MWAYERA
JA:
1.
The four appeals are against parts of the High Court's Judgment
HB157/23 (“the court
a
quo”)
which was handed down on 27 July 2023. The appeals are against the
decision
of
the court a
quo
setting
aside the thirteenth respondent's decision to accept the
appellants
nomination papers as candidates for the impending harmonised general
elections.
The four appeals SCB59/23, SCB60/23, SCB61/23 and SCB62/23 were
consolidated
and
heard by
this
Court on 2 August 2023.
On
3
August
2023,
we
issued
the
following
order:
1.
The
appeals
be
and
are
hereby
allowed
with
costs.
2.
The judgment
of
the
court
a
quo
be
and
is
hereby
set
aside
and
substituted
as
follows:
'The
applications
be
and
are
hereby
dismissed
with
costs.'
3.
The reasons for the court's decision will follow in due course.”
We
undertook
to furnish
reasons
for our
disposition.
These
are
they.
FACTUAL
BACKGROUND
2.
On 21 June 2023, the fourteenth respondent constituted a nomination
court to receive
submissions
for
the
nominations
of
candidates
for
the
election
of
constituency
members
to
the
National
Assembly
for
the
Bulawayo
Metropolitan
Province.
This
was
in
accordance
with
Proclamation
4
of
2023,
gazetted
under
S.I.
85
of
2023
by
the
President.
The determinant facts of this appeal emanate from the events that
transpired
on
21
June
2023
at the
nomination
court.
3.
The
appellants
appeared
before
the
nomination
court
for
their
nominations
as
candidates
for
elections
scheduled
for
23
August
2023.
The
nomination
officer
accepted
their
nominations and registered
them
as
candidates.
4.
The respondents except for the thirteenth to fifteenth respondents
applied to the court
a
quo
for
the setting aside of the appellants (respondents a
quo)
nominations.
They
alleged
that their nomination papers were in disarray.
They
further alleged that when
the
appellants
lodged
their
papers
before
4pm
they
were
advised
to
correct
them.
The
respondents
further alleged that the appellants thereafter filed their corrected
papers
out
of time after 4pm in violation of the Electoral Act [Chapter
2:13]
(“the Act”).
They
further
alleged
that
by
4pm
the
appellants
were
outside
the
courtroom
frantically
trying
to rectify their nomination papers. They further asserted that such
nominations
were
null
and void.
5.
In response, some of the appellants asserted that their papers were
in order and that they
lodged
them with the nomination officer who accepted them before 4pm. The
other
appellants
stated that their papers had errors which were pointed out by the
nomination
court
and were corrected and filed with the nomination officer before 4pm.
Some of the
appellants
maintained that they were in court with their corrected papers which
were
accepted
before
4pm.
6.
In
his
opposing
affidavit
the
13th
respondent,
Innocent
Ncube,
in
his
official
capacity
as
the
Provincial Elections Officer and for and on behalf of the Zimbabwe
Electoral
Commission
(“ZEC”)
and
the
Chairperson
of
ZEC,
indicated
that
the
nomination
papers
were
procedurally and timeously lodged between 10am and 4pm.
He
also pointed out
that
the designated courtroom could only accommodate 12 to 15 people at
any time.
During
the proceedings at 3:55pm, he announced that all prospective
candidates who
were
queuing
outside
because
of
his
administrative
decision
(to
allow
12
to
15
people
at
any
time)
should
hand
over
their
nomination
papers
to
the
police
officer
as
the
court
was
due
to close at 4pm. The police officer collected all the nomination
papers and handed
them
over to the thirteenth respondent before 4pm. Thereafter, the
nomination officer
would
call
in those
whose
papers
he
would
be
processing.
7.
In respect of the form, Annexure “B” relied upon by the
applicants a
quo,
he pointed
out
that
it
was
a
register
in
which
the
secretary
captured
the
times
when
the
nomination
forms
were
inputted
into
ZEC's
records.
In
other
words,
he
stated
that
the
form
was
for
the
purpose of data capture into ZEC's system and not a record
reflective of the time
when
the
nomination papers were
lodged
with the
nomination
officer.
8.
On the basis of the above facts the court a
quo
found
for the applicants a
quo
(now
respondents).
It
held
that
the
appellants
nominations
had
been
lodged
after
the
stipulated
cut-off
time
of
4pm.
It,
therefore,
declared
the
nominations
of
the
appellants
as
null
and
void.
PROCEEDINGS
BEFORE
THE
COURT
A
QUO
9.
The parties made submissions on both the preliminary points and the
merits before the
court
a quo, after which the court a quo rendered a composite judgment for
all the
applications
which
had
been consolidated by
consent.
10.
Mr
Kanengoni
for
the
thirteenth,
fourteenth
and
fifteenth
respondents
raised
a
preliminary
point that the court a
quo
had
no jurisdiction. He submitted that all the
applications
ought
to have
been
filed
in
the
Electoral
Court.
11.
Mr
Mpofu
for
first
to
the
sixth
appellants
associated
himself
with
submissions
made
by
Mr
Kanengoni
on
jurisdiction. He further submitted that there was no application
before
the court because the first to twelfth respondents had irregularly
truncated the
dies
induciae.
Counsel
also
argued
that
the
respondents
had
no
locus
standi
and
that
the
applications
were based on hearsay evidence. He submitted that the first to
twelfth
respondents
had not attended the nomination court but sought to rely on social
media
reports
and a document, Annexure “B” which
was
differently interpreted by the
Electoral
Commission.
12.
He also argued in
limine
that
there were material disputes of fact that could not be
resolved
on paper.
He
further submitted that there was a material non-joinder of
Citizens
Coalition
for
Change
party
(CCC)
which
had
sponsored
some
of
the
appellants.
In
support
of
this
assertion,
he
contended
that
the
party
would
be
prejudiced
in
obtaining
proportional
representation
seats.
Finally,
on
preliminary
points,
counsel
submitted
that
the
applications
were
an
abuse
of
the
court
process.
13.
