Law Portal
Zimbabwe

Welcome To Law Portal

Welcome, Guest!
[Help?]

HH27-08 - EDSON NYAMAPFENI vs CONSTITUENCY REGISTRAR MBERENGWA EAST and ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE and DOUGLAS MOMBESHORA and CLEVER KUGOTI

  • View Judgment By Categories
  • View Full Judgment


Procedural Law-viz appeal re electoral proceedings.
Electoral Law-viz nomination proceedings.
Procedural Law-viz citation re party acting in an official capacity.
Electoral Law-viz voters roll.
Procedural Law-viz rules of evidence re documentary evidence.
Electoral Law-viz nomination proceedings re section 46 of the Electoral Act [Chapter 2:13].
Procedural Law-viz citation re party acting in an official capacity iro section 18 of the Zimbabwe Electoral Commission Act [Chapter 2:12].
Procedural Law-viz citation re electoral proceedings iro section 18 of the Zimbabwe Electoral Commission Act [Chapter 2:12].
Procedural Law-viz appeal re electoral appeal iro section 46(19) of the Electoral Act [Chapter 2:13].
Procedural Law-viz calculation of dies induciae re section 46(19) of the Electoral Act [Chapter 2:13].
Procedural Law-viz calculation of dies induciae re section 33 of the Interpretation Act [Chapter 1:01].
Procedural Law-viz rules of court re calculation of dies induciae iro Rule 4A of the High Court Rules.
Procedural Law-viz rules of construction re statutory provision iro meaning of "day".
Procedural Law-viz rules of interpretation re statutory provision iro meaning of "days".
Procedural Law-viz rules of construction re statutory provision iro ordinary meaning of words.
Procedural Law-viz rules of interpretation re statutory provision iro ordinary grammatical meaning of words.
Procedural Law-viz rules of construction re statutory provisions iro literal meaning of words.
Procedural Law-viz rules of construction re statutory provisions iro the Interpretation Act [Chapter 1:01].
Procedural Law-viz time limits re dies induciae iro section 46 of the Electoral Act [Chapter 2:13].
Procedural Law-viz reckoning of time re dies induciae iro Rule 4A of the High Court Rules.
Procedural Law-viz dies induciae re time limits iro section 33 of the Interpretation Act [Chapter 1:01].
Procedural Law-viz dies induciae re the reckoning of time iro Rule 1 of the Supreme Court Rules.
Procedural Law-viz rules of construction re statutory provisions iro intent of the legislature.
Procedural Law-viz rules of interpretation re statutory provisions iro legislative intent.
Procedural Law-viz appeal re the right of appeal iro section 46(19)(b) of the Electoral Act [Chapter 2:13].
Procedural Law-viz rules of court re condonation re electoral proceedings.
Procedural Law-viz jurisdiction re electoral proceedings.
Procedural Law-viz cause of action re nature of proceedings iro electoral proceedings.

Citation and Joinder re: Party Acting in Official Capacity, Statutory or Peremptory Citation and Delegated Authority


The appellant and the fourth and fifth respondents are aspiring Parliamentary candidates. The appellant's nomination papers were rejected while those of the fourth and fifth respondents were accepted by the first respondent.

The second respondent is the Electoral Commission responsible for conducting elections in Zimbabwe. The third respondent is the Minister responsible for the administration of the Electoral Act [Chapter 2:13] and the Zimbabwe Electoral Commission Act [Chapter 2:12], herein after called the Electoral Act, and the Zimbabwe Electoral Commission Act.

The brief facts leading to this appeal are;

That the appellant lodged his nomination papers with the first respondent who rejected them because seven of the appellant's nominators' names could not be found on the voters roll. He is aggrieved because his nominators were registered voters who had, according to certificates of registration attached to the appeal, registered between the 15th November 2007 and 13th February 2008.

The dates of their registration explains why their names are not on the voters roll.

This, however, does not disentitle a nominator from nominating a candidate as the proviso to section 46(1)(a) of the Electoral Act [Chapter 2:13] entitles the aspiring candidate to prove his nominator's eligibility by producing their voters registration certificates.

The appellant, believing his nomination to have been unfairly rejected, appealed to this court on the 20th February 2008. The Nomination Court had rejected his papers on the 15th February 2008.

Counsel for the second respondent raised two points in limine -

(a) That the second respondent was incorrectly cited;...,.

In respect of the first point in limine, counsel for the second respondent submitted that the correct citation of the second respondent should be “The Chairman, Zimbabwe Electoral Commission” as provided in section 18 of the Zimbabwe Electoral Commission Act [Chapter 2:12].

The first respondent's counsel conceded this point but sought to argue that the incorrect citation is not a fatal irregularity to warrant the dismissal of the appeal.

Voters Roll and Voter Registration

The appellant and the fourth and fifth respondents are aspiring Parliamentary candidates. The appellant's nomination papers were rejected while those of the fourth and fifth respondents were accepted by the first respondent.

The second respondent is the Electoral Commission responsible for conducting elections in Zimbabwe. The third respondent is the Minister responsible for the administration of the Electoral Act [Chapter 2:13] and the Zimbabwe Electoral Commission Act [Chapter 2:12], herein after called the Electoral Act, and the Zimbabwe Electoral Commission Act.

The brief facts leading to this appeal are;

That the appellant lodged his nomination papers with the first respondent who rejected them because seven of the appellant's nominators' names could not be found on the voters roll. He is aggrieved because his nominators were registered voters who had, according to certificates of registration attached to the appeal, registered between the 15th November 2007 and 13th February 2008.

The dates of their registration explains why their names are not on the voters roll.

This, however, does not disentitle a nominator from nominating a candidate as the proviso to section 46(1)(a) of the Electoral Act [Chapter 2:13] entitles the aspiring candidate to prove his nominator's eligibility by producing their voters registration certificates.

Citation and Joinder re: Electoral Proceedings

The appellant and the fourth and fifth respondents are aspiring Parliamentary candidates. The appellant's nomination papers were rejected while those of the fourth and fifth respondents were accepted by the first respondent.

The second respondent is the Electoral Commission responsible for conducting elections in Zimbabwe. The third respondent is the Minister responsible for the administration of the Electoral Act [Chapter 2:13] and the Zimbabwe Electoral Commission Act [Chapter 2:12], herein after called the Electoral Act, and the Zimbabwe Electoral Commission Act.

The brief facts leading to this appeal are;

That the appellant lodged his nomination papers with the first respondent who rejected them because seven of the appellant's nominators' names could not be found on the voters roll. He is aggrieved because his nominators were registered voters who had, according to certificates of registration attached to the appeal, registered between the 15th November 2007 and 13th February 2008.

The dates of their registration explains why their names are not on the voters roll.

This, however, does not disentitle a nominator from nominating a candidate as the proviso to section 46(1)(a) of the Electoral Act [Chapter 2:13] entitles the aspiring candidate to prove his nominator's eligibility by producing their voters registration certificates.

The appellant, believing his nomination to have been unfairly rejected, appealed to this court on the 20th February 2008. The Nomination Court had rejected his papers on the 15th February 2008.

Counsel for the second respondent raised two points in limine -

(a) That the second respondent was incorrectly cited;...,.

In respect of the first point in limine, counsel for the second respondent submitted that the correct citation of the second respondent should be “The Chairman, Zimbabwe Electoral Commission” as provided in section 18 of the Zimbabwe Electoral Commission Act [Chapter 2:12].

The first respondent's counsel conceded this point but sought to argue that the incorrect citation is not a fatal irregularity to warrant the dismissal of the appeal.

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Approach iro Limitation to the Right of Appeal

Section 46(19)(c) of the Electoral Act [Chapter 2:13]..., 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.”

Section 46(19)(b) of the Electoral Act provides that the decision of a judge of the Electoral Court is final as it shall not be the subject of an appeal.

The Nomination Court sits to nominate candidates for an election on a date already announced....,. 

The noting of an appeal, and its hearing, are therefore set within the urgency dictated by the count down towards the election date. Ballot papers must be prepared after the determination of the appeal as the appellant's name must appear on the ballot papers if his appeal is upheld.

Appeal re: Expedited Set Down of an Appeal on an Urgent Basis, Default Urgency and Interim Relief Pending Appeal

Section 46(19)(c) of the Electoral Act [Chapter 2:13]..., 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.”

Section 46(19)(b) of the Electoral Act provides that the decision of a judge of the Electoral Court is final as it shall not be the subject of an appeal.

The Nomination Court sits to nominate candidates for an election on a date already announced....,. 

The noting of an appeal, and its hearing, are therefore set within the urgency dictated by the count down towards the election date. Ballot papers must be prepared after the determination of the appeal as the appellant's name must appear on the ballot papers if his appeal is upheld.

Jurisdiction re: Electoral Proceedings

The Electoral Court is a creature of statute. Its jurisdiction is restricted to what is provided in the Electoral Act - which does not provide for condonation.

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

The appellant and the fourth and fifth respondents are aspiring Parliamentary candidates. The appellant's nomination papers were rejected while those of the fourth and fifth respondents were accepted by the first respondent.

The second respondent is the Electoral Commission responsible for conducting elections in Zimbabwe. The third respondent is the Minister responsible for the administration of the Electoral Act [Chapter 2:13] and the Zimbabwe Electoral Commission Act [Chapter 2:12], herein after called the Electoral Act, and the Zimbabwe Electoral Commission Act.

The brief facts leading to this appeal are;

That the appellant lodged his nomination papers with the first respondent who rejected them because seven of the appellant's nominators' names could not be found on the voters roll. He is aggrieved because his nominators were registered voters who had, according to certificates of registration attached to the appeal, registered between the 15th November 2007 and 13th February 2008.

The dates of their registration explains why their names are not on the voters roll.

This, however, does not disentitle a nominator from nominating a candidate as the proviso to section 46(1)(a) of the Electoral Act [Chapter 2:13] entitles the aspiring candidate to prove his nominator's eligibility by producing their voters registration certificates.

The appellant, believing his nomination to have been unfairly rejected, appealed to this court on the 20th February 2008. The Nomination Court had rejected his papers on the 15th February 2008.

Counsel for the second respondent raised two points in limine -

(a)...,.

(b) That the appellant's appeal was noted out of time....,.

In respect of the second point in limine, counsel for the second respondent submitted that an appeal in terms of section 46(19)(b) of the Electoral Act [Chapter 2:13] must be lodged with the Electoral Court within four days of the rejection of the appellant's nomination.

He said, in this case, the appeal should have been lodged by the 19th February 2008.

He based his interpretation of section 46(19)(c) of the Electoral Act and on section 33(2), (3) and (4) of the Interpretation Act [Chapter 1:01] hereinafter referred to as the Interpretation Act.

In his response, counsel for the appellant submitted that the appeal was lodged in time as Saturdays and Sundays should not be included in the reckoning of time. He referred the Court to Order 1 Rule 4A of the High Court Rules.

