There are two matters in this case.

The first matter, HC1369/09, is for the confirmation or discharge of a provisional order granted by this court on 10 September 2009. The second, which is the main matter, under case number HC1410/09, is for the rescission of the decision to appoint the first respondent as substantive Chief Bunina.

In the latter matter, the applicant also seeks that the matter be remitted to the office of the second respondent for the reconvening of selection meeting of all interested parties for the fresh selection of a candidate for appointment as Chief Bunina.

The background facts of the matter are the following:

The applicant is the first born son of Jackson Moyo, the last Chief Bunina of Lower Gweru, who died sometime in June 2003. In turn, the late Jackson Moyo had taken over the chieftainship as substantive Chief Bunina from his late father, Mantiya. After the death of Jackson Moyo, the applicant was appointed acting Chief Bunina in May 2004 and his term as acting Chief was set to expire, and did expire, in May 2006.

Meanwhile, meetings were conducted between Ministry of Local Government officials and the Bunina family to select the substantive Chief Bunina where the first respondent emerged as a claimant to the throne.

It is common cause, that, the late Chief Bunina had more than one family, i.e. he had different wives: the eldest of which was the mother of Mantiya, the applicant's grandfather, who also ruled as Chief Bunina. The first respondent's father, Mkoba, was one of the sons of Chief Bunina's wives.

The first respondent's claim to the chieftainship does not seem to be based on a recognizable Ndebele system of succession, custom, or tradition of the clan but merely on some kind of election or poll conducted by Local Government officials.

This is captured in the memorandum dated 28 August 2006 from the Midlands Provincial Administrator to the Minister of Local Government, Public Works and Urban Development. In this memorandum, the Provincial Administrator states:

“1. Subject to the Traditional Leaders Act [Chapter 29:17], section 3, the President shall appoint Chiefs to preside over Communal and Resettlement areas.

2. Subject to subsection 2, the President shall give due consideration to the prevailing customary principles of succession, if any, applicable to the community over which the chief is to preside, and the administrative needs of the communities in the area concerned in the interest of good governance.

3. The last incumbent in the Bunina Chieftainship was Golden Moyo whose acting term has since expired. In line with the requirement of Circular No.38 of 2004, the District Administrator held a selection meeting on the 21st of June 2006. The meeting was chaired by D.A. Kwekwe, Ms Muzenda, assisted by D.A. Gweru, Mr Maguma, with the Provincial Administrator and Mr Mukwaira (Traditional Support Services Director).

Though there was no succession among the family, what sufficed was that Stephen Mkoba was chosen by the majority of the houses. The decision to appoint Stephen Mkoba from the families, though non-procedural and non-congruent with either the bilateral or collateral system was welcome by this office in the best interest of the Chieftainship as continued squabbles derail the operations of Chiefdom.

4. This office support [sic] the nomination of Stephen Mkoba I.D. 29-063837 B29 as substantive Chief Bunina premised on the above-mentioned light….,.”…,.

The applicant protested this nomination of the first respondent to the President's office resulting in the selection process being re-opened.

The Minister of Local Government gathered stakeholders in 2007 and advised them to consult among themselves promising to return to finalise the process.

Before the above-mentioned recommendation was sent to the Minister, there was a selection meeting held on 21 June 2006. In this meeting, the Mantiya family, Mkoba family, Lugwalo family, and Mpabanga family were represented. The applicant, the first respondent, the second respondent attended the meeting. A total of twenty-two persons represented the above-mentioned family.

At this meeting, the Mantiya family traced their chieftainship as having come with Bunina from Matojeni with a group of followers who came and settled in the Lower Gweru. According to them, the chieftainship did not cascade across to the brothers but to the sons i.e. bilateral system of succession. In this regard, Mavu's descendents, being the eldest wife, were eligible to the throne. The Mantiya family highlighted the fact, that, although the Bunina's were of Rozvi origin, their ancestors inherited the Ndebele customs and culture following their defeat by the Ndebele in the pre-colonial era. Accordingly, in terms of the Ndebele system of succession their chieftainship was passed from father to son.

The Mkoba version was contrary to that of the Mantiya family.

The Mkoba version enjoyed the support of Lugwalo and Mpabanga families. Their version was, that, there was a battle between the whites and the Bunina community which resulted in the latter being victorious and ultimately being appointed Chief by government of the day.

As is to be expected, the meeting was acrimonious and hotly debated.

After all these processes and debates, a recommendation was made by the Minister of Local Government, Public Works and Urban Development (4th respondent) to the President of the Republic of Zimbabwe (5th respondent).

In exercise of his powers, the President appointed the first respondent the substantive Chief Bunina on 7 May 2007.

This appointment is in accordance with the Rozvi principles of succession. The President, in his wisdom and discretion, did not follow the Ndebele system of succession.

It is this appointment, really, that resulted in these two matters.

This appointment was done in terms of section 3 of the Traditional Leaders Act [Chapter 29:17] (“the Act”) which provides -

“3. Appointment of Chiefs

(1) Subject to subsection (2), the president shall appoint Chiefs to preside over communities inhabiting communal and resettlement areas.

(2) In appointing a chief in terms of subsection (1), the President –

(a) Shall give due consideration –

(i) The prevailing customary principles of succession, if any, applicable to the community over which the chief is to preside; and

(ii) The administrative needs of the communities in the area concerned in the interest of good governance; and

(b) Wherever practicable, shall appoint a person nominated by the appropriate persons in the community concerned in accordance with the principles referred to in sub-paragraph (i) of paragraph (a):

Provided that, if the appropriate persons concerned fail to nominate a candidate for appointment as chief within two years after the office of chief became vacant, the Minister, in consultation with the appropriate persons, shall nominate a person for appointment as chief….,.”

I have highlighted above, that, the most contentious issue is whether the Ndebele or Rozvi system is applicable in determining the succession battle for the Bunina chieftainship.

It is trite, that, although chiefs are envisaged as hereditary holders of office it is only official recognition by the President that carries with it the title of Chief.

In practice, the President frequently appoints the person holding traditional title to the chieftainship, but, he is not obliged to do so.

Section 3(2) of the Traditional Leaders Act obviously implies that the President “should give dire consideration to the customary principles of succession, if any, applicable to the community over which the Chief is to preside,” as investigated by Ministry of Local Government officials, in particular the second respondent. But, once the investigation has been made, the President is free to act as he thinks best in the interests of good governance of the community: Muwuungani v Minister of Native Affairs 1957 R & N 298 (FC)…,.; 1957 (2) SA 544 (FC): and Ruzane v Paradzai & Anor 1991 (1) ZLR 273 (SC)…,.

In Ruzane v Paradzai & Anor 1991 (1) ZLR 273 (SC), MANYARARA JA…, had this to say -

“The clear meaning of the provision is that the President is required to 'give due consideration to the customary principles of succession', not to follow them in making his choice.”

In other words, section 3 of the Traditional Leaders Act provides the President with an unfettered discretion in the appointment of a chief.

The President has exercised this discretion and appointed the first respondent as substantive Chief Bunina. The President exercised this discretion after supporters of rival candidates were consulted through the second, third and fourth respondents.

This exercise of executive powers by the President cannot be reviewed.

Accordingly, the applicant's case should fail. I therefore order as follows:

(1) That the provisional order granted by this court on 10 September 2009, under HC1396/09, be and is hereby discharged with costs.

(2) That the application filed under HC1410/09 be and is hereby dismissed with costs.

In Chagaresango v Chagaresango & Others 2000 (1) ZLR 99 (S)…, MUCHECHETERE JA held that this Court has the power to investigate whether the Minister and his officials, in formulating their advice to the President, acted on sound principle.

THE SECOND GROUND

Effect of Pre-charge Abduction and Violation of section 15(1) on Criminal Prosecution

The second ground on which the validity of the decision to institute the criminal prosecution was challenged was that the prosecution was unlawful because it was based on information or evidence obtained from the applicant by infliction of torture, inhuman and degrading treatment.

In the raising of the issue of the wrongful conduct of public officers antecedent to the charge being brought against the accused person, and its connection with the prosecution proceedings instituted, was the suggestion that the responsibility of the State was engaged in occasioning a violation of the accused person's fundamental right to personal liberty.

In such a case, there had to be produced clear evidence of a direct connection between the antecedent breach of the fundamental right of the accused not to be subjected to torture, or inhuman or degrading treatment and the decision to charge and prosecute him or her. The institution of the criminal prosecution had to be shown to have been a direct consequence of the precedent wrongful conduct of the State. In other words, it had to be a product of the outrageous conduct of pre-charge ill-treatment of the accused person by law enforcement agents.

According to the applicant, the use, by the public prosecutor, of information obtained from her by infliction of the treatment prohibited by section 15(1) of the Constitution, is evidence of the existence of the requisite direct connection between antecedent violation of the fundamental right and the criminal prosecution. The criminal prosecution was an outgrowth or fruit of the torture, inhuman, and degrading treatment to which she was subjected.

The contention advanced on behalf of the applicant, on the second ground, was premised upon an interpretation of the provisions of section 15(1) of the Constitution which recognises that the prohibition contains a rule, by which it imposes an obligation on public officers charged with the responsibilities of initiating and conducting criminal prosecution, and judicial officers who preside over them, not to admit or use information or evidence obtained from an accused person or any third party by torture, or inhuman or degrading treatment.

Three issues arise in this context for determination. They are:

(i) Whether or not section 15(1) of the Constitution contains a rule prohibiting the admission or use, in any legal proceedings, of information or evidence obtained from an accused person or defendant, or any third party, by infliction of torture or inhuman or degrading treatment.

(ii) On whom does the burden of proving the essential elements of the rule lie and what is the standard for the discharge of the onus.

(iii) What effect does a finding that the onus has been discharged have on the question of the contravention of the fundamental rights of the accused person protected under sections 13(1); 15(1) and 18(1) of the Constitution.

Section 15(1) of the Constitution and Evidence Obtained by Torture

The Court takes the first point for determination.

Its decision on the point is that section 15(1) of the Constitution contains the rule by which it imposes on the State, through its agents, the obligation not to admit or use, in any legal proceedings, information or evidence obtained from an accused person or defendant, or any third party, by torture, or inhuman or degrading treatment.

The reasons for the decision are these:

Article 15 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) (UN Convention on Torture) requires State parties to ensure “that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings except against a person accused of torture as evidence that the statement was made.”

Article 15 of the African Commission Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa and Article 16 of the Guidelines on the Role of Prosecutors, adopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders in Havana, Cuba on 27 August to 7 September 1990, are important.

They recognise the existence of an obligation on the public prosecutors not to use or rely on information, or evidence, obtained from an accused person, or any third party, by torture, or inhuman or degrading treatment to make decisions in the exercise of prosecutorial powers.

The relevance of the reference to the provisions of Article 15 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) is not in the substance of the obligation imposed on State parties.

It is on the principle of interpretation involved.

Of importance to the determination of the question before the Court, is the recognition and acceptance of the principle that the rules in Article 15 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) and the United Nations Guidelines on the Role of Prosecutors are based on the interpretation of Article 5 of the Universal Declaration of Human Rights (1948).

Article 5 of the Universal Declaration of Human Rights (1948) prohibits, in absolute and non-derogable terms, infliction of torture, inhuman or degrading treatment or punishment on any person.

The African Commission Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa are based on the interpretation of the relevant provisions of the African Charter on Human and People's Rights (1981).

Article 5 of the African Charter on Human and People's Rights (1981) prohibits torture, inhuman and degrading treatment or punishment of any person.

The principle of interpretation which emerges is that the fact that a stand-alone rule has been used to denote the meaning of a primary provision does not prevent a court interpreting the meaning of a primary provision in similar language as covering the matters explicitly dealt with in the rule if the meaning of the primary provision has not been explained by a similar rule.

The principle under consideration was applied by the European Court of Human Rights in Soering v United Kingdom (1989) 11 EHRR 439.

That Court held, on the interpretation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (“the ECHR”), that the prohibition by the Article was the basis for the rule against admission or use of information or evidence established to have been obtained or in respect to which there were substantial grounds for believing that it was obtained from the defendant, or a third party, by infliction of torture, inhuman or degrading treatment.

Considering the fact that Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (ECHR) did not spell out in specific terms, as did Article 3 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987), that no State “shall extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture,” the European Court of Human Rights, at para 88 of the judgment in Soering v United Kingdom (1989) 11 EHRR 439, said:

“The fact that a specialised treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 of the European Convention.”

The obligation on the State, through its agents, not to admit or use, in criminal proceedings, information or evidence obtained from an accused person, or any third party, by infliction of torture, inhuman or degrading treatment is not explicitly set out by a separate provision in the Constitution. It would be contrary to the object and purpose of the prohibition, under section 15(1) of the Constitution, to allow admission or use of such information or evidence in any legal proceedings.

A proper interpretation of section 15(1) of the Constitution, which takes into account the purpose and broadness of the language underlying the importance of the fundamental value protected, compels the Court to conclude that the obligation on the State not to admit or use information or evidence obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment in any legal proceedings attaches to the prohibition of such treatment by section 15(1) of the Constitution.

The obligation is inherent in the general terms of the section. It enjoys with the general prohibition the same qualities of being absolute and non-derogable.

The condemnation is more aptly categorised as a constitutional principle than as a rule of evidence.

The obligation is an exception to the general rule of evidence enacted by section 48(1) of the Civil Evidence Act [Chapter 8:01]]. That rule is to the effect that evidence of violation of a fundamental right or freedom is admissible in legal proceedings unless its admission would bring the administration of justice into disrepute: Paradza v Chirwa & Ors NNO 2005 (2) ZLR 94 (S)…,.; A & Ors v Secretary for State for Home Affairs [2005] UKHL 71…,.

At various stages of the whole process of proceedings by which the State deals with persons suspected of crime who are in the custody of public officers, the Constitution imposes duties for the protection of the fundamental rights of the suspect.

The primary duty is on the law enforcement agents not to abuse executive authority in the investigation of crime by torturing or treating suspects in an inhuman or degrading manner to extract information or confessions to be used against them in legal proceedings anticipated to follow the ill treatment.

If the duty fails to achieve its intended purpose at this stage, the law imposes the duty on public prosecutors not to admit or use information or evidence obtained from an accused person suspected of having committed a criminal offence, or any third party, by torture, inhuman or degrading treatment when making prosecutorial decisions.

If the duty fails at this stage, the law imposes the duty on judicial officers. Eventually, it lies with the Court to intervene, through the exercise of its original jurisdiction, to enforce or secure the enforcement of fundamental rights.

The rationale for the exclusionary rule is the protection of any person suspected of a crime, who is in the custody of a public officer, from torturous, or inhumane or debasing invasions of his or her dignity and physical integrity. Its object is to ensure that criminal prosecutions which are a direct consequence of the pre-trial illegality violative of fundamental rights of an accused person to freedom from torture, inhuman and degrading treatment are not used to give legitimacy to such conduct.

The rule has nothing to do with the fair determination of the guilt or innocence of the accused person.

Where there is independent evidence, which has been obtained lawfully, and on which reasonable suspicion of the accused person having committed the criminal offence with which he or she is charged is founded, an order of permanent stay of a criminal prosecution is not justified.

The rule represents a device designed to deter disregard for constitutional prohibitions and give substance to constitutionally protected fundamental rights.

The exclusionary rule, as a remedy for the enforcement of the protection of fundamental rights under the Constitution, is not intended to immunise an accused person from criminal prosecution for any action he or she is reasonably suspected of having committed which is provable at the trial by independent evidence lawfully obtained.

Information or evidence obtained from an accused person, or any third party, by torture, or inhuman or degrading treatment, if admitted or used in legal proceedings, would reduce section 15(1) of the Constitution to a mere form of words.

As JACKSON J put it, in the dissenting opinion in Korematsu v United States (1944) 323 US 214…, “once judicial approval is given to such conduct it lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

In People (Attorney-General) v O'Brien (1965) IR 142 KINGSMILL MOORE J, of the Supreme Court of Ireland, said that:

“To countenance the use of evidence extracted or discovered by gross personal violence would…, involve the State in moral defilement.”

In A & Ors v Secretary for State for Home Affairs [2005] UKHL 71…, LORD BINGHAM OF CORNHILL quotes from a report by MR ALVARO GIL-ROBLES, the Council of Europe Commissioner for Human Rights on his visit to the United Kingdom in November 2004 (8 June 2005 Comm. DH 2005) where he said:

“Torture is torture whoever does it; judicial proceedings are judicial proceedings, whatever their purpose - the former can never be admissible in the latter.”

Giving as a reason for holding, in S v Nkomo 1989 (3) ZLR 117 (S), that a court was under an obligation not to admit or use, in any proceedings, evidence of objects pointed out as part of confessions extracted from an accused person by torture McNALLY JA…, said:

“It does not seem to me that one can condemn torture while making use of the mute confession resulting from that torture, because the effect is to encourage torture.”

In A & Ors v Secretary for State for Home Affairs [2005] UKHL 71…, LORD BINGHAM OF CORNHILL quotes from the work on “The United Nations Convention Against Torture” (1988) where BURGERS and DANELIUS suggest…, that:

“…, it should be recalled that torture is often aimed at ensuring evidence in judicial proceedings. Consequently, if a statement made under torture cannot be invoked as evidence, an important reason for using torture is removed and the prohibition against the use of such statements as evidence before a court can therefore have the indirect effect of preventing torture.”

Lastly, in Mthembu v The State 2008 SCA 51 the South African Supreme Court of Appeal ruled that the admission of evidence obtained through the use of torture would compromise the integrity of the judicial process and bring the administration of justice into disrepute.

The reason given is that torture is barbaric, illegal and inhuman and is one of the most serious of human rights violations. That court applied the exclusionary rule against the admission or use of information or evidence obtained by torture in legal proceedings as an exception to the general rule contained in section 35(5) of the Constitution of South Africa.

The section provides that:

“Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render that trial unfair or otherwise be detrimental to the administration of justice.”

It is clear that the rationale for the exclusionary rule against the admission or use of information or evidence obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment, as contained in section 15(1) of the Constitution, is founded on the absolute obligation imposed on the State.

It is also founded on the revulsion which attaches to the source of such information or evidence, coupled with its offensiveness to civilized values, and its degrading effect on the administration of justice.

The rule applies even when the evidence is reliable and necessary to secure the conviction of an accused person facing serious charges.

The reliability, or probative value, of the information or evidence is irrelevant because its admissibility is prohibited in absolute and peremptory terms.

It is vital, in a society governed by the rule of law, that persons in the custody of public officials should not be subjected to ill-treatment of the level of severity prohibited by section 15(1) of the Constitution.

ONUS

The Court takes the second point for determination.