Mr Ncube
for
the seventh to twelfth appellants in SCB59/23 associated himself with
the
preliminary
points
raised
by
Mr
Kanengoni
and
Mr
Mpofu.
He
emphasised
that
the
applications
were based on hearsay evidence and that only the Electoral Court had
exclusive
jurisdiction
to
hear
the applications.
14.
Mr Mahlangu
for
the first to forth appellants in SCB61/23 associated himself with
submissions
made
by
counsel
who addressed the
court
before
him.
15.
Mr
Bamu
for
the
appellants
in
SCB60/23
also
associated
himself
with
submissions
that
had
been made
by
counsel
before him.
16.
Per
contra,
Mr
Magwaliba
for
the
first
to
twelfth
respondents
opposed
all
the
preliminary
points raised, characterising them as meritless. He relied on the
case of
Kambarami
v 1893 Mthwakazi Restoration Movement Trust and Others
SC66-21
for
the
proposition
that
the
court
had
jurisdiction.
Regarding
the
validity
of
the
applications,
he
submitted
that
the
parties
had
attended
a
case
management
meeting
and
agreed
on
truncating
the
dies
induciae.
17.
On locus
standi
he
submitted that the respondents had a legitimate interest in the
nomination
proceedings
because
they
had
a
direct
and
substantial
interest
in
the
outcome
of
the
process.
In
relation
to
the
applications
being
based
on
hearsay
evidence,
he
contended that the respondents relied on public information and that
there was
Annexure
“B” which supported their position. He further submitted that
there were no
material
disputes
of
fact.
A
robust
approach
would
resolve
the
matter.
18.
Mr Magwaliba
further
submitted that the applications a
quo
were
not an abuse of the
court
process,
given
the
substantial
interests
which
the
respondents
had
in
the
nomination
of candidates for the constituencies, where they were registered
voters.
Finally,
in
relation
to
the
non-joinder
of
CCC
he
argued
that
the
party
had
no
direct
and
substantial
interest
in the acceptance
of
the
nomination
papers.
19.
The court a
quo
deferred
the determination of the preliminary points to the end of the
hearing
and
sought to be
addressed
on the
merits.
20.
Mr Magwaliba
submitted
in support of the applications that the nominations ought to
be
nullified since they were accepted after 4pm in defiance of section
46 of the Act.
He
further
submitted
that
the
nomination
officer
unlawfully
opened
the
court
to
specifically
allow the affected candidates to present their papers out of time.
He
argued
that the police officer who collected the papers was not a nomination
officer.
Annexure
“B”
confirmed
that
the nomination
papers
were
filed
out of time.
21.
Mr Kanengoni
for
the thirteenth to fifteenth respondents submitted that Annexure “B”
was
not a document reflective of the times when the nomination papers
were lodged
with
the nominations officer.
Further,
he submitted that the nomination papers were
submitted
and received before the cut-off time of 4pm on the day in question.
He
emphasised
that
the
officers
of
ZEC
who
placed
evidence
before
the
court
through
their
supporting
affidavits spelt out that no nomination papers were submitted after
4pm.
Finally,
he
submitted
that
there
was
no
breach
of section 46 of
the
Electoral
Act.
22.
Mr Mpofu
submitted
that the respondents were relying on hearsay evidence that the
social
media was awash with information that the appellants nomination
papers were
in
disarray
and
filed
out
of
time.
He
pointed
out
that
the
appellants
filed
their
papers
in
compliance
with section 46 of the Electoral Act before 1600 hours. Further, in
opposing the
allegations
he relied on ZEC and the nomination officer's evidence that
Annexure “B”
was
not
a
document
indicative
of
the
lodgement
of
nomination
papers
but
that
the
time
reflected
on
it related to the
time
of
data
capture.
23.
Mr Ncube
was
also critical of Annexure “B” and he agreed with submissions by
Mr
Mpofu
on
it. He submitted that the respondents were relying on hearsay
evidence and
that
they
failed
to
discharge
the
onus
and
to
prove
the
factual
basis
of
their
allegations.
Their
evidence
was
speculative as they
relied
on social media
assertions.
24.
Mr Bamu
associated
himself with submissions made by counsel who addressed the
court
before him. He emphasised that his clients submitted their nomination
papers on
time.
He further added that the collection of nomination papers by the
police officer at
the
instruction of the nomination officer did not amount to contravening
section 46 of the
Electoral
Act.
25.
Mr
Mahlangu
and
Mr
Robi
associated
themselves
with
counsel
for
the
other
appellants
submissions.
DETERMINATION
OF
THE
COURT
A
QUO
26.
The
court
a
quo
gave
a
composite
judgment.
It
dismissed
all
the
preliminary
points
and
made
a
finding
that
Annexure
“B”
was
a
document
prepared
by
a
ZEC
official
and
that
it
spoke for itself that the nomination papers were submitted after 4pm.
It found that
the
submission of papers from the appellants through the police officer
was unlawful.
It
thus
declared
the
nominations
as
null
and
void
and issued
the
following
order:
“IT
IS
DECLARED
THAT:
1.
That the decision of the 1st Respondent, sitting as a nomination
court at
Bulawayo
on
21
and/or
22
June
2023
to
accept
the
following
Respondents
nomination
papers
and
candidature
in
the
elections
scheduled
to
be
conducted
on
23
August
2023
was
in
contravention
of
Section
46(7)
&
(8)
of
the
Electoral
Act [Chapter
2:13].
2.
That the decision of the 1st Respondent sitting as a Nomination Court
at
Bulawayo
on
21
and/or
22
June
2023
to
accept
the
following
Respondents
nomination
papers
and
candidature
in
the
elections
scheduled
to
be
conducted
on
23
August
2023
is
declared
null
and
void
and
is
hereby
set
aside.
ACCORDINGLY,
IT
IS
ORDERED
THAT:
3.
1st Respondent is prohibited from including the names of the
following
Respondents
in the preparation of ballot papers to be used in the general
elections
scheduled
to be
conducted
on
23
August
2023.
4.
Respondents shall jointly and severally, pay the costs of suit.
