Electoral
Application
UCHENA
J:
The
applicant is an independent candidate for the Hurungwe West
By-Election scheduled for the 10 June 2015. He by ordinary
application applied for an order suspending the holding of elections
in Hurungwe West on 10 June 2015 due to alleged violence and
intimidation.
In
the alternative he seeks orders compelling the first, second,
fourth,
and sixth to tenth
respondents to make statements through fliers and radio correcting
the impression created by the third to tenth respondents about how
voters in the constituency shall go to the polls and vote on 10 June
2015.
The
first respondent is the Chairperson of the Zimbabwe Electoral
Commission to whom the applicant complained by letters dated 12 and
14 May 2015 about the violence and intimidation which was being
unleashed in Hurungwe West by the third to tenth respondents.
The
second respondent is the Zimbabwe Electoral Commission.
The
third respondent is Zimbabwe African National Union (Patriotic Front)
ZANU PF, a political party which fielded the fifth respondent for the
Hurungwe West By-election.
The
forth respondent is the Secretary for Administration for the third
respondent who is being sued in his personal capacity for inciting
violence and intimidation in Hurungwe West Constituency.
The
fifth respondent is a contestant fielded by the third respondent for
election as a member of Parliament for Hurungwe West in the 10 June
by-elections.
The
sixth to tenth respondents are traditional leaders who the applicant
alleges have been tasked with the roll of systematically heading
their subjects to polling stations and monitoring how they will vote
to identify those who will vote for the applicant.
The
eleventh respondent is the President of Zimbabwe cited in his
official capacity as the official responsible for proclaiming dates
for elections.
As
already said, the applicant applied by ordinary application, for the
above mentioned orders. He in that application sought to have the
application set down for the fifth June 2015 even though he only
served the application on the sixth to tenth respondents on 6 June
2015. It was served on the first, second, third and fourth
respondents on 2 June 2015. The registrar set it down for 8 June
2015. Most of the respondents were served with notices of set down on
8 June 2015.
On
8 June the respondents' counsel raised three preliminary issues:
Mr
Ndudzo
for the third and fifth respondents raised a preliminary issue on his
clients being entitled to the dies
induciae
permitted in terms of the rule the applicant used to file his
application.
Mr
Kanengoni,
for the first and second respondents raised a preliminary issue on
whether or not this court has jurisdiction to hear the applicant's
application.
Mrs
Munyoro
for the fourth and sixth to eleventh respondents raised a preliminary
issue alleging that the fourth respondent had been incorrectly cited
in his personal capacity.
I
after hearing submissions from the parties postponed the case to 9
June 2015, when I ruled in favour of the third and fifth respondents'
preliminary issue and dismissed the first, second and fourth
respondents' preliminary issues.
I
indicated that my reasons for judgment would follow, these are they.
Dies
Induciae
In
his submission Mr Ndudzo
argued that the applicant consciously chose the procedure through
which he brought his application to this Court. That procedure
determines the time frames within which the respondents are expected
to file their responses.
He
submitted that where an applicant files an ordinary application in
terms of Rule 231(3) of the High Court Rules 1971, which the
applicant used a respondent is in terms of Rule 232 entitled to file
his response within not less than 10 days, exclusive of the day of
service, plus one day for every additional 200 kilometres or part
thereof where the place of service is more than 200 kilometres from
the court where the application is to be heard.
He
submitted that the application has been prematurely set down as the
dies
induciae
has not yet lapsed and the third and fifth respondents are entitled
to file their responses within the time permitted by the rules.
Mr
Zhuwarara
for the applicant, instead of relying on the procedure in the High
Court rules which the applicant used in filing the application, and
invoking corrective measures, sought to expedite the hearing of the
application by invoking the provisions of Rule 31 of the Electoral
Court's Rules S.I 74A of 1995.
Rule
31 provides as follows;
“The
Registrar and all parties to any stated case, petition, appeal or
application referred to in these rules shall take all steps necessary
to ensure that the matter is dealt with as quickly as possible.”
He
submitted that the applicant gave the respondents three days to
respond in view of the provisions of Rule 31.
This
submission is not consistent with what the applicant said in his
founding affidavit on p10 para 12, where he said;
“I
have given the respondents three days to respond. This is a
modification of the rules of the High Court as contemplated in
section 164(4).”
Mr
Ndudzo
in response submitted that Rule 31 is not applicable to the present
application as it is not one of the applications mentioned in those
rules.
He
analysed the applications covered by the 1995 Electoral Court Rules
and demonstrated how those rules do not apply to the applicant's
application.
