CHIDYAUSIKU CJ: This is an
appeal against the judgment of the High Court wherein PATEL J
dismissed the appellants' application to have set aside the election
of the second respondent as the Speaker of Parliament (hereinafter
referred to as "the Speaker").
The appellants, as the applicants
in the court a quo,
sought the following relief set out in the draft order:
"WHEREUPON after perusing the documents filed of record and
hearing counsel, it is hereby declared that:-
1. The election of (the) second respondent as the Speaker of the
Parliament of Zimbabwe on 25 August 2008 is null and void and set
aside.
2.…
3. That the respondents jointly and severally pay the costs of suit."
(The applicants abandoned the relief set out in paragraph 2.)
The appellants' main contention
in the court a quo
and in this Court is that the election of the Speaker was null and
void because it was not conducted in terms of section 39 of the
Constitution of Zimbabwe (hereinafter referred to as "the
Constitution"), as read with Standing Order 6 of the Standing
Orders of Parliament of Zimbabwe (hereinafter referred to as "the
Standing Orders").
PATEL J dismissed the application. The appellants now appeal against
that judgment.
The grounds of appeal are set out in the Notice of Appeal, which, in
relevant part, reads as follows:
"Grounds
of Appeal
1. The learned Judge a
quo erred in finding
that a proper election of Speaker of Parliament was conducted in
terms of the Constitution and the law.
2. The learned Judge erred in condoning the first respondent's
failure to implement and enforce his own procedures for the election.
3. The learned Judge a
quo erred in finding
that the participants' exposure of their completed ballot papers was
not a violation of the secret ballot.
4. The learned Judge a
quo erred in finding
that a secret ballot took place.
5. The learned Judge a
quo erred in
interpreting section 39(2) of the Constitution as read with Ordinance
6 of the House of Assembly Standing Orders as directory and not
peremptory."
The grounds of appeal set out in the Notice of Appeal, as read with
the record and submissions by counsel, raise essentially the
following two issues for determination in this appeal –
(a) whether the exposure of the secret ballot before the depositing
of the ballot papers in the ballot box by some Members of Parliament
amounts to a violation of the voting by secret ballot and, if so,
whether that rendered the election of the Speaker null and void; and
(b) whether the failure by the
Clerk of Parliament of Zimbabwe (hereinafter referred to as "the
Clerk") to control the voting process and the consequent chaotic
conditions constitute a failure by the Clerk to conduct an election
in terms of section 39 of the Constitution, as read with the Standing
Orders.
The background facts of this case are as follows.
The first respondent is the Clerk of the Parliament of Zimbabwe.
Pursuant to Proclamation No.7 of 2008, the Clerk convened the first
meeting of Parliament on 25 August 2008 for the purposes of swearing
in the Members of Parliament and electing the presiding officers.
The Clerk's mandate to conduct these elections is derived from the
Standing Orders – in the case of the House of Assembly Standing
Order No.6.
Two candidates were nominated for the office of Speaker, namely Mr
Paul Themba-Nyathi (hereinafter referred to as "Nyathi")
and the second respondent (hereinafter referred to as "Moyo").
Standing Order No.6 provides that if more than one person is proposed
as Speaker of Parliament, the Clerk shall conduct an election of the
Speaker by ballot box.
The election took place and the Clerk announced that Nyathi had
garnered ninety-eight votes and Moyo had garnered one hundred and ten
votes. The Clerk accordingly declared Moyo the winner. Moyo assumed
the office of Speaker.
The appellants want the election of Moyo as Speaker set aside.
I now wish to deal with the issue
of whether the election was conducted by secret ballot as is required
by section 39 of the Constitution, as read with Standing Order No.6
of the Standing Orders.
The appellants contend that some Members of Parliament from the MDC-T
party, having marked their ballot papers in the secrecy of the
polling booths, openly displayed their marked ballot papers before
depositing them in the ballot box. The appellants contend that the
majority of the Members of Parliament from the MDC-T party did this,
while the respondents' position is equivocal.
The court a
quo, however,
concluded that of the two hundred and eight Members of Parliament who
voted most probably only six Members of Parliament displayed their
votes in the manner alleged by the appellants. The Members of
Parliament who are named as having done this are the Honourable Biti,
the Honourable Khupe, the Honourable Chambati, the Honourable
Chibaya, the Honourable Denga and the Honourable Moyo, the second
respondent. In this regard, the court a
quo concluded as
follows at p11 of the cyclostyled judgment (judgment no. HH28-2010):
"It is fairly clear that Hon. Biti took the lead in brandishing
his vote and that several of his colleagues were then emboldened into
emulating his possibly impolitic example. However, they did so of
their own free will and, more significantly, they did so after having
cast their votes in secret."
The conclusion of the court a
quo that at least the
six Members of Parliament named displayed their ballot papers after
marking them but before depositing the ballot papers in the ballot
box cannot be faulted.
This conclusion is fortified by the following factors.
It is specifically alleged by the appellants that Moyo displayed his
ballot paper before depositing it. Moyo filed an affidavit in this
case in which he does not deny this allegation. Five other Members of
Parliament are named as having displayed their ballot papers before
depositing them in the ballot box. None of these five Members of
Parliament have deposed to affidavits denying the allegation.
In my view, it would have been easy for Moyo to secure such
affidavits from the named Members of Parliament denying the conduct
alleged. Moyo instead filed an affidavit from a Member of Parliament,
the Honourable Mpariwa, in respect of whom no such allegation was
made. The Honourable Mpariwa does not deny that the named Members of
Parliament had conducted themselves in the manner alleged by the
appellants. Indeed, if anything, she appears to concede that that in
fact did occur.
In the result, I agree with the
conclusion of the court a
quo that at least six
Members of Parliament displayed their ballot papers after marking
them but before depositing them in the ballot box.
Having concluded that at least six Members of Parliament displayed
their ballot papers before depositing them in the ballot box, the
issue that falls for determination is the legal consequences of such
conduct.
Section 39 of the Constitution provides as follows:
"(2) The Speaker shall be elected in accordance with Standing
Orders from among persons who are or have been members of the House
of Assembly and who are not members of the Cabinet, Ministers or
Deputy Ministers:
Provided that a person who is not a member of the House of Assembly
shall not be elected as the Speaker unless he is qualified in
accordance with Schedule 3 for election to the House of Assembly."
Standing Order 6 of the Standing Orders provides as follows:
"If more than one person is
proposed as Speaker, the Clerk shall
conduct the election of Speaker by a secret ballot."
(the emphasis is mine)
The Clerk issued specific instructions on how the secret ballot was
to be conducted. According to the second respondent, Moses Mliza
Ndlovu, the Clerk issued the following instructions:
"4. The first respondent announced the procedure to the effect
that according to the Standing Rules, an election would be held by
secret ballot. To this extent, he assured the Honourable Members
present that all necessary provisions had been made to guarantee the
secrecy of the ballot.
5. The first respondent then explained that in terms of the
procedure, he would issue a ballot paper to each Member present.
Thereafter, the Member would put a mark against the name of the
candidate the Member would wish to be the Speaker of Parliament.
6. The ballot paper had two candidates for Speaker of Parliament,
namely the second respondent nominated by the Movement for Democratic
Change (Tsvangirai) (MDC-T) and Mr Paul Themba-Nyathi nominated by
the Movement for Democratic Change (MDC).
7. The first respondent then explained that the ballot paper, having
been duly marked in secret in a booth, would be folded by the voting
Member and deposited in a ballot box.
8. The first respondent then explained that, having cast the vote,
the Honourable Member would then leave the House."
The Clerk does not deny that the above accurately reflects the
instructions he gave. From the above, three essential elements of
the secret ballot emerge –
(a) each Member of Parliament was to be issued with a ballot paper;
(b) each Member of Parliament was to mark the ballot paper in the
privacy or secrecy of the polling booth; and
(c) having marked the ballot paper in secret, the Member of
Parliament was to fold the ballot paper to maintain the secrecy of
the vote and deposit it in the ballot box, thus completing the
process of secret voting.
It admits of no debate that the Clerk would then be required to count
the vote to complete the process.
In my view, the counting of the votes cast is an essential part of
the process of the election by secret ballot. I shall revert to this
aspect of the matter later.
The appellants' case is that Standing Order 6 is peremptory and
enjoins the Clerk to conduct an election of the Speaker by secret
ballot.
Mr Hussein,
for the appellants, submitted that the display of the ballot papers
before depositing them in the ballot box by some Members of
Parliament is an aberration from the provisions section 39 of the
Constitution, as read with Standing Order 6 of the Standing Orders.
He argued that such aberration rendered the election of the Speaker
null and void.
Ms Damiso
and Mr Chaskalson,
for the respondents, submitted that the appellants' complaint is
based on a fundamental misconception relating to the nature of a
secret ballot.
They submitted that when an election takes place by secret ballot
each voter has the right to have his or her vote kept secret. This
right to secrecy, like any other right, can freely be waived by a
voter who chooses to make known how he or she voted. The fact that
any voter chooses to disclose how he or she voted cannot in itself
compromise the secrecy of the ballot. They submitted that it is only
when a voter is factually prevented from maintaining the secrecy of
his or her vote that there is a violation of the secrecy of the
ballot. On this basis they argued that the display by six Members of
Parliament of their ballot papers before depositing the ballot papers
in the ballot box is not a violation of the principle of a secret
ballot.
This argument found favour with
the learned Judge in the court a
quo. In this regard
he had this to say at p11 of the cyclostyled judgment:
"Having regard to the dictionary definitions and the case
authorities cited by counsel, the gravamen of a secret ballot, in my
view, is that each voter is enabled to cast his vote privately and in
secret, without fear of having his voting choice identified or
ascertained by others. In this respect, it is incumbent upon the
regulating authority to provide the requisite wherewithal for that
purpose. The courts should not interfere unless it is shown that the
objective conditions put in place for the election precluded the
possibility of a secret vote. Beyond this, it is then a matter purely
for the individual voter if he chooses to divulge, whether publicly
or in private, the specific manner in which he has cast his vote. If
he does so of his own volition, without any external coercion or
intimidation, and howsoever his conduct might influence other voters,
this cannot detract from the secrecy of his vote or vitiate the
secrecy of the ballot as a whole."
It was further argued that all that was required of the Clerk was for
him to provide the guarantee that Members of Parliament voted in
secret if they so wished. Those who wished to penetrate the veil of
secrecy, as did the six Members of Parliament, were entitled to do so
without contaminating the process.
In support of the above
contention, both counsel for the respondents placed reliance on the
case of Steel and
Engineering Industries Federation and Ors v National Union of
Metalworkers of South Africa (2)
1993 (4) SA 196 (T) at 200J and on the case of J
Jenkins v State Board of Elections of North Carolina & Ors
180 NC 169 (1920) at 171-172, 104 SE 346.
Mr Chaskalson
in particular submitted that the right to secrecy of the ballot, like
any other right, can freely be waived by any voter who chooses to
make known how he or she voted. He further submitted that this point
has been made clear by United States judgments dealing with
unsuccessful challenges to electoral laws. For this submission he
relied on the following remarks of BROWN J in the
Jenkins case supra
at pp171-172:
"… this privilege of
voting a secret ballot has been held to be entirely a personal one.
The provision has been generally adopted in this country for the
protection of the voter, and for the preservation of his
independence, in the exercise of this most important franchise. But
he has the right to waive his privilege and testify to the contents
of his ballot. The voter has the right at the time of voting
voluntarily to make public his ballot, and its contents in such case
may be proven by the testimony of those who are present. Public
policy requires that the veil of secrecy shall be impenetrable unless
the voter himself voluntarily determines to lift it."
Mr Chaskalson
also relied on the following passage from State
ex rel. Hutchins v Tucker et al
106 Fla 905 (1932) at 908, 143 So 754:
"… it has been uniformly
held that under such provisions as that contained in section 6 of
Article VI of our Constitution the elector cannot be compelled to
violate the right of secrecy of his ballot but the great weight of
authority is to the effect that such constitutional provision
guarantees a personal privilege which might be waived. In State
vs Anderson 26 Fla
240, 8 So 1, this Court, speaking through MR CHIEF JUSTICE RAINEY,
said:
'The Constitution provides,
section 6, Article VI, that in all elections by the people the vote
shall be by ballot, and in those by the Legislature it shall be viva
voce. The material
guarantee of this constitutional mandate of vote by ballot is
inviolable secrecy as to the person for whom an elector shall vote.
The distinguishing theory of the ballot system is that every voter
shall be permitted to vote for whom he pleases, and that no one else
shall be in position (sic)
to know for whom he has voted, or shall know unless
the voter shall of his own free will inform him.'
