Urgent Chamber Application
UCHENA J: The first
applicant is a nominated Parliamentary candidate for the Movement For
Democratic Change, the (“MDC”). He will stand for the Goromonzi
West House of Assembly constituency seat in Mashonaland East
Province. The second applicant is the
Movement for
Democratic Change a political party which fielded candidates for the
presidential, parliamentary, senatorial and local council elections.
The first respondent is the Chairman of the Zimbabwe Electoral
Commission, which is responsible for the conducting of elections in
Zimbabwe. The second respondent is the Registrar-General of Voters,
responsible for the registration of voters, though he does so, under
the control and supervision of the first respondent.
The brief facts leading to this application are as follows:
The applicants exercising their
right under section 21(4) of the Electoral Act [Cap
2:13], which I will
refer to as the Electoral Act in this judgment, requested the
respondents to supply them with electronic copies of the voters roll.
They supplied the respondents with compact disks onto which the
voters roll was to be copied. The applicants have since been given
fifty compact disks, with voters rolls copied onto them but in a
format not acceptable to the applicants. They were advised that other
disks could not presently be copied because of the break down of the
respondents' computers.
The applicants being spurred by
the approaching election day on 29 March 2008, urgently want the
Voters Roll, hence the filing of an Urgent Application. They seek an
order compelling the respondents to give them electronic copies of
the voters roll in a format they have specified.
Mr Chikumbirike,
for the respondents, raised a point in limine.
He submitted that this court
being a creature of statute does not have jurisdiction to determine
issues arising from the provisions of section 21 of the Electoral Act
as that section does not confer jurisdiction on the Electoral Court.
He submitted that this court can only exercise jurisdiction, in cases
were the Electoral Act specifically confers jurisdiction on it.
He further submitted that the Act
specifies instances when the court has jurisdiction, meaning in
instances where jurisdiction is not specifically conferred the
legislature did not intend to confer jurisdiction. He relied on the
expressio unius est
exclusio alterius rule
of interpretation. Mr Elliot
in response submitted that this court was created to deal with
electoral matters and therefore has jurisdiction to hear and
determine matters arising from failure to comply with any provisions
of the Electoral Act.
He submitted that the use of the words “and other matters in terms
of this Act”, means and other cases arising from this Act confers
jurisdiction on this court in instances where the legislature did not
specifically do so.
He summed up by saying the
Electoral Court was created to hear and determine electoral cases.
He pointed out various provisions in which various officials are
required to act in one way or the other and asked what would happen
if they did not comply. He submitted that this court should intervene
and order the officials to comply as should be done in this case.
Mr Chikumbirike
for the respondents in reply submitted that the applicants are not
left without remedy as they can apply to the High Court which has
inherent jurisdiction and can hear and determine matters for which
the Electoral Court has no jurisdiction.
Creature of Statute
This court was created in terms
of section 161(1) of the Electoral Act. There is no doubt that it is
a creature of statute.
As a creature of statute it can only exercise the jurisdiction
conferred on it by the statute which created it. Its powers are
confined within the provisions of the creating Act.
In the case of Vengesai
& Ors v
Zimbabwe Glass
Industries Ltd 1998
(2) ZLR 593 (H) at 598F GILLESPIE J said:
“The concept of the rule of
practice is peculiarly appropriate only to superior courts of
inherent jurisdiction. Any other court, tribunal or authority is a
creature of statute and bound by the four corners of its enabling
legislation”.
See also the cases of Chairman,
Public Service Commission And Ors v
Zimbabwe Teachers
Association & Ors
1996 (1) ZLR 637 (S) at 656D and 661G; Harare
City v
TA Prop
(Pvt) Ltd 1994 (2) ZLR
82 (S) at 84E; and Gwalazimba
v
PG Merchandising Ltd
and Anor
1993 (2) ZLR 215 (S) at 216C-D where MCNALLY JA said:
“This submission is undoubtedly
correct. The Tribunal is a creature of statute and can only hear
appeals as provided in the Labour Relations Act 16 of 1985”.
