs when he travels. His company in Botswana refused to refund him on the grounds that his purported entries into Zimbabwe were not insured by “a registered and licenced” insurer.

The court held, that, the condition precedent to the grant of a declaratory order is that –

(a) The applicant must be an interested person, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The court must relate to an existing, future, and contingent right as the court will not decide on abstract, academic, or hypothetical questions as was the situation in that case.

(b) At the second stage, it is incumbent upon the court to decide whether or not the case in question is a proper one for the exercise of its discretion under section 14 of the High Court Act [Chapter 7:06].

The said section 14 of the High Court Act states as follows as regard the determination of future or contingent rights:

“14. The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future, or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”...,.

I am satisfied, therefore, from the above legal position, both statutory and from precedents, that, the applicants are in the category of interested persons qualified to make such an application.

Having said that, it follows, therefore, that it is an erroneous reasoning to hold that only those who “participated” in the 30 July 2018 election “would qualify to approach this court....,."

The first respondent seems to argue that “participants” for purposes of an election petition would mean those affected, especially losing candidates in the same election that he won.

Approach re: Issues in Limine, Technical or Procedural Objections, Dilatory, Declaratory and Dispositive Pleas


The applicants herein filed a court application and sought the following relief, that;

(a) It be declared that the election of the first respondent as councilor for Ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act [Chapter 2:13] following his conviction of theft at the Bulawayo Magistrates Court under criminal record book number 1981/18 on 27 June 2018 and is therefore set aside on account of being null and void.

(b) Consequently, the election of the first respondent as the second respondent's Deputy Mayor be set aside.

(c) Costs of suit at an attorney and client scale against such party as will oppose the above relief sought.

Suffices at this stage to mention that only the first respondent opposed the relief sought.

The brief history of the matter is as follows:

Following a proclamation by the President of the Republic of Zimbabwe, in terms of section 144(2) of the Constitution of Zimbabwe as read with section 38(1)(c) of the Electoral Act [Chapter 2:13], setting the dates for the sitting of the Nomination Court and for the holding of a general election, the first respondent, who was an aspiring councillor representing the Movement for Democratic Change Alliance (MDC-A) successfully filed his nomination papers with the third respondent.

The Nomination Court set on 14 June 2018.

The first respondent's nomination papers were accepted by the third respondent and he was duly registered as the MDC-A candidate for Bulawayo, Ward 3 councillor.

It is now common cause, that, on 27 June 2018, albeit two (2) weeks after the Nomination Court, the first respondent was arrested and appeared before a magistrate, sitting at Bulawayo Magistrates Court. He was charged with the crime of theft in contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded guilty to the charge and was duly convicted and sentenced to a fine of $180 in default of payment 18 days imprisonment.

Needless to say, the general elections were held 33 days later, on 30 July 2018.

On 2 August 2018, the first respondent was declared duly elected councilor for Bulawayo, Ward 3 by the third respondent.

On 30 October 2018, the first applicant, through its legal practitioners of record, wrote a letter to the first respondent. The letter indicated to the first respondent, in effect, that he had been disqualified from holding office as councilor and Deputy Mayor for Bulawayo by reason of his conviction by a Criminal Court on 27 June 2018. The first applicant urged the first respondent to do what it called the “honourable thing” and voluntarily resign within 48 hours failing which an application would be filed with the court seeking the nullification of his election as councillor for Ward 3, and, subsequently, as Deputy Mayor of Bulawayo.

The first respondent did not resign, and, on 23 November 2018, the applicants filed this current application as narrated above.

The first applicant states, that, it is an organisation operating in terms of the laws of Zimbabwe with the right and power to sue and be sued in its own name. Its objectives are, inter alia, to promote economic development in the Matabeleland and Midlands provinces as well as lobbying for awareness for human rights and violations thereof, including speaking against corrupt tendencies by public officers.

The second applicant states that she is a registered voter in Bulawayo's ward 3 wherein the first respondent was elected and confirmed councillor.

To that extent, the applicants claim that they are affected as well as interested parties in this matter.

The first respondent has vigorously opposed this application.

In fact, it would appear, that, soon after receipt of this application, which the applicants say was served on him on 6 December 2018, the first respondent filed his notice of opposition on the same day (6 December 2018). The very next day, on 7 December 2018, he filed an application for condonation of late filing of notice of appeal against the 27 June 2018 conviction and sentence.

The conviction and sentence, however, remain extant.

The first respondent raised preliminary points in the matter.

The first respondent contended, that, this court has no jurisdiction to deal with the matter in that although the hearing judge was one of the judges appointed by the Chief Justice, in terms of section 162(1) of the Electoral Act [Chapter 2:13], to be a Judge of the Electoral Court Division of the High Court, such appointment was with effect from 8 June 2018 to 31 December 2018. He contended that the application, being heard on 15 July 2019, the matter was therefore improperly before the court in that the appointment and term of office for all judges appointed to serve as Electoral Court Judges had expired on 31 December 2018.

The first respondent also said the applicants failed to comply with section 168 of the Electoral Act and Rule 21 of the Electoral Court Rules.

Thirdly, the first respondent alleged that the applicants had failed to comply with section 67 of the Electoral Act.

He challenged their locus standi in judicio in filing the application.

The first respondent also contended, that, the applicants had failed to comply with section 168(5) and 169 of the Electoral Act relating to payment of security costs.

As regards the second applicant, the first respondent argued, that, there was no evidence before the court showing that she is a registered voter in Ward 3 nor that she participated in the election.

From the onset, it was clear that the major issue to be decided was whether what is before the court is a court application or an election petition.

In effect, the applicants argue, that, they made an application in which they seek a declaratur on the first respondent's suitability to hold public office following his conviction on 27 June 2018.

The first respondent argues, on the other hand, that, the applicants have filed an election petition disguised as an ordinary court application.

It appears to me that the rest of what the first respondent has raised as points in limine are premised on the fact of, or assumption that, the court will find that it is indeed an election petition.

For that reason, they are, strictly speaking, not points in limine in that the court would still have to decide what is effectively the main issue on the merits.

It is for that reason also that I decided and advised both sets of counsel to make their submissions on the points in limine as well as the merits, and, thereafter, the court will make its ruling and judgment at once.

Cause of Action re: Form, Manner and Nature of Proceedings iro Approach to Application, Motion and Action Proceedings


Order 32 Rule 226(1) of the High Court Rules 1971, states as follows as regards court applications;

“1. Subject to this rule, all applications made for whatever purpose in terms of these rules, or any other law, other than applications made orally during the course of a hearing, shall be made –

(a) As a court application, that is to say, in writing to the court on notice to all interested parties; or

(b) As a chamber application, that is to say, in writing to a judge.”…,.

Judicial Declaratory Order or Declaratur re: Approach, Rights or Facts, Consequential Relief & Disguised Review Proceedings


The applicants herein filed a court application and sought the following relief, that;

(a) It be declared that the election of the first respondent as councilor for Ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act [Chapter 2:13] following his conviction of theft at the Bulawayo Magistrates Court under criminal record book number 1981/18 on 27 June 2018 and is therefore set aside on account of being null and void.

(b) Consequently, the election of the first respondent as the second respondent's Deputy Mayor be set aside.

(c) Costs of suit at an attorney and client scale against such party as will oppose the above relief sought.

Suffices at this stage to mention that only the first respondent opposed the relief sought.

The brief history of the matter is as follows:

Following a proclamation by the President of the Republic of Zimbabwe, in terms of section 144(2) of the Constitution of Zimbabwe as read with section 38(1)(c) of the Electoral Act [Chapter 2:13], setting the dates for the sitting of the Nomination Court and for the holding of a general election, the first respondent, who was an aspiring councillor representing the Movement for Democratic Change Alliance (MDC-A) successfully filed his nomination papers with the third respondent.

The Nomination Court set on 14 June 2018.

The first respondent's nomination papers were accepted by the third respondent and he was duly registered as the MDC-A candidate for Bulawayo, Ward 3 councillor.

It is now common cause, that, on 27 June 2018, albeit two (2) weeks after the Nomination Court, the first respondent was arrested and appeared before a magistrate, sitting at Bulawayo Magistrates Court. He was charged with the crime of theft in contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded guilty to the charge and was duly convicted and sentenced to a fine of $180 in default of payment 18 days imprisonment.

Needless to say, the general elections were held 33 days later, on 30 July 2018.

On 2 August 2018, the first respondent was declared duly elected councilor for Bulawayo, Ward 3 by the third respondent.

On 30 October 2018, the first applicant, through its legal practitioners of record, wrote a letter to the first respondent. The letter indicated to the first respondent, in effect, that he had been disqualified from holding office as councilor and Deputy Mayor for Bulawayo by reason of his conviction by a Criminal Court on 27 June 2018. The first applicant urged the first respondent to do what it called the “honourable thing” and voluntarily resign within 48 hours failing which an application would be filed with the court seeking the nullification of his election as councillor for Ward 3, and, subsequently, as Deputy Mayor of Bulawayo.

The first respondent did not resign, and, on 23 November 2018, the applicants filed this current application as narrated above.

The first applicant states, that, it is an organisation operating in terms of the laws of Zimbabwe with the right and power to sue and be sued in its own name. Its objectives are, inter alia, to promote economic development in the Matabeleland and Midlands provinces as well as lobbying for awareness for human rights and violations thereof, including speaking against corrupt tendencies by public officers.

The second applicant states that she is a registered voter in Bulawayo's ward 3 wherein the first respondent was elected and confirmed councillor.

To that extent, the applicants claim that they are affected as well as interested parties in this matter.

The first respondent has vigorously opposed this application.

In fact, it would appear, that, soon after receipt of this application, which the applicants say was served on him on 6 December 2018, the first respondent filed his notice of opposition on the same day (6 December 2018). The very next day, on 7 December 2018, he filed an application for condonation of late filing of notice of appeal against the 27 June 2018 conviction and sentence.

The conviction and sentence, however, remain extant.

The first respondent raised preliminary points in the matter.

The first respondent contended, that, this court has no jurisdiction to deal with the matter in that although the hearing judge was one of the judges appointed by the Chief Justice, in terms of section 162(1) of the Electoral Act [Chapter 2:13], to be a Judge of the Electoral Court Division of the High Court, such appointment was with effect from 8 June 2018 to 31 December 2018. He contended that the application, being heard on 15 July 2019, the matter was therefore improperly before the court in that the appointment and term of office for all judges appointed to serve as Electoral Court Judges had expired on 31 December 2018.

The first respondent also said the applicants failed to comply with section 168 of the Electoral Act and Rule 21 of the Electoral Court Rules.

Thirdly, the first respondent alleged that the applicants had failed to comply with section 67 of the Electoral Act.

He challenged their locus standi in judicio in filing the application.

The first respondent also contended, that, the applicants had failed to comply with section 168(5) and 169 of the Electoral Act relating to payment of security costs.

As regards the second applicant, the first respondent argued, that, there was no evidence before the court showing that she is a registered voter in Ward 3 nor that she participated in the election.

From the onset, it was clear that the major issue to be decided was whether what is before the court is a court application or an election petition.

In effect, the applicants argue, that, they made an application in which they seek a declaratur on the first respondent's suitability to hold public office following his conviction on 27 June 2018.

The first respondent argues, on the other hand, that, the applicants have filed an election petition disguised as an ordinary court application.

It appears to me that the rest of what the first respondent has raised as points in limine are premised on the fact of, or assumption that, the court will find that it is indeed an election petition.