He, in the alternative, submitted that the ordinary meaning of a day excludes Saturdays, Sundays and public holidays.

Counsel for the second respondent, in response, submitted that the ordinary meaning of a 'day' includes Saturdays, Sundays, and public holidays, as a 'day' means a day and cannot exclude other days.

I agree with counsel for the second respondent's construction as it accords with the literal meaning of the word 'day'. That is why the name of each day of the week ends with the suffix “day”. That construction is supported by case law.

In the case of Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC)…, GUBBAY JA said;

“Rule 30(a) lays down that where leave to appeal is not necessary, as in this case, an appeal is properly entered by serving Notice of Appeal 'within twenty-one days of the day of the judgment appealed against'.

Does the period include 'none-business' days?

There is no doubt that it does.

First, the ordinary meaning of the word 'days' embraces both business and none-business days. If it were intended to exclude non-business days it would have been a simple matter to have used the expression 'twenty-one business days.'”

In the case of Kombayi v Berkhout 1988 (1) ZLR 53 (SC)…, KORSAH JA, referring with approval to Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC) said:

“This court has repeated ad nauseum that the calculation of time for lodging of appeals was based on ordinary days and not court days.”

Words in a statute should be interpreted in accordance with the definition usually found in the definition or interpretation section of that statute. In the absence of a definition for the words to be interpreted one has to look to the Interpretation Act for assistance in interpreting words in a statute.

In relying on the aforementioned, one can also invoke the general rules of interpretation provided it would not be inconsistent with the definition provided in the Act or the Interpretation Act.

Section 2 of the Interpretation Act [Chapter 1:01] provides as follows:-

“(1) The provisions of this Act shall extend and apply to every enactment as defined in this Act, including this Act, which was in force in Zimbabwe immediately before the 1st November 1962, or thereafter comes into force in Zimbabwe, except in so far as any such provisions -

(a) Are inconsistent with the intention or object of such enactment;

(b) Would give to any word, expression, or provision of such an enactment an interpretation inconsistent with the context; or

(c) Are in such enactment declared not applicable thereto.

(2) Nothing in this Act shall exclude the application to any enactment of any rule of construction applicable thereto and not inconsistent with this Act.”

The word “enactment” is defined in section 3 of the Interpretation Act, and means -

(a) “any Act;

(b) Any statute included in the revised edition of the laws of Zimbabwe prepared under an Act.”

There is no doubt that the Electoral Act falls under this definition and should therefore be construed according to the provisions of the Interpretation Act as the words “day” or “days” are not defined under the Electoral Act.

Counsel for the appellant's submission that the time should be reckoned in terms of the High Court rules could have been premised on the provisions of section 165(4) of the Electoral Act which provides as follows -

“Until rules of court for the Electoral Court are made in terms of this section, the rules of the High Court shall apply, with such modifications as appear to the Electoral Court to be necessary, with respect to election petitions and other matters over which the Electoral Court has jurisdiction.”

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.

Rule 4A of the High Court Rules provides as follows -

“Unless a contrary intention appears, where anything is required by these rules, or in any order of the court, to be done within a particular number of days or hours, a Saturday, Sunday, or public holiday shall not be reckoned as part of such period.”

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.

In this case, the words 'day' or 'days' are not defined in the Electoral Act. They are, however, provided for in section 33 of the Interpretation Act, which provides as follows:-

“1. Words in an enactment relating to time, and references therein to a point of time, shall be construed as relating to standard time as used in Zimbabwe, that is to say, two hours in advance of Greenwich Mean Time.

2. Where in an enactment a period of time is expressed to begin on, or to be reckoned from, a particular day, that day shall not be included in the period.

3. Where in an enactment a period of time is expressed to end on, or to be reckoned to, a particular day, that day shall be included in the period.

4. Where the time limited by an enactment for the doing of any thing expires or falls upon a Saturday, a Sunday or a public holiday, the time so limited shall extend to and the thing may be done on the first following day that is not a Saturday, a Sunday or a public holiday.”

The clear meaning of section 33(1) to (4) of the Interpretation Act is as follows:

(i) Subsection one spells out that section 33 defines any reference to time in any enactment in Zimbabwe.

(ii) Sub-section two excludes the day on which the event triggering the reckoning of time occurred, meaning the reckoning of time starts from the next day.

(iii) Subsection three includes the last day of the stated period in the reckoning of time.

(iv) Sub section four extends the period if the last day falls on a Saturday, a Sunday, or a public holiday, to the next day which is not a Saturday, a Sunday, or a public holiday.

The inclusion of sub-section four, and its providing for extension if the period expires on a Saturday, a Sunday or a public holiday means Saturdays, Sundays, and public holidays are included in the reckoning of time.

This interpretation is confirmed in the case of Makuwaza v National Railways of Zimbabwe 1997 (2) ZLR 453 (S)…, where McNALLY JA said:

“It was conceded on the understanding that the period from 10 May to 26 May was less than fourteen days if one excludes Saturdays, Sundays, and public holidays.

That may be so, but, on what basis does one exclude those days?

The Interpretation Act [Chapter 1:01] does not allow it. The Labour Relations (Settlement of Disputes) Regulations (S.I.30 of 1993) do not authorize it.

It is only permitted in matters before the High Court and Supreme Court because the Rules of those courts specifically say so (Rule 4A and Rule 1 respectively).”

See also Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC)…,.

When the provisions of section 46(19)(c) of the Electoral Act are construed in terms of section 33 of the Interpretation Act, it becomes clear that the day on which the appellant is advised of the rejection of his nomination papers is not included. The reckoning of the four day period starts on the following day and ends on the fourth day - if the fourth day falls on a day other than a Saturday, a Sunday, or a public holiday.

If the fourth day falls on a Saturday, a Sunday, or a public holiday, the period then expires on the following day which is not a Saturday, a Sunday, or a public holiday.

The ordinary meaning of a “day” includes all days.

If the legislature had intended the period to only include business days they would have said so.

The provisions of section 33 of the Interpretation Act are consistent with the provisions of section 46(19)(c) of the Electoral Act.

The interpretation in terms of section 33 of the Interpretation Act is also consistent with the contextual meaning of section 46(19)(c) of the Electoral Act [Chapter 2:13] which 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.”

Section 46(19)(b) of the Electoral Act [Chapter 2:13] provides that the decision of a judge of the Electoral Court is final as it shall not be the subject of an appeal.

The Nomination Court sits to nominate candidates for an election on a date already announced. In this case, the elections will be held on the 29th March 2008. The noting of an appeal, and its hearing, are therefore set within the urgency dictated by the count down towards the election date. Ballot papers must be prepared after the determination of the appeal as the appellant's name must appear on the ballot papers if his appeal is upheld.

That, in my view, explains why the reckoning of time should include Saturdays, Sundays, and public holidays.

In this case, the four day period excludes the 15th February 2008 when the appellant was advised of the rejection of his nomination. It starts on Saturday 16 February and ends on Tuesday 19 February 2008.

As the last day is a business day there is no room for extension.

It must also be stated that the Electoral Court is a creature of statute. Its jurisdiction is restricted to what is provided in the Electoral Act - which does not provide for condonation. It therefore cannot condone the appellant's failure to comply with the provisions of section 46(19)(c) of the Electoral Act.

Electoral cases under the amended Electoral Act call for careful reading on the part of legal practitioners handling these cases.

The appellant and his lawyers could have genuinely believed that the period excluded weekends. There will therefore be no order of costs against the appellant.

In the result, the appellants appeal is dismissed with no order as to costs.

Appeal, Leave to Appeal re: Approach and the Right of Appeal iro Electoral Proceedings

The appellant and the fourth and fifth respondents are aspiring Parliamentary candidates. The appellant's nomination papers were rejected while those of the fourth and fifth respondents were accepted by the first respondent.

The second respondent is the Electoral Commission responsible for conducting elections in Zimbabwe. The third respondent is the Minister responsible for the administration of the Electoral Act [Chapter 2:13] and the Zimbabwe Electoral Commission Act [Chapter 2:12], herein after called the Electoral Act, and the Zimbabwe Electoral Commission Act.

The brief facts leading to this appeal are;

That the appellant lodged his nomination papers with the first respondent who rejected them because seven of the appellant's nominators' names could not be found on the voters roll. He is aggrieved because his nominators were registered voters who had, according to certificates of registration attached to the appeal, registered between the 15th November 2007 and 13th February 2008.

The dates of their registration explains why their names are not on the voters roll.

This, however, does not disentitle a nominator from nominating a candidate as the proviso to section 46(1)(a) of the Electoral Act [Chapter 2:13] entitles the aspiring candidate to prove his nominator's eligibility by producing their voters registration certificates.

The appellant, believing his nomination to have been unfairly rejected, appealed to this court on the 20th February 2008. The Nomination Court had rejected his papers on the 15th February 2008.

Counsel for the second respondent raised two points in limine -

(a)...,.

(b) That the appellant's appeal was noted out of time....,.

In respect of the second point in limine, counsel for the second respondent submitted that an appeal in terms of section 46(19)(b) of the Electoral Act [Chapter 2:13] must be lodged with the Electoral Court within four days of the rejection of the appellant's nomination.

He said, in this case, the appeal should have been lodged by the 19th February 2008.

He based his interpretation of section 46(19)(c) of the Electoral Act and on section 33(2), (3) and (4) of the Interpretation Act [Chapter 1:01] hereinafter referred to as the Interpretation Act.

In his response, counsel for the appellant submitted that the appeal was lodged in time as Saturdays and Sundays should not be included in the reckoning of time. He referred the Court to Order 1 Rule 4A of the High Court Rules.

He, in the alternative, submitted that the ordinary meaning of a day excludes Saturdays, Sundays and public holidays.

Counsel for the second respondent, in response, submitted that the ordinary meaning of a 'day' includes Saturdays, Sundays, and public holidays, as a 'day' means a day and cannot exclude other days.

I agree with counsel for the second respondent's construction as it accords with the literal meaning of the word 'day'. That is why the name of each day of the week ends with the suffix “day”. That construction is supported by case law.

In the case of Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC)…, GUBBAY JA said;

“Rule 30(a) lays down that where leave to appeal is not necessary, as in this case, an appeal is properly entered by serving Notice of Appeal 'within twenty-one days of the day of the judgment appealed against'.

Does the period include 'none-business' days?

There is no doubt that it does.

First, the ordinary meaning of the word 'days' embraces both business and none-business days. If it were intended to exclude non-business days it would have been a simple matter to have used the expression 'twenty-one business days.'”

In the case of Kombayi v Berkhout 1988 (1) ZLR 53 (SC)…, KORSAH JA, referring with approval to Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC) said:

“This court has repeated ad nauseum that the calculation of time for lodging of appeals was based on ordinary days and not court days.”

