AN
APPLICATION FOR
LEAVE TO APPEAL AGAINST A DECISION OF THE SUPREME COURT
HLATSHWAYO
AJCC
[1] This
is an opposed application for leave to appeal against a decision of
the Supreme Court (“the court a
quo”)
made in terms of section 167(5)(b) of the Constitution as read with
Rule 32(2) of the Constitutional Court Rules, 2016 (“the Rules”).
FACTUAL
BACKGROUND
[2] This
application emanates from an election petition lodged with the
Electoral Court to nullify the election of the respondent and to
declare the applicant as a duly elected Member of Parliament for
Chegutu West. The background to the matter is that in July 2018 the
applicant took part in a parliamentary election in Chegutu West in
which the respondent was declared the winner
by
10,932 votes as opposed to 10,828 votes attributed to the applicant.
The applicant lodged a complaint with the Zimbabwe Electoral
Commission (ZEC) District Elections Officer challenging the results
of that election on the basis that ZEC had made mistakes in collating
and verifying the results. The mistake was apparently admitted by
ZEC.
[3]
On 10 August 2018 the applicant filed a petition in the Electoral
Court seeking
the correction of the erroneous declaration.
The Electoral Court held that the petition fell foul of the
peremptory requirements of Rule 21 of the Electoral (Applications,
Appeals and Petitions) Rules 1995 which sets out certain peremptory
requirements pertaining to the form and content of an election
petition. The applicant had brought the petition on notice and the
court held that the form and content of the petition did not comply
with Rule 21, rendering it fatally defective. The court found that
the applicant had failed to present his case in the proper format
required by law and there was therefore no valid petition before the
court. The petition was accordingly dismissed.
[4]
The applicant noted an appeal to the court a
quo.
Firstly, he averred that the petition was not fatally defective for
having been brought on notice as section 169 of the Electoral Act
[Chapter
2:13]
made such notice mandatory. Secondly, he contended that the Electoral
Court could have condoned non-compliance with its rules
as
section 17(9) of the Electoral Act vests the court with such
competence to condone. Lastly,
he contended that the court failed to consider the merits of the
petition despite
ZEC having acknowledged the error that resulted in the undue return
complained against.
[5]
Before the matter was heard, the respondent gave written notice of
a preliminary objection in the proceedings. He averred, inter
alia,
that the court a
quo
was barred from adjudicating the appeal on account of section 182(2)
of the Electoral Act which requires an election appeal to be disposed
of within 3 months.
He
contended that once the prescribed period of 3 months expired, the
court has no jurisdiction to entertain the matter. Per
contra
the applicant submitted that section 182 of the Electoral Act did not
operate to bar the court from determining the appeal since the
applicant had already filed process and the matter was pending. His
argument was to the effect that
the
provision was not intended to non-suit a litigant who was already
before the court.
[6]
The court a
quo
held that it is a petitioner who is dominus
litis
in an election petition and that it is he or she who ought to seek
directions as envisaged by section 182 of the Electoral Act and
should be especially vigilant in monitoring and managing the progress
of their own cases in order to meet the stipulated time limits. It
further found that the 3 months period stated in section 182 was
mandatory and could not be exceeded under any circumstances. As a
result the respondent's point in
limine,
challenging the continued adjudication of the appeal beyond the time
limit prescribed by section 182(2) of the Electoral Act was sustained
and the appeal was removed from the roll.
[7]
Aggrieved by that finding the applicant filed the present
application on 15 April 2021. The respondent opposed the application
and argued, in limine,
that the applicant used the wrong form in that he filed a chamber
application when he ought to have lodged an ordinary application
according to Rule 32(2) of the Rules. He further averred that the
applicant could not properly appeal against the decision of the court
a
quo
because the decision did not turn on a constitutional issue and
lastly that the matter has no prospects of success.