In the case of PTC
v
Mahachi 1997 (2) ZLR
71 (H) at 73E CHATIKOBO J commenting on the powers of a court created
by statute said:
“The Tribunal was established
by s83(1) of the Labour Relations Act [Cap
28:01]
(“the Act”). Being a creature of statute, the Tribunal has no
powers other than those conferred upon it by the legislature either
expressly or by necessary implication”.
The important observation made by
CHATIKOBO J which I respectfully agree with is that the Act which
confers jurisdiction on the creature of statute can do so expressly
or by necessary implication. This means the enabling Act must be
analysed to determine whether or not the implied jurisdiction which
in this case, Mr Elliot
seems to rely on was
conferred. The implied jurisdiction must be discovered from the
provisions of the Electoral Act.
The provision in dispute
Section 161(1) of the Electoral Act, provides as follows:
“(1) There is hereby
established a court to be known as the Electoral Court, for the
purpose of hearing and determining election petitions and other
matters in terms of this Act”.
There is no dispute on the
meaning of the part of section 161(1) which establishes the Electoral
Court. It is common cause that this court has jurisdiction to hear
and determine election petitions.
The dispute arises from the
interpretation of the later part of section 161(1) namely the words
“and other matters in terms of this Act”.
Most of the words in that phrase present no difficulties as their
meanings are obvious. They are not ambiguous as they admit of no
other meanings besides their ordinary grammatical meanings. It is the
word “terms” which the parties rely on in arriving at their
respective constructions of the phrase in question.
Construction of the phrase
The meaning of the phrase “and other matters in terms of this Act”
can be discovered by assigning an ordinary, literal or grammatical
meaning to every word in the phrase.
In Keyter
v Minister of
Agriculture 1908 NLR
522 at p523-524 BALE CJ said:
“It is the duty of the court to
give effect to every word which is used in a statute unless necessity
or absolute intractability of the language employed compels the Court
to treat the words as not written. (Salmon
v
Duncombe & Ors, 7
NLR, 182).
Another cardinal rule in ascertaining the meaning of a statute is
that in construing the words used we are to ascertain the meaning
from the words themselves, and not from what we imagine to have been
the intention of the legislature”.
In the case of The
Queen v Bishop
of Oxford 4 QBD 261,
it was said a statute:
“should, be so construed that,
if it can be prevented, no clause, sentence or word shall be
superfluous, void or insignificant”.
In the case of Chegutu
Municipality v Manyora
1996 (1) ZLR 262 (SC) at 264 MCNALLY JA said:
“There is no magic about
interpretation. Words must be taken in their context. The grammatical
and ordinary sense of the words is to be adhered to, as Lord
Wensleydale said in Grey
v Pearson (1857)
10 ER 1216 at 1234, 'unless that would lead to some absurdity, or
some repugnance or inconsistency with the rest of the instrument, in
which case the grammatical and ordinary sense of the words may be
modified so as to avoid the absurdity and inconsistency, but no
further'”.
In this case the word “and” in the phrase is a conjunction
joining the other matters which this court can hear and determine, to
petitions which are agreed can be heard and be determined by this
court.
The word “other” simply means other than the petitions already
referred to.
The word “matters” means other cases which can be heard and
determined along side the petitions which it is common cause can be
heard by this court.
The word “in” directs the inquirer to the source from which he or
she can look for the “other matters” which can be heard and
determined by this court.
The word “terms” refers to what qualifies a matter to be heard
and determined by this court.
It is the word whose true meaning has to be construed to determine
whether or not this court has jurisdiction to hear this case.
I will consider its construction later in this judgment.
The remaining words “of this Act” directs the inquirer to look
within the Electoral Act for the other cases or matters which can be
heard and determined by the Electoral Court.
In this case the key word is “terms”.
Its interpretation should be based on its ordinary, literal,
grammatical meaning.
In the case of Expedite
Haulage (Pvt)
Ltd
v Scotfin Ltd
2000 (2) ZLR 113 (HC) at 115H to 116A CHATIKOBO J said:
“On the face of it, the
contention advanced by Mr de
Bourbon seems to be
closer to the wording of the statute than that advanced by Mr
Colgrave,
and of course the cardinal rule of construction is that the words of
a statute must be given their ordinary, literal, grammatical meaning,
unless to do so would lead to a glaring absurdity”.