Words in a statute should be interpreted in accordance with the definition usually found in the definition or interpretation section of that statute. In the absence of a definition for the words to be interpreted one has to look to the Interpretation Act for assistance in interpreting words in a statute.

In relying on the aforementioned, one can also invoke the general rules of interpretation provided it would not be inconsistent with the definition provided in the Act or the Interpretation Act.

Section 2 of the Interpretation Act [Chapter 1:01] provides as follows:-

“(1) The provisions of this Act shall extend and apply to every enactment as defined in this Act, including this Act, which was in force in Zimbabwe immediately before the 1st November 1962, or thereafter comes into force in Zimbabwe, except in so far as any such provisions -

(a) Are inconsistent with the intention or object of such enactment;

(b) Would give to any word, expression, or provision of such an enactment an interpretation inconsistent with the context; or

(c) Are in such enactment declared not applicable thereto.

(2) Nothing in this Act shall exclude the application to any enactment of any rule of construction applicable thereto and not inconsistent with this Act.”

The word “enactment” is defined in section 3 of the Interpretation Act, and means -

(a) “any Act;

(b) Any statute included in the revised edition of the laws of Zimbabwe prepared under an Act.”

There is no doubt that the Electoral Act falls under this definition and should therefore be construed according to the provisions of the Interpretation Act as the words “day” or “days” are not defined under the Electoral Act.

Counsel for the appellant's submission that the time should be reckoned in terms of the High Court rules could have been premised on the provisions of section 165(4) of the Electoral Act which provides as follows -

“Until rules of court for the Electoral Court are made in terms of this section, the rules of the High Court shall apply, with such modifications as appear to the Electoral Court to be necessary, with respect to election petitions and other matters over which the Electoral Court has jurisdiction.”

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.

Rule 4A of the High Court Rules provides as follows -

“Unless a contrary intention appears, where anything is required by these rules, or in any order of the court, to be done within a particular number of days or hours, a Saturday, Sunday, or public holiday shall not be reckoned as part of such period.”

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.

In this case, the words 'day' or 'days' are not defined in the Electoral Act. They are, however, provided for in section 33 of the Interpretation Act, which provides as follows:-

“1. Words in an enactment relating to time, and references therein to a point of time, shall be construed as relating to standard time as used in Zimbabwe, that is to say, two hours in advance of Greenwich Mean Time.

2. Where in an enactment a period of time is expressed to begin on, or to be reckoned from, a particular day, that day shall not be included in the period.

3. Where in an enactment a period of time is expressed to end on, or to be reckoned to, a particular day, that day shall be included in the period.

4. Where the time limited by an enactment for the doing of any thing expires or falls upon a Saturday, a Sunday or a public holiday, the time so limited shall extend to and the thing may be done on the first following day that is not a Saturday, a Sunday or a public holiday.”

The clear meaning of section 33(1) to (4) of the Interpretation Act is as follows:

(i) Subsection one spells out that section 33 defines any reference to time in any enactment in Zimbabwe.

(ii) Sub-section two excludes the day on which the event triggering the reckoning of time occurred, meaning the reckoning of time starts from the next day.

(iii) Subsection three includes the last day of the stated period in the reckoning of time.

(iv) Sub section four extends the period if the last day falls on a Saturday, a Sunday, or a public holiday, to the next day which is not a Saturday, a Sunday, or a public holiday.

The inclusion of sub-section four, and its providing for extension if the period expires on a Saturday, a Sunday or a public holiday means Saturdays, Sundays, and public holidays are included in the reckoning of time.

This interpretation is confirmed in the case of Makuwaza v National Railways of Zimbabwe 1997 (2) ZLR 453 (S)…, where McNALLY JA said:

“It was conceded on the understanding that the period from 10 May to 26 May was less than fourteen days if one excludes Saturdays, Sundays, and public holidays.

That may be so, but, on what basis does one exclude those days?

The Interpretation Act [Chapter 1:01] does not allow it. The Labour Relations (Settlement of Disputes) Regulations (S.I.30 of 1993) do not authorize it.

It is only permitted in matters before the High Court and Supreme Court because the Rules of those courts specifically say so (Rule 4A and Rule 1 respectively).”

See also Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC)…,.

When the provisions of section 46(19)(c) of the Electoral Act are construed in terms of section 33 of the Interpretation Act, it becomes clear that the day on which the appellant is advised of the rejection of his nomination papers is not included. The reckoning of the four day period starts on the following day and ends on the fourth day - if the fourth day falls on a day other than a Saturday, a Sunday, or a public holiday.

If the fourth day falls on a Saturday, a Sunday, or a public holiday, the period then expires on the following day which is not a Saturday, a Sunday, or a public holiday.

The ordinary meaning of a “day” includes all days.

If the legislature had intended the period to only include business days they would have said so.

The provisions of section 33 of the Interpretation Act are consistent with the provisions of section 46(19)(c) of the Electoral Act.

The interpretation in terms of section 33 of the Interpretation Act is also consistent with the contextual meaning of section 46(19)(c) of the Electoral Act [Chapter 2:13] which 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.”

Section 46(19)(b) of the Electoral Act [Chapter 2:13] provides that the decision of a judge of the Electoral Court is final as it shall not be the subject of an appeal.

The Nomination Court sits to nominate candidates for an election on a date already announced. In this case, the elections will be held on the 29th March 2008. The noting of an appeal, and its hearing, are therefore set within the urgency dictated by the count down towards the election date. Ballot papers must be prepared after the determination of the appeal as the appellant's name must appear on the ballot papers if his appeal is upheld.

That, in my view, explains why the reckoning of time should include Saturdays, Sundays, and public holidays.

In this case, the four day period excludes the 15th February 2008 when the appellant was advised of the rejection of his nomination. It starts on Saturday 16 February and ends on Tuesday 19 February 2008.

As the last day is a business day there is no room for extension.

It must also be stated that the Electoral Court is a creature of statute. Its jurisdiction is restricted to what is provided in the Electoral Act - which does not provide for condonation. It therefore cannot condone the appellant's failure to comply with the provisions of section 46(19)(c) of the Electoral Act.

Electoral cases under the amended Electoral Act call for careful reading on the part of legal practitioners handling these cases.

The appellant and his lawyers could have genuinely believed that the period excluded weekends. There will therefore be no order of costs against the appellant.

In the result, the appellants appeal is dismissed with no order as to costs.

Rules of Court re: Approach iro Dies Induciae, Time Limits and the Reckoning of Time


The appellant and the fourth and fifth respondents are aspiring Parliamentary candidates. The appellant's nomination papers were rejected while those of the fourth and fifth respondents were accepted by the first respondent.

The second respondent is the Electoral Commission responsible for conducting elections in Zimbabwe. The third respondent is the Minister responsible for the administration of the Electoral Act [Chapter 2:13] and the Zimbabwe Electoral Commission Act [Chapter 2:12], herein after called the Electoral Act, and the Zimbabwe Electoral Commission Act.

The brief facts leading to this appeal are;

That the appellant lodged his nomination papers with the first respondent who rejected them because seven of the appellant's nominators' names could not be found on the voters roll. He is aggrieved because his nominators were registered voters who had, according to certificates of registration attached to the appeal, registered between the 15th November 2007 and 13th February 2008.

The dates of their registration explains why their names are not on the voters roll.

This, however, does not disentitle a nominator from nominating a candidate as the proviso to section 46(1)(a) of the Electoral Act [Chapter 2:13] entitles the aspiring candidate to prove his nominator's eligibility by producing their voters registration certificates.

The appellant, believing his nomination to have been unfairly rejected, appealed to this court on the 20th February 2008. The Nomination Court had rejected his papers on the 15th February 2008.

Counsel for the second respondent raised two points in limine -

(a)...,.

(b) That the appellant's appeal was noted out of time....,.

In respect of the second point in limine, counsel for the second respondent submitted that an appeal in terms of section 46(19)(b) of the Electoral Act [Chapter 2:13] must be lodged with the Electoral Court within four days of the rejection of the appellant's nomination.

He said, in this case, the appeal should have been lodged by the 19th February 2008.

He based his interpretation of section 46(19)(c) of the Electoral Act and on section 33(2), (3) and (4) of the Interpretation Act [Chapter 1:01] hereinafter referred to as the Interpretation Act.

In his response, counsel for the appellant submitted that the appeal was lodged in time as Saturdays and Sundays should not be included in the reckoning of time. He referred the Court to Order 1 Rule 4A of the High Court Rules.

He, in the alternative, submitted that the ordinary meaning of a day excludes Saturdays, Sundays and public holidays.

Counsel for the second respondent, in response, submitted that the ordinary meaning of a 'day' includes Saturdays, Sundays, and public holidays, as a 'day' means a day and cannot exclude other days.

I agree with counsel for the second respondent's construction as it accords with the literal meaning of the word 'day'. That is why the name of each day of the week ends with the suffix “day”. That construction is supported by case law.

In the case of Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC)…, GUBBAY JA said;

“Rule 30(a) lays down that where leave to appeal is not necessary, as in this case, an appeal is properly entered by serving Notice of Appeal 'within twenty-one days of the day of the judgment appealed against'.

Does the period include 'none-business' days?

There is no doubt that it does.

First, the ordinary meaning of the word 'days' embraces both business and none-business days. If it were intended to exclude non-business days it would have been a simple matter to have used the expression 'twenty-one business days.'”

In the case of Kombayi v Berkhout 1988 (1) ZLR 53 (SC)…, KORSAH JA, referring with approval to Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC) said:

“This court has repeated ad nauseum that the calculation of time for lodging of appeals was based on ordinary days and not court days.”

Words in a statute should be interpreted in accordance with the definition usually found in the definition or interpretation section of that statute. In the absence of a definition for the words to be interpreted one has to look to the Interpretation Act for assistance in interpreting words in a statute.

In relying on the aforementioned, one can also invoke the general rules of interpretation provided it would not be inconsistent with the definition provided in the Act or the Interpretation Act.

Section 2 of the Interpretation Act [Chapter 1:01] provides as follows:-

“(1) The provisions of this Act shall extend and apply to every enactment as defined in this Act, including this Act, which was in force in Zimbabwe immediately before the 1st November 1962, or thereafter comes into force in Zimbabwe, except in so far as any such provisions -

(a) Are inconsistent with the intention or object of such enactment;

(b) Would give to any word, expression, or provision of such an enactment an interpretation inconsistent with the context; or

(c) Are in such enactment declared not applicable thereto.

(2) Nothing in this Act shall exclude the application to any enactment of any rule of construction applicable thereto and not inconsistent with this Act.”

The word “enactment” is defined in section 3 of the Interpretation Act, and means -

(a) “any Act;

(b) Any statute included in the revised edition of the laws of Zimbabwe prepared under an Act.”