Its decision is that the onus is on the applicant to establish, on a balance of probabilities, that the information or evidence of the crime used by the public prosecutor to charge her with the criminal offence and prosecute her for it was obtained by the infliction of torture, inhuman and degrading treatment at the hands of the State security agents prior to the charge being brought against her.

The reason for the decision is that it is the accused person, or defendant, who has to raise the question of contravention of fundamental rights by the State. It is he or she who would have knowledge of what was done to him or her and what information was extracted as a result of the ill-treatment. It was then for the State to prove, beyond reasonable doubt, that the decision to charge the applicant with, and prosecute the criminal offence, was taken upon consideration of independent information or evidence of the crime lawfully obtained and on which reasonable suspicion of her having committed the criminal offence was based.

The applicant discharged the onus on her.

She established, by oral and affidavit evidence, that in bringing the charge of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] against her, and initiating the prosecution proceedings, the public prosecutor relied solely on information on the commission of the alleged criminal acts obtained from her, and a third party, by torture, inhuman and degrading treatment.

There was an inextricable link between the ill-treatment and the criminal prosecution.

No evidence was placed before the Court, by the respondent, to show that the decisions by the public prosecutor were based on independent evidence of the crime which was lawfully obtained.

It is important to emphasize the fact that the ordering of the exclusion of evidence obtained by torture or inhuman or degrading treatment assumes, implicitly, that the remedy does not extend to barring the prosecution based on evidence wholly untainted by the misconduct of the law enforcement agents.

It is also important to point out that where the allegations by the accused are contested by the State, it is the court before which the allegations are first made, or the trial court, which must hear the parties and decide question of facts.

Effect on Violation of Exclusionary Rule

Finally, the Court takes the third point for determination.

Its decision on this point is that, the effect of the finding that the public prosecutor relied on information or evidence of the commission of the alleged criminal acts obtained from the applicant by torture, inhuman and degrading treatment in deciding to charge her with, and prosecute her for the criminal offence, is that there was a breach of sections 15(1) and 13(1) of the Constitution.

The breach of section 13(1) of the Constitution lies not in the use of torture, inhuman and degrading treatment to obtain the information or evidence of the crime from the applicant. That is a breach of section 15(1) of the Constitution.

The violation of section 13(1) of the Constitution lies in the use of, or reliance, by the public prosecutor, on the information or evidence obtained by torture, inhuman and degrading treatment for the purposes of making the prosecutorial decisions.

Had the public prosecutor rejected the information or evidence of the crime obtained from the applicant by torture, inhuman and degrading treatment, there would have been a violation of section 15(1) of the Constitution but no breach of section13(1) - provided the criminal prosecution was supported by a reasonable suspicion of her having committed the criminal offence with which she was charged.

The reason is that the criminal prosecution would be a proceeding for the proof, beyond reasonable doubt, of the guilt of the accused person of the crime with which he or she is charged, based on no more or less evidence of the criminal acts than was available at the time of their commission.

The criminal prosecution was a direct consequence of the violation of section 15(1) of the Constitution.

The absolute and non-derogable fundamental right of the applicant, not to have information or evidence of the crime obtained from her, or any third party, by torture, or inhuman or degrading treatment used or relied upon by the public prosecutor in making the prosecutorial decisions to charge her with the criminal offence, and institute the criminal prosecution, was contravened.

There was also a violation of the applicant's fundamental right to the protection of the law guaranteed by section 18(1) of the Constitution.

By acting in the manner he did, the public prosecutor failed to act in accordance with the requirements of the protection of the fundamental rights prescribed by sections 15(1) and 13(1) of the Constitution.

He acted in breach of the principle of the rule of law.

It is clear from the facts that, at the time the State security agents kidnapped the applicant from home and later detained her at the secret place, they did not have reasonable suspicion of her having committed the criminal offence she was later charged with. They then used torture, inhuman and degrading treatment, during interrogation, to extract from her information or evidence on which they expected that the public prosecutor would act as a basis of a reasonable suspicion of her having committed the criminal offence with which she was then charged.

The effect of the operation of the exclusionary rule is that the whole conduct of the State security agents, in kidnapping and detaining the applicant, and subjecting her to torture, inhuman and degrading treatment, was a violation of the fundamental rights guaranteed to her by section 13(1), 15(1) and 18(1) of the Constitution.

It also shows that the criminal prosecution was a direct consequence of the violation of section 15(1) of the Constitution thereby engaging the responsibility of the State in the contravention of sections 13(1) and 18(1) of the Constitution.

In so far as the applicant suggested that she should not be prosecuted because her presence in court followed her unlawful arrest or kidnapping and ill-treatment by State security agents, she could not claim immunity from prosecution on those grounds alone because her body is not a suppressible fruit and the illegality of her detention and treatment could not deprive the Government of the opportunity to prosecute her and prove her guilt on independent evidence wholly untainted by the misconduct of law enforcement agents; United States v Crews 445 US 463 (1980)…,; Key v Attorney General & Anor 1996 (4) SA 187 (CC)…,.

COSTS

The Court takes the question of costs for determination.

Its decision on this point is that there be no order as to costs. The reasons for the decision are these:

Section 24(4) of the Constitution gives the Court a wide discretion as to the choice of a practical and effective remedy which can appropriately redress a violation of a fundamental human right or freedom.

An order of permanent stay of the criminal prosecution was considered by the Court to be the appropriate remedy for the redress of the violation of the applicant's fundamental rights. The violation would otherwise have continued: In re Mlambo 1991 (2) ZLR 339 (S)…,.

In selecting an appropriate remedy under the Constitution, the primary concern of the Court must be to apply the measures that will best vindicate the values expressed in the Constitution and to provide the form of remedy to those whose rights have been violated that best achieves that objective. This flows from the Court's role as guardian of the rights and freedoms which are entrenched as part of the supreme law of the country: Osborne v Canada (1991) 82DLR (4th) 321…,.

Costs are in the discretion of the Court.

It is permissible, in cases of this nature, to order that costs incurred should follow the event: Bull v Attorney-General of Zimbabwe 1987 (1) ZLR 35 (S).

Nonetheless, a constitutional question was raised with regard to which the answer was not self-evident.

The question whether section 15(1) of the Constitution imposes an absolute and non-derogable obligation on the State, through its agents, not to admit or use information or evidence of the crime obtained from an accused person, or defendant, by infliction on him or her, or any third party, of torture, or inhuman or degrading treatment had not been raised and exhaustively determined by the Court before.

The opportunity arose for the Court to clarify the law on the fundamental right of a person accused of a crime not to have information, or evidence, obtained from him or her by infliction of torture, or inhuman or degrading treatment admitted or used against him or her in any legal proceedings.

The legal question had to be clarified not only for the benefit of accused persons in similar circumstances. It has been clarified for the benefit of public prosecutors and judicial officers.

The victor is therefore not the applicant but the administration of justice.

The respondent did not challenge the correctness of the factual basis of the constitutional question. He properly took the view that the resolution of the legal question was in the public interest. The Court considers that the respondent should not be penalised by an order of costs.

There will be no order as to costs.

On 12 December 2011, the applicant filed an application in this court under Case No. HC12336/11 seeking a prohibitory interdict against the respondents.

The remedy sought was to prevent the respondents from moving or accepting any motion from any member of the House of Assembly to dismiss the applicant without the matter of his dismissal first being brought before the Committee on Standing Rules and Orders (CSRO) or its sub-committee or other independent and impartial disciplinary authority.

On realising that, despite having filed the aforesaid application, the respondents were determined to proceed with the motion to have him dismissed, the applicant filed the instant urgent application whose amended interim relief is couched in the following terms:-

“1. Pending the determination of the Court Application under Case Number HC12336/11 the respondents are prohibited, restricted, and interdicted from continuing to debate and voting on any motion to dismiss the applicant.

2. Pending the determination of the Court Application under Case Number HC12336/11, any debate, voting, or decision on the motion to dismiss the applicant, with or without amendments, be and is hereby declared null and void ab initio and therefore of no force and effect.”...,.

ON MERITS

Having disposed of the preliminary points raised, I wish to focus on the substantive issues raised by the parties in this application.

The fundamental guiding principle in this case was eloquently summed up by Mr Shepherd Mushonga, the fourth respondent, when he put it in the following words:-

“The principle of separation of powers is he hallmark of a constitutional democracy which entails that the three (3) arms of State, namely, Parliament, the Executive, and the Judiciary are separate and independent of each other in so far as the exercise of their powers is concerned.

The Constitution vests Parliament with the powers to regulate its own affairs. Parliament exercise judicial powers in respect of certain matters that fall within its domain to the exclusion of the Courts.”…,.

I applaud the sentiments and indeed associate myself with same.

Be that as it may, one needs to appreciate the often overlapping function that characterize the legislature, the Executive, and the Judiciary.

Whilst these three arms of Government must enjoy their independence, they do not exist outside each other. They play a complimentary role.

The sovereignty of Parliament, or, to put it simply, the power enjoyed by Parliament is not absolute, for if it were so the citizens would be extremely vulnerable. It would mean that Parliament would do virtually everything it desired, including violating its own Rules and Regulations, to the detriment of its citizen with impunity. Such a scenario, in my view, would not be tenable. There must be some control mechanism through which Parliament is to be held accountable by disgruntled citizens: see The British Constitution by J.S. DUGDALE, M.A, published by Bath James Brodie Ltd, London 1962…,.

From my reading of the applicant's urgent chamber application, and the notices of opposition filed by the respondents, I discern the following issues to be pertinent and decisive in this matter;

(a) Whether or not the House of Assembly violated Standing Order 62(d) of the House of Assembly Standing Orders by continuing to debate and voting on the motion to dismiss the applicant after the applicant had filed case no HC12336/11.

(b) Whether or not the Members of Parliament have locus standi to initiate the applicant's dismissal in the manner that they have done in this case.

(c) Whether or not the House of Assembly, through the active participation of the respondents, used illegal means to initiate the dismissal of the applicant.

(d) What is the correct procedure which should be used to initiate the dismissal of the applicant?

(e) Whether or not the amended motion proposed on 14 December 2011, and eventually adopted by the House of Assembly, cures the defects which are of concern to the applicant.

Having identified the issues, I propose to deal with them in seratium.

(a) Alleged violation of Standing Order 62(d)

It was contended, by the applicant, that, after he had filed his application in this court seeking, among other things, to interdict the respondents from continuing to debate on the issue of his dismissal, and to force compliance with proper disciplinary procedures, the House of Assembly was obliged to follow the dictates of Standing Order 62(d) of the House of Assembly Standing Orders.

In countering this argument, the respondents argued that the existence of a court application could not operate as a bar to the conduct of Parliamentary business and that only a court order had the capacity to stop further debate on the motion that was already before the House.

The argument, by the respondents, in this regard, is quite pronounced in paragraph 8 of the joint Notice of Opposition filed by the first, second, fifth, sixth and seventh respondents.

In supporting the same argument, the fourth respondent, on his behalf and also duly authorised by the third respondent, re-affirmed the position that Parliamentary debate on the issue could not be stopped by the Court application alluded to by the applicant.

It is evident from the Hansard of the day that the members of the House offered conflicting views on this issue.

It is necessary to refer to the specific section in issue. The section reads as follows:-

“62 No member shall, while speaking to a question…,.

(d) Use derogatory, disrespectful, offensive or unbecoming words against the Head of State, Parliament or its members, the Speaker, nor reflect upon a statute unless for the purposes of moving for its repeal; nor shall a member refer to any matter on which a judicial decision is pending;”…,.

It appears to me that if one were to concentrate on the ordinary grammatical meaning of the Standing Order in question one would find it extremely difficult not to understand what the House intended when it crafted these rules of debate.

It is trite that in interpreting statutes the very basic approach is first to ascribe to the words used their ordinary grammatical meaning.

It is clear to me that the Standing Order referred to simply meant that when a matter is pending before the Courts, or when a matter is sub judice, House members are obliged to respect the Court process until a determination on that matter is made.

In this regard, I feel more inclined to lean on the views of the learned judge VAN DEN HEEVER JA when he remarked on the use of the word 'shall' as follows:-

“If a statutory command is couched in such peremptory terms it is a strong indication, in the absence of considerations pointing to another conclusion, that the issuer of the command intended disobedience to be visited with nullity”: Messenger of the Magistrate's Court. Dupbata v Pillay 1952 (3) SA 678 (AD)…,.

It will be noted that during debate on the issue, those who spoke in favour of proceeding with the tabled motion suggested, strangely so in my view, that the members of the House could only be stopped from debating the issue if, at the time, there was a Court order barring them from so acting.

With respect, the Standing Order in question does not say what the respondents, and those who contributed in support of the motion, desire it to mean. If Parliament intended the Standing Order to mean what the respondents say, surely Parliament could have had no difficulty in crafting the Standing Order to that effect.

It is not in dispute that the respondents, despite having been duly served with case no. HC12336/11 continued to debate the motion in complete defiance or violation of the Standing Order in question.

This belligerent attitude displayed by the respondents can only lead to one inevitable conclusion. That disobedience by the House of its own Standing Orders must be visited with “nullity” over what it did because it was not competent for the House to stubbornly ignore the clear provisions of section 62(d) of the House of Assembly Standing Orders.

(b) Did the Members of Parliament (the respondents inclusive) have locus standi to initiate the applicant's dismissal in the manner they did?

The applicant's case, in this regard, is that he is constitutionally appointed by the Committee on Standing Rules and Orders (CSRO) chaired by the Speaker of the House of Assembly. He likened the Committee on Standing Rules and Orders (CSRO) to a Board of Directors in a company set up and the Members of Parliament to shareholders in a similar set up.

It was the applicant's position that it is this organ of Parliament (CSRO) which is mandated to supervise him in the execution of his duties and that it should therefore be this body which should initiate disciplinary proceedings against him, as opposed to Parliamentarians, should the need arise.

The applicant also argued that, in his belief, section 48(2) of the Constitution does not preclude section 57 of the Constitution, the House of Assembly Standing Orders, Officers of Parliament (Terms of Service) Regulations 1977 and the Labour Act, from regulating his employment relationship with Parliament.

The respondents argued that it was within the power of Parliamentarians to initiate the applicant's dismissal and that the officers of Parliament (Terms and Service) Regulations 1977 and the Labour Relations Act are not applicable to the applicant.

Both counsels for the respondents…, argued, to my satisfaction, that the applicant, being a Constitutional appointee is not covered by the Labour Act and that his attempt to seek refuge in the Labour Act may have been misplaced. I agree.

In advancing this argument, reliance was placed on section 3 of the Labour Act [Chapter 28:01] which is self-explanatory and reads as follows:-

“3. Application of Act

(1) This Act shall apply to all employers and employees except those whose conditions of employment are otherwise provided for in the Constitution.”

I did not hear the applicant to have attempted to rebut this watertight argument. This argument was therefore conclusively made in favour of the respondents.

In order to appreciate whether or not the respondents, and other members of Parliament, have locus standi to initiate disciplinary proceedings against the applicant there is need to look closely on the office of the applicant.

The office of the applicant is created by section 48(1) of the Constitution of Zimbabwe and that section reads:-

“48. Clerk of Parliament and other staff

(1) There shall be a Clerk of Parliament appointed by the Committee on Standing Rules and Orders.”…,.

Section 57(2) of the Constitution then goes further to define, in an exhaustive manner, the composition of the Committee on Standing Rules and Orders (CSRO).

I do take the argument raised by counsel for the first, second, fifth, sixth, and seventh respondents that the Committee on Standing Rules and Orders (CSRO) is not a stand alone body but it is an organ of Parliament.

Despite this, however, it must be appreciated that the legislature has given the Committee on Standing Rules and Orders (CSRO) the mandate to appoint the applicant, and, consequently, the power to supervise him and other staff members of Parliament.

I see the Committee on Standing Rules and Orders (CSRO) as the administrative arm of Parliament.

If it is accepted that the Committee on Standing Rules and Orders (CSRO) is constitutionally mandated to appoint the applicant, then, surely, it must be to this same body that the Constitution reposes the power to initiate the dismissal of the applicant by following due process.

Because the Clerk of Parliament is a professional person whose life goes beyond the life of Parliament his supervision cannot be left in the hands of every Member in the august House who incidentally do not appoint him.

The view that I take is that the body which appoints the applicant is the same body that must supervise him. It is this same organ that must enjoy the prerogative to initiate disciplinary proceedings against him.

I am fully cognisant of the existence of section 48(2) of the Constitution and I intend to deal with its application and implications in greater detail later in this judgment.

If my reading of the role of the Committee on Standing Rules and Orders (CSRO) vis-a-vis the applicant is correct (which I am certain it is) then it goes without saying that the respondents must have lacked locus standi to initiate the motion, debate, and vote on it to determine the fate of the applicant. In so doing, the respondents violated the Constitutional provisions dealing with the appointment and supervision of the applicant, and, consequently, their actions were illegal.

As I will demonstrate in this judgment, there are grave consequences that would remain visible if the respondents conduct is not interfered with by this Court.

(c) and (d) The correct procedure in initiating the dismissal of the applicant

I intend to deal with issues (c) and (d) together.

To fully understand the fear that gripped the applicant in this case, one needs to understand the motion that was tabled for debate in Parliament.

Following numerous allegations which touched on the alleged shortcomings of the applicant in the execution of his duties as the Clerk of Parliament the motion that eventually stood, in the name of the third respondent, was worded as follows:

“Now, therefore, this House places on record its disapproval of the untoward behaviour and actions exhibited by the Clerk of Parliament, Mr Austin Zvoma, and further resolves to invoke provisions of 48(2) of the Constitution of Zimbabwe to dismiss Mr Austin Zvoma from the service of Parliament forthwith through a secret ballot process – Hon Tshuma”…,.

The wording of the motion shows the inherent dangers of allowing the respondents, and other Parliamentarians, to determine the fate of the applicant.

The motion, as it stood, had no provision for proper disciplinary proceedings, yet, the right to be heard, even for a murderer, is one of the core values of the rules of natural justice.

As already alluded to elsewhere in this judgment, section 48(1) of the Constitution of this country has vested the power to appoint a Clerk of Parliament (the applicant) not to every Member of Parliament but to a special organ of Parliament called the Committee on Standing Rules and Orders (CSRO) which organ is tasked to supervise not only the applicant but also other staff members of Parliament who are appointed in terms of section 48(3) of the Constitution.

Section 48(4) of the Constitution then gives Parliament the power to formulate terms or conditions of service for the staff members. The officers of Parliament (Terms of Service) Regulations 1977 were approved by Parliament in terms of this section. These Rules cover, in sufficient detail, the appointment procedure, conditions of service including the procedure to be adopted in the termination of the employee's service should the need arise.

It is pertinent to note that in terms of Part 1 of the Officers of Parliament (Terms of Service) Regulations, 1977 it is stated that “the staff of Parliament shall in addition to the Clerk of Parliament, consist of such officers…,.”