The same principles were
expressed by the Supreme Court in the case of Endevour
Foundation & Anor
v Commissioner of Taxes
1995 (1) ZLR 339 (S) at p356 F-G to 357A where GUBBAY CJ said:
“The general principle of
interpretation is that the ordinary, plain, literal meaning of the
word or expression, that is as popularly understood, is to be
adopted, unless that meaning is at variance with the intention of the
legislature as shown by the context, or such other indicia
as the court is justified in taking into account, or creates an
anomaly or otherwise produces an irrational result. See Stellenbosch
Farmers' Winery
Ltd v Distillers'
Corp
(SA) Ltd & Anor
1962 (1) SA 458 (A) at 476 E-F.
The same notion was expressed in
another way by MARGO J in Loryan
(Pvt) Ltd
v Solarsh Tea &
Coffee (Pvt)
Ltd 1984 (3) SA 834
(W) at 846G-H:
'Dictionary definitions of a
particular word are very often of fundamental importance in the
judicial interpretation of that word in a statute or in a contract or
in a will. Nevertheless, the task of interpretation is not always
fulfilled by recourse to a dictionary definition, for what must be
ascertained is the meaning of that word in its particular context, in
the enactment or contract or other document'”.
The inquiry according to these cases must encompass the following
rules of interpretation:
(a) The literal rule, to
establish the ordinary, literal, grammatical or dictionary meaning of
the word;
(b) Intention of the legislature
to determine the contextual meaning of the word as guided by the
clear intention of the legislature; and
(c) Other indicia
or rules of interpretation to confirm the presence or absence of
anomalies and absurdity in the resultant meaning established through
the use of the above mentioned.
The literal interpretation
It is trite that a court can rely
on a dictionary meaning in the construction of statutes. See the
cases of Endevour
Foundation supra
and Chegutu
Municipality supra.
The ordinary grammatical meaning of the word “terms” according to
the Shorter Oxford English Dictionary means:
“(i)(a) limit in space,
duration, etc, that which limits the extent of anything; a limit,
extremity, boundary, bound (b) Utmost or extreme limit, end (c) That
to which movement or action is directed or tends, as its object, end
or goal.
(ii) A limit in time; a space of time.
(iii) Limiting conditions pl. Conditions or stipulations limiting,
what is proposed to be granted or done.”
The dominant meaning of the word “term” clearly has something to
do with limiting conditioning, bounding, and directing, whatever is
to be done.
In the context of this case this
means the jurisdiction of this court, is as is limited, conditioned,
bound and directed by the Electoral Act. In simple language the
jurisdiction of the Electoral Court, is as is provided by the
Electoral Act.
The word “term” has acquired a well known judicial meaning.
In the law of contract when one refers to the terms of a contract the
clear meaning is the conditions on which the contract is premised.
In a Will it means as is provided
by the testator in the Will.
Similarly in an enactment it means as is provided by the provisions
of the enactment.
In the result the literal,
ordinary, plain and technical meaning of the word “terms” as used
in section 161, and in the context of the Electoral Act means as
stipulated, limited or provided by the Electoral Act.
The Intention of the Legislature
Mr Elliot
took this court through the various sections of the Electoral Act for
which no court is vested with jurisdiction to enforce compliance in
the event, the officer who is required to act does not do so.
He argued that in such situations the Electoral Court has
jurisdiction.
He obviously had in mind the
implied intention of the legislature referred to in the PTC case
supra,
or the assumed or imagined intention of the legislature, referred to
in the Keyter case supra.
Mr Chikumbirike
argued that in such circumstances the aggrieved party should apply to
the High Court which has inherent jurisdiction. He referred to
section 13 of the High Court Act [Cap
7:06].
It is correct that the High Court
has inherent jurisdiction and can hear such cases, but the issue is
does the Electoral Court have jurisdiction to hear such cases as
submitted by Mr Elliot.
This can be determined by ascertaining the expressed or implied
intention of the Legislature from the construction of the sections
which confer jurisdiction on the Electoral Court and a careful study
and construction of the scheme of the Electoral Act.
