CHITAKUNYE
JA:
This
is an appeal against the whole judgment of the High Court handed down
on 1 June 2020 granting an interdict in favour of the first and
second respondents.
BACKGROUND
On
3 April 2020 the second appellant, in his capacity as Secretary
General of the first appellant, sent identical letters to the third
and fourth respondents recalling the first and second respondents
from the Parliament of Zimbabwe.
The
reason for the recalls was that they had ceased to be members of the
first appellant, Movement for Democratic Change-Tsvangirai (MDC-T).
On
5 May 2020, the third and fourth respondents informed their
respective houses of the receipt of the second appellant's letter
and vacancies created thereby.
The
Zimbabwe Electoral Commission (ZEC) was duly informed of the same so
that the electoral process could begin in terms of section 39(3) of
the Electoral Act [Chapter
2:13]
(herein after referred to as the Act).
The
first and second respondents were aggrieved by the recalls. They
approached the High Court with an urgent chamber application in a bid
to stop the appellants from replacing their seats in Parliament.
The
provisional order they sought was couched as follows:
“TERMS
OF FINAL ORDER SOUGHT
It
is ordered that:
1.
It is hereby declared that first, second and third respondents or
anyone acting through them or on their behalf have no power or
authority to replace second and third applicants
(sic)
who are members of the MDC–Alliance as members of the Senate and
National Assembly respectively by members of the MDC-T, or any of
their appointees and that such replacement of applicants is unlawful.
2.
Pending a resolution of the applications in Case Nos. HC2308/20,
HC2351/20 and HC2352/20 the replacements of applicants as Members of
Parliament by the respondents be and is hereby stayed.
3.
Respondents to bear the costs, jointly and severally, the one paying
the other to be absolved.
INTERIM
RELIEF SOUGHT
Pending
confirmation or discharge of the provisional order:
It
is ordered that:
1.
First, second and third respondents or anyone acting through them or
on their behalf be and are hereby interdicted, barred and stopped
from replacing applicants as members of the Senate and National
Assembly respectively by members of MDC-T or any of their appointees.
2.
Sixth respondent be temporarily interdicted from Gazetting the
existence of vacancies in applicants Constituencies for purposes of
taking steps to have them filled by nominees of first, second and
third respondents.”
PROCEEDINGS
IN THE COURT A
QUO
In
their founding affidavit the first and second respondents alleged
that they did not belong to (MDC-T) but to Movement for Democratic
Change Alliance (MDC-A) led by Nelson Chamisa a party completely
different from MDC-T. According to them, only MDC-A could recall them
from Parliament. They further alleged that they were nominated to be
voted into Parliament under MDC-A.
In
opposing the application, the second appellant contended that the
first appellant was entitled to replace the first and second
respondents as they were voted into office under the MDC-T party.
Further,
he averred that the relief sought by the first and second respondents
had an effect of interfering with the first appellant's right to
replace its own members of Parliament.
He
further stated that MDC-A is a pre-election pact of seven political
parties that were constituted in terms of a Composite Political
Agreement. The nominated candidates did not individually belong to
the MDC-A, but to their respective political parties which formed the
Alliance.
Further,
he averred that the matter was not urgent.
The
third appellant raised the following preliminary points that:
(i)
The certificate of urgency was defective in that it did not state the
date on which the need to act arose;
(ii)
The Zimbabwe Electoral Commission ought to have been cited as a party
and not citing the Chairperson;
(iii)
The matter was not urgent as the founding affidavit did not have a
cause of action;
(iv)
There was material non-disclosure of the judgment under SC56/20 which
nullified the appointment of Nelson Chamisa as president;
(v)
The interim and final relief sought was the same;
(v)
The court could not grant interim relief as the vacancies should be
filled within 90 days.
On
the merits, the third appellant associated herself with the arguments
raised by the second appellant in as much as the argument that MDC-A
is not a political party on its own.
She
further averred that the first and second respondents have an
alternative remedy which was to have the main matter resolved
expeditiously.
The
third and fourth respondents also filed their opposition.
In
their opposition, they averred that the matter was not urgent as the
alleged urgency was self-created.
They
further contended that the High Court did not have jurisdiction to
entertain the matter as the matter was a constitutional one.
They
submitted that the first and second respondents case was based on the
allegation that Parliament failed to fulfil its constitutional
obligations by violating section 129(1)(k) of the Constitution. This
allegation therefore placed the matter within the exclusive
jurisdiction of the Constitutional Court in terms of section
167(2)(d) of the Constitution.
The
court a
quo
dismissed all the points in
limine.
