ELECTORAL PETITION
KUDYA J: At the management
meeting that was held on 21 May 2008, three preliminary issues were
referred to trial. They were framed as follows:
1. Whether the petition is out of
time and if so whether this is fatal to the petition.
2. Whether the failure to file
security for costs timeously renders the petition void.
3. Whether the 1st
respondent was properly joined as a party.
THE FACTS
The brief facts in this matter are as follows.
On 29 March 2008, the harmonized
presidential, parliamentary and council elections were held in
Zimbabwe. Hillary Simbarashe, the petitioner, stood as an independent
candidate for the House of Assembly seat in the Mutoko North
constituency. The elections were run and conducted by the Zimbabwe
Electoral Commission, the 1st
respondent. Mabel Chinomona, the 2nd
respondent, of the Zimbabwe African National Union (Patriotic Front)
ZANU (PF) was one of the candidates who battled it out with the
petitioner. On 31 March 2008, she was declared the winner.
The petitioner was unhappy with
the pre-election and post-election environment as well as the manner
in which the election was conducted. Accordingly, he lodged the
present petition with the Registrar on 16 April 2008. The date of
service was not disclosed, but the 2nd
respondent filed her opposing papers on 15 May 2008. She, amongst
other things, raised the first two preliminary issues referred for
trial. The 1st
respondent opposed the petition on the basis of misjoinder, hence the
third issue.
When I set down the matter for hearing, I directed the parties to
furnish me, at the hearing, with information from the Zimbabwe
Electoral Commission indicating the date on which the result in the
last constituency for election to the House of Assembly was announced
by the constituency election officer for that constituency.
This was not done.
I, however, proceeded to hear the
matter on the understanding that I would deliver this judgment after
that information had been availed. It was only provided by Mr.
Chikumbirike,
for the 1st
respondent, in the morning of 6 June 2008.
He produced a document which has three columns. The first column
indicates the province in which the House of Assembly seat is found,
the second indicates the constituency and the last the date on which
the V23 form was signed by the constituency elections officer. The
signature is appended on the date on which the constituency elections
officer declares the winning candidate. The last V23 form was signed
on 4 April 2008 for the Kariba constituency.
The parties were therefore agreed that the declaration of the result
in the last constituency was made on 4 April 2008.
THE SUBMISSIONS
1. Whether the petition is out
of time and if so whether this is fatal to the petition
Mr. Mandizha,
for the 2nd
respondent, submitted that the petitioner is non-suited for lodging
the petition outside the 14 day period. He computed the period from
31 March 2008, the date on which the 2nd
respondent was declared the winner.
Mr. Ncube,
for the petitioner, on the other hand, contended that the petition
was not filed out of time. He contended in his heads of argument that
the 2nd
respondent had not shown that the result of the election had been
notified in terms of the Electoral Act [Chapter
2:13] hereinafter
referred to as the Act. He based this argument on the provisions of
section 67 and 68 of the Act.
In his view, the effect of these
provisions is to establish the date on which the winner is officially
declared as such in an election of this kind. This argument was made
despite the petitioner's averment in his founding affidavit that
the 2nd
respondent was duly declared the winner on 31 March 2008. Clearly, on
the basis of this averment, his line of argument was unsustainable.
The 14 day period for the presentation of a petition is set out in
sub-section (2) of section 168 of the Act. It reads:
“(2)
An election petition shall be presented within fourteen days after
the end of the period of the election to which it relates:
Provided that, if the return
or election is questioned upon an allegation of an illegal practice,
the petition may be presented, if the election petition specifically
alleges a payment of money or some other act to have been made or
done since that day by the member or an agent of the member or with
the privity of the member or his or her chief election agent in
pursuance or in furtherance of the illegal practice alleged in the
petition, at any time within thirty days after the day of such
payment or other act.
[Subsection amended by section
79 of Act 17 of 2007]”
The phrase 'period of the election' is defined in section 4, the
interpretation section of the Act, as:
“election
period” or “period of an election” means —
(b)
in the case of a general election for the purpose of electing Members
of Parliament, the period between the calling of the
election and the declaration of the result of the poll for the last
constituency in terms of section 66(1).”
I concentrate on the 14 day period in this judgment because the
petitioner has not sought to rely on the proviso which allows the
filing of an election petition within 30 days from the date on which
an illegal practice as defined in Part XX of the Act occurs. The
illegal practice must have occurred after the declaration of the
result in the last constituency to which that election relates.
In his founding affidavit, in paragraphs 36 and 37, the petitioner
pleaded intimidatory practice rather than illegal practice.
The 14 day period commences to
run on the day following the declaration of the result of the poll
for the last constituency in terms of section 66(1) and not on the
date on which the result is notified as submitted by Mr. Ncube
who relied on the wording of that section before it was amended by
the Electoral Law Amendment Act No. 17 of 2007.
