The applicants in this case allege that their right to freedom of association, guaranteed by sections 21(1) and 21(2) of the Constitution of Zimbabwe (“the Constitution”), and their right to protection of the law, guaranteed by section 18(1) of the Constitution, were violated by the second respondent, an employee of ...
The applicants in this case allege that their right to freedom of association, guaranteed by sections 21(1) and 21(2) of the Constitution of Zimbabwe (“the Constitution”), and their right to protection of the law, guaranteed by section 18(1) of the Constitution, were violated by the second respondent, an employee of the first respondent.
The alleged violation of the applicants' rights occurred in the course of the second respondent's employment with the first respondent.
THE FACTS
The applicants in this case are leaders of two different political parties. Both applicants wished to contest the Presidential Election conducted on 29 March 2008. The election which the respondents wanted to contest is complete and the outcome has been announced.
The applicants are seeking a declaratory order that their rights were violated.
Counsel for the applicants submitted that the outcome of this application has no bearing on the already completed election. He contends, however, that this application for a declaratory order is more than a mere academic exercise. He contends that a determination by this Court will provide a useful guideline for the future conduct of election officials.
Put differently, the completed electoral process will not be affected by the outcome of this case.
15 February 2008 was the nomination day for the Presidential Election conducted on 29 March 2008. All aspiring candidates wishing to contest the 29 March 2008 Presidential Election were required to file their nomination papers by four o'clock on the afternoon of 15 February 2008.
The first applicant avers that on 15 February 2008 he arrived at and entered the Nomination Court at or about 15:45 hours. This was fifteen minutes before the official closing time for nominations.
He submitted his nomination papers to the second respondent who advised him to wait until the official had finished attending to the second applicant. The second applicant at that time was filling in some forms.
He sat in the Nomination Court awaiting his turn to be attended to and to file his own nomination papers.
When the second applicant finished filling in his papers, he presented them to the second respondent, only to be told that the Nomination Court had closed and his nomination papers would not be accepted.
When the second applicant was told that his nomination papers could not be accepted, the first applicant moved forward to submit his own nomination papers as he had been advised to wait until the nomination officer had finished attending to the second applicant. The first applicant contends that upon presenting his nomination papers he too was told that his nomination papers could not be accepted as the Nomination Court had closed.
He protested at this turn of events to no avail.
What transpired thereafter is not entirely clear from the affidavits filed by the parties.
The first applicant sets out his version of what transpired in paragraph 11 of the founding affidavit, while the first respondent sets out its version of what transpired in paragraph 6 of the opposing affidavit.
The two versions do not present a clear chronology of the events which occurred thereafter.
Counsel for the respondents, in both the High Court and the Electoral Court proceedings, made certain submissions which were accepted by the applicants as correct. These submissions, to some extent, clarified what transpired after the rejection of the applicants' nomination papers.
The following appears to have happened:
After the rejection of their nomination papers, the applicants launched a Chamber Application in the High Court. The chamber application to the High Court is attached to this application. In terms of the draft order, the applicants sought the following relief from the High Court:
“1. The respondent is ordered to accept the applicants' papers.
2. The respondent is ordered to declare the applicants duly nominated for the March 2008 Presidential Elections.
3. That the respondent pays costs of suit.”
According to counsel for the respondents, the matter was argued before GUVAVA J, sitting as a High Court Judge. She dismissed the Chamber application on the basis that the High Court had no jurisdiction to entertain the application and that it was the Electoral Court that had jurisdiction to deal with the matter in terms of section 46(19) of the Electoral Act [Chapter 2:13] (“the Act”).
Thereafter, the application found its way to the Electoral Court in terms of section 46(19) of the Electoral Act.
According to counsel for the respondents, the application was heard by UCHENA J, sitting as a Judge of the Electoral Court.
The application was dismissed on the ground that the matter had prescribed.
In terms of section 46(19)(b) of the Electoral Act [Chapter 2:13], a candidate has a right of appeal against a decision of the Nomination Officer to a Judge of the Electoral Court. In terms of section 46(19)(c) of the Electoral Act, the right of appeal lapses after four days and the decision of the Nomination Officer becomes final.
After the dismissal of the appeal by the Electoral Court nothing happened until 15 April 2008 when the present application was launched in this Court.
This application is made in terms of section 24(1) of the Constitution.
As already stated, the applicants are asking for a declarator that does not seek to change the outcome of the already completed election.