There is no doubt that the Electoral Act falls under this definition and should therefore be construed according to the provisions of the Interpretation Act as the words “day” or “days” are not defined under the Electoral Act.

Counsel for the appellant's submission that the time should be reckoned in terms of the High Court rules could have been premised on the provisions of section 165(4) of the Electoral Act which provides as follows -

“Until rules of court for the Electoral Court are made in terms of this section, the rules of the High Court shall apply, with such modifications as appear to the Electoral Court to be necessary, with respect to election petitions and other matters over which the Electoral Court has jurisdiction.”

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.

Rule 4A of the High Court Rules provides as follows -

“Unless a contrary intention appears, where anything is required by these rules, or in any order of the court, to be done within a particular number of days or hours, a Saturday, Sunday, or public holiday shall not be reckoned as part of such period.”

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.

In this case, the words 'day' or 'days' are not defined in the Electoral Act. They are, however, provided for in section 33 of the Interpretation Act, which provides as follows:-

“1. Words in an enactment relating to time, and references therein to a point of time, shall be construed as relating to standard time as used in Zimbabwe, that is to say, two hours in advance of Greenwich Mean Time.

2. Where in an enactment a period of time is expressed to begin on, or to be reckoned from, a particular day, that day shall not be included in the period.

3. Where in an enactment a period of time is expressed to end on, or to be reckoned to, a particular day, that day shall be included in the period.

4. Where the time limited by an enactment for the doing of any thing expires or falls upon a Saturday, a Sunday or a public holiday, the time so limited shall extend to and the thing may be done on the first following day that is not a Saturday, a Sunday or a public holiday.”

The clear meaning of section 33(1) to (4) of the Interpretation Act is as follows:

(i) Subsection one spells out that section 33 defines any reference to time in any enactment in Zimbabwe.

(ii) Sub-section two excludes the day on which the event triggering the reckoning of time occurred, meaning the reckoning of time starts from the next day.

(iii) Subsection three includes the last day of the stated period in the reckoning of time.

(iv) Sub section four extends the period if the last day falls on a Saturday, a Sunday, or a public holiday, to the next day which is not a Saturday, a Sunday, or a public holiday.

The inclusion of sub-section four, and its providing for extension if the period expires on a Saturday, a Sunday or a public holiday means Saturdays, Sundays, and public holidays are included in the reckoning of time.

This interpretation is confirmed in the case of Makuwaza v National Railways of Zimbabwe 1997 (2) ZLR 453 (S)…, where McNALLY JA said:

“It was conceded on the understanding that the period from 10 May to 26 May was less than fourteen days if one excludes Saturdays, Sundays, and public holidays.

That may be so, but, on what basis does one exclude those days?

The Interpretation Act [Chapter 1:01] does not allow it. The Labour Relations (Settlement of Disputes) Regulations (S.I.30 of 1993) do not authorize it.

It is only permitted in matters before the High Court and Supreme Court because the Rules of those courts specifically say so (Rule 4A and Rule 1 respectively).”

See also Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC)…,.

When the provisions of section 46(19)(c) of the Electoral Act are construed in terms of section 33 of the Interpretation Act, it becomes clear that the day on which the appellant is advised of the rejection of his nomination papers is not included. The reckoning of the four day period starts on the following day and ends on the fourth day - if the fourth day falls on a day other than a Saturday, a Sunday, or a public holiday.

If the fourth day falls on a Saturday, a Sunday, or a public holiday, the period then expires on the following day which is not a Saturday, a Sunday, or a public holiday.

The ordinary meaning of a “day” includes all days.

If the legislature had intended the period to only include business days they would have said so.

The provisions of section 33 of the Interpretation Act are consistent with the provisions of section 46(19)(c) of the Electoral Act.

The interpretation in terms of section 33 of the Interpretation Act is also consistent with the contextual meaning of section 46(19)(c) of the Electoral Act [Chapter 2:13] which 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.”

Section 46(19)(b) of the Electoral Act [Chapter 2:13] provides that the decision of a judge of the Electoral Court is final as it shall not be the subject of an appeal.

The Nomination Court sits to nominate candidates for an election on a date already announced. In this case, the elections will be held on the 29th March 2008. The noting of an appeal, and its hearing, are therefore set within the urgency dictated by the count down towards the election date. Ballot papers must be prepared after the determination of the appeal as the appellant's name must appear on the ballot papers if his appeal is upheld.

That, in my view, explains why the reckoning of time should include Saturdays, Sundays, and public holidays.

In this case, the four day period excludes the 15th February 2008 when the appellant was advised of the rejection of his nomination. It starts on Saturday 16 February and ends on Tuesday 19 February 2008.

As the last day is a business day there is no room for extension.

It must also be stated that the Electoral Court is a creature of statute. Its jurisdiction is restricted to what is provided in the Electoral Act - which does not provide for condonation. It therefore cannot condone the appellant's failure to comply with the provisions of section 46(19)(c) of the Electoral Act.

Electoral cases under the amended Electoral Act call for careful reading on the part of legal practitioners handling these cases.

The appellant and his lawyers could have genuinely believed that the period excluded weekends. There will therefore be no order of costs against the appellant.

In the result, the appellants appeal is dismissed with no order as to costs.

Rules of Construction or Interpretation re: Approach iro Dies Induciae, Time Limits and the Reckoning of Time


The appellant and the fourth and fifth respondents are aspiring Parliamentary candidates. The appellant's nomination papers were rejected while those of the fourth and fifth respondents were accepted by the first respondent.

The second respondent is the Electoral Commission responsible for conducting elections in Zimbabwe. The third respondent is the Minister responsible for the administration of the Electoral Act [Chapter 2:13] and the Zimbabwe Electoral Commission Act [Chapter 2:12], herein after called the Electoral Act, and the Zimbabwe Electoral Commission Act.

The brief facts leading to this appeal are;

That the appellant lodged his nomination papers with the first respondent who rejected them because seven of the appellant's nominators' names could not be found on the voters roll. He is aggrieved because his nominators were registered voters who had, according to certificates of registration attached to the appeal, registered between the 15th November 2007 and 13th February 2008.

The dates of their registration explains why their names are not on the voters roll.

This, however, does not disentitle a nominator from nominating a candidate as the proviso to section 46(1)(a) of the Electoral Act [Chapter 2:13] entitles the aspiring candidate to prove his nominator's eligibility by producing their voters registration certificates.

The appellant, believing his nomination to have been unfairly rejected, appealed to this court on the 20th February 2008. The Nomination Court had rejected his papers on the 15th February 2008.

Counsel for the second respondent raised two points in limine -

(a)...,.

(b) That the appellant's appeal was noted out of time....,.

In respect of the second point in limine, counsel for the second respondent submitted that an appeal in terms of section 46(19)(b) of the Electoral Act [Chapter 2:13] must be lodged with the Electoral Court within four days of the rejection of the appellant's nomination.

He said, in this case, the appeal should have been lodged by the 19th February 2008.

He based his interpretation of section 46(19)(c) of the Electoral Act and on section 33(2), (3) and (4) of the Interpretation Act [Chapter 1:01] hereinafter referred to as the Interpretation Act.

In his response, counsel for the appellant submitted that the appeal was lodged in time as Saturdays and Sundays should not be included in the reckoning of time. He referred the Court to Order 1 Rule 4A of the High Court Rules.

He, in the alternative, submitted that the ordinary meaning of a day excludes Saturdays, Sundays and public holidays.

Counsel for the second respondent, in response, submitted that the ordinary meaning of a 'day' includes Saturdays, Sundays, and public holidays, as a 'day' means a day and cannot exclude other days.

I agree with counsel for the second respondent's construction as it accords with the literal meaning of the word 'day'. That is why the name of each day of the week ends with the suffix “day”. That construction is supported by case law.

In the case of Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC)…, GUBBAY JA said;

“Rule 30(a) lays down that where leave to appeal is not necessary, as in this case, an appeal is properly entered by serving Notice of Appeal 'within twenty-one days of the day of the judgment appealed against'.

Does the period include 'none-business' days?

There is no doubt that it does.

First, the ordinary meaning of the word 'days' embraces both business and none-business days. If it were intended to exclude non-business days it would have been a simple matter to have used the expression 'twenty-one business days.'”

In the case of Kombayi v Berkhout 1988 (1) ZLR 53 (SC)…, KORSAH JA, referring with approval to Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC) said:

“This court has repeated ad nauseum that the calculation of time for lodging of appeals was based on ordinary days and not court days.”

Words in a statute should be interpreted in accordance with the definition usually found in the definition or interpretation section of that statute. In the absence of a definition for the words to be interpreted one has to look to the Interpretation Act for assistance in interpreting words in a statute.

In relying on the aforementioned, one can also invoke the general rules of interpretation provided it would not be inconsistent with the definition provided in the Act or the Interpretation Act.

Section 2 of the Interpretation Act [Chapter 1:01] provides as follows:-

“(1) The provisions of this Act shall extend and apply to every enactment as defined in this Act, including this Act, which was in force in Zimbabwe immediately before the 1st November 1962, or thereafter comes into force in Zimbabwe, except in so far as any such provisions -

(a) Are inconsistent with the intention or object of such enactment;

(b) Would give to any word, expression, or provision of such an enactment an interpretation inconsistent with the context; or

(c) Are in such enactment declared not applicable thereto.

(2) Nothing in this Act shall exclude the application to any enactment of any rule of construction applicable thereto and not inconsistent with this Act.”

The word “enactment” is defined in section 3 of the Interpretation Act, and means -

(a) “any Act;

(b) Any statute included in the revised edition of the laws of Zimbabwe prepared under an Act.”

There is no doubt that the Electoral Act falls under this definition and should therefore be construed according to the provisions of the Interpretation Act as the words “day” or “days” are not defined under the Electoral Act.

Counsel for the appellant's submission that the time should be reckoned in terms of the High Court rules could have been premised on the provisions of section 165(4) of the Electoral Act which provides as follows -

“Until rules of court for the Electoral Court are made in terms of this section, the rules of the High Court shall apply, with such modifications as appear to the Electoral Court to be necessary, with respect to election petitions and other matters over which the Electoral Court has jurisdiction.”

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.

Rule 4A of the High Court Rules provides as follows -

“Unless a contrary intention appears, where anything is required by these rules, or in any order of the court, to be done within a particular number of days or hours, a Saturday, Sunday, or public holiday shall not be reckoned as part of such period.”

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.

In this case, the words 'day' or 'days' are not defined in the Electoral Act. They are, however, provided for in section 33 of the Interpretation Act, which provides as follows:-

“1. Words in an enactment relating to time, and references therein to a point of time, shall be construed as relating to standard time as used in Zimbabwe, that is to say, two hours in advance of Greenwich Mean Time.

2. Where in an enactment a period of time is expressed to begin on, or to be reckoned from, a particular day, that day shall not be included in the period.