While the notification of the results to the chief elections officer
and the subsequent notification to the Clerk of Parliament and the
gazetting of the winner are important processes, the overriding
consideration for our purposes is the declaration made by the
constituency elections officer of the winning candidate in the last
constituency for a House of Assembly seat.
It is that date which is synonymous with the declaration of the
result for the last constituency of the election to which it relates.
The election, to which it
relates, in my view, would be for the House of Assembly and not for
the Senate, even though both are elections for Members of Parliament.
The parties were agreed that the declaration of the result for the
last constituency was made on 4 April 2008, for the Kariba
constituency.
The 14 day period for the
petitioner would expire on Friday, 18 April 2008. This was a public
holiday. The two days that followed were a Saturday and a Sunday. The
date which followed these was Monday, 21 April 2008. In terms of
section 33(4) of the Interpretation Act [Chapter
1:01], the 14 day
period would expire on 21 April 2008. See Nyamapfeni
v The Constituency Registrar Mberengwa East & 4 Others
HH27/2008; Ellis &
Another v Maceys Stores Ltd
1983 (2) ZLR 17 (SC); and Kombayi
v Berkhout 1988 (1)
ZLR 53 (SC).
The petitioner filed his petition on 16 April 2008. He, therefore,
did so timeously.
The effect of the information in
the document that was produced by Mr. Chikumbirike
was to dispose of the first issue in favour of the petitioner and
against the 2nd
respondent.
2. Whether the failure to file security for costs timeously
renders the petition void
The petitioner did not furnish security for costs within the period
of seven days after the presentation of the election petition, as set
out in section 168(3) of the Act.
The security is set in an amount fixed by the Registrar in a sum not
less than the amount prescribed by the Commission after consulting
the Chief Justice. It is benchmarked against the expected outlay of
all costs, charges and expenses that may be incurred by both the
petitioner and the respondent in the petition.
Subsection (4) of section 168 gives the petitioner the choice between
paying the fixed amount set in subsection (3) to the Registrar and
entering into recognizance with at most four sureties in the presence
of the Registrar or a magistrate.
It seems to me that once the petitioner has paid the security for
costs he or she is not obliged to execute a recognizance. A
recognizance is after all a bond entered into between the petitioner
and the sureties which is made for the benefit of the respondent.
This is one of the reasons why, in my view, it has to be served with
the petition. The other is that it affords the respondent the
opportunity to object not only to the names of the proposed
subscribers but also to the format and contents of the recognizance.
The 2nd
respondent objected in his opposing papers, filed on 15 May 2008, to
the failure to furnish security.
The petitioner produced at the
hearing, from the bar, proof that the security in the amount set by
the Registrar was paid on 20 May 2008. Payment was thus made after
the 2nd
respondent had raised it in his opposing papers.
Mr. Mandizha
submitted that the failure to provide security rendered the petition
void.
He contended that as section 168(3) was framed in peremptory
language, the petitioner had to strictly comply with its provisions.
The late payment that he made fell outside the time limits allowed by
the section under consideration. He was therefore non-suited.
Mr. Ncube,
on the other hand, contended that the petition was deemed to be at
issue because the 2nd
respondent did not object to the security within the period set out
in section 170(1). He therefore submitted that the petitioner could
not be non-suited.
Section 170(1) deals with the
method and grounds of objection. It also sets out the period within
which to object. That period would have to depend on the directions
given by the Electoral Court as there are no prescribed rules of
Court at the moment. It is clear from the wording of the subsection
that the creation of the recognizance precedes the objection. I fail
to comprehend how the petitioner expected the 2nd
respondent to object, at the time of service, to a non-existent bond.
The first contention of Mr. Ncube
in this regard must fail.
Mr. Ncube
further contended that as costs could only be paid at the conclusion
of the petition, failure to strictly comply with the 7 day period was
not fatal to the petition, as long as security was furnished before
the hearing. He argued that the late payment was in substantial
compliance with section 168(3).
The aim of providing for security
of costs is to guarantee the expenses that the respondent will incur
in defending the petition. The petitioner is requested to guarantee
payment of these costs in advance to demonstrate his seriousness in
challenging the election result. The security also serves to
discourage the petitioner from launching a vexatious and reckless
petition. See the sentiments of Berman J in Crest
Enterprises v Barnet and Schlosberg
1986 (4) SA 19 (C) at 20D.
In Movement
for Democratic Change & Anor v Mudede NO & Others 2000
(2) ZLR 152 (SC) at 158C-G, the Supreme Court accepted that
peremptory language in statutes did not necessarily require strict
compliance but could in the absence of prejudice require substantial
compliance.