He
further submitted that the applicant cannot unilaterally decide on
the dies
induciae
especially after choosing the ordinary application procedure instead
of using the urgent application procedure in terms of which an
applicant can in terms of the proviso to Rule 232 specify a shorter
dies
induciae
if the court “on good cause shown agrees to such shorter period”.
He
further submitted that the applicant should have applied by urgent
chamber application accompanied by a certificate of urgency in terms
of Rule 244.
The
need to hear electoral cases urgently is not in dispute. I accept
that such cases should be heard as soon as possible, but an applicant
has to follow the correct procedures to achieve that objective.
It
does not assist the smooth and efficient administration of justice,
for an applicant to apply for remedies on the 11th
hour, and for his legal practitioners to choose a wrong procedure and
thereafter expect the court to extricate them from their chosen
timing and procedure, without their doing what the law of procedure
requires them to do, to achieve that objective.
Section
165(4) provides for the use of High Court rules as follows;
“(4)
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.”
Section
165(4), makes it clear that modifications of the High Court rules
must “appear to the Electoral Court” to “be necessary”. This
means an applicant cannot unilaterally decide that issue, but has to
first convince the court of the necessity of the modification.
The
applicant did not do so.
He
while using the procedure which gives the respondents the longest
dies
induciae,
unilaterally modified the rule to reduce that period.
In
my view the applicant should have simply applied by urgent
application which in terms of Rule 244 allows a judge to call parties
to make submissions on the issue of urgency.
Rule
244 reads;
“244.
Where
a chamber application is accompanied by a certificate from a legal
practitioner in terms of paragraph (b)
of subrule (2) of Rule 242 to the effect that the matter is urgent,
giving reasons for its urgency, the registrar shall immediately
submit it to a judge, who shall consider the papers forthwith.
Provided
that, before granting or refusing the order sought, the judge may
direct that any interested person be invited to make representations,
in such manner and within such time as the judge may direct, as to
whether the application should be treated as urgent.” (emphasis
added)
Rule
244 makes it clear that urgency has to be determined by a judge after
hearing the parties' submissions on it.
In
this case it was not possible to determine that issue within an
ordinary application in terms of Rule 232, to which Rule 244 does not
apply.
It
is for these reasons why the third and fifth respondents'
insistence on the dies
induciae
provided for in Rule 232 cannot be interfered with, unless the
applicant invokes remedial remedies to enable the hearing of its
application without having to wait for the expiry of the dies
induciae
he trapped himself into.
The
applicant's application must, therefore be removed from the roll.
Jurisdiction
Mr
Kanengoni
for the first and second respondents raised a preliminary issue on
whether or not this court has jurisdiction to hear an application for
which the Electoral Act does not specifically confer jurisdiction on
it.
He
relying on the case of Makone
& Another v Chairperson (ZEC) & Anor
2008 (1) ZLR 230 (H) submitted that this court can only exercise
jurisdiction over cases where the Legislature specifically conferred
jurisdiction on it.
Mr
Zhuwarara
in response submitted that section 161(2) as currently worded confers
jurisdiction on the Electoral Court in respect of all applications
arising from the Electoral Act. He submitted that section 161 must be
read as a whole to get its full meaning.
I
agree, that provisions of a statute must be construed within the
context in which they are found.
The
Electoral Act has been extensively amended since my decision in
Makone (supra).
The
wording of the current section 161 is totally different from the
earlier version. In the 2004 version which applied in 2008 section
161(1) provided as follows:
“161(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.
(2)
The Electoral Court shall have no jurisdiction to try any criminal
case.
(3)
The Electoral Court shall be a court of record.”
Section
161 of the Electoral Act as amended by Act 3 of 2012 reads as
follows:
“161(1)
There is hereby established a court, to be known as the Electoral
Court, which shall be a court of record.
(2)
The Electoral Court shall have exclusive jurisdiction —
(a)
to hear appeals, applications and petitions in terms of this Act; and
(b)
to review any decision of the Commission or any other person made or
purporting to have been made under this Act; and shall have power to
give such judgments, orders and directions in those matters as might
be given by the High Court:
Provided
that the Electoral Court shall have no jurisdiction to try any
criminal case.
(3)
Judgments, orders and directions of the Electoral Court shall be
enforceable in the same way as judgments, orders and directions of
the High Court.”
Subsection
(2) brought in changes which makes the decision, in Makone (supra)
inapplicable.
The
Electoral Court now has exclusive jurisdiction, which it did not have
in 2008.
The
word “exclusive” means this court, now has a domain over which,
it does not share its jurisdiction with any other court. That domain
is marked by section 161(2)(a) and (b), which caps it all by adding
that this court now has powers similar to those exercised by the High
Court, when, it determines electoral issues.