3. Where in an enactment a period of time is expressed to end on, or to be reckoned to, a particular day, that day shall be included in the period.

4. Where the time limited by an enactment for the doing of any thing expires or falls upon a Saturday, a Sunday or a public holiday, the time so limited shall extend to and the thing may be done on the first following day that is not a Saturday, a Sunday or a public holiday.”

The clear meaning of section 33(1) to (4) of the Interpretation Act is as follows:

(i) Subsection one spells out that section 33 defines any reference to time in any enactment in Zimbabwe.

(ii) Sub-section two excludes the day on which the event triggering the reckoning of time occurred, meaning the reckoning of time starts from the next day.

(iii) Subsection three includes the last day of the stated period in the reckoning of time.

(iv) Sub section four extends the period if the last day falls on a Saturday, a Sunday, or a public holiday, to the next day which is not a Saturday, a Sunday, or a public holiday.

The inclusion of sub-section four, and its providing for extension if the period expires on a Saturday, a Sunday or a public holiday means Saturdays, Sundays, and public holidays are included in the reckoning of time.

This interpretation is confirmed in the case of Makuwaza v National Railways of Zimbabwe 1997 (2) ZLR 453 (S)…, where McNALLY JA said:

“It was conceded on the understanding that the period from 10 May to 26 May was less than fourteen days if one excludes Saturdays, Sundays, and public holidays.

That may be so, but, on what basis does one exclude those days?

The Interpretation Act [Chapter 1:01] does not allow it. The Labour Relations (Settlement of Disputes) Regulations (S.I.30 of 1993) do not authorize it.

It is only permitted in matters before the High Court and Supreme Court because the Rules of those courts specifically say so (Rule 4A and Rule 1 respectively).”

See also Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC)…,.

When the provisions of section 46(19)(c) of the Electoral Act are construed in terms of section 33 of the Interpretation Act, it becomes clear that the day on which the appellant is advised of the rejection of his nomination papers is not included. The reckoning of the four day period starts on the following day and ends on the fourth day - if the fourth day falls on a day other than a Saturday, a Sunday, or a public holiday.

If the fourth day falls on a Saturday, a Sunday, or a public holiday, the period then expires on the following day which is not a Saturday, a Sunday, or a public holiday.

The ordinary meaning of a “day” includes all days.

If the legislature had intended the period to only include business days they would have said so.

The provisions of section 33 of the Interpretation Act are consistent with the provisions of section 46(19)(c) of the Electoral Act.

The interpretation in terms of section 33 of the Interpretation Act is also consistent with the contextual meaning of section 46(19)(c) of the Electoral Act [Chapter 2:13] which 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.”

Section 46(19)(b) of the Electoral Act [Chapter 2:13] provides that the decision of a judge of the Electoral Court is final as it shall not be the subject of an appeal.

The Nomination Court sits to nominate candidates for an election on a date already announced. In this case, the elections will be held on the 29th March 2008. The noting of an appeal, and its hearing, are therefore set within the urgency dictated by the count down towards the election date. Ballot papers must be prepared after the determination of the appeal as the appellant's name must appear on the ballot papers if his appeal is upheld.

That, in my view, explains why the reckoning of time should include Saturdays, Sundays, and public holidays.

In this case, the four day period excludes the 15th February 2008 when the appellant was advised of the rejection of his nomination. It starts on Saturday 16 February and ends on Tuesday 19 February 2008.

As the last day is a business day there is no room for extension.

It must also be stated that the Electoral Court is a creature of statute. Its jurisdiction is restricted to what is provided in the Electoral Act - which does not provide for condonation. It therefore cannot condone the appellant's failure to comply with the provisions of section 46(19)(c) of the Electoral Act.

Electoral cases under the amended Electoral Act call for careful reading on the part of legal practitioners handling these cases.

The appellant and his lawyers could have genuinely believed that the period excluded weekends. There will therefore be no order of costs against the appellant.

In the result, the appellants appeal is dismissed with no order as to costs.

Rules of Construction or Interpretation re: Approach


The appellant and the fourth and fifth respondents are aspiring Parliamentary candidates. The appellant's nomination papers were rejected while those of the fourth and fifth respondents were accepted by the first respondent.

The second respondent is the Electoral Commission responsible for conducting elections in Zimbabwe. The third respondent is the Minister responsible for the administration of the Electoral Act [Chapter 2:13] and the Zimbabwe Electoral Commission Act [Chapter 2:12], herein after called the Electoral Act, and the Zimbabwe Electoral Commission Act.

The brief facts leading to this appeal are;

That the appellant lodged his nomination papers with the first respondent who rejected them because seven of the appellant's nominators' names could not be found on the voters roll. He is aggrieved because his nominators were registered voters who had, according to certificates of registration attached to the appeal, registered between the 15th November 2007 and 13th February 2008.

The dates of their registration explains why their names are not on the voters roll.

This, however, does not disentitle a nominator from nominating a candidate as the proviso to section 46(1)(a) of the Electoral Act [Chapter 2:13] entitles the aspiring candidate to prove his nominator's eligibility by producing their voters registration certificates.

The appellant, believing his nomination to have been unfairly rejected, appealed to this court on the 20th February 2008. The Nomination Court had rejected his papers on the 15th February 2008.

Counsel for the second respondent raised two points in limine -

(a)...,.

(b) That the appellant's appeal was noted out of time....,.

In respect of the second point in limine, counsel for the second respondent submitted that an appeal in terms of section 46(19)(b) of the Electoral Act [Chapter 2:13] must be lodged with the Electoral Court within four days of the rejection of the appellant's nomination.

He said, in this case, the appeal should have been lodged by the 19th February 2008.

He based his interpretation of section 46(19)(c) of the Electoral Act and on section 33(2), (3) and (4) of the Interpretation Act [Chapter 1:01] hereinafter referred to as the Interpretation Act.

In his response, counsel for the appellant submitted that the appeal was lodged in time as Saturdays and Sundays should not be included in the reckoning of time. He referred the Court to Order 1 Rule 4A of the High Court Rules.

He, in the alternative, submitted that the ordinary meaning of a day excludes Saturdays, Sundays and public holidays.

Counsel for the second respondent, in response, submitted that the ordinary meaning of a 'day' includes Saturdays, Sundays, and public holidays, as a 'day' means a day and cannot exclude other days.

I agree with counsel for the second respondent's construction as it accords with the literal meaning of the word 'day'. That is why the name of each day of the week ends with the suffix “day”. That construction is supported by case law.

In the case of Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC)…, GUBBAY JA said;

“Rule 30(a) lays down that where leave to appeal is not necessary, as in this case, an appeal is properly entered by serving Notice of Appeal 'within twenty-one days of the day of the judgment appealed against'.

Does the period include 'none-business' days?

There is no doubt that it does.

First, the ordinary meaning of the word 'days' embraces both business and none-business days. If it were intended to exclude non-business days it would have been a simple matter to have used the expression 'twenty-one business days.'”

In the case of Kombayi v Berkhout 1988 (1) ZLR 53 (SC)…, KORSAH JA, referring with approval to Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC) said:

“This court has repeated ad nauseum that the calculation of time for lodging of appeals was based on ordinary days and not court days.”

Words in a statute should be interpreted in accordance with the definition usually found in the definition or interpretation section of that statute. In the absence of a definition for the words to be interpreted one has to look to the Interpretation Act for assistance in interpreting words in a statute.

In relying on the aforementioned, one can also invoke the general rules of interpretation provided it would not be inconsistent with the definition provided in the Act or the Interpretation Act.

Section 2 of the Interpretation Act [Chapter 1:01] provides as follows:-

“(1) The provisions of this Act shall extend and apply to every enactment as defined in this Act, including this Act, which was in force in Zimbabwe immediately before the 1st November 1962, or thereafter comes into force in Zimbabwe, except in so far as any such provisions -

(a) Are inconsistent with the intention or object of such enactment;

(b) Would give to any word, expression, or provision of such an enactment an interpretation inconsistent with the context; or

(c) Are in such enactment declared not applicable thereto.

(2) Nothing in this Act shall exclude the application to any enactment of any rule of construction applicable thereto and not inconsistent with this Act.”

The word “enactment” is defined in section 3 of the Interpretation Act, and means -

(a) “any Act;

(b) Any statute included in the revised edition of the laws of Zimbabwe prepared under an Act.”

There is no doubt that the Electoral Act falls under this definition and should therefore be construed according to the provisions of the Interpretation Act as the words “day” or “days” are not defined under the Electoral Act.

Counsel for the appellant's submission that the time should be reckoned in terms of the High Court rules could have been premised on the provisions of section 165(4) of the Electoral Act which provides as follows -

“Until rules of court for the Electoral Court are made in terms of this section, the rules of the High Court shall apply, with such modifications as appear to the Electoral Court to be necessary, with respect to election petitions and other matters over which the Electoral Court has jurisdiction.”

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.

Rule 4A of the High Court Rules provides as follows -

“Unless a contrary intention appears, where anything is required by these rules, or in any order of the court, to be done within a particular number of days or hours, a Saturday, Sunday, or public holiday shall not be reckoned as part of such period.”

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.

In this case, the words 'day' or 'days' are not defined in the Electoral Act. They are, however, provided for in section 33 of the Interpretation Act, which provides as follows:-

“1. Words in an enactment relating to time, and references therein to a point of time, shall be construed as relating to standard time as used in Zimbabwe, that is to say, two hours in advance of Greenwich Mean Time.

2. Where in an enactment a period of time is expressed to begin on, or to be reckoned from, a particular day, that day shall not be included in the period.

3. Where in an enactment a period of time is expressed to end on, or to be reckoned to, a particular day, that day shall be included in the period.

4. Where the time limited by an enactment for the doing of any thing expires or falls upon a Saturday, a Sunday or a public holiday, the time so limited shall extend to and the thing may be done on the first following day that is not a Saturday, a Sunday or a public holiday.”

The clear meaning of section 33(1) to (4) of the Interpretation Act is as follows:

(i) Subsection one spells out that section 33 defines any reference to time in any enactment in Zimbabwe.

(ii) Sub-section two excludes the day on which the event triggering the reckoning of time occurred, meaning the reckoning of time starts from the next day.

(iii) Subsection three includes the last day of the stated period in the reckoning of time.

(iv) Sub section four extends the period if the last day falls on a Saturday, a Sunday, or a public holiday, to the next day which is not a Saturday, a Sunday, or a public holiday.

The inclusion of sub-section four, and its providing for extension if the period expires on a Saturday, a Sunday or a public holiday means Saturdays, Sundays, and public holidays are included in the reckoning of time.

This interpretation is confirmed in the case of Makuwaza v National Railways of Zimbabwe 1997 (2) ZLR 453 (S)…, where McNALLY JA said:

“It was conceded on the understanding that the period from 10 May to 26 May was less than fourteen days if one excludes Saturdays, Sundays, and public holidays.

