Urgent Chamber Application
GUVAVA J: This matter was
filed as an urgent chamber application in terms of Rule 241 of the
High Court Rules. The applicants were seeking the following urgent
relief:
“Pending the confirmation or
discharge of the provisional order, the following provisional order
is granted:
1. The Presidential Powers (Temporary Measures) (Amendment of
Electoral Act) (No.2) Regulations, 2008 SI43/2008, published in
Government Gazette Extra Ordinary on 17 March 2008, shall not be
applied in respect of the elections on 29 March 2008.
2. Section 59 and 60 of the
Electoral Act [Chapter
2:13] as amended by
the Electoral Laws Amendment Act, 2007 (Act 17/2007) shall not be
applied in respect of elections to be held on 29 March 2008.
3. Illiterate persons and persons
with disabilities or otherwise incapacitated voters where necessary
and at their request, shall be allowed assistance in voting by a
person of their own choice”.
I dismissed the application with costs after hearing submissions. The
parties have requested reasons for my decisions. These are they.
The facts in this matter are set out in the applicants founding
affidavits and may be summarized as follows:
The first and second applicants are visually impaired. The third
applicant is physically handicapped and does not have the use of his
arms and legs (though it was noted that his application was
purportedly signed by him before a Commissioner of Oaths).
The respondent is the Minister for Justice Legal and Parliamentary
Affairs responsible for the implementation of provisions of the
Electoral Act.
The applicants are all registered
voters and wish to exercise their rights at the elections on 29 March
2008. The applicants have submitted that their rights are being
violated as they are obliged, in terms of the law, to seek assistance
from strangers who will be presiding at the polling station. They
averred that the provisions as set out in s59 and 60 of the Electoral
Act and amended by the Presidential Powers (Temporary Measures)
(Amended of Electoral Act) (No.2) Regulations 2008 were
unconstitutional.
The application was opposed.
Mrs
Mabiza, for the
respondent, submitted firstly that the matter was not urgent and
secondly that the relief that the applicants were seeking was not
capable of being granted as a court cannot suspend a provision of an
enactment. She further submitted that as the matter raised a
constitutional point it should be determined by the Supreme Court.
She also submitted that the Presidential Powers Regulations had been
enacted in accordance with the provisions of the enabling Act.
URGENCY OF APPLICATION
The applicants submitted that the application was urgent as the
Presidential Powers (Temporary Measures)(Amendment of Electoral Act
(No.2)) Regulations promulgated on 17 March 2008 (The Presidential
Powers Regulation).
The effect of these Regulations was to allow a police officer to be
present and to assist a voter who required assistance if he was
incapacitated in some way during the elections on 29 March 2008. The
applicants submitted that they did not have any other remedy save to
bring this application by way of urgent chamber application.
In relation to ss59 and 60 of the
Electoral Act [Cap
2:13] (the Electoral
Act), the applicants counsel conceded that the legislation had been
in existence since 11 January of 2008 when the amendment came into
force.
It is trite that no litigant is
entitled as of right to have his or her matter heard urgently. (see
Dilwin Investments (Pvt)
Ltd t/a Farmscaff v
Jopa Enigineering Co (Pvt)
Ltd HH116-98).
The granting of urgent relief by a court is a matter of the courts
discretion and is granted only in the most deserving cases. A matter
does not become urgent merely because the date of reckoning has
approached and the applicant had sat on his rights until the eleventh
hour and done nothing.
In the case of Kuvarega
v
Registrar General & Anor
1998 (1) ZLR 188 CHATIKOBO J stated at pg193:
“What constitutes urgency is
not the only imminent arrival of the date of reckoning; a matter is
urgent if at the time the need to act arises the matter cannot wait.
Urgency which stems from a deliberate or careless abstention from
action until the deadline draws near is not the type of urgency
contemplated by the rules.”
There is no explanation in the papers before me why the applicants
waited until four days before the elections to lodge an application
seeking to suspend the operation of ss59 and 60 of the Electoral Act.
It appears that what woke them up from their slumber was the
publication of the Presidential Powers Regulations on 17 of March,
2008.
In my view therefore the application as it relates to ss59 and 60 of
the Electoral Act is not urgent.
The urgency in relation to the Presidential Powers Regulations has
also not been adequately explained.
The applicants complain, in the submissions and Heads of Arguments
(which were filed after the hearing) that the applicants would not be
able to cast their vote freely as they cast doubt on the impartiality
of the police officers manning the polling stations.
It seems to me that the Presidential Powers Regulations cannot be
looked at in isolation.