OBERT
MANDUNA
ERECK GONO
DOUGLAS
NCUBE
GIFT
SIZIVA
SANPOULUS MAPLANKA
PRINCE
DUBE
NQOBIZITHA
NDLOVU
DESMOND
MAKAZA
BAJILA
COLLINS DESCENT
SICHELESILE
MAHLANGU
DESIRE
MOYO
ALELAIDE MHLANGA
NOMPILO
BHEBHE
SURRENDER
KAPOIKILU
RAPHAEL
PASHOR
SIBANDA
NTANDOYENKOSI MINENHLE GUMEDE
FRANK
MHLANGA
5.
The
application
against
Zvikwete
Innocent
Mbano
be
and
is
hereby
dismissed
with
costs.
6.
The
application
against
ADMORE
GOMBA,
NIGEL
NDLOVU,
SONENI
MOYO, DINGILIZWE TSHUMA, STRIKE MKANDLA &
ALBERT
MHLANGA
be
and
is
hereby
withdrawn.”
GROUNDS
OF
APPEAL
27.
Aggrieved
by
the
judgment
of
the
court
a
quo
in
all
the
four
applications
the
appellants
in
SCB59, 60, 61 and 62 of 2023 launched appeals with this court on more
or less
similar
grounds. All the appellants grounds of appeal can be summarised as
captured
in
SCB59/23
except
for
ground
5
which
is
specific
to
candidates
for
Citizens
Coalition
for
Change
party
(CCC).
Ground 5
speaks
to
non-joinder
of
CCC.
It
reads
as
follows:
“(5)
Having found that the Citizens Coalition for Change political party
was
adversely
affected
by
the
proceedings
before
it,
the
court
a
quo
erred
in
relating
to
and affording an application which adversely affected its interests
without
affording
the
concerned
political
party
the
opportunity
of
being
heard.”
28.
The grounds of appeal which are similar for purposes of these appeals
as discerned
from
the
record
are
as
follows:
(1)
Having heard the argument on points in
limine
including
critical point (sic)
on
the jurisdiction, the court a
quo
grossly
misdirected itself and erred in
proceeding
to
hear
the
argument
on
the
merits
of
the
matter
without
making
a
determination
on the points taken before
it
in
limine
litis.
(2)
The court a
quo
erred
in assuming jurisdiction over a matter which is by
constitutional
and statutory command subject to the exclusive jurisdiction
of
the Electoral Court and so erred in entertaining a review disguised
as a
declaratur.
(3)
The court a
quo
erred
and misdirected itself having invented their own dies
induciae
in
violation
of
the
rules
and
of
superior
court
authority
and
so
erred
in
condoning a fatal defect and where no application for condonation had
been
made.
(4)
The court a
quo
erred
in granting relief to parties who had no locus
standi
in
judicio,
who could not swear positively to the “facts” they relied upon
and
who
sustained
their
cause
on
the
basis
of
objectively
established
falsehoods.
(5)…………
(6)
The
court
a
quo
having
found
that
there
was
a
dispute
of
fact
material
to
the
resolution
of issues before it, erred in purporting to resolve such dispute in
the
absence of any work tools for such resolution and so erred in making
credibility
findings
on
motion
that
were
unsupported
by
the
evidence
placed
before
it.
(7)
The
court
a
quo
erred
in
not
finding
that
matters
factual
stood
to
be
resolved
on
the basis of the position given by the Electoral Commission as well
as
appellants
who were physically in attendance at the nomination court and
which
positions could
not
be
gainsaid
by first
to
twelfth
respondents
hearsay
evidence.
(8)
The court a
quo
erred
in not concluding that appellants had timeously
presented
their papers, had an absolute right to have them processed and
accordingly,
had been properly declared duly nominated by the nomination
court.
SUBMISSIONS
BEFORE
THIS
COURT
(a)
Preliminary
Issues
29.
Mr
Magwaliba
for
the
first
to
the
twelfth
respondents
raised
three
preliminary
issues.
The
first
point
related
to
the
status
of
the
fifth
appellant
in
SCB59/23.
He
noted
that
the
order
of the court a
quo
did
not list her as one of the respondents, which omission was
accepted
by
the
fifth
appellant.
Counsel
accordingly sought
an
order
deeming
the
judgment
of the court a
quo
as
being applicable to the fifth appellant as such a course
would
prevent
the
appeal
by
the
fifth
appellant from being
struck
off
the
roll.
30.
The second point raised was that the appeals were fatally defective
because appellants
appealed
against
the
whole
judgment
instead
of
the
parts
that
affected
them.
He
further
pointed
out
that
some
of
the
appeals
did
not
cite
some
of
his
clients
who
were
applicants
before
the court a
quo.
This was particularly argued to be the case with SCB60/23. In
his
view,
such
an
omission
denied
parties
who
were
before
the
High
Court
the
right
of
audience.
It
was
contended
that
the
appeals
could
not
be
valid
appeals
if
they
left
out
interested
parties.
31.
Per
contra,
Mr Mpofu
for
the first to sixth appellants opposed the procedure suggested
in
respect of the omission of the name of the fifth appellant in the
court a
quo's
judgment.
He argued that it was incompetent.
After
an argument by both counsels, it
was
resolved
that
the
issue
will
be
determined
by
the
court
in
terms
of
section
22(1)(b)(ix)
of
the
Supreme
Court Act [Chapter
7:13].
32.
Further in respect of the points in
limine,
Mr Mpofu
argued
that the points that were
taken
by counsel for the respondents were not procedurally raised because
no notice
had
been given in compliance with Rule 51 of the Supreme Court Rules,
2018. He added
that
a
declaratory
order
could
not
be
separated
into
parts
and
hence
it
was
necessary
for
the
appellants to appeal against the whole judgment of the court
a
quo.
Counsel
submitted
that an appellant challenging the jurisdiction of a court could not
challenge
it
in
part.
33.
Mr Ncube,
Mr Mahlangu
and
Mr Bamu
on
the points
in limine
raised
essentially
associated
themselves with the arguments that had been advanced by Mr
Mpofu.