At 154B-C, McNally JA introduced the 4-step approach to statutory
interpretation which he used at page159A. He enjoined the judicial
officer to consider the relevant legislation; what actually happened;
whether the provisions of the relevant legislation were substantially
complied with and whether there was any prejudice as a result of
non-compliance.
I apply these criteria to the provision under scrutiny.
Consideration of the relevant legislation
The subsection requires the petitioner to give security to the
Registrar within 7 days of the presentation of the petition.
What actually happened?
What actually happened was that
the petitioner did not provide such security for costs within 7 days
after the presentation of the petition. The 7 days expired on 23
April 2008. He served the petition on the 2nd
respondent who filed her opposition on 15 May 2008 and indicated that
the 7 day period for furnishing security had been breached.
Thereafter, the petitioner paid the security to the Registrar on 20
May 2008. He was out of time by 27 days.
Did the petitioner substantially comply with the subsection?
Substantial compliance entails some positive action on the
petitioner's part to provide security for costs within the
stipulated period. It does not entail the absence of any action on
the petitioner's part. The petitioner took no action whatsoever to
provide for security in the set period. He did not attempt to follow
the precepts of the subsection. He simply did not comply with the
provisions of the subsection.
Whether there was any prejudice as a result of the non-compliance
In the absence of a finding of
substantial compliance, it is unnecessary to make a finding on the
existence of prejudice. It suffices to note that his disdain of the
requirements of the subsection undermined the objective of the
section to have petitions dealt with seriously and speedily. He gave
the impression to the 2nd
respondent that he did not wish to pursue his grievance in a lawful
manner and led her to incur costs in bringing this preliminary
challenge resulting in prejudice to its speedy resolution.
It seems to me that failure to
comply with the 7 day period is fatal to the petition. After all, the
Electoral Court is not clothed with the powers of condonation for a
breach of any of the time frames that are set out in the Act. See
Chitungo v Munyoro
1990 (1) ZLR 52 (H) at 58H and Nyamapfeni's
case, supra,
at page 6.
I, therefore, hold that the failure to furnish security timeously
renders the petition void.
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.” In full Bennion,
supra, states thus:
“The maxim expressio
unius est exclusio alterius
(to express one thing is to exclude another) is an aspect of the
principle expressum
facit cessare tacitum
known in short as the expressio
unius principle, it is
applied where a statutory proposition might have covered a number of
matters but in fact mentions only some of them. Unless these are
mentioned merely as examples or ex
abundanti cautela or
for some other sufficient reason, the rest are taken to be excluded
from the proposition.
The expressio
unius principle is
also applied where a formula which itself may or may not include a
certain class is accompanied by words of extension naming only some
members of that class. The remaining members of that class are then
taken to be excluded.
Again, the principle may apply where an item is mentioned in relation
to one matter but not in relation to another matter equally
eligible.”
Mr. Chikumbirike
submitted that the
legislature deliberately defined respondent in the Act so as to
exclude the 1st
respondent in circumstances where it should automatically have been
included by virtue of its overarching role in running and conducting
elections. It did not desire that the 1st
respondent be made a party in electoral petitions. He advanced six
reasons upon which he based his contention that the exclusion was
deliberate.
Mr. Ncube,
on the other hand, submitted that 1st
respondent was properly cited because it is an interested party which
bears the responsibility to give effect to the order of the 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.
Mr. Ncube
referred to Merchant
Shipping Provisions Lowe v Dorling
1906 (2) KB 772 at 784; Blackburn
v Flavelle 1881 6 APP
CAS 628; Dettman v
Goldfain &
Another 1975 (3) SA
385; and Terblanche v
SA Eagle Insurance Company Ltd
1983 (2) SA 501 (N) and cautioned the Court against the application
of the principle in a manner that would result in grave injustice.
In his oral submissions Mr. Ncube
indicated that the
grave miscarriage of justice that would occur would be the failure by
1st
respondent to obey any court order arising from the petition if it
was not cited and secondly that the petition would be hamstrung and
compromised by a failure to call the evidence from any of the
officials of the 1st
respondent who are implicated in electoral malpractice.
I agree with Mr. Chikumbirike
that the six reasons
he advanced demonstrate the full force of the expressio
unius principle at
play in the present matter.
With the full knowledge of 1st
respondent's mandate in election matters, the legislature firstly,
in section 166 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 section 168(3).
Thirdly, in section 171(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 section 171(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.
These legislative provisions were
put in place to emphasize the fact that the 1st
respondent could not be a party to proceedings that relate to
petitions in terms of Part XXIII of the Act.
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. Again,
one resorts to the formulation in the Movement
for Democratic Change v Mudede,
case.
