EXPUNGING
OF PAPERS FILED BY THE FIFTH (NOAH MANYIKA), THE SIXTH (HARRY PETER
WILSON), THE SEVENTEENTH (DANIEL SHUMBA), THE EIGHTEENTH (VIOLET
MARIYACHA) AND THE TWENTIETH (ELTON MANGOMA) RESPONDENTS FROM THE
RECORD
On
the date of the hearing, the Constitutional Court ruled that the
papers filed by the fifth, the sixth, the seventeenth, the eighteenth
and the twentieth respondents ...
EXPUNGING
OF PAPERS FILED BY THE FIFTH (NOAH MANYIKA), THE SIXTH (HARRY PETER
WILSON), THE SEVENTEENTH (DANIEL SHUMBA), THE EIGHTEENTH (VIOLET
MARIYACHA) AND THE TWENTIETH (ELTON MANGOMA) RESPONDENTS FROM THE
RECORD
On
the date of the hearing, the Constitutional Court ruled that the
papers filed by the fifth, the sixth, the seventeenth, the eighteenth
and the twentieth respondents were -
(i)
Not properly before the Court; and
(ii)
Should be expunged from the record with no order as to costs….,.
The
following are the reasons why the Court ordered that the papers filed
by the fifth, the sixth, the seventeenth, the eighteenth and the
twentieth respondents be expunged from the record.
In
terms of section 93(1) of the Constitution, any aggrieved candidate
may challenge the validity of an election of a President by lodging a
petition or application with the Court within seven days after the
date of the declaration of the result of the Presidential election.
The section means that grounds on the basis of which an aggrieved
candidate challenges the validity of the Presidential election result
must be placed before the Court within seven days of the declaration
of the result.
Once
the seven-day period has lapsed, the ground cannot be entertained by
the Court. In addition, the grounds on which the validity of a
Presidential election result is challenged must be placed before the
Constitutional Court in the form of a petition or application. They
cannot be placed before the Court under the guise of the procedure
prescribed for opposition to the petition or application lodged in
terms of section 93(1) of the Constitution.
The
process for lodging an application for relief based on a complaint of
an undue return or undue election of a person to the Office of
President by reason of irregularity or any other cause whatsoever is
prescribed by Rule 23 of the Constitutional Court Rules, S.I.161 of
2016 (“the Rules”).
Rule
23(1) of the Rules provides that an application in which the election
of a President is in dispute shall be by way of court application.
The use of the peremptory word “shall” is of significance. A
“court application”, as a process for instituting court
proceedings, has prescribed requirements, failure to comply with
which attracts legal consequences. The word “petition”, as used
in section 93(1) of the Constitution, must be construed to mean
“court application”.
It
is important to note that Rule 16(1) of the Rules provides that, save
where otherwise provided, in any matter in which an application is
necessary for any purpose, such application shall be by way of a
court application in Form CCZ1, which shall be served on the other
parties.
Rule
16(3) provides that a court application shall be supported by an
affidavit deposed to by a person who can swear positively to the
facts, which details the facts and the basis on which the applicant
seeks relief, together with any supporting documents which are
relevant. The affidavit contains the facts the applicant would need
to prove to be entitled to the relief sought and the evidence
required to prove the allegation made against the respondent.
Rule
16(3)(d) provides that a court application shall request the
respondent to file and serve his or her notice of opposition within
ten days of being served with the application. Rule 17(1) of the
Rules provides that the respondent shall, within the time stipulated
in the application, file with the Registrar and serve on the other
parties a notice of opposition in Form CCZ2. Rule 17(2) provides that
the notice of opposition shall be supported by an affidavit deposed
by a person who can swear positively to the facts, which details the
facts and the basis on which the respondent opposes the application,
together with any supporting documents which are relevant.
The
Court noted that the fifth (Noah Manyika), the seventeenth (Daniel
Shumba) and the twentieth (Elton Mangoma) respondents failed to
comply with the law by filing papers as respondents that supported
the court application. More particularly, the twentieth respondent
went on to seek his own relief, which was substantially different
from that sought by the applicant, although he effectively supported
parts of the allegations that were made in the court application.
Being
of the view that the procedure adopted was improper, the Court
invited the fifth, the seventeenth and the twentieth respondents to
make submissions on whether their papers were properly before it.
They had to satisfy the Court of their right to be heard on the basis
of their papers.
ARGUMENTS
BY THE FIFTH, THE SEVENTEENTH AND THE TWENTIETH RESPONDENTS ON THE
PROPRIETY OF THEIR NOTICES OF OPPOSITION
The
Arguments of the Fifth Respondent (Noah Manyika)
Counsel
for the fifth respondent argued that the fifth respondent had a real
and substantial interest in the application before the Court because
he was a candidate in the Presidential election. She said the fifth
respondent had a right to respond to the application before the
Court.
