ELECTORAL PETITION
KUDYA J: At the management
meeting held on 21 May 2005, four preliminary issues were referred to
trial. These were whether or not the petition was served on time;
whether there was proper service on the second respondent; whether
security for costs was provided and whether or not the 2nd
respondent was properly joined to the petition.
At the hearing, on noticing that
the petition had been lodged with the Registrar of this Court on 15
April 2008, I raised the further issue of whether it was presented
within the time limits set out in section 168(2) of the Electoral Act
[Chapter
2:13],
hereinafter called the Act.
The brief facts were these.
Tsitsi Veronica Muzenda, the
petitioner, of the Zimbabwe African National Union (Patriotic Front)
ZANU (PF) party, stood as a senatorial candidate for the
Gweru-Chirumanzu senatorial constituency during the harmonized
elections held in Zimbabwe on 29 March 2008. She competed for office
with Patrick Kombayi, the 1st
respondent, of the Movement for Democratic Change-Tsvangirai party
MDC-T. The election was run and conducted by the Zimbabwe Electoral
Commission, the 2nd
respondent.
The petitioner became aware that
the 1st
respondent had won the seat on 5 April 2008 and filed the petition on
15 April 2008.
It was served on 6 May 2008 by
the Deputy Sheriff at Harvest House, the headquarters of the 1st
respondent's political party. The return of service indicates that
a court application was served on one Muzuva, a security officer who
accepted service on behalf of the 1st
respondent.
Another copy was served on 2nd
respondent at its place of business on the same day. The petition
did not show that security for costs had been furnished. The 1st
respondent was not served with any recognizance.
Mr. Musimbe,
for the petitioner was to advise the Court from the bar in argument
that the security for costs was paid in the sum set by the Registrar
and out of an abundance of caution recognizance entered at the same
time on 23 April 2008.
The 1st
respondent received the petition on 19 May 2008.
The petitioner provided minimal
facts of the events that triggered the application. She did not
provide the date on which the 1st
respondent was declared the winner by the constituency election
officer in terms of section 66(1) of the Act. She referred to a
recount of votes but did not provide any details on the date it was
held and its outcome. Some of the facts that appear in her heads of
argument were not pleaded in her founding affidavit.
The duty to present an election petition is cast on the losing
candidate by section 167 of Act.
Its format and period of presentation are set out in section 168 of
the Act.
It has to be presented within 14 days after the date on which the
declaration of the result in the last constituency for senatorial
elections is made.
The duty is placed by the Act on the petitioner to establish this
fact. It is this fact alone which triggers this legal right for her.
Failure by her to establish it would be fatal to her case for the
reason that she would have failed to bring her self into the
protective ambit of the Act.
The facts alleged in the affidavit deal with corrupt practices which
occurred before and during the election but not after the elections.
It is only illegal practice as defined that occurred after the
announcement by the constituency elections officer in the last
constituency that triggers the 30 day notice period from the date of
the alleged illegal practice that is provided in the proviso to
section 168(2) of the Act. The petitioner could only bring her
petition within the 14 day period.
I, however, requested that the
information that is required to initiate the petition be provided by
the 2nd
respondent.
At the hearing Mr. Chikumbirike,
for the 2nd
respondent, produced a document from 2nd
respondent which showed that the declaration of the last result in a
House of Assembly constituency had been made on 4 April 2008 for the
Kariba constituency.
Mr. Kufaruwenga,
for the 1st
respondent, correctly in my view, abandoned argument on whether or
not the petition had been filed on time.
I accept his reasoning that if the result for the House of Assembly
seat was announced in Kariba on 4 April 2008, it was unlikely that
the result for the senatorial constituency which incorporated the
Kariba constituency would have been declared earlier given its size.
The effect of 4 April was that in
terms of section 33(4) of the Interpretation Act [Chapter
1:01] the petitioner
had at least until 21 April 2008 to present her petition as the 14
day period would have ended on 18 April, a public holiday, which was
followed by a Saturday and Sunday. See Nyamapfeni
v The Constituency
Registrar for Mberengwa East & Others
HH27/2008 and the cases cited therein.
In casu, the petition having been filed on 15 April 2008 was
presented on time. The issue that I raised, therefore, falls away.
I proceed to deal with the issues
that were referred to trial in
seriatim.
Whether the petition was served on time and whether proper service
was done
These two issues can be conveniently dealt with at the same time.