For that reason, they are, strictly speaking, not points in limine in that the court would still have to decide what is effectively the main issue on the merits.

It is for that reason also that I decided and advised both sets of counsel to make their submissions on the points in limine as well as the merits, and, thereafter, the court will make its ruling and judgment at once.

The Law

Order 32 Rule 226(1) of the High Court Rules 1971, states as follows as regards court applications;

“1. Subject to this rule, all applications made for whatever purpose in terms of these rules, or any other law, other than applications made orally during the course of a hearing, shall be made –

(a) As a court application, that is to say, in writing to the court on notice to all interested parties; or

(b) As a chamber application, that is to say, in writing to a judge.”…,.

Section 161(2) of the Electoral Act [Chapter 2:13] reads as follows:

“(2) The Electoral Court shall have exclusive jurisdiction –

(a) To hear appeals, applications, and petitions in terms of this Act…, and shall have power to give such judgments, orders, and directions in those matters as might be given by the High Court.”

It appears to me, therefore, from the above, that a court application may be made either in terms of section 161(2) of the Electoral Act or Order 32 Rule 226 of the High Court Rules with equal legal force, save to say that the Electoral Court Division of the High Court will not entertain or hear criminal cases or any other matters completely unrelated to electoral processes.

There is no rule shown to me, both in the High Court Rules or Electoral Act, that all matters relating to elections should be filed as “Election Petitions” with the Electoral Court only, as the first respondent appears to argue.

In Mpukuta v Motor Insurance Pool & Ors 2012 (1) ZLR 192 (H), the applicant was a Zimbabwean citizen permanently resident in Botswana. He would regularly drive into Zimbabwe to visit his family. Upon entry into Zimbabwe, he would obtain a temporary import permit for his foreign registered vehicle and other costs. He made an application for a declaratory order for, inter alia, re-imbursement of the expenses which he incurs when he travels. His company in Botswana refused to refund him on the grounds that his purported entries into Zimbabwe were not insured by “a registered and licenced” insurer.

The court held, that, the condition precedent to the grant of a declaratory order is that –

(a) The applicant must be an interested person, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The court must relate to an existing, future, and contingent right as the court will not decide on abstract, academic, or hypothetical questions as was the situation in that case.

(b) At the second stage, it is incumbent upon the court to decide whether or not the case in question is a proper one for the exercise of its discretion under section 14 of the High Court Act [Chapter 7:06].

The said section 14 of the High Court Act states as follows as regard the determination of future or contingent rights:

“14. The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future, or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

I agree also with counsel for the applicants, that, the current Electoral Act [Chapter 2:13] as read with such cases as Makoni & Anor v Chairperson of ZEC & Anor (1) ZLR…, and Themba Mliswa v ZEC Chairperson reveals that an application is not a petition.

The Electoral Court now has powers similar to those exercised by the High Court and that this court, sitting as it does as a division of the High Court, otherwise known as the Electoral Court, can now properly sit and entertain an application for a declaratur for as long as, in my view, that matter is in relation to the Electoral Act and election processes.

I am satisfied, therefore, from the above legal position, both statutory and from precedents, that, the applicants are in the category of interested persons qualified to make such an application.

Having said that, it follows, therefore, that it is an erroneous reasoning to hold that only those who “participated” in the 30 July 2018 election “would qualify to approach this court, and only by way of “an election petition.”

I dismiss also the contention that the matter is an election petition disguised as an application.

In any event, and in my view, this is an argument that the first respondent deliberately, but vigorously, advanced to the court in order to push the applicants into the category of persons that he hoped the court would probably declare unqualified to petition it.

In effect, the first respondent seems to argue that “participants” for purposes of an election petition would mean those affected, especially losing candidates in the same election that he won....,.

This court will not waste time on the argument that it has no jurisdiction to determine the matter because in Circular Notice No.390 of 2018 the High Court judges listed therein had been appointed to be judges of the Electoral Court Division of the High Court for the period 5 June 2018 to 31 December 2018.

This application was filed on 23 November 2018 and it is clearly not the only pending matter in the Electoral Court.

It was obviously not the intention of the legislature that all pending electoral matters, as at 31 December 2018, be abandoned on that date.

Electoral Petitions re: Approach, Form, Manner and Nature of Electoral Proceedings


The applicants herein filed a court application and sought the following relief, that;

(a) It be declared that the election of the first respondent as councilor for Ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act [Chapter 2:13] following his conviction of theft at the Bulawayo Magistrates Court under criminal record book number 1981/18 on 27 June 2018 and is therefore set aside on account of being null and void.

(b) Consequently, the election of the first respondent as the second respondent's Deputy Mayor be set aside.

(c) Costs of suit at an attorney and client scale against such party as will oppose the above relief sought.

Suffices at this stage to mention that only the first respondent opposed the relief sought.

The brief history of the matter is as follows:

Following a proclamation by the President of the Republic of Zimbabwe, in terms of section 144(2) of the Constitution of Zimbabwe as read with section 38(1)(c) of the Electoral Act [Chapter 2:13], setting the dates for the sitting of the Nomination Court and for the holding of a general election, the first respondent, who was an aspiring councillor representing the Movement for Democratic Change Alliance (MDC-A) successfully filed his nomination papers with the third respondent.

The Nomination Court set on 14 June 2018.

The first respondent's nomination papers were accepted by the third respondent and he was duly registered as the MDC-A candidate for Bulawayo, Ward 3 councillor.

It is now common cause, that, on 27 June 2018, albeit two (2) weeks after the Nomination Court, the first respondent was arrested and appeared before a magistrate, sitting at Bulawayo Magistrates Court. He was charged with the crime of theft in contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded guilty to the charge and was duly convicted and sentenced to a fine of $180 in default of payment 18 days imprisonment.

Needless to say, the general elections were held 33 days later, on 30 July 2018.

On 2 August 2018, the first respondent was declared duly elected councilor for Bulawayo, Ward 3 by the third respondent.

On 30 October 2018, the first applicant, through its legal practitioners of record, wrote a letter to the first respondent. The letter indicated to the first respondent, in effect, that he had been disqualified from holding office as councilor and Deputy Mayor for Bulawayo by reason of his conviction by a Criminal Court on 27 June 2018. The first applicant urged the first respondent to do what it called the “honourable thing” and voluntarily resign within 48 hours failing which an application would be filed with the court seeking the nullification of his election as councillor for Ward 3, and, subsequently, as Deputy Mayor of Bulawayo.

The first respondent did not resign, and, on 23 November 2018, the applicants filed this current application as narrated above.

The first applicant states, that, it is an organisation operating in terms of the laws of Zimbabwe with the right and power to sue and be sued in its own name. Its objectives are, inter alia, to promote economic development in the Matabeleland and Midlands provinces as well as lobbying for awareness for human rights and violations thereof, including speaking against corrupt tendencies by public officers.

The second applicant states that she is a registered voter in Bulawayo's ward 3 wherein the first respondent was elected and confirmed councillor.

To that extent, the applicants claim that they are affected as well as interested parties in this matter.

The first respondent has vigorously opposed this application.

In fact, it would appear, that, soon after receipt of this application, which the applicants say was served on him on 6 December 2018, the first respondent filed his notice of opposition on the same day (6 December 2018). The very next day, on 7 December 2018, he filed an application for condonation of late filing of notice of appeal against the 27 June 2018 conviction and sentence.

The conviction and sentence, however, remain extant.

The first respondent raised preliminary points in the matter.

The first respondent contended, that, this court has no jurisdiction to deal with the matter in that although the hearing judge was one of the judges appointed by the Chief Justice, in terms of section 162(1) of the Electoral Act [Chapter 2:13], to be a Judge of the Electoral Court Division of the High Court, such appointment was with effect from 8 June 2018 to 31 December 2018. He contended that the application, being heard on 15 July 2019, the matter was therefore improperly before the court in that the appointment and term of office for all judges appointed to serve as Electoral Court Judges had expired on 31 December 2018.

The first respondent also said the applicants failed to comply with section 168 of the Electoral Act and Rule 21 of the Electoral Court Rules.

Thirdly, the first respondent alleged that the applicants had failed to comply with section 67 of the Electoral Act.

He challenged their locus standi in judicio in filing the application.

The first respondent also contended, that, the applicants had failed to comply with section 168(5) and 169 of the Electoral Act relating to payment of security costs.

As regards the second applicant, the first respondent argued, that, there was no evidence before the court showing that she is a registered voter in Ward 3 nor that she participated in the election.

From the onset, it was clear that the major issue to be decided was whether what is before the court is a court application or an election petition.

In effect, the applicants argue, that, they made an application in which they seek a declaratur on the first respondent's suitability to hold public office following his conviction on 27 June 2018.

The first respondent argues, on the other hand, that, the applicants have filed an election petition disguised as an ordinary court application.

It appears to me that the rest of what the first respondent has raised as points in limine are premised on the fact of, or assumption that, the court will find that it is indeed an election petition.

For that reason, they are, strictly speaking, not points in limine in that the court would still have to decide what is effectively the main issue on the merits.

It is for that reason also that I decided and advised both sets of counsel to make their submissions on the points in limine as well as the merits, and, thereafter, the court will make its ruling and judgment at once.

The Law

Order 32 Rule 226(1) of the High Court Rules 1971, states as follows as regards court applications;

“1. Subject to this rule, all applications made for whatever purpose in terms of these rules, or any other law, other than applications made orally during the course of a hearing, shall be made –

(a) As a court application, that is to say, in writing to the court on notice to all interested parties; or

(b) As a chamber application, that is to say, in writing to a judge.”…,.

Section 161(2) of the Electoral Act [Chapter 2:13] reads as follows:

“(2) The Electoral Court shall have exclusive jurisdiction –

(a) To hear appeals, applications, and petitions in terms of this Act…, and shall have power to give such judgments, orders, and directions in those matters as might be given by the High Court.”

It appears to me, therefore, from the above, that a court application may be made either in terms of section 161(2) of the Electoral Act or Order 32 Rule 226 of the High Court Rules with equal legal force, save to say that the Electoral Court Division of the High Court will not entertain or hear criminal cases or any other matters completely unrelated to electoral processes.

There is no rule shown to me, both in the High Court Rules or Electoral Act, that all matters relating to elections should be filed as “Election Petitions” with the Electoral Court only, as the first respondent appears to argue.

In Mpukuta v Motor Insurance Pool & Ors 2012 (1) ZLR 192 (H), the applicant was a Zimbabwean citizen permanently resident in Botswana. He would regularly drive into Zimbabwe to visit his family. Upon entry into Zimbabwe, he would obtain a temporary import permit for his foreign registered vehicle and other costs. He made an application for a declaratory order for, inter alia, re-imbursement of the expenses which he incurs when he travels. His company in Botswana refused to refund him on the grounds that his purported entries into Zimbabwe were not insured by “a registered and licenced” insurer.

The court held, that, the condition precedent to the grant of a declaratory order is that –

(a) The applicant must be an interested person, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The court must relate to an existing, future, and contingent right as the court will not decide on abstract, academic, or hypothetical questions as was the situation in that case.

(b) At the second stage, it is incumbent upon the court to decide whether or not the case in question is a proper one for the exercise of its discretion under section 14 of the High Court Act [Chapter 7:06].