Eventually,
all
parties
agreed
that
in
light
of
the
decision
of
the
Constitutional
Court
in
the
case of Chamisa
v Mnangagwa
CCZ21-19
it was not necessary to dwell on the
preliminary
issues. Moreso considering the role of the court in matters of public
importance
as
set
out
in
the
cited
case.
Mr
Magwaliba
abandoned
the
preliminary
points
and
accepted
that
the
appeal
be
determined
on the
merits.
(1)
Submissions
on
the
Merits
34.
Mr Mpofu
for
the first to sixth appellants, in SCB59/23, submitted that the High
Court
had
no jurisdiction to hear the matter. He submitted that section 161 of
the Electoral Act as
read
with
section
5
of
the
Judicial
Laws
Amendment
(Ease
of
Settling
Commercial
and
Other
Disputes)
Act,
2017
constituted
the
Electoral
Court
as
a
specialised
division
of
the
High
Court
and therefore now has jurisdiction to hear an application for a
declaratur.
He
further
argued that, the relief sought was worded in the form of a review
relief. Further,
he
submitted
that,
the
authority
of
Kambarami
v
1893
Mthwakazi
Restoration
Movement
Trust
and Others
SC66–21
relied upon by the court a
quo
was
rendered per
incuriam
and,
thus,
it was inapplicable.
35.
It
was
also
Mr
Mpofu's
submission
that
there
were
no
valid
applications
before
the
High
Court.
He argued that the court a
quo
disregarded
two binding authorities of this Court
to
the
effect
that
an
applicant
cannot
specify
a
dies
induciae
other
than
the
one
that
is
set
out
in the rules.
He
proceeded to argue that the court a
quo
compounded
its error of
adjudicating
over
an
invalid
application
by
proceeding
to
grant
condonation
where
such
had
not
been applied
for.
36.
On the merits of the applications that were before the court a
quo,
he further submitted
that
section 46(7) of the Electoral Act, which the court a
quo
relied
on, was not properly
engaged.
He
also
submitted
that
the
decision
of
the
court
a
quo
was
wrong
and
contrary
to
the evidence adduced. To illustrate his point, Mr Mpofu
mentioned
the case of
Zvikwete
Innocent Mbano
who
was also a respondent in the same matter but treated
differently
by the court
a quo
despite
his circumstances being identical to those of the
appellants.
37.
He submitted that his clients had filed their papers before 4pm. In
any event, the
thirteenth
respondent
(nominations
officer)
had
before
4pm
requested
for
all
prospective
candidates
queuing
outside
awaiting
their
turn
to
file
nomination
papers,
to
hand
in
their
papers
through
the
police
officer
attached
to
the
nominations
court.
By
so
doing,
the thirteenth respondent enabled everyone in the queue outside the
small
courtroom
to submit their papers within the prescribed time.
He
further submitted that
the
thirteenth respondent acted in terms of section 24(1) of the
Interpretation Act [Chapter
1:01].
He
also submitted that the appellants evidence established that they had
lodged
their
papers before 4pm. He further submitted that there was no evidence
that his
clients
papers
were
collected
through
the
police
officer.
He
thus
argued
that
these
facts
were
at
variance
with
the
conclusion
of
the
court
a
quo.
38.
In respect of Annexure “B” counsel contended that the times set
out in that document
were
the times of inputting data as opposed to the time for filing
nomination papers
with
the
thirteenth
respondent.
Finally,
counsel
argued
that
the
applications
were
based
on
hearsay
evidence
from
social
media
as
deposed
to
by
the
respondents.
This
disregarded
the
fact
that
the
appellants
papers
were
presented
in
open
court
as
required
by
section
46
of
the
Electoral
Act.
He,
therefore,
prayed
that
the
appeal
be
allowed
with
costs.
39.
Mr Ncube
for
the seventh to twelfth respondents, submitted that there were no
valid
applications
filed
by
the
respondents
before
the
court
a
quo.
He
associated
himself
with
submissions
made
by
Mr
Mpofu.
He
further
submitted
that
the
respondents
cases
were
based
on hearsay evidence, which issue was not resolved by the court a
quo.
Counsel
submitted
that the conclusion reached by the court a
quo
was
indefensible. He prayed
that
the
appeal be
allowed
with costs.
40.
Mr Mahlangu
for
the first to fourth appellants in SCB61/23, associated himself with
submissions
made by Mr Mpofu
and
Mr Ncube.
He however, further pointed out that
the
court a
quo
erroneously
took all the respondents who were before it to be CCC
sponsored
candidates when this was not correct as some of the respondents were
affiliated
to different political parties and others were independent
candidates. To
demonstrate
his point, he quoted the portion of the judgment a
quo
which
mentioned
that
if
one
read
one
affidavit,
he
would
have
read
all.
41.
In respect of one of his clients, Adelaide Mhlanga, Mr Mahlangu
submitted
that she
averred
that
she
was
in
the
court
at
all
material
times.
To
counsel,
there
was
no
evidence
that
the
papers were collected after
4pm
from
persons
who were
outside.
42.
In
his
submissions,
Mr
Mahlangu
intimated
that
the
court
a
quo
took
a
casual
approach
to
the
evidence
of
the
appellants
and
that
of
the
nominations
officer
and
ZEC.
He
stated
that
the court a
quo
regarded
the appellants averments as merely bald denials. The
court
a
quo
was
also accused of making sweeping statements against the electoral
authority.
For
instance,
it
is
said
to
have
referred
to
the
majority
of
the
respondents
but
without
specifying who they are. He prayed for the appeal in SCB61/23 to be
allowed
with
costs.
43.
Mr Bamu
for
the sixteenth appellant in SCB59/23 and the appellants in SCB62/23
submitted
that the court a
quo
had
no jurisdiction to deal with the matter because the
Electoral
Court exercises the general jurisdiction of the High Court in any
matter
before
it.
In
addition,
counsel
moved
the
Court
to
depart
from
the
Kambarami
decision
supra
as,
in
his
view,
it
conflicted
with
section
171(1)
of
the
Constitution
and
section
161
of
the
Electoral
Act.