APPLICANT'S
SUBMISSIONS BEFORE THIS COURT
[8] Counsel
for the applicant argued that two questions arose for determination
and these related to whether the applicant was raising a
constitutional matter and whether section 182(1) of the Electoral Act
is directory rather than mandatory. Counsel submitted that there was
no doubt that he sought to raise a constitutional issue and that it
was in the interests of justice to approach the court because the
Supreme Court interpreted section 182(2) in a manner which made it
constitutionally non-compliant. His argument was to the effect that
the judgment a
quo
raised the constitutional question of whether interpreting section
182(2) of the Electoral Act as a bar to the hearing of an appeal that
was filed on time amounts to an unconstitutional limitation of the
right to access the courts under section 69(2) and (3), right to vote
under section 67(1)(a), (b), 67(3)(a) and (b) and the right to
protection and benefit of the law under section 56(1) of the
Constitution. The applicant submitted that since the provision in
question was capable of two reasonable constructions, it raised a
constitutional issue which required interpretation with the
construction which is more constitutionally compliant being adopted.
In this light, counsel submitted that there were prospects of success
in that the meaning which the court a
quo
had preferred resulted in the unconstitutionality of section 182(2)
of the Electoral Act.
[9]
Counsel for the applicant further submitted that section 182(2) of
the Electoral Act is directory rather than mandatory and cannot
constitutionally operate as a time bar to the determination of an
appeal already properly pending. It was the applicant's submission
that the above provision is capable of two reasonable constructions
and the one more constitutionally compliant should have been adopted
for the reason that the ouster of a court's jurisdiction is
constitutionally incompetent in the absence of clear and unambiguous
language used by the legislature. It was Counsel's case that the
court a
quo
erred by interpreting section 182(2) of the Electoral Act as
mandatory because it has an effect of placing an unconstitutional
limitation on the right of access to the courts under section 69(2)
and (3) of the Constitution together with the right to protection of
the law under section 56(1) of the Constitution. He further argued
that ZEC had already admitted to committing the error and as such the
decision by the court a
quo
to throw out the petition had an effect of undermining the integrity
of democracy which is demanded by section 46 of the Constitution. He
thus moved the Court to grant the applicant leave in the interests of
upholding the Constitution.
RESPONDENT'S
SUBMISSIONS BEFORE THIS COURT
[10] Counsel
for the respondent abandoned his preliminary objection at the hearing
and in opposing the
application submitted that the application was a disguised appeal
against the final judgment of the court a
quo.
He contended that the proceedings a
quo
did not turn on a constitutional question but rather turned on the
applicant's failure to have his electoral appeal determined within
the three-month period set by section 182(2) of the Electoral Act. He
submitted that the Supreme Court made no constitutional pronouncement
capable of being appealed and determined by this Court and as such
the applicant's application was devoid of merit. Counsel further
argued that no competent constitutional question could be extracted
from the decision of the court a
quo
and as such this Court has no competence to hear and determine the
matter since it does not involve the interpretation or enforcement of
the Constitution.
[11]
Counsel for the respondent contended that it was incumbent upon the
applicant, as dominus
litis,
to effectuate section 182(2) of the Electoral Act and cause the
timeous hearing and determination of his appeal before the court a
quo.
He further submitted that electoral petitions are legal processes
that are specifically regulated by statute and in this case the
provision in question, section 182(2) of the Electoral Act, clearly
dictates that an appeal seeking to impugn the decision of the
Electoral Court can only be lodged in terms of section 172(2) of the
Electoral Act and such appeal must be determined within 3 months from
the date of lodgement of such. In turn he argued that the 3 months
timeline is peremptory and allows for no extension. Accordingly, the
adjudication of the appeal a
quo
outside the time limit would have been irregular and aberrant to our
law. In effect, counsel averred that it was not possible for the
court a
quo
to depart from the bounds of statute which would have been
unconstitutional and a violation of the rule of law. He thus moved
for the dismissal of the application.
APPLICATION
OF THE LAW TO THE FACTS
[12] In
terms of section 167(5)(b) of the Constitution, the Rules must allow
a person, when it is in the interests of justice and with or without
leave of the Court, to appeal directly to the Court from any other
court. Rule 32 of the Rules gives effect to section 167(5)(b) of the
Constitution. It provides as follows:
“32.