This calls for an analysis of the sections conferring jurisdiction on
this court and other courts.
In Part V of the Act aggrieved
parties are in terms of section 25(6) referred to a designated
magistrate for the province in which the affected constituency is
situated for redress in the case of a dispute over claims for
transfer of registration.
In Part VI sections 27(3)(a) and
(b), 28(3)(b) and 29 of the Electoral Act confers jurisdiction on a
designated magistrate to hear appeals against objections by the
constituency registrar or a voter.
Section 30(1) to (4) provides for the submission of a stated case by
the designated magistrate to a judge of the High court for his
opinion.
In Part X, section 44(7) confers
jurisdiction on the Electoral Court to hear and determine petitions
against the decision of the presiding officer over the election of
the Council of Chiefs and of President and Deputy President of the
Council of Chiefs and other Senator Chiefs.
In Part XI, section 46(19)(b) and
(c) confers jurisdiction on the Electoral court to hear and determine
appeals from the Nomination Court.
In Part XIII, section 66(2)
provides for the presence of an Electoral Court Judge, at the drawing
of lots to determine the winning candidate. Section 66(4) confers
jurisdiction on the Electoral Court to hear and determine a petition
against the decision of the Chief Elections Officer. Section
70(3)(b), (4), (5), and (8) confers jurisdiction on the Electoral
Court to determine issues and make orders in relation to the
destruction or preservation of electoral documents.
In Part XIV, section 81 confers
jurisdiction on the High Court to, on convicting a person for
inducing any person to obtain a ballot paper and influencing him or
her to vote in favour of a particular candidate, to declare the
convicted person disqualified from voting in any election for a
period not exceeding five years.
In Part XVII, section 111 confers
jurisdiction on the Electoral Court, to hear and determine petitions
on an undue return or an undue election of a person to the office of
President, while section 112A as read with the Fifth Schedule,
confers jurisdiction on the Chief Justice to preside over, the
electoral college, for the election of a President.
In Part XVIIIA, in sections 133E
and 138 confers jurisdiction on the High Court, to impose additional
punishment, of a civil nature to a person it will have, convicted for
intimidatory practices. The same jurisdiction is conferred on the
High Court in terms of section 150. Identical jurisdiction is
conferred on the Electoral Court by section 155 but after the hearing
of a petition after the election. It is clear the legislature
conferred jurisdiction on two different courts on this aspect. The
High Court deals with intimidatory and illegal practices, before the
elections, while the Electoral Court deals with the same situations
and can impose the same additional penalties after the elections.
In Part XXI, sections 155 to
section 158 confer jurisdiction on the Electoral Court to hear and
determine petitions and applications and make appropriate orders
specified in the various sections.
In Part XXII, section 161
establishes the Electoral Court and in subsection (1) and (2)
specifies what it can or cannot do.
In Part XXIII, section 167
provides for the presentation of election petitions to the Electoral
Court. Section 170(1) confers jurisdiction on the Electoral Court to
hear and determine objections on the sufficiency of the security
provided by an applicant to an election petition. Section 171(1)
confers jurisdiction on the Electoral Court to hear and determine
election petitions. Sections 177, 179, 180, and 181 provide for the
other powers the Electoral Court may exercise in the hearing of
petitions.
In Part XXIV, section 183 confers
jurisdiction on the Electoral Court to hear and determine
applications by persons convicted on perjured or false evidence, for
the removal of the incapacity imposed at the time of conviction.
An examination of the sections conferring jurisdiction on the various
courts clearly demonstrates the legislature's deliberate intention
as to which court it intended to deal with which situation.
There is no doubt in my mind that where the legislature intended to
confer jurisdiction on this court it did so by conferring it through
a specific provision in the Act. There is clearly no room for the
conferring of jurisdiction by implication.
The legislature's specific mention of the instances where this
court has jurisdiction means where it did not confer jurisdiction it
intended not to confer jurisdiction.
This would support Mr
Chikumbirike's
submission that the application of the expressio
unius est exclusio alterius
rule to the specific conferring of jurisdiction in some instances
means this court has no jurisdiction where it is not specifically
conferred.