He
associated
himself
with
submissions
made
by
counsel
for
the
appellants
who
addressed
the
Court before
him.
44.
He
further
submitted
that
the
matter
was
disposable
on
the
one
question
of
whether
or
not
the
nomination
papers were received by
4pm.
45.
He
finally
submitted
that
section
46
of
the
Electoral
Act
simply
requires
papers
to
be
received
by
a nomination officer and it does not prohibit any person from
delivering the forms.
Thus,
to the extent that section 46(7) did not prohibit a police officer
assigned by the
nominations
officer from receiving nomination papers from any person before 4pm,
the
conduct cannot be said to be illegal as it is not forbidden by
statute. Mr Bamu,
therefore,
prayed
that the
appeal
be allowed with costs.
46.
Mr Magwaliba
submitted
that the seventh ground of appeal resolved the appeal. He
submitted
that the court a
quo
accepted
the evidence of the thirteenth to the fifteenth
respondents.
He however, said that what the court a
quo
rejected
were the opinions of
the
Electoral Commission.
Counsel
further submitted that in terms of section 46(5) and 46(6)
of
the
Electoral
Act,
the
nomination
court
is
a
public
and
open
court
that
closes
at
4pm,
after
which
time
it
cannot
accept
nomination
papers
from
new
prospective
candidates.
47.
He further submitted that the evidence from the Commission was that
the appellants
were
not in court. He also referred to the evidence of Tabeth Mwonzora, a
secretary at
the
nomination court, to the effect that a police detail collected the
papers. Relying on
the
definition of a nomination officer, counsel also submitted that the
definition does
not
include
a
police
officer.
Thus,
by
directing
the
police
detail
to
collect
the
nomination
papers, the nomination officer acted unlawfully and his conduct was
null and void. He
referred
the court to Muchakata
v Netherburn Mine
1996
(1) ZLR 153 (S) in support
of
this proposition. He submitted that the circumstances of this case
warranted a
declaration
on
the correct
position
of
the
law.
48.
In respect of Annexure “B” Mr Magwaliba
contended
that it was a public document
which
is acceptable in terms of section 12 of the Civil Evidence Act
[Chapter
8:01].
He
further
submitted that the document is a submission form from Bulawayo
province
which
sets out the times when the nomination papers were accepted. He
stressed the
point
that all the appellants nominations were captured as having been
accepted after
4pm.
49.
On
the
question
of
jurisdiction,
Mr
Magwaliba
submitted
that
the
Kambarami
decision
supra
was
good law having been decided after the adoption of the 2013
Constitution
and
the enactment of the Judicial Laws Amendment (Ease of Doing Business)
Act,
2017.
He
therefore
submitted
that
the
High
Court
has
jurisdiction
to
grant
a
declaratur.
50.
Regarding the issue of the validity of the applications a
quo,
counsel submitted that the
High
Court issued an order truncating the dies
induciae.
He further contended that Rule
59(6)
of the High Court Rules, 2021 does not specify that urgent
applications must be
filed
with
a
modified
dies
induciae
only
after
the
High
Court
has
granted
such
leave.
51.
In
respect
of
the
first
ground
of
appeal
he
submitted
that
it
was
a
bad
ground
at
law
as
it
challenged a decision on how the court should have conducted its
proceedings. He
argued
that
such
a
decision
was
not
appealable.
52.
In respect of the fifth ground of appeal, Mr Magwaliba
submitted
that the first to the
twelfth
respondents
had
locus
standi.
He
relied
on
the
decision
in
Stevenson
v
Minister
of
Local Government & Others
2002
(1) ZLR 498 (S). On the issue of non-joinder of
CCC,
counsel averred that it was not an interested party.
He
prayed for the dismissal
of
the
appeals
with costs.
53.
Mr Kanengoni,
for the thirteenth, fourteenth and fifteenth respondents submitted
that
his
clients
would
abide
by
the
decision
of
this
Court.
Accordingly,
he
did
not
make
any
submissions.
ISSUES
FOR
DETERMINATION
54.
The
issues
which commend themselves
for
determination
by
this
Court
are as follows:
(i)
Whether
or
not
the
court
a
quo
erred
and
misdirected
itself
in
dismissing
the
appellants
preliminary
points.
(ii)
Whether or not the court a
quo
was
correct in its findings that the
appellants
nomination
papers
were
submitted
to
the
nomination
officer
after
4pm.
THE
APPLICABLE
LAW
55.
The appeals are all hinged on the law relating to the procedure for
the nomination of
candidates
for election as members of Parliament. Sections 46(6), (7) and (8) of
the
Electoral
Act
are
central
to
the resolution
of
these
appeals.
They
read:
“(6)
The
nomination
officer
shall
in
open
court
—
(a)
announce
whether
any
candidate
has
lodged
his
or
her
nomination
paper before the sitting of the court and, if so, the
name
of
every
such
candidate;
and
(b)
receive any further nominations for election as constituency
member
of
the
National
Assembly
for
the
constituency
for
which
he
or
she
is
the
nomination
officer.
(7)
No
nomination
paper
shall
be
received
by
the
nomination
officer
in
terms
of
subsection
(6) after four o'clock in the afternoon of nomination day or, where
there
is more than one nomination day for the election concerned, the last
such
nomination
day:
Provided that, if at that time a candidate or his or her chief
election agent is
present
in the court and ready to submit a nomination paper in respect of the
candidate,
the
nomination officer
shall
give
him
or
her an
opportunity
to
do so.
(8)
The nomination officer shall examine every nomination paper lodged
with
him
or her which has not been previously examined by him or her in order
to
ascertain
whether
it
is
in
order
and
shall
give
any
candidate
or
his
or
her
election
agent
an opportunity to rectify any defect not previously rectified and may
adjourn
the
sitting
of
the court for that purpose
from
time
to
time: Provided that the sitting shall not be adjourned to any other
day that is not a
nomination
day.”
56.
The Interpretation Act [Chapter
1:01]
section 24(1) and (2) are also relevant and provide as
follows:
“POWERS
AND
APPOINTMENTS
24.