Leave to appeal
(1)…
(2)
A litigant who is aggrieved by the decision of a subordinate court on
a constitutional matter only, and wishes to appeal against it to the
Court, shall within fifteen days of the decision, file with the
Registrar an application for leave to appeal and shall serve a copy
of the application on the other parties to the case in question,
citing them as respondents.”
[13]
Section 167(1)(b) of the Constitution makes it clear that the
jurisdiction of the court is limited to deciding only constitutional
matters and issues connected with decisions on constitutional
matters. The case of Lytton
Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor
CCZ11/18 is instructive with regard to the specialised jurisdiction
of the Court. At p9 of the cyclostyled judgment the Court held thus:
“The
Court is a specialised institution, specifically constituted as a
constitutional court with the narrow jurisdiction of hearing and
determining constitutional matters only. It is the supreme guardian
of the Constitution and uses the text of the Constitution as its
yardstick to assure its true narrative force. It uses constitutional
review predominantly, albeit not exclusively, in the exercise of its
jurisdiction.”
[14]
In Muza
v Saruchera and Ors
CCZ5/19 the court noted that the purpose of the right of appeal
granted to a person under Rule 32(2) of the Rules, the procedure of
an application for leave to appeal provided therein and the contents
of the application required under Rule 32(3)(c) of the Rules, are
premised on the existence of a decision by a subordinate court on a
constitutional matter only. It is incumbent to note that the purpose
of the Rules is to ensure proper exercise of jurisdiction by the
court. The matter that gives rise to the need for the court to
exercise its jurisdiction must be a constitutional matter decided by
the subordinate court.
[15]
It is the applicant's case that the decision of the court a
quo
violated his right to access the courts under section 69(2) and the
right to protection and benefit of the law under section 56(1) of the
Constitution when it held that section 182(2) of the Electoral Act
ousted its jurisdiction to hear the matter outside the time limits.
With regard to the provision in question, the court a
quo
held the following:
“In
the result, the respondent's point in
limine,
challenging the continued adjudication of this appeal beyond the time
limit prescribed by section 182(2) of the Electoral Act, is sustained
and must be upheld. Consequently, the appeal can no longer be heard
or determined by this Court for want of jurisdiction.”
[16]
Clearly the applicant's submission is devoid of merit. The matter
before the court a
quo
was a simple electoral appeal against the finding of the Electoral
Court which dismissed the applicant`s electoral petition. In
disposing of that appeal, the court a
quo
applied the case of Sibanda
& Anor v Ncube & Ors / Khumalo & Anor v Mudimba & Ors
SC 158/2020 and removed the matter from the roll. The basis of that
decision was that the court could not entertain the appeal because
the time within which that appeal ought to have been determined had
lapsed, largely due to the applicant`s attitude who, as the dominus
litis,
sat on his laurels instead of timeously ensuring the prosecution of
his appeal as is demanded by section 182(2) of the Electoral Act.
[17]
In effect, the court a
quo
interpreted the provisions of the Electoral Act in coming to its
conclusion. It never interpreted, protected or enforced the
Constitution. The clear result is that the court a
quo
was never seized with a constitutional matter and neither did it
decide one. Du
Plessis, Penfold and Brickhill
“Constitutional Litigation” (1ed, Juta & Co Ltd, Cape Town,
2013) at p20 states:
“The
interpretation of legislation is not always a constitutional matter,
it is only the case if the Constitution is brought to bear in the
interpretive exercise.”
[18]
The applicant in advancing his argument sought to rely on Chagi
and Ors v Special Investigating Unit
2009 (2) SA 1 (CC) at para 14 wherein it was held as follows:
“The
correct interpretation and effect of a statutory provision is not
ordinarily a constitutional matter. A debate on the construction of a
particular provision does, however, raise a constitutional issue or a
matter connected with a decision of one if the provision is capable
of two reasonable constructions, the one being more constitutionally
compliant than the other.”
The
applicant submitted that the provision in question was capable of two
reasonable constructions, and, thus, it raised a constitutional issue
and the court a
quo
failed to interpret the section in a manner that makes it
constitutionally compliant. The court a
quo
upheld the respondent's preliminary objection on the basis that the
time limits imposed by section 182 of the Electoral Act were
mandatory and were to be strictly complied with. Thus, the finding by
the court a
quo
involved a straightforward application of law and did not raise
constitutional questions about the validity or the proper
interpretation or development of that law. In coming to this
conclusion, the court a
quo
did not decide a constitutional matter because there was no need to
interpret, enforce or protect the Constitution in order to come to
the conclusion that the applicant was out of time in executing his
appeal. As such, the applicant's argument in this regard ought to
fail.