They both arise from the provisions of section 169 of the Act.
In essence, they seek to answer
the question whether service, firstly, outside the 10 day period; and
secondly, on the political party headquarters of the 1st
respondent was in compliance with section 169 of the Act.
The section reads:
“169
Notice of election petition to be served on respondent
Notice
in writing of the presentation of a petition and of the names and
addresses of the proposed sureties, accompanied by a copy of the
petition, shall, within ten days after the presentation of the
petition, be served by the petitioner on the respondent either
personally or by leaving the same at his or her usual or last known
dwelling or place of business.”
The petitioner is mandated by the section to serve the petition on
the respondent within 10 days. These are 10 ordinary days.
The petition was filed on 15 April 2008. The 10 day period expired
at the close of business on 25 April 2008. Service took place on 6
May 2006.
It was therefore done outside the timeframe set out in s169.
Pio
v Smith 1986 (3) SA
145 (ZH) is authority for the proposition that strict compliance as
opposed to substantial compliance is called for in a provision, such
as this, which is designed to serve the public interest of speedily
determining the controversy between the petitioner and the winner.
The Supreme Court of Zimbabwe, in
Movement for Democratic
Change & Anor v
Mudede NO & Others
2000 (2) ZLR 152 (S), laid out the approach to be followed in
interpreting statutory provisions which are couched in peremptory
language such as the present one.
McNally JA first surveyed the
shift from the idea that a peremptory worded provision envisaged
strict compliance while a directory one required substantial
compliance before adopting the position enunciated by Gubbay J, as he
then was, in Ndlovu Ex
p 1981 ZLR 216 (G) at
217F that:
“the test of whether a defect
such as this (giving inadequate notice in an application for
rehabilitation of an insolvent) is formal or substantive is not
whether the statutory provision is directory or peremptory, but
whether it aims at some definite object and whether having regard to
the particular facts, non-compliance therewith will result in the
defeat of that object.”
In the process he set out a useful four step approach which enjoins a
judicial officer to consider:
1. the relevant legislation.
2. what actually happened.
3. whether the provisions of the
relevant legislation were substantially complied with.
4. whether there was any
prejudice as a result of non-compliance.
I find that the application of this approach is substantially similar
to the one in Pio's case and that it produces the same result.
I have already set out the
relevant legislation. Notice in writing of the presentation was
given. A copy of the petition was served with the notice. The names
and addresses of the proposed sureties were not given and were not
served with the notice and the petition, even though these had been
furnished to the Registrar on 23 April. The service was done 11 days
after the due date. Service was, however, done at the political
headquarters of the 1st
respondent. It was not personal service. The party headquarters was
not his usual or last known place of dwelling.
It was common cause that the 1st
respondent resides in Gweru. He operates commercial businesses in
Gweru. His usual place of residence, that is, where he normally lives
on a day to day basis is in Gweru. He does not live at his political
party headquarters. He is not employed by his political party. He
does not work at or from his political party headquarters on a day to
day basis.
The 1st
respondent's objections were to the period within which service was
done and to the place where it was done.
I fail to perceive how the petitioner could substantially comply with
the 10 day period when she accepts that she acted outside that
period. She was required to abide by that period. She did not do so.
Mr. Musimbe
contented that the petitioner failed to meet the 10 day deadline
because of the legal vacuum created by the inability of the Registrar
to set the amount of security within the 7 day period specified in
section 168(3).
I found this explanation incomprehensible given that the security had
been provided to the Registrar 2 days before the expiration of the 10
day period.
The petitioner was therefore not affected by any perceived vacuum in
the legislation.
It is, in any event, difficult to apply the concept of substantial
compliance to the realm of fixed time frames. Fixed time frames would
appear to require strict compliance.
In casu,
the petitioner did not comply with the 10 day period.
The question of substantial
compliance and that of prejudice, therefore, falls away. If prejudice
were required, as so ably noted by Mfalila J in the Pio
case it arises to the
public interest which requires firstly, that the law be obeyed and
secondly, that electoral petitions be speedily determined.
On the question of service at the party headquarters, the issue is
not whether service was done, but whether it was proper service.
The petitioner and the 1st
respondent competed for the Gweru-Chirumanzu senatorial seat in that
constituency. The 1st
respondent is domiciled and has commercial interests in that
constituency. He does not operate from his party's political
headquarters in Harare. The petitioner simply did not adhere to the
provisions of the section.
