ELECTORAL APPEAL
UCHENA J: The appellant
was an aspiring Presidential candidate in the 29 March 2008
harmonized elections. On the 15th
of February 2008,
he presented his nomination papers, to the 1st
respondent who refused to accept them.
He alleges that he arrived at the
Nomination Court at around quarter to four while another aspiring
candidate Advocate Justin Chihota was being attended to. He
approached the 1st
respondent who told him to await his turn as he the 1st
respondent was attending to another candidate.
He alleges that in spite of his
having been asked to await his turn he was eventually told that he
could not be attended to as the Nomination Court had closed at 16:00
hours.
It was contented on his behalf
that the 1st
respondent's conduct was contrary to the provisions of the
Electoral Act (Chp 2.13) herein after called the Electoral Act.
The 1st
respondent is the Constituency Registrar, who presided over the
Nomination Court for Presidential candidates. The 2nd
respondent is the Chairman of the Zimbabwe Electoral Commission,
which over sees the conducting of elections, in Zimbabwe.
Before the hearing of the appeal,
Mr Chikumbirike
for the respondents raised a point in limine. He submitted that the
appeal was out of time as it was lodged after the four days
prescribed by section 46(19)(c) of the Electoral Act.
Section 46 (19)(c) provides as
follows:-
“if no appeal in terms of
paragraph (b) is lodged within four days after the receipt of notice
of the decision of the nomination officer, the right of appeal of the
candidate shall lapse and the decision of the nomination officer
shall be final.”
Mr Chikumbirike
for the respondents referred to this court's decision in the case
of Edson Nyamapfeni versus The Zimbabwe Electoral Commission and 3
others E/P 7/08, in which I held that the time within which an appeal
should be noted is reckoned from the second day after the day on
which the candidate's nomination is rejected, and that the period
includes Saturdays and Sundays.
In Heads of Argument prepared by
Mr Samkange but argued in chambers by Mr Chinyama
it was contented that the filing of the urgent application which was
dismissed by Guvava J interrupted the running of prescription and the
four days prescribed by section 46(19)(c) only started running on the
21st
February 2008, the day GUVAVA J dismissed that application.
The Heads of Argument do not indicate which section of the
Prescription Act (Chapter 8:11) hereinafter called the Prescription
Act the appellant is relying on.
A reading of the Prescription Act leaves no doubt that only Part IV
would apply to prescription through the lapsing of time periods
prescribed in statutes. Sections 13(1)(a) and (b) and 14 refers.
The Appellant's Counsels' argument is not consistent with the
provisions of section 19(2) and (3) of the Prescription Act, which
provides for judicial interruption of prescription as follows:-
“(2) The running of
prescription shall subject to subsection (3) be interrupted by the
service on the debtor of any process whereby the creditor claims
payment of the debt.”
(3) Unless the debtor
acknowledges liability the interruption of prescription in terms of
subsection (2) shall lapse and the running of prescription shall not
be deemed to have been interrupted, if the creditor:-
(a) Does not successfully
prosecute his claim under the process in question to final judgment;
or
(b) Successfully prosecutes his
claim under the process in question to final judgment, but abandons
the judgment or the judgment is set aside.”
It is clear from subsection (2) that the service of process
interrupts prescription. That is however subject to subsection (3)
which makes the confirmation of such interruption subject to:-
(1) The debtor acknowledging
liability in which case the proceedings need not result in a final
judgement in the creditors favour; or
(2) The creditor successfully
prosecuting his claim to final judgment, which means the creditor,
should win the case.
If the above does not happen as was the case in the application which
was dismissed by GUVAVA J, prescription is not interrupted.
In this case the respondents who are the debtors did not in the
application proceedings acknowledge that the appellant then
applicant's nomination papers had been incorrectly refused. On the
contrary, the respondents successfully raised points in limine which
led to the dismissal of the appellant's application.