Cooley's Constitutional
Limitations m.p. 604
et seq.
(Italics ours)"
Further reliance was placed on
the following passage from Cooley's work Constitutional
Limitations 7ed 912:
"The system of ballot-voting
rests upon the idea that every elector is to be entirely at liberty
to vote for whom he pleases and with what party he pleases and that
no one is to have the right or be in position (sic)
to question his independent action, either then or at any subsequent
time. The courts have held that a voter, even in case (sic)
of a contested election, cannot be compelled to disclose for whom he
voted; and for the same reason we think others who may accidentally,
or by trick or artifice, have acquired knowledge on the subject
should not be allowed to testify to such knowledge, or to give any
information in the courts upon the subject. Public policy requires
that the veil of secrecy should be impenetrable, unless the voter
himself voluntarily determines to lift it; his ballot is absolutely
privileged,…".
Mr Chaskalson
further submitted that the fact that any voter chooses to disclose
how he or she voted cannot compromise the secrecy of the ballot. He
argued that if this were the case secret ballots would be open to
abuse by voters who, fearing that their candidates were at risk of
losing the election, could invalidate a vote by merely waving their
ballots about. It is only when a voter is factually prevented from
maintaining the secrecy of his vote or her vote that there is a
violation of the secrecy of the ballot. He further argued that on the
facts of this case there is no suggestion of any such violation of
the secrecy of the ballot. Consequently, the primary complaint of the
appellants must be rejected.
The two cases cited by Mr
Chaskalson,
namely the Jenkins
case supra
and the State ex rel.
Hutchins case
supra, were concerned
with the constitutionality of statutory provisions that permitted
voting by absentee voters such as soldiers serving abroad. The
basis of challenging the constitutionality of the statutes providing
for the absentee voters was that they violated the secrecy of the
ballot guaranteed by the State Constitution, Article VI section 6.
Section 6 of Article VI declared
that all elections by the people shall be by ballot, and all
elections by the General Assembly shall be viva
voce (the emphasis
is mine).
The contention, which was
dismissed in the above American cases in respect of which the above
cited passages were made, was that statutes allowing absentee votes
would of necessity lead to the identification of the voter, thereby
violating the secrecy of the ballot guaranteed by the Constitution of
the State of North Carolina. The ratio
decidendi of the court
in dismissing the challenge was that the impugned statutes, by
allowing voters to vote by postal ballot, did not compel voters to
disclose their votes leading to a breach of their right to voting in
secrecy. The courts held that the impugned statutes simply provided
the voter with a choice either to vote secretly by presenting himself
or herself at the polling booth or vote by postal ballot if he so
wished, thereby compromising the secrecy of his or her vote. The
court held in both cases that a secret ballot is not compulsory so
far as the voter is concerned, for the statute provides that the
ballot may be deposited for the voter by the Registrar or by one of
the judges of the election or by the voter himself if he so chooses.
I wish to make the following observations regarding the above cases.
The judgments cited above are judgments of foreign courts. They are
not binding but they are persuasive. The higher the courts are in
their jurisdictions the more persuasive are their judgments. The
cited judgments are not from the highest courts in North Carolina.
The second observation I wish to
make is that the courts in the cited cases were interpreting statutes
in their jurisdictions. They were not making pronouncements on
general jurisprudential principles.
When interpreting statutes,
courts are guided primarily by the wording and the context of the
statutes. A court should not simply translocate one court's
interpretation of a statute in that court's jurisdiction to an
interpretation of a statute differently worded in its own
jurisdiction.
In the above judgments, the courts of North Carolina were
interpreting Article VI section 6 of the Constitution of North
Carolina, which provided that:
"in all elections by the
people the vote shall be by ballot, and in those by the Legislature
it shall be viva voce".
The courts in both the Jenkins
case supra
and the State ex rel.
Hutchins case
supra interpreted
Article VI section 6 as conferring a right to vote in secret, which
can be waived. They ascribed this meaning to Article VI section 6
despite the use of the peremptory word "shall" in the
section. I have some doubts about the correctness of this
interpretation.
Be that as it may, I accept the conclusion in those two cases that
where a constitutional provision confers on the voter the right to
vote by secret ballot that right is intended to protect the voter and
the voter has the right to waive that right without violating the
secrecy of the ballot.
I also accept the proposition
that public policy requires that the veil of secrecy shall be
impenetrable unless the voter himself voluntarily determines to lift
it. See also Boyer v
Teague 106 NC 625;
McRary on Elections
3ed at 305-306; and Crolly
Con. Lim. 7ed at 912.
However, section 39 of the
Constitution, as read with Standing Order 6, is not a constitutional
or statutory provision conferring the right to vote on a voter in the
form of the Member of Parliament.
Section 39 of the Constitution,
as read with Standing Order 6, prescribes how a particular officer in
Parliament, namely the Speaker, is to be elected. It expressly
provides that if more than one person is proposed as Speaker the
Clerk of Parliament shall
conduct the election of the Speaker by
a secret ballot. In
other words, the use of the words "by a secret ballot" in
the statute is prescribing the method by which a Speaker is to be
elected.
The language is peremptory language.
It would be a different story if the wording of Standing Order 6 were
to the effect "If more than one Member is proposed Members of
Parliament may vote by secret ballot to elect the Speaker".
The golden rule of interpretation
is that one has to give the words of a statute their primary meaning.
If that rule is applied to Order 6 of the Standing Orders then the
inescapable inference is that the Order is addressing the Clerk and
is dictating to him the manner by which a Speaker should be elected.
In view of the explicit language
of the statute, it is not open to the Clerk or any Member of
Parliament to substitute the method of electing a Speaker with
another method of their own choice, such as by open ballot. Put
differently, it was not open, for instance, to Members of Parliament
to tell the Clerk that they were waiving their right to vote for the
Speaker by secret ballot or that they wished to vote for the Speaker
by open ballot either individually or as a group. That option was not
open to the Members of Parliament as a whole or to individual Members
of Parliament.
Voting by secret ballot, as I have already stated, involves the
following three essential procedures.
(i) Firstly, that each Member of
Parliament receives a ballot paper;
(ii) Secondly, that each Member
of Parliament indicates on that ballot paper the candidate of his
choice in private and to the exclusion of the public; and
(iii) thirdly, that, having done
so, the Member of Parliament deposits his or her ballot paper into
the ballot box privately without disclosing his or her ballot paper
to the world.
Once the ballot paper has been deposited into the ballot box the
process of voting by secret ballot so far as the voter is concerned
is completed.
It would not be a violation of
voting by secret ballot if the person discloses whom he has voted for
at that stage. The voting by secret ballot by the voter is complete.
See Steel and
Engineering Industries Federation and Ors v National Union of
Metalworkers of South Africa (2) supra.
The next stage to complete the
process provided for in terms of section 39 of the Constitution, as
read with Standing Order 6, is for the Clerk to count the votes cast
to determine the winner.
This stage, in my view, is an
essential process in the election of the Speaker of Parliament by
secret ballot. Because of the peremptory language of section 39 of
the Constitution, as read with Standing Order 6, the Clerk has no
discretion over what procedure is to be followed when electing the
Speaker. It has to be by secret ballot. The use of any other method
to elect the Speaker would be a failure to comply with the provisions
of section 39 of the Constitution, as read with Standing Order 6.
In casu,
the appellants alleged that some Members of Parliament received
ballot papers, marked the ballot papers in the privacy of the polling
booth and then, instead of folding the ballot papers to maintain the
secrecy of their vote and before depositing them in the ballot box,
they displayed them to fellow Members of Parliament to show them how
they voted. Thereafter they deposited the ballot papers in the ballot
box.
The court a
quo concluded that six
Members of Parliament conducted themselves in this manner. The
conclusion that only six out of the two hundred and eight voters
voted in this manner is supported by the evidence and it cannot be
faulted.
The learned Judge in the court a
quo also concluded
that the six Members of Parliament who displayed their votes complied
with the requirement of a secret ballot because they were entitled to
pierce the veil of secrecy without falling foul of section 39 of the
Constitution, as read with Standing Order 6.
I respectfully disagree with the learned Judge in this regard.
The six Members of Parliament, by
displaying their ballot papers before depositing them in the ballot
box, violated the secrecy of their ballots, thereby rendering their
votes invalid for the purposes of section 39 of the Constitution, as
read with Standing Order 6. This rendered their votes ineligible for
counting for the purpose of determining the election of the Speaker.
The Clerk proceeded to count these six votes as valid votes in
determining the outcome of the election. This contaminated the
process.
Put differently, he counted oranges and apples in a process where the
law provides that only oranges be counted.
In short, the Clerk failed to act
as directed by section 39 of the Constitution, as read with Standing
Order 6, namely to conduct an election by secret ballot. He conducted
a cross-breed election, in that it was partly secret and partly open.
That is not what the law provides for.
In this regard I am satisfied
that the Clerk failed to comply with the provisions of section 39 of
the Constitution, as read with Standing Order 6.
Having concluded that the Clerk did not comply with the statutory
requirements in his conduct of the election, the issue that falls for
determination is, what are the legal consequences that flow from the
failure to comply with the statutory provisions?
Section 39 of the Constitution, as read with Standing Order 6, has
directed that the Clerk shall conduct an election of a Speaker by
secret ballot but has not provided what should be the consequence of
the non-compliance with this peremptory direction by Parliament.
This Court recently had occasion
to deal with the issue of interpreting a statute that does not
prescribe the consequences of non-compliance with a statutory
provision in the case of Doctor
Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor
Judgment No. SC11/08.
In that case I cited with
approval a passage from Bennion Statutory
Interpretation at
pp21-22, which sets out how courts should approach that issue.
The learned author states that a
court charged with the enforcement of a statute that does not state
the consequences of non-compliance needs to decide what consequence
Parliament intended should follow from such failure to comply. In
that case I had this to say at pp21-23 of the cyclostyled judgment:
"It is the generally accepted rule of interpretation that the
use of peremptory words such as 'shall' as opposed to 'may' is
indicative of the legislature's intention to make the provision
peremptory. The use of the word 'may' as opposed to 'shall' is
construed as indicative of the legislature's intention to make a
provision directory. In some instances the legislature explicitly
provides that failure to comply with a statutory provision is fatal.
In other instances, the legislature specifically provides that
failure to comply is not fatal. In both of the above instances no
difficulty arises. The difficulty usually arises where the
legislature has made no specific indication as to whether failure to
comply is fatal or not.
In the present case, the
consequences of failure to comply with the provisions of section 18
of the Zimbabwe Electoral Commission Act are not explicitly spelt
out.
In those statutory provisions where the legislature has not
specifically provided for the consequences of failure to comply, it
has to be assumed that the legislature has left it to the Courts to
determine what the consequences of failure to comply should be.
The learned author Francis
Bennion in his work Statutory
Interpretation
suggests that the courts have to determine the intention of the
legislature using certain principles of interpretation as guidelines.
He had this to say at pp21-22:
'Where a duty arises under a statute, the court, charged with the
task of enforcing the statute, needs to decide what consequence
Parliament intended should follow from breach of the duty.
This is an area where legislative drafting has been markedly
deficient. Draftsmen find it easy to use the language of command.
They say that a thing "shall" be done. Too often they fail
to consider the consequence when it is not done. What is not thought
of by the draftsman is not expressed in the statute. Yet the courts
are forced to reach a decision.
It would be draconian to hold
that in every case failure to comply with the relevant duty
invalidates the thing done. So the courts' answer has been to
devise a distinction between mandatory and directory duties. Terms
used instead of "mandatory" include "absolute",
"obligatory", "imperative" and "strict".
In place of "directory", the term "permissive" is
sometimes used. Use of the term "directory" in the sense of
permissive has been justly criticised. {See Craies Statute
Law (7th
edn, 1971) p61 n74.} However it is now firmly rooted.
Where the relevant duty is
mandatory, failure to comply with it invalidates the thing done.
Where it is merely directory the thing done will be unaffected
(though there may be some sanction for disobedience imposed on the
person bound). {As to sanctions for breach of statutory duty see
section 13 of this Code (criminal sanctions) and section 14 (civil
sanctions).}'
Thereafter the learned author sets out some guiding principles for
the determination of whether failure to comply with a statutory
provision is fatal or a mere irregularity.
One of these guiding principles is the possible consequences of a
particular interpretation. If interpreting non-compliance with a
statutory provision leads to consequences totally disproportionate to
the mischief intended to be remedied, the presumption is that
Parliament did not intend such a consequence and therefore the
provision is directory."
Maxwell on The
Interpretation of Statutes
12ed at 314 says much the same as the above cited excerpt from
Bennion.