Again, the question of substantial compliance does not rise.
Even if it did, the petitioner's
acts were prejudicial to the 1st
respondent. He saw the petition on the 9th
court business day.
Even if it was competent for the petitioner to give him 14 days
within which to oppose, he did not have adequate time to prepare for
his defence, a fact underscored by his inability to file any opposing
papers by the time of the management meeting.
In the light of decisions such as
Nyamapfeni's
case, supra and
Chitungo v Munyoro &
Anor 1990 (1) ZLR 52
(H) it is axiomatic that an Electoral Court has no powers of
condonation. Its powers are found only in the four corners of its
constitutive statute. Hove
v Gumbo SC143/2004
underscores the fact that it has no inherent powers.
I determine the first two issues
in favour of the 1st
respondent.
I hold that the service of the 6 May 2008 was a nullity for two
reasons. Firstly it was served in contravention of the 10 day period
and secondly, at the wrong place, in violation of the provisions of
section 169 of the Act.
I would accordingly dismiss the petition with costs.
Whether security for costs was provided
The third issue concerns the failure to furnish security for costs.
The petitioner apparently paid the amount fixed by the Registrar and
out of an abundance of caution entered into the required recognizance
on 23 April 2008. He should have done so by 22 April, but could not
because no sum had been set by the Registrar. He did provide security
as soon as the Registrar set a figure.
Where a public functionary is to
blame for failure to comply, even though the Supreme Court left the
question open in Pio v
Smith 1986 (2) ZLR 12
(SC) at 132C-F, it has been held that a case for substantial
compliance is made. See Pio's
case at 163 J.
I would find the provision of
security on the 23 April in substantial compliance with the
provisions of the Act in line with the example set out by Mfalila J
in Pio's case
at page 165I-J. I conceive of no prejudice to the 1st
respondent who could on service of the petition object to the amount
set.
My view is that once the petitioner pays the amount fixed, it is not
necessary for him to provide the respondent with the list and names
of sureties. He only does so where he enters into a recognizance.
I would have found for the petitioner on the question of security for
costs.
3. Whether the 1st
respondent was properly joined as a party
Mr. Chikumbirike
objected to the citation of 1st
respondent in the petition. He relied on the definition of respondent
found in Part XXIII in section 166 of the Act. The section reads as
follows:
“166
Interpretation in Part XXIII
In
this Part—
“respondent”
means the President, a member of Parliament or councillor whose
election or qualification for holding the office is complained of in
an election petition.
[Definition
substituted by section 78 of Act 17 of 2007]”
He invoked the maxim expressio
unius est exclusio alterius
in aid of his objection.
According to Francis
Bennion in his book Statutory
Interpretation,
Butterworths 1988, at p844 the expression means “to express one
thing is to exclude another.”
Mr. Chikumbirike
submitted that the
legislature deliberately defined respondent in the Act so as to
exclude the 1st
respondent in circumstances where it would automatically have been
included by virtue of its overarching role in running and conducting
elections. He advanced six reasons upon which he based his submission
that the exclusion was deliberate.
Mr. Musimbe,
for the petitioner, on the other hand submitted that 2nd
respondent was properly cited because it is an interested party which
is charged with the responsibility of giving effect to the order of
court. He based his submission on the common law principle of joinder
and relied on Tsvangirai
v Mugabe and The Electoral
Supervisory Commission
HH109/2005.
He contended that the 2nd
respondent would have no obligation to give effect to the
determination the Court arising from proceedings in which it did not
participate.
He further argued that grave
injustice would visit the petitioner if the 2nd
respondent's officials who are implicated in electoral malpractice
are not called to testify.
He seemed to believe that they
could only testify if the 2nd
respondent was cited as a respondent.
I am persuaded by the six reasons
that were advanced by Mr. Chikumbirike.
They clearly demonstrate that the legislature deliberately excluded
the citation of the Zimbabwe Electoral Commission as a respondent in
electoral petitions brought under Part XXXIII of the Act.
With the full knowledge of 1st
respondent's mandate in election matters, the legislature firstly,
in s166 did not include it as a respondent, obviously in a bid to
guarantee its neutrality in the conduct of elections. Secondly, the
1st
respondent is excluded from the protective ambit of s168(3). Thirdly,
in s171(3)(b)(ii) it mandated the Electoral Court to certify its
determination to amongst others, the 1st
respondent, which in itself would be an anomalous method of alerting
a respondent who is before it of its decision. In fact the other
persons who are notified are not respondents but public officials.