It
held that the certificate of urgency was not defective as it
contained crucial information relating to the fears of the first and
second respondents.
It
further held that the matter was urgent.
On
the question of non-citation of ZEC the court a
quo
held that the citation of the Chairperson of ZEC instead of ZEC was
proper. It reasoned that the citation of ZEC in legal proceedings is
governed by section 14 of the Electoral Act which provides that the
State Liabilities Act [Chapter
8:14]
applies whenever ZEC is to be cited in legal proceedings.
The
State Liabilities Act provides that when suing a Ministry, the
Minister is to be cited.
The
court held that equating ZEC to a Ministry, the citing of the
Chairperson of ZEC is proper. In this regard the court a
quo
also relied on the case of Shumba
& Anor v ZEC & Anor
2008 (2) ZLR 65 (S) (herein after referred to as the Shumba
case).
On
the issue of material non-disclosure, the court a
quo
held that judgments of the courts are in the public domain.
It
further held that the Supreme Court judgment declared what the
position in the MDC was and this did not pertain to the expulsion of
the first and second respondents from Parliament.
It
also found that the substance of the interim relief sought and the
final order sought was not the same.
On
the merits, the court a
quo
found that the first and second respondents had established a prima
facie
right
which must be protected. It thus granted the order on the premise
that the first and second respondents had established a prima
facie
case for the grant of the provisional order.
The
order granted reads as follows:
“Pending
the determination, or disposal by this Court, of the proceedings
under the reference case nos. HC2351/20 and HC2352/20, the first,
second and third respondents, or anyone acting through them, or on
their behalf, shall refrain and desist from, and they are hereby
interdicted, barred and restrained from submitting any nomination
papers in terms of section 39(4)(b) of the Electoral Act [Chapter
2:13],
or submitting or supplying the names of any other person for the
purposes of filling up any perceived vacancies in the Parliament of
Zimbabwe in respect of the seats held by the first and second
applicants in the Senate and National Assembly respectively as at 3
April 2020.”
Dissatisfied
with the decision of the court a
quo,
the appellants noted this appeal. The appellants raised 10 grounds of
appeal.
SUBMISSIONS
BEFORE THIS COURT
In
motivating the appeal Professor
L
Madhuku,
for the appellants, on reflection, abandoned the first two grounds
relating to findings on urgency. He also seemed to have abandoned
grounds 4 and 10 as he did not address these grounds.
The
grounds that remained pertained to the findings that the joinder of
ZEC was not necessary, that the interim relief was not the same as
the final relief, that the court a
quo
had jurisdiction to grant the interdict as it did not interfere with
the process by ZEC, and that the respondents had established a case
for the interdict.
Before
counsel could make detailed submissions on the remaining grounds of
appeal the court drew the attention of counsel for the parties to the
order granted by the court a
quo
and whether such was in sync with the relief the first and second
respondents had approached the court for.
In
addressing this point counsel for the appellants submitted that
though the grounds of appeal had not succinctly captured this
anomaly, grounds 8 and 9, on the interim relief being the same as the
final relief, were in fact intended to address the fact that the
order granted was not proper as it was final in nature when the
respondents had only sought a provisional order.
He
further submitted that the court a
quo
erred in granting a final order upon a finding that only a prima
facie
case had been established.
It
was his view that this Court may exercise its powers in terms of
section 25 of the Supreme Court Act [Chapter
7:13].
As
regards the citation of the Chairperson of ZEC and not ZEC, Counsel
for the appellants submitted that the court a
quo
also erred in finding that the joinder of ZEC was not necessary and
the non-joinder was not fatal.
He
also submitted that the court a
quo
erred in law in not finding that it had no jurisdiction to interdict
a lawful process, namely that it could not interdict the filling of
vacancies that have arisen by operation of law.
Mr
C.
Kwaramba
for the first and second respondents conceded that the court a
quo
erred by granting a final order based on a finding that first and
second respondents had only established a prima
facie
case.
He
submitted that the only amendment he made to the interim relief
sought was the abandonment of para 2 which sought to temporarily
interdict ZEC from gazetting the existence of vacancies in their
respective constituencies. There was thus no other amendment to their
prayer warranting the order that was granted.
He
confirmed that what the court a
quo
granted was not what his clients had approached the court for.
Just
as with the appellants counsel, he submitted that he only saw that
the court had granted such an order upon reading the judgment.
In
the circumstances he was not averse to this Court exercising its
powers in terms of section 25 of the Act in resolving the
irregularity.