That may be so, but, on what basis does one exclude those days?

The Interpretation Act [Chapter 1:01] does not allow it. The Labour Relations (Settlement of Disputes) Regulations (S.I.30 of 1993) do not authorize it.

It is only permitted in matters before the High Court and Supreme Court because the Rules of those courts specifically say so (Rule 4A and Rule 1 respectively).”

See also Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC)…,.

When the provisions of section 46(19)(c) of the Electoral Act are construed in terms of section 33 of the Interpretation Act, it becomes clear that the day on which the appellant is advised of the rejection of his nomination papers is not included. The reckoning of the four day period starts on the following day and ends on the fourth day - if the fourth day falls on a day other than a Saturday, a Sunday, or a public holiday.

If the fourth day falls on a Saturday, a Sunday, or a public holiday, the period then expires on the following day which is not a Saturday, a Sunday, or a public holiday.

The ordinary meaning of a “day” includes all days.

If the legislature had intended the period to only include business days they would have said so.

The provisions of section 33 of the Interpretation Act are consistent with the provisions of section 46(19)(c) of the Electoral Act.

The interpretation in terms of section 33 of the Interpretation Act is also consistent with the contextual meaning of section 46(19)(c) of the Electoral Act [Chapter 2:13] which 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.”

Section 46(19)(b) of the Electoral Act [Chapter 2:13] provides that the decision of a judge of the Electoral Court is final as it shall not be the subject of an appeal.

The Nomination Court sits to nominate candidates for an election on a date already announced. In this case, the elections will be held on the 29th March 2008. The noting of an appeal, and its hearing, are therefore set within the urgency dictated by the count down towards the election date. Ballot papers must be prepared after the determination of the appeal as the appellant's name must appear on the ballot papers if his appeal is upheld.

That, in my view, explains why the reckoning of time should include Saturdays, Sundays, and public holidays.

In this case, the four day period excludes the 15th February 2008 when the appellant was advised of the rejection of his nomination. It starts on Saturday 16 February and ends on Tuesday 19 February 2008.

As the last day is a business day there is no room for extension.

It must also be stated that the Electoral Court is a creature of statute. Its jurisdiction is restricted to what is provided in the Electoral Act - which does not provide for condonation. It therefore cannot condone the appellant's failure to comply with the provisions of section 46(19)(c) of the Electoral Act.

Electoral cases under the amended Electoral Act call for careful reading on the part of legal practitioners handling these cases.

The appellant and his lawyers could have genuinely believed that the period excluded weekends. There will therefore be no order of costs against the appellant.

In the result, the appellants appeal is dismissed with no order as to costs.

Rules of Construction or Interpretation re: Approach iro Ambiguous, Vague, Undefined Provisions and Legislative Lacuna


The appellant and the fourth and fifth respondents are aspiring Parliamentary candidates. The appellant's nomination papers were rejected while those of the fourth and fifth respondents were accepted by the first respondent.

The second respondent is the Electoral Commission responsible for conducting elections in Zimbabwe. The third respondent is the Minister responsible for the administration of the Electoral Act [Chapter 2:13] and the Zimbabwe Electoral Commission Act [Chapter 2:12], herein after called the Electoral Act, and the Zimbabwe Electoral Commission Act.

The brief facts leading to this appeal are;

That the appellant lodged his nomination papers with the first respondent who rejected them because seven of the appellant's nominators' names could not be found on the voters roll. He is aggrieved because his nominators were registered voters who had, according to certificates of registration attached to the appeal, registered between the 15th November 2007 and 13th February 2008.

The dates of their registration explains why their names are not on the voters roll.

This, however, does not disentitle a nominator from nominating a candidate as the proviso to section 46(1)(a) of the Electoral Act [Chapter 2:13] entitles the aspiring candidate to prove his nominator's eligibility by producing their voters registration certificates.

The appellant, believing his nomination to have been unfairly rejected, appealed to this court on the 20th February 2008. The Nomination Court had rejected his papers on the 15th February 2008.

Counsel for the second respondent raised two points in limine -

(a)...,.

(b) That the appellant's appeal was noted out of time....,.

In respect of the second point in limine, counsel for the second respondent submitted that an appeal in terms of section 46(19)(b) of the Electoral Act [Chapter 2:13] must be lodged with the Electoral Court within four days of the rejection of the appellant's nomination.

He said, in this case, the appeal should have been lodged by the 19th February 2008.

He based his interpretation of section 46(19)(c) of the Electoral Act and on section 33(2), (3) and (4) of the Interpretation Act [Chapter 1:01] hereinafter referred to as the Interpretation Act.

In his response, counsel for the appellant submitted that the appeal was lodged in time as Saturdays and Sundays should not be included in the reckoning of time. He referred the Court to Order 1 Rule 4A of the High Court Rules.

He, in the alternative, submitted that the ordinary meaning of a day excludes Saturdays, Sundays and public holidays.

Counsel for the second respondent, in response, submitted that the ordinary meaning of a 'day' includes Saturdays, Sundays, and public holidays, as a 'day' means a day and cannot exclude other days.

I agree with counsel for the second respondent's construction as it accords with the literal meaning of the word 'day'. That is why the name of each day of the week ends with the suffix “day”. That construction is supported by case law.

In the case of Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC)…, GUBBAY JA said;

“Rule 30(a) lays down that where leave to appeal is not necessary, as in this case, an appeal is properly entered by serving Notice of Appeal 'within twenty-one days of the day of the judgment appealed against'.

Does the period include 'none-business' days?

There is no doubt that it does.

First, the ordinary meaning of the word 'days' embraces both business and none-business days. If it were intended to exclude non-business days it would have been a simple matter to have used the expression 'twenty-one business days.'”

In the case of Kombayi v Berkhout 1988 (1) ZLR 53 (SC)…, KORSAH JA, referring with approval to Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC) said:

“This court has repeated ad nauseum that the calculation of time for lodging of appeals was based on ordinary days and not court days.”

Words in a statute should be interpreted in accordance with the definition usually found in the definition or interpretation section of that statute. In the absence of a definition for the words to be interpreted one has to look to the Interpretation Act for assistance in interpreting words in a statute.

In relying on the aforementioned, one can also invoke the general rules of interpretation provided it would not be inconsistent with the definition provided in the Act or the Interpretation Act.

Section 2 of the Interpretation Act [Chapter 1:01] provides as follows:-

“(1) The provisions of this Act shall extend and apply to every enactment as defined in this Act, including this Act, which was in force in Zimbabwe immediately before the 1st November 1962, or thereafter comes into force in Zimbabwe, except in so far as any such provisions -

(a) Are inconsistent with the intention or object of such enactment;

(b) Would give to any word, expression, or provision of such an enactment an interpretation inconsistent with the context; or

(c) Are in such enactment declared not applicable thereto.

(2) Nothing in this Act shall exclude the application to any enactment of any rule of construction applicable thereto and not inconsistent with this Act.”

The word “enactment” is defined in section 3 of the Interpretation Act, and means -

(a) “any Act;

(b) Any statute included in the revised edition of the laws of Zimbabwe prepared under an Act.”

There is no doubt that the Electoral Act falls under this definition and should therefore be construed according to the provisions of the Interpretation Act as the words “day” or “days” are not defined under the Electoral Act.

Counsel for the appellant's submission that the time should be reckoned in terms of the High Court rules could have been premised on the provisions of section 165(4) of the Electoral Act which provides as follows -

“Until rules of court for the Electoral Court are made in terms of this section, the rules of the High Court shall apply, with such modifications as appear to the Electoral Court to be necessary, with respect to election petitions and other matters over which the Electoral Court has jurisdiction.”

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.

Rule 4A of the High Court Rules provides as follows -

“Unless a contrary intention appears, where anything is required by these rules, or in any order of the court, to be done within a particular number of days or hours, a Saturday, Sunday, or public holiday shall not be reckoned as part of such period.”

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.

In this case, the words 'day' or 'days' are not defined in the Electoral Act. They are, however, provided for in section 33 of the Interpretation Act, which provides as follows:-

“1. Words in an enactment relating to time, and references therein to a point of time, shall be construed as relating to standard time as used in Zimbabwe, that is to say, two hours in advance of Greenwich Mean Time.

2. Where in an enactment a period of time is expressed to begin on, or to be reckoned from, a particular day, that day shall not be included in the period.

3. Where in an enactment a period of time is expressed to end on, or to be reckoned to, a particular day, that day shall be included in the period.

4. Where the time limited by an enactment for the doing of any thing expires or falls upon a Saturday, a Sunday or a public holiday, the time so limited shall extend to and the thing may be done on the first following day that is not a Saturday, a Sunday or a public holiday.”

The clear meaning of section 33(1) to (4) of the Interpretation Act is as follows:

(i) Subsection one spells out that section 33 defines any reference to time in any enactment in Zimbabwe.

(ii) Sub-section two excludes the day on which the event triggering the reckoning of time occurred, meaning the reckoning of time starts from the next day.

(iii) Subsection three includes the last day of the stated period in the reckoning of time.

(iv) Sub section four extends the period if the last day falls on a Saturday, a Sunday, or a public holiday, to the next day which is not a Saturday, a Sunday, or a public holiday.

The inclusion of sub-section four, and its providing for extension if the period expires on a Saturday, a Sunday or a public holiday means Saturdays, Sundays, and public holidays are included in the reckoning of time.

This interpretation is confirmed in the case of Makuwaza v National Railways of Zimbabwe 1997 (2) ZLR 453 (S)…, where McNALLY JA said:

“It was conceded on the understanding that the period from 10 May to 26 May was less than fourteen days if one excludes Saturdays, Sundays, and public holidays.

That may be so, but, on what basis does one exclude those days?

The Interpretation Act [Chapter 1:01] does not allow it. The Labour Relations (Settlement of Disputes) Regulations (S.I.30 of 1993) do not authorize it.

It is only permitted in matters before the High Court and Supreme Court because the Rules of those courts specifically say so (Rule 4A and Rule 1 respectively).”

See also Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC)…,.

When the provisions of section 46(19)(c) of the Electoral Act are construed in terms of section 33 of the Interpretation Act, it becomes clear that the day on which the appellant is advised of the rejection of his nomination papers is not included. The reckoning of the four day period starts on the following day and ends on the fourth day - if the fourth day falls on a day other than a Saturday, a Sunday, or a public holiday.

If the fourth day falls on a Saturday, a Sunday, or a public holiday, the period then expires on the following day which is not a Saturday, a Sunday, or a public holiday.

The ordinary meaning of a “day” includes all days.

If the legislature had intended the period to only include business days they would have said so.

The provisions of section 33 of the Interpretation Act are consistent with the provisions of section 46(19)(c) of the Electoral Act.