[19]
The applicant also argued that
section 182(2) of the Electoral Act is directory rather than
mandatory and cannot constitutionally operate as a time bar to the
determination of an appeal already properly pending. In this regard
he contends that the court a
quo's
interpretation of the provision had the effect of violating his right
to access the court and to protection of the law.
Section
182 of the Electoral Act governs the time within which election
petitions and appeals are to be determined and it stipulates as
follows:
“(1)
Every election petition shall be determined within six months from
the date of presentation.
(2)
An appeal under section 172(2) shall be determined within three
months from the date of the lodging of the appeal.
(3)
For the purpose of ensuring that an election petition or an appeal
is determined within the time-limit prescribed in subsection (1) or
(2), as the case may be —
(a)
the Judge President of the High Court or the presiding judge of the
Electoral Court, in the case of an election petition; and
(b) the
Chief Justice or the senior presiding judge of the Supreme Court, in
the case of an appeal from a decision on an electoral petition; may,
notwithstanding any other enactment, give such directions as to the
filing of documents and the hearing of evidence and argument as will,
in his or her opinion, ensure that the time-limit is met, and the
parties shall comply with those directions.”
[20]
The
Electoral Act is clear in its language that an electoral appeal ought
to be determined within
three months. The provisions
are
imperative and therefore mandatory and the time limits stipulated in
those provisions cannot be exceeded under any circumstances. It also
follows that any adjudicative proceedings that may be conducted
beyond those time limits are rendered nugatory and must be regarded
as being null and void. In this light, the court a
quo
correctly held that the applicant as the dominus
litis
ought to have been vigilant in monitoring and managing the progress
of his case in order to meet the stipulated time limits. The
applicant could not sit back and wait for the appeal to be prosecuted
in the normal run of things as that would certainly entail the
determination of the appeal outside the 3 month
prescribed
time limit.
It
is for the above reasons that the court is of the view that the
interpretation sought to be ascribed to section 182 of the Electoral
Act by the applicant is unreasonable. There is only one reasonable
interpretation which was adopted by the court a
quo,
hence it found that it did not have the jurisdiction to hear the
matter.
[21] The
court holds that the applicant has failed to demonstrate that a
constitutional matter was determined by the court a
quo,
hence no appeal can lie against it. The removal from the roll of the
appeal by the court a
quo
remains final. It cannot be appealed against because the Supreme
Court is the final court of appeal in Zimbabwe, except in matters
over which the Constitutional Court has jurisdiction as stipulated in
section 169(1) of the Constitution of Zimbabwe. As such, the
application has no merit and it ought to be dismissed. However, as
far as costs are concerned, nothing has been submitted to persuade
the court to depart from the approach that no order of costs should
be awarded in constitutional matters. Clearly, whilst right from the
outset this matter could have been more competently and expeditiously
handled by the applicant and his lawyers, there is nothing in this
application that suggests an abuse of the court's processes
meriting an order of costs. Equally it would be improper to expect
this Court to bend the rules and seek to rectify the situation in
this application as that would set a bad precedent.
DISPOSITION
[22]
In the result, the application be and is hereby dismissed with no
order as to costs.
GARWE
AJCC:
I
agree
GOWORA
AJCC: I
agree
DNM
Attorneys,
applicant's
legal practitioners
Chambati,
Mataka & Makonese, respondent's legal practitioners
As
the playwright William Shakespeare aptly observed in the play, the
Merchant of Venice,
Act IV, setting a bad precedent must be avoided at all costs.
Bassanio:
Wrest once the law to your authority: To do a great right, do a
little wrong and curb this cruel devil of his will.
Portia:
It must not be; there is no power in Venice can alter a decree
established. It will be recorded for a precedent, and many an error
by the same example will rush into the state; it cannot be.