Thus the issue before this Court is to determine what Parliament
intended to be the consequence of the Clerk's breach of the statutory
requirement to count only regular votes in determining the outcome of
the election of the Speaker.
I have come to the conclusion
that Parliament intended to render invalid an election wherein the
Clerk fails to comply with the provisions of section 39 of the
Constitution, as read with Standing Order 6. I have come to this
conclusion for two reasons -
(i) firstly, because of the
peremptory language of the provision in question; and
(ii) secondly because of the use
of different language from the one used by Parliament when it
legislated on the same subject matter in another statute, namely
section 177 of the Electoral Act [Chapter
2:13].
Dealing with the issue of the use
of peremptory language in section 39 of the Constitution, as read
with Standing Order 6, there can be no doubt that the language of the
relevant section is peremptory, having regard to the use of the word
"shall".
I accept that there has been
movement from the principle of strict exaction of compliance with the
wording of the statute to avoid invalidity to a more flexible
approach giving the courts some latitude in determining the
consequences of non-compliance.
My understanding of the new
approach is that, while the use of the word "shall" is no
longer conclusive of the intention of Parliament to render invalid
non-compliance, it certainly still remains cogent evidence of such
intention. This Court has, in a number of recent cases, held that
failure to comply with the peremptory direction of a statute leads to
invalidity. In this regard, Rule 29 of the Supreme Court Rules
provides as follows:
"29
Entry of appeal
(1) Every civil appeal shall
be instituted in the form of a notice of appeal signed by the
appellant or his legal representative, which shall
state –
(a) the date on which, and the court by which, the judgment appealed
against was given;
(b) if leave to appeal was granted, the date of such grant;
(c) whether the whole or part only of the judgment is appealed
against;
(d) the grounds of appeal in
accordance with the provisions of Rule 32;
(e) the exact nature of the relief which is sought;
(f) the address for service of the appellant or his legal
practitioner."(the underlining is mine)
In Jensen
v Acavalos 1993 (1)
ZLR 216 this Court held that by use of the word "shall"
compliance with the requirement of Rule 29 was peremptory and that
failure to comply with the rule rendered the Notice of Appeal a
nullity and that such a notice cannot be condoned or amended.
KORSAH JA at 219D had this to say
about the Notice of Appeal that did not comply with Rule 29 of the
Supreme Court Rules:
"This notice of appeal was defective for non-compliance with the
mandatory provisions of Rule 29, subrules (c), (d) and (e) which
require the applicant or his legal representative to state: (i)
whether the whole or only part of the judgment is appealed against;
(ii) the ground of appeal to be set forth concisely and in separately
numbered paragraphs; and (iii) the exact nature of the relief which
is sought."
The learned JUDGE OF APPEAL further stated at pp219H-220D:
"The notice of appeal, being bad for non-compliance with the
rules, was not cured by the filing on 3 January 1990, of grounds of
appeal without a prayer. Indeed, even if the grounds of appeal filed
on 3 January 1990 had contained a prayer for relief, it would not
have been effectual in validating the defective notice of appeal.
The reason is that a notice of
appeal which does not comply with the rules is fatally defective and
invalid. That is to say, it is a nullity. It is not only bad but
incurably bad, and, unless the court is prepared to grant an
application for condonation of the defect and to allow a proper
notice of appeal to be filed, the appeal must be struck off the roll
with costs: De Jager v
Diner & Anor 1957
(3) SA 567 (A) at 574 C-D.
In Hattingh
v Pienaar 1977 (2) SA
182 (O)… at 183, KLOPPER JP held that a fatally defective
compliance with the rules regarding the filing of appeals cannot be
condoned or amended. What should actually be applied for is an
extension of time within which to comply with the relevant rule. With
this view I most respectfully agree; for if the notice of appeal is
incurably bad, then, to borrow the words of LORD DENNING in McFoy
v United Africa Co Ltd
[1961] 3 All ER 1169 (PC) at 1172I, 'every proceeding which is
founded on it is also bad and incurably bad. You cannot put something
on nothing and expect it to stay there. It will collapse'."
GUBBAY CJ and MANYARARA JA concurred.
In Matanhire
v BP & Shell Marketing Services (Pvt) Ltd
2004 (2) ZLR 147 (S) MALABA JA (as he then was) expressed the same
sentiments when he stated at 149 E-G:
"A nullity cannot be
amended. In Jensen v
Acavalos 1993 (1) ZLR
216 (S) KORSAH JA at 220B said that the reason why a fatally
defective notice of appeal could not be amended was that:'… it is
not only bad but incurably bad'.
Citing Hattingh
v Pienaar 1977 (2) SA
182 (O) at 183 for authority, the learned JUDGE OF APPEAL said that
what should actually be applied for is an extension of time within
which to comply with the relevant rule and condonation of
non-compliance.
In Business
Equipment Corp v Baines Imaging Group
2002 (2) ZLR 354 (S) a Notice of Appeal which did not state the date
on which the judgment appealed against was given, in contravention of
section 29(1)(a) of the Rules of the Supreme Court, was held to be
fatally defective, and the procedure stated in Jensen's
case supra
was approved as the appropriate remedy in having a proper Notice of
Appeal placed before the court. See also Talbert
v Yeoman Products (Pvt) Ltd
S-111-99."
The learned JUDGE OF APPEAL further stated at p150B-C:
"As no valid notice of
appeal was delivered and filed within fifteen days of the date when
the decision of the Labour Court was given, there was no appeal
before the court and to merely insert the relevant date in the
defective notice of appeal, as suggested by Mr Muskwe,
without an application for an extension of time within which to
institute the appeal and for condonation of non-compliance with the
Rules of Court, would be grossly irregular. The matter had to be
struck off the roll."
It is quite clear from the above
authorities that failure to comply with peremptory language of a
statute can lead to a nullity.
Equally, there are decisions of
this Court wherein it has been held that non-compliance with
peremptory statutory provisions does not necessarily lead to a
nullity. See Sterling
Products International Ltd v Zulu
1988 (2) ZLR 293 (S) and the cases referred to therein.
The above authorities can be
reconciled on the basis that the use of peremptory language is one of
a number of indicators of the legislative intent where such intent is
not explicitly stated. This obviously is a departure from the
principle of strict exaction of compliance with the wording of the
statute that I referred to earlier.
In my view, the use of peremptory
language, such as the words "shall" or "must" in
a statute is no longer conclusive evidence of the intention of
Parliament, but remains cogent evidence of such intention.
As I have already stated, I
concluded that Parliament intended to render null and void an
election in which irregular or invalid votes were counted together
with valid votes to determine the outcome of the election of the
Speaker for two reasons, namely the peremptory language of the
section and the use of different language from the one used by the
Legislature on the same subject matter in a different statute.
The proposition that generally speaking Parliament, just like an
individual, uses the same words or language to evince the same intent
and different words or language to evince a different intent is
grounded in elementary common sense.
Maxwell on The
Interpretation of Statutes
12ed devotes a whole chapter on the presumptions arising from the
change of language in statutory interpretation (see pp282-289). His
opening paragraph of this subject matter reads:
"From the general
presumption that the same expression is presumed to be used in the
same sense throughout an Act or series of cognate Acts, there follows
the further presumption that a change of wording denotes a change in
meaning (Ricket v
Metropolitan Railway Co.
(1867) L.R. 2 H.L. 175, per
LORD WESTBURY; ex
p. Haines [1945] K.B
183; Evans v Evans
[1948] 1 K.B. 175).
'Where the Legislature,' said
LORD TENTERDEN CJ, 'in the same sentence uses different words, we
must presume that they were used in order to express different ideas'
(R. v Inhabitants of
Great Bolton (1828) 8
B. & C. 71, at p.74)."
For the presumption to arise the
change of words does not necessarily have to be in the same section
or the same Act. It can be from one statute to another. See Maxwell
on The Interpretation
of Statutes at p283,
where the learned author states that:
"There are many modern cases on change of wording, and they fall
roughly into three groups, according to whether the language alters
(i) within the same section, (ii) within the same Act, (iii) from one
statute to another."
For authority for the third
category, which bears resemblance to the facts in
casu, the learned
author cites the following authorities; Att.-Gen.
for Northern Ireland v Gallagher
[1963] AC 349; B. v B.
and H. (L. intervening)
[1962] 1 All ER 29; Re
P. (infants) [1962] 1
WLR 1296; Irwin v
White, Tomkins and Courage, Ltd
[1964] 1 WLR 387; Att.-Gen.
of the Duchy of Lancaster v Simcock
[1966] Ch.1; Seabridge
v H. Cox & Sons (Plant Hire), Ltd
[1968] 2 QB 46; Wild v
Wild [1968] 3 WLR
1148.
While the authorities cited by
Maxwell relate mainly to historically connected statutes, I see
nothing in principle that should limit the presumption to preceding
statutes to the exclusion of statutes on the same subject matter but
not historically connected. After all, Parliament is presumed to be
familiar with its own Acts. The corollary, that Parliament is
ignorant of its own Acts, is simply untenable.
Thus, at the time of enacting
Standing Order 6 in 2005, in terms of which the Clerk acted,
Parliament was familiar with the provisions of section 177 of the
Electoral Act, which was enacted earlier. This particular provision
has been included in no less than nine electoral Acts in this country
since 1928.
In my view, it is permissible for
a court to look at the language of another statute on similar or the
same subject matter in the exercise to ascertain the intention of
Parliament.
Section 177 of the Electoral Act, as appears from its heading, deals
with the subject of the consequences of non-compliance with the
Electoral Act. It provides as follows:
"177
When non-compliance with this Act invalidates election
An election shall be set aside by the Electoral Court by reason of
any mistake or non-compliance with the provisions of this Act if, and
only if, it appears to the Electoral Court that –
(a) the election was not conducted in accordance with the principles
laid down in this Act; and
(b) such mistake or non-compliance did affect the result of the
election."
Section 177 of the Electoral Act clearly provides that it is only
when non-compliance with the Act affects the result of the election
that the election should be set aside. In effect, this section
incorporates into the Electoral Act the doctrine of substantial
compliance. Section 39 of the Constitution, as read with Standing
Order 6, provides for the election of the Speaker, but does not
incorporate the principle of substantial compliance. In my view, if
Parliament had intended that only non-compliance that affected the
outcome of the election of the Speaker would render invalid such an
election it would have used the same or similar language.
Also in determining the intention of Parliament, I took into account
the fact that no draconian consequences would flow from a declaration
of invalidity of the election.
Parliament consists of a little over two hundred Members and ordering
a re-election of the Speaker does not pose financial or logistical
problems of any magnitude. If properly organised, as it should be, I
do not see the election of the Speaker taking more than an hour and
it should require only a minimum of resources.
I am also mindful of the fact that Parliament is one of the most
revered institutions in our, or any, society. It consists of the
highest concentration of political leadership of the country.
Parliament makes the laws that we all obey. Parliament should,
therefore, lead by example and should scrupulously obey its own laws.
The election of the Speaker should be an example of how an election
should be conducted. This is particularly so in Zimbabwe which is
plagued by contestation of election results. Parliament should use
the election of the Speaker to set the best example to the rest of
the country. It is unacceptable that Parliament should seek to
salvage a shambolic and chaotic election of a Speaker through the
doctrine of substantial compliance.
I do not wish to be understood as setting aside the election of the
Speaker on the ground that it was chaotic. I am satisfied that the
chaos and the conduct of Members of Parliament generally did not on
their own affect the election to the extent that it can be concluded
that the Clerk did not conduct an election. I am merely expressing
concern that the Clerk failed to stamp his authority on the election
and insist that Members of Parliament conduct themselves in
accordance with his instructions. I, however, do not think that
conduct alone is sufficient on its own to constitute a basis for
setting aside the election of the Speaker.
Before concluding, I feel constrained to make the following
observation in the interests of clarity.
I have read the judgment of SANDURA JA.
It is a misinterpretation of this
judgment to conclude that it seeks to reinstate the old principle of
strict compliance with the letter of the statute to avoid invalidity.
This judgment is based on what I considered to be the intention of
Parliament as evinced by the language of the statute, and by
contrasting the language of section 39 of the Constitution, as read
with Standing Order 6, with the language of section 177 of the
Electoral Act.
I also do not agree that the
principle that a peremptory enactment must be obeyed was abandoned in
the case of Sterling
Products International Ltd
supra.
My understanding of Sterling's
case supra
is that it modified the principle by endorsing the movement away from
strict compliance to a more flexible application of the principle.
This is the only basis on which one can reconcile GUBBAY CJ's
concurrence with the judgment of KORSAH JA in Jensen's
case supra
and his judgment in Sterling's
case supra.
MANYARARA JA concurred with both judgments. This Court reaffirmed the
modification of the principle in Shumba's
case supra.