In the case of Nkomo
& Anor v
Attorney-General &
Ors 1993 (2) ZLR 422
(SC) at 434D-E GUBBAY CJ said:
“To ascribe a sensible meaning
to subs (5) and to avoid superfluity necessitates the legitimate
recourse of construing the general words 'any sentence' in subs
(6) as excluding the specific reference to 'a sentence of death'
in subs (5). This is no more than an application of the rule embodied
in the maxim 'expressio
unius exclusio alterius'.
It draws attention to the fairly obvious linguistic point that in
many contexts the mention of some matters warrants an inference that
other cognate matters were intentionally excluded. See Maxwell on The
Interpretation of Statutes 12ed at p 293”.
In the case of Eagle
Insurance Co Ltd v
Grant
1989 (3) ZLR 278 (SC) at 280F KORSAH JA commenting on the operation
of the maxim said:
“A rule which is variably
resorted to in the interpretation of statutes the expressio
unius rule – is that
the mention of one or more things of a particular class may be
regarded as silently excluding all other members of the class”.
The use of the words “may be
regarded as silently excluding”, leaves room for the
inapplicability of the rule in some cases. This is confirmed in the
case of Chivinge
v Mushayakarara &
Anor
1998 (2) ZLR 500 (SC) at p506E-F GUBBAY CJ said:
“The same result is arrived at,
so it seems to me, by a cautious application of the maxim expressio
unius est exclusio alterus.
See Taylor
v Prime Minister &
Anor 1954 SR 94 at
165; 1954 (3) SA 956 (SR) at 965B-D; R
v Ndhlovu
(1) 1980 ZLR 96 (G) at 100A-D; Hewlett
v Minister of Finance
& Anor
1981 ZLR 571 (S) at 596C-E; National
Automobile & Allied Workers Union
v Borg-Warner
1994 (3) SA 15 (A) at 26H–I.
The specific mention of the instances of permissible discharge, of
termination on notice by a permanent employee, to my mind leads to
the unavoidable inference that it was not the intention of the
parties to the contract to allow termination on notice of a permanent
employee”.
The need to exercise caution
before relying on the expressio
unius rule is because
a conclusion based on it is a product of a logical deduction inferred
from the specific mention of the other thing being an implied
exclusion of that which was not mentioned.
In the case of Commissioner
of Taxes v F
Kristiansten (Pvt) Ltd
1994 (1) ZLR 412 (SC) at 419H the Supreme Court commenting on the
nature of the rule said:
“It may be that one cannot rely
on that uncertain principle of interpretation known as the 'expressio
unius exclusio alterius'
in this situation.”
The uncertainty of the expressio
unius est exclusio alterius
rule was again commented on by the Supreme Court in the case of
Davies and Ors v Minister of Lands, Agriculture & Water
Development 1996 (1) ZLR 681 (SC) at 687G where GUBBAY CJ said:
“Mr Anderson's counter to
this argument was that the principle expressio
unius est exclusio alterius
was one of limited application to be applied with great caution. This
is of course true but whereas here something which is not on the face
of it acquisition is specifically stated so to be, there is a strong
indication that acquisition is to otherwise be given its ordinary
meaning.”
In the present case a careful
reading of the sections of the Electoral Act, conferring jurisdiction
on this court and other courts together with section 161 of the Act
whose interpretation restricts the search for jurisdiction within the
Act, the express mention of the instances where this court has
jurisdiction is a clear indication that where no jurisdiction was
specifically conferred the legislature did not intent to confer
jurisdiction on this court. In the context of the whole Act the words
“and other matters in terms of this Act” means and other maters
in which jurisdiction has been conferred by provisions of this Act.
Other indicia
Mr Elliot
for the applicants referred this court to section 157 of the
Electoral Act and submitted that reference in it to “petitions and
applications” when no specific jurisdiction in terms of the Act is
conferred on this court to hear and determine petitions means
applications such as the applicant's are the “other matters”
which can be heard and be determined by this court.
This tends, to suggest, that the
literal meaning as established above should include applications as
provided in section 157.
The expressio
unius est exclusio alterius
rule would not be applicable as the mentioning of applications
without providing for them in any specific sections of the Act would
leave this court with jurisdiction in circumstances mentioned by Mr
Elliot.