The interpretation in terms of section 33 of the Interpretation Act is also consistent with the contextual meaning of section 46(19)(c) of the Electoral Act [Chapter 2:13] which 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.”

Section 46(19)(b) of the Electoral Act [Chapter 2:13] provides that the decision of a judge of the Electoral Court is final as it shall not be the subject of an appeal.

The Nomination Court sits to nominate candidates for an election on a date already announced. In this case, the elections will be held on the 29th March 2008. The noting of an appeal, and its hearing, are therefore set within the urgency dictated by the count down towards the election date. Ballot papers must be prepared after the determination of the appeal as the appellant's name must appear on the ballot papers if his appeal is upheld.

That, in my view, explains why the reckoning of time should include Saturdays, Sundays, and public holidays.

In this case, the four day period excludes the 15th February 2008 when the appellant was advised of the rejection of his nomination. It starts on Saturday 16 February and ends on Tuesday 19 February 2008.

As the last day is a business day there is no room for extension.

It must also be stated that the Electoral Court is a creature of statute. Its jurisdiction is restricted to what is provided in the Electoral Act - which does not provide for condonation. It therefore cannot condone the appellant's failure to comply with the provisions of section 46(19)(c) of the Electoral Act.

Electoral cases under the amended Electoral Act call for careful reading on the part of legal practitioners handling these cases.

The appellant and his lawyers could have genuinely believed that the period excluded weekends. There will therefore be no order of costs against the appellant.

In the result, the appellants appeal is dismissed with no order as to costs.

Condonation or Judicial Indulgence re: Electoral Proceedings


The appellant and the fourth and fifth respondents are aspiring Parliamentary candidates. The appellant's nomination papers were rejected while those of the fourth and fifth respondents were accepted by the first respondent.

The second respondent is the Electoral Commission responsible for conducting elections in Zimbabwe. The third respondent is the Minister responsible for the administration of the Electoral Act [Chapter 2:13] and the Zimbabwe Electoral Commission Act [Chapter 2:12], herein after called the Electoral Act, and the Zimbabwe Electoral Commission Act.

The brief facts leading to this appeal are;

That the appellant lodged his nomination papers with the first respondent who rejected them because seven of the appellant's nominators' names could not be found on the voters roll. He is aggrieved because his nominators were registered voters who had, according to certificates of registration attached to the appeal, registered between the 15th November 2007 and 13th February 2008.

The dates of their registration explains why their names are not on the voters roll.

This, however, does not disentitle a nominator from nominating a candidate as the proviso to section 46(1)(a) of the Electoral Act [Chapter 2:13] entitles the aspiring candidate to prove his nominator's eligibility by producing their voters registration certificates.

The appellant, believing his nomination to have been unfairly rejected, appealed to this court on the 20th February 2008. The Nomination Court had rejected his papers on the 15th February 2008.

Counsel for the second respondent raised two points in limine -

(a)...,.

(b) That the appellant's appeal was noted out of time....,.

In respect of the second point in limine, counsel for the second respondent submitted that an appeal in terms of section 46(19)(b) of the Electoral Act [Chapter 2:13] must be lodged with the Electoral Court within four days of the rejection of the appellant's nomination.

He said, in this case, the appeal should have been lodged by the 19th February 2008.

He based his interpretation of section 46(19)(c) of the Electoral Act and on section 33(2), (3) and (4) of the Interpretation Act [Chapter 1:01] hereinafter referred to as the Interpretation Act.

In his response, counsel for the appellant submitted that the appeal was lodged in time as Saturdays and Sundays should not be included in the reckoning of time. He referred the Court to Order 1 Rule 4A of the High Court Rules.

He, in the alternative, submitted that the ordinary meaning of a day excludes Saturdays, Sundays and public holidays.

Counsel for the second respondent, in response, submitted that the ordinary meaning of a 'day' includes Saturdays, Sundays, and public holidays, as a 'day' means a day and cannot exclude other days.

I agree with counsel for the second respondent's construction as it accords with the literal meaning of the word 'day'. That is why the name of each day of the week ends with the suffix “day”. That construction is supported by case law.

In the case of Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC)…, GUBBAY JA said;

“Rule 30(a) lays down that where leave to appeal is not necessary, as in this case, an appeal is properly entered by serving Notice of Appeal 'within twenty-one days of the day of the judgment appealed against'.

Does the period include 'none-business' days?

There is no doubt that it does.

First, the ordinary meaning of the word 'days' embraces both business and none-business days. If it were intended to exclude non-business days it would have been a simple matter to have used the expression 'twenty-one business days.'”

In the case of Kombayi v Berkhout 1988 (1) ZLR 53 (SC)…, KORSAH JA, referring with approval to Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC) said:

“This court has repeated ad nauseum that the calculation of time for lodging of appeals was based on ordinary days and not court days.”

Words in a statute should be interpreted in accordance with the definition usually found in the definition or interpretation section of that statute. In the absence of a definition for the words to be interpreted one has to look to the Interpretation Act for assistance in interpreting words in a statute.

In relying on the aforementioned, one can also invoke the general rules of interpretation provided it would not be inconsistent with the definition provided in the Act or the Interpretation Act.

Section 2 of the Interpretation Act [Chapter 1:01] provides as follows:-

“(1) The provisions of this Act shall extend and apply to every enactment as defined in this Act, including this Act, which was in force in Zimbabwe immediately before the 1st November 1962, or thereafter comes into force in Zimbabwe, except in so far as any such provisions -

(a) Are inconsistent with the intention or object of such enactment;

(b) Would give to any word, expression, or provision of such an enactment an interpretation inconsistent with the context; or

(c) Are in such enactment declared not applicable thereto.

(2) Nothing in this Act shall exclude the application to any enactment of any rule of construction applicable thereto and not inconsistent with this Act.”

The word “enactment” is defined in section 3 of the Interpretation Act, and means -

(a) “any Act;

(b) Any statute included in the revised edition of the laws of Zimbabwe prepared under an Act.”

There is no doubt that the Electoral Act falls under this definition and should therefore be construed according to the provisions of the Interpretation Act as the words “day” or “days” are not defined under the Electoral Act.

Counsel for the appellant's submission that the time should be reckoned in terms of the High Court rules could have been premised on the provisions of section 165(4) of the Electoral Act which provides as follows -

“Until rules of court for the Electoral Court are made in terms of this section, the rules of the High Court shall apply, with such modifications as appear to the Electoral Court to be necessary, with respect to election petitions and other matters over which the Electoral Court has jurisdiction.”

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.

Rule 4A of the High Court Rules provides as follows -

“Unless a contrary intention appears, where anything is required by these rules, or in any order of the court, to be done within a particular number of days or hours, a Saturday, Sunday, or public holiday shall not be reckoned as part of such period.”

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.

In this case, the words 'day' or 'days' are not defined in the Electoral Act. They are, however, provided for in section 33 of the Interpretation Act, which provides as follows:-

“1. Words in an enactment relating to time, and references therein to a point of time, shall be construed as relating to standard time as used in Zimbabwe, that is to say, two hours in advance of Greenwich Mean Time.

2. Where in an enactment a period of time is expressed to begin on, or to be reckoned from, a particular day, that day shall not be included in the period.

3. Where in an enactment a period of time is expressed to end on, or to be reckoned to, a particular day, that day shall be included in the period.

4. Where the time limited by an enactment for the doing of any thing expires or falls upon a Saturday, a Sunday or a public holiday, the time so limited shall extend to and the thing may be done on the first following day that is not a Saturday, a Sunday or a public holiday.”

The clear meaning of section 33(1) to (4) of the Interpretation Act is as follows:

(i) Subsection one spells out that section 33 defines any reference to time in any enactment in Zimbabwe.

(ii) Sub-section two excludes the day on which the event triggering the reckoning of time occurred, meaning the reckoning of time starts from the next day.

(iii) Subsection three includes the last day of the stated period in the reckoning of time.

(iv) Sub section four extends the period if the last day falls on a Saturday, a Sunday, or a public holiday, to the next day which is not a Saturday, a Sunday, or a public holiday.

The inclusion of sub-section four, and its providing for extension if the period expires on a Saturday, a Sunday or a public holiday means Saturdays, Sundays, and public holidays are included in the reckoning of time.

This interpretation is confirmed in the case of Makuwaza v National Railways of Zimbabwe 1997 (2) ZLR 453 (S)…, where McNALLY JA said:

“It was conceded on the understanding that the period from 10 May to 26 May was less than fourteen days if one excludes Saturdays, Sundays, and public holidays.

That may be so, but, on what basis does one exclude those days?

The Interpretation Act [Chapter 1:01] does not allow it. The Labour Relations (Settlement of Disputes) Regulations (S.I.30 of 1993) do not authorize it.

It is only permitted in matters before the High Court and Supreme Court because the Rules of those courts specifically say so (Rule 4A and Rule 1 respectively).”

See also Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC)…,.

When the provisions of section 46(19)(c) of the Electoral Act are construed in terms of section 33 of the Interpretation Act, it becomes clear that the day on which the appellant is advised of the rejection of his nomination papers is not included. The reckoning of the four day period starts on the following day and ends on the fourth day - if the fourth day falls on a day other than a Saturday, a Sunday, or a public holiday.

If the fourth day falls on a Saturday, a Sunday, or a public holiday, the period then expires on the following day which is not a Saturday, a Sunday, or a public holiday.

The ordinary meaning of a “day” includes all days.

If the legislature had intended the period to only include business days they would have said so.

The provisions of section 33 of the Interpretation Act are consistent with the provisions of section 46(19)(c) of the Electoral Act.

The interpretation in terms of section 33 of the Interpretation Act is also consistent with the contextual meaning of section 46(19)(c) of the Electoral Act [Chapter 2:13] which 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.”

Section 46(19)(b) of the Electoral Act [Chapter 2:13] provides that the decision of a judge of the Electoral Court is final as it shall not be the subject of an appeal.

The Nomination Court sits to nominate candidates for an election on a date already announced. In this case, the elections will be held on the 29th March 2008. The noting of an appeal, and its hearing, are therefore set within the urgency dictated by the count down towards the election date. Ballot papers must be prepared after the determination of the appeal as the appellant's name must appear on the ballot papers if his appeal is upheld.

That, in my view, explains why the reckoning of time should include Saturdays, Sundays, and public holidays.

In this case, the four day period excludes the 15th February 2008 when the appellant was advised of the rejection of his nomination. It starts on Saturday 16 February and ends on Tuesday 19 February 2008.

As the last day is a business day there is no room for extension.

It must also be stated that the Electoral Court is a creature of statute. Its jurisdiction is restricted to what is provided in the Electoral Act - which does not provide for condonation. It therefore cannot condone the appellant's failure to comply with the provisions of section 46(19)(c) of the Electoral Act.

Electoral cases under the amended Electoral Act call for careful reading on the part of legal practitioners handling these cases.