In the result, I have come to the
conclusion that the six named Members of Parliament did not vote by
secret ballot and therefore their votes were irregular. The inclusion
of the irregular votes in the determination of the final outcome of
the election of the Speaker constitutes a failure to comply with
section 39 of the Constitution, as read with Standing Order 6,
providing for the election of the Speaker of Parliament by secret
ballot, thereby rendering it invalid.
For the foregoing reasons I would allow the appeal. In the result, I
make the following order –
1. The appeal is allowed with costs, to be paid by the respondents
jointly and severally the one paying the other to be absolved.
2. The order made by the court a
quo is set aside and
the following substituted –
"The application succeeds and the election of the second
respondent as Speaker is hereby set aside."
ZIYAMBI JA: I agree
GARWE JA: I agree
MALABA DCJ:
I have read the opinion expressed by the learned CHIEF JUSTICE. I
regret that I am unable to agree with the decision that section 39(2)
of the Constitution, as read with Standing Order No. 6 of the House
of Assembly Standing Orders ("Standing Order 6"), by
implication compels the nullification of the election upon proof that
the Clerk of Parliament ("the Clerk"), who was under the
obligation to conduct the election of the Speaker of the House of
Assembly ("the Speaker") by a secret ballot, unlawfully
counted invalid votes as secret ballots.
This case came to the Supreme
Court by way of an appeal against the judgment of the High Court. The
court a quo
dismissed with costs an application for an order declaring that the
election of the second respondent as the Speaker of the House of
Assembly ("the House") on 25 August 2008 is null and void
and set aside.
The applicants, who are members
of the House who had taken part in the election of the Speaker,
disavowed the application as an application for review. The substance
of the relief sought and the reliance on the provisions of section
4(1) of the Administration of Justice Act [Chapter
10:28], however, show
that it was an application for review.
The applicants alleged in effect
that the Clerk who, as the administrative authority, was given the
power to conduct the election of the Speaker by a secret ballot, in
accordance with the machinery prescribed under section 39(2) of the
Constitution, as read with Standing Order 6, failed to act in
accordance with the requirements of the rule against counting invalid
votes as secret ballots and as a result affected their rights or
legitimate expectation in the election.
A perusal of the papers filed in support of the application shows
that the relief was sought on two grounds.
(i) The first ground was that
there was "noise, utter chaos and disorder" in the Chamber
of the House at the time appointed by the Clerk for the holding of
the election of the Speaker such that the environment never became
conducive for conducting the election by a secret ballot.
(ii) The second ground was that,
in violation of the secrecy of the ballot, and in defiance of the
procedure laid down by the Clerk, some members of the MDC-T party
came out of the polling booth with ballot papers on which they had
marked their votes unfolded. The allegation was that they displayed
the ballot papers to others to disclose for whom they had voted
before folding the ballot papers and depositing them in the ballot
boxes.
As part of the second ground it was alleged that the Clerk was under
a duty to stop or prevent the members of the MDC-T party from doing
what they did, but in disobedience of his duty failed to do so.
It was not the applicants' case that the election of the second
respondent as the Speaker of the House should be declared null and
void because the Clerk counted invalid votes as secret ballots,
thereby distorting the result of the election. The reason is that to
do so would have involved an admission by the applicants of the fact
that there was counting of secret ballots produced by the electoral
process the applicants alleged had not taken place.
As the learned CHIEF JUSTICE
arrived at the conclusion, with which I disagree, on the ground that
the Clerk counted invalid votes as secret ballots, I will deal with
the question whether in the machinery for the election of the Speaker
prescribed under section 39(2) of the Constitution, as read with
Standing Order 6, the unlawful conduct of the Clerk in counting
invalid votes as secret ballots automatically nullifies the election.
My view of the case is that the application ought to have been
dismissed or granted on the grounds on which the applicants made it.
Before determining the question
whether the applicants established the grounds on which they sought
the relief from the court a
quo, I set out and
construe the law in terms of which the election of the Speaker by a
secret ballot was required to be conducted.
It is for the Legislature to make provision by legislation for
matters relating to elections to office in institutions of a
democratic government. All matters relating to the organisation and
procedure for election to the office of the Speaker of the House must
be determined on the construction of the broad terms of the
legislation enacted for the purpose by Parliament.
Section 39(1) of the Constitution
imposes on the House an obligation to elect a presiding officer, to
be known as the Speaker, at its first meeting after dissolution of
Parliament and before proceeding to transact any other business. The
election must therefore be held at the time prescribed under section
39(1) of the Constitution.
It is required to be an election by a secret ballot. Only a secret
ballot under the statute can give rise to a "result of the
election".
The right to vote in the election of the Speaker where more than one
person is proposed for the post is given to members of the House who
would have subscribed the oath of loyalty and are present in the
Chamber of the House at the time the election is called by the Clerk.
By section 39(2) of the
Constitution, as read with Standing Order 6, the Clerk is appointed
as the official to conduct the election required by section 39(1)
where more than one person is proposed as Speaker. By the same
provisions the Clerk is enjoined to conduct the election of the
Speaker by a secret ballot.
When the members elect a Speaker from candidates nominated they do so
in their individual capacity. They are not acting as representatives
of the people who elected them to the House.
Where the words "conduct the
election" are used as they are used in section 39(2) of the
Constitution, as read with Standing Order 6, in respect of a
situation where more than one person is proposed for election for a
post, it is clear that the word "election" is used with the
intention that it should be understood to mean the whole combined and
continuous process for bringing about the result of the election. It
is a process consisting of a number of material steps prescribed by
law, beginning with the call for the election and ending in the
declaration of the result of the election.
For the purposes of section 39(2)
of the Constitution, as read with Standing Order 6, all these steps
were driven by the free exercise of the right to vote by the electors
directed by the Clerk entrusted with the responsibility of conducting
the election by a secret ballot.
The words "conduct the
election" compendiously describe the number of duties the Clerk
would be expected to carry out to ensure that members who were
desirous to elect the Speaker by means of a secret ballot did so
freely. So to "conduct the election" in the context of
section 39(2) of the Constitution, as read with Standing Order 6,
denotes the concept of legality, in the sense that it contemplates
the making of decisions or the taking of actions in the performance
of duties, the effect of which is to direct or manage the activities
of the voters according to the prescribed requirements of the law to
achieve the object or purpose of ensuring the election of the Speaker
based on universal, equal, direct and personal vote freely expressed
by a secret ballot.
In construing section 39(2) of
the Constitution, as read with Standing Order 6, it is important to
bear in mind that the right to vote vested in the members present and
voting at the first meeting of the House is not affected by the
requirement that the election should be conducted by a secret ballot.
The statute relates to procedure alone and directs the mode in which
the right to vote is to be exercised by the electors. The Legislature
chose the secret ballot for its optimum benefits and prescribed it as
the only method by which the elector would validly exercise his or
her right to vote for the Speaker. At the same time, it imposed on
the Clerk the general obligation to provide the mechanisms and
procedures for the recording, processing and protection of the secret
ballot to bring about the election of the Speaker.
Every voter was entitled to express his or her will on the candidates
by voting "for" or "against" through the legally
permitted form of voting.
As section 39(2) of the
Constitution, as read with Standing Order 6, prescribes a secret
ballot and its attendant requirements as a condition the elector has
to perform if he or she is desirous to give a valid vote for a
candidate in the election of the Speaker, it is addressed to both the
voter and the Clerk who has to conduct the election by a secret
ballot. The validity of a vote and of any act performed by the Clerk
must be measured in terms of its conformity with the requirements of
a secret ballot prescribed as the essence of the election of the
Speaker.
In my view, it is wrong to place
on section 39(2) of the Constitution, as read with Standing Order 6,
a narrow construction which views it as directed at the Clerk only.
The Clerk does not vote. He does not produce the result of the
election. His functions are managerial. The elector is the driver of
the election by a secret ballot. The Clerk and the voter must be
viewed in the context of the legal relationship of the rights and
duties they have to exercise or discharge to achieve the statutory
objective or purpose.
The prescription of a secret ballot as the method for the election of
the Speaker is based on the acceptance of the principle that it
promotes and protects freedom of expression of choice of a preferred
candidate without undue influence, intimidation and fear of
disapproval by others. The elector is given the right to mark the
choice of one candidate from another or others in secret. The words
"secret ballot" are used in the wide and narrow sense to
mean the process by which the ballot is recorded, processed and
protected, as well as the ballot in which there is complete and
inviolable secrecy designed to drive away the fear of disclosure and
secure to the voter freedom from undue influence, intimidation and
fear of disapproval by others.
A "secret ballot" is therefore a ballot cast freely by a
voter in secret when no other person is present and aware of what is
happening.
The ballot is secret to the voter, in the sense that he or she is the
only person who knows for whom he or she is voting.
Whilst the caster of the vote remains unknown the secrecy of the
ballot is maintained and the vote has been effectively cast in the
election of the Speaker. It is the valid vote to be counted to
ascertain the result of the election of the Speaker by a secret
ballot.
To maintain the secrecy, made to be extremely material as the
foundation to the validity of the vote itself, the voter must meet
certain conditions.
He or she is required not to put on the ballot paper on which the
vote is given any writing or mark by which his or her identity as the
voter can be known by any other person looking at the ballot paper.
The voter is also required not to display or expose the ballot paper
after he or she has given the vote so as to disclose to any other
person for whom he or she voted before depositing the ballot paper in
the ballot box. So essential is the secrecy of the ballot to its
validity that any departure by the voter from these conditions
designed for the purpose of ensuring the maintenance thereof must
render the vote void.
The mandatory obligation imposed on the Clerk was to perform the
duties put on him to provide the mechanisms and procedures that
enabled the voter who was desirous to exercise the right to vote by a
secret ballot to do so. The duties he had to perform were to ensure
that the vote given in secret was recorded, processed, protected and
counted, to bring about the election of the Speaker.
The primary object of any act performed by the Clerk in the discharge
of the obligation to conduct the election of the Speaker by a secret
ballot would have been the maintenance of the secrecy of the ballot
given by the voter, unless the voter himself or herself failed to
observe strictly the conditions essential to the validity of the vote
as a secret ballot. The Clerk, as the official appointed by the
Legislature and given the responsibility of conducting the election
of the Speaker by means of a secret ballot, was under an absolute
duty not to do anything in the execution of his duties that would
have the effect of compelling the voter to violate the secrecy of the
ballot.
Although it does not say in
express terms that the Clerk cannot record the vote in some other
way, it is clear that section 39(2) of the Constitution, as read with
Standing Order 6, makes the prescribed manner of recording the ballot
by means of a ballot paper, properly drawn up and with the names of
the candidates and the appropriate spaces where the mark by which the
vote would be given, the only manner in which a secret ballot was to
be given.
The Clerk has no discretion as to how the election should be
conducted. He must conduct it by a secret ballot. The valid vote in
an election had to be one given for a candidate by means of a secret
ballot. It was, therefore, the duty of the Clerk to provide the
official ballot papers. It was his duty to put in place the polling
booth in which the voters would mark the ballot papers, screened from
observation by other potential voters. It was his duty to provide
sealed and translucent ballot boxes in which the voters would deposit
the marked ballot papers for safekeeping before counting.
The Clerk discharged these duties in accordance with the requirements
of the law. He put in the Chamber of the House the polling booth
and two ballot boxes and provided the ballot papers.
It was also the Clerk's duty to provide the procedure by which the
secret ballot was to be recorded, processed, protected, counted and
results of the election based on it declared.
He again complied with this requirement.
The Clerk explained to the members that the voter would only mark his
or her vote on a ballot paper delivered by him just before proceeding
to the polling booth and that the ballot paper had to have an
official stamp marked on the back. Upon receipt of the ballot paper,
the member was to go immediately into the polling booth and there
mark his or her ballot paper to express his or her choice. The voter
was then required to fold the ballot paper up whilst in the polling
booth so as to conceal the vote and then go and deposit the ballot
paper so folded up into the ballot box. The voter was required to
exhibit to the Clerk the official stamp on the back of the folded
ballot paper before dropping it into the ballot box.
The procedure met the purpose of the legislation of ensuring equality
of conditions for election to the office of Speaker for the
candidates and the occurrence of an election based on universal
equal, direct and personal suffrage freely expressed by a secret
ballot.
It was the duty of the Clerk to monitor the proceedings and keep a
continuous oversight of the actions of the voter as he or she moved
from the polling booth to drop the ballot paper into the ballot box.
In that way he would be able to detect conduct inconsistent with the
exercise by the voter of the right to elect the Speaker in accordance
with the procedure prescribed to ensure the maintenance of the
secrecy of the ballot.