The said section 14 of the High Court Act states as follows as regard the determination of future or contingent rights:

“14. The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future, or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

I agree also with counsel for the applicants, that, the current Electoral Act [Chapter 2:13] as read with such cases as Makoni & Anor v Chairperson of ZEC & Anor (1) ZLR…, and Themba Mliswa v ZEC Chairperson reveals that an application is not a petition.

The Electoral Court now has powers similar to those exercised by the High Court and that this court, sitting as it does as a division of the High Court, otherwise known as the Electoral Court, can now properly sit and entertain an application for a declaratur for as long as, in my view, that matter is in relation to the Electoral Act and election processes.

I am satisfied, therefore, from the above legal position, both statutory and from precedents, that, the applicants are in the category of interested persons qualified to make such an application.

Having said that, it follows, therefore, that it is an erroneous reasoning to hold that only those who “participated” in the 30 July 2018 election “would qualify to approach this court, and only by way of “an election petition.”

I dismiss also the contention that the matter is an election petition disguised as an application.

In any event, and in my view, this is an argument that the first respondent deliberately, but vigorously, advanced to the court in order to push the applicants into the category of persons that he hoped the court would probably declare unqualified to petition it.

In effect, the first respondent seems to argue that “participants” for purposes of an election petition would mean those affected, especially losing candidates in the same election that he won....,.

This court will not waste time on the argument that it has no jurisdiction to determine the matter because in Circular Notice No.390 of 2018 the High Court judges listed therein had been appointed to be judges of the Electoral Court Division of the High Court for the period 5 June 2018 to 31 December 2018.

This application was filed on 23 November 2018 and it is clearly not the only pending matter in the Electoral Court.

It was obviously not the intention of the legislature that all pending electoral matters, as at 31 December 2018, be abandoned on that date.

Electoral Petitions re: Nomination Court and Electoral Court iro Functions, Powers, Proceedings and Tenure of the Bench


The applicants herein filed a court application and sought the following relief, that;

(a) It be declared that the election of the first respondent as councilor for Ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act [Chapter 2:13] following his conviction of theft at the Bulawayo Magistrates Court under criminal record book number 1981/18 on 27 June 2018 and is therefore set aside on account of being null and void.

(b) Consequently, the election of the first respondent as the second respondent's Deputy Mayor be set aside.

(c) Costs of suit at an attorney and client scale against such party as will oppose the above relief sought.

Suffices at this stage to mention that only the first respondent opposed the relief sought.

The brief history of the matter is as follows:

Following a proclamation by the President of the Republic of Zimbabwe, in terms of section 144(2) of the Constitution of Zimbabwe as read with section 38(1)(c) of the Electoral Act [Chapter 2:13], setting the dates for the sitting of the Nomination Court and for the holding of a general election, the first respondent, who was an aspiring councillor representing the Movement for Democratic Change Alliance (MDC-A) successfully filed his nomination papers with the third respondent.

The Nomination Court set on 14 June 2018.

The first respondent's nomination papers were accepted by the third respondent and he was duly registered as the MDC-A candidate for Bulawayo, Ward 3 councillor.

It is now common cause, that, on 27 June 2018, albeit two (2) weeks after the Nomination Court, the first respondent was arrested and appeared before a magistrate, sitting at Bulawayo Magistrates Court. He was charged with the crime of theft in contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded guilty to the charge and was duly convicted and sentenced to a fine of $180 in default of payment 18 days imprisonment.

Needless to say, the general elections were held 33 days later, on 30 July 2018.

On 2 August 2018, the first respondent was declared duly elected councilor for Bulawayo, Ward 3 by the third respondent.

On 30 October 2018, the first applicant, through its legal practitioners of record, wrote a letter to the first respondent. The letter indicated to the first respondent, in effect, that he had been disqualified from holding office as councilor and Deputy Mayor for Bulawayo by reason of his conviction by a Criminal Court on 27 June 2018. The first applicant urged the first respondent to do what it called the “honourable thing” and voluntarily resign within 48 hours failing which an application would be filed with the court seeking the nullification of his election as councillor for Ward 3, and, subsequently, as Deputy Mayor of Bulawayo.

The first respondent did not resign, and, on 23 November 2018, the applicants filed this current application as narrated above.

The first applicant states, that, it is an organisation operating in terms of the laws of Zimbabwe with the right and power to sue and be sued in its own name. Its objectives are, inter alia, to promote economic development in the Matabeleland and Midlands provinces as well as lobbying for awareness for human rights and violations thereof, including speaking against corrupt tendencies by public officers.

The second applicant states that she is a registered voter in Bulawayo's ward 3 wherein the first respondent was elected and confirmed councillor.

To that extent, the applicants claim that they are affected as well as interested parties in this matter.

The first respondent has vigorously opposed this application.

In fact, it would appear, that, soon after receipt of this application, which the applicants say was served on him on 6 December 2018, the first respondent filed his notice of opposition on the same day (6 December 2018). The very next day, on 7 December 2018, he filed an application for condonation of late filing of notice of appeal against the 27 June 2018 conviction and sentence.

The conviction and sentence, however, remain extant.

The first respondent raised preliminary points in the matter.

The first respondent contended, that, this court has no jurisdiction to deal with the matter in that although the hearing judge was one of the judges appointed by the Chief Justice, in terms of section 162(1) of the Electoral Act [Chapter 2:13], to be a Judge of the Electoral Court Division of the High Court, such appointment was with effect from 8 June 2018 to 31 December 2018. He contended that the application, being heard on 15 July 2019, the matter was therefore improperly before the court in that the appointment and term of office for all judges appointed to serve as Electoral Court Judges had expired on 31 December 2018.

The first respondent also said the applicants failed to comply with section 168 of the Electoral Act and Rule 21 of the Electoral Court Rules.

Thirdly, the first respondent alleged that the applicants had failed to comply with section 67 of the Electoral Act.

He challenged their locus standi in judicio in filing the application.

The first respondent also contended, that, the applicants had failed to comply with section 168(5) and 169 of the Electoral Act relating to payment of security costs.

As regards the second applicant, the first respondent argued, that, there was no evidence before the court showing that she is a registered voter in Ward 3 nor that she participated in the election.

From the onset, it was clear that the major issue to be decided was whether what is before the court is a court application or an election petition.

In effect, the applicants argue, that, they made an application in which they seek a declaratur on the first respondent's suitability to hold public office following his conviction on 27 June 2018.

The first respondent argues, on the other hand, that, the applicants have filed an election petition disguised as an ordinary court application.

It appears to me that the rest of what the first respondent has raised as points in limine are premised on the fact of, or assumption that, the court will find that it is indeed an election petition.

For that reason, they are, strictly speaking, not points in limine in that the court would still have to decide what is effectively the main issue on the merits.

It is for that reason also that I decided and advised both sets of counsel to make their submissions on the points in limine as well as the merits, and, thereafter, the court will make its ruling and judgment at once.

The Law

Order 32 Rule 226(1) of the High Court Rules 1971, states as follows as regards court applications;

“1. Subject to this rule, all applications made for whatever purpose in terms of these rules, or any other law, other than applications made orally during the course of a hearing, shall be made –

(a) As a court application, that is to say, in writing to the court on notice to all interested parties; or

(b) As a chamber application, that is to say, in writing to a judge.”…,.

Section 161(2) of the Electoral Act [Chapter 2:13] reads as follows:

“(2) The Electoral Court shall have exclusive jurisdiction –

(a) To hear appeals, applications, and petitions in terms of this Act…, and shall have power to give such judgments, orders, and directions in those matters as might be given by the High Court.”

It appears to me, therefore, from the above, that a court application may be made either in terms of section 161(2) of the Electoral Act or Order 32 Rule 226 of the High Court Rules with equal legal force, save to say that the Electoral Court Division of the High Court will not entertain or hear criminal cases or any other matters completely unrelated to electoral processes.

There is no rule shown to me, both in the High Court Rules or Electoral Act, that all matters relating to elections should be filed as “Election Petitions” with the Electoral Court only, as the first respondent appears to argue.

In Mpukuta v Motor Insurance Pool & Ors 2012 (1) ZLR 192 (H), the applicant was a Zimbabwean citizen permanently resident in Botswana. He would regularly drive into Zimbabwe to visit his family. Upon entry into Zimbabwe, he would obtain a temporary import permit for his foreign registered vehicle and other costs. He made an application for a declaratory order for, inter alia, re-imbursement of the expenses which he incurs when he travels. His company in Botswana refused to refund him on the grounds that his purported entries into Zimbabwe were not insured by “a registered and licenced” insurer.

The court held, that, the condition precedent to the grant of a declaratory order is that –

(a) The applicant must be an interested person, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The court must relate to an existing, future, and contingent right as the court will not decide on abstract, academic, or hypothetical questions as was the situation in that case.

(b) At the second stage, it is incumbent upon the court to decide whether or not the case in question is a proper one for the exercise of its discretion under section 14 of the High Court Act [Chapter 7:06].

The said section 14 of the High Court Act states as follows as regard the determination of future or contingent rights:

“14. The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future, or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

I agree also with counsel for the applicants, that, the current Electoral Act [Chapter 2:13] as read with such cases as Makoni & Anor v Chairperson of ZEC & Anor (1) ZLR…, and Themba Mliswa v ZEC Chairperson reveals that an application is not a petition.

The Electoral Court now has powers similar to those exercised by the High Court and that this court, sitting as it does as a division of the High Court, otherwise known as the Electoral Court, can now properly sit and entertain an application for a declaratur for as long as, in my view, that matter is in relation to the Electoral Act and election processes.

I am satisfied, therefore, from the above legal position, both statutory and from precedents, that, the applicants are in the category of interested persons qualified to make such an application.

Having said that, it follows, therefore, that it is an erroneous reasoning to hold that only those who “participated” in the 30 July 2018 election “would qualify to approach this court, and only by way of “an election petition.”

I dismiss also the contention that the matter is an election petition disguised as an application.

In any event, and in my view, this is an argument that the first respondent deliberately, but vigorously, advanced to the court in order to push the applicants into the category of persons that he hoped the court would probably declare unqualified to petition it.

In effect, the first respondent seems to argue that “participants” for purposes of an election petition would mean those affected, especially losing candidates in the same election that he won....,.

This court will not waste time on the argument that it has no jurisdiction to determine the matter because in Circular Notice No.390 of 2018 the High Court judges listed therein had been appointed to be judges of the Electoral Court Division of the High Court for the period 5 June 2018 to 31 December 2018.

This application was filed on 23 November 2018 and it is clearly not the only pending matter in the Electoral Court.

It was obviously not the intention of the legislature that all pending electoral matters, as at 31 December 2018, be abandoned on that date.

Jurisdiction re: Approach, Concurrent Jurisdiction, Statutory, Procedural and Contractual Jurisdictional Ousting


The applicants herein filed a court application and sought the following relief, that;

(a) It be declared that the election of the first respondent as councilor for Ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act [Chapter 2:13] following his conviction of theft at the Bulawayo Magistrates Court under criminal record book number 1981/18 on 27 June 2018 and is therefore set aside on account of being null and void.

(b) Consequently, the election of the first respondent as the second respondent's Deputy Mayor be set aside.

(c) Costs of suit at an attorney and client scale against such party as will oppose the above relief sought.

Suffices at this stage to mention that only the first respondent opposed the relief sought.