In
counsel for the fifth respondent's view, section 93(1) of the
Constitution only indicates that, unless there is provision to the
contrary, any aggrieved candidate can file a petition with the Court.
She argued that what was before the Court was a challenge to the
validity of the Presidential election and the fifth respondent had
participated in the Presidential election as a candidate. The mere
participation in the Presidential election, as a candidate, according
to counsel for the fifth respondent, endowed the fifth respondent
with locus standi to appear as a respondent and make submissions on
the issues raised before the Court. According to counsel for the
fifth respondent, it mattered not whether the response to the court
application was in his favour or not. She further argued that the
fifth respondent had a right to file a notice of opposition,
notwithstanding the fact that what he averred in the affidavit was in
support of the court application filed by the applicant and the
relief sought.
Counsel
for the fifth respondent urged the Court to avoid adopting a “strict
interpretation” of section 93(1) of the Constitution and Form CCZ2
of the Rules in favour of a purposive approach. This was regardless
of the purpose of a notice of opposition itself which is to oppose an
application made in terms of section 93(1) of the Constitution.
Counsel
for the fifth respondent contended that the Court should not close
the door on the fifth respondent on the ground that he ought to have
challenged the validity of the Presidential election result as an
aggrieved candidate, rather than appear before the Court as a
“respondent”.
Counsel
for the fifth respondent further contended that section 93(1) of the
Constitution invites a candidate aggrieved by the Presidential
election result to file a petition and then invites all other
candidates to file their papers. She argued that section 93(1) of the
Constitution uses the word “may”, meaning that there is a
discretion to be exercised by an aggrieved candidate in filing the
application. In her view, “may”, as used in section 93(1) of the
Constitution, means that an aggrieved candidate is not obliged to
file a petition or application in terms of that section. In the event
that another equally aggrieved candidate files his or her own
application, the inactive aggrieved candidate can then file any
papers, whether he or she supports or opposes the application.
The
Arguments of the Seventeenth Respondent (Daniel Shumba)
The
seventeenth respondent appeared in person. He submitted that, as a
party served with papers, he had an obligation to respond to the
papers served on him. He argued that he was a candidate in the
Presidential election and remained so until the Court made a
determination on the validity of the Presidential election result.
The
seventeenth respondent accepted that his papers were not properly
before the Court. He, however, argued that the issue before the Court
was of national importance. According to him, it was necessary that
every Presidential candidate be heard by the Court. He contended that
it was important that he and other respondents in his position be
heard as they would enrich the broad issues, making sure that no
information was hidden from the Court. He submitted that the
information in his “opposing papers” had the potential of
assisting the Court to arrive at a fair and just decision.
The
Arguments of the Twentieth Respondent (Elton Mangoma)
Counsel
for the twentieth respondent argued that the notice of opposition
filed was properly before the Court. He submitted that, although he
was in support of certain aspects of the applicant's case, the
twentieth respondent was seeking an alternative relief which was
different from that sought by the applicant. He argued that the
twentieth respondent opposed the relief sought by the applicant on
the basis that he did not get enough votes to be declared the winner
of the Presidential election. He wanted the Presidential election
result announced by the twenty-third respondent (“the Zimbabwe
Electoral Commission”) audited by independent qualified auditors.
He added that the Court was enjoined to consider the contents of the
opposing affidavit.
SUBMISSIONS
IN RESPONSE BY THE APPLICANT (NELSON CHAMISA), THE FIRST (EMMERSON
DAMBUDZO MNANGAGWA), THE TWENTY-THIRD (ZIMBABWE ELECTORAL
COMMISSION), THE TWENTY-FOURTH (CHAIRPERSON OF THE ZIMBABWE ELECTORAL
COMMISSION) AND THE TWENTY-FIFTH (CHIEF EXECUTIVE OFFICER OF THE
ZIMBABWE ELECTORAL COMMISSION) RESPONDENTS
The
Applicant's Response
Counsel
for the applicant invited the Court to consider that the essential
question before it was whether a respondent in a section 93
application was confined to opposing an application. He argued that
an application deals with interested parties. This means that they
can all be heard. He expressed disagreement with the position of the
first respondent, the Zimbabwe Electoral Commission, the
twenty-fourth (the Chairperson of the Zimbabwe Electoral Commission)
and the twenty-fifth (the Chief Executive Officer of the Zimbabwe
Electoral Commission) respondents. He argued that Rule 235 of the
High Court Rules allows a respondent to seek leave to file any
document. The argument was that those respondents who had filed
papers in support of the applicant had a right to be heard.