Once he detected such conduct, it was the Clerk's duty to act
judicially and determine that the conduct of the voter had stripped
the ballot of secrecy and declare the vote invalid and not to be
counted.
At the end of the poll the Clerk
was required to open the ballot box in the presence of the agents of
the candidates. It was his duty to empty the ballot box and open each
and every folded ballot paper and inspect it to ensure that only
those ballot papers which were not contrary to the provisions and
spirit of section 39(2) of the Constitution, as read with Standing
Order 6, as to secrecy were counted in the election of the Speaker.
Before counting the valid ballot papers the Clerk was required to
group and arrange them under the names of the respective candidates
by placing in separate parcels those which were secret ballots
opposite the name of the same candidate and rejecting all invalid
ballot papers.
The results of the election to be
declared by the Clerk in an election of the Speaker conducted in
terms of section 39(2) of the Constitution, as read with Standing
Order 6, would not be the number of votes cast. The reason is that
some of the votes would have lost their secrecy as they moved through
the process from the time they were given on the ballot paper in the
polling booth to the time they were canvassed after the opening of
the ballot box. The result of the election under section 39(2) of the
Constitution, as read with Standing Order 6, is the outcome of secret
ballots counted as such.
The result of an election cannot include invalid votes because it is
unlawful to count invalid votes as secret ballots. Courts do not
ordinarily nullify that which has been done lawfully. Nullification
is a remedy intended to be used to redress a wrong.
There is yet another important
aspect of the right to secrecy of the ballot which needs to be
considered before the determination of the question whether the
applicants established the grounds on which they sought relief in the
court a quo.
It is that the right to secrecy
of the ballot protected under section 39(2) of the Constitution, as
read with Standing Order 6, is subject to the principle that everyone
has a right to waive an advantage of a law made solely for his or her
benefit and protection in his or her private capacity. He or she may
dispense with the benefit or advantage, provided he or she does so
without infringing any public right or public policy. See Maxwell on
The Interpretation of
Statutes 12ed p328.
There is no legal obligation that a voter must vote by secret ballot.
The requirement of a vote by a secret ballot is justified on the
principle which, without unacceptably encroaching on the rights of
the persons concerned to stay out of the prescribed system of
election, fosters the values of honesty, freedom and reliability that
should characterise electoral choice. As the voter must exercise the
right to vote for the Speaker by a secret ballot given on the ballot
paper freely, he or she can waive the right to the secrecy of the
ballot at the time the vote is cast or at any time before he or she
deposits the ballot paper in the ballot box.
The right to vote by a secret ballot includes the right of the voter
to disclose to any other person for whom he or she voted. He or she
can in the exercise of that freedom decide to put a writing or mark
on the ballot paper at the time he or she casts the vote by which he
or she can be identified as the voter and for whom he or she voted.
He or she may decide to display to others the ballot paper so as to
share the knowledge for whom he or she voted. So a voter can of his
or her own free will inform whomsoever he or she chooses for whom he
or she voted. A secret ballot is not compulsory insofar as the voter
who is not desirous of taking part in the election by a secret ballot
is concerned.
The rule that there should be no writing or mark put by the voter on
the ballot paper by which his or her identity as the voter can be
revealed, and that the ballot paper should not be displayed to any
other person so as to disclose for whom the vote was given,
prescribes a condition of the validity of the vote. The question
whether there is a secret ballot for the purposes of the validity of
the vote will depend for its answer on the actions of the individual
voter.
In Jenkins
v Board of Elections
180 NC 169 (1920), cited by Mr Chaskalson,
it is correctly stated by BROWN J that:
"… voting by ballot, as
distinguished from viva
voce voting, means a
secret ballot, and… the elector in casting his ballot has the right
to put it in the box and to refuse to disclose for whom he voted and
that he cannot be compelled to do so. But this privilege of voting a
secret ballot has been held to be entirely a personal one. The
provision has been generally adopted… for the protection of the
voter and for the preservation of his independence in the exercise of
this most important franchise. But he has the right to waive his
privilege and testify to the contents of his ballot."
In State
Ex Rel. Hutchins v Tucker et al
106 Fla 905 (1932), also cited by Mr Chaskalson
in argument, BUFORD CJ quoted from Cooley Constitutional
Limitations 7ed p912
where the learned author states:
"The system of ballot-voting rests upon the idea that every
elector is to be entirely at liberty to vote for whom he pleases and
with what party he pleases and that no one is to have the right or be
in a position to question his independent action either then or at
any subsequent time. The courts have held that a voter even in case
of a contested election, cannot be compelled to disclose for whom he
voted; and for the same reason we think others who may accidentally
or by trick or artifice have acquired knowledge on the subject should
not be allowed to testify to such knowledge or to give any
information in the courts upon the subject. Public policy requires
that the veil of secrecy should be impenetrable, unless the voter
himself voluntarily determines to lift it, his ballot is absolutely
privileged."
I turn now to determine the question whether the applicants
established the grounds on which they based the application for the
relief sought.
On the first ground, the first applicant in the founding affidavit
said that there was "too much noise in the House" at the
beginning of the process for the election of the Speaker.
The intention was to show that the Clerk was unable to manage the
activities of the members according to the prescribed procedure for
the achievement of the purpose of the electoral law.
He said the noise was caused by members belonging to MDC-T party who
were pacing up and down the Chamber conferring noisily with each
other in support of the second respondent. He said that was done "in
a manner that created utter disorder and raised very serious tensions
in the House".
After describing how the Honourable Biti displayed the ballot paper,
after he had cast his vote in the polling booth, so as to disclose to
others for whom he had voted, before folding the ballot paper up and
depositing it into the ballot box, the first applicant said in para
32 of the founding affidavit:
"Honourable Biti's shocking and unprecedented conduct caused
more than a fracas in the House as Honourable Members started
shouting objections and counter objections, including trading
insults, at the top of their voices while the voting process
degenerated into total disorder…."
In paras 3.9, 3.10, 3.15, 5, 6, and 11 of the opposing affidavit the
Clerk said:
"3.9 The mood and atmosphere in the House of Assembly on the
occasion was neither unique nor unprecedented. Members of the House
of Assembly were meeting together for the first time after a fiercely
contested general election. As can be expected under the
circumstances the conversation was lively and the exchanges
exuberant. There was a fair amount of good-humoured raillery,
including political taunting, verbal sparring and bantering, all done
by Members from all the political parties represented in what
appeared to be a good spirit of joviality. This kind of conduct is
not unusual in our Parliament or any other Parliament for that matter
and accordingly, I did not consider it a cause for concern on this
occasion.
3.10 It is my submission that what has been described by (the)
applicant as 'gross disorder, chaos or fracas' in the House was
actually nothing more sinister than increased hustle and bustle in
the House, in turn the result of the increase in number of Members of
the House (an increase in the membership from 150 to 210 as a result
of Constitutional Amendment No.18).…
3.15 Notwithstanding the environment in the House that I have
described in paragraphs 3.9 and 3.10 of this affidavit I was able to
manage the entire proceedings of the day according to my present
programme without a hitch of any kind. It is, therefore, my
submission that quite contrary to (the) applicants' allegations of
'utter disorder and fracas' the proceedings progressed exceptionally
smoothly.…
5. I deny that at the time immediately before the elections took
place there was too much noise and there existed a state of utter
disorder in the House. I also totally deny witnessing any
manifestation of serious tensions. What I did witness in the House
was the atmosphere that I have described in paragraphs 3.9 and 3.10
of this affidavit.
6. Save to confirm that I did call the House to order whenever I
deemed it necessary and by so doing achieved a continuing level of
order which enabled me to discharge my obligation and safeguard the
progress and integrity of the voting process as well as all other
proceedings of that day the contents of this paragraph (25 of the
founding affidavit) warrant no comment.…
11. I totally deny that there was total disorder in the House which I
failed to control. If such a state of disorder had existed the
process of voting would have been impossible which it was not.
Generally, Members remained in their places, heard their names being
called, followed the order on the list, approached, took possession
of the ballot papers and proceeded to vote privately. After voting
they resumed their places without impediment in an exceptionally
orderly manner given their numbers and the congestion in the
Chamber."
The court a
quo found on the facts
that there was not so much noise as to cause chaos or utter disorder,
as described by the first applicant.
The finding was justified by the evidence.
The relevance of raising the issue of noise was to show that the
Clerk was disabled from performing his duties to conduct the election
of the Speaker by a secret ballot. The applicants did not refer to
specific duties the Clerk failed to perform because of the noise. To
the contrary, the facts showed that all the Members who were present
and desirous to vote did so.
Each of the two hundred and eight members received a ballot paper
from the Clerk and went into the polling booth where he or she marked
his or her vote on the ballot paper in secret. Some of the members
came out of the polling booth with their ballot papers folded to
conceal the vote and dropped the ballot papers into the ballot boxes
after exhibiting the official stamp on the back to the Clerk. Other
members came out of the polling booth with their ballot papers
unfolded and displayed them to others so as to disclose for whom they
had voted before folding them and dropping the ballot papers into the
ballot box.
All the members responded to the alphabetical order in which their
surnames were called.
They could not have done that in the context of the environment of
chaos or utter disorder described by the applicants.
The first applicant conceded in para 25 of the founding affidavit
that the Clerk occasionally intervened to restore order when it was
necessary to do so.
It was indeed the duty of the Clerk to maintain order during the
electoral process.
By that admission the first applicant corroborated the Clerk, who
said that he was able to act and control the situation when he
considered that the noise would interfere with his ability to conduct
the election by a secret ballot as required by the law.
The Clerk was not a mere moderator. He was the governor of the
electoral process for the purposes of securing the proper conduct of
the election. As such his evidence had to be accorded appropriate
weight, where it was supported by that given by the applicants.
It is of interest to note that
the Minister of Youth Development, Indigenisation and Empowerment,
the Honourable Kasukuwere, and the Honourable Member, Mr Zhuwawo,
admit in the affidavits filed in support of the applicants that when
they called out to draw the attention of the Clerk to the objections
they were raising to what they considered was a violation of the
requirements of a secret ballot by members of the MDC-T party, who
displayed their ballot papers to others so as to disclose for whom
they had voted, the Clerk told them not to make noise.
According to the two members, what was shouted were objections to the
conduct of displaying ballot papers. The objections were not intended
to obstruct the Clerk in the conduct of the election. They were not
the confused and undesirable sounds characteristic of noise. The
environment cannot be accurately described as characterised by
complete absence of order.
In view of the fact that all the two hundred and eight members went
through the process by which they gave their votes on the ballot
papers and dropped them into the ballot boxes, with some displaying
their ballots to others so as to show for whom they had voted, the
allegation that there was so much noise that the atmosphere was not
conducive for conducting the election of the Speaker by a secret
ballot was not substantiated. The atmosphere was characterised by the
factors described by the Clerk, which enabled him to conduct the
election of the Speaker fairly and efficiently.
The first ground on which the application for relief was based was
not proved.
The second ground was based on the allegation that it was unlawful
for the members of the MDC-T party who displayed their ballot papers
to do so and for the Clerk not to stop or prevent them from doing
what they did.
The intention was to show that the actions of the voters concerned
and the failure to act by the Clerk undermined the process by which
the object of the electoral law was to be achieved, thereby violating
the rights of the applicants to elect the Speaker or be elected as
the Speaker by a secret ballot. In that regard the first applicant
said in the answering affidavit:
"100: It is particularly
notable that (the) second respondent himself was one of the
Honourable Members from the MDC-T party that unlawfully
opened and displayed their marked ballot papers
and this fact alone, which is captured in the DVD evidence, is enough
to show that his claim to be Speaker is legally vacuous.…
103. The
fact that some Honourable Members,
actually most of them belonging to (the) second respondent's MDC-T
party including (the) second respondent, defiantly
opened and displayed their marked ballot papers simply means that
there was no lawful election
and (the) second respondent is wishfully wrong to claim that he was
lawfully elected from an election that was in fact unlawful."
(the underlining is mine for emphasis)
The applicants invariably described the conduct of the members of the
MDC-T party in displaying their ballot papers to others so as to
disclose for whom they had voted in terms which show that they
considered the conduct unlawful.
They said it was "shocking behaviour", "a brazen
violation of the secret ballot", a "deliberate and defiant
violation of the election procedure", "open and defiant
violation of the secret ballot", "blatant misconduct",
"the failure to observe and respect a fundamental parliamentary
rule in the election of (the) Speaker", "the rampant and
systematic violation of the secret ballot", "the failure to
conduct the votes in secret as required" and "an
irregularity which is a grave breach of the Rules of Parliament".
The effect of the contention
advanced by Mr Hussein
on appeal was that the members of the MDC-T party who displayed the
ballot papers to others so as to disclose for whom they had voted had
no right to do so.