The brief history of the matter is as follows:

Following a proclamation by the President of the Republic of Zimbabwe, in terms of section 144(2) of the Constitution of Zimbabwe as read with section 38(1)(c) of the Electoral Act [Chapter 2:13], setting the dates for the sitting of the Nomination Court and for the holding of a general election, the first respondent, who was an aspiring councillor representing the Movement for Democratic Change Alliance (MDC-A) successfully filed his nomination papers with the third respondent.

The Nomination Court set on 14 June 2018.

The first respondent's nomination papers were accepted by the third respondent and he was duly registered as the MDC-A candidate for Bulawayo, Ward 3 councillor.

It is now common cause, that, on 27 June 2018, albeit two (2) weeks after the Nomination Court, the first respondent was arrested and appeared before a magistrate, sitting at Bulawayo Magistrates Court. He was charged with the crime of theft in contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded guilty to the charge and was duly convicted and sentenced to a fine of $180 in default of payment 18 days imprisonment.

Needless to say, the general elections were held 33 days later, on 30 July 2018.

On 2 August 2018, the first respondent was declared duly elected councilor for Bulawayo, Ward 3 by the third respondent.

On 30 October 2018, the first applicant, through its legal practitioners of record, wrote a letter to the first respondent. The letter indicated to the first respondent, in effect, that he had been disqualified from holding office as councilor and Deputy Mayor for Bulawayo by reason of his conviction by a Criminal Court on 27 June 2018. The first applicant urged the first respondent to do what it called the “honourable thing” and voluntarily resign within 48 hours failing which an application would be filed with the court seeking the nullification of his election as councillor for Ward 3, and, subsequently, as Deputy Mayor of Bulawayo.

The first respondent did not resign, and, on 23 November 2018, the applicants filed this current application as narrated above.

The first applicant states, that, it is an organisation operating in terms of the laws of Zimbabwe with the right and power to sue and be sued in its own name. Its objectives are, inter alia, to promote economic development in the Matabeleland and Midlands provinces as well as lobbying for awareness for human rights and violations thereof, including speaking against corrupt tendencies by public officers.

The second applicant states that she is a registered voter in Bulawayo's ward 3 wherein the first respondent was elected and confirmed councillor.

To that extent, the applicants claim that they are affected as well as interested parties in this matter.

The first respondent has vigorously opposed this application.

In fact, it would appear, that, soon after receipt of this application, which the applicants say was served on him on 6 December 2018, the first respondent filed his notice of opposition on the same day (6 December 2018). The very next day, on 7 December 2018, he filed an application for condonation of late filing of notice of appeal against the 27 June 2018 conviction and sentence.

The conviction and sentence, however, remain extant.

The first respondent raised preliminary points in the matter.

The first respondent contended, that, this court has no jurisdiction to deal with the matter in that although the hearing judge was one of the judges appointed by the Chief Justice, in terms of section 162(1) of the Electoral Act [Chapter 2:13], to be a Judge of the Electoral Court Division of the High Court, such appointment was with effect from 8 June 2018 to 31 December 2018. He contended that the application, being heard on 15 July 2019, the matter was therefore improperly before the court in that the appointment and term of office for all judges appointed to serve as Electoral Court Judges had expired on 31 December 2018.

The first respondent also said the applicants failed to comply with section 168 of the Electoral Act and Rule 21 of the Electoral Court Rules.

Thirdly, the first respondent alleged that the applicants had failed to comply with section 67 of the Electoral Act.

He challenged their locus standi in judicio in filing the application.

The first respondent also contended, that, the applicants had failed to comply with section 168(5) and 169 of the Electoral Act relating to payment of security costs.

As regards the second applicant, the first respondent argued, that, there was no evidence before the court showing that she is a registered voter in Ward 3 nor that she participated in the election.

From the onset, it was clear that the major issue to be decided was whether what is before the court is a court application or an election petition.

In effect, the applicants argue, that, they made an application in which they seek a declaratur on the first respondent's suitability to hold public office following his conviction on 27 June 2018.

The first respondent argues, on the other hand, that, the applicants have filed an election petition disguised as an ordinary court application.

It appears to me that the rest of what the first respondent has raised as points in limine are premised on the fact of, or assumption that, the court will find that it is indeed an election petition.

For that reason, they are, strictly speaking, not points in limine in that the court would still have to decide what is effectively the main issue on the merits.

It is for that reason also that I decided and advised both sets of counsel to make their submissions on the points in limine as well as the merits, and, thereafter, the court will make its ruling and judgment at once.

The Law

Order 32 Rule 226(1) of the High Court Rules 1971, states as follows as regards court applications;

“1. Subject to this rule, all applications made for whatever purpose in terms of these rules, or any other law, other than applications made orally during the course of a hearing, shall be made –

(a) As a court application, that is to say, in writing to the court on notice to all interested parties; or

(b) As a chamber application, that is to say, in writing to a judge.”…,.

Section 161(2) of the Electoral Act [Chapter 2:13] reads as follows:

“(2) The Electoral Court shall have exclusive jurisdiction –

(a) To hear appeals, applications, and petitions in terms of this Act…, and shall have power to give such judgments, orders, and directions in those matters as might be given by the High Court.”

It appears to me, therefore, from the above, that a court application may be made either in terms of section 161(2) of the Electoral Act or Order 32 Rule 226 of the High Court Rules with equal legal force, save to say that the Electoral Court Division of the High Court will not entertain or hear criminal cases or any other matters completely unrelated to electoral processes.

There is no rule shown to me, both in the High Court Rules or Electoral Act, that all matters relating to elections should be filed as “Election Petitions” with the Electoral Court only, as the first respondent appears to argue.

In Mpukuta v Motor Insurance Pool & Ors 2012 (1) ZLR 192 (H), the applicant was a Zimbabwean citizen permanently resident in Botswana. He would regularly drive into Zimbabwe to visit his family. Upon entry into Zimbabwe, he would obtain a temporary import permit for his foreign registered vehicle and other costs. He made an application for a declaratory order for, inter alia, re-imbursement of the expenses which he incurs when he travels. His company in Botswana refused to refund him on the grounds that his purported entries into Zimbabwe were not insured by “a registered and licenced” insurer.

The court held, that, the condition precedent to the grant of a declaratory order is that –

(a) The applicant must be an interested person, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The court must relate to an existing, future, and contingent right as the court will not decide on abstract, academic, or hypothetical questions as was the situation in that case.

(b) At the second stage, it is incumbent upon the court to decide whether or not the case in question is a proper one for the exercise of its discretion under section 14 of the High Court Act [Chapter 7:06].

The said section 14 of the High Court Act states as follows as regard the determination of future or contingent rights:

“14. The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future, or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

I agree also with counsel for the applicants, that, the current Electoral Act [Chapter 2:13] as read with such cases as Makoni & Anor v Chairperson of ZEC & Anor (1) ZLR…, and Themba Mliswa v ZEC Chairperson reveals that an application is not a petition.

The Electoral Court now has powers similar to those exercised by the High Court and that this court, sitting as it does as a division of the High Court, otherwise known as the Electoral Court, can now properly sit and entertain an application for a declaratur for as long as, in my view, that matter is in relation to the Electoral Act and election processes.

I am satisfied, therefore, from the above legal position, both statutory and from precedents, that, the applicants are in the category of interested persons qualified to make such an application.

Having said that, it follows, therefore, that it is an erroneous reasoning to hold that only those who “participated” in the 30 July 2018 election “would qualify to approach this court, and only by way of “an election petition.”

I dismiss also the contention that the matter is an election petition disguised as an application.

In any event, and in my view, this is an argument that the first respondent deliberately, but vigorously, advanced to the court in order to push the applicants into the category of persons that he hoped the court would probably declare unqualified to petition it.

In effect, the first respondent seems to argue that “participants” for purposes of an election petition would mean those affected, especially losing candidates in the same election that he won....,.

This court will not waste time on the argument that it has no jurisdiction to determine the matter because in Circular Notice No.390 of 2018 the High Court judges listed therein had been appointed to be judges of the Electoral Court Division of the High Court for the period 5 June 2018 to 31 December 2018.

This application was filed on 23 November 2018 and it is clearly not the only pending matter in the Electoral Court.

It was obviously not the intention of the legislature that all pending electoral matters, as at 31 December 2018, be abandoned on that date.

Jurisdiction re: Electoral Proceedings


The applicants herein filed a court application and sought the following relief, that;

(a) It be declared that the election of the first respondent as councilor for Ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act [Chapter 2:13] following his conviction of theft at the Bulawayo Magistrates Court under criminal record book number 1981/18 on 27 June 2018 and is therefore set aside on account of being null and void.

(b) Consequently, the election of the first respondent as the second respondent's Deputy Mayor be set aside.

(c) Costs of suit at an attorney and client scale against such party as will oppose the above relief sought.

Suffices at this stage to mention that only the first respondent opposed the relief sought.

The brief history of the matter is as follows:

Following a proclamation by the President of the Republic of Zimbabwe, in terms of section 144(2) of the Constitution of Zimbabwe as read with section 38(1)(c) of the Electoral Act [Chapter 2:13], setting the dates for the sitting of the Nomination Court and for the holding of a general election, the first respondent, who was an aspiring councillor representing the Movement for Democratic Change Alliance (MDC-A) successfully filed his nomination papers with the third respondent.

The Nomination Court set on 14 June 2018.

The first respondent's nomination papers were accepted by the third respondent and he was duly registered as the MDC-A candidate for Bulawayo, Ward 3 councillor.

It is now common cause, that, on 27 June 2018, albeit two (2) weeks after the Nomination Court, the first respondent was arrested and appeared before a magistrate, sitting at Bulawayo Magistrates Court. He was charged with the crime of theft in contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded guilty to the charge and was duly convicted and sentenced to a fine of $180 in default of payment 18 days imprisonment.

Needless to say, the general elections were held 33 days later, on 30 July 2018.

On 2 August 2018, the first respondent was declared duly elected councilor for Bulawayo, Ward 3 by the third respondent.

On 30 October 2018, the first applicant, through its legal practitioners of record, wrote a letter to the first respondent. The letter indicated to the first respondent, in effect, that he had been disqualified from holding office as councilor and Deputy Mayor for Bulawayo by reason of his conviction by a Criminal Court on 27 June 2018. The first applicant urged the first respondent to do what it called the “honourable thing” and voluntarily resign within 48 hours failing which an application would be filed with the court seeking the nullification of his election as councillor for Ward 3, and, subsequently, as Deputy Mayor of Bulawayo.

The first respondent did not resign, and, on 23 November 2018, the applicants filed this current application as narrated above.

The first applicant states, that, it is an organisation operating in terms of the laws of Zimbabwe with the right and power to sue and be sued in its own name. Its objectives are, inter alia, to promote economic development in the Matabeleland and Midlands provinces as well as lobbying for awareness for human rights and violations thereof, including speaking against corrupt tendencies by public officers.

The second applicant states that she is a registered voter in Bulawayo's ward 3 wherein the first respondent was elected and confirmed councillor.

To that extent, the applicants claim that they are affected as well as interested parties in this matter.

The first respondent has vigorously opposed this application.

In fact, it would appear, that, soon after receipt of this application, which the applicants say was served on him on 6 December 2018, the first respondent filed his notice of opposition on the same day (6 December 2018). The very next day, on 7 December 2018, he filed an application for condonation of late filing of notice of appeal against the 27 June 2018 conviction and sentence.

The conviction and sentence, however, remain extant.

The first respondent raised preliminary points in the matter.