Regarding
the citation of the Chairperson of ZEC instead of ZEC, counsel
insisted that the citation or joinder of ZEC was not necessary and
failure to do so was not fatal as no order was made against it.
Mr
T.
Tundu
for the third and fourth respondents had no submissions to make save
to indicate that his clients would abide by the decision of the
court.
Counsel
for the fifth respondent, Mr
T.
M. Kanengoni,
indicated that whilst his client would abide by the court's
decision there was, however, an unsatisfactory position of the law
regarding whether ZEC should have been cited or not.
In
this regard he alluded to section 14 of the Electoral Act as amended
by Act 3 of 2012 and the Shumba
case
(supra).
He
juxtaposed these with section 4A of the Electoral Act as amended by
Act 3 of 2012 on the corporate status of ZEC and the Constitution of
Zimbabwe Amendment (No.20) Act of 2013 which provides corporate
status for independent commissions, of which ZEC is one.
ISSUES
FOR DETERMINATION
Upon
a careful consideration of the submissions made we are of the view
that this appeal maybe disposed of on the basis of the order granted.
The
issue of citation is only pertinent in as far as it is necessary to
bring to the fore the inconsistency alluded to.
The
issues for determination may thus be restricted to:
(i)
Whether or not the order granted by the court a
quo
was proper in the circumstances.
(ii)
Whether or not the court a
quo
erred in finding that the citation of the chairperson of ZEC was
proper and that non-joinder of ZEC as a party was not fatal to the
proceedings as it was not necessary in terms of section 14 of the
Electoral Act.
APPLICATION
OF THE LAW TO THE FACTS
1.
WHETHER OR NOT THE ORDER GRANTED BY THE COURT A
QUO
WAS PROPER IN THE CIRCUMSTANCES
The
appellants counsel submitted that the order granted by the court a
quo
was not in sync with the relief that the first and second respondents
had approached the court for.
The
order was not a provisional order at all and should not have been
granted.
The
appellants counsel submitted that the first and second respondents,
in the urgent chamber application, had only established a prima
facie
case.
Counsel
for the first and second respondents conceded that whilst his clients
approached the court a
quo
seeking a provisional order the court a
quo
granted a final order. He in effect conceded that the respondents had
set out to establish a prima
facie
case for the grant of the interim relief.
That
the order granted is not the one the first and second respondents
sought is thus common cause.
In
our view in dealing with this case it is necessary to restate the law
relating to the grant of interdicts.
It
is a settled principle that for a party to be entitled to an
interdict, he or she has to satisfy the court that their particular
case favours such with regards to the requirements for the granting
of the interdict.
An
interdict is a summary court order, usually issued upon application,
by which a person is ordered either to do something, stop doing
something or refrain from doing something in order to stop or prevent
an infringement of a certain right.
The
requirements for an interim interdict were set out in Setlogelo
v Setlogelo
1914 AD 221 at 227 as:
“(i)
A prima
facie
right, even if it be open to some doubt;
(ii)
A well-grounded apprehension of irreparable harm if the relief is not
granted;
(iii)
That the balance of convenience favours the granting of an interim
interdict;
(iv)
That there is no other satisfactory remedy.”
If
the above conditions are met then the court may grant the provisional
order sought and provide for a return date for the parties to then
make arguments on whether or not the final order sought can be
granted.
On
the return day a party ought to establish a clear right as opposed to
a prima
facie
right.
The
requirements for a final interdict on the other hand are:
(i)
A clear right;
(ii)
Irreparable harm actually committed or reasonably apprehended; and
(iii)
The absence of an alternative remedy.
In
Herbstein
and van Winsen The Civil Practice of the High Courts and the Supreme
Court of Appeal of South Africa
5th Ed 2009 at page 1459-60 the authors whilst noting the difficulty
in defining the term 'clear right' acknowledged that:
“What
is meant by the phrase is a right clearly established, that the word
'clear' relates to the degree of proof required to establish the
right and should strictly not be used to qualify 'right' at
all.... a clear right must be established on a balance of
probabilities.”
From
the authorities, it is clear that where a final interdict is sought,
the right must be established clearly as opposed to it being prima
facie
established.
Thus
the word 'clear' in the context of rights in an interdict does
not qualify the right but rather expresses the scope to which the
right has been established by evidence on a balance of probabilities.
A
prima
facie
case on the other hand does not have to be established on a balance
of probabilities but can be granted even though open to doubt.
A
provisional order granted on the basis of a prima
facie
case affords the parties opportunity to fully argue their case on the
return date.