The Regulations go on to identify these other officers or employees as specified in the Regulations.

I do not read this section to exclude but to include the person in the position of the applicant.

A simple perusal of the Regulations concerned clearly show that the administration of the staff members of Parliament, as well as their appointments, is vested in the Committee on Standing Rules and Orders (CSRO).

The Rules, in so far as they deal with the disciplinary proceedings of the staff members of Parliament, are clear and they do not require any complicated interpretation.

The Speaker of the House of Assembly (first respondent) is firmly empowered by the Rules to initiate any enquiry against any of the staff members of Parliament who incidentally include the applicant.

There does not seem, in my view, to be any room for the Committee on Standing Rules and Orders (CSRO), through the Speaker of the House of Assembly, to relinguish or to delegate its administrative functions to the ordinary members of Parliament. This appears to me to have been done for obvious reasons. Ordinary members of Parliament do not appoint the staff of Parliament and the applicant and may not have the capacity or ability to supervise the employees in their day to day activities.

There seems to be greater wisdom in dealing with disciplinary proceedings in terms of the regulations of Parliament. That procedure comments itself in that before anyone is condemned, the individual is given an opportunity to explain his conduct in line with the much cherished and time honoured principle of the audi alteram partem.

It occurs to me that it is only when the Committee on Standing Rules and Orders (CSRO) has conducted a proper inquiry against the applicant, and the applicant found to be guilty, that the Speaker can then advise Parliament in terms of section 48(2) of the Constitution. It is only then that the House of Assembly can then resolve, by the affirmative votes of more than one-half of its total membership, to have the applicant removed.

Anything short of this would be illegal and any finding in support of the approach taken by Parliament would amount to this Court sanctioning Parliament to act in breach of its own Regulations.

This Court did not make the Parliament regulations in question. It was Parliament, in its own wisdom, which made them and the members of Parliament must be seen to be complying with such Regulations.

Having said this, I have not the slightest hesitation in concluding that, Parliament, in allowing the motion, debating on same, and voting on it, clearly overstepped its authority. This is so because the voting that is referred to in section 48(2) of the Constitution must be the end result of due process in the removal or dismissal of the applicant.

(e) Has the amended motion cured the defect alluded to by the applicant?

During argument, it was suggested to me by the two counsels representing the respondents that the seemingly rough edges of the motion that triggered debate in Parliament…, was ultimately refined by the amendment that was proposed by the fourth respondent and subsequently adopted by the House thereby removing the defect complained of by the applicant.

I am not persuaded by this argument.

It completely misses one fundamental issue in these proceedings. The issue is that the respondents or Parliament, as a body, did not have the power to do what it did.

Even if I were to assume, for a moment, that the respondents, and Parliament in general, had such powers, one needs to look at the resolution that was eventually passed, with particular regard to the terms of reference of the proposed five member committee, to appreciate the fallacy of the position taken by the respondents.

The House concluded by proposing the appointment of a special five (5) member committee whose terms of reference is as follows:-

“(a) The special five member committee is to make recommendations to the full House on its findings whether:

(i) To terminate immediately the Clerk of Parliament's contract of employment.

(ii) To suspend without pay for a period of time.

(iii) To demote and/or reprimand the Clerk of Parliament…,.”

The terms of reference, on their own, make it impossible for the committee of five (5) to approach the inquiry with an open or impartial mind. Their mandate is simply to find the applicant guilty at all cost and consider the nature of punishment to be meted out against him. Such an approach clearly represents kangaroo proceedings which must not be allowed to happen within the precincts of the supreme law making body of this country – Parliament.

If allowed to happen, this would be a clear violation of the applicant's constitutionally recognised right to be afforded a fair hearing before an impartial body. The applicant's apprehension is clearly justified and Parliament must not be allowed to stampede on his rights with impunity.

During submissions I was referred to two very important decisions in this country for guidance, viz the case of Bennett v Mnangagwa N.O. & Ors 2006 (1) ZLR 218 (S) and the case of Mutasa v Makombe N.O. 1997 (1) ZLR 330 (S)…,.

These two cases were referred to me as authority for the re-affirmation of the doctrine of the separation of powers and generally as authorities demonstrating the reluctance of Courts to interfere in the internal processes of Parliament in regulating its own practices and procedures.

With respect, I believe reference to these two cases missed one fundamental issue.

In both cases, Parliament was dealing with the punishment of its members for contempt of court.

There is no doubt in my mind that Parliament, by its very nature, and largely as a result of the doctrine of the separation of powers, enjoys quite some latitude in dealing with its own members, but, even in such circumstances, the cited cases clearly show that where Parliament's conduct exceeds the bounds of reasonable justification the Courts will interfere with its decision: see the case of Smith v Mutasa N.O. & Anor 1989 (3) ZLR 183 (SC).

But, the main line of distinction between these cases and the applicant's case is that the applicant is not a Member of Parliament but a professional in the employment of Parliament. There is no way the applicant can be treated like a politician or a Member of Parliament.

As already highlighted, Parliament's involvement in the treatment of a person in the position of the applicant is greatly curtailed and is clearly limited by the provisions of section 48(2) of the Constitution not as a starting point but as the end result after a proper enquiry has been carried out and concluded in terms of the applicant's contract of employment, and that action having been initiated by that organ which appoints and supervises him – the Committee on Standing Rules and Orders (CSRO).

So, really, reference to these cases was clearly out of context.

In conclusion, I wish to point out that, Parliament, because of its unique position as the supreme law-making body must project itself as the epitome of fair play. It must demonstrate to the citizens of this country the importance of complying with its own rules and regulations. It visibly came short in this regard, and, because of this, its processes scream for interference by this Court.

In Smith v Mutasa N.O. & Anor 1989 (3) ZLR 183 (SC) the full Supreme Court bench unanimously agreed to reverse the decision of the Parliament in depriving the appellant of his salary and allowances.

The interference by the Courts with the activities of Parliament, (respondents inclusive), must be seen as a desperate clarion call by the Court to insist on Parliament conducting its affairs above board.

I am satisfied that the applicant's apprehension, as captured in his papers, is more than justified. He stares irreparable harm to his employment if corrective action, as prayed for, is not taken.

I accordingly grant the following order:-

1. Pending the determination of the Court Application under case number HC12336/11 the motion passed by Parliament, as amended, be and is hereby declared to be null and void ab initio and therefore of no force and effect.

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").

The appellants, as the applicants in the court a quo, sought the following relief set out in the draft order:

"WHEREUPON after perusing the documents filed of record and hearing counsel, it is hereby declared that:-

1. The election of (the) second respondent as the Speaker of the Parliament of Zimbabwe on 25 August 2008 is null and void and set aside.

2….,.

3. That the respondents jointly and severally pay the costs of suit."

(The applicants abandoned the relief set out in paragraph 2).

The appellants' main contention in the court a quo, and in this Court, is that the election of the Speaker was null and void because it was not conducted in terms of section 39 of the Constitution of Zimbabwe (hereinafter referred to as "the Constitution"), as read with Standing Order 6 of the Standing Orders of Parliament of Zimbabwe (hereinafter referred to as "the Standing Orders").

PATEL J dismissed the application. The appellants now appeal against that judgment.

The grounds of appeal are set out in the Notice of Appeal, which, in relevant part, reads as follows:

"Grounds of Appeal

1. The learned Judge a quo erred in finding that a proper election of Speaker of Parliament was conducted in terms of the Constitution and the law.

2. The learned Judge erred in condoning the first respondent's failure to implement and enforce his own procedures for the election.

3. The learned Judge a quo erred in finding that the participants' exposure of their completed ballot papers was not a violation of the secret ballot.

4. The learned Judge a quo erred in finding that a secret ballot took place.

5. The learned Judge a quo erred in interpreting section 39(2) of the Constitution, as read with Ordinance 6 of the House of Assembly Standing Orders, as directory and not peremptory."

The grounds of appeal set out in the Notice of Appeal, as read with the record and submissions by counsel, raise essentially the following two issues for determination in this appeal –

(a) Whether the exposure of the secret ballot before the depositing of the ballot papers in the ballot box by some Members of Parliament amounts to a violation of the voting by secret ballot, and, if so, whether that rendered the election of the Speaker null and void; and

(b) Whether the failure by the Clerk of Parliament of Zimbabwe (hereinafter referred to as "the Clerk") to control the voting process and the consequent chaotic conditions constitute a failure by the Clerk to conduct an election in terms of section 39 of the Constitution, as read with the Standing Orders.

The background facts of this case are as follows:

The first respondent is the Clerk of the Parliament of Zimbabwe. Pursuant to Proclamation No.7 of 2008, the Clerk convened the first meeting of Parliament on 25 August 2008 for the purposes of swearing in the Members of Parliament and electing the presiding officers.

The Clerk's mandate to conduct these elections is derived from the Standing Orders – in the case of the House of Assembly, Standing Order No.6.

Two candidates were nominated for the office of Speaker, namely, Mr Paul Themba-Nyathi (hereinafter referred to as "Nyathi") and the second respondent (hereinafter referred to as "Moyo").

Standing Order No.6 provides that if more than one person is proposed as Speaker of Parliament, the Clerk shall conduct an election of the Speaker by ballot box.

The election took place and the Clerk announced that Nyathi had garnered ninety-eight votes and Moyo had garnered one hundred and ten votes. The Clerk accordingly declared Moyo the winner. Moyo assumed the office of Speaker.

The appellants want the election of Moyo as Speaker set aside.

I now wish to deal with the issue of whether the election was conducted by secret ballot as is required by section 39 of the Constitution, as read with Standing Order No.6 of the Standing Orders.

The appellants contend that some Members of Parliament from the MDC-T party, having marked their ballot papers in the secrecy of the polling booths, openly displayed their marked ballot papers before depositing them in the ballot box. The appellants contend that the majority of the Members of Parliament from the MDC-T party did this, while the respondents' position is equivocal.

The court a quo, however, concluded that of the two hundred and eight Members of Parliament who voted, most probably only six Members of Parliament displayed their votes in the manner alleged by the appellants. The Members of Parliament who are named as having done this are the Honourable Biti, the Honourable Khupe, the Honourable Chambati, the Honourable Chibaya, the Honourable Denga and the Honourable Moyo, the second respondent. In this regard, the court a quo concluded as follows at p11 of the cyclostyled judgment (judgment no. HH28-10):

"It is fairly clear that Hon. Biti took the lead in brandishing his vote and that several of his colleagues were then emboldened into emulating his possibly impolitic example. However, they did so of their own free will and, more significantly, they did so after having cast their votes in secret."

The conclusion of the court a quo that at least the six Members of Parliament named displayed their ballot papers after marking them but before depositing the ballot papers in the ballot box cannot be faulted.

This conclusion is fortified by the following factors:

It is specifically alleged by the appellants that Moyo displayed his ballot paper before depositing it. Moyo filed an affidavit in this case in which he does not deny this allegation. Five other Members of Parliament are named as having displayed their ballot papers before depositing them in the ballot box. None of these five Members of Parliament have deposed to affidavits denying the allegation.

In my view, it would have been easy for Moyo to secure such affidavits from the named Members of Parliament denying the conduct alleged. Moyo, instead, filed an affidavit from a Member of Parliament, the Honourable Mpariwa, in respect of whom no such allegation was made. The Honourable Mpariwa does not deny that the named Members of Parliament had conducted themselves in the manner alleged by the appellants. Indeed, if anything, she appears to concede that that in fact did occur.

In the result, I agree with the conclusion of the court a quo that at least six Members of Parliament displayed their ballot papers after marking them but before depositing them in the ballot box.

Having concluded that at least six Members of Parliament displayed their ballot papers before depositing them in the ballot box, the issue that falls for determination is the legal consequences of such conduct.

Section 39 of the Constitution provides as follows:

"(2) The Speaker shall be elected in accordance with Standing Orders from among persons who are or have been members of the House of Assembly and who are not members of the Cabinet, Ministers, or Deputy Ministers:

Provided that a person who is not a member of the House of Assembly shall not be elected as the Speaker unless he is qualified in accordance with Schedule 3 for election to the House of Assembly."

Standing Order 6 of the Standing Orders provides as follows:

"If more than one person is proposed as Speaker, the Clerk shall conduct the election of Speaker by a secret ballot."…,.

The Clerk issued specific instructions on how the secret ballot was to be conducted. According to the second appellant, Moses Mliza Ndlovu, the Clerk issued the following instructions:

"4. The first respondent announced the procedure to the effect that according to the Standing Rules, an election would be held by secret ballot. To this extent, he assured the Honourable Members present that all necessary provisions had been made to guarantee the secrecy of the ballot.

5. The first respondent then explained that in terms of the procedure, he would issue a ballot paper to each Member present. Thereafter, the Member would put a mark against the name of the candidate the Member would wish to be the Speaker of Parliament.

6. The ballot paper had two candidates for Speaker of Parliament, namely, the second respondent nominated by the Movement for Democratic Change (Tsvangirai) (MDC-T) and Mr Paul Themba-Nyathi nominated by the Movement for Democratic Change (MDC).

7. The first respondent then explained that the ballot paper, having been duly marked in secret in a booth, would be folded by the voting Member and deposited in a ballot box.

8. The first respondent then explained that, having cast the vote, the Honourable Member would then leave the House."

The Clerk does not deny that the above accurately reflects the instructions he gave. From the above, three essential elements of the secret ballot emerge –

(a) Each Member of Parliament was to be issued with a ballot paper;

(b) Each Member of Parliament was to mark the ballot paper in the privacy or secrecy of the polling booth; and

(c) Having marked the ballot paper in secret, the Member of Parliament was to fold the ballot paper to maintain the secrecy of the vote and deposit it in the ballot box, thus completing the process of secret voting.

It admits of no debate that the Clerk would then be required to count the vote to complete the process.

In my view, the counting of the votes cast is an essential part of the process of the election by secret ballot….,.

The appellants' case is that Standing Order 6 is peremptory and enjoins the Clerk to conduct an election of the Speaker by secret ballot.

Counsel for the appellants submitted that the display of the ballot papers before depositing them in the ballot box, by some Members of Parliament, is an aberration from the provisions of section 39 of the Constitution, as read with Standing Order 6 of the Standing Orders. He argued that such aberration rendered the election of the Speaker null and void.

Ms Damiso and Mr Chaskalson, for the respondents, submitted that the appellants' complaint is based on a fundamental misconception relating to the nature of a secret ballot.

They submitted that when an election takes place, by secret ballot, each voter has the right to have his or her vote kept secret. This right to secrecy, like any other right, can freely be waived by a voter who chooses to make known how he or she voted. The fact that any voter chooses to disclose how he or she voted cannot in itself compromise the secrecy of the ballot. They submitted that it is only when a voter is factually prevented from maintaining the secrecy of his or her vote that there is a violation of the secrecy of the ballot. On this basis, they argued that the display by six Members of Parliament of their ballot papers before depositing the ballot papers in the ballot box is not a violation of the principle of a secret ballot.

This argument found favour with the learned Judge in the court a quo. In this regard, he had this to say at p11 of the cyclostyled judgment:

"Having regard to the dictionary definitions and the case authorities cited by counsel, the gravamen of a secret ballot, in my view, is that each voter is enabled to cast his vote privately and in secret, without fear of having his voting choice identified or ascertained by others. In this respect, it is incumbent upon the regulating authority to provide the requisite wherewithal for that purpose. The courts should not interfere unless it is shown that the objective conditions put in place for the election precluded the possibility of a secret vote. Beyond this, it is then a matter purely for the individual voter if he chooses to divulge, whether publicly or in private, the specific manner in which he has cast his vote. If he does so of his own volition, without any external coercion or intimidation, and howsoever his conduct might influence other voters, this cannot detract from the secrecy of his vote or vitiate the secrecy of the ballot as a whole."

It was further argued that all that was required of the Clerk was for him to provide the guarantee that Members of Parliament voted in secret if they so wished. Those who wished to penetrate the veil of secrecy, as did the six Members of Parliament, were entitled to do so without contaminating the process.

In support of the above contention, both counsel for the respondents placed reliance on the case of Steel and Engineering Industries Federation and Ors v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (T)…, and on the case of J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920)…,.

Mr Chaskalson, in particular, submitted that the right to secrecy of the ballot, like any other right, can freely be waived by any voter who chooses to make known how he or she voted. He further submitted that this point has been made clear by United States judgments dealing with unsuccessful challenges to electoral laws. For this submission, he relied on the following remarks of BROWN J in J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920)…,:

"…, this privilege, of voting a secret ballot, has been held to be entirely a personal one. The provision has been generally adopted in this country for the protection of the voter, and for the preservation of his independence, in the exercise of this most important franchise. But, he has the right to waive his privilege and testify to the contents of his ballot. The voter has the right, at the time of voting, voluntarily to make public his ballot, and its contents in such case may be proven by the testimony of those who are present. Public policy requires that the veil of secrecy shall be impenetrable unless the voter himself voluntarily determines to lift it."

Mr Chaskalson also relied on the following passage from State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932)…,:

"…, it has been uniformly held that under such provisions as that contained in section 6 of Article VI of our Constitution the elector cannot be compelled to violate the right of secrecy of his ballot but the great weight of authority is to the effect that such constitutional provision guarantees a personal privilege which might be waived. In State vs Anderson 26 Fla 240, 8 So 1, this Court, speaking through MR CHIEF JUSTICE RAINEY, said:

'The Constitution provides, section 6, Article VI, that in all elections by the people the vote shall be by ballot, and in those by the Legislature it shall be viva voce. The material guarantee of this constitutional mandate of vote by ballot is inviolable secrecy as to the person for whom an elector shall vote. The distinguishing theory of the ballot system is that every voter shall be permitted to vote for whom he pleases, and that no one else shall be in position (sic) to know for whom he has voted, or shall know unless the voter shall of his own free will inform him.': COOLEY's Constitutional Limitations m.p. 604 et seq."…,.

Further reliance was placed on the following passage from COOLEY's work Constitutional Limitations 7ed 912:

"The system of ballot-voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases and with what party he pleases and that no one is to have the right or be in position (sic) to question his independent action, either then or at any subsequent time. The courts have held that a voter, even in case (sic) of a contested election, cannot be compelled to disclose for whom he voted; and for the same reason we think others who may accidentally, or by trick or artifice, have acquired knowledge on the subject should not be allowed to testify to such knowledge, or to give any information in the courts upon the subject. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it; his ballot is absolutely privileged…,."

Mr Chaskalson further submitted that the fact that any voter chooses to disclose how he or she voted cannot compromise the secrecy of the ballot. He argued that if this were the case secret ballots would be open to abuse by voters who, fearing that their candidates were at risk of losing the election, could invalidate a vote by merely waving their ballots about. It is only when a voter is factually prevented from maintaining the secrecy of his vote or her vote that there is a violation of the secrecy of the ballot. He further argued that on the facts of this case there is no suggestion of any such violation of the secrecy of the ballot. Consequently, the primary complaint of the appellants must be rejected.