THE ISSUES
The averments of the applicants, as to what transpired at the Nomination Court, have not been put in issue by the respondents. In particular, the second respondent has not filed an affidavit disputing the allegations made against him relating to his conduct during the Nomination Court proceedings.
Given this situation, this Court has to accept, as a fact, that the applicants arrived at the Nomination Court at least fifteen minutes before the closing time on the nomination day.
In terms of section 46(7) of the Electoral Act, a candidate who is within the Nomination Court at close of business is entitled to have his nomination papers accepted by the Nomination Court.
The proposition that what is not denied in affidavits must be taken as admitted is not disputed by the respondents and is supported by authorities: see Fawcett Security Operations P/L v Director of Customs and Excise and Ors 1993 (2) ZLR 121 (S)…,; Nhidza v Unifreight Ltd SC27-99; and Minister of Lands and Agriculture v Commercial Farmers Union SC111-01…,.
Counsel for the second respondent has raised three defences:
(i) Firstly, he argues that the remedy available to the applicants, upon the rejection of their nomination papers, was an appeal to a Judge of the Electoral Court in terms of section 46(19) of the Electoral Act.
When the applicants failed to do so timeously the decision of the Nomination Officer became final in terms of section 46(19)(c) of the Electoral Act.
An application to this Court, in terms of section 24(1), so he submitted, is a disguised appeal against the decision of the Electoral Court or the Nomination Officer. He argues that this is not permissible.
The decision of the Nomination Officer, if not appealed against in terms of section 46(19)(b) of the Electoral Act, becomes final in terms of section 46(19)(c) of the Electoral Act.
The applicants, as I understand his argument, failed to avail themselves of the protection of the law by failing to comply with the procedure laid down in section 46 of the Electoral Act.
(ii) Secondly, counsel for the second respondent submitted that this application should be dismissed on the basis that this matter arose from proceedings in both the High Court and the Electoral Court and therefore can only find its way to the Supreme Court by referral in terms of section 24(2) of the Constitution.
He further argued that section 24(3) of the Constitution specifically prohibits the making of an application to this Court in terms of section 24(1) of the Constitution in respect of matters arising from proceedings in the High Court or any subordinate adjudicating authority.
In response, counsel for the applicants argued that section 46(19) of the Electoral Act did not apply to the applicants because their papers were not rejected by the second respondent in terms of section 46(10) or section 46(16) of the Electoral Act. The remedy of an appeal to an electoral Judge, provided for in section 46(19) of the Electoral Act, is limited to litigants whose nomination papers are rejected in terms of section 46(10) or section 46(16) of the Electoral Act.
Counsel for the applicants also submitted that the present application did not arise from proceedings in the High Court or in the Electoral Court, and, accordingly, the applicants are not barred from approaching this Court by section 24(3) of the Constitution.
(iii) Counsel for the second respondent also raised the issue of citation and submitted that the first respondent was wrongly cited having regard to the provisions of section 18 of the Zimbabwe Electoral Commission Act [Chapter 2.12].
This was disputed by counsel for the applicants.
On the basis of the foregoing, three issues emerge on the papers -
(1) Whether or not the first respondent was correctly cited;...,.
Was the first respondent wrongly cited?
Turning to the final point raised, namely, that the first respondent was wrongly cited. A perusal of the relevant provisions of the Zimbabwe Electoral Commission Act [Chapter 2:12] and the State Liabilities Act [Chapter 8:14] clearly shows that counsel for the respondents is correct and the Chairperson of the first respondent should have been cited instead of the first respondent.
The relevant provisions provide as follows:
Section 18 of the Zimbabwe Electoral Commission Act provides as follows:
“18 Legal proceedings against Commission
The State Liabilities Act [Chapter 8:14] applies with necessary changes to legal proceedings against the Commission, including the substitution of references therein to a Minister by references to the Chairperson of the Commission.”
The above provision is fairly explicit.
It states quite clearly that whenever there is a reference to a Minister in the State Liabilities Act the litigant substitutes “Minister” with “Chairperson of the Commission.”
The Zimbabwe Electoral Commission Act therefore provides that the Chairperson of the Electoral Commission (“the Commission”) is to be cited whenever the Electoral Commission is being sued.
Failure to cite the Chairperson of the Electoral Commission or the citing of the Electoral Commission itself instead of the Chairperson constitutes a failure to comply with section 18 of the Zimbabwe Electoral Commission Act.
The applicants, in this case, therefore, did not comply with section 18 of the Zimbabwe Electoral Commission Act.