The first respondent contended, that, this court has no jurisdiction to deal with the matter in that although the hearing judge was one of the judges appointed by the Chief Justice, in terms of section 162(1) of the Electoral Act [Chapter 2:13], to be a Judge of the Electoral Court Division of the High Court, such appointment was with effect from 8 June 2018 to 31 December 2018. He contended that the application, being heard on 15 July 2019, the matter was therefore improperly before the court in that the appointment and term of office for all judges appointed to serve as Electoral Court Judges had expired on 31 December 2018.

The first respondent also said the applicants failed to comply with section 168 of the Electoral Act and Rule 21 of the Electoral Court Rules.

Thirdly, the first respondent alleged that the applicants had failed to comply with section 67 of the Electoral Act.

He challenged their locus standi in judicio in filing the application.

The first respondent also contended, that, the applicants had failed to comply with section 168(5) and 169 of the Electoral Act relating to payment of security costs.

As regards the second applicant, the first respondent argued, that, there was no evidence before the court showing that she is a registered voter in Ward 3 nor that she participated in the election.

From the onset, it was clear that the major issue to be decided was whether what is before the court is a court application or an election petition.

In effect, the applicants argue, that, they made an application in which they seek a declaratur on the first respondent's suitability to hold public office following his conviction on 27 June 2018.

The first respondent argues, on the other hand, that, the applicants have filed an election petition disguised as an ordinary court application.

It appears to me that the rest of what the first respondent has raised as points in limine are premised on the fact of, or assumption that, the court will find that it is indeed an election petition.

For that reason, they are, strictly speaking, not points in limine in that the court would still have to decide what is effectively the main issue on the merits.

It is for that reason also that I decided and advised both sets of counsel to make their submissions on the points in limine as well as the merits, and, thereafter, the court will make its ruling and judgment at once.

The Law

Order 32 Rule 226(1) of the High Court Rules 1971, states as follows as regards court applications;

“1. Subject to this rule, all applications made for whatever purpose in terms of these rules, or any other law, other than applications made orally during the course of a hearing, shall be made –

(a) As a court application, that is to say, in writing to the court on notice to all interested parties; or

(b) As a chamber application, that is to say, in writing to a judge.”…,.

Section 161(2) of the Electoral Act [Chapter 2:13] reads as follows:

“(2) The Electoral Court shall have exclusive jurisdiction –

(a) To hear appeals, applications, and petitions in terms of this Act…, and shall have power to give such judgments, orders, and directions in those matters as might be given by the High Court.”

It appears to me, therefore, from the above, that a court application may be made either in terms of section 161(2) of the Electoral Act or Order 32 Rule 226 of the High Court Rules with equal legal force, save to say that the Electoral Court Division of the High Court will not entertain or hear criminal cases or any other matters completely unrelated to electoral processes.

There is no rule shown to me, both in the High Court Rules or Electoral Act, that all matters relating to elections should be filed as “Election Petitions” with the Electoral Court only, as the first respondent appears to argue.

In Mpukuta v Motor Insurance Pool & Ors 2012 (1) ZLR 192 (H), the applicant was a Zimbabwean citizen permanently resident in Botswana. He would regularly drive into Zimbabwe to visit his family. Upon entry into Zimbabwe, he would obtain a temporary import permit for his foreign registered vehicle and other costs. He made an application for a declaratory order for, inter alia, re-imbursement of the expenses which he incurs when he travels. His company in Botswana refused to refund him on the grounds that his purported entries into Zimbabwe were not insured by “a registered and licenced” insurer.

The court held, that, the condition precedent to the grant of a declaratory order is that –

(a) The applicant must be an interested person, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The court must relate to an existing, future, and contingent right as the court will not decide on abstract, academic, or hypothetical questions as was the situation in that case.

(b) At the second stage, it is incumbent upon the court to decide whether or not the case in question is a proper one for the exercise of its discretion under section 14 of the High Court Act [Chapter 7:06].

The said section 14 of the High Court Act states as follows as regard the determination of future or contingent rights:

“14. The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future, or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

I agree also with counsel for the applicants, that, the current Electoral Act [Chapter 2:13] as read with such cases as Makoni & Anor v Chairperson of ZEC & Anor (1) ZLR…, and Themba Mliswa v ZEC Chairperson reveals that an application is not a petition.

The Electoral Court now has powers similar to those exercised by the High Court and that this court, sitting as it does as a division of the High Court, otherwise known as the Electoral Court, can now properly sit and entertain an application for a declaratur for as long as, in my view, that matter is in relation to the Electoral Act and election processes.

I am satisfied, therefore, from the above legal position, both statutory and from precedents, that, the applicants are in the category of interested persons qualified to make such an application.

Having said that, it follows, therefore, that it is an erroneous reasoning to hold that only those who “participated” in the 30 July 2018 election “would qualify to approach this court, and only by way of “an election petition.”

I dismiss also the contention that the matter is an election petition disguised as an application.

In any event, and in my view, this is an argument that the first respondent deliberately, but vigorously, advanced to the court in order to push the applicants into the category of persons that he hoped the court would probably declare unqualified to petition it.

In effect, the first respondent seems to argue that “participants” for purposes of an election petition would mean those affected, especially losing candidates in the same election that he won....,.

This court will not waste time on the argument that it has no jurisdiction to determine the matter because in Circular Notice No.390 of 2018 the High Court judges listed therein had been appointed to be judges of the Electoral Court Division of the High Court for the period 5 June 2018 to 31 December 2018.

This application was filed on 23 November 2018 and it is clearly not the only pending matter in the Electoral Court.

It was obviously not the intention of the legislature that all pending electoral matters, as at 31 December 2018, be abandoned on that date.

Jurisdiction re: Judicial Deference iro Specialised Courts and Tribunals


The applicants herein filed a court application and sought the following relief, that;

(a) It be declared that the election of the first respondent as councilor for Ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act [Chapter 2:13] following his conviction of theft at the Bulawayo Magistrates Court under criminal record book number 1981/18 on 27 June 2018 and is therefore set aside on account of being null and void.

(b) Consequently, the election of the first respondent as the second respondent's Deputy Mayor be set aside.

(c) Costs of suit at an attorney and client scale against such party as will oppose the above relief sought.

Suffices at this stage to mention that only the first respondent opposed the relief sought.

The brief history of the matter is as follows:

Following a proclamation by the President of the Republic of Zimbabwe, in terms of section 144(2) of the Constitution of Zimbabwe as read with section 38(1)(c) of the Electoral Act [Chapter 2:13], setting the dates for the sitting of the Nomination Court and for the holding of a general election, the first respondent, who was an aspiring councillor representing the Movement for Democratic Change Alliance (MDC-A) successfully filed his nomination papers with the third respondent.

The Nomination Court set on 14 June 2018.

The first respondent's nomination papers were accepted by the third respondent and he was duly registered as the MDC-A candidate for Bulawayo, Ward 3 councillor.

It is now common cause, that, on 27 June 2018, albeit two (2) weeks after the Nomination Court, the first respondent was arrested and appeared before a magistrate, sitting at Bulawayo Magistrates Court. He was charged with the crime of theft in contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded guilty to the charge and was duly convicted and sentenced to a fine of $180 in default of payment 18 days imprisonment.

Needless to say, the general elections were held 33 days later, on 30 July 2018.

On 2 August 2018, the first respondent was declared duly elected councilor for Bulawayo, Ward 3 by the third respondent.

On 30 October 2018, the first applicant, through its legal practitioners of record, wrote a letter to the first respondent. The letter indicated to the first respondent, in effect, that he had been disqualified from holding office as councilor and Deputy Mayor for Bulawayo by reason of his conviction by a Criminal Court on 27 June 2018. The first applicant urged the first respondent to do what it called the “honourable thing” and voluntarily resign within 48 hours failing which an application would be filed with the court seeking the nullification of his election as councillor for Ward 3, and, subsequently, as Deputy Mayor of Bulawayo.

The first respondent did not resign, and, on 23 November 2018, the applicants filed this current application as narrated above.

The first applicant states, that, it is an organisation operating in terms of the laws of Zimbabwe with the right and power to sue and be sued in its own name. Its objectives are, inter alia, to promote economic development in the Matabeleland and Midlands provinces as well as lobbying for awareness for human rights and violations thereof, including speaking against corrupt tendencies by public officers.

The second applicant states that she is a registered voter in Bulawayo's ward 3 wherein the first respondent was elected and confirmed councillor.

To that extent, the applicants claim that they are affected as well as interested parties in this matter.

The first respondent has vigorously opposed this application.

In fact, it would appear, that, soon after receipt of this application, which the applicants say was served on him on 6 December 2018, the first respondent filed his notice of opposition on the same day (6 December 2018). The very next day, on 7 December 2018, he filed an application for condonation of late filing of notice of appeal against the 27 June 2018 conviction and sentence.

The conviction and sentence, however, remain extant.

The first respondent raised preliminary points in the matter.

The first respondent contended, that, this court has no jurisdiction to deal with the matter in that although the hearing judge was one of the judges appointed by the Chief Justice, in terms of section 162(1) of the Electoral Act [Chapter 2:13], to be a Judge of the Electoral Court Division of the High Court, such appointment was with effect from 8 June 2018 to 31 December 2018. He contended that the application, being heard on 15 July 2019, the matter was therefore improperly before the court in that the appointment and term of office for all judges appointed to serve as Electoral Court Judges had expired on 31 December 2018.

The first respondent also said the applicants failed to comply with section 168 of the Electoral Act and Rule 21 of the Electoral Court Rules.

Thirdly, the first respondent alleged that the applicants had failed to comply with section 67 of the Electoral Act.

He challenged their locus standi in judicio in filing the application.

The first respondent also contended, that, the applicants had failed to comply with section 168(5) and 169 of the Electoral Act relating to payment of security costs.

As regards the second applicant, the first respondent argued, that, there was no evidence before the court showing that she is a registered voter in Ward 3 nor that she participated in the election.

From the onset, it was clear that the major issue to be decided was whether what is before the court is a court application or an election petition.

In effect, the applicants argue, that, they made an application in which they seek a declaratur on the first respondent's suitability to hold public office following his conviction on 27 June 2018.

The first respondent argues, on the other hand, that, the applicants have filed an election petition disguised as an ordinary court application.

It appears to me that the rest of what the first respondent has raised as points in limine are premised on the fact of, or assumption that, the court will find that it is indeed an election petition.

For that reason, they are, strictly speaking, not points in limine in that the court would still have to decide what is effectively the main issue on the merits.

It is for that reason also that I decided and advised both sets of counsel to make their submissions on the points in limine as well as the merits, and, thereafter, the court will make its ruling and judgment at once.

The Law

Order 32 Rule 226(1) of the High Court Rules 1971, states as follows as regards court applications;

“1. Subject to this rule, all applications made for whatever purpose in terms of these rules, or any other law, other than applications made orally during the course of a hearing, shall be made –

(a) As a court application, that is to say, in writing to the court on notice to all interested parties; or

(b) As a chamber application, that is to say, in writing to a judge.”…,.

Section 161(2) of the Electoral Act [Chapter 2:13] reads as follows:

“(2) The Electoral Court shall have exclusive jurisdiction –

(a) To hear appeals, applications, and petitions in terms of this Act…, and shall have power to give such judgments, orders, and directions in those matters as might be given by the High Court.”

It appears to me, therefore, from the above, that a court application may be made either in terms of section 161(2) of the Electoral Act or Order 32 Rule 226 of the High Court Rules with equal legal force, save to say that the Electoral Court Division of the High Court will not entertain or hear criminal cases or any other matters completely unrelated to electoral processes.