Success was therefore not on the appellant's side, yet that is what
could have interrupted the running of prescription against him.
Therefore since the appellant did not succeed to final judgement in
his favour in the application proceedings and the respondents did not
concede that he should have been nominated, the interruption of
prescription by service of the application lapsed, and the running of
prescription is not deemed to have been interrupted.
The appellant's claim that the running of prescription against the
four day period was interrupted could only have succeeded if he had
succeeded in the application proceedings to final judgment.
I therefore find that the period
during which the appeal should have been lodged lapsed on the 19th
February 2008 two days before this appeal was lodged.
Mr Chinyama
also argued that in view of the provisions of section 165(4) of the
Electoral Act and Order 1 Rule 4A of the High Court Rules, Saturdays
and Sundays are not included in the reckoning of time.
Mr Chikumbirike
for the respondents submitted that, that issue had already been
decided in the Nyamapfeni case (supra), and stressed that Rule 4A
refers to time periods within which “anything is required by these
rules or an order of court to be done”.
Mr Chinyama
persisted with his
argument and asked for time so that he could identify a rule in the
High Court Rules which specifies time periods for the noting of
appeals which is relevant to these proceedings.
An adjournment was granted after which he came back conceding that he
could not find the rule and was no longer persisting with his
argument.
In the Nyamapfeni case (supra) at pages 3 to 4, commenting on the
provisions of section 165(4) of the Electoral Act and Order 1 Rule 4A
of the High Court rules, I at page 4 said:-
“It is true that this court can
rely on High Court rules, but the issue to be determined is whether
or not the provisions of Rule 4A extend to time limits prescribed in
an Act of Parliament.”
I thereafter commenting on Rule
4A said:-
“The key words in Rule 4A are
'where anything is required by these rules or in any order of the
court to be done within a particular number of days.'
This means the Rule applies to
anything required to be done by any rule in the High Court Rules or
an order of the court. It does not extend to situations not provided
for by the rules or court orders. It therefore does not assist in the
construction of section 46(19)(c) of the Electoral Act, which is not
a provision of the High Court Rules, but a provision of the Electoral
Act.”
I am therefore satisfied that Mr
Chinyama
has properly conceded that his argument on this point is untenable.
Mr Chikumbirike
for the respondents sought costs on the legal practitioner and client
scale against the appellant, the appearing legal practitioner and the
instructing law firm. He submitted that the same issue has been
before GUVAVA J as an urgent application instead of an appeal because
of the appellant's legal practitioner's failure to correctly
apply the provisions of section 46(19)(a)(b) and (c) of the Electoral
Act.
In that application the
respondents raised preliminary issues on the inapplicability of the
Urgent Application procedure as it is not provided for in section 46
of the Electoral Act. The appellant's legal practioners persisted
with that application until it was dismissed by GUVAVA J with costs
on the legal practitioner and client scale.
Mr Chiyama
did not dispute that
the application was dismissed because it had not been lodged in terms
of section 46(19) of the Electoral Act.
The provisions of section 46(19)(b) and (c) of the Electoral Act are
clear. They provide for an appeal, not an application.
If the appellant and his legal
practioners were acting reasonably they would have withdrawn the
application and immediately lodged the appeal instead of persisting
with the application until it was dismissed with costs on the higher
scale on the 21st
February 2008.
This appeal was lodged on the day the urgent application was
dismissed.
At the hearing of this case the appellant's counsel exhibited the
same unreasonable persistence in the face of clear facts that the
appeal was out of time.
I am satisfied that the costs
sought by Mr Chikumbirike
should be granted.
It is therefore ordered that:-
The appellant's appeal be and
is hereby dismissed with costs on the legal practitioner and client
scale against the appellant, the appearing legal practitioner and the
law firm jointly and severally the one paying the others to be
absolved.
Byron Venturas and Partners, appellant's legal practitioners
Chikumbirike & Associates, 1st
and 2nd respondent's
legal practitioners