That being the case, the issue that falls for determination is: what are the legal consequences that flow from the applicants' non-compliance with section 18 of the Zimbabwe Electoral Commission Act?…,.
The relevant provisions of the State Liabilities Act that are incorporated by section 18 of the Zimbabwe Electoral Commission Act provide as follows:
“2 Claims against the State cognizable in any competent court
Any claim against the State which would, if that claim had arisen against a private person, be the ground of an action in any competent court, shall be cognizable by any such court, whether the claim arises or has arisen out of any contract lawfully entered into on behalf of the State or out of any wrong committed by any officer or employee of the State acting in his capacity and within the scope of his authority as such officer or employee, as the case may be.
3. Proceedings to be taken against Minister of department concerned
In any action or other proceedings which are instituted by virtue of section two, the plaintiff, the applicant or the petitioner, as the case may be, may make the Minister to whom the headship of the Ministry or department concerned has been assigned nominal defendant or respondent: Provided that, where the headship of the Ministry or department concerned has been assigned to a Vice-President, he may be made nominal defendant or respondent.”…,.
On a proper interpretation of the above sections, the words “may make the Minister” the defendant or the respondent have to be interpreted as directing the plaintiff or the applicant to cite the Minister as the defendant or the respondent.
To interpret the above words as conferring on the plaintiff or the applicant unfettered discretion to cite the Minister or any other person of their choice would lead to an obvious absurdity that could not have been intended by the legislature.
In the same vein, section 18 of the Zimbabwe Electoral Commission Act directs the applicant to cite the Chairperson of the Zimbabwe Electoral Commission as the defendant or the respondent.
In my view, the correct interpretation to be ascribed to section 18 of the Zimbabwe Electoral Commission Act, as read with the State Liabilities Act, is that whenever an employee of the Commission is being sued and the plaintiff or the applicant wishes to join the Zimbabwe Electoral Commission, the Chairperson of the Zimbabwe Electoral Commission, and not the Zimbabwe Electoral Commission itself, has to be cited.
The same would apply when the Zimbabwe Electoral Commission alone is being sued for the misconduct of its employees or its own misconduct – the Chairperson is to be cited as representing the Zimbabwe Electoral Commission.
I therefore do not accept the contention of the applicants that the use of the word “may” in the above provision entitled the applicants to cite whomever they wished in place of the Chairperson of the Zimbabwe Electoral Commission.
Counsel for the respondents further argued that the applicants' failure to comply with section 18 of the Zimbabwe Electoral Commission Act, as read with sections 2 and 3 of the State Liabilities Act, rendered these proceedings a nullity.
In other words, counsel for the respondents submission is that section 18 of the Zimbabwe Electoral Commission Act is peremptory and failure to comply with the section renders the proceedings a nullity.
I do not accept the contention that section 18 of the Zimbabwe Electoral Commission Act, as read with the State Liabilities Act, is peremptory for a number of reasons:
In section 18 of the Zimbabwe Electoral Commission Act, as read with the State Liabilities Act, the word “may” as opposed to the word “shall” is used. This is indicative of a directory and not a peremptory intent of the legislature.
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…,:
“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 n 74.} 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 s13 of this Code (criminal sanctions) and s14 (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.
The purpose of section 18 of the Zimbabwe Electoral Commission Act is to ensure that the Chairperson of the Zimbabwe Electoral Commission, as an interested party, is not sidelined in litigation against the Zimbabwe Electoral Commission.
He has not been sidelined as he is aware of the proceedings in this matter. He has filed an affidavit.
On the facts of this case, to hold that the proceedings are a nullity for failure to comply with section 18 of the Zimbabwe Electoral Commission Act would result in a consequence totally disproportionate to the mischief intended to be remedied.
In the result, I hold the view that section 18 of the Zimbabwe Electoral Commission Act is directory and not peremptory.
This is not to say that, in a proper case, the Court will not dismiss an application or mulct an offending litigant in costs for failure to comply with section 18 of the Zimbabwe Electoral Commission Act. Legal practitioners should stand forewarned, that, in a proper case, the Court may dismiss an application for failure to comply with section 18 of the Zimbabwe Electoral Commission Act.
On the facts of this case, I am satisfied that no prejudice has been caused to any party by the failure to comply with section 18 of the Zimbabwe Electoral Commission Act and that in the interests of bringing speedy finality to litigation the Court should exercise its discretion and condone the applicants' irregularity in this regard.
This approach will facilitate a speedy resolution of the substantive issues in this case.