There is no rule shown to me, both in the High Court Rules or Electoral Act, that all matters relating to elections should be filed as “Election Petitions” with the Electoral Court only, as the first respondent appears to argue.

In Mpukuta v Motor Insurance Pool & Ors 2012 (1) ZLR 192 (H), the applicant was a Zimbabwean citizen permanently resident in Botswana. He would regularly drive into Zimbabwe to visit his family. Upon entry into Zimbabwe, he would obtain a temporary import permit for his foreign registered vehicle and other costs. He made an application for a declaratory order for, inter alia, re-imbursement of the expenses which he incurs when he travels. His company in Botswana refused to refund him on the grounds that his purported entries into Zimbabwe were not insured by “a registered and licenced” insurer.

The court held, that, the condition precedent to the grant of a declaratory order is that –

(a) The applicant must be an interested person, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The court must relate to an existing, future, and contingent right as the court will not decide on abstract, academic, or hypothetical questions as was the situation in that case.

(b) At the second stage, it is incumbent upon the court to decide whether or not the case in question is a proper one for the exercise of its discretion under section 14 of the High Court Act [Chapter 7:06].

The said section 14 of the High Court Act states as follows as regard the determination of future or contingent rights:

“14. The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future, or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

I agree also with counsel for the applicants, that, the current Electoral Act [Chapter 2:13] as read with such cases as Makoni & Anor v Chairperson of ZEC & Anor (1) ZLR…, and Themba Mliswa v ZEC Chairperson reveals that an application is not a petition.

The Electoral Court now has powers similar to those exercised by the High Court and that this court, sitting as it does as a division of the High Court, otherwise known as the Electoral Court, can now properly sit and entertain an application for a declaratur for as long as, in my view, that matter is in relation to the Electoral Act and election processes.

I am satisfied, therefore, from the above legal position, both statutory and from precedents, that, the applicants are in the category of interested persons qualified to make such an application.

Having said that, it follows, therefore, that it is an erroneous reasoning to hold that only those who “participated” in the 30 July 2018 election “would qualify to approach this court, and only by way of “an election petition.”

I dismiss also the contention that the matter is an election petition disguised as an application.

In any event, and in my view, this is an argument that the first respondent deliberately, but vigorously, advanced to the court in order to push the applicants into the category of persons that he hoped the court would probably declare unqualified to petition it.

In effect, the first respondent seems to argue that “participants” for purposes of an election petition would mean those affected, especially losing candidates in the same election that he won....,.

This court will not waste time on the argument that it has no jurisdiction to determine the matter because in Circular Notice No.390 of 2018 the High Court judges listed therein had been appointed to be judges of the Electoral Court Division of the High Court for the period 5 June 2018 to 31 December 2018.

This application was filed on 23 November 2018 and it is clearly not the only pending matter in the Electoral Court.

It was obviously not the intention of the legislature that all pending electoral matters, as at 31 December 2018, be abandoned on that date.

Electoral Petitions re: Nomination iro Criminal Record, Convicted Candidates and Grounds for Disqualification


The applicants herein filed a court application and sought the following relief, that;

(a) It be declared that the election of the first respondent as councilor for Ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act [Chapter 2:13] following his conviction of theft at the Bulawayo Magistrates Court under criminal record book number 1981/18 on 27 June 2018 and is therefore set aside on account of being null and void.

(b) Consequently, the election of the first respondent as the second respondent's Deputy Mayor be set aside.

(c) Costs of suit at an attorney and client scale against such party as will oppose the above relief sought.

Suffices at this stage to mention that only the first respondent opposed the relief sought.

The brief history of the matter is as follows:

Following a proclamation by the President of the Republic of Zimbabwe, in terms of section 144(2) of the Constitution of Zimbabwe as read with section 38(1)(c) of the Electoral Act [Chapter 2:13], setting the dates for the sitting of the Nomination Court and for the holding of a general election, the first respondent, who was an aspiring councillor representing the Movement for Democratic Change Alliance (MDC-A) successfully filed his nomination papers with the third respondent.

The Nomination Court set on 14 June 2018.

The first respondent's nomination papers were accepted by the third respondent and he was duly registered as the MDC-A candidate for Bulawayo, Ward 3 councillor.

It is now common cause, that, on 27 June 2018, albeit two (2) weeks after the Nomination Court, the first respondent was arrested and appeared before a magistrate, sitting at Bulawayo Magistrates Court. He was charged with the crime of theft in contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded guilty to the charge and was duly convicted and sentenced to a fine of $180 in default of payment 18 days imprisonment.

Needless to say, the general elections were held 33 days later, on 30 July 2018.

On 2 August 2018, the first respondent was declared duly elected councilor for Bulawayo, Ward 3 by the third respondent.

On 30 October 2018, the first applicant, through its legal practitioners of record, wrote a letter to the first respondent. The letter indicated to the first respondent, in effect, that he had been disqualified from holding office as councilor and Deputy Mayor for Bulawayo by reason of his conviction by a Criminal Court on 27 June 2018. The first applicant urged the first respondent to do what it called the “honourable thing” and voluntarily resign within 48 hours failing which an application would be filed with the court seeking the nullification of his election as councillor for Ward 3, and, subsequently, as Deputy Mayor of Bulawayo.

The first respondent did not resign, and, on 23 November 2018, the applicants filed this current application as narrated above.

The first applicant states, that, it is an organisation operating in terms of the laws of Zimbabwe with the right and power to sue and be sued in its own name. Its objectives are, inter alia, to promote economic development in the Matabeleland and Midlands provinces as well as lobbying for awareness for human rights and violations thereof, including speaking against corrupt tendencies by public officers.

The second applicant states that she is a registered voter in Bulawayo's ward 3 wherein the first respondent was elected and confirmed councillor.

To that extent, the applicants claim that they are affected as well as interested parties in this matter.

The first respondent has vigorously opposed this application.

In fact, it would appear, that, soon after receipt of this application, which the applicants say was served on him on 6 December 2018, the first respondent filed his notice of opposition on the same day (6 December 2018). The very next day, on 7 December 2018, he filed an application for condonation of late filing of notice of appeal against the 27 June 2018 conviction and sentence.

The conviction and sentence, however, remain extant....,.

The first respondent contended, that, this court has no jurisdiction to deal with the matter in that although the hearing judge was one of the judges appointed by the Chief Justice, in terms of section 162(1) of the Electoral Act [Chapter 2:13], to be a Judge of the Electoral Court Division of the High Court, such appointment was with effect from 8 June 2018 to 31 December 2018. He contended that the application, being heard on 15 July 2019, the matter was therefore improperly before the court in that the appointment and term of office for all judges appointed to serve as Electoral Court Judges had expired on 31 December 2018....,.

I come now to the hotly contested interpretation of the term “disqualified” as contemplated by section 119(2) of the Electoral Act which reads as follows pertaining to 'qualifications' and 'disqualifications' for election as councilor:

“(2) A person shall be disqualified from being nominated as a candidate for an election as a councilor if –

(a)…,.

(b) He or she has been convicted of an offence involving dishonesty or…,.”…,.

It must be observed from the onset that the question of sentence is not in issue as the Electoral Act does not prescribe what sentence would lead to disqualification. The section only refers to conviction of an offence involving dishonesty and is completely silent on the quantum of sentence.

It follows, that, the mere conviction and element of dishonesty renders one disqualified.

Be that as it may, the first respondent argued, extensively, that 'disqualification' means only after the procedure in terms of section 278 of the Constitution of Zimbabwe Amendment No.20 of 2013.

That section, in short, is to the effect, that, a sitting councillor, mayor, or deputy mayor may only be removed from his seat or vacate it when an Act of Parliament has provided for, and established an independent tribunal to exercise the function of removing from office such persons.

The first respondent argues, therefore, that, this court has no jurisdiction to remove him from office through what he claims is essentially an election petition belatedly and improperly before the court.

This court is not persuaded to take that argument.

In any event, it is clear, from a reading of the two sections, that, whilst section 119 of the Electoral Act refers to 'disqualifications', section 278 of the Constitution refers to 'removal'.

In my view, the section 278 relied on by the first respondent, though correct in appropriate circumstances, has nothing to do with this application for the following simple reasons:

(i) Firstly, this application does not relate to a councilor, mayor or deputy mayor or chairperson etc. who committed misconduct when he was already a sitting councilor, which appears to be the contemplation by section 278 of the Constitution.

(ii) Secondly, this court has not been asked to 'remove' the first respondent from office, but simply to 'declare' that he, by reason of his conviction by a magistrate on 27 June 2018, is disqualified and not fit to hold public office.

I am inclined to agree with counsel for the applicants, that, the term 'disqualification' as contemplated by section 119(2) of the Electoral Act has a different meaning from the one assigned to it by the first respondent, narrowing and equating it to 'removal from office' as contemplated by section 278 of the Constitution.

The applicants are right, in my view, that, by the mere conduct of keeping quiet and not informing the third and fourth respondents that he had been convicted, about 33 days before the election, of the crime of theft, and thus was no longer eligible to stand for election, the first respondent was disqualified.

In other words, no person or body should stand there and “pronounce his disqualification.” It is the mere act of a dishonourable conduct involving dishonesty that disqualifies him.

Section 278 of the Constitution, on the other hand, speaks of the procedure of removing a councillor who may have committed even the same dis-honourable conduct as a sitting councilor.

In fact, even the heading of section 278 of the Constitution refers to “Tenure of seats of members of local authorities.”

It is this court's finding, that, once the first respondent was convicted of theft, on 27 June 2018, which was before the election day, he was obliged, not only by his conscience and inner conviction, but also by the law, to advise the third respondent and even the fourth respondent that he was no longer eligible to stand for public office.

Failure to do so, as in this case, was itself dishonesty and an illegality rendering his subsequent election a nullity.

It is not only in respect of the forms signed by aspiring candidates that require honesty and clean conscience, but in fact all other forms of a similar nature, which people are often asked to read, complete, and sign honestly when seeking certain jobs or public office.

This court will not waste time on the argument that it has no jurisdiction to determine the matter because in Circular Notice No.390 of 2018 the High Court judges listed therein had been appointed to be judges of the Electoral Court Division of the High Court for the period 5 June 2018 to 31 December 2018.

This application was filed on 23 November 2018 and it is clearly not the only pending matter in the Electoral Court.

It was obviously not the intention of the legislature that all pending electoral matters, as at 31 December 2018, be abandoned on that date.

I am convinced, therefore, that, indeed, in this case, it is not the outcome of the election results that is being challenged but simply the first respondent's suitability to hold public office wherein he may, especially in the office of mayor or deputy mayor, be called upon at some stage or another, to deal with public finances or assets.

I am convinced also, that, this is not a matter wherein, and I do not believe that that is the intention of both counsel, for the first respondent to ask the court to ignore the fact of the first respondent's conviction and sentence on account of such legal nuances and niceties like who and what determines an offence involving dishonesty, or, the much argued interpretation of the term 'disqualified', or the difference between an election petition and an application in the Electoral Division of the High Court.

Clearly, this court cannot, as it were, and in the circumstances 'bury its head in the sand' and pretend that nothing happened. It would run the risk of setting a precedent that is very bad at law.

The court cannot condone or pleasantly countenance an ongoing illegality a fortiori following a criminal offence. The court has to protect the rule of law and the doctrine of legality.

