At the management meeting that was held on 21 May 2008, three preliminary issues were referred to trial. They were framed as follows:
1. Whether the petition is out of time, and, if so, whether this is fatal to the petition.
2. Whether the failure to file security for costs timeously renders the petition void.
3. Whether the first respondent was properly joined as a party.
THE FACTS
The brief facts in this matter are as follows:
On 29 March 2008, the harmonized Presidential, Parliamentary and Council elections were held in Zimbabwe. Hillary Simbarashe, the petitioner, stood as an independent candidate for the House of Assembly seat in the Mutoko North constituency. The elections were run and conducted by the Zimbabwe Electoral Commission, the first respondent. Mabel Chinomona, the second respondent, of the Zimbabwe African National Union (Patriotic Front) ZANU (PF) was one of the candidates who battled it out with the petitioner. On 31 March 2008, she was declared the winner.
The petitioner was unhappy with the pre-election and post-election environment as well as the manner in which the election was conducted. Accordingly, he lodged the present petition with the Registrar on 16 April 2008.
The date of service was not disclosed, but, the second respondent filed her opposing papers on 15 May 2008. She, amongst other things, raised the first two preliminary issues referred for trial.
The first respondent opposed the petition on the basis of misjoinder, hence the third issue.
When I set down the matter for hearing, I directed the parties to furnish me, at the hearing, with information from the Zimbabwe Electoral Commission indicating the date on which the result in the last constituency for election to the House of Assembly was announced by the Constituency Election Officer for that constituency.
This was not done.
I, however, proceeded to hear the matter on the understanding that I would deliver this judgment after that information had been availed. It was only provided by counsel for the first respondent in the morning of 6 June 2008.
He produced a document which has three columns. The first column indicates the province in which the House of Assembly seat is found, the second indicates the constituency, and the last the date on which the V23 Form was signed by the Constituency Elections Officer. The signature is appended on the date on which the Constituency Elections Officer declares the winning candidate. The last V23 Form was signed on 4 April 2008 for the Kariba constituency.
The parties were therefore agreed that the declaration of the result in the last constituency was made on 4 April 2008....,.
3. Whether the first respondent was properly joined as a party
Counsel for the first respondent objected to the citation of the first respondent in the petition. He relied on the definition of respondent found in Part XXIII in section 166 of the Electoral Act [Chapter 2:13]. The section reads as follows:
“166 Interpretation in Part XXIII
In this Part —
'respondent' means the President, a Member of Parliament or Councillor whose election or qualification for holding the office is complained of in an election petition.
[Definition substituted by section 78 of Act 17 of 2007].”
He invoked the maxim expressio unius est exclusio alterius in aid of his objection.
According to FRANCIS BENNION, in his book Statutory Interpretation, Butterworths, 1988…, the expression means “to express one thing is to exclude another.”
In full, FRANCIS BENNION, in his book Statutory Interpretation, Butterworths 1988 states thus:
“The maxim expressio unius est exclusio alterius (to express one thing is to exclude another) is an aspect of the principle expressum facit cessare tacitum known in short as the expressio unius principle; it is applied where a statutory proposition might have covered a number of matters but in fact mentions only some of them. Unless these are mentioned merely as examples or ex abundanti cautela, or for some other sufficient reason, the rest are taken to be excluded from the proposition.
The expressio unius principle is also applied where a formula which itself may or may not include a certain class is accompanied by words of extension naming only some members of that class. The remaining members of that class are then taken to be excluded.
Again, the principle may apply where an item is mentioned in relation to one matter but not in relation to another matter equally eligible.”
Counsel for the first respondent submitted that the legislature deliberately defined respondent in the Electoral Act so as to exclude the first respondent in circumstances where it should automatically have been included by virtue of its overarching role in running and conducting elections. It did not desire that the first respondent be made a party in electoral petitions. He advanced six reasons upon which he based his contention that the exclusion was deliberate.
Counsel for the petitioner, on the other hand, submitted that the first respondent was properly cited because it is an interested party which bears the responsibility to give effect to the order of the Court. He based his submission on the common law principle of joinder and relied on Tsvangirai v Mugabe and The Electoral Supervisory Commission HH109-05.