The two cases cited by Mr Chaskalson, namely, J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920) and State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932), were concerned with the constitutionality of statutory provisions that permitted voting by absentee voters such as soldiers serving abroad. The basis of challenging the constitutionality of the statutes providing for the absentee voters was that they violated the secrecy of the ballot guaranteed by the State Constitution, Article VI section 6.

Section 6 of Article VI declared that all elections by the people shall be by ballot, and all elections by the General Assembly shall be viva voce….,.

The contention, which was dismissed in the above American cases in respect of which the above cited passages were made, was that statutes allowing absentee votes would of necessity lead to the identification of the voter, thereby violating the secrecy of the ballot guaranteed by the Constitution of the State of North Carolina. The ratio decidendi of the court, in dismissing the challenge, was that the impugned statutes, by allowing voters to vote by postal ballot, did not compel voters to disclose their votes leading to a breach of their right to voting in secrecy. The courts held that the impugned statutes simply provided the voter with a choice either to vote secretly by presenting himself or herself at the polling booth or vote by postal ballot if he so wished, thereby compromising the secrecy of his or her vote. The court held, in both cases, that a secret ballot is not compulsory so far as the voter is concerned, for the statute provides that the ballot may be deposited for the voter by the Registrar or by one of the judges of the election or by the voter himself if he so chooses.

I wish to make the following observations regarding the above cases.

The judgments cited above are judgments of foreign courts. They are not binding but they are persuasive. The higher the courts are in their jurisdictions the more persuasive are their judgments. The cited judgments are not from the highest courts in North Carolina.

The second observation I wish to make is that the courts in the cited cases were interpreting statutes in their jurisdictions. They were not making pronouncements on general jurisprudential principles.

When interpreting statutes, courts are guided primarily by the wording and the context of the statutes. A court should not simply translocate one court's interpretation of a statute in that court's jurisdiction to an interpretation of a statute differently worded in its own jurisdiction.

In the above judgments, the courts of North Carolina were interpreting Article VI section 6 of the Constitution of North Carolina, which provided that:

"In all elections by the people, the vote shall be by ballot, and, in those by the Legislature, it shall be viva voce."

The courts, in both J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920) and State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932) interpreted Article VI section 6 as conferring a right to vote in secret, which can be waived. They ascribed this meaning to Article VI section 6 despite the use of the peremptory word "shall" in the section. I have some doubts about the correctness of this interpretation.

Be that as it may, I accept the conclusion in those two cases that where a Constitutional provision confers on the voter the right to vote by secret ballot that right is intended to protect the voter and the voter has the right to waive that right without violating the secrecy of the ballot.

I also accept the proposition that public policy requires that the veil of secrecy shall be impenetrable unless the voter himself voluntarily determines to lift it: see also Boyer v Teague 106 NC 625; McRary on Elections 3ed…,; and Crolly Con. Lim. 7Ed…,.

However, section 39 of the Constitution, as read with Standing Order 6, is not a constitutional or statutory provision conferring the right to vote on a voter in the form of the Member of Parliament.

Section 39 of the Constitution, as read with Standing Order 6, prescribes how a particular officer in Parliament, namely, the Speaker, is to be elected. It expressly provides that if more than one person is proposed as Speaker the Clerk of Parliament shall conduct the election of the Speaker by a secret ballot. In other words, the use of the words "by a secret ballot" in the statute is prescribing the method by which a Speaker is to be elected.

The language is peremptory language.

It would be a different story if the wording of Standing Order 6 were to the effect: "If more than one Member is proposed Members of Parliament may vote by secret ballot to elect the Speaker."

The golden rule of interpretation is that one has to give the words of a statute their primary meaning.

If that rule is applied to Order 6 of the Standing Orders, then, the inescapable inference is that the Order is addressing the Clerk and is dictating to him the manner by which a Speaker should be elected.

In view of the explicit language of the statute, it is not open to the Clerk, or any Member of Parliament, to substitute the method of electing a Speaker with another method of their own choice, such as by open ballot. Put differently, it was not open, for instance, to Members of Parliament to tell the Clerk that they were waiving their right to vote for the Speaker by secret ballot or that they wished to vote for the Speaker by open ballot either individually or as a group. That option was not open to the Members of Parliament as a whole or to individual Members of Parliament.

Voting by secret ballot, as I have already stated, involves the following three essential procedures:

(i) Firstly, that each Member of Parliament receives a ballot paper;

(ii) Secondly, that each Member of Parliament indicates on that ballot paper the candidate of his choice in private and to the exclusion of the public; and

(iii) Thirdly, that, having done so, the Member of Parliament deposits his or her ballot paper into the ballot box privately without disclosing his or her ballot paper to the world.

Once the ballot paper has been deposited into the ballot box the process of voting by secret ballot, so far as the voter is concerned, is completed.

It would not be a violation of voting by secret ballot if the person discloses whom he has voted for at that stage. The voting by secret ballot by the voter is complete: see Steel and Engineering Industries Federation and Ors v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (T).

The next stage to complete the process provided for in terms of section 39 of the Constitution, as read with Standing Order 6, is for the Clerk to count the votes cast to determine the winner.

This stage, in my view, is an essential process in the election of the Speaker of Parliament by secret ballot:

Because of the peremptory language of section 39 of the Constitution, as read with Standing Order 6, the Clerk has no discretion over what procedure is to be followed when electing the Speaker. It has to be by secret ballot. The use of any other method to elect the Speaker would be a failure to comply with the provisions of section 39 of the Constitution, as read with Standing Order 6.

In casu, the appellants alleged that some Members of Parliament received ballot papers, marked the ballot papers in the privacy of the polling booth, and then, instead of folding the ballot papers to maintain the secrecy of their vote and before depositing them in the ballot box, they displayed them to fellow Members of Parliament to show them how they voted. Thereafter, they deposited the ballot papers in the ballot box.

The court a quo concluded that six Members of Parliament conducted themselves in this manner. The conclusion that only six out of the two hundred and eight voters voted in this manner is supported by the evidence and it cannot be faulted.

The learned Judge in the court a quo also concluded that the six Members of Parliament who displayed their votes complied with the requirement of a secret ballot because they were entitled to pierce the veil of secrecy without falling foul of section 39 of the Constitution, as read with Standing Order 6.

I respectfully disagree with the learned Judge in this regard.

The six Members of Parliament, by displaying their ballot papers before depositing them in the ballot box, violated the secrecy of their ballots, thereby rendering their votes invalid for the purposes of section 39 of the Constitution, as read with Standing Order 6. This rendered their votes ineligible for counting for the purpose of determining the election of the Speaker.

The Clerk proceeded to count these six votes as valid votes in determining the outcome of the election. This contaminated the process.

Put differently, he counted oranges and apples in a process where the law provides that only oranges be counted.

In short, the Clerk failed to act as directed by section 39 of the Constitution, as read with Standing Order 6, namely, to conduct an election by secret ballot. He conducted a cross-breed election, in that it was partly secret and partly open. That is not what the law provides for.

In this regard, I am satisfied that the Clerk failed to comply with the provisions of section 39 of the Constitution, as read with Standing Order 6.

Having concluded that the Clerk did not comply with the statutory requirements in his conduct of the election, the issue that falls for determination is, what are the legal consequences that flow from the failure to comply with the statutory provisions?

Section 39 of the Constitution, as read with Standing Order 6, has directed that the Clerk shall conduct an election of a Speaker by secret ballot but has not provided what should be the consequence of the non-compliance with this peremptory direction by Parliament.

This Court recently had occasion to deal with the issue of interpreting a statute that does not prescribe the consequences of non-compliance with a statutory provision in the case of Doctor Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor Judgment No. SC11-08.

In that case, I cited with approval a passage from BENNION Statutory Interpretation…, which sets out how courts should approach that issue.

The learned author states that a court charged with the enforcement of a statute that does not state the consequences of non-compliance needs to decide what consequence Parliament intended should follow from such failure to comply. In that case, I had this to say at pp21-23 of the cyclostyled judgment:

"It is the generally accepted rule of interpretation that the use of peremptory words such as 'shall' as opposed to 'may' is indicative of the legislature's intention to make the provision peremptory. The use of the word 'may' as opposed to 'shall' is construed as indicative of the legislature's intention to make a provision directory. In some instances the legislature explicitly provides that failure to comply with a statutory provision is fatal. In other instances, the legislature specifically provides that failure to comply is not fatal. In both of the above instances no difficulty arises.

The difficulty usually arises where the legislature has made no specific indication as to whether failure to comply is fatal or not.

In the present case, the consequences of failure to comply with the provisions of section 18 of the Zimbabwe Electoral Commission Act are not explicitly spelt out.

In those statutory provisions where the legislature has not specifically provided for the consequences of failure to comply, it has to be assumed that the legislature has left it to the Courts to determine what the consequences of failure to comply should be.

The learned author FRANCIS BENNION in his work Statutory Interpretation suggests that the courts have to determine the intention of the legislature using certain principles of interpretation as guidelines. He had this to say at pp21-22:

'Where a duty arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from breach of the duty.

This is an area where legislative drafting has been markedly deficient. Draftsmen find it easy to use the language of command. They say that a thing 'shall' be done. Too often they fail to consider the consequence when it is not done. What is not thought of by the draftsman is not expressed in the statute.

Yet the courts are forced to reach a decision.

It would be draconian to hold that in every case failure to comply with the relevant duty invalidates the thing done. So, the courts' answer has been to devise a distinction between mandatory and directory duties.

Terms used instead of "mandatory" include 'absolute', 'obligatory', 'imperative' and 'strict'. In place of "directory", the term 'permissive' is sometimes used. Use of the term 'directory' in the sense of permissive has been justly criticised: see CRAIES Statute Law (7th edn, 1971) p61 n74. However, it is now firmly rooted.

Where the relevant duty is mandatory, failure to comply with it invalidates the thing done. Where it is merely directory the thing done will be unaffected (though there may be some sanction for disobedience imposed on the person bound). {As to sanctions for breach of statutory duty see section 13 of this Code (criminal sanctions) and section 14 (civil sanctions)}.'

Thereafter, the learned author sets out some guiding principles for the determination of whether failure to comply with a statutory provision is fatal or a mere irregularity.

One of these guiding principles is the possible consequences of a particular interpretation. If interpreting non-compliance with a statutory provision leads to consequences totally disproportionate to the mischief intended to be remedied, the presumption is that Parliament did not intend such a consequence and therefore the provision is directory."

MAXWELL on The Interpretation of Statutes 12ed…, says much the same as the above cited excerpt from BENNION.

Thus, the issue before this Court is to determine what Parliament intended to be the consequence of the Clerk's breach of the statutory requirement to count only regular votes in determining the outcome of the election of the Speaker.

I have come to the conclusion that Parliament intended to render invalid an election wherein the Clerk fails to comply with the provisions of section 39 of the Constitution, as read with Standing Order 6. I have come to this conclusion for two reasons -

(i) Firstly, because of the peremptory language of the provision in question; and

(ii) Secondly, because of the use of different language from the one used by Parliament when it legislated on the same subject matter in another statute, namely, section 177 of the Electoral Act [Chapter 2:13].

Dealing with the issue of the use of peremptory language in section 39 of the Constitution, as read with Standing Order 6, there can be no doubt that the language of the relevant section is peremptory, having regard to the use of the word "shall".

I accept that there has been movement from the principle of strict exaction of compliance with the wording of the statute to avoid invalidity to a more flexible approach giving the courts some latitude in determining the consequences of non-compliance.

My understanding of the new approach is that, while the use of the word "shall" is no longer conclusive of the intention of Parliament to render invalid non-compliance, it certainly still remains cogent evidence of such intention. This Court has, in a number of recent cases, held that failure to comply with the peremptory direction of a statute leads to invalidity. In this regard, Rule 29 of the Supreme Court Rules provides as follows:

"29 Entry of appeal

(1) Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state –

(a) The date on which, and the court by which, the judgment appealed against was given;

(b) If leave to appeal was granted, the date of such grant;

(c) Whether the whole or part only of the judgment is appealed against;

(d) The grounds of appeal in accordance with the provisions of Rule 32;

(e) The exact nature of the relief which is sought;

(f) The address for service of the appellant or his legal practitioner."…,.

In Jensen v Acavalos 1993 (1) ZLR 216 this Court held that by use of the word "shall" compliance with the requirement of Rule 29 was peremptory and that failure to comply with the Rule rendered the Notice of Appeal a nullity and that such a notice cannot be condoned or amended.

KORSAH JA, at 219D, had this to say about the Notice of Appeal that did not comply with Rule 29 of the Supreme Court Rules:

"This Notice of Appeal was defective for non-compliance with the mandatory provisions of Rule 29, subrules (c), (d) and (e) which require the applicant or his legal representative to state: (i) whether the whole or only part of the judgment is appealed against; (ii) the ground of appeal to be set forth concisely and in separately numbered paragraphs; and (iii) the exact nature of the relief which is sought."

The learned JUDGE OF APPEAL further stated, at pp219H-220D:

"The Notice of Appeal, being bad for non-compliance with the Rules, was not cured by the filing, on 3 January 1990, of grounds of appeal without a prayer. Indeed, even if the grounds of appeal filed on 3 January 1990 had contained a prayer for relief, it would not have been effectual in validating the defective Notice of Appeal.

The reason is that a Notice of Appeal which does not comply with the Rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper Notice of Appeal to be filed, the appeal must be struck off the roll with costs: De Jager v Diner & Anor 1957 (3) SA 567 (A) at 574 C-D.

In Hattingh v Pienaar 1977 (2) SA 182 (O)…, at 183, KLOPPER JP held that a fatally defective compliance with the Rules, regarding the filing of appeals, cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant Rule.

With this view I most respectfully agree; for if the Notice of Appeal is incurably bad, then, to borrow the words of LORD DENNING in McFoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC) at 1172I, 'every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse'."

GUBBAY CJ and MANYARARA JA concurred.

In Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S) MALABA JA…, expressed the same sentiments when he stated at 149E-G:

"A nullity cannot be amended. In Jensen v Acavalos 1993 (1) ZLR 216 (S) KORSAH JA at 220B said that the reason why a fatally defective Notice of Appeal could not be amended was that:'…, it is not only bad but incurably bad.'

Citing Hattingh v Pienaar 1977 (2) SA 182 (O) at 183 for authority, the learned JUDGE OF APPEAL said that what should actually be applied for is an extension of time within which to comply with the relevant Rule and condonation of non-compliance.

In Business Equipment Corp v Baines Imaging Group 2002 (2) ZLR 354 (S), a Notice of Appeal which did not state the date on which the judgment appealed against was given, in contravention of section 29(1)(a) of the Rules of the Supreme Court, was held to be fatally defective, and the procedure stated in Jensen's case supra was approved as the appropriate remedy in having a proper Notice of Appeal placed before the court. See also Talbert v Yeoman Products (Pvt) Ltd S-111-99, SC111-99."

The learned JUDGE OF APPEAL further stated at p150B-C:

"As no valid Notice of Appeal was delivered and filed within fifteen days of the date when the decision of the Labour Court was given, there was no appeal before the court and to merely insert the relevant date in the defective Notice of Appeal, as suggested by Mr Muskwe, without an application for an extension of time within which to institute the appeal and for condonation of non-compliance with the Rules of Court, would be grossly irregular. The matter had to be struck off the roll."

It is quite clear from the above authorities that failure to comply with peremptory language of a statute can lead to a nullity.

Equally, there are decisions of this Court wherein it has been held that non-compliance with peremptory statutory provisions does not necessarily lead to a nullity. See Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S) and the cases referred to therein.

The above authorities can be reconciled on the basis that the use of peremptory language is one of a number of indicators of the legislative intent where such intent is not explicitly stated. This obviously is a departure from the principle of strict exaction of compliance with the wording of the statute that I referred to earlier.

In my view, the use of peremptory language, such as the words "shall" or "must" in a statute is no longer conclusive evidence of the intention of Parliament, but remains cogent evidence of such intention.

As I have already stated, I concluded that Parliament intended to render null and void an election in which irregular or invalid votes were counted together with valid votes to determine the outcome of the election of the Speaker for two reasons; namely, the peremptory language of the section and the use of different language from the one used by the Legislature on the same subject matter in a different statute.

The proposition that generally speaking Parliament, just like an individual, uses the same words or language to evince the same intent and different words or language to evince a different intent is grounded in elementary common sense.

MAXWELL on The Interpretation of Statutes 12ed devotes a whole chapter on the presumptions arising from the change of language in statutory interpretation…,. His opening paragraph of this subject matter reads:

"From the general presumption that the same expression is presumed to be used in the same sense throughout an Act or series of cognate Acts, there follows the further presumption that a change of wording denotes a change in meaning; Ricket v Metropolitan Railway Co. (1867) LR 2 HL 175, per LORD WESTBURY; ex p. Haines [1945] KB 183; Evans v Evans [1948] 1 KB 175.

'Where the Legislature,' said LORD TENTERDEN CJ, 'in the same sentence uses different words, we must presume that they were used in order to express different ideas'; R v Inhabitants of Great Bolton (1828) 8 B & C 71 at p74)."

For the presumption to arise, the change of words does not necessarily have to be in the same section or the same Act. It can be from one statute to another; see MAXWELL on The Interpretation of Statutes…, where the learned author states that:

"There are many modern cases on change of wording, and they fall roughly into three groups, according to whether the language alters (i) within the same section, (ii) within the same Act, (iii) from one statute to another."

For authority for the third category, which bears resemblance to the facts in casu, the learned author cites the following authorities; Att-Gen. for Northern Ireland v Gallagher [1963] AC 349; B v B and H (L intervening) [1962] 1 All ER 29; Re P. (infants) [1962] 1 WLR 1296; Irwin v White, Tomkins and Courage, Ltd [1964] 1 WLR 387; Att.-Gen. of the Duchy of Lancaster v Simcock [1966] Ch.1; Seabridge v H.Cox & Sons (Plant Hire) Ltd [1968] 2 QB 46; Wild v Wild [1968] 3 WLR 1148.

While the authorities cited by MAXWELL relate mainly to historically connected statutes, I see nothing in principle that should limit the presumption to preceding statutes to the exclusion of statutes on the same subject matter but not historically connected. After all, Parliament is presumed to be familiar with its own Acts. The corollary, that Parliament is ignorant of its own Acts, is simply untenable.

Thus, at the time of enacting Standing Order 6, in 2005, in terms of which the Clerk acted, Parliament was familiar with the provisions of section 177 of the Electoral Act, which was enacted earlier. This particular provision has been included in no less than nine electoral Acts in this country since 1928.

In my view, it is permissible for a court to look at the language of another statute on similar or the same subject matter in the exercise to ascertain the intention of Parliament.