Accordingly, I make the following order:

1. It be and is hereby declared, that, the election of the first respondent as councillor for Ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act [Chapter 2:13] following his conviction of the offence of theft at the Bulawayo Magistrates Court under Criminal Record Book (CRB) number 1981/18 on 27 June 2018, and it is therefore set aside on account of it being null and void and his unsuitability to hold public office.

2. That the first respondent pays costs of suit on the ordinary scale.

Appointment and Removal of Mayor, Deputy Mayor and the Suspension and Dismissal of Councillors


The applicants herein filed a court application and sought the following relief, that;

(a) It be declared that the election of the first respondent as councilor for Ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act [Chapter 2:13] following his conviction of theft at the Bulawayo Magistrates Court under criminal record book number 1981/18 on 27 June 2018 and is therefore set aside on account of being null and void.

(b) Consequently, the election of the first respondent as the second respondent's Deputy Mayor be set aside.

(c) Costs of suit at an attorney and client scale against such party as will oppose the above relief sought.

Suffices at this stage to mention that only the first respondent opposed the relief sought.

The brief history of the matter is as follows:

Following a proclamation by the President of the Republic of Zimbabwe, in terms of section 144(2) of the Constitution of Zimbabwe as read with section 38(1)(c) of the Electoral Act [Chapter 2:13], setting the dates for the sitting of the Nomination Court and for the holding of a general election, the first respondent, who was an aspiring councillor representing the Movement for Democratic Change Alliance (MDC-A) successfully filed his nomination papers with the third respondent.

The Nomination Court set on 14 June 2018.

The first respondent's nomination papers were accepted by the third respondent and he was duly registered as the MDC-A candidate for Bulawayo, Ward 3 councillor.

It is now common cause, that, on 27 June 2018, albeit two (2) weeks after the Nomination Court, the first respondent was arrested and appeared before a magistrate, sitting at Bulawayo Magistrates Court. He was charged with the crime of theft in contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded guilty to the charge and was duly convicted and sentenced to a fine of $180 in default of payment 18 days imprisonment.

Needless to say, the general elections were held 33 days later, on 30 July 2018.

On 2 August 2018, the first respondent was declared duly elected councilor for Bulawayo, Ward 3 by the third respondent.

On 30 October 2018, the first applicant, through its legal practitioners of record, wrote a letter to the first respondent. The letter indicated to the first respondent, in effect, that he had been disqualified from holding office as councilor and Deputy Mayor for Bulawayo by reason of his conviction by a Criminal Court on 27 June 2018. The first applicant urged the first respondent to do what it called the “honourable thing” and voluntarily resign within 48 hours failing which an application would be filed with the court seeking the nullification of his election as councillor for Ward 3, and, subsequently, as Deputy Mayor of Bulawayo.

The first respondent did not resign, and, on 23 November 2018, the applicants filed this current application as narrated above.

The first applicant states, that, it is an organisation operating in terms of the laws of Zimbabwe with the right and power to sue and be sued in its own name. Its objectives are, inter alia, to promote economic development in the Matabeleland and Midlands provinces as well as lobbying for awareness for human rights and violations thereof, including speaking against corrupt tendencies by public officers.

The second applicant states that she is a registered voter in Bulawayo's ward 3 wherein the first respondent was elected and confirmed councillor.

To that extent, the applicants claim that they are affected as well as interested parties in this matter.

The first respondent has vigorously opposed this application.

In fact, it would appear, that, soon after receipt of this application, which the applicants say was served on him on 6 December 2018, the first respondent filed his notice of opposition on the same day (6 December 2018). The very next day, on 7 December 2018, he filed an application for condonation of late filing of notice of appeal against the 27 June 2018 conviction and sentence.

The conviction and sentence, however, remain extant....,.

The first respondent contended, that, this court has no jurisdiction to deal with the matter in that although the hearing judge was one of the judges appointed by the Chief Justice, in terms of section 162(1) of the Electoral Act [Chapter 2:13], to be a Judge of the Electoral Court Division of the High Court, such appointment was with effect from 8 June 2018 to 31 December 2018. He contended that the application, being heard on 15 July 2019, the matter was therefore improperly before the court in that the appointment and term of office for all judges appointed to serve as Electoral Court Judges had expired on 31 December 2018....,.

I come now to the hotly contested interpretation of the term “disqualified” as contemplated by section 119(2) of the Electoral Act which reads as follows pertaining to 'qualifications' and 'disqualifications' for election as councilor:

“(2) A person shall be disqualified from being nominated as a candidate for an election as a councilor if –

(a)…,.

(b) He or she has been convicted of an offence involving dishonesty or…,.”…,.

It must be observed from the onset that the question of sentence is not in issue as the Electoral Act does not prescribe what sentence would lead to disqualification. The section only refers to conviction of an offence involving dishonesty and is completely silent on the quantum of sentence.

It follows, that, the mere conviction and element of dishonesty renders one disqualified.

Be that as it may, the first respondent argued, extensively, that 'disqualification' means only after the procedure in terms of section 278 of the Constitution of Zimbabwe Amendment No.20 of 2013.

That section, in short, is to the effect, that, a sitting councillor, mayor, or deputy mayor may only be removed from his seat or vacate it when an Act of Parliament has provided for, and established an independent tribunal to exercise the function of removing from office such persons.

The first respondent argues, therefore, that, this court has no jurisdiction to remove him from office through what he claims is essentially an election petition belatedly and improperly before the court.

This court is not persuaded to take that argument.

In any event, it is clear, from a reading of the two sections, that, whilst section 119 of the Electoral Act refers to 'disqualifications', section 278 of the Constitution refers to 'removal'.

In my view, the section 278 relied on by the first respondent, though correct in appropriate circumstances, has nothing to do with this application for the following simple reasons:

(i) Firstly, this application does not relate to a councilor, mayor or deputy mayor or chairperson etc. who committed misconduct when he was already a sitting councilor, which appears to be the contemplation by section 278 of the Constitution.

(ii) Secondly, this court has not been asked to 'remove' the first respondent from office, but simply to 'declare' that he, by reason of his conviction by a magistrate on 27 June 2018, is disqualified and not fit to hold public office.

I am inclined to agree with counsel for the applicants, that, the term 'disqualification' as contemplated by section 119(2) of the Electoral Act has a different meaning from the one assigned to it by the first respondent, narrowing and equating it to 'removal from office' as contemplated by section 278 of the Constitution.

The applicants are right, in my view, that, by the mere conduct of keeping quiet and not informing the third and fourth respondents that he had been convicted, about 33 days before the election, of the crime of theft, and thus was no longer eligible to stand for election, the first respondent was disqualified.

In other words, no person or body should stand there and “pronounce his disqualification.” It is the mere act of a dishonourable conduct involving dishonesty that disqualifies him.

Section 278 of the Constitution, on the other hand, speaks of the procedure of removing a councillor who may have committed even the same dis-honourable conduct as a sitting councilor.

In fact, even the heading of section 278 of the Constitution refers to “Tenure of seats of members of local authorities.”

It is this court's finding, that, once the first respondent was convicted of theft, on 27 June 2018, which was before the election day, he was obliged, not only by his conscience and inner conviction, but also by the law, to advise the third respondent and even the fourth respondent that he was no longer eligible to stand for public office.

Failure to do so, as in this case, was itself dishonesty and an illegality rendering his subsequent election a nullity.

It is not only in respect of the forms signed by aspiring candidates that require honesty and clean conscience, but in fact all other forms of a similar nature, which people are often asked to read, complete, and sign honestly when seeking certain jobs or public office.

This court will not waste time on the argument that it has no jurisdiction to determine the matter because in Circular Notice No.390 of 2018 the High Court judges listed therein had been appointed to be judges of the Electoral Court Division of the High Court for the period 5 June 2018 to 31 December 2018.

This application was filed on 23 November 2018 and it is clearly not the only pending matter in the Electoral Court.

It was obviously not the intention of the legislature that all pending electoral matters, as at 31 December 2018, be abandoned on that date.

I am convinced, therefore, that, indeed, in this case, it is not the outcome of the election results that is being challenged but simply the first respondent's suitability to hold public office wherein he may, especially in the office of mayor or deputy mayor, be called upon at some stage or another, to deal with public finances or assets.

I am convinced also, that, this is not a matter wherein, and I do not believe that that is the intention of both counsel, for the first respondent to ask the court to ignore the fact of the first respondent's conviction and sentence on account of such legal nuances and niceties like who and what determines an offence involving dishonesty, or, the much argued interpretation of the term 'disqualified', or the difference between an election petition and an application in the Electoral Division of the High Court.

Clearly, this court cannot, as it were, and in the circumstances 'bury its head in the sand' and pretend that nothing happened. It would run the risk of setting a precedent that is very bad at law.

The court cannot condone or pleasantly countenance an ongoing illegality a fortiori following a criminal offence. The court has to protect the rule of law and the doctrine of legality.

Accordingly, I make the following order:

1. It be and is hereby declared, that, the election of the first respondent as councillor for Ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act [Chapter 2:13] following his conviction of the offence of theft at the Bulawayo Magistrates Court under Criminal Record Book (CRB) number 1981/18 on 27 June 2018, and it is therefore set aside on account of it being null and void and his unsuitability to hold public office.

2. That the first respondent pays costs of suit on the ordinary scale.

Opposed application

MABHIKWA J: The applicants herein filed a court application and sought the following relief, that;

(a) It be declared that the election of 1st respondent as councilor for ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act, Chapter 2:13 following his conviction of theft at the Bulawayo Magistrates' Court under criminal record book number 1981/18 on the 27th of June 2018 and is therefore set aside on account of being null and void.

(b) Consequently, the election of 1st respondent as 2nd respondent's Deputy Mayor be set aside.

(c) Costs of suit at an attorney and client scale against such party as will oppose the above relief sought.

Suffices at this stage to mention that only 1st respondent opposed the relief sought.

The brief history of the matter is as follows:

Following a proclamation by the President of the Republic of Zimbabwe in terms of section 144(2) of the Constitution of Zimbabwe as read with section 38(1)(c) of the Electoral Act [Chapter 2:13], setting the dates for the sitting of the Nomination Court and for the holding of a general election, the 1st respondent, who was an aspiring councilor representing the Movement for Democratic Change Alliance (MDC-A) successfully filled his nomination papers with the 3rd respondent.

The Nomination Court set on 14 June 2018.

1st respondent's nomination papers were accepted by the 3rd respondent and he was duly registered as the MDC-A candidate for Bulawayo ward 3 councillor.

It is now common cause that on 27 June 2018, albeit 2 weeks after the Nomination Court, 1st respondent was arrested and appeared before a magistrate, sitting at Bulawayo Magistrates' Court. He was charged with the crime of theft in contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded guilty to the charge and was duly convicted and sentenced to a fine of $180,00 in default of payment 18 days imprisonment.

Needless to say, the general elections were held 33 days later on 30 July 2018.

On 2 August 2018, 1st respondent was declared duly elected councilor for Bulawayo ward 3 by 3rd respondent.

On 30 October 2019, the 1st applicant, through its legal practitioners of record, wrote a letter to the 1st respondent. The letter indicated to the 1st respondent, in effect, that he had been disqualified from holding office as councilor and Deputy Mayor for Bulawayo by reason of his conviction by a criminal court on 27 June 2018. 1st applicant urged 1st respondent to do what it called the “honourable thing” and voluntarily resign within 48 hours failing which an application would be filled with the court seeking the nullification of his election as councilor for ward 3 and subsequently, as Deputy Mayor of Bulawayo.