The appellant and his lawyers could have genuinely believed that the period excluded weekends. There will therefore be no order of costs against the appellant.

In the result, the appellants appeal is dismissed with no order as to costs.

Urgency re: Electoral Proceedings

Section 46(19)(c) of the Electoral Act [Chapter 2:13]..., 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.”

Section 46(19)(b) of the Electoral Act provides that the decision of a judge of the Electoral Court is final as it shall not be the subject of an appeal.

The Nomination Court sits to nominate candidates for an election on a date already announced....,. 

The noting of an appeal, and its hearing, are therefore set within the urgency dictated by the count down towards the election date. Ballot papers must be prepared after the determination of the appeal as the appellant's name must appear on the ballot papers if his appeal is upheld.


Electoral Appeal

UCHENA J: The appellant and the fourth and fifth respondents are aspiring Parliamentary candidates. The appellant's nomination papers were rejected while those of the fourth and fifth respondents were accepted by the first respondent.

The second respondent is the Electoral Commission responsible for conducting elections in Zimbabwe. The third respondent is the Minister responsible for the administration of the Electoral Act (Chapter 2:13) and the Zimbabwe Electoral Commission Act (Chapter 2:12), herein after called the Electoral Act and the Zimbabwe Electoral Commission Act.

The brief facts, leading to this appeal are;

That the appellant lodged his nomination papers with the first respondent who rejected them because seven of the appellant's nominators' names could not be found on the voters roll. He is aggrieved because his nominator's were registered voters who had according to certificates of registration attached to the appeal registered between the 15th November 2007 and 13th February 2008.

The dates of their registration, explains why their names are not on the voters roll.

This however does not disentitle a nominator from nominating a candidate as the proviso to section 46(1)(a) of the Electoral Act entitles the aspiring candidate to prove his nominator's eligibility by producing their voters registration certificates.

The appellant believing his nomination to have been unfairly rejected appealed to this court on the 20th February 2008. The nomination court had rejected his papers on the 15th February 2008.

Mr Chikumbirike for the second respondent raised two points in limine -


(a) That the second respondent was incorrectly cited; and

(b) That the appellant's appeal was noted out of time.


In respect of the first point in limine Mr Chikumbirike submitted that the correct citation of the second respondent should be “The Chairman Zimbabwe Electoral Commission” as provided in section 18 of the Zimbabwe Electoral Commission Act.

The first respondent's counsel conceded this point but sought to argue that the incorrect citation is not a fatal irregularity to warrant the dismissal of the appeal.

In respect of the second point in limine Mr Chikumbirike submitted that an appeal in terms of section 46(19)(b) of the Electoral Act must be lodged with the Electoral Court within four days of the rejection of the appellant's nomination.

He said in this case the appeal should have been lodged by the 19th February 2008.

He based his interpretation of section 46(19)(c) of the Electoral Act on section 33(2), (3) and (4) of the Interpretation Act (Chapter 1:01) hereinafter referred to as the Interpretation Act.

In his response Mr Mugabe for the appellant submitted that the appeal was lodged in time as Saturdays and Sundays should not be included in the reckoning of time. He referred the Court to Order 1 Rule 4A of the High Court Rules.

He in the alternative submitted that the ordinary meaning of a day excludes Saturdays, Sundays, and public holidays.

Mr Chikumbirike in response submitted that the ordinary meaning of a day includes Saturdays, Sundays and public holidays, as a day means a day and cannot exclude other days.

I agree with Mr Chikumbirike's construction as it accords with the literal meaning of the word 'day'. That is why the name of each day of the week ends with the suffix “day”. That construction is supported by case law.

In the case of Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC) @ 18G GUBBAY JA said;


“Rule 30(a) lays down that where leave to appeal is not necessary, as in this case, an appeal is properly entered by serving notice of appeal 'within twenty-one days of the day of the judgment appealed against'. Does the period include 'none-business' days? There is no doubt that it does. First, the ordinary meaning of the word 'days' embraces both business and none-business days. If it were intended to exclude none-business days it would have been a simple matter to have used the expression 'twenty-one business days'.”


In the case of Kombayi v Berkhout 1988 (1) ZLR 53 (SC) @ 56B KORSAH JA, referring with approval to the Ellis case said:

“This court has repeated ad nauseum that the calculation of time for lodging of appeals was based on ordinary days and not court days.”


Words in a statute should be interpreted in accordance with the definition usually found in the definition or interpretation section of that statute. In the absence of a definition for the words to be interpreted one has to look to the Interpretation Act for assistance in interpreting words in a statute.

In relying on the aforementioned one can also invoke the general rules of interpretation provided it would not be inconsistent with the definition provided in the Act or the Interpretation Act.

Section 2 of the Interpretation Act provides as follows:-

“(1) The provisions of this Act shall extend and apply to every enactment as defined in this Act, including this Act which was in force in Zimbabwe immediately before the 1st November 1962, or thereafter comes into force in Zimbabwe, except in so far as any such provisions -

(a) are inconsistent with the intention or object of such enactment;

(b) would give to any word, expression or provision of such an enactment an interpretation inconsistent with the context; or

(c) are in such enactment declared not applicable thereto.


(2) Nothing in this Act shall exclude the application to any enactment of any rule of construction applicable thereto and not inconsistent with this Act.”


The word “enactment” is defined in section 3 of the Interpretation Act and means -

(a) “any Act;

(b) Any statute included in the revised edition of the laws of Zimbabwe prepared under an Act.”

There is no doubt that the Electoral Act falls under this definition and should therefore be construed according to the provisions of the Interpretation Act as the words “day or days” are not defined under the Electoral Act.

Mr Mugabe's submission that the time should be reckoned in terms of the High Court rules could have been premised on the provisions of section 165(4) of the Electoral Act which provides as follows -

“Until rules of court for the Electoral Court are made in terms of this section, the rules of the High Court shall apply, with such modifications as appear to the Electoral Court to be necessary, with respect to election petitions and other matters over which the Electoral Court has jurisdiction.”


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. Rule 4A provides as follows -

“Unless a contrary intention appears, where anything is required by these rules or in any order of the court to be done within a particular number of days or hours, a Saturday, Sunday or public holiday shall not be reckoned as part of such period.”


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.


In this case the words “day” or “days” are not defined in the Electoral Act. They are however provided for in section 33 of the Interpretation Act, which provides as follows:-

“1. Words in an enactment relating to time, and references therein to a point of time, shall be construed as relating to standard time as used in Zimbabwe, that is to say, two hours in advance of Greenwich Mean Time.


2. Where in an enactment a period of time is expressed to begin on, or to be reckoned from, a particular day, that day shall not be included in the period.


3. Where in an enactment a period of time is expressed to end on, or to be reckoned to, a particular day, that day shall be included in the period.


4. Where the time limited by an enactment for the doing of any thing expires or falls upon a Saturday, a Sunday or a public holiday, the time so limited shall extend to and the thing may be done on, the first following day that is not a Saturday, a Sunday or a public holiday.”


The clear meaning of section 33(1) to (4) is as follows:

(i) Subsection one spells out that section 33 defines any reference to time in any enactment in Zimbabwe.

(ii) Subsection two excludes the day on which the event triggering the reckoning of time occurred, meaning the reckoning of time starts from the next day.

(iii) Subsection three includes the last day of the stated period in the reckoning of time.

(iv) Subsection four extends the period if the last day falls on a Saturday, a Sunday, or a public holiday, to the next day which is not a Saturday, a Sunday or a public holiday.

The inclusion of subsection four and its providing for extension if the period expires on a Saturday, a Sunday or a public holiday means Saturdays, Sundays and public holidays are included in the reckoning of time.

This interpretation is confirmed in the case of Makuwaza v National Railways of Zimbabwe 1997 (2) ZLR 453 (S) at 456 E-F where McNALLY JA said:

“It was conceded on the understanding that the period from 10 May to 26 May was less than fourteen days if one excludes Saturdays, Sundays and public holidays.


That may be so, but on what basis does one exclude those days?


The Interpretation Act [Chapter 1:01] does not allow it. The Labour Relations (Settlement of Disputes) Regulations (S.I.30 of 1993) do not authorize it.


It is only permitted in matters before the High Court and Supreme Court because the rules of those courts specifically say so (Rule 4A and Rule 1 respectively)”.


See also the case of Ellis supra at pp 18-19.


When the provisions of section 46(19)(c) of the Electoral Act are construed in terms of section 33 of the Interpretation Act it becomes clear that the day on which the appellant is advised of the rejection of his nomination papers is not included. The reckoning of the four day period starts on the following day and ends on the fourth day if the fourth day falls on a day other than a Saturday, a Sunday, or a public holiday.

If the fourth day falls on a Saturday, a Sunday or a public holiday the period then expires on the following day which is not a Saturday, a Sunday or a public holiday.

The ordinary meaning of a “day” includes all days.

If the legislature had intended the period to only include business days they would have said so.

The provisions of section 33 of the Interpretation Act are consistent with the provisions of section 46(19)(c) of the Electoral Act.

The interpretation in terms of section 33 is also consistent with the contextual meaning of section 46(19)(c) of the Electoral Act which 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”.


Section 46(19)(b) provides that the decision of a judge of the Electoral Court is final as it shall not be the subject of an appeal.

The nomination Court sits to nominate candidates for an election on a date already announced. In this case the elections will be held on the 29th March 2008. The noting of an appeal and its hearing are therefore set within the urgency dictated by the count down towards the election date. Ballot papers must be prepared after the determination of the appeal as the appellant's name must appear on the ballot papers if his appeal is upheld.

That in my view explains why the reckoning of time should include Saturdays, Sundays and public holidays.

In this case the four day period excludes the 15th February 2008 when the appellant was advised of the rejection of his nomination. It starts on Saturday 16 February and ends on Tuesday 19 February 2008.

As the last day is a business day there is no room for extension.

It must also be stated that the Electoral Court is a creature of statute. Its jurisdiction is restricted to what is provided in the Electoral Act, which does not provide for condonation. It therefore cannot condone the appellant's failure to comply with the provisions of section 46(19)(c) of the Electoral Act.

Electoral cases under the amended Electoral Act call for careful reading on the part of legal practioners handling these cases.

The appellant and his lawyers could have genuinely believed that the period excluded week-ends. There will therefore be no order of costs against the appellant.

In the result the appellants appeal is dismissed with no order as to costs.








Zimbabwe Lawyers for Human Rights, appellant's legal practitioners

Attorney-General's Civil Division, 1st and 2nd respondent's legal practitioners

Chikumbirike and Associates, 2nd respondent's legal practitioners

Back Main menu

Categories

Back to top

For with God All Things Are Possible (Matthew 19 v26)

© 2014. Law Portal Zimbabwe V1.5 . All rights reserved. Powered by RueDigital