Section 177 of the Electoral Act, as appears from its heading, deals with the subject of the consequences of non-compliance with the Electoral Act. It provides as follows:

"177 When non-compliance with this Act invalidates election

An election shall be set aside by the Electoral Court by reason of any mistake or non-compliance with the provisions of this Act if, and only if, it appears to the Electoral Court that –

(a) The election was not conducted in accordance with the principles laid down in this Act; and

(b) Such mistake or non-compliance did affect the result of the election."

Section 177 of the Electoral Act clearly provides that it is only when non-compliance with the Act affects the result of the election that the election should be set aside. In effect, this section incorporates into the Electoral Act the doctrine of substantial compliance.

Section 39 of the Constitution, as read with Standing Order 6, provides for the election of the Speaker, but does not incorporate the principle of substantial compliance. In my view, if Parliament had intended that only non-compliance that affected the outcome of the election of the Speaker would render invalid such an election it would have used the same or similar language.

Also, in determining the intention of Parliament, I took into account the fact that no draconian consequences would flow from a declaration of invalidity of the election.

Parliament consists of a little over two hundred Members and ordering a re-election of the Speaker does not pose financial or logistical problems of any magnitude. If properly organised, as it should be, I do not see the election of the Speaker taking more than an hour and it should require only a minimum of resources.

I am also mindful of the fact that Parliament is one of the most revered institutions in our, or any, society. It consists of the highest concentration of political leadership of the country. Parliament makes the laws that we all obey. Parliament should, therefore, lead by example and should scrupulously obey its own laws.

The election of the Speaker should be an example of how an election should be conducted. This is particularly so in Zimbabwe which is plagued by contestation of election results. Parliament should use the election of the Speaker to set the best example to the rest of the country. It is unacceptable that Parliament should seek to salvage a shambolic and chaotic election of a Speaker through the doctrine of substantial compliance.

I do not wish to be understood as setting aside the election of the Speaker on the ground that it was chaotic. I am satisfied that the chaos and the conduct of Members of Parliament, generally, did not, on their own, affect the election to the extent that it can be concluded that the Clerk did not conduct an election. I am merely expressing concern that the Clerk failed to stamp his authority on the election and insist that Members of Parliament conduct themselves in accordance with his instructions. I, however, do not think that conduct, alone, is sufficient, on its own, to constitute a basis for setting aside the election of the Speaker.

Before concluding, I feel constrained to make the following observation in the interests of clarity.

I have read the judgment of SANDURA JA.

It is a mis-interpretation of this judgment to conclude that it seeks to reinstate the old principle of strict compliance with the letter of the statute to avoid invalidity. This judgment is based on what I considered to be the intention of Parliament as evinced by the language of the statute, and by contrasting the language of section 39 of the Constitution, as read with Standing Order 6, with the language of section 177 of the Electoral Act.

I also do not agree that the principle that a peremptory enactment must be obeyed was abandoned in the case of Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S).

My understanding of Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S) is that it modified the principle by endorsing the movement away from strict compliance to a more flexible application of the principle. This is the only basis on which one can reconcile GUBBAY CJ's concurrence with the judgment of KORSAH JA in Jensen v Acavalos 1993 (1) ZLR 216 (S) and his judgment in Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S). MANYARARA JA concurred with both judgments. This Court re-affirmed the modification of the principle in Doctor Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor Judgment No. SC11-08.

In the result, I have come to the conclusion that the six named Members of Parliament did not vote by secret ballot, and, therefore, their votes were irregular. The inclusion of the irregular votes in the determination of the final outcome of the election of the Speaker constitutes a failure to comply with section 39 of the Constitution, as read with Standing Order 6, providing for the election of the Speaker of Parliament by secret ballot, thereby rendering it invalid.

For the foregoing reasons I would allow the appeal. In the result, I make the following order –

1. The appeal is allowed with costs to be paid by the respondents jointly and severally the one paying the other to be absolved.

2. The order made by the court a quo is set aside and the following substituted –

"The application succeeds and the election of the second respondent as Speaker is hereby set aside."

ZIYAMBI JA: I agree

GARWE JA: I agree

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").

The appellants, as the applicants in the court a quo, sought the following relief set out in the draft order:

"WHEREUPON after perusing the documents filed of record and hearing counsel, it is hereby declared that:-

1. The election of (the) second respondent as the Speaker of the Parliament of Zimbabwe on 25 August 2008 is null and void and set aside.

2….,.

3. That the respondents jointly and severally pay the costs of suit."

(The applicants abandoned the relief set out in paragraph 2).

The appellants' main contention in the court a quo, and in this Court, is that the election of the Speaker was null and void because it was not conducted in terms of section 39 of the Constitution of Zimbabwe (hereinafter referred to as "the Constitution"), as read with Standing Order 6 of the Standing Orders of Parliament of Zimbabwe (hereinafter referred to as "the Standing Orders").

PATEL J dismissed the application. The appellants now appeal against that judgment....,.

MALABA DCJ: I have read the opinion expressed by the learned CHIEF JUSTICE. I regret that I am unable to agree with the decision that section 39(2) of the Constitution, as read with Standing Order No.6 of the House of Assembly Standing Orders ("Standing Order 6"), by implication, compels the nullification of the election upon proof that the Clerk of Parliament ("the Clerk"), who was under the obligation to conduct the election of the Speaker of the House of Assembly ("the Speaker") by a secret ballot, unlawfully counted invalid votes as secret ballots.

This case came to the Supreme Court by way of an appeal against the judgment of the High Court. The court a quo dismissed with costs an application for an order declaring that the election of the second respondent as the Speaker of the House of Assembly ("the House") on 25 August 2008 is null and void and set aside.

The applicants, who are members of the House who had taken part in the election of the Speaker, disavowed the application as an application for review. The substance of the relief sought and the reliance on the provisions of section 4(1) of the Administration of Justice Act [Chapter 10:28], however, show that it was an application for review.

The applicants alleged, in effect, that the Clerk who, as the administrative authority, was given the power to conduct the election of the Speaker by a secret ballot, in accordance with the machinery prescribed under section 39(2) of the Constitution, as read with Standing Order 6, failed to act in accordance with the requirements of the rule against counting invalid votes as secret ballots, and, as a result, affected their rights or legitimate expectation in the election.

A perusal of the papers filed in support of the application shows that the relief was sought on two grounds:

(i) The first ground was that there was "noise, utter chaos, and disorder" in the Chamber of the House at the time appointed by the Clerk for the holding of the election of the Speaker such that the environment never became conducive for conducting the election by a secret ballot.

(ii) The second ground was that, in violation of the secrecy of the ballot, and in defiance of the procedure laid down by the Clerk, some members of the MDC-T party came out of the polling booth with ballot papers, on which they had marked their votes, unfolded. The allegation was that they displayed the ballot papers to others to disclose for whom they had voted before folding the ballot papers and depositing them in the ballot boxes.

As part of the second ground, it was alleged that the Clerk was under a duty to stop or prevent the members of the MDC-T party from doing what they did, but, in disobedience of his duty, failed to do so.

It was not the applicants' case that the election of the second respondent, as the Speaker of the House, should be declared null and void because the Clerk counted invalid votes as secret ballots, thereby distorting the result of the election. The reason is that to do so would have involved an admission by the applicants of the fact that there was counting of secret ballots produced by the electoral process the applicants alleged had not taken place.

As the learned CHIEF JUSTICE arrived at the conclusion, with which I disagree, on the ground that the Clerk counted invalid votes as secret ballots, I will deal with the question whether in the machinery for the election of the Speaker, prescribed under section 39(2) of the Constitution, as read with Standing Order 6, the unlawful conduct of the Clerk, in counting invalid votes as secret ballots, automatically nullifies the election.

My view of the case is that the application ought to have been dismissed or granted on the grounds on which the applicants made it.

Before determining the question whether the applicants established the grounds on which they sought the relief from the court a quo, I set out and construe the law in terms of which the election of the Speaker, by a secret ballot, was required to be conducted.

It is for the Legislature to make provision, by legislation, for matters relating to elections to office in institutions of a democratic Government. All matters relating to the organisation and procedure for election to the office of the Speaker of the House must be determined on the construction of the broad terms of the legislation enacted for the purpose by Parliament.

Section 39(1) of the Constitution imposes on the House an obligation to elect a presiding officer, to be known as the Speaker, at its first meeting after dissolution of Parliament and before proceeding to transact any other business. The election must therefore be held at the time prescribed under section 39(1) of the Constitution.

It is required to be an election by a secret ballot - only a secret ballot under the statute can give rise to a "result of the election."

The right to vote in the election of the Speaker, where more than one person is proposed for the post, is given to members of the House who would have subscribed the oath of loyalty and are present in the Chamber of the House at the time the election is called by the Clerk.

By section 39(2) of the Constitution, as read with Standing Order 6, the Clerk is appointed as the official to conduct the election required by section 39(1) where more than one person is proposed as Speaker. By the same provisions, the Clerk is enjoined to conduct the election of the Speaker by a secret ballot.

When the members elect a Speaker from candidates nominated they do so in their individual capacity. They are not acting as representatives of the people who elected them to the House.

Where the words "conduct the election" are used as they are used in section 39(2) of the Constitution, as read with Standing Order 6, in respect of a situation where more than one person is proposed for election for a post, it is clear that the word "election" is used with the intention that it should be understood to mean the whole combined and continuous process for bringing about the result of the election. It is a process consisting of a number of material steps prescribed by law, beginning with the call for the election and ending in the declaration of the result of the election.

For the purposes of section 39(2) of the Constitution, as read with Standing Order 6, all these steps were driven by the free exercise of the right to vote by the electors directed by the Clerk entrusted with the responsibility of conducting the election by a secret ballot.

The words "conduct the election" compendiously describe the number of duties the Clerk would be expected to carry out to ensure that members who were desirous to elect the Speaker by means of a secret ballot did so freely. So, to "conduct the election" in the context of section 39(2) of the Constitution, as read with Standing Order 6, denotes the concept of legality, in the sense that it contemplates the making of decisions or the taking of actions in the performance of duties, the effect of which is to direct or manage the activities of the voters according to the prescribed requirements of the law to achieve the object or purpose of ensuring the election of the Speaker based on universal, equal, direct, and personal vote freely expressed by a secret ballot.

In construing section 39(2) of the Constitution, as read with Standing Order 6, it is important to bear in mind that the right to vote vested in the members present and voting at the first meeting of the House is not affected by the requirement that the election should be conducted by a secret ballot. The statute relates to procedure alone and directs the mode in which the right to vote is to be exercised by the electors.

The Legislature chose the secret ballot for its optimum benefits and prescribed it as the only method by which the elector would validly exercise his or her right to vote for the Speaker. At the same time, it imposed on the Clerk the general obligation to provide the mechanisms and procedures for the recording, processing, and protection of the secret ballot to bring about the election of the Speaker.

Every voter was entitled to express his or her will on the candidates by voting "for" or "against" through the legally permitted form of voting.

As section 39(2) of the Constitution, as read with Standing Order 6, prescribes a secret ballot and its attendant requirements as a condition the elector has to perform if he or she is desirous to give a valid vote for a candidate in the election of the Speaker, it is addressed to both the voter and the Clerk who has to conduct the election by a secret ballot. The validity of a vote and of any act performed by the Clerk must be measured in terms of its conformity with the requirements of a secret ballot prescribed as the essence of the election of the Speaker.

In my view, it is wrong to place on section 39(2) of the Constitution, as read with Standing Order 6, a narrow construction which views it as directed at the Clerk only. The Clerk does not vote. He does not produce the result of the election. His functions are managerial. The elector is the driver of the election by a secret ballot. The Clerk and the voter must be viewed in the context of the legal relationship of the rights and duties they have to exercise or discharge to achieve the statutory objective or purpose.

The prescription of a secret ballot, as the method for the election of the Speaker, is based on the acceptance of the principle that it promotes and protects freedom of expression of choice of a preferred candidate without undue influence, intimidation, and fear of disapproval by others. The elector is given the right to mark the choice of one candidate from another, or others, in secret. The words "secret ballot" are used in the wide and narrow sense to mean the process by which the ballot is recorded, processed, and protected, as well as the ballot in which there is complete and inviolable secrecy designed to drive away the fear of disclosure and secure to the voter freedom from undue influence, intimidation, and fear of disapproval by others.

A "secret ballot" is therefore a ballot cast freely by a voter, in secret, when no other person is present and aware of what is happening.

The ballot is secret to the voter, in the sense that he or she is the only person who knows for whom he or she is voting.

Whilst the caster of the vote remains unknown, the secrecy of the ballot is maintained and the vote has been effectively cast in the election of the Speaker. It is the valid vote to be counted to ascertain the result of the election of the Speaker by a secret ballot.

To maintain the secrecy, made to be extremely material as the foundation to the validity of the vote itself, the voter must meet certain conditions.

He or she is required not to put on the ballot paper, on which the vote is given, any writing or mark by which his or her identity as the voter can be known by any other person looking at the ballot paper. The voter is also required not to display or expose the ballot paper after he or she has given the vote so as to disclose to any other person for whom he or she voted before depositing the ballot paper in the ballot box.

So essential is the secrecy of the ballot to its validity that any departure by the voter from these conditions, designed for the purpose of ensuring the maintenance thereof, must render the vote void.

The mandatory obligation imposed on the Clerk was to perform the duties put on him to provide the mechanisms and procedures that enabled the voter who was desirous to exercise the right to vote by a secret ballot to do so. The duties he had to perform were to ensure that the vote, given in secret, was recorded, processed, protected, and counted, to bring about the election of the Speaker.

The primary object of any act performed by the Clerk in the discharge of the obligation to conduct the election of the Speaker by a secret ballot would have been the maintenance of the secrecy of the ballot given by the voter, unless the voter himself or herself failed to observe, strictly, the conditions essential to the validity of the vote as a secret ballot. The Clerk, as the official appointed by the Legislature, and given the responsibility of conducting the election of the Speaker by means of a secret ballot, was under an absolute duty not to do anything in the execution of his duties that would have the effect of compelling the voter to violate the secrecy of the ballot.

Although it does not say in express terms that the Clerk cannot record the vote in some other way, it is clear that section 39(2) of the Constitution, as read with Standing Order 6, makes the prescribed manner of recording the ballot by means of a ballot paper, properly drawn up and with the names of the candidates and the appropriate spaces where the mark by which the vote would be given, the only manner in which a secret ballot was to be given.

The Clerk has no discretion as to how the election should be conducted. He must conduct it by a secret ballot.

The valid vote in an election had to be one given for a candidate by means of a secret ballot. It was, therefore, the duty of the Clerk to provide the official ballot papers. It was his duty to put in place the polling booth in which the voters would mark the ballot papers, screened from observation by other potential voters. It was his duty to provide sealed and translucent ballot boxes in which the voters would deposit the marked ballot papers for safekeeping before counting.

The Clerk discharged these duties in accordance with the requirements of the law. He put in the Chamber of the House the polling booth and two ballot boxes and provided the ballot papers.

It was also the Clerk's duty to provide the procedure by which the secret ballot was to be recorded, processed, protected, counted, and results of the election based on it declared.

He, again, complied with this requirement.

The Clerk explained to the members that the voter would only mark his or her vote on a ballot paper delivered by him just before proceeding to the polling booth and that the ballot paper had to have an official stamp marked on the back. Upon receipt of the ballot paper, the member was to go immediately into the polling booth and there mark his or her ballot paper to express his or her choice. The voter was then required to fold the ballot paper up whilst in the polling booth, so as to conceal the vote, and then go and deposit the ballot paper, so folded up, into the ballot box. The voter was required to exhibit to the Clerk the official stamp on the back of the folded ballot paper before dropping it into the ballot box.

The procedure met the purpose of the legislation of ensuring equality of conditions for election to the office of Speaker for the candidates and the occurrence of an election based on universal, equal, direct, and personal suffrage freely expressed by a secret ballot.

It was the duty of the Clerk to monitor the proceedings and keep a continuous oversight of the actions of the voter as he or she moved from the polling booth to drop the ballot paper into the ballot box. In that way he would be able to detect conduct inconsistent with the exercise by the voter of the right to elect the Speaker in accordance with the procedure prescribed to ensure the maintenance of the secrecy of the ballot.

Once he detected such conduct, it was the Clerk's duty to act judicially and determine that the conduct of the voter had stripped the ballot of secrecy and declare the vote invalid and not to be counted.

At the end of the poll, the Clerk was required to open the ballot box in the presence of the agents of the candidates. It was his duty to empty the ballot box and open each and every folded ballot paper and inspect it to ensure that only those ballot papers which were not contrary to the provisions and spirit of section 39(2) of the Constitution, as read with Standing Order 6, as to secrecy, were counted in the election of the Speaker.

Before counting the valid ballot papers, the Clerk was required to group and arrange them under the names of the respective candidates by placing, in separate parcels, those which were secret ballots opposite the name of the same candidate and rejecting all invalid ballot papers.

The results of the election to be declared by the Clerk in an election of the Speaker conducted in terms of section 39(2) of the Constitution, as read with Standing Order 6, would not be the number of votes cast. The reason is that some of the votes would have lost their secrecy as they moved through the process, from the time they were given on the ballot paper in the polling booth to the time they were canvassed after the opening of the ballot box. The result of the election, under section 39(2) of the Constitution, as read with Standing Order 6, is the outcome of secret ballots counted as such.

The result of an election cannot include invalid votes because it is unlawful to count invalid votes as secret ballots. Courts do not ordinarily nullify that which has been done lawfully. Nullification is a remedy intended to be used to redress a wrong.

There is yet another important aspect of the right to secrecy of the ballot which needs to be considered before the determination of the question whether the applicants established the grounds on which they sought relief in the court a quo.

It is that the right to secrecy of the ballot, protected under section 39(2) of the Constitution, as read with Standing Order 6, is subject to the principle that everyone has a right to waive an advantage of a law made solely for his or her benefit and protection in his or her private capacity. He or she may dispense with the benefit or advantage, provided he or she does so without infringing any public right or public policy. See MAXWELL on The Interpretation of Statutes 12ed…,.

There is no legal obligation that a voter must vote by secret ballot.

The requirement of a vote by a secret ballot is justified on the principle which, without unacceptably encroaching on the rights of the persons concerned to stay out of the prescribed system of election, fosters the values of honesty, freedom, and reliability that should characterise electoral choice. As the voter must exercise the right to vote for the Speaker by a secret ballot given on the ballot paper freely, he or she can waive the right to the secrecy of the ballot at the time the vote is cast or at any time before he or she deposits the ballot paper in the ballot box.