Statutory
powers
and
duties
generally
(1)
Where
an
enactment
confers
a
power,
jurisdiction
or
right,
or
imposes
a
duty,
the
power,
jurisdiction
or
right
may
be
exercised
and
the
duty
shall
be
performed
from
time
to
time
as
occasion
requires.
(2)
Where
an
enactment
empowers
any
person
or
authority
to
do
any
act
or
thing,
all
such
powers
shall
be
deemed
to
be
also
given
as
are
reasonably
necessary
to
enable
that
person
or
authority
to
do
that
act
or thing
or
are
incidental
to the
doing
thereof.”
57.
In
our
view
the
appeals
can
be
resolved
by
a
correct
interpretation
of
section
46(6),
(7)
and
(8)
of
the
Act.
The
interpretation
of
section
24(1)
and
(2)
will
also
be
considered
in
resolving
the
appeals.
58.
Section 46(6)(a) of the Act permits a prospective candidate to lodge
his or her
nomination
papers before the nomination day. On nomination day, the nomination
officer
must announce in open court the names of all candidates who lodged
their
nomination
papers
prior to
the
nomination day.
59.
Section
46(6)(b)
provides
for
the
nomination
officer's
receipt
of
nomination
papers
on
the
nomination
day.
60.
Section 46(7) forbids a nomination officer from receiving nomination
papers after 4pm on nomination day except for those candidates or
their election agents who will be
present
in
the
courtroom
and
ready
to
submit
their
nomination
papers
by
4pm.
Therefore,
candidates or their election agents who will be in the courtroom will
not be
affected
by
the
cut-off
time
of
4pm.
61.
Section 46(8) mandates the nomination officer to attend to and
examine all nomination
papers
lodged with him or her between 10am and 4pm, and give opportunities
to
candidates
or
their
agents
to
rectify
anomalies
by
adjourning
the
court
to
enable
them
to
do
so
by
not
later
than
the end of the nomination
day.
62.
Section 24(1) of the Interpretation Act provides that where a statute
gives a public
officer
power
to
perform
a
duty,
such
power
includes
the
power
to
organise
and
perform
as
occasion
requires.
63.
Section
24(2)
of
the
Interpretation
Act
gives
a
public
officer
powers
to
take
reasonable
steps
that
enable him or
her
to
accomplish what the
law
mandates.
64.
The
principles
of
interpretation
of
statutes
have
been
discussed
by
this
Court
in
a
number
of
cases.
In
the
case
of
Endeavour
Foundation
and
Anor
v
Commissioner
of
Taxes
1995
ZLR 339
(S)
at
356F-G,
this
Court
held
that:
“The
general
principle
of
interpretation
is
that
the
ordinary,
plain,
literal
meaning
of
the
word
or
expression,
that
is,
as
popularly
understood,
is
to
be
adopted,
unless
that
meaning
is
at
variance
with
the
intention
of
the
Legislature
as
shown by the context or such other indicia as the court is justified
in taking
into
account,
or
creates
an
anomaly
or
otherwise
produces
an
irrational
result.”
See
also
Zambezi
Gas
Zimbabwe
(Pvt)
Ltd
v
N.R.
Barber
(Pvt)
Ltd
&
Anor
SC3–20
at
7.
65.
According
to
case
law
on
rules
of
interpretation,
the
use
of
the
word
“shall”
in
a
statute
denotes
a mandatory intention by the legislature for the provision to be
complied with.
In
the case of Shumba
and Anor v ZEC and Anor
2008
(2) ZLR 65 (S) at 80D-G, this
Court
held:
“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.”
66.
Given that it is generally accepted that the use of the word “shall”
in any enactment is
understood
as being indicative of the legislature's intention of making the
provision
peremptory,
it
becomes
necessary
to
consider
some
hallowed
principles
of
interpretation
for
determining
the
intended
effect
of
non-compliance
with
a
peremptory
statute.
There are principles that the courts resort to in order to determine
whether or
not
the
legislature
intended
non-compliance
with
a
provision
to be fatal.
67.
Thus,
in
the
Shumba
case supra
at
80G-81D,
it
was
stated
that:
“Francis
Bennion
Statutory
Interpretation
submits
that
the
courts
have
to
determine
the
intention
of
the
legislalture
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
7
ed 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 those 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.'”
68.
Similarly,
in
the
case
of
Sibanda
&
Anor
v
Ncube
&
Ors;
Khumalo
&
Anor
v
Mudimba
&
Ors
SC158–20
at 15, PATEL
JA
(as
he
then
was) held that:
“The
broad test for ascertaining the true nature of a statutory duty was
enunciated
more
than a century ago in the case of Howard
v Bodington
(1877)
2 PD 203, at
211:
'……..
in
each
case
you
must
look
to
the
subject-matter,
consider
the
importance
of
the
provision
and
the
relation
of
that
provision
to
the
general object
intended
to
be
secured
by
the
Act,
and
upon
a
review
of
the
case
on
that aspect
decide
whether
the
enactment
is
what
is
called
imperative
or
only
directory…….'
A
further aspect that may be relevant is the need to distinguish
between those persons
who
are bound to perform the statutory duty and those who might be
affected by its
performance
or
non-performance.
(See
Bennion,
op
cit,
at
p21).
In
this
context,
the
extent to which the former are in a position to exercise control over
the latter may
become
a crucial consideration. This point was aptly elucidated in Montreal
Street
Railway
Company
v
Normandin
[1917]
AC
170,
at
174:
'When
the
provisions
of
a
statute
relate
to
the
performance
of
a
public
duty
and
the
case
is
such
that
to
hold
null
and
void
acts
done
in respect
of
this
duty
would
work
serious
inconvenience
or
injustice
to
persons
who
have
no
control
over
those
entrusted
with the duty, and at the same time would
not
promote the
main
object
of the
legislature,
it
has
been the
practice
to
hold
such
provisions
to
be
directory
only,
the
neglect
of
them,
though
punishable,
not
affecting
the
validity
of
the
acts
done.'”
69.