Counsel for the petitioner referred to Merchant Shipping Provisions Lowe v Dorling 1906 (2) KB 772…,; Blackburn v Flavelle 1881 6 APP CAS 628; Dettman v Goldfain & Another 1975 (3) SA 385; and Terblanche v SA Eagle Insurance Company Ltd 1983 (2) SA 501 (N) and cautioned the Court against the application of the principle in a manner that would result in grave injustice.
In his oral submissions, counsel for the petitioner indicated that the grave miscarriage of justice that would occur would be the failure by first respondent to obey any court order arising from the petition if it was not cited, and, secondly, that the petition would be hamstrung and compromised by a failure to call the evidence from any of the officials of the first respondent who are implicated in electoral malpractice.
I agree with counsel for the first respondent that the six reasons he advanced demonstrate the full force of the expressio unius principle at play in the present matter.
With the full knowledge of the first respondent's mandate in election matters, the legislature;
(i) Firstly, in section 166 of the Electoral Act, did not include it as a respondent, obviously in a bid to guarantee its neutrality in the conduct of elections.
(ii) Secondly, the first respondent is excluded from the protective ambit of section 168(3).
(iii) Thirdly, in section 171(3)(b)(ii), it mandated the Electoral Court to certify its determination to, amongst others, the first respondent, which, in itself, would be an anomalous method of alerting a respondent who is before it of its decision. In fact, the other persons who are notified are not respondents but public officials.
(iv) Fourthly, in section 171(a) and (b), the first respondent may be made to pay costs or a portion thereof for the culpable conduct of its officials, an obvious fate that befalls any losing or maligned respondent.
(v) Fifthly, in section 158 as read with section 171(4)(b) any person alleged to have committed an electoral malpractice may be called to vindicate his or her name before such a finding is made against him or her.
These legislative provisions were put in place to emphasize the fact that the first respondent could not be a party to proceedings that relate to petitions in terms of Part XXIII of the Electoral Act.
In any event, “means” is the operative word in section 166 of the Electoral Act.
It carries a different import from such words as “includes”. It is peremptory in nature. Again, one resorts to the formulation in Movement for Democratic Change & Anor v Mudede NO & Others 2000 (2) ZLR 152 (SC).
The parties who can be cited as respondents are indicated.
The legislature was aware that the first respondent was in charge of elections. The aim and object of defining respondent in this limited fashion appears from the very nature of an election petition. It is a challenge against the actions of the winning candidate before, during and after an election. In other words, at the center of an election petition is the winning candidate. It is designed to impugn or vindicate the winner's acts of commission and omission against the benchmarks set out in section 3 of the Electoral Act.
Section 167 of the Electoral Act outlines the causes of action in an election petition. These are;
(i) The absence of qualification;
(ii) Disqualification;
(iii) Electoral malpractice;
(iv) Irregularity; or
(v) Any other cause whatsoever.
The first two grounds arise directly from the candidate. Electoral malpractice and irregularity may arise from the actions or omissions of the candidate, his chief election agent, his election agent or of any other person.
Part XXI, in sections 155, 156 and 157 of the Electoral Act deals with how an Electoral Court may determine petitions.
It makes the winner liable for his or her own actions; for the actions of his or her chief election agent; for the actions of his or her agent; or for the actions of any person done with his or her knowledge and consent or approval or the approval and consent of his agents.
Once an electoral malpractice is found to have been committed, with the knowledge and consent or approval of the winner or of his agents, and that malpractice materially affected the election, it renders that election void and triggers the holding of a new election.
The effect is that the first respondent is obliged to hold a new election. This is by operation of law. The first respondent does not necessarily require a citation in an election petition to carry out this statutory mandate.
In addition, section 158 of the Electoral Act [Chapter 2:13] gives the Electoral Court the power to call a person who is implicated in electoral malpractice to testify in a bid to vindicate his or her name. Officials of the respondent and those seconded from the Public Service are not exempt from such a summons.