The right to vote by a secret ballot includes the right of the voter to disclose to any other person for whom he or she voted. He or she can, in the exercise of that freedom, decide to put a writing or mark on the ballot paper at the time he or she casts the vote by which he or she can be identified as the voter and for whom he or she voted. He or she may decide to display to others the ballot paper so as to share the knowledge for whom he or she voted. So, a voter can, of his or her own free will, inform whomsoever he or she chooses for whom he or she voted. A secret ballot is not compulsory insofar as the voter who is not desirous of taking part in the election by a secret ballot is concerned.

The rule that there should be no writing or mark put by the voter on the ballot paper by which his or her identity as the voter can be revealed, and that the ballot paper should not be displayed to any other person so as to disclose for whom the vote was given, prescribes a condition of the validity of the vote.

The question whether there is a secret ballot for the purposes of the validity of the vote will depend for its answer on the actions of the individual voter.

In Jenkins v Board of Elections 180 NC 169 (1920), cited by Mr Chaskalson, it is correctly stated by BROWN J that:

"…, voting by ballot, as distinguished from viva voce voting, means a secret ballot, and…, the elector, in casting his ballot, has the right to put it in the box and to refuse to disclose for whom he voted and that he cannot be compelled to do so. But, this privilege of voting a secret ballot has been held to be entirely a personal one. The provision has been generally adopted…, for the protection of the voter and for the preservation of his independence in the exercise of this most important franchise. But, he has the right to waive his privilege and testify to the contents of his ballot."

In State Ex Rel. Hutchins v Tucker et al 106 Fla 905 (1932), also cited by Mr Chaskalson in argument, BUFORD CJ quoted from COOLEY Constitutional Limitations 7ed…, where the learned author states:

"The system of ballot-voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases and with what party he pleases and that no one is to have the right or be in a position to question his independent action either then or at any subsequent time. The courts have held that a voter, even in case of a contested election, cannot be compelled to disclose for whom he voted; and, for the same reason, we think others who may accidentally or by trick or artifice have acquired knowledge on the subject should not be allowed to testify to such knowledge or to give any information in the courts upon the subject. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it, his ballot is absolutely privileged."

I turn now to determine the question whether the applicants established the grounds on which they based the application for the relief sought.

On the first ground, the first applicant, in the founding affidavit, said that there was "too much noise in the House" at the beginning of the process for the election of the Speaker.

The intention was to show that the Clerk was unable to manage the activities of the members according to the prescribed procedure for the achievement of the purpose of the electoral law.

He said the noise was caused by members belonging to MDC-T party who were pacing up and down the Chamber conferring noisily with each other in support of the second respondent. He said that was done "in a manner that created utter disorder and raised very serious tensions in the House."

After describing how the Honourable Biti displayed the ballot paper, after he had cast his vote in the polling booth, so as to disclose to others for whom he had voted, before folding the ballot paper up and depositing it into the ballot box, the first applicant said, in paragraph 32 of the founding affidavit:

"Honourable Biti's shocking and unprecedented conduct caused more than a fracas in the House as Honourable Members started shouting objections and counter objections, including trading insults, at the top of their voices, while the voting process degenerated into total disorder…,."

In paragraphs 3.9, 3.10, 3.15, 5, 6, and 11 of the opposing affidavit the Clerk said:

"3.9 The mood and atmosphere in the House of Assembly, on the occasion, was neither unique nor unprecedented. Members of the House of Assembly were meeting together for the first time after a fiercely contested general election. As can be expected, under the circumstances, the conversation was lively and the exchanges exuberant. There was a fair amount of good-humoured raillery, including political taunting, verbal sparring and bantering, all done by Members from all the political parties represented in what appeared to be a good spirit of joviality. This kind of conduct is not unusual in our Parliament or any other Parliament for that matter, and, accordingly, I did not consider it a cause for concern on this occasion.

3.10 It is my submission that what has been described by (the) applicant as 'gross disorder, chaos or fracas' in the House was actually nothing more sinister than increased hustle and bustle in the House, in turn the result of the increase in number of Members of the House (an increase in the membership from 150 to 210 as a result of Constitutional Amendment No.18)…,.

3.15 Notwithstanding the environment in the House that I have described in paragraphs 3.9 and 3.10 of this affidavit I was able to manage the entire proceedings of the day according to my present programme without a hitch of any kind. It is, therefore, my submission that quite contrary to (the) applicants' allegations of 'utter disorder and fracas' the proceedings progressed exceptionally smoothly…,.

5. I deny that at the time immediately before the elections took place there was too much noise and there existed a state of utter disorder in the House. I also totally deny witnessing any manifestation of serious tensions. What I did witness in the House was the atmosphere that I have described in paragraphs 3.9 and 3.10 of this affidavit.

6. Save to confirm that I did call the House to order whenever I deemed it necessary, and, by so doing, achieved a continuing level of order which enabled me to discharge my obligation and safeguard the progress and integrity of the voting process as well as all other proceedings of that day the contents of this paragraph (25 of the founding affidavit) warrant no comment….,.

11. I totally deny that there was total disorder in the House which I failed to control. If such a state of disorder had existed, the process of voting would have been impossible - which it was not. Generally, Members remained in their places, heard their names being called, followed the order on the list, approached, took possession of the ballot papers, and proceeded to vote privately. After voting they resumed their places without impediment in an exceptionally orderly manner given their numbers and the congestion in the Chamber."

The court a quo found, on the facts, that there was not so much noise as to cause chaos or utter disorder, as described by the first applicant.

The finding was justified by the evidence.

The relevance of raising the issue of noise was to show that the Clerk was disabled from performing his duties to conduct the election of the Speaker by a secret ballot. The applicants did not refer to specific duties the Clerk failed to perform because of the noise. To the contrary, the facts showed that all the Members who were present and desirous to vote did so.

Each of the two hundred and eight members received a ballot paper from the Clerk and went into the polling booth where he or she marked his or her vote on the ballot paper in secret. Some of the members came out of the polling booth with their ballot papers folded to conceal the vote and dropped the ballot papers into the ballot boxes after exhibiting the official stamp on the back to the Clerk. Other members came out of the polling booth with their ballot papers unfolded and displayed them to others so as to disclose for whom they had voted before folding them and dropping the ballot papers into the ballot box.

All the members responded to the alphabetical order in which their surnames were called.

They could not have done that in the context of the environment of chaos or utter disorder described by the applicants.

The first applicant conceded, in paragraph 25 of the founding affidavit, that the Clerk occasionally intervened to restore order when it was necessary to do so.

It was indeed the duty of the Clerk to maintain order during the electoral process.

By that admission, the first applicant corroborated the Clerk, who said that he was able to act and control the situation when he considered that the noise would interfere with his ability to conduct the election by a secret ballot as required by the law.

The Clerk was not a mere moderator. He was the governor of the electoral process for the purposes of securing the proper conduct of the election. As such, his evidence had to be accorded appropriate weight, where it was supported by that given by the applicants.

It is of interest to note that the Minister of Youth Development, Indigenisation and Empowerment, the Honourable Kasukuwere, and the Honourable Member, Mr Zhuwawo, admit, in the affidavits filed in support of the applicants, that when they called out to draw the attention of the Clerk to the objections they were raising to what they considered was a violation of the requirements of a secret ballot by members of the MDC-T party, who displayed their ballot papers to others so as to disclose for whom they had voted, the Clerk told them not to make noise.

According to the two members, what was shouted were objections to the conduct of displaying ballot papers. The objections were not intended to obstruct the Clerk in the conduct of the election. They were not the confused and undesirable sounds characteristic of noise. The environment cannot be accurately described as characterized by complete absence of order.

In view of the fact that all the two hundred and eight members went through the process by which they gave their votes on the ballot papers and dropped them into the ballot boxes, with some displaying their ballots to others so as to show for whom they had voted, the allegation that there was so much noise that the atmosphere was not conducive for conducting the election of the Speaker by a secret ballot was not substantiated. The atmosphere was characterised by the factors described by the Clerk, which enabled him to conduct the election of the Speaker fairly and efficiently.

The first ground on which the application for relief was based was not proved.

The second ground was based on the allegation that it was unlawful for the members of the MDC-T party who displayed their ballot papers to do so and for the Clerk not to stop or prevent them from doing what they did.

The intention was to show that the actions of the voters concerned, and the failure to act by the Clerk, undermined the process by which the object of the electoral law was to be achieved, thereby violating the rights of the applicants to elect the Speaker, or be elected as the Speaker, by a secret ballot. In that regard, the first applicant said, in the answering affidavit:

"100: It is particularly notable that (the) second respondent himself was one of the Honourable Members from the MDC-T party that unlawfully opened and displayed their marked ballot papers and this fact alone, which is captured in the DVD evidence, is enough to show that his claim to be Speaker is legally vacuous….,.

103. The fact that some Honourable Members, actually most of them belonging to (the) second respondent's MDC-T party including (the) second respondent, defiantly opened and displayed their marked ballot papers simply means that there was no lawful election and (the) second respondent is wishfully wrong to claim that he was lawfully elected from an election that was in fact unlawful."…,.

The applicants invariably described the conduct of the members of the MDC-T party, in displaying their ballot papers to others so as to disclose for whom they had voted, in terms which show that they considered the conduct unlawful.

They said it was "shocking behaviour"; "a brazen violation of the secret ballot"; a "deliberate and defiant violation of the election procedure"; "open and defiant violation of the secret ballot"; "blatant misconduct"; "the failure to observe and respect a fundamental Parliamentary Rule in the election of (the) Speaker"; "the rampant and systematic violation of the secret ballot"; "the failure to conduct the votes in secret as required"; and "an irregularity which is a grave breach of the Rules of Parliament."

The effect of the contention advanced by counsel for the appellants, on appeal, was that the members of the MDC-T party, who displayed the ballot papers to others so as to disclose for whom they had voted, had no right to do so.

In paragraph 6 of the answering affidavit, the first applicant emphasised the fact that he considered the failure by the Clerk to stop or prevent the members of the MDC-T party who displayed their ballots from doing so as unlawful. He said:

"6. His failure principally arose from his inability or unwillingness, for whatever reasons, to ensure that no Member left the polling booth, after voting, with an unfolded ballot paper, and that no Member openly displayed his or her marked ballot paper to any other Member for whatever reason."

In paragraph 178 of the answering affidavit, the first applicant summarized the issue for determination by the Court as follows:

"At issue is only the unchallenged fact in the papers, namely, that unfolded and marked ballot papers were displayed by many Honourable Members of the MDC-T party, including (the) second respondent, outside the polling booth during the election and that this was in violation of the procedure that marked ballot papers should be folded in the polling booth and (the) first respondent did nothing to stop this violation."

Counsel for the appellants argued, on appeal, that the failure by the Clerk to prevent or stop the members of the MDC-T party from displaying their ballot papers was evidence of breach by him of the duty to conduct the election of the Speaker by a secret ballot.

The court a quo found, on the facts, that only six members of the MDC-T party were shown to have come out of the polling booth with unfolded ballot papers and to have displayed the ballot papers to others so as to disclose for whom they had voted.

The finding was, again, justified.

Although the first and second applicants had alleged, in their affidavits, that "many" members of the MDC-T party had displayed their ballots, no evidence was produced to support the allegation.

The use of the word "many", in a case in which they were not able to state the number of the members of the MDC-T party who acted in the manner alleged, suggests that there was an element of exaggeration.

This is particularly so when regard is had to the fact that the applicants also said "some" members of the MDC-T party displayed their ballot papers so as to disclose to others for whom they had voted.

Given the fact that the applicants were seeking an order of nullification of the election, it was necessary that their case be based on clear evidence of the number of voters who displayed their ballot papers. The legal consequence would have been that the voters concerned had disenfranchised themselves by their own conduct.

Proceeding as the parties did on appeal, on the basis that six members displayed their ballots so as to disclose for whom they had voted, did the applicants show that those voters acted unlawfully? Did they ipso facto show that the Clerk acted unlawfully in failing to stop or prevent those voters from behaving in the manner they did?

I must add that the only reasonable inference from the circumstances of the case is that the six members displayed their ballot papers to other members of the MDC-T party to disclose to them that they had voted for the second respondent.

All members, including the six who displayed their ballot papers, had the right to waive the right to the secrecy of their votes.

In displaying the ballot papers to others, the six members exercised their right to share with any other person the knowledge for whom they voted.

As long as they were not coerced or compelled to expose their ballot papers to others, the voters acted lawfully. The power conferred on the Clerk, to conduct the election of the Speaker by a secret ballot, is limited by the right of the voter not to maintain the secrecy of his or her ballot.

The Clerk was not under any duty to stop or prevent the voters from voluntarily displaying their ballot papers to others so as to disclose for whom they had voted.

Whilst the duty on the Clerk, to maintain the secrecy of the ballot given by the voter, requires that he should refrain from doing anything that would compel the voter to disclose to any other person how he or she voted, it cannot be relied upon to justify conduct by which the voter would be prevented from freely exercising the right to disclose to whomsoever he or she chooses for whom he or she voted because the secrecy of the ballot is protected under the law for the benefit of the voter.

The Clerk owed the duty not to do anything to compel the voter to disclose for whom he or she voted to the voter. He cannot discharge the duty to the detriment of the interests of the voter by preventing or stopping him or her from exercising the right of disclosure of information as to how he or she voted.

It is clear that the duty on the Clerk was not to interfere with the recording, processing, and protection of a secret ballot as long as the voter maintained the secrecy of the ballot.

The applicants did not show that the Clerk acted unlawfully by not stopping or preventing the six members from displaying their ballot papers to others so as to disclose that they had voted for the second respondent. His duty was to manage and direct the activities of the electors in accordance with the rules designed to ensure a free and fair election by a secret ballot.

The applicants failed to establish the two grounds on which they sought the relief from the High Court by way of an order declaring the election of the second respondent as the Speaker of the House null and void and set aside.

The application ought to have been dismissed at that stage of the proceedings.

As I disagree with the learned Judge, on the comments he made on the legal consequences of the conduct of the six members in displaying their ballot papers to others so as to disclose for whom they voted, and also disagree with the learned CHIEF JUSTICE on the conclusion he reached that the counting by the Clerk of invalid votes cast by the six members as secret ballots nullified the election of the second respondent as the Speaker of the House, and not just the affected votes, I proceed to express my opinion on these matters.

The words "shall conduct the election of Speaker by a secret ballot" are placed in a statute by the provisions of which the Legislature recognised the possession by the members of the House present at its first meeting of the right to vote for the Speaker by a secret ballot.

The rule of law is that a right to vote must be exercised strictly according to the terms of the statute which confers it.

What this means, on the facts of this case, is that when the six members displayed their ballot papers to others, so as to disclose for whom they had voted, they voluntarily took their votes out of the system of the election by a secret ballot prescribed under section 39(2) of the Constitution, as read with Standing Order 6. By the same conduct by which they waived the right to the secrecy of their ballots, the voters lifted the veil of secrecy from the ballots rendering them void and of no value in the election of the Speaker.

I do not accept, as a correct statement of the law, the contention advanced by Mr Chaskalson and Ms Damiso, on behalf of the respondents, and accepted by the learned Judge in the court a quo, that the six ballots remained valid votes, notwithstanding the fact that they had been displayed by the voters concerned to others so as to disclose for whom they had been given.

The learned Judge, at p11 of the cyclostyled judgment, said:

"The courts should not interfere unless it is shown that the objective conditions put in place for the election precluded the possibility of a secret vote. Beyond this, it is then a matter purely for the individual voter if he chooses to divulge, whether publicly or in private, the specific manner in which he has cast his vote. If he does so of his own volition, without any external coercion or intimidation and howsoever his conduct might influence other voters, this cannot detract from the secrecy of his vote or vitiate the secrecy of the ballot as a whole."…,.

The statement that, a voluntary display by a voter of the ballot paper so as to disclose to other people for whom he or she voted does not "detract from the secrecy" of the vote, cannot be a correct statement of the legal effect of such conduct on the secrecy of the ballot affected.

The object of the ballot prescribed under section 39(2) of the Constitution, as read with Standing Order 6, is to secure complete secrecy as a condition of its validity, to be maintained not only by the voter desirous to elect the Speaker but by the official entrusted with the responsibility of conducting the election by a secret ballot during the electoral process, including the time when the counting of the votes takes place.

How can the official be able to maintain complete secrecy of a ballot in the face of conduct by the voter which removes the secrecy from the ballot? How the ballot can retain its secrecy thereafter I cannot imagine.

The secrecy is conferred on the ballot at the time the vote is given on the ballot paper in the polling booth. It must, however, be maintained thereafter to ensure the validity of the vote in the election of the Speaker.

It is clear, from the object of the statute and the procedure for voting, that a ballot paper which has a writing or mark made on it by which the identity of the voter can be known or one that is displayed to other people so as to disclose for whom the vote was cast, gets stripped of the secrecy of the ballot. The secret as a secret ceases to exist.

The ballot becomes void and cannot be counted in the election by a secret ballot.

The view expressed by the learned Judge did not take into account the effect of the requirement of the procedure provided by the Clerk for voting by a secret ballot.

The duty put on the voter desirous of maintaining the validity of his or her ballot in the election of the Speaker was that, after marking the ballot paper in the privacy of the polling booth, he or she would fold the ballot paper so as to conceal the ballot and keep it so folded until he or she deposited the ballot paper in the ballot box for safekeeping. The rule was to ensure the preservation of the secrecy of the ballot for the purpose of its validity in the election.

The direct effect of the voter displaying the ballot paper to other people, so as to disclose to them for whom he or she voted, is the invalidation of the ballot as a secret ballot.

Without pretending that there was no criterion by which a secret ballot had to be identified, I think the conclusion that the ballots displayed by the six voters to others, so as to disclose to them for whom they had voted, did not lose their secrecy, does not accord with what seems to have been the intention of the Legislature.

The proposition that the invalidity of the votes does not occur at the time the ballot papers are displayed so as to disclose for whom the vote was given would create a situation which would be quite unclear, and, to a certain extent, even illogical. Every exercise of a right has a direct consequence. The exercise of the right to vote which removes the secrecy of the ballot cannot have the same consequence as the exercise of the right which maintains the secrecy of the vote.

Failure by the Clerk to respond to the actions of the six voters and formally declare the ballots void did not change the fact that the ballots had been rendered invalid by the very actions of the voters.

The votes remained invalid at the time the Clerk counted them as secret ballots. He was not under any duty to count invalid votes as secret ballots. The statute is, in effect, clear that in no case will votes be allowed which are in any form other than the form of a secret ballot.

The result of the election of the Speaker, by a secret ballot, was not the number of votes cast, as some of them would have lost the essential element of secrecy as they travelled in their journey from the time they were cast to the time of counting. The result of the election was who was elected by a secret ballot.

The counting of invalid votes that had lost their secrecy affected two classes of voters:

(a) The first class is of voters who deliberately exercised their right to waive the benefits of the secrecy of the ballot by displaying the ballot papers to others so as to disclose for whom they had voted.