These
principles
must
be
understood
within
the
context
of
the
law
relating
to
electoral
matters
in
general.
In
Hove
v
Gumbo
(Mberengwa
West
Election
Petition
Appeal)
2005
ZLR
85
(S)
MALABA
JA
(as
he
then
was)
summarised
some
of
the
principles.
At
pp92B–E,
it
was
held
that:
“The
law
governing
the
manner
and
grounds
on
which
an
election
may
be
set
aside
must
be
found
in
statute
and
nowhere
else.
In
Nath
v
Singh
&
Ors
[1954]
SCR
892
at
895,
MAHAJAN
CJ
said:
'The
general rule is well settled that the statutory requirements of
election
law
must be strictly observed and that an election contest is not an
action at
law
or a suit in equity but is a purely statutory proceeding unknown to
the
common
law and that the court possesses no common law power. It
is also
well
settled that it is a sound principle of natural justice that the
success
of
a
candidate
who
has
won
at
an
election
should
not
be
lightly
interfered
with
and
any
petition
seeking
such
interference
must
strictly
conform
to
the
requirements
of the law.'
About
twenty
years
later,
the
same
principle was
reiterated
by
CHANDRACHUD
CJ
in
Sahu's
case
supra,
where
at
p39 he
said:
'The
rights arising out of elections, including the right to contest or
challenge an
election,
are
not
common
law
rights.
They
are
creatures
of
the
statutes
which
create,
confer
or limit those rights. Therefore, for deciding the assertion whether
an
election
can be set aside on any alleged ground, the courts have to consult
the
provisions
of law governing the particular election. They have to function
within
the
framework
of that
law
and cannot
travel
beyond it.'”
(my
emphasis)
70.
Although this relates to the setting aside of an election, it applies
with equal force to
setting
aside nominations of candidates for the National Assembly
constituencies as in
the
present
case.
APPLICATION
OF
THE
LAW
TO
THE
FACTS
71.
On the preliminary points on jurisdiction, the court a
quo
correctly
observed the
principle
of
stare
decisis.
The
Kambarami
case
supra
was
binding
on
it
and
once
bound,
the
court could not depart from it. It therefore correctly determined the
question of
jurisdiction.
72.
The issue of the applications a
quo
being
disguised applications for review was raised
by
the appellants.
However,
a close look at the record of proceedings itself shows that
the
applications were for a declaratur
in
terms of section 14 of the High Court Act [Chapter
7:06].
73.
On the issue of locus
standi,
the court a
quo
correctly
found that the respondents had
material
interests in the matter.
We
agree with the court a
quo.
The
respondents, as
registered
voters,
are
allowed
by
the
law
to
inspect
nomination
records.
See
section
46(18)
of
the
Electoral Act. Corollary, this will enable them to take appropriate
action or pursue
appropriate
remedies
where
necessary.
74.
As
regards
hearsay
evidence,
the
court
a
quo
correctly
deferred
the
determination
to
the
merits
as it is evidence that requires to be analysed with the totality of
submissions.
Moreso
considering that in their affidavits, the respondents were also
relying on
Annexure
“B”.
75.
On non-joinder the court a quo found that CCC was a necessary party
but correctly
held
that the non-joinder was not fatal to the proceedings. Rule 32(11) of
the High
Court
Rules,
2021
is
apposite.
It
states:
“(11)
No cause or matter shall be defeated by reason of the misjoinder or
non-joinder of any party and the court may in any cause or matter
determine the issues
or
questions in dispute so far as they affect the rights and interests
of the persons
who
are
parties
to
the
cause
or
matter.”
76.
The
court
a
quo
correctly
dismissed
the
point
in
limine
on
material
disputes
of
fact
and
correctly
relied
on
the
case
of
Supa
Plant
Investments
(Pvt)
Ltd
v
Chidavaenzi
2009
(2)
ZLR
132
(H)
at
136
F-G.
The
court
correctly
took
a
robust
approach
to
resolve
the
issue
between
the
parties.
77.
In
respect
of
urgency,
the
matter
being
an
electoral
matter
was
urgent
and
it
is
common
cause
that
the parties agreed to proceed
on
that basis.
78.
The last point being on alleged abuse of court process, we agree with
the court a
quo
that
the
respondents
had
substantial
interest
and
if
that
is
the
position,
we
cannot
allude
to
abuse
of
court process.
79.
On
the
merits,
the
Court
makes
the
following
observations:
It
is common cause that on the nomination day, the court commenced at
10am. It is
also
not
in
dispute
that
the
designated
nomination
court
was
a
small
courtroom
and
the
nomination
officer could only allow 12 to
15
people at a time. The rest of the
candidates
and/or agents queued outside the courtroom. At 3:55pm, the nomination
officer
announced that all prospective candidates were to hand over their
nomination
papers
to
the police
officer
attached to the
nomination
court.
80.
The police officer complied and directed from the end of the queue
that nomination
papers
be
handed
to
the
police
officer
at
the
door
who
then
handed
over
the
nomination
papers
to the nomination officer before 4pm. A reading of section 24(1) and
(2) of the
Interpretation
Act shows that the nomination officer, as a public officer, has the
power
to
employ
such
appropriate
administrative
tools
to
accomplish
his
duty.
See
the
case
of
Shumba
supra.
He
accepted lodgement of nomination papers within the prescribed
time
limits in compliance with section 46(6) as read with section 46(7)
and 46(8) of the Electoral
Act.
81.
Evidence from the thirteenth to fifteenth respondents confirms that
the nominations
lodged
on
the
nomination
day
were
lodged
before
4pm
and
that
Annexure
“B”
was
not
an
official document indicating the times of lodgement of nomination
papers in the
nomination
court.
It
appears that the court a
quo
turned
a blind eye to the responsible
authority's
evidence
and
relied
on
the
first
to
twelfth
respondents
evidence
which
was
heavily
borrowed
from social media and that is hearsay.
82.
A close examination of Annexure “B” reveals that it is a
submission form without
specification
as
regards
what
was
submitted
and
to
whom.