In para 6 of the answering affidavit, the first applicant emphasised
the fact that he considered the failure by the Clerk to stop or
prevent the members of the MDC-T party who displayed their ballots
from doing so as unlawful. He said:
"6. His failure principally arose from his inability or
unwillingness for whatever reasons to ensure that no Member left the
polling booth after voting with an unfolded ballot paper and that no
Member openly displayed his or her marked ballot paper to any other
Member for whatever reason."
In para 178 of the answering affidavit, the first applicant
summarised the issue for determination by the Court as follows:
"At issue is only the unchallenged fact in the papers, namely
that unfolded and marked ballot papers were displayed by many
Honourable Members of the MDC-T party including (the) second
respondent outside the polling booth during the election and that
this was in violation of the procedure that marked ballot papers
should be folded in the polling booth and (the) first respondent did
nothing to stop this violation."
Mr Hussein
argued on appeal that the failure by the Clerk to prevent or stop the
members of the MDC-T party from displaying their ballot papers was
evidence of breach by him of the duty to conduct the election of the
Speaker by a secret ballot.
The court a
quo found on the facts
that only six members of the MDC-T party were shown to have come out
of the polling booth with unfolded ballot papers and to have
displayed the ballot papers to others so as to disclose for whom they
had voted.
The finding was again justified.
Although the first and second applicants had alleged in their
affidavits that "many" members of the MDC-T party had
displayed their ballots, no evidence was produced to support the
allegation.
The use of the word "many", in a case in which they were
not able to state the number of the members of the MDC-T party who
acted in the manner alleged, suggests that there was an element of
exaggeration.
This is particularly so when regard is had to the fact that the
applicants also said "some" members of the MDC-T party
displayed their ballot papers so as to disclose to others for whom
they had voted.
Given the fact that the applicants were seeking an order of
nullification of the election, it was necessary that their case be
based on clear evidence of the number of voters who displayed their
ballot papers. The legal consequence would have been that the voters
concerned had disenfranchised themselves by their own conduct.
Proceeding as the parties did on
appeal on the basis that six members displayed their ballots so as to
disclose for whom they had voted, did the applicants show that those
voters acted unlawfully? Did they ipso
facto show that the
Clerk acted unlawfully in failing to stop or prevent those voters
from behaving in the manner they did?
I must add that the only reasonable inference from the circumstances
of the case is that the six members displayed their ballot papers to
other members of the MDC-T party to disclose to them that they had
voted for the second respondent.
All members, including the six who displayed their ballot papers, had
the right to waive the right to the secrecy of their votes.
In displaying the ballot papers to others, the six members exercised
their right to share with any other person the knowledge for whom
they voted.
As long as they were not coerced or compelled to expose their ballot
papers to others, the voters acted lawfully. The power conferred on
the Clerk to conduct the election of the Speaker by a secret ballot
is limited by the right of the voter not to maintain the secrecy of
his or her ballot.
The Clerk was not under any duty to stop or prevent the voters from
voluntarily displaying their ballot papers to others so as to
disclose for whom they had voted.
Whilst the duty on the Clerk to maintain the secrecy of the ballot
given by the voter requires that he should refrain from doing
anything that would compel the voter to disclose to any other person
how he or she voted, it cannot be relied upon to justify conduct by
which the voter would be prevented from freely exercising the right
to disclose to whomsoever he or she chooses for whom he or she voted
because the secrecy of the ballot is protected under the law for the
benefit of the voter.
The Clerk owed the duty not to do anything to compel the voter to
disclose for whom he or she voted to the voter. He cannot discharge
the duty to the detriment of the interests of the voter by preventing
or stopping him or her from exercising the right of disclosure of
information as to how he or she voted.
It is clear that the duty on the Clerk was not to interfere with the
recording, processing and protection of a secret ballot as long as
the voter maintained the secrecy of the ballot.
The applicants did not show that the Clerk acted unlawfully by not
stopping or preventing the six members from displaying their ballot
papers to others so as to disclose that they had voted for the second
respondent. His duty was to manage and direct the activities of the
electors in accordance with the rules designed to ensure a free and
fair election by a secret ballot.
The applicants failed to establish the two grounds on which they
sought the relief from the High Court by way of an order declaring
the election of the second respondent as the Speaker of the House
null and void and set aside.
The application ought to have been dismissed at that stage of the
proceedings.
As I disagree with the learned Judge, on the comments he made on the
legal consequences of the conduct of the six members in displaying
their ballot papers to others so as to disclose for whom they voted
and also disagree with the learned CHIEF JUSTICE on the conclusion he
reached that the counting by the Clerk of invalid votes cast by the
six members as secret ballots nullified the election of the second
respondent as the Speaker of the House and not just the affected
votes, I proceed to express my opinion on these matters.
The words "shall conduct the election of Speaker by a secret
ballot" are placed in a statute by the provisions of which the
Legislature recognised the possession by the members of the House
present at its first meeting of the right to vote for the Speaker by
a secret ballot.
The rule of law is that a right to vote must be exercised strictly
according to the terms of the statute which confers it.
What this means, on the facts of
this case, is that when the six members displayed their ballot papers
to others, so as to disclose for whom they had voted, they
voluntarily took their votes out of the system of the election by a
secret ballot prescribed under section 39(2) of the Constitution, as
read with Standing Order 6. By the same conduct by which they waived
the right to the secrecy of their ballots, the voters lifted the veil
of secrecy from the ballots rendering them void and of no value in
the election of the Speaker.
I do not accept as a correct
statement of the law the contention advanced by Mr Chaskalson
and Ms Damiso on
behalf of the respondents, and accepted by the learned Judge in the
court a quo,
that the six ballots remained valid votes, notwithstanding the fact
that they had been displayed by the voters concerned to others so as
to disclose for whom they had been given.
The learned Judge at p11 of the cyclostyled judgment said:
"The courts should not
interfere unless it is shown that the objective conditions put in
place for the election precluded the possibility of a secret vote.
Beyond this, it is then a matter purely for the individual voter if
he chooses to divulge, whether publicly or in private, the specific
manner in which he has cast his vote. If he does so of his own
volition, without any external coercion or intimidation and howsoever
his conduct might influence other voters, this
cannot detract from the secrecy of his vote
or vitiate the secrecy of the ballot as a whole." (the
underlining is mine)
The statement that a voluntary display by a voter of the ballot paper
so as to disclose to other people for whom he or she voted does not
"detract from the secrecy" of the vote cannot be a correct
statement of the legal effect of such conduct on the secrecy of the
ballot affected.
The object of the ballot
prescribed under section 39(2) of the Constitution, as read with
Standing Order 6, is to secure complete secrecy as a condition of its
validity, to be maintained not only by the voter desirous to elect
the Speaker but by the official entrusted with the responsibility of
conducting the election by a secret ballot during the electoral
process, including the time when the counting of the votes takes
place.
How can the official be able to maintain complete secrecy of a ballot
in the face of conduct by the voter which removes the secrecy from
the ballot? How the ballot can retain its secrecy thereafter I cannot
imagine.
The secrecy is conferred on the ballot at the time the vote is given
on the ballot paper in the polling booth. It must, however, be
maintained thereafter to ensure the validity of the vote in the
election of the Speaker.
It is clear from the object of the statute and the procedure for
voting, that a ballot paper which has a writing or mark made on it by
which the identity of the voter can be known or one that is displayed
to other people so as to disclose for whom the vote was cast gets
stripped of the secrecy of the ballot. The secret as a secret ceases
to exist.
The ballot becomes void and cannot be counted in the election by a
secret ballot.
The view expressed by the learned Judge did not take into account the
effect of the requirement of the procedure provided by the Clerk for
voting by a secret ballot.
The duty put on the voter desirous of maintaining the validity of his
or her ballot in the election of the Speaker was that, after marking
the ballot paper in the privacy of the polling booth, he or she would
fold the ballot paper so as to conceal the ballot and keep it so
folded until he or she deposited the ballot paper in the ballot box
for safekeeping. The rule was to ensure the preservation of the
secrecy of the ballot for the purpose of its validity in the
election.
The direct effect of the voter displaying the ballot paper to other
people so as to disclose to them for whom he or she voted is the
invalidation of the ballot as a secret ballot.
Without pretending that there was no criterion by which a secret
ballot had to be identified, I think the conclusion that the ballots
displayed by the six voters to others so as to disclose to them for
whom they had voted did not lose their secrecy, does not accord with
what seems to have been the intention of the Legislature.
The proposition that the invalidity of the votes does not occur at
the time the ballot papers are displayed so as to disclose for whom
the vote was given would create a situation which would be quite
unclear and to a certain extent even illogical. Every exercise of a
right has a direct consequence. The exercise of the right to vote
which removes the secrecy of the ballot cannot have the same
consequence as the exercise of the right which maintains the secrecy
of the vote.
Failure by the Clerk to respond to the actions of the six voters and
formally declare the ballots void did not change the fact that the
ballots had been rendered invalid by the very actions of the voters.
The votes remained invalid at the time the Clerk counted them as
secret ballots. He was not under any duty to count invalid votes as
secret ballots. The statute is in effect clear that in no case will
votes be allowed which are in any form other than the form of a
secret ballot.
The result of the election of the Speaker by a secret ballot was not
the number of votes cast, as some of them would have lost the
essential element of secrecy as they travelled in their journey from
the time they were cast to the time of counting. The result of the
election was who was elected by a secret ballot.
The counting of invalid votes that had lost their secrecy affected
two classes of voters.
(a) The first class is of voters
who deliberately exercised their right to waive the benefits of the
secrecy of the ballot by displaying the ballot papers to others so as
to disclose for whom they had voted.
(b) The second class is that of
voters who kept the knowledge for whom they voted to themselves.
The first class of voters had no right or legitimate expectation that
their votes would be counted as valid votes. In this case they did
not, as a matter of fact, seek to enforce any such right or
legitimate expectation. They appreciated the fact that they did not
have such a protection. If anything, the legitimate expectation would
have been that the votes they had voluntarily stripped of secrecy be
not counted as secret ballots.
The second class of voters had the right or legitimate expectation
that their votes and the election based on them be declared lawful.
The applicants belonged to this class of voters. It appears that they
are acting against their own interests and those of other voters in
this class.
What right did they seek to protect or enforce by an order of
nullification of the election?
If it is the right to a fair and free election by a secret ballot,
they had to first show that it was violated by the respondents. They
failed to show that violation.
Where there is proof of violation of electoral rights, such as the
right to vote or to stand for election, the need to enforce the
rights under judicial protection may require that the election be set
aside if it was shown that the violation had undue influence on the
result of the election.
There cannot be a remedy without proof of violation of a right.
The learned CHIEF JUSTICE reached
the conclusion that nullification of the election was the only remedy
for the unlawful conduct by the Clerk of counting invalid votes as
secret ballots. The reason was that, whilst imposing on the Clerk the
mandatory obligation to conduct the election of the Speaker by a
secret ballot, section 39(2) of the Constitution, as read with
Standing Order 6, did not provide a remedy for the disobedience of
the command.
The conclusion that nullification
of the election was the only remedy for what, in reality, was a
nullity in respect of the six votes could only have been reached by
implication of what is the intention of Parliament. It would be based
on a construction of section 39(2) of the Constitution, as read with
Standing Order 6, which presumes that it is the intention of the
Legislature that voters who had complied strictly with the law and
voted by a secret ballot for the Speaker should lose their valid
votes on account of a failure by an official to discharge his duty
not to count invalid votes as secret ballots.
The principle of law to be applied is that where an enactment imposes
an obligation but is silent as to the remedy to be awarded for
disobedience, a court must ascertain from the language by which the
obligation is imposed whether it is the intention of the Legislature
that nullification of the offending conduct should be the remedy to
be awarded without any limit as to the scope of its operation or
application.
Maxwell on The
Interpretation of Statutes
12ed at p314 summarises the principles to be applied as follows:
"… when a statute requires that something shall be done or
done in a particular manner or form, without expressly declaring what
shall be the consequence of non-compliance, is the requirement to be
regarded as imperative (or mandatory) or merely as directory (or
permissive)?
In some cases the conditions or forms prescribed by the statute have
been regarded as essential to the act or thing regulated by it and
their omission has been held fatal to its validity. In others such
prescriptions have been considered as merely directory, the regard to
them involving nothing more than liability to a penalty if any were
imposed for breach of the enactment.
'An absolute enactment must be
obeyed or fulfilled exactly, but it is sufficient if a directory
enactment be obeyed or fulfilled substantially.' Woodward
v Sarsons (1875) L.R.
10 C.P. 733.
It is impossible to lay down any general rule for determining whether
a provision is imperative or directory.