Fourthly, in s171(a) and (b) the 1st
respondent may be made to pay costs or a portion thereof for the
culpable conduct of its officials, an obvious fate that befalls any
loosing or maligned respondent. Fifthly, in section 158 as read with
section 171(4)(b) any person alleged to have committed an electoral
malpractice may be called to vindicate his or her name before such a
finding is made against him or her.
In any event, “means” is the operative word in section 166 of the
Act. It carries a different import from such words as “includes”.
It is peremptory in nature.
I find that the force of
reasoning in the Movement
for Democratic Change v Mudede,
case, supra,
is such that in defining respondent in s166 of the Act, the
legislature intended to demonstrate beyond doubt the centrality of
the winning candidate in election petitions. The challenge is to him
or her. His conduct is impugned in terms of section 167 and measured
against the principles set out in section 3 of the Act.
Sections 155 to 157 make the winner liable for the acts of commission
or omission that he or his agents or any other person commits with
his or their knowledge and consent or approval.
A finding that the election was tainted to such an extent as would
materially affect its outcome triggers, by operation of law, the
holding of a new election.
The 2nd
respondent does not have the authority, luxury or inclination to
decline to hold such an election in those circumstances.
I therefore discern of no
conceivable reason in either law or logic why the 2nd
respondent should be cited as a respondent under Part XXXIII of the
Act.
Mfalila J was of the same view at
page 166E-H in Pio's
case. He held that the predecessor functionaries of the 2nd
respondent could not be cited as a respondent under the then
prevailing Electoral Act.
The reliance placed by Mr.
Musimbe
on Tsvangirai v Mugabe
and The Electoral Supervisory Commission,
supra,
as authority for the proposition that the first respondent was
properly cited was misplaced.
Hlatshwayo J at p6 based his
decision for approving the joinder of the Electoral Supervisory
Commission, the predecessor of the
2nd
respondent, on the common law principle of locus
standi and Rules 85,
86 and 87 of the High Court Rules.
The only difficult I have with
reference to the common law is that an election petition is unknown
to common law. See Hove
v Gumbo SC143/2004 at
page 19.
Further, it does not appear to me that the rules of the High Court
would supercede the definition of respondent set out in section 166
of the Act.
In any event, as was submitted by
Mr. Chikumbirike,
as his sixth reason, the Tsvangirai
case is
distinguishable from the present matter in that it concerned a
presidential election petition while the present involves a
parliamentary election petition.
The Electoral Act [Chapter
1:01], under
consideration in that case, did not in section 102 define respondent
for presidential petitions. Under that old Act, petitions were
referred to the High Court and not, as at present, to the Electoral
Court, a special court created under the Electoral Act No. 25/2004.
Citing 1st
respondent or more correctly its Chairman is not permitted by the Act
in election petitions.
I fail to see how citing the 1st
respondent can be said to be in substantial compliance with the Act
when the Act excludes it.
The citation of the 1st
respondent in name is contrary to the provisions of section 18 of the
Zimbabwe Electoral Commission Act which incorporates the modus
operandi set out in
section 3 of the State Liabilities Act [Chapter
8:14] for citing
government ministries and departments.
It directs that the Chairman of
the 1st
respondent be cited.
The citation of the wrong party
renders the petition as against the 2nd
respondent void. See Savanhu
v Post Master
General 1992 (2) ZLR
455 and Sibanda v Post
Master General
HH263/1990.
Thus even if the 1st
respondent were properly joined in the petition, I would still
dismiss it on the basis that the wrong party was cited.
I, however, hold that the Zimbabwe Electoral Commission was
improperly joined as a party in this petition.
I am satisfied that the petition
is a nullity by reason of non-compliance with the provisions of
section 169 of the Act.
It is accordingly dismissed with costs.
It is declared that the Zimbabwe Electoral Commission was wrongly
cited and is hereby removed as a party to this petition. The
petitioner shall bear its costs.
Mutumbwa Mugabe & Partners, petitioner's legal
practitioners
Dzimba, Jaravaza & Associates, 1st
respondent's legal practitioners
Chikumbirike & Associates, 2nd
respondent's legal practitioners