What emerges from this Part of the Electoral Act is that an election is set aside for the electoral malpractice committed by the candidate whether personally or through his agents, or by any other person with his knowledge and consent or approval.
The first respondent is not a candidate in such an election.
All it has to do is to await the order of the court declaring an election valid or void. There is no reason for it to be joined in as a party. No prejudice will arise to either candidate or to the first respondent if it is not cited. There is therefore no logical reason for citing it.
My finding is in consonance with that of MFALILA J in Pio v Smith 1986 (3) SA 145…, which I quote in full for its clarity. He stated that:
“Issue 2: Whether the petitioner must be non-suited for failing to join the presiding officer, the returning officer, and the Registrar-General as parties in these proceedings
I will not dwell at length on this issue because I agree with counsel for the petitioner that the point raised therein has no merit.
The petitioner cannot be non-suited for failing to do that which is not provided for or required by the statute. The question of the State officials or the State being condemned unheard does not arise, because, first, if one of the allegations is irregularities committed by State officials, these can always be called as witnesses; secondly, when it comes to the question of costs, the statute provides machinery for the State to be heard. There was therefore no duty on the petitioner to join any of the election officials; indeed had he done so and cited them a successful application to have them struck out could have been made, for even under section 164 of the Act, the Chief Justice has made no rules which could have provided for this.
For theses reasons, I answer the second issue in the negative and say that the petitioner cannot be non-suited for failing to join the presiding officer, the returning officer, and the Registrar-General as parties in these proceedings.”
While the nature of the application was different to the present one on the facts, MFALILA J underscored the point, that, an institution in the shoes of the first respondent could not be cited in an election petition.
I was referred to Tsvangirai v Mugabe and The Electoral Supervisory Commission HH109-05 as authority for the proposition that the first respondent was properly cited.
HLATSHWAYO J…, based his decision for approving the citation of the predecessor to the first respondent in that case on the common law rule of the presence of a direct and substantial interest and Rules 85, 86 and 87 of the High Court Rules.
The only difficulty I have with reference to the common law is that an election petition is unknown to common law, per MALABA JA in Hove v Gumbo SC143-04…,.
Further, it does not appear to me that the Rules of the High Court would supercede the definition of respondent set out in section 166 of the Electoral Act.
In any event, as was submitted by counsel for the first respondent, as his sixth reason, Tsvangirai v Mugabe and The Electoral Supervisory Commission HH109-05 is distinguishable from the present matter in that it concerned a Presidential election petition while the present involves a Parliamentary election petition.
The Electoral Act [Chapter 1:01], under consideration in that case, did not, in section 102, define respondent for Presidential petitions. Under that old Act, petitions were referred to the High Court, and not, as at present, to the Electoral Court, a special court created under the Electoral Act No. 25/2004.
Citing the respondent, or, more correctly, its Chairman is not permitted by the Electoral Act in election petitions.
I fail to see how citing the first respondent can be said to be in substantial compliance with the Electoral Act when the Act excludes it. The citation of the first respondent, in name, is contrary to the provisions of section 18 of the Zimbabwe Electoral Commission Act which incorporates the modus operandi set out in section 3 of the State Liabilities Act [Chapter 8:14] for citing Government ministries and departments.
It directs that the Chairman of the first respondent be cited.
The aim of the section is to bring the suit to the attention of the first respondent through its head so that it can respond appropriately.
It is, in reality, the direct opposite of what transpired in Savanhu v Post Master General 1992 (2) ZLR 455 and Sibanda v Post Master General HH263-90 where the two employees cited the Post Master General contrary to the stipulations of the Post and Telecommunications Act which established the Post and Telecommunications Corporation as the corporate body that was capable of suing and being sued.
Lacking common law powers, I fail to see how the error can be corrected other than by withdrawing the matter and commencing proceedings afresh.
Thus, even if the first respondent were properly joined in the petition, I would still dismiss it on the basis that the wrong party was cited.
I, however, hold that the Zimbabwe Electoral Commission was improperly joined as a party in this petition....,.
It is declared that the Zimbabwe Electoral Commission was wrongly cited and is hereby removed as a party to this petition. The petitioner shall bear its costs.