That would not be consistent with the plain meaning of the phrase
“and other matters in terms of this Act”. It would entitle this
court to depart from the plain, literal and grammatical meaning to
avoid the inconsistency or the absurdity. See the case of Chegutu
Municipality supra.
Mr Chikumbirike
for the first respondent submitted that the word “application”
means petition. He therefore argued that its being mentioned in
section 157 is of no significance. He relied on section 15(2) of the
Interpretation Act [Cap
1: 01], which provides
as follows:
“Any reference in an enactment
to a petition to a court shall be construed as a reference to an
application to the court or to a judge, magistrate or other judicial
officer of the court, made in accordance with rules of the court”.
Mr Chikumbirike's
submission is persuasive but does not explain why the legislature
would convey the same concept using two different words of the same
meaning in succession. This would suggest that one of the words is
superfluous. If the use of both words was out of caution then why
would the legislature use the word “or” between them suggesting
that it should be one or, the other.
A careful reading of section 157
is called for. It provides:
“(1) When it appears to the
Electoral Court, either on application or upon an election petition,
that –
(a) any act or omission of a
candidate at an election or of his or her chief election agent or of
another agent or person, which but for this section would be an
illegal practice, has been done or made in good faith through
inadvertence or accidental miscalculation or some other reasonable
cause of a like nature; and
(b) by reason of the
circumstances it would be just that the candidate or his or her chief
election agent or other agent or person, or any of them, should not
be subject to any of the consequences under this Act of the said act
or omission;
the Electoral Court, may make an order allowing the act or omission
to be an exception from the provisions of this Act which would
otherwise make the act or omission an illegal practice, and thereupon
the candidate, agent or person shall not be subject to any of the
consequences under this Act of the said act or omission.
(2) Where application, is made for relief in terms of subs (1), the
Electoral Court, before hearing the application, shall be satisfied
that reasonable notice of the application has been given in the
constituency or area in which the election was held”.
The clear meaning of section 157
is that the Electoral Court may during the hearing of a petition or
when an application is made to it in terms of subs (2), make an order
allowing an otherwise illegal practice an exception to the provisions
of the Act.
The provisions of section 15 of
the Interpretation Act are therefore not applicable in this case.
Subsection (2) specifically provides for the making of an application
to the Electoral Court, and confers jurisdiction on it to hear and
determine such applications.
I, with respect, do not agree
with both Mr Elliot
for the applicants and Mr Chikumbirike
for the respondents' respective interpretations of section 157 of
the Electoral Act. Therefore the interpretation of the words “and
other matters in terms of this Act” as discussed above remains
unaffected by the provisions of section 157.
Even if subsection (2) of section
157 had not clarified the issue, there are other sections of the
Electoral Act, which confer jurisdiction on this court to hear and
determine applications. Section 179(2) provides for an application
for substitution of a petitioner. Section 183 provides for an
application to the Electoral Court for the removal of any incapacity
imposed upon conviction based on perjured or false evidence.
It is therefore beyond doubt that the instances in which this court
has jurisdiction to hear and determine applications are specifically
provided for in the Act.
As already indicated that means
all the instances in which the legislature intended to confer
jurisdiction on this court are specified leaving no room for this
court to assume jurisdiction in circumstances referred to by Mr
Elliot.
Mr Chikumbirike
sought costs on the legal practitioner and client scale against the
applicants on the basis that his clients were unnecessarily dragged
to a court which does not have jurisdiction to hear the application.
It is true that with careful
reading of the Electoral Act the applicants should have known that
they were suing the respondent in a court which did not have
jurisdiction. It is however apparent from Mr Chikumbirike's
own failure to appreciate that the Act confers jurisdiction on this
court to hear applications that the Electoral Act as recently amended
is still to be fully understood by legal practitioners especially
those who infrequently appear before this court. There is need for
guidance through the judgments of this court.
I can therefore not grant punitive costs in circumstances which
clearly call for the guidance of this court.
In the result the applicant's application is dismissed with costs.
Coghlan, Welsh & Guest, applicants' legal practitioners
Chikumbirike & Associates, respondents' legal
practitioners