'No universal rule', said LORD
CAMPBELL LC, 'can be laid down for the construction of statutes, as
to whether mandatory enactments shall be considered directory only or
obligatory with an implied nullification for disobedience. It is the
duty of Courts of Justice to try to get at the real intention of the
Legislature by carefully attending to the whole scope of the statute
to be construed.' Liverpool
Borough Bank v Turner
(1860) 2 De. G. F & J 502 at pp507, 508.
And LORD PENZANCE said:
'I believe, as far as any rule is
concerned, you cannot safely go further than that in each case you
must look to the subject-matter; consider the importance of the
provision that has been disregarded and the relation of that
provision to the general object intended to be secured by the Act;
and upon a review of the case in that aspect decide whether the
matter is what is called imperative or only directory.' Howard
v Bodington (1877) 2
PD 203 at p211."
See also Sterling
Products International Ltd v Zulu
1988 (2) ZLR 293 (S).
There is no question that section
39(2) of the Constitution, as read with Standing Order 6, is a
mandatory enactment, the subject-matter of which is the election of
the Speaker of the House. The object of the statute is to secure an
election of the Speaker by members of the House qualified to vote by
a secret ballot. The object is also to ensure by the imposition of
the obligation on the Clerk to conduct the election of the Speaker by
a secret ballot that there is provided mechanisms and procedures for
the recording, processing, protecting and counting of the secret
ballot.
In other words, it is to ensure the establishment of an effective
system for the election of the Speaker by a secret ballot conducted
fairly, efficiently and impartially.
The Clerk did put in place the mechanisms and procedures for the
recording, processing, protection and counting of secret ballots.
Of the two hundred and eight
members who voted, two hundred and two complied strictly with the
requirements of the law for the exercise of their right to vote for
the Speaker by a secret ballot. That is the main object for the
achievement of which the provisions of section 39(2) of the
Constitution, as read with Standing Order 6, were enacted.
He had assembled together all the necessary mechanisms which were
required by the law governing the election to be put in place at the
time prescribed to ensure delivery of the election of the Speaker by
a secret ballot.
The six members who displayed their ballot papers to others so as to
disclose for whom they had voted did so in the context of the
mechanisms and procedures. The failure committed by the Clerk was not
to declare the invalid ballots void. It was the unlawful conduct of
counting invalid ballots as secret ballots that has been used as a
justification for the proposed award of the order of nullification of
the election of the Speaker.
The disobedience did not relate to a secret ballot.
In other words, it is not a case of the Clerk failing to record,
process or count a secret ballot or declaring a secret ballot to be
an invalid vote.
Had that been the case, the result of the election of the Speaker
would have been affected by the disobedience of the Clerk to the duty
to conduct the election of the Speaker by a secret ballot.
He had no power to decide what should be counted to ascertain the
result of the election. He was told by the law what to count and for
what purpose.
In this case, the Clerk counted what was at law a nullity as a secret
ballot. His conduct did not give value to the invalid votes and did
not in any way affect the result of the election of the Speaker.
The discounting of the invalid votes as well as the declaration of
the conduct of the Clerk to be unlawful would not give rise to any
difficulty in the determination of who the winner of the election of
the Speaker was. The result of the election would not change. The
nullification of the election based on a secret ballot would subvert
the purpose of the statute.
The general rule is that a
declaration of nullity must be confined to the conduct in respect of
a particular vote or class of votes, the invalidity of which has been
established, unless the non-observance of the requirements of the law
governing the specific duty is of a character which is contrary to
the principle of an election by a secret ballot and is so great that
it might have permeated the process and affected the result of the
election. Phillips v
Goff (1886) 17 QB 805.
There are numerous cases in which courts have struck off the invalid
votes and declared conduct in respect of them void without affecting
the election. The principle applied has been that to nullify the
results of the election based on votes given by a secret ballot in
strict compliance with the requirements of the law governing the
election would imply that the provisions of the law complied with are
misleading.
Had the Clerk declared the invalidity of the six votes at the
appropriate stage in the election process, the declaration would have
affected those votes only and not the other votes validly cast.
Why should the court, upon review of his conduct in failing to do the
right thing at the right time, go farther than the remedy the law had
placed at his disposal had he acted lawfully?
The purpose of voting is not only the differentiation of the
electorate and the expression of the will of the individual voters
but also the ability to accept such decisions based on the will of
the majority.
In my view, the principle of majority rule on the basis of which
results of democratic elections are determined, requires that courts
should refrain from interfering with the will of the majority of
voters expressed in accordance with the requirements of the law, on
the ground that the official entrusted with the responsibility of
conducting the election by a secret ballot unlawfully counted
non-secret ballots as secret ballots, especially where there would be
no confusion at all as to who is the winner following the discounting
of the invalid votes.
An election may be set aside if it is not clear upon determination of
the conduct forming the ground on which the validity of the election
is impugned who was the winner.
In this case there is clear evidence of the election of the Speaker
of the House in accordance with the mode of voting prescribed by the
law governing the election concerned.
The general principles of the law
on which I have based my decision in this case and believe are
applicable in the resolution of the questions raised were stated by
LORD COLERIDGE CJ in Woodward
v Sarsons (1875) LR 10
CP, referred to with approval in Chanter
v Blackwood (1904) 1
CLR 39 at 58-59. He said:
"As the first point, we are
of opinion that the true statement is that an election is to be
declared void by the Common Law applicable to parliamentary
elections, if it was so conducted that the tribunal which is asked to
avoid it is satisfied, as matter of fact, either that there was no
real electing
at all, or that the election was not really conducted under the
subsisting election laws.
As to the first, the tribunal should be so satisfied, i.e., that
there was no real electing by the constituency at all, if it were
proved to its satisfaction that the constituency had not in fact had
a fair and free opportunity of electing the candidate which the
majority might prefer.
This would certainly be so, if a majority of the electors were proved
to have been prevented from recording their votes effectively
according to their own preference, by general corruption or general
intimidation or to be prevented from voting by want of the machinery
necessary for so voting, as by polling stations being demolished, or
not open or by other of the means of voting according to law not
being supplied, or supplied with such errors as to render the voting
by means of them void, or by fraudulent counting of votes or false
declaration of numbers by a Returning Officer, or by other such acts
or mishaps.
And we think the same result
should follow if, by reason of any such or similar mishaps, the
tribunal, without being able to say that a majority had been
prevented, should be satisfied that there was reasonable ground to
believe that a majority of the electors may
have been prevented
from electing the candidate they preferred.
But, if the tribunal should only be satisfied that certain of such
mishaps had occurred, but should not be satisfied either that a
majority had been, or that there was reasonable ground to believe
that a majority might have been, prevented from electing the
candidate they preferred, then we think that the existence of such
mishaps would not entitle the tribunal to declare the election
void…".
I am of the view that the
construction of section 39(2) of the Constitution, as read with
Standing Order 6, for the purpose of establishing the intention of
the Legislature regarding the nullification of the election for the
unlawful conduct of the Clerk in counting invalid votes as secret
ballots, does not justify the conclusion that it is the intention of
the Legislature that breach of any of the numerous duties imposed on
the Clerk under the general obligation to conduct the election of the
Speaker by a secret ballot, should attract an order of nullification
of the election regardless of the nature of the neglect of duty and
its effect on the "result of the election".
There can be no doubt that the
majority of the voters freely expressed their preference of the
candidate they wished to be the Speaker in the secrecy of the polling
booth and exercised their right to maintain the secrecy of the ballot
in accordance with the requirements of section 39(2) of the
Constitution, as read with Standing Order 6.
The majority of the voters were enabled by the process conducted by
the Clerk to freely elect by a secret ballot the Speaker from the two
candidates.
To declare such an election void would be to declare void what is
lawful.
The remedy awarded would be wholly disproportionate to the wrong
committed. There was, in fact, no failure by the Clerk to conduct
the election by a secret ballot within the meaning of the statute.
The ballots which were effectively cast decided who was elected as
the Speaker of the House.
The fact that the Clerk counted invalid votes as secret ballots
because he had not seen the conduct by which they were rendered void
did not change their invalid status.
The question is whether the purpose for which the powers to conduct
the election of the Speaker by a secret ballot were conferred on the
Clerk was fulfilled.
A close interpretation of the facts leads to the conclusion that the
purpose of the statute was accomplished.
An appropriate remedy is one which accords with the intention of the
Legislature.
In this case, it is the one that upholds the result of the election
of the Speaker by a secret ballot.
The valid result is that the second respondent was elected the
Speaker of the House by a majority of voters who cast secret ballots.
It would, in my view, be contrary to fairness and justice to say as a
matter of principle that the Legislature intended that the election
of the Speaker conducted by a secret ballot in terms of the law be
nullified on account of, say, a single invalid vote counted by the
official conducting the election as a secret ballot. The intention of
the Legislature must be that only irregularities which undermined the
achievement of the object or purpose of the legislation of ensuring
an election of the Speaker based on universal, equal, direct and
personal vote freely expressed by a secret ballot should vitiate the
election.
In the exercise of review powers
the court a quo
came to the conclusion that the improper counting of invalid votes as
secret ballots was not an irregularity of the class the Legislature
intended would vitiate the election.
The conclusion is, in my view,
not evidence of a misdirection on the part of the court a
quo.
It is when the irregularity affected the actual discharge of the
positive duty to conduct the election by a secret ballot and not by
any other type of vote that it may be used as a ground for
challenging the validity of the election by a secret ballot.
The Legislature prescribed the standard which had to be used by
everyone including the court as an accurate and reliable criterion
for determining the ballot papers which had to be counted to
ascertain the result of the election.
Applying the test, the Clerk came to a wrong conclusion in respect of
the six ballots cast for the second respondent. They were not secret
ballots qualified to be counted.
The court a
quo was on the facts
in a position to apply the criterion to the ballot papers and arrive
at the conclusion the Clerk ought to have reached in respect of the
invalidity of the six ballots had he properly applied the prescribed
test.
If it had to set aside anything,
the court a quo
should have set aside the counting of the ballot papers made by the
Clerk and not the election itself.
The legality of the election was dependent upon the will of the
electorate having been freely expressed by a secret ballot reflected
by accurate and reliable results. The unlawful act of counting six
invalid votes as secret ballots because of the wrong application of
the prescribed standards of differentiating secret ballots from
non-secret ballots did not disable the court which had jurisdiction
to do so from objectively scrutinising the facts and obtaining a
reliable result of the election. The court would be acting within the
bounds and limits of the requirement that there should have been
brought about an election of the Speaker by secret ballot on the
basis of universal, equal, direct and personal right to vote freely
expressed according to the principle of majority rule.
I would therefore dismiss the appeal.
Although I would dismiss the appeal, I think that the respondents
should not get their costs from the applicants.
The respondents used language in their affidavits which was insultive
of the first applicant and added nothing to the determination of the
questions before the courts. It offended its sense of fairness and
justice for the Court to be put in a position in which it had to read
through all the papers containing some of the impolite and
discourteous language.
The affidavit deposed to by Paurina Mpariwa in support of the second
respondent covered some thirty-four pages, most of which dealt with
the history of the formation of the MDC party, the conflicts which
developed in its leadership and the split into the MDC-T and MDC-M
formations, blamed on people who were not party to the proceedings.
One wonders, for example, what point the first respondent intended to
make if not to offend when he said the application by the first
applicant was "the result of a contrived afterthought: the
manifestation of a mischievous and dissentious character".
Paurina Mpariwa's use of words like "foolish", "sell-out"
and "turncoat" against another litigant in an application
to be placed before a court of law reveals a serious lack of respect
for judicial proceedings. There is need to discourage the use of such
invective language in court proceedings.
The appeal is dismissed with no order for costs.
SANDURA JA:
I have read the judgment prepared by CHIDYAUSIKU CJ, but respectfully
disagree with it.
The judgment is based on the principle that a peremptory enactment
must be obeyed or fulfilled exactly, and that in respect of a
directory enactment substantial compliance therewith will suffice.
That principle was disapproved of
and abandoned by this Court about twenty-two years ago in Sterling
Products International Ltd v Zulu
1988 (2) ZLR 293 (SC).
At 301B-302B GUBBAY JA (as he then was), with the concurrence of
McNALLY JA and MANYARARA JA, said the following:
"The categorisation of an enactment as 'peremptory' or
'directory', with the consequent strict approach that if it be the
former it must be obeyed or fulfilled exactly, while if it be the
latter substantial obedience or fulfilment will suffice, no longer
finds favour.
As was pertinently observed by
VAN DEN HEEVER J (as he then was) in Lion
Match Co Ltd v Wessels
1946 OPD 376 at 380, the criterion is not the quality of the command
but the intention of the legislator, which can only be derived from
the words of the enactment, its general plan and objects.