An examination of ss59 and 60 of the Electoral Act as amended by the
Presidential Powers Regulations shows that persons in the position of
the applicants will not be assisted by one person only but by at
least four persons at the same time, that is, the presiding officer,
two other electoral officers in addition to the police officer on
duty.
The circumstances under which all four persons, acting together,
would interfere with the applicants rights to freely cast their vote
is in my view difficult to imagine nor has it been explained.
All four would have to conspire in relation to the visually impaired
applicant to vote against their wishes and be agreed on whom they
wanted to vote for.
In relation to the third applicant the court has not been told that
he cannot use mouth to mark the ballot paper against the candidates
of his choice. If he could sign so elegantly he should surely, be
able to place an X on the ballot paper.
It seems to me therefore, that the application cannot suddenly have
become urgent merely because a fourth person has been included in the
number of persons assisting illiterate and disabled voters.
The provisions of the Electoral Act rendering assistance to
physically handicapped persons has always been in existence, even
before the 2007 amendment. The position would have been different in
my view, had the Presidential Powers Regulations sought to remove the
other three persons who are already in the Electoral Act and
substitute them with one person. However this is not the position in
this case.
For these reasons, I would therefore find that the application is not
urgent and dismiss it on that basis.
Although I have dismissed the application the basis of the
preliminary point raised I, however, wish to comment on the following
issues which were raised in this application.
The applicant submitted that the interim relief should be granted on
four grounds.
(i) It was submitted that the
Presidential Powers Regulations were ultra
vires the Presidential
Powers (Temporary Measures) Act [Cap
10:20] as they were
not made in accordance with s2 of the Act.
(ii) Secondly, the provisions of
the Presidential Powers Regulations seek to reintroduce the
assistance of police officers which had been removed by the Electoral
Amendment Act No. 17 of 2007.
Mr
Muchadehama submitted
further that ss59 and 60 were negotiated provisions between the
political parties and it was wrong for the President to reintroduce
it through the Presidential Powers Regulations.
(iii) It was further submitted
that the President is also contesting the elections and the
Regulations may have been gazetted to further his interest.
(iv) Finally, the applicants
submitted that the Regulations violated their rights as enshrined in
the Constitution, UN Conventions on the Rights of Persons with
Disabilities, the SADC Principles and Guidelines Governing Democratic
Elections and the AU Declaration On The Principles Governing
Democratic Elections In Africa.
It is trite that once regulations
are published in term of the Presidential Powers Temporary Measures
Act they have the same force and effect during their life span, as
legislation passed by an Act of Parliament.
The applicant has asked that this court suspend the operation of the
Regulations and ss59 and 60 of the Electoral Act so that they are not
applicable in the elections which are to take place tomorrow.
In the case of
The Registrar General of Elections v
Combined Harare Residents Association & Anor SC7/2002
CHIDYAUSIKU CJ held that a court could not suspend the operation of
any legislation. He states at p6 of the cyclostyled judgment as
follows:
“With respect this is where the
learned judge fell into error. The court cannot suspend the
provisions of the Act for whatever purpose and no matter how
desirable and plausible that may be. It is the legislature itself,
and possibly an authority properly delegated, that can amend an Act
of Parliament……”
It seems to me therefore that
where provisions of an enactment may be void whether on the basis of
being unconstitutional or on the basis of being ultra
vires the authority
delegated by Parliament, they remain in full force until they have
been declared void and set aside. The court cannot suspend their
operation for a limited period, however compelling the reasons.
The applicant further submitted that if the court finds that it
cannot suspend an enactment it should declare the Presidential Powers
Regulations null and void.
The effect of such an order would be to grant a final order in this
matter.
This is improper because matters
which are brought on a certificate of urgency require that only
interim relief be granted as the applicant only needs to establish a
prima facie
case. (See Registrar
General of Elections v
Combined Harare Residents Association & Anor supra
p 10). In this case I also note that the applicant has raised serious
concerns relating to the use of the Presidential Powers (Temporary
Measures) Act and the constitutionality of the provisions enacted in
both the Regulations and the Electoral Act.
The Attorney General has not been cited. He is the Governments chief
legal advisor and must be cited in all matters which involve the
striking down of legislation in force so that he can be given an
opportunity to make submissions in respect to the issues raised.
The application was filed on
Wednesday 26 March late in the afternoon. It could only be set down
on the Thursday. The respondent was served with the notice of set
down barely three hours before the matter was argued. No opposing
papers could be filed due to the short notice. In my view it would be
improper in these circumstances for a court make a final
determination on such important issues. (See also
Kuvarega v
Registrar General supra)
It was for these reasons that I dismissed the application with costs.
Mbidzo,Muchadehama & Makoni, applicants legal
practitioners
Civil Division of the Attorney General's Office,
respondent's legal practitioner