The parties who can be cited as respondents are indicated.
The legislature was aware that
the 1st
respondent was in charge of elections. The aim and object of defining
respondent in this limited fashion appears from the very nature of an
election petition. It is a challenge against the actions of the
winning candidate before, during and after an election. In other
words, at the center of an election petition is the winning
candidate. It is designed to impugn or vindicate the winner's acts
of commission and omission against the benchmarks set out in section
3 of the Act.
Section 167 of the Act outlines the causes of action in an election
petition.
These are the absence of qualification, disqualification, electoral
malpractice, irregularity or any other cause whatsoever.
The first two grounds arise directly from the candidate. Electoral
malpractice and irregularity may arise from the actions or omissions
of the candidate, his chief election agent, his election agent or of
any other person.
Part XXI, in sections 155, 156 and 157, of the Act deals with how an
Electoral Court may determine petitions.
It makes the winner liable for his or her own actions; for the
actions of his or her chief election agent; for the actions of his or
her agent; or for the actions of any person done with his or her
knowledge and consent or approval or the approval and consent of his
agents.
Once an electoral malpractice is found to have been committed with
the knowledge and consent or approval of the winner or of his agents
and that malpractice materially affected the election it renders that
election void and triggers the holding of a new election.
The effect is that the 1st
respondent is obliged to hold a new election. This is by operation of
law. The 1st
respondent does not necessarily require a citation in an election
petition to carry out this statutory mandate.
In addition, section 158 gives
the Electoral Court the power to call a person who is implicated in
electoral malpractice to testify in a bid to vindicate his or her
name. Officials of 1st
respondent and those seconded from the Public Service are not exempt
from such a summons.
What emerges from this Part of the Act is that an election is set
aside for the electoral malpractice committed by the candidate
whether personally or through his agents or by any other person with
his knowledge and consent or approval.
The 1st
respondent is not a candidate in such an election.
All it has to do is to await the
order of the court declaring an election valid or void. There is no
reason for it to be joined in as a party. No prejudice will arise to
either candidate or to the 1st
respondent if it is not cited. There is therefore no logical reason
for citing it.
My finding is in consonance with
that of Mfalila J in the Pio
v Smith 1986
(3) SA 145 at 166E-H, which I quote in full for its clarity. He
stated that:
“Issue
2: Whether the petitioner must be non-suited for failing to join the
presiding officer, the returning officer and the Registrar-General as
parties in these proceedings
I will not dwell at length on this issue because I agree with counsel
for the petitioner that the point raised therein has no merit.
The petitioner cannot be non-suited for failing to do that which is
not provided for or required by the statute. The question of the
State officials or the State being condemned unheard does not arise,
because, first, if one of the allegations is irregularities committed
by State officials, these can always be called as witnesses;
secondly, when it comes to the question of costs, the statute
provides machinery for the State to be heard. There was therefore no
duty on the petitioner to join any of the election officials; indeed
had he done so and cited them a successful application to have them
struck out could have been made, for even under s164 of the Act, the
Chief Justice has made no rules which could have provided for this.
For theses reasons I answer the second issue in the negative and say
that the petitioner cannot be non-suited for failing to join the
presiding officer, the returning officer and the Registrar-General as
parties in these proceedings.”
While the nature of the
application was different to the present one on the facts, Mfalila J
underscored the point that an institution in the shoes of the 1st
respondent could not be cited in an election petition.
I was referred to Tsvangirai
v Mugabe and The Electoral Supervisory Commission,
supra,
as authority for the proposition that the first respondent was
properly cited.
Hlatshwayo J at p6 based his
decision for approving the citation of the predecessor to the 1st
respondent in that case on the common law rule of the presence of a
direct and substantial interest 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, per Malaba JA in 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 aim of the section is to
bring the suit to the attention of the 1st
respondent through its head so that it can respond appropriately.
It is in reality the direct
opposite of what transpired in Savanhu
v Post Master
General 1992 (2) ZLR
455 and Sibanda v Post
Master General
HH263/1990 where the two employees cited the Post Master General
contrary to the stipulations of the Post and Telecommunications Act
which established the Post and Telecommunications Corporation as the
corporate body that was capable of suing and being sued.
Lacking common law powers, I fail to see how the error can be
corrected other than by withdrawing the matter and commencing
proceedings afresh.
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.
DISPOSITION
The petition is dismissed with
costs for failure by the petitioner to furnish security for costs
within the time frame stipulated in subsection (3) of the section 168
of the Electoral Act [Chapter
2:13].
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.
Gill, Godlonton & Gerrans, petitioner's legal
practitioners
Messrs Chikumbirike & Associates, 1st
respondent's legal practitioners
Messrs Mandizha & Company, 2nd
respondent's legal practitioners