The 1st respondent did not resign and on 23 November 2018, the applicants filed this current application as narrated above.

The 1st applicant states that it is an organisation operating in terms of the laws of Zimbabwe with the right and power to sue and be sued in its own name. It's objectives are, inter alia, to promote economic development in the Matabeleland and Midlands provinces as well as lobbying for awareness for human rights and violations thereof, including speaking against corrupt tendencies by public officers.

2nd applicant states that she is a registered voter in Bulawayo's ward 3 wherein 1st respondent was elected and confirmed councilor.

To that extent the applicants claim that they are affected, as well as interested parties in this matter.

1st respondent has vigorously opposed this application.

In fact, it would appear that soon after receipt of this application, which the applicants say was served on him on 6 December 2018, 1st respondent filled his notice of opposition on the same day (6 December 2018). The very next day on 7 December 2018, he filed an application for condonation of late filing of notice of appeal against the 27 June 2018 conviction and sentence.

The conviction and sentence however, remain extant.

1st respondent raised preliminary points in the matter.

1st, he contended that this court has no justification to deal with the matter in that although the hearing judge was one of the judges appointed by the Chief Justice in terms of section 162(1) of the Electoral Act [Chapter 2:13] to be a Judge of the Electoral Court Division of the High Court, such appointment was with effect from 8 June 2018 to 31 December 2018. He contended that the application being heard on 15 July 2018, the matter was therefore improperly before the court in that the appointment and term of office for all judges appointed to serve as Electoral Court Judges had expired on 31 December 2018.

1st respondent also said the applicants failed to comply with section 168 of the Electoral Act and rule 21 of the Electoral Court Rules.

Thirdly, 1st respondent alleged that applicants had failed to comply with section 67 of the Electoral Act.

He challenged their locus standi in judicio in filing the application.

1st respondent also contended that the applicants had failed to comply with section 168(5) and 169 of the Electoral Act relating to payment of security costs.

As regards the 2nd applicant, 1st respondent argued that there was no evidence before the court showing that she is a registered voter in ward 3 nor that she participated in the election.

From the onset, it was clear that the major issue to be decided was whether what is before the court is a court application or an election petition.

In effect, the applicants argue that they made an application in which they seek a Declaratur on the 1st respondent's suitability to hold public office following his conviction on 27 June 2018.

1st respondent argues on the other hand that the applicants have filled an election petition disguised as an ordinary court application.

It appears to me that the rest of what the 1st respondent has raised as points in limine are premised on the fact of, or assumption that, the court will find that it is indeed an election petition.

For that reason, they are strictly speaking not points in limine in that the court would still have to decide what is effectively the main issue on the merits.

It is for that reason also that I decided and advised both sets of counsel to make their submissions on the points in limine as well as the merits and thereafter, the court will make its ruling and judgment at once.

The Law

Order 32, Rule 226(1) of the High Court Rules 1971, states as follows as regards court applications;

“1. Subject to this rule, all applications made for whatever purpose in terms of these rules, or any other law, other than applications made orally during the course of a hearing, shall be made –

(a) As a court application, that is to say, in writing to the court on notice to all interested parties; or

(b) As a chamber application, that is to say, in writing to a judge.” (emphasis is mine)

Section 161(2) of the Electoral Act [Chapter 2:13] reads as follows:

“(2) The Electoral Court shall have exclusive jurisdiction –

(a) to hear appeals, applications, and petitions in terms of this Act, … (emphasis is mine) and shall have power to give such judgments, orders and directions in those matters as might be given by the High Court.”

It appears to me therefore from the above, that a court application may be made either in terms of section 161(2) of the Electoral Act or Order 32 Rule 226 of the High Court Rules with equal legal force, save to say that the Electoral Court Division of the High Court will not entertain or hear criminal cases or any other matters completely unrelated to electoral processes.

There is no rule shown to me both in the High Court Rules or Electoral Act that all matters relating to elections should be filed as “Election Petitions” with the Electoral Court only, as 1st respondent appears to argue.

In Mpukuta vs Motor Insurance Pool & Ors 2012 (1) ZLR 192 (H), applicant was a Zimbabwean citizen permanently resident in Botswana. He would regularly drive into Zimbabwe to visit his family. Upon entry into Zimbabwe, he would obtain a temporary import permit for his foreign registered vehicle and other costs. He made an application for a declaratory order for inter alia, re-imbursement of the expenses which he incurs when he travels. His company in Botswana refused to refund him on the grounds that his purported entries into Zimbabwe were not insured by “a registered and licenced” insurer.

The court held that the condition precedent to the grant of a declaratory order is that –

(a) The applicant must be an interested person, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The court must relate to an existing future and contingent right as the court will not decide on abstract, academic or hypothetical questions as was the situation in that case.

(b) At the 2nd stage, it is incumbent upon the court to decide whether or not, the case in question is a proper one for the exercise of its discretion under section 14 of the High Court Act [Chapter 7:06].

The said section 14 of the High Court Act states as follows as regard the determination of future or contingent rights:

“14. The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

I agree also with Mr Nyoni for the applicant that the current Electoral Act (Chapter 2:13) as read with such cases as Makoni & Anor vs Chairperson of ZEC & Anor (1) ZLR @ 230 and Themba Mliswa vs ZEC Chairperson reveals that an application is not a petition.

The Electoral Court now has powers similar to those exercised by the High Court and that this court sitting as it does as a division of the High Court, otherwise known as the Electoral Court, can now properly sit and entertain an application for a Declaratur for as long as, in my view, that matter is in relation to the Electoral Act and election processes.

I am satisfied therefore from the above legal position both statutory and from precedents that the applicants are in the category of interested persons qualified to make such an application.

Having said that, it follows therefore, that it is an erroneous reasoning to hold that only those who “participated” in the 30 July 2018 “would qualify to approach this court, and only by way of “an election petition”.

I dismiss also the contention that the matter is an election petition disguised as an application.

In any event, and in my view, this is an argument that 1st respondent deliberately but vigorously advanced to the court in order to push the applicants into the category of persons that he hoped the court would probably declare unqualified to petition it.

In effect, 1st respondent seems to argue that “participants” for purposes of an election petition would mean those affected, especially losing candidates in the same election that he won.

I come now to the hotly contested interpretation of the term “disqualified” as contemplated by section 119(2) of the Electoral Act which reads as follows pertaining to “qualifications” and “disqualifications” for election as councilor:

“(2) A person shall be disqualified from being nominated as a candidate for an election as a councilor if –

(a)…

(b) he or she has been convicted of an offence involving dishonesty or …” (emphasis is mine)

It must be observed from the onset that the question of sentence is not in issue as the Act does not prescribe what sentence would lead to disqualification. The section only refers to conviction of an offence involving dishonesty and is completely silent on the quantum of sentence.

It follows that the mere conviction and element of dishonesty renders one disqualified.

Be that as it may, 1st respondent argued extensively that “disqualification” means only after the procedure in terms of section 278 of the Constitution of Zimbabwe Amendment No. 20 of 2013.

That section in short is to the effect that a sitting councillor, mayor or deputy mayor may only be removed from his seat or vacate it when an Act of Parliament has provided for, and established an independent tribunal to exercise the function of removing from office such persons.

1st respondent argues therefore, that this court has no jurisdiction to remove him from office through what he claims is essentially an election petition belatedly and improperly before the court.

This court is not persuaded to take that argument.

In any event, it is clear from a reading of the two sections that whilst section 119 of the Electoral Act refers to “disqualifications”, section 278 of the Constitution refers to “removal”.

In my view, the section 278 relied on by the 1st respondent, though correct in appropriate circumstances has nothing to do with this application for the following simple reasons.

(i) Firstly this application does not relate to a councilor, mayor or deputy mayor or chairperson etc. who committed misconduct when he was already a sitting councilor, which appears to be the contemplation by section 278 of the Constitution.

(ii) Secondly, this court has not been asked to “remove” the 1st respondent from office but simply to “Declare” that he, by reason of his conviction by a magistrate on 27 June 2018 is disqualified and not fit to hold public office.

I am inclined to agree with Mr Nyoni for the applicants, that the term “disqualification” as contemplated by section 119(2) of the Electoral Act has a different meaning from the one assigned to it by 1st respondent, narrowing and equating it to “removal from office” as contemplated by section 278 of the Constitution.

Applicants are right in my view, that by the mere conduct of keeping quiet and not informing 3rd and 4th respondents that he had been convicted, about 33 days before the election, of the crime of theft and thus was no longer eligible to stand for election, 1st respondent was disqualified.

In other words, no person or body should stand there and “pronounce his disqualification”. It is the mere act of a dis-honourable conduct involving dishonesty that disqualifies him.

Section 278 of the Constitution on the other hand speaks of the procedure of removing a councilor who may have committed even the same dis-honourable conduct as a sitting councilor.

In fact even the heading of section 278 refers to “Tenure of seats of members of local authorities.”

It is this court's finding that once the 1st respondent was convicted of theft on 27 June 2018 which was before the election day, he was obliged, not only by his conscience and inner conviction, but also by the law, to advise the 3rd respondent and even 4th respondent that he was no longer eligible to stand for public office.

Failure to do so, as in this case, was itself dishonesty and an illegality rendering his subsequent election a nullity.

It is not only in respect of the forms signed by aspiring candidates that require honesty and clean conscience, but in fact all other forms of a similar nature, which people are often asked to read, complete and sign honestly when seeking certain jobs or public office.

This court will not waste time on the argument that it has no jurisdiction to determine the matter because in Circular Notice No. 390 of 2018 the High Court judges listed therein had been appointed to be judges of the Electoral Court Division of the High Court for the period 5 June 2018 to 31st December 2018.

This application was filed on 23 November 2018 and it is clearly not the only pending matter in the Electoral Court.

It was obviously not the intention of the legislature that all pending electoral matters as at 31 December 2018 be abandoned on that date.

I am convinced therefore that indeed in this case, it is not the outcome of the election results that is being challenged but simply the 1st respondent's suitability to hold public office wherein he may especially in the office of mayor or deputy mayor, be called upon at some stage or another, to deal with public finances or assets.

I am convinced also that this is not a matter wherein, and I do not believe that that is the intention of both counsel for the 1st respondent to ask the court to ignore the fact of the 1st respondent's conviction and sentence on account of such legal nuances and niceties like who and what determines an offence involving dishonesty or, the much argued interpretation of the term “disqualified”, or the difference between an election petition and an application in the Electoral Division of the High Court.

Clearly, this court cannot, as it were, and in the circumstances “bury its head in the sand” and pretend that nothing happened. It would run the risk of setting a precedent that is very bad at law.

The court cannot condone or pleasantly countenance an ongoing illegality a fortiori following a criminal offence. The court has to protect the rule of law and the doctrine of legality.

Accordingly, I make the following order:

1. It be and is hereby declared that the election of 1st respondent as councilor for ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act (Chapter 2:13) following his conviction of the offence of theft at the Bulawayo Magistrates' Court under Criminal Record Book (CRB) number 1981/18 on 27 June 2018, and it is therefore set aside on account of it being null and void and his unsuitability to hold public office.

2. That 1st respondent pays costs of suit on the ordinary scale.







Messs Moyo & Nyoni, applicant's legal practitioners

Messrs Samp Mlaudzi & Partners, 1st and 4th respondents' legal practitioners

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