The same sentiment was expressed
by MILNE J in J.E.M.
Motors Ltd v Boutle & Anor
1961 (2) SA 320 (N) at 327 in
fine – 328B.
This approach received the
imprimatur
of the South African Appellate Division in Maharaj
& Ors v Rampersad
1964 (4) SA 638 (A) where, after concluding that the provision with
which he was concerned was imperative, VAN WINSEN AJA went on to
enquire whether the failure in strict compliance therewith was fatal.
He propounded the following test at 646 C-E:
'The enquiry, I suggest, is not
so much whether there has been "exact", "adequate"
or "substantial" compliance with this injunction, but
rather whether there has been compliance therewith. This enquiry
postulates an application of the injunction to the facts and a
resultant comparison between what the position is and what, according
to the requirements of the injunction, it ought to be. It is quite
conceivable that a Court might hold that, even though the position as
it is is not identical with what it ought to be, the injunction has
nevertheless been complied with. In
deciding whether there has been a compliance with the injunction the
object sought to be achieved by the injunction and the question of
whether this object has been achieved are of importance.'
(emphasis added)
See also Shalala
v Klerksdorp Town Council & Anor
1969 (1) SA 582 (T) at 587H-588B; Nkisimane
& Ors v Santam Insurance Co Ltd
1978 (2) SA 430 (A) at 433H-434E; and more recently, Ex
p Dow 1987 (3) SA 829
(D) at 831 B-D.
Judges in this country also have
not been slow to move away from the traditionally strict approach.
See Swift Transport
Services (Pvt) Ltd v Pittman NO & Ors
1975 (2) RLR 226 (GD) at 228C-229C, 1976 (1) SA 827 at 828; Macara
v Minister of Information, Immigration and Tourism & Anor
1977 (1) RLR 67 (GD) at 70H; Ex
p Ndlovu 1981 ZLR 216
(GD) at 217 F-G.
Testing the matter then in the manner approved by these authorities,
one is constrained to discover the object of s3(1) of the Regulations
to determine whether that object is fundamental to the policy of the
enactment and, if it is, to decide whether it is defeated or
frustrated by the non-compliance complained of. The degree of
observance and non-compliance is another relevant consideration."
In that case GUBBAY JA was
considering whether section 3(1) of the Labour Relations (General
Conditions of Employment) (Termination of Employment) Regulations,
1985, ("the Regulations") (now repealed) had been complied
with.
The facts in that case are set out in the headnote which, in relevant
part, reads as follows:
"In July 1987 the appellant, the respondent's employer,
suspended the respondent from her employment without pay, pending the
outcome of the appellant's request to the Ministry of Labour for her
dismissal on the grounds of having stolen a confidential document
from the company. The relevant section of the Labour Relations
(General Conditions of Employment) (Termination of Employment)
Regulations required that (the) application be made to a labour
relations officer, but the appellant applied to an acting regional
hearing officer in the Ministry..".
Having found that the object of
the requirement of section 3(1) of the Regulations (i.e. that upon
suspension of an employee without pay and other benefits the employer
was to apply forthwith to a labour relations officer for an order or
determination terminating the contract of employment) was
predominantly the protection of the interests of the employee, that
that object was not frustrated or materially impaired by the employer
proceeding in the manner it did, and that the degree of
non-compliance was by no means great, the Court held that section
3(1) of the Regulations had been complied with.
In my view, the principles set out in the above authorities are the
principles which should be applied in the present case in order to
determine whether Standing Order No. 6 ("the Standing Order")
was complied with in the election of the Speaker.
In this regard, the following questions arise for consideration –
1. What is the object sought to be achieved by the Standing Order?;
and
2. Was that object achieved in the election of the Speaker?
I shall deal with the questions in turn.
What is the object sought to be achieved by the Standing Order?
The Standing Order reads as follows:
"If more than one person is proposed as Speaker, the Clerk shall
conduct the election of the Speaker by a secret ballot."
In my view, the object sought to be achieved by this Standing Order
is the same as the object sought to be achieved by the secret ballot
system all over the world. It is to protect the voter, mainly against
intimidation and victimisation, by enabling him or her to vote freely
and in secret for the candidate of his or her choice, without fearing
that other people would know for which candidate he or she has voted.
The secret ballot system in this country has its origin in the Ballot
Act, 1872, which introduced a secret system of voting in
parliamentary and municipal elections in Great Britain. Before the
Ballot Act was enacted in 1872, Britain had an open system of voting
in parliamentary and municipal elections.
In parliamentary elections, the voter would go onto a platform at the
polling station and announce his choice of candidate to an officer,
who then recorded it in what was called a poll book. Intimidation and
victimisation were rife. Employees were required by their employers
to vote for particular candidates or lose their employment. The same
applied to tenants. If they did not vote as the landlord wanted them
to vote, they were evicted from the premises they occupied. In the
circumstances, there was a growing demand for the protection of the
voter against intimidation and victimisation by enabling him to vote
freely and in secret. As a result, the Ballot Act 1872, which
introduced a secret system of voting, was enacted in order to meet
that demand.
The Act required that parliamentary and municipal elections be by
secret ballot. Subsequently, when this country became a colony of
Great Britain the secret ballot system was introduced in the country.
In my view, the object sought to be achieved by the secret ballot
system in Great Britain is the same as the object sought to be
achieved by the Standing Order. That object is fundamental to the
policy of the Standing Order.
Was the object sought to be achieved by the Standing Order
achieved in the election of the Speaker?
In my view, there can be no doubt whatsoever that the answer to that
question is in the affirmative.
All the two hundred and eight Members of Parliament ("MPs")
present marked their ballot papers in the secrecy of the polling
booths. Each MP was protected against intimidation and victimisation,
and was enabled to vote freely and in secret for the candidate of his
or her choice, without fearing that other people would know for which
candidate he or she had voted.
Some MPs emerged from the polling booths with their ballot papers
folded, whilst others emerged from the polling booths not having
folded their ballot papers. However, there was no evidence
suggesting that any MP who had wanted to keep his or her ballot paper
folded at all times outside the polling booth had been prevented from
doing so. In addition, no MP ever complained to the Clerk of
Parliament that he or she had been compelled to display his or her
marked ballot paper to any other person.
However, assuming that it is correct that the six MPs who displayed
their marked ballot papers did not comply with the Standing Order,
the object sought to be achieved by the Standing Order was,
nevertheless, not defeated or frustrated by the non-compliance
complained of.
Of the two hundred and eight MPs who voted, only six (i.e. about 2.9
percent of the total) displayed their marked ballot papers before
depositing them in the ballot boxes, whilst two hundred and two (i.e.
about 97.1 percent of the total) voted in accordance with the
provisions of the Standing Order.
Quite clearly, the degree of non-compliance was insignificant,
whereas the degree of compliance was nearly one hundred percent.
In the circumstances, as the object sought to be achieved by the
Standing Order was achieved and not defeated or frustrated by the
non-compliance complained of, and as the degree of the alleged
non-compliance was insignificant, it follows that the Standing Order
was complied with in the election of the Speaker.
Finally, I would like to comment
on section 177 of the Electoral Act [Chapter
2:13] ("section
177 of the Act"). It reads as follows:
"An election shall be set aside by the Electoral Court by reason
of any mistake or non-compliance with the provisions of this Act if,
and only if, it appears to the Electoral Court that –
(a) the election was not conducted in accordance with the principles
laid down in this Act; and
(b) such mistake or non-compliance did affect the result of the
election."
Section 177 of the Act has its origin in the Ballot Act, 1872 ("the
Ballot Act"), which introduced the secret ballot system in
Britain. Section 13 of the Ballot Act provided as follows:
"No election shall be declared invalid by reason of a
non-compliance with the rules contained in the First Schedule to this
Act, if it appears to the tribunal having cognizance of the question
that the election was conducted in accordance with the principles
laid down in the body of this Act, and that such non-compliance or
mistake did not affect the result of the election."
Subsequently, section 13 of the
Ballot Act was reproduced, in almost identical language, by the
Legislature of the Colony of Southern Rhodesia, in the Electoral Act,
1928. Section 60 of that Act read as follows:
"No election shall be set aside by the court by reason of any
mistake or non-compliance with the provisions of this Chapter, if it
appears to the court that the election was conducted in accordance
with the principles laid down in this Chapter, and that such mistake
or non-compliance did not affect the result of the election."
Thereafter, section 60 of the
Electoral Act, 1928, was reproduced, in almost identical terms, in
every Electoral Act enacted in this country, as can be seen from the
following provisions –
1. Section 85 of the Electoral
Act, 1938;
2. Section 85 of the Electoral
Act [Chapter
2];
3. Section 88 of the Electoral
Act, 1951;
4. Section 182 of the Electoral
Act, 1969;
5. Section 156 of the Electoral
Act, 1979;
6. Section 38 of the Electoral
Amendment Act, 1987;
7. Section 142 of the Electoral
Act, 1990;
8. Section 149 of the Electoral
Act [Chapter
2:01]; and
9. Section 177 of the Electoral
Act [Chapter
2:13].
Thus, the principle that an election will not be set aside by the
court for non-compliance with the provisions of the electoral law if
the election was conducted in accordance with the principles of the
electoral law, and the non-compliance did not affect the result of
the election, is well-established and has been part of the electoral
law of this country for at least eighty-two years.
It is based on common sense, for there would be no good reason for
setting aside an election on the basis of an irregularity which did
not affect the result of the election.
However, as I have already determined that the election of the
Speaker was conducted in accordance with the principles of the
Standing Order, and as it was common cause that the non-compliance
complained of did not affect the result of the election, the only
remaining issue for me to determine is whether the principle that the
court would not set aside an election on the basis of an irregularity
which did not affect the result of the election, applies to the
election of the Speaker.
I have no doubt in my mind that it does. In fact, there is no logical
reason whatsoever why it should not apply.
In my view, the fact that the Standing Order does not state the
principle is of no significance. The principle is based on common
sense, and common sense dictates that if an irregularity does not
affect the result of the election, it cannot form a basis for the
nullification of the election.
In addition, when the Standing Order was drafted, Parliament must
have been aware that the principle had been part of the electoral law
of this country for a very long time, and must have felt that there
was no need to include in the Standing Order an obvious principle
based on common sense. In any event, one would not expect the sort of
details which usually appear in a statute to be set out in a Standing
Order.
Finally, I would like to comment on the following statement in the
majority judgment:
"It is unacceptable that Parliament should seek to salvage a
shambolic and chaotic election of a Speaker through the doctrine of
substantial compliance."
In my view, the description of
the election as "shambolic and chaotic" is not borne out by
the finding made by the learned Judge in the court a
quo, which was as
follows:
"As regards the conduct of
the election in casu
generally, the papers before the Court evince several conflicts of
fact as to what transpired at the time. The applicants' assertions
that the proceedings were brazenly unruly are squarely rebutted by
the averments of the first respondent. In this situation, the
approach to be adopted was explained by GUBBAY JA (as he then was) in
Zimbabwe Bonded
Fibreglass (Pvt) Ltd v Peech
1987 (2) ZLR 338 (S) at 339, as follows:
'It is, I think, well established
that in motion proceedings a court should endeavour to resolve the
dispute raised in affidavits without the hearing of evidence. It must
take a robust and common sense approach and not an over fastidious
one; always provided that it is convinced that there is no real
possibility of any resolution doing an injustice to the other party
concerned. Consequently, there is a heavy onus
upon an applicant seeking relief in motion proceedings, without the
calling of evidence, where there is a bona
fide and not merely an
illusory dispute of fact.'
Having regard to the overall scenario prevailing in the House on the
day in question, it seems reasonably clear that the election
proceedings under review were not conducted in an ideal manner.
Nevertheless, despite the imperfections alluded to above, it cannot
be said that the process was so disorderly as to be utterly chaotic.
On the contrary, all the Members in the House were duly called upon
to vote and were able to cast their votes in the polling booths
provided.
Taking into account the usual
volatility associated with the conduct of Parliamentary business
generally, I am inclined to take the robust view that the election
proceedings as a whole were sufficiently regulated to enable the
election to take place to a satisfactory conclusion."
(emphasis added)
In any event, as the appellants
elected to proceed by way of motion proceedings in the court a
quo, any disputes of
fact between the parties had to be resolved in favour of the
respondents. See Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A). In this regard, it is pertinent to note that the
allegation that the election was chaotic was denied by the
respondents.
Accordingly, I would dismiss the appeal with costs.
Hussein Ranchod & Co, appellant's legal practitioners
Counsel to Parliament, first respondent's legal practitioner
Atherstone & Cook, second respondent's legal practitioner