Further,
the
form
only
starts
recording
at 1300 hours and the recordings are randomly captured at different
times,
some
of which were prior to 1300 hours.
It
was therefore speculative for the court a
quo
to
ascribe the unsystematically recorded form as proof of the times of
lodgement
of
nomination
papers.
83.
The court a
quo
thus
erred in dismissing the Electoral Commission's evidence as
regards
the
use
of
Annexure
“B”
when
it
relied
on
its
own
interpretation
of
the
document
as
opposed
to
the
evidence
presented
by
the
nomination
officer
and
all
the
other
officials
who
deposed
to
supporting
affidavits.
It
is
important
to
note
that
the
nomination
officer
deposed
the
opposing
affidavit
on
behalf
of
ZEC
and
its
Chairperson
who
had
authorised
him
to
do
so.
His
deposition
must
therefore
be
understood
to
be
the
evidence
of
ZEC
and
its
Chairperson.
(underlining
emphasis).
In
our
view,
the
court
a
quo
should
have
exercised
caution
in
dismissing
ZEC's
explanation
of
the
form
because
one
cannot lightly dismiss the responsible authority's explanation of
the purpose for
which
the form is used in the absence of cogent evidence to the contrary.
It is up to an
Administrative
Authority
to
devise
administrative
tools
to
function
efficiently.
84.
In any event, Annexure “B” is not clear.
It
does not, on the face of it, reflect that it is
proof
of
the
time
of
lodgement
of
nomination
papers
with
the
nomination
officer.
It
is
just
headed
as
a
submission
form
with
mixed
time
slots.
The
sweeping
remarks
by
the
court
a
quo
to
the effect that the thirteenth to fifteenth respondents came up with
exculpatory
explanations upon realising that they were on trial were unwarranted
and
can
be characterised as unfortunate considering the unreliable hearsay
evidence the
respondents
relied
on.
85.
Even if we were to consider the facts of the case as deposed to by
the first to twelfth
respondents
that some of the appellants came to the nomination court in time and
when
their
papers were found not to be in order, they were requested to go and
correct them,
they
came back before 4pm. The question of having failed to comply with
the 4pm
deadline
would not arise. Further section 46(8) allows a person who is
required to correct his
or
her
papers
to
do
so
during
adjournments
taken
within
the
nomination
day.
In
the
circumstances,
even
if
for
some
of
the
appellants
had
to
correct
their
nomination
papers
after
4pm,
they
still
lodged
them
with
the
nomination
officer
in
compliance
with
section
46(8)
of
the
relevant
Act.
86.
We are alive to the fact that an appellate court should be loathe to
interfere with factual
findings
of the trier of fact. See
Mangwende
v
Zimbabwe
Newspapers
SC71/20.
However,
in circumstances where the decision of the court a
quo
is
not anchored on
evidence
on
record
and
is
based
on a
wrong
principle,
interference
is
warranted.
87.
In
casu,
whilst
the
court
a
quo
acknowledged
that
there
was
a
challenge
as
regards
what
exactly
happened
at
the
nomination
court,
on
the
nomination
day
it
nevertheless
proceeded
to declare the nomination of the appellants a nullity.
The
challenge with
regard
to
what
occurred
at
the
nomination
court
emanated
from
the
fact
that
the
first
to
twelfth
respondents were not in attendance.
They
had no first-hand information. They
relied
on what they said was awash on social media.
Further,
whilst being alive to the
relevant
provisions of the Electoral Act, section 46(6), (7) and (8), and
acknowledging that
candidates
and/or agents could lodge nomination papers with the nomination
officer
who
was
mandated
by
the
law
to
allow
those
with
anomalies
to
rectify
the
same,
it
made
a
finding
against
the
appellants.
At
the
same
time,
without
any
justification
for
differential
treatment,
the
court
a
quo
allowed
the
nomination
of
one
Zvikwete
Innocent
Mbano's
nomination
to
stand
even
though
he
admitted
to
having
corrected
and
submitted
his
corrected
nomination papers after
4pm.
88.
In
the
absence
of
proof
on
a
balance
of
probabilities
the
respondents
assertions
that
the
nomination
papers
of
the
appellants
were
filed
out
of
time
remains
speculative.
It
is
trite
that
he
who
alleges
has
the
onus
to
prove.
See
Tetrad
Investment
Bank
Limited
v
Bindura
University
of
Science
Education
&
Another
SC5/19.
89.
In
the
circumstances
and
in
view
of
the
misdirections
by
the
court
a
quo
on
assessment
of
the
facts
and
the
applicable
law,
interference
by
this
Court
is
warranted.
Considering
this court's decision, the exclusion of the fifth appellant's
name in the
court
a
quo's
order
need
not
be determined.
90.
Regarding costs, they are at the discretion of the Court. We find no
reason to depart
from
the
general
principle
that
costs follow
the
cause.
DISPOSITION
91.
It
is
for
these
reasons
that
we
allowed
the
appeals
with
costs
and
issued
the
aforementioned
order.
UCHENA
JA:
I
agree
CHITAKUNYE
JA: I
agree
Tanaka
Law
Chambers,
appellants
legal
practitioners
in
SCB59/23
Mbidzo,
Muchadehama
&
Makoni,
legal
practitioners
for
the
appellant
in
SCB60/23
and
for
the
sixteenth
respondent in SCB
Mathonsi
Ncube
Law
Chambers,
legal
practitioners
for
the
appellants
in
SCB61/23
Dube
Legal
Practice,
legal
practitioners
for
the
appellant
in
SCB62/23
Cheda
& Cheda,
legal practitioners for the first to the twelfth respondents in
SCB59/23, the
first
respondent in SCB60/23, the first to the twelfth respondents in
SCB61/23 and the first
respondent
in
SCB62/23
Nyika
Kanengoni & Partners,
legal practitioners for the thirteenth to the fifteenth respondents
in
SCB59/23,
the
second
to
the
fourth
respondents
in
SCB60/23,
the
thirteenth
to
the
fifteenth
respondents
in
SCB61/23 and
the
second
to the
fourth
respondents
in SCB62/23