The
combination of exclusive jurisdiction and the addition of powers
similar to those exercised by the High Court means this court now
enjoys unlimited jurisdiction over all electoral cases, except
criminal cases and cases, which have been specifically, allocated to
other courts.
Applications
are now specifically mentioned as falling within the Electoral
Court's jurisdiction.
In
2008 they fell under “other matters”.
The
Electoral Court now has “power to give such judgments, orders and
directions in those matters as might be given by the High Court”.
The
granting to the Electoral Court of exclusive jurisdiction, and power
to give such judgments, orders and directions in those matters as
might be given by the High Court, is a clear enhancement of the
Electoral Court's jurisdiction after the Makone case (supra).
The
fact that the Legislature which is deemed to know the law made these
deliberate changes, means it intended to alter case law by giving
this court jurisdiction the Makone case (supra)
said it did not have.
Exclusive
jurisdiction means this court does not share concurrent jurisdiction
with any other court, on matters it has jurisdiction on.
The
granting of power to give judgments and orders the High Court might
give enables this court to exercise jurisdiction over cases in which
it used to decline jurisdiction and such cases would be heard by the
High Court. It has simply been given exclusive jurisdiction with
unlimited power to hear and determine cases under the Electoral Act
just as the High Court had jurisdiction to hear such cases during the
era when the Electoral Court did not have exclusive jurisdiction.
I
therefore find that this court has jurisdiction to hear and determine
the applicant's application.
Citation
of the 4th
Respondent
Mrs
Munyoro
submitted that the fourth respondent should have been cited in his
Ministerial capacity, in view of the alternative order sought by the
applicant.
In
para 4 of his draft order the applicant sought the following order:
“That
the 4th
Respondent be and is hereby ordered to issue and cause to be
circulated in Hurungwe West, the following statement in both Shona
and English;
'Each
voter has a right to go to the polling station at a time convenient
to her/him and need not be accompanied by their village head'”.
She
submitted that the applicant can only make the statement sought in
his capacity as the Minister of Local Government.
Mr
Zhuwarara
in response submitted that the fourth respondent was correctly cited
in his personal capacity, because of what he is alleged to have said
and done in Hurungwe West constituency. He referred to the
applicant's allegations against the fourth respondent as the basis
on which he was cited in his personal capacity. On p11 para 16 of his
application the applicant, said:
“16.
The 4th
respondent, in the presence of the 5th
respondent and in the name of the 3rd
respondent, has addressed several campaign meetings at which he has
issued threats against any person who intends to vote for me. There
is video evidence of these meetings and the 4th
respondent's utterances. If the 4th respondent denies ever making
these statements, I will seek leave of the court to submit the video
evidence.”
Mr
Zhuwarara
further submitted that the fourth respondent can issue the statement
sought in the alternative order in his personal capacity.
In
response Mrs Munyoro
submitted
that if the statement is issued by the fourth respondent in his
personal capacity it will not have the weight it would have if he
made it in his ministerial capacity.
On
p9 para 5 the applicant clearly states that he is aware of the fourth
respondent's Ministerial office but was suing him in his personal
capacity. The cumulative effect of para(s) 4 and 9 of the applicant's
founding affidavit indicates that the fourth respondent is being
deliberately sued in his personal capacity for the threats and
utterances he made at campaign meetings in his capacity as one of the
leaders of the third respondent.
It
is clear why the applicant sued the fourth respondent in his personal
capacity.
It
was a deliberate choice the applicant made well aware of the fourth
respondent's official capacity.
I
am satisfied that the fourth respondent's official capacity has
nothing to do with the alleged threats and utterances. The applicant
seems to be merely seeking a retraction of the utterances made by the
fourth respondent at campaign meetings as opposed to a weighty
Ministerial statement.
A
litigant has a right to sue an official in his personal capacity if
the alleged conduct has nothing to do with his office.
I
am satisfied that the applicant correctly cited the fourth respondent
in his personal capacity.
I
therefore uphold the first preliminary issue and dismiss the second
and third preliminary issues. In the result I granted the following
order;
1.
The 3rd
and 5th
Respondents are entitled to the dies
induciae
provided for by the rules in terms of the type of application the
applicant filed.
2.
The 1st
and 2nd
respondents' preliminary issue is dismissed with costs.
3.
The 4th
respondent's preliminary issue is dismissed with costs.
4.
The applicant shall pay the 3rd
and 5th
respondents' costs.
5.
The applicant's application is removed from the roll.
Kadzere,
Hungwe & Mandevere,
applicant's legal practitioners
Nyika,
Kanengoni & Partners,
1st
and 2nd
respondents legal practitioners
Ndudzo
& Partners,
3rd
and 5th
respondents legal practitioners
Attorney
General's Civil Division,
4th
and 6th
to 11th
respondents legal practitioners