In
Blue
Rangers Estate (Pvt) Ltd v Muduwiri
SC29/09 this Court aptly stated that:
“For
an order to have the effects of an interim relief it must be granted
in aid of, and as ancillary to the main relief which may be available
to the applicant on final determination of his or her rights in the
proceeding.”
It
is thus important to ascertain whether the order being granted
affords the parties that opportunity to argue on the main relief that
has to be proved on a balance of probabilities in the proceedings
before that court.
As
the basis upon which the interim and the final order are granted are
different it follows that where the relief being sought as an interim
interdict has essentially the same effect as the final order, such is
generally improper.
The
grant of an interim relief which is essentially the same as the final
relief would lead to that order being set aside.
In
Registrar
General of Elections v Combined Harare Residents Association &
Anor
SC7/02 at page 10 CHIDYAUSIKU CJ succinctly stated the position as
follows:
“On
that basis also, I would set aside the interim relief granted by the
court a
quo.
In my view, the relief sought and granted in the draft interim order
is the same as that sought on the return day.
Where
the relief sought as interim relief is essentially the same as the
relief sought on the return day, the court's correct approach
should be to proceed by way of an urgent court application seeking
final relief
– see
Econet v Mujuru HH58-97.”
In
casu
the court a
quo
misdirected itself in granting a relief that had not been sought and
which required no return date when all that first and second
respondents had established was a prima
facie
case and not a clear right on a balance of probabilities.
It
is common cause that the first and second respondents approached the
court a
quo
seeking an interim relief as outlined above. The only amendment they
made was to abandon the paragraph interdicting ZEC. Thus their draft
order remained as before save for the removal of para 2 of the
interim relief.
Thus
whilst the first and second respondents sought interim relief pending
the confirmation or discharge of the provisional order on the return
day, the court a
quo
went on a frolic of its own and granted them a final order that they
had not asked for.
In
doing so the court simply plucked para 2 of the draft final order and
embellished it with verbosity after which it granted the order under
the pretext that it was a provisional order.
The
order granted did not require a return day and had no incentive for
the parties to seek to come to court on a return date as it was
granted pending the conclusion of other cases with their own
procedures that were yet to be finalised.
The
effect of the order is that the first and second respondents obtained
a final order, in this matter, on merely establishing a prima
facie
case. There was nothing to return to court for at all. Where the
order does not provide for a return date, it is a final order as
regards those proceedings and such must only be granted where a clear
right has been established on a balance of probabilities.
In
Nzara
& Others v Kashumba & Others
SC18/18 this Court reiterated the need for a court to adhere to
issues placed before it and not to go on a frolic of its own on
issues not motivated by the parties. At page 13-14 of the cyclostyled
judgment the court aptly stated that:
“The
function of a court is to determine the dispute placed before it by
the parties through their pleadings, evidence and submissions. The
pleadings include the prayers of the parties through which they seek
specified orders from the court.
This
position has become settled in our law.
Each
party places before the court a prayer he or she wants the court to
grant in its favour. The Rules of court require that such an order be
specified in the prayer and the draft order. These requirements of
procedural law seek to ensure that the court is merely determining
issues placed before it by the parties and not going on a frolic of
its own.
The
court must always be seen to be impartial and applying the law to
facts presented to it by the parties in determining the parties
issues.
It
is only when the issues or the facts are not clear that the court can
seek their clarification to enable it to correctly apply the law to
those facts in determining the issues placed before it by the
parties.
The
judgment of the court
a
quo
unfortunately
fell short of these guiding principles.
In
seeking to find middle ground, the court a
quo
granted orders which had not been sought by either party. It granted
the first and fourth respondents a further grace period and a
referral to arbitration. The first and fourth respondents had not
sought such orders.
Such
orders cannot be sustained at law.……
Where
a court is of the view that an order not sought by the parties may
meet the justice of the case, it must put that possible relief to the
parties and allow them an opportunity to address it on such an
order.”(Emphasis
added)
In
casu,
in granting an order whose genesis is in para 2 of the draft final
order, the court a
quo
indirectly accepted that the interim relief sought was essentially
the same as the final relief despite its earlier ruling that the two
were not the same.
The
court a
quo
found itself entangled in a web of uncertainty on what order to give.
In
the process it considered factors not placed before it and granted an
order which was final in effect without seeking the input of the
parties on the order it intended to grant as this order was
materially different from the order sought and upon which the parties
had argued.
Whilst
Rule 240 of the High Court Rules 1971 provided that in granting an
order the court may vary the order, this is not a licence to
substitute a provisional order sought by a litigant with a final
order.
Any
variation of the order sought must still leave the order granted as a
provisional order subject to confirmation or discharge on the return
date.