(b) The second class is that of voters who kept the knowledge for whom they voted to themselves.

The first class of voters had no right or legitimate expectation that their votes would be counted as valid votes. In this case, they did not, as a matter of fact, seek to enforce any such right or legitimate expectation. They appreciated the fact that they did not have such a protection. If anything, the legitimate expectation would have been that the votes they had voluntarily stripped of secrecy be not counted as secret ballots.

The second class of voters had the right or legitimate expectation that their votes and the election based on them be declared lawful. The applicants belonged to this class of voters. It appears that they are acting against their own interests and those of other voters in this class.

What right did they seek to protect or enforce by an order of nullification of the election?

If it is the right to a fair and free election by a secret ballot, they had to first show that it was violated by the respondents. They failed to show that violation.

Where there is proof of violation of electoral rights, such as the right to vote or to stand for election, the need to enforce the rights under judicial protection may require that the election be set aside if it was shown that the violation had undue influence on the result of the election.

There cannot be a remedy without proof of violation of a right.

The learned CHIEF JUSTICE reached the conclusion that nullification of the election was the only remedy for the unlawful conduct by the Clerk, of counting invalid votes as secret ballots. The reason was that, whilst imposing on the Clerk the mandatory obligation to conduct the election of the Speaker by a secret ballot, section 39(2) of the Constitution, as read with Standing Order 6, did not provide a remedy for the disobedience of the command.

The conclusion that nullification of the election was the only remedy for what, in reality, was a nullity in respect of the six votes, could only have been reached by implication of what is the intention of Parliament. It would be based on a construction of section 39(2) of the Constitution, as read with Standing Order 6, which presumes that it is the intention of the Legislature that voters who had complied strictly with the law and voted by a secret ballot for the Speaker should lose their valid votes on account of a failure by an official to discharge his duty not to count invalid votes as secret ballots.

The principle of law to be applied is that where an enactment imposes an obligation but is silent as to the remedy to be awarded for disobedience, a court must ascertain, from the language by which the obligation is imposed, whether it is the intention of the Legislature that nullification of the offending conduct should be the remedy to be awarded without any limit as to the scope of its operation or application.

MAXWELL on The Interpretation of Statutes 12ed…, summarises the principles to be applied as follows:

"…, when a statute requires that something shall be done or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance: is the requirement to be regarded as imperative (or mandatory) or merely as directory (or permissive)?

In some cases, the conditions or forms prescribed by the statute have been regarded as essential to the act or thing regulated by it and their omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the regard to them involving nothing more than liability to a penalty, if any, were imposed for breach of the enactment.

'An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.' Woodward v Sarsons (1875) LR 10 CP 733.

It is impossible to lay down any general rule for determining whether a provision is imperative or directory.

'No universal rule', said LORD CAMPBELL LC, 'can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.' Liverpool Borough Bank v Turner (1860) 2 De. G F & J 502 at pp507, 508.

And LORD PENZANCE said:

'I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the Act; and, upon a review of the case in that aspect, decide whether the matter is what is called imperative or only directory.' Howard v Bodington (1877) 2 PD 203 at p211."

See also Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S).

There is no question that section 39(2) of the Constitution, as read with Standing Order 6, is a mandatory enactment, the subject-matter of which is the election of the Speaker of the House. The object of the statute is to secure an election of the Speaker by members of the House qualified to vote by a secret ballot. The object is also to ensure, by the imposition of the obligation on the Clerk to conduct the election of the Speaker by a secret ballot, that there is provided mechanisms and procedures for the recording, processing, protecting, and counting of the secret ballot.

In other words, it is to ensure the establishment of an effective system for the election of the Speaker by a secret ballot conducted fairly, efficiently, and impartially.

The Clerk did put in place the mechanisms and procedures for the recording, processing, protection and counting of secret ballots.

Of the two hundred and eight members who voted, two hundred and two complied strictly with the requirements of the law for the exercise of their right to vote for the Speaker by a secret ballot - that is the main object for the achievement of which the provisions of section 39(2) of the Constitution, as read with Standing Order 6, were enacted.

He had assembled together all the necessary mechanisms which were required by the law governing the election to be put in place at the time prescribed to ensure delivery of the election of the Speaker by a secret ballot.

The six members who displayed their ballot papers to others, so as to disclose for whom they had voted, did so in the context of the mechanisms and procedures.

The failure committed by the Clerk was not to declare the invalid ballots void. It was the unlawful conduct of counting invalid ballots as secret ballots that has been used as a justification for the proposed award of the order of nullification of the election of the Speaker.

The disobedience did not relate to a secret ballot.

In other words, it is not a case of the Clerk failing to record, process, or count a secret ballot or declaring a secret ballot to be an invalid vote.

Had that been the case, the result of the election of the Speaker would have been affected by the disobedience of the Clerk to the duty to conduct the election of the Speaker by a secret ballot.

He had no power to decide what should be counted to ascertain the result of the election. He was told by the law what to count and for what purpose.

In this case, the Clerk counted what was at law a nullity as a secret ballot. His conduct did not give value to the invalid votes and did not in any way affect the result of the election of the Speaker.

The discounting of the invalid votes as well as the declaration of the conduct of the Clerk to be unlawful would not give rise to any difficulty in the determination of who the winner of the election of the Speaker was. The result of the election would not change.

The nullification of the election, based on a secret ballot, would subvert the purpose of the statute.

The general rule is that a declaration of nullity must be confined to the conduct in respect of a particular vote or class of votes, the invalidity of which has been established, unless the non-observance of the requirements of the law governing the specific duty is of a character which is contrary to the principle of an election by a secret ballot and is so great that it might have permeated the process and affected the result of the election: Phillips v Goff (1886) 17 QB 805.

There are numerous cases in which courts have struck off the invalid votes and declared conduct in respect of them void without affecting the election. The principle applied has been that to nullify the results of the election based on votes given by a secret ballot in strict compliance with the requirements of the law governing the election would imply that the provisions of the law complied with are misleading.

Had the Clerk declared the invalidity of the six votes at the appropriate stage in the election process, the declaration would have affected those votes only and not the other votes validly cast.

Why should the court, upon review of his conduct, in failing to do the right thing at the right time, go farther than the remedy the law had placed at his disposal had he acted lawfully?

The purpose of voting is not only the differentiation of the electorate and the expression of the will of the individual voters but also the ability to accept such decisions based on the will of the majority.

In my view, the principle of majority rule, on the basis of which results of democratic elections are determined, requires that courts should refrain from interfering with the will of the majority of voters expressed in accordance with the requirements of the law, on the ground that the official entrusted with the responsibility of conducting the election by a secret ballot unlawfully counted non-secret ballots as secret ballots - especially where there would be no confusion at all as to who is the winner following the discounting of the invalid votes.

An election may be set aside if it is not clear, upon determination of the conduct forming the ground on which the validity of the election is impugned, who was the winner.

In this case, there is clear evidence of the election of the Speaker of the House in accordance with the mode of voting prescribed by the law governing the election concerned.

The general principles of the law on which I have based my decision in this case and believe are applicable in the resolution of the questions raised were stated by LORD COLERIDGE CJ in Woodward v Sarsons (1875) LR 10 CP, referred to with approval in Chanter v Blackwood (1904) 1 CLR 39…,. He said:

"As the first point, we are of opinion that the true statement is that an election is to be declared void by the common law applicable to Parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws.

As to the first, the tribunal should be so satisfied, i.e., that there was no real electing by the constituency at all, if it were proved, to its satisfaction, that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer.

This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation or to be prevented from voting by want of the machinery necessary for so voting, as by polling stations being demolished, or not open or by other of the means of voting according to law not being supplied, or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes or false declaration of numbers by a Returning Officer, or by other such acts or mishaps.

And we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred.

But, if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void….,."

I am of the view that the construction of section 39(2) of the Constitution, as read with Standing Order 6, for the purpose of establishing the intention of the Legislature regarding the nullification of the election for the unlawful conduct of the Clerk, in counting invalid votes as secret ballots, does not justify the conclusion that it is the intention of the Legislature that breach of any of the numerous duties imposed on the Clerk, under the general obligation to conduct the election of the Speaker by a secret ballot, should attract an order of nullification of the election regardless of the nature of the neglect of duty and its effect on the "result of the election".

There can be no doubt that the majority of the voters freely expressed their preference of the candidate they wished to be the Speaker in the secrecy of the polling booth and exercised their right to maintain the secrecy of the ballot in accordance with the requirements of section 39(2) of the Constitution, as read with Standing Order 6.

The majority of the voters were enabled by the process conducted by the Clerk to freely elect, by a secret ballot, the Speaker from the two candidates.

To declare such an election void would be to declare void what is lawful.

The remedy awarded would be wholly disproportionate to the wrong committed. There was, in fact, no failure by the Clerk to conduct the election by a secret ballot within the meaning of the statute. The ballots which were effectively cast decided who was elected as the Speaker of the House.

The fact that the Clerk counted invalid votes as secret ballots because he had not seen the conduct by which they were rendered void did not change their invalid status.

The question is whether the purpose for which the powers to conduct the election of the Speaker by a secret ballot were conferred on the Clerk was fulfilled.

A close interpretation of the facts leads to the conclusion that the purpose of the statute was accomplished.

An appropriate remedy is one which accords with the intention of the Legislature.

In this case, it is the one that upholds the result of the election of the Speaker by a secret ballot.

The valid result is that the second respondent was elected the Speaker of the House by a majority of voters who cast secret ballots.

It would, in my view, be contrary to fairness and justice to say, as a matter of principle, that the Legislature intended that the election of the Speaker conducted by a secret ballot in terms of the law be nullified on account of, say, a single invalid vote counted by the official conducting the election as a secret ballot. The intention of the Legislature must be that only irregularities which undermined the achievement of the object or purpose of the legislation, of ensuring an election of the Speaker based on universal, equal, direct, and personal vote freely expressed by a secret ballot, should vitiate the election.

In the exercise of review powers, the court a quo came to the conclusion that the improper counting of invalid votes as secret ballots was not an irregularity of the class the Legislature intended would vitiate the election.

The conclusion is, in my view, not evidence of a misdirection on the part of the court a quo.

It is when the irregularity affected the actual discharge of the positive duty to conduct the election by a secret ballot, and not by any other type of vote, that it may be used as a ground for challenging the validity of the election by a secret ballot.

The Legislature prescribed the standard which had to be used by everyone, including the court, as an accurate and reliable criterion for determining the ballot papers which had to be counted to ascertain the result of the election.

Applying the test, the Clerk came to a wrong conclusion in respect of the six ballots cast for the second respondent. They were not secret ballots qualified to be counted.

The court a quo was, on the facts, in a position to apply the criterion to the ballot papers and arrive at the conclusion the Clerk ought to have reached in respect of the invalidity of the six ballots had he properly applied the prescribed test.

If it had to set aside anything, the court a quo should have set aside the counting of the ballot papers made by the Clerk and not the election itself.

The legality of the election was dependent upon the will of the electorate having been freely expressed by a secret ballot reflected by accurate and reliable results. The unlawful act of counting six invalid votes as secret ballots because of the wrong application of the prescribed standards of differentiating secret ballots from non-secret ballots did not disable the court, which had jurisdiction to do so, from objectively scrutinising the facts and obtaining a reliable result of the election. The court would be acting within the bounds and limits of the requirement that there should have been brought about an election of the Speaker by secret ballot on the basis of universal, equal, direct, and personal right to vote freely expressed according to the principle of majority rule.

I would therefore dismiss the appeal....,.

The appeal is dismissed with no order for costs.

Finally, in opposing the application, it was contended that the decision of the Tribunal was actually the decision of the President in terms of section 31K(2) of the Constitution of Zimbabwe, and, that being the case, this court has no review jurisdiction over the decision.

I now turn to the final issue in this application.

The respondent has argued that the decision of the Tribunal to recommend the termination of the applicant's appointment is actually a decision of the President, and one which this court has no jurisdiction to review.

In my view, it is not necessary that I decide the matter on this basis.

At the hearing of the matter, I raised the non-citation of the President as an issue, and requested the parties to address me on whether or not such was fatal to the applicant's case.

The parties addressed me on this point during the hearing and counsel for the applicant took advantage of my invitation to the parties at the end of the hearing and has since filed additional written submissions on the issue.

The issue that has exercised my mind as a consequence of the non-citation of the President is whether the recommendation of the Tribunal, once acted upon, continues to have an independent existence, and can be impugned without necessarily impugning the action of the President in implementing the recommendation.

I will explain in some detail.

It is common cause that the applicant deliberately does not cite the President as a respondent as he is not seeking reinstatement as the Attorney General of the Republic. He wishes his removal from that office to remain extant. In other words, he does not seek, in these proceedings, to attack the action of the President in implementing the recommendation of the Tribunal. He argues that the process of his removal from office consists of two separate juristic acts;

(i) The inquiry by the Tribunal;

(ii) His actual removal from office by the President.

He is thus seeking to impugn the first and not the second.

Therein lies my difficulty.

It appears to me that before the Tribunal, such as the one chaired by the respondent, has made its recommendation to the President, its proceedings may competently be set aside on review.

I must hasten to qualify that I am not expressing this as a firm position of law as I have not received full argument on the matter, nor does the issue specifically arise before me.

It, however, appears to me that like the proceedings of any other quasi-judicial body, the proceedings may be set aside before they are concluded, and before any recommendation is made. I do not read anything in the Constitution of Zimbabwe that would have the meaning of ousting the jurisdiction of this court over proceedings of a tribunal set up under section 110 of the Constitution of Zimbabwe.

It further appears to me, following the reasoning above, that even after completing its inquiry, but before its recommendation is acted upon, the proceedings and the consequent recommendation of the Tribunal can be set aside on review.

In both instances, it appears to me that there may be no need to cite the President in review proceedings to set aside the decision of the Tribunal.

Again, I express this view tentatively as the issue does not arise before me. I simply highlight my views in this regard for the purpose of contrasting the position after the President has implemented the recommendation and has taken the action stipulated in the section.

My reading of section 110(3) of the Constitution of Zimbabwe suggests that the President is bound by the Constitution to act on the recommendation of the Tribunal, and once he does that, the removal of the Attorney General from office becomes the action of the President, albeit on the recommendations and advice of the Tribunal.

The two then become inseparable in my view.

While the recommendation and advice can exist on its own before implementation, once implemented, the two become one. On the other hand, the implementation cannot exist on its own without the recommendation, and once the recommendation is lawfully set aside, the implementation fails to have a basis in law and becomes unconstitutional.

On the basis of the foregoing, I find the argument by the applicant untenable.

To separate the proceedings and recommendation of the Tribunal from the ultimate act of terminating the appointment of the Attorney General is, in my view, to suggest that the President can act without such a recommendation of a duly constituted tribunal of experts as provided for in the Constitution.

The applicants in this matter are all duly elected Members of Parliament. The first respondent is the Clerk of Parliament, cited herein in his official capacity.

The second respondent was elected to the position of Speaker of the House of Assembly on the 25th of August 2008.

The applicants challenge the validity of the second respondent's election as Speaker on several grounds.

They originally sought an order setting aside the second respondent's election, and, consequentially, an order nullifying all acts performed by him qua Speaker. However, at the hearing of this case, counsel for the applicants conceded the excessiveness and enormity of the consequential relief sought and opted not to pursue that aspect.

Background

By virtue of section 39(2) of the Constitution of Zimbabwe, the Speaker must be elected in accordance with the Standing Orders of the House of Assembly.

On the 25th of August 2008, following the swearing-in of Members of Parliament (Members), the first respondent announced the procedure for the election of the Speaker. As there was more than one person proposed as Speaker, the election was to be conducted by secret ballot as enjoined by Standing Order Nos. 4 and 6 of the House of Assembly.

According to the applicants, what ensued in Parliament thereafter was chaotic and disorderly and quite contrary to the requirements of a secret ballot.

The first respondent concedes that there was an unprecedented number of Members in the Chamber on that day but denies that the voting process was disorderly or improper. The second respondent supports this position and also raises several preliminary objections to the application, pertaining to locus standi, non-joinder, and the exhaustion of domestic remedies.

The Issues

In the event, the preliminary and substantive issues for determination in this matter, as I perceive them, are as follows:

(i) Whether the applicants have locus standi herein....,.

Locus Standi of Applicants

The second respondent challenges the applicants' locus standi on the grounds that they do not allege any violation of their own right to vote by secret ballot and that it is the losing candidate, one Paul Themba Nyathi, who should have been the principal applicant in this case.

The latter point is untenable for the simple reason that Mr. Nyathi, who was not an MP on the date of the election, has chosen, for reasons known only to himself, not to attack the election process. As for the applicants themselves, they were clearly entitled, as Members, to participate in the election conducted by the first respondent and they unquestionably had a real and substantial interest in the outcome of that election. That being so, they are also entitled to challenge the legitimacy of the election process to ensure that it is conducted in accordance with the prescribed procedures and that it yields a legitimate result.

In the present context, section 3 of the Administrative Justice Act [Chapter 10:28], which codifies and restates the common law position, is directly relevant.

Section 3(1)(a) of the Administrative Justice Act requires every administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person to “act lawfully, reasonably, and in a fair manner.”

In terms of section 4(1) of the Administrative Justice Act, “any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.”

There can be no doubt, in my view, that the conduct of the Speaker's election affected the interests and legitimate expectations of the applicants in the outcome of the election. If they claim to be aggrieved by the first respondent's alleged failure to act lawfully, reasonably, and fairly in the conduct of that election, they are eminently entitled to approach this Court for appropriate relief.

I am therefore satisfied that the applicants have the requisite locus standi in this matter and that the first respondent's objection thereto cannot be sustained....,.

As is clearly recognised in section 5 of the Privileges, Immunities and Powers of Parliament Act [Chapter 2:08], Members enjoy full freedom of speech and debate in Parliament and the proceedings of Parliament are generally immune from being questioned or impeached in any court of law. In other words, as a general rule, Parliament is at large to regulate its own proceedings without external interference.

However, it is well-established that in a constitutional democracy, such as ours, this general immunity is necessarily and invariably subject to the provisions of the Constitution. This subordination to the primacy of the Constitution is entrenched and clearly recognised in sections 3 and 49 of the Constitution. See Smith v Mutasa N.O. & Another 1989 (3) ZLR 183 (SC)…,; Chairman, Public Service Commission & Others v Zimbabwe Teachers Association & Others 1996 (1) ZLR 637 (S)…,.

The election of the Speaker is a process that is not exclusive to Parliamentary privileges and powers. It is explicitly regulated by section 39 of the Constitution and there can be no doubt that it is a matter that is justiciable by the courts to ensure due compliance with the Constitution and the Standing Orders....,.