The
order was thus improper and cannot stand. It must be set aside.
In
view of this irregularity there is no proper appeal before us.
2.
WHETHER OR NOT THE COURT A
QUO
ERRED IN FINDING THAT THE CITATION OF THE CHAIRPERSON OF ZEC WAS
PROPER AND THAT NON-JOINDER OF ZEC AS A PARTY WAS NOT FATAL TO THE
PROCEEDINGS AS IT WAS NOT NECESSARY IN TERMS OF SECTION 14 OF THE
ELECTORAL ACT
The
finding on the first issue in effect disposes of this appeal.
However, we considered it pertinent, and for the sake of
completeness, to address the issue of non-citation of ZEC in view of
the apparent inconsistencies in the law.
This
matter brings to the fore the need for the appropriate authorities to
address the unwelcome inconsistency through legislative intervention.
It
is common cause that in arriving at its decision the court
a
quo
relied on section
14
of the Electoral Act as amended and the Shumba
case
(supra).
In
that case this court held, inter
alia,
that it was clear from section
18
of the Act that the Chairperson of ZEC is to be cited wherever ZEC is
being sued. The
then section
18 was similar to the current section 14 relied upon by the court a
quo
which provides that:
“(1)
Subject to subsection (1), the State Liabilities Act [Chapter
8:14]
applies, with any necessary changes, to legal proceedings against the
Commission as if the Chairperson of the Commission were a Minister.”
Whilst
the law as espoused in the Shumba case was the legal position
obtaining at the time, it is common cause that subsequent to that
case,
the Electoral Amendment Act 2012 (No.3 of 2012) was passed.
This
amendment introduced, inter
alia,
section 4A to the Act which granted corporate status to ZEC in these
terms:
“(1)
The Zimbabwe Electoral Commission shall be a body corporate capable
of suing and being sued and subject to the Constitution and this Act,
of performing all acts that bodies corporate may by law perform.”
An
unsatisfactory state was created by the amended section 14 above
which seemed to contradict the corporate status granted in section
4A. This position became untenable with the amendment of the
Constitution of Zimbabwe in 2013.
The
Constitution as amended in 2013 provides for independent commissions,
of which ZEC is one, under Chapter 12. Section 319 thereof states
that:
“The
commissions are bodies corporate with perpetual succession and are
capable of suing and being sued in their own names.”
It
is clear that section 14 of the Act is inconsistent with section 319
of the Constitution.
Such
inconsistency is resolved by reference to section 2(1) of the
Constitution which states that:
“This
Constitution is the supreme law of Zimbabwe and any law, practice,
custom or conduct inconsistent with it is invalid to the extent of
the inconsistency.”
The
position of the law prior to the aforesaid amendments where ZEC could
only be sued through its Chairperson is now invalid to the extent of
that inconsistency.
ZEC
has been clothed with legal
persona
and is thus capable of suing or being sued in its own name.
The
court a
quo
therefore erred in relying on the law prior to the aforesaid
Constitutional Amendment.
Though
the question as to whether the non-citation of ZEC was fatal in this
matter was contentious, it is our view that in the light of the fact
that the first and second respondents abandoned the paragraph which
sought to interdict ZEC in its operations and the order granted has
no paragraph interdicting ZEC in its Electoral processes, it is no
longer necessary to determine the point.
COSTS
In
light of the fact that the determining factor of this matter had not
been expressly raised by any of the parties we see no justification
to penalise any party with an order of costs. The justice of the case
demands that each party bears their own costs.
DISPOSITION
In
terms of section 25 of the Supreme Court Act [Chapter
7:13]
this Court may review proceedings where it finds that an irregularity
was committed.
The
court a
quo
erred and misdirected itself in granting an order that had not been
sought by the parties. The order must be set aside.
Accordingly,
it is ordered as follows:
1.
The matter be and is hereby struck of the roll.
2.
In the exercise of the court's review powers in terms of section 25
of the Supreme Court Act [Chapter
7:13]
the judgment of the court a
quo
in case number HC2527/20 be and is hereby set aside.
3.
Each party shall bear their own costs.
GUVAVA
JA: I
agree
MAKONI
JA: I
agree
Lovemore
Madhuku Lawyers,
legal
practitioners for the appellants
MbidzoMuchadehama
& Makoni,
1st
and 2nd
respondents legal practitioners
Chihambakwe
Mutizwa & Partners,
3rd
and 4th
respondents legal practitioners
Nyika
Kanengoni & Partners,
5th
respondent's legal practitioners