As I have already stated earlier, Parliament is generally at large to regulate its own proceedings without external interference. As a rule, the courts should be loathe to interfere with the internal proceedings of Parliament unless there is a failure to comply with Constitutional strictures.

Section 3 of the Traditional Leaders Act [Chapter 29:17] provides that:

“(1) Subject to subsection (2), the President shall appoint chiefs to preside over communities inhabiting communal land and resettlement areas.

(2) In appointing a chief in terms of subsection (1), the President -

(a) Shall give due consideration to –

(i) The prevailing customary principles of succession, if any, applicable to the community over which the chief is to preside; and

(ii) The administrative needs of the communities in the area concerned in the interests of good governance.”

The appellant contends that the court a quo misdirected itself in concluding that the President's discretion in the appointment of a chief is unfettered. The court a quo said:

“…,. Section 3 of the Act provides the President with unfettered discretion in the appointment of a Chief…, this exercise of executive powers by the President cannot be reviewed.”

The appellant takes issue with the holding, by the court a quo, that section 3(2) of the Traditional Leaders Act [Chapter 29:17] only requires that there be an investigation into the prevailing customary principles of succession applicable to the community over which the chief is to preside.

The court held that the investigation has no bearing on how the President should exercise his powers.

The appellant argues that the exercise of discretion, in appointing a chief, by the President, is impeachable where it is based on incorrect, irrelevant or improper considerations.

The first respondent argued that the President:

1. Has no obligation to necessarily appoint as chief a person holding traditional title to the chieftainship.

2. His discretion in the appointment of a chief is unfettered.

3. The exercise of his powers is not impeachable in any circumstances.

4. The appointment of a chief is an exercise of Presidential powers which cannot be reviewed by the courts.

5. He is not obliged to follow the recommendations of the second respondent in terms of the Act.

The Constitution of Zimbabwe provides for the extent to which the President's executive powers are justiciable. Section 31K of the Constitution of Zimbabwe provides:

“Extent to which exercise of President's functions justiciable

(1) Where the President is required or permitted by this Constitution, or any other law, to act on his own deliberate judgment, a court shall not, in any case, inquire into any of the following questions or matters -

(a) Whether any advice or recommendation was tendered to the President or acted on by him; or

(b) Whether any consultation took place in connection with the performance of the act; or

(c) The nature of any advice or recommendation tendered to the President; or

(d) The manner in which the President has exercised his discretion.

(2) Where the President is required or permitted by this Constitution, or any other law, to act on the advice or recommendation of or after consultation with any person or authority, a court shall not, in any case, inquire into either of the following questions or matters -

(a) The nature of any advice or recommendation tendered to the President; or

(b) The manner in which the President has exercised his discretion.”

Only the President has the power to appoint a Chief.

It is correct to say that chiefs are Government officials who hold office during pleasure and contingent upon good behaviour. The appointment of chiefs has, since 1927, been controlled by statute. In deciding to appoint a particular person as the Chief to preside over a community, the President acts on his own deliberate judgment. In other words, he is not obliged to appoint that person. In those matters in respect of which the President is empowered to act in his own discretion, the manner in which he exercises that discretion is not subject to judicial review unless he has exercised his discretion outside the law, that is, where the President has, in the exercise of his discretion, made an error of law. Chipfuvamiti v Nyajina & Anor 1992 (2) ZLR 148 (H).

The court a quo accepted that in terms of section 3(2) of the Traditional Leaders Act [Chapter 29:17] an inquiry is required to be carried out on the prevailing customary principles of succession applicable to the community over which the person to be appointed chief is to preside. The court went on to find that once the recommendation was made, the President was free to act as he thought fit. The court cannot inquire into the question whether recommendation was made to the President to appoint the first respondent as Chief Bunina and whether he acted on such advice.

Having accepted that section 3(2) of the Traditional Leaders Act [Chapter 29:17] required that an inquiry be conducted by the officials of the Ministry of Local Government, Rural and Urban Development to ascertain the prevailing customary principles of succession applicable to the community, the court ought to have inquired into the question whether those investigations produced the information on the matters to which the President is required to give due consideration.

The President is required to act on his own deliberate judgment after he has information relating to the prevailing customary principles of succession applicable to the community to which he must give due consideration. Whether the information placed before the President relates to the matters to which he is required to give due consideration is a justiciable question. This means that this is not one of those matters contemplated by section 31K of the Constitution which are not justiciable.

The validity of the exercise of the power to appoint a chief is made to be subject to due consideration having been given to the prevailing customary principles of succession to the chieftainship applicable to the community over which the chief is to preside. An appointment of a chief not preceded by a demonstrable compliance by the President with the obligation to give due consideration to the prevailing customary principles of succession to the chieftainship would be null and void.

In Rushwaya v Minister of Local Government 1987 (1) ZLR 15 it was held…, that:

“Notwithstanding s 66(3) of the Constitution, the High Court can review advice given to the President by the responsible Minister in relation to the appointment of a chief in terms of the Chiefs and Headmen Act, 1982. The grounds on which such advice can be reviewed are illegality, irrationality and procedural impropriety.”

Section 66(3) of the Constitution is now section 31K, which spells out the scope or limit of the executive function the exercise of which is not justiciable. It is accepted that the Minister's recommendation forms the basis of the President's decision as it should be based on information relating to matters to which he is required to give due consideration before acting on his own deliberate judgment.

In PF ZAPU v Minister of Justice, Legal & Parliamentary Affairs 1985 (1) ZLR 305 it is stated in the headnote that:

“The exercise of an executive prerogative is not necessarily an act the question of the validity of which is beyond jurisdiction of the court. The term 'act of State' should only be applied to those acts in respect of which the courts' jurisdiction is ousted. All other executive acts, whether within the prerogative or not, are subject to review on the usual grounds.”

At p313G-H DUMBUTSHENA CJ stated the general principle in these words:

“In my view, an act of State is an act of the executive in those areas of executive prerogative which oust the jurisdiction of the courts. But such executive prerogatives are now very few and far between because whenever the exercise of executive prerogative affects the private rights, interests and legitimate expectations of the subjects or citizens the jurisdiction of the courts is not ousted. The private rights, interests and legitimate expectations of the citizens subject to judicial review acts of the executive which would otherwise oust the jurisdiction of the courts.”

The Traditional Leaders Act [Chapter 29:17] governs the appointment of a person to a particular chieftainship and the recognition and establishment or abolition of any particular chieftainship. Under the statute, the functions are vested in the President. In exercising these powers, the President has an absolute discretion, unfettered by any statutory shackles other than the duty to give due consideration to the customary principles of succession, if any, applicable to the community over which such chief is to preside. It is only the President who can determine who shall be appointed as chief. The court has no power to investigate, determine or even recommend to the President who should be appointed as the chief in the area.

The same principle of law, by which the President is vested with absolute discretion in the exercise of the powers of appointing chiefs, was recognised in Ruzane v Paradzai & Anor 1991 (1) ZLR 273 (SC) where…, MANYARARA JA observed that “the clear meaning of the provision is that the President is required to give due consideration to the customary principles of succession”, not to follow them, in making his choice.

In Chagaresango v Chagaresango & Ors 2001 (1) ZLR 99 (S) it is stated in the headnote:

“…,. While ordinarily it is not competent for a court to investigate how the President has exercised his discretion, it may investigate whether the relevant Minister and his officials, in formulating their advice to the President, acted on sound principle. Where it was shown that the appointment of a chief deviated from the ordinary customs and traditions of the clan in question, and that the Minister had not given due consideration to the customary principles of succession before making his recommendation to the President, the court can make the declaration to the effect that the customary principles of succession to the particular chieftainship were not given due consideration.”

See also Rushwaya v Minister of Local Government 1987 (1) ZLR 15…,.

In CCSU v Minister of the Civil Service [1984] 3 All ER 935 (HL) LORD DIPLOCK…, put and described the three grounds of judicial review as follows:

“The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'.

By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the State is exercisable.

By 'irrationality', I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges, by their training and experience, should be well equipped to answer, or else there would be something badly wrong with our judicial system.

I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.”

It is clear that what is reviewable is not the executive act of the President. The court cannot inquire into the fact that the President decided, in the exercise of his discretion, to appoint the first respondent, instead of anyone else, as Chief Bunina. The court cannot inquire into what information was taken into account by the President in making his decision and whether the decision was justifiable on the information.

The court a quo failed to appreciate the effect of the position taken by the officials in the fourth respondent's Ministry that although the recommendation to appoint the first respondent as Chief Bunina was “non-procedural and non-congruent” with either the patri-lineal or collateral customary principles of succession it was considered to be in the best interests of the chieftainship.

The recommendation was not based on a finding, as implied by the court a quo, that the customary principle of collateral succession was found to be the prevailing customary principle of succession to the chieftainship applicable to the community over which Chief Bunina presided. The learned judge misdirected himself when he held that the appointment of the first respondent, as Chief Bunina, was in accordance with the Rozvi customary principles of succession.

The effect of the finding of the fact of the recommendation made to the President not having been based on any prevailing customary principle of succession is that the President did not have before him facts on the prevailing customary principles of succession to which he was required to give due consideration before making the appointment of the first respondent as substantive Chief Bunina.

The method of choosing the person to be appointed substantive Chief Bunina was the one by which members of some of the houses of the descendants of Chief Bunina voted for their preferred candidate.  The elective method of choosing a person to become a chief is not necessarily consistent with customary principles of succession to chieftainship….,.

The recommendation to the President was contrary to the evidence that the prevailing customary principles of succession to the chieftainship were patrilineal. The officials of the Ministry of Local Government, Rural and Urban Development did not base their recommendation on the evidence. They decided that because the clan was Rozvi by origin they had to apply the collateral principles of succession to the chieftainship. That decision was contrary to the evidence to the effect that succession to the chieftainship, after the death of the original Chief Bunina, was based on the parti-lineal principles of succession because there were no brothers who would have contested the right to succeed him in terms of the collateral principles of succession. The development was important to consider because it is according to the customary principle of collateral succession that a son should not succeed his father as chief.

The problem with this case is that whilst the first respondent claimed that the collateral principles of succession were applicable he was not himself appointed in terms of those principles. He was chosen on the basis of a vote by members of the other three families. He must have known that on the house to house customary principles of succession he had no claim to the chieftainship. The Mkoba house would have had its turn if the primacy of rotational succession was observed. The houses that would have been entitled to succeed to the chieftainship were those of the descendants of Lugwalo, Dick Ndudzo and Mpabanga. Those who voted for him did so out of deference because he was the oldest of the surviving descendant grandsons of Chief Bunina. No evidence was led of the fact that it was a customary principle of succession to the chieftainship that the oldest surviving descendant of Chief Bunina has a right to succeed to the chieftainship even if his house is not next in the line of succession.

The appointment was not supported by the community over which the chief was to preside. The evidence showed that whilst the Bunina family may have migrated from Matojeni Area and were Rozvi by origin they settled in an area inhabited by a community which is predominantly Ndebele. Over many years they practiced the customary principles of succession to the patri-lineal chieftainship in line with the customs of the community over which they presided. If that practice had changed, the officials of the Ministry of Local Government, Rural and Urban Development should have gathered sufficient evidence of the fact of that change from the community. Instead of gathering the evidence they imposed their own views on which customary principles of succession should be applied.

A thorough investigation of the matter was of paramount importance because the last substantive Chief Bunina had succeeded to the chieftainship on the basis of the patrilineal principles of succession. The evidence on record shows that the first respondent approved, in 1985, of Jackson succeeding to the chieftainship following the death of his father, Mantiya, on the basis of the customary principles of patri-lineal succession. He must have accepted that Mkoba had held the office as a regent Chief Bunina because Mantiya was a minor.

The act by the President was initiated by a recommendation not based on facts or findings arrived at by a process prescribed by law. The court a quo did not address this question of compliance by the officials concerned with the due process. Where the law requires that a particular thing be done in a particular way and something else is done there is not only a procedural impropriety; the resultant decision is irrational.

The President was made to act on what the officials decided was the customary principles of succession to the Bunina clan chieftainship without reference to evidence - including the official records. He was made to appoint a person as a chief who was not chosen by his own people in terms of the very customary principles of succession the officials had sought to impose on the community. The first respondent was elected by members of the Bunina family who were at the meeting of 26 June 2006 because he was the oldest surviving grandson of the Chief Bununa. He was not chosen because he was the eldest son in the house which was entitled to succeed to the chieftainship according to the customary principles of collateral succession.

The President did not act on the basis of what was considered, by the community, to be the prevailing customary principle of succession as required by law. In other words, what was placed before the President to enable him to exercise his own judgment in reaching the decision to appoint the chief was not what the statute required to be placed before him. The power vested in the President did not extend to taking into account unlawful matters. It is a question of the limit of the power as opposed to the manner of its exercise.

See Dhlamini v Carter 1968 (2) SA 445 (RAD)…,.

For the President to give due consideration to the matters specified in section 3(2) of the Traditional Leaders Act [Chapter 29:17] before he can act on his deliberate judgment to appoint a chief he must have relevant facts which have a bearing on those matters. Mosome v Makapan N.O. & Anor 1986 (2) SA 44.

'Due' consideration means 'proper' consideration. By making the validity of the exercise by the President of the power to appoint a chief depended upon compliance with the requirements of section 3(2) of the Traditional Leaders Act [Chapter 29:17] underlines the importance of having to give the due consideration to the prevailing customary principles of succession in the appointment of a chief.

The memorandum of 28 August 2006, and the finding of the court a quo, show that the question as to the prevailing customary principles of succession to the Bunina chieftainship remains unresolved. The question was not thoroughly and objectively investigated by the officials of the fourth respondent's Ministry. The prevailing customary principles of succession applicable to the community over which the chief was to preside had to be established before the President exercised his powers under section 3(1) of the Traditional Leaders Act [Chapter 29:17]. The other matters the President is enjoined, by section 3(2)(ii) of the Traditional Leaders Act [Chapter 29:17] Act, to take into account can only be considered where there is “due consideration” of the prevailing customary principles of succession to a chieftainship.

There cannot be “due consideration” of something which has not been established as a fact.

Accordingly, the appeal is allowed with costs….,.

The judgment of the court a quo is set aside and the following is substituted instead that:

(1) It is hereby declared that the customary principles of succession to the Bunina chieftainship were not ascertained and given due consideration in the appointment of the first respondent as Chief Bunina of Lower Gweru.

(2) The fourth respondent, forthwith, make a recommendation to the President for the removal of the first respondent from the chieftainship of the Bunina clan.

(3) The second, third and fourth respondents cause a meeting of all interested parties to investigate and deliberate on the prevailing customary principles of succession to the Bunina chieftainship for due consideration by the President in the appointment of a substantive Chief Bunina.

(d) Has the racial imbalance sought to be addressed in the land reform programme been achieved, rendering any further evictions of white farmers unlawful?

The issue of whether land should be acquired for the land reform programme, how much land should be acquired for that purpose, from whom it should be acquired, and to whom the acquired land should be allocated are matters for the Executive.  

They are policy issues that are not justiciable.

The judgment of the Supreme Court in Moyo v Mkoba and Others 2013 (2) ZLR 137 (S), was delivered on 7 August 2013. The Constitution which ushered in section 283 of the Constitution was promulgated on 22 May 2013 although most of its provisions only came into effect on 22 August 2013. What is apparent…, is that the apex court dealt with the provisions of section 3 of the Traditional Leaders Act [Chapter 29:17] as they applied before the new Constitution changed the law relating to the selection of a chief.

It occurs to me that the remarks of the learned Deputy Chief Justice remain good law even after the coming into effect of the new Constitutional dispensation. In other words, the process of selection at the level of the Provincial Assembly and the responsible Minister, and the recommendations they make to the President, can still be subjected to judicial review while the appointment by the President cannot as it is executive discretion.

What has changed, however, is that the dispute must first and foremost be submitted to none other than the President himself for resolution.

In cases such as this, where the President has the ultimate discretion on whom he appoints as Chief in terms of both the Constitution and the Traditional Leaders Act [Chapter 29:17], what is reviewable by the courts, as stated in the case of Chagaresango v Chagaresango 2000 (1) ZLR 99 (S), is not how the President exercises his discretion but whether those who formulate their advice to him, acted on sound principle.

The Minister's advice, which he relays to the President, is said to be reviewable on three grounds, namely;

(i) illegality;

(ii) Irrationality; and

(iii) Procedural impropriety.

See Rushwaya v Minister of Local Government & Anor 1987 (1) ZLR 15 (S)…, and Gorden Moyo v Stephen Mkoba & Ors SC35-13….,.

The procedural argument put forward by the plaintiff, in relation to section 18(9)(a) and (b) of the 6^th Schedule of the Constitution, takes the matter no further since procedure refers to the manner of proceeding in terms of prescribed form or format. Such cases would generally be by way of review and not trial; moreso, in this case, where the plaintiff's declaration indicates that his complaint is against the manner the procedures were followed or not followed.

This is a court application brought in terms of section 167(2)(d) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”). The section provides that only the Constitutional Court (“the Court”) may determine whether Parliament or the President has failed to fulfil a constitutional obligation.

It is only in relation to the exercise of the powers vested in it by the Constitution that the conduct of the Legislature, as an institution of Government, may be judicially reviewed for constitutionality.

Counsel for the first respondent's argument that it is impossible for a court to review the legislative function of Government is a ghost. It was buried in 1985 in PF-ZAPU v Minister of Justice 1985 (2) ZLR 305 (SC).

A three judge Bench of the Supreme Court, headed by DUMBUTSHENA CJ, held that the exercise of an executive prerogative is not necessarily an act the validity of which is beyond the jurisdiction of the court. It is only those acts of State in respect of which the jurisdiction of the court is ousted that the court may not review. Such executive prerogatives are now very few and far between. Whenever the exercise of executive prerogative affects the private rights, interests and legitimate expectation of the citizens, the jurisdiction of the courts is not ousted.

Acts of State that may be exercised by the President, in terms of the Constitution, in respect of which the jurisdiction of the court is ousted include the appointment, accreditation, reception and recognition of diplomatic agents; the conclusion and ratification of international conventions, treaties or agreements; the proclamation or declaration of martial law or war, etc. Others include the granting of a pardon to convicted persons or the remission or suspension of their sentences, etc. Even then, the superior court said, should the exercise of these prerogatives be done under unlawful conditions or be performed outside the law the courts have a duty to review them….,.

The courts exercise the powers of review within those bounds as have been developed through case law such as PF-ZAPU v Minister of Justice 1985 (2) ZLR 305 (SC) and the e-tolling cases; see National Treasury and Ors v Opposition to Urban Tolling Alliance & Ors 2012 (6) SA 229; Opposition to Urban Tolling Alliance & Ors v South African National Roads Agency Limited 2013 (4) All SALR 639 (Judgment No. 90/2013 of the Supreme Court of Appeal of South Africa).