The
First Respondent's Response
Counsel
for the first respondent argued that the purpose of a notice of
opposition is to oppose an application - not to support it. He
further contended that substantive relief could not attach to a
notice of opposition, as had been done by some of the respondents. He
relied on the case of Indium Investments (Pvt) Ltd v Kingshaven (Pvt)
Ltd and Ors 2015 (2) ZLR 40 (S) for this proposition of law.
He
took the argument further and said that a plea is a shield and not a
weapon. He argued that the fifth, the sixth, the seventeenth, the
eighteenth and the twentieth respondents were, in essence, aggrieved
candidates who did not file court applications within the seven days
prescribed by section 93(1) of the Constitution.
Counsel
for the first respondent contended that the answer to the question
whether a respondent is entitled to agree with the application in a
notice of opposition is to be found in Rule 17(2) of the Rules. He
submitted that Rule 17(2) of the Rules calls upon the respondents to
oppose the application. He argued that if the respondents wished to
challenge the Presidential election result they should have done so
through section 93(1) of the Constitution rather than support the
applicant's application under the guise of a notice of opposition
filed in terms of Form CCZ2.
The
Twenty-Third, The Twenty-Fourth and The Twenty-Fifth Respondents
Counsel
for the twenty-third, twenty-fourth and twenty-fifth respondents
argued that the papers filed by the fifth, the sixth, the
seventeenth, the eighteenth and the twentieth respondents should be
expunged from the record as they were not opposing affidavits at law.
He referred to Forms CCZ1 and CCZ2. He argued that Form CCZ1 calls
upon a respondent to oppose the application. He submitted that Form
CCZ2 is given particularity by Rule 17(2) of the Rules. He submitted
that if the fifth, the seventeenth and the twentieth respondents
wished to be heard on the arguments they placed before the Court,
they ought to have filed their own court applications in terms of
section 93(1) of the Constitution.
Counsel
for the twenty-third, twenty-fourth and twenty-fifth respondents
submitted that the twentieth respondent's draft order made it clear
that he was making a counter-application under the guise of a notice
of opposition. He contended that the fifth, the seventeenth and the
twentieth respondents could have joined the applicant in filing the
application, as any other papers that they filed were essentially
counter-applications. He argued, further, that Rule 235 of the High
Court Rules, referred to by counsel for the applicant, related to
filing of papers after the filing of the answering affidavit. Against
this background, counsel for the twenty-third, twenty-fourth and
twenty-fifth respondents argued that the fifth, the sixth, the
seventeenth, the eighteenth and the twentieth respondents could not
relate to each other inter-se, as suggested by the argument that all
the other respondents could file additional papers to answer the
allegations made in support of the application.
THE
LAW ON THE NATURE OF A NOTICE OF OPPOSITION
In
resolving the legal question that arose from the fifth, the sixth,
the seventeenth, the eighteenth and the twentieth respondents'
papers, the Rules are instructive. The starting point is Rule 23,
which governs disputes relating to the election to the Office of
President. It prescribes the process and progression of a
Presidential election petition or court application filed in terms of
section 93(1) of the Constitution.
Rule
23(3) of the Constitutional Court Rules prescribes two important
requirements;
(i)
The first is that a person cited as a respondent by the applicant in
a court application filed in terms of section 93(1) of the
Constitution is under an obligation to show that he or she intends to
oppose the application.
(ii)
Secondly, the respondent must comply with the procedural and
substantive requirements of defending himself or herself against the
allegations made against him or her in the founding affidavit filed
in support of the court application.
The
respondent has to file with the Registrar a notice of opposition and
serve it on the applicant within three days of service of the
application upon him or her, failing which he or she shall be barred.
Under Rule 23(3) of the Rules, a respondent is the person against
whom allegations of irregularity or electoral malpractices, on the
basis of the occurrence of which the validity of the Presidential
election is challenged, are made.
At
the time a court application is served on a respondent he or she is
notified of the relief that the applicant seeks and that should he or
she intend to oppose the application, he or she should file a notice
of opposition, supported by an affidavit setting out details of the
facts on which he or she opposes the application. He or she is not
afforded the opportunity to depose to an affidavit setting out
detailed facts on the basis of which he or she supports the
application. This is clear when one considers that even the one who
intends to do so but does not oppose the application within the
prescribed time-frame becomes barred from filing such opposition. The
bar places him or her in the position of any other person who does
not oppose the granting of the relief sought in the application.
The
preamble to Form CCZ1 directs the respondent on the contents that a
notice of opposition and the opposing affidavit must contain. The
preamble reads:
“TAKE
notice that the applicant intends to apply to the Constitutional
Court for the Order in terms of the Draft annexed to this notice and
that the accompanying affidavits and documents will be used in
support of the application.
If
you intend to oppose this application you will have to file a Notice
of Opposition in Form CCZ2, together with one or more of the opposing
affidavits, with the Registrar of the Constitutional Court at…,
within…, days after the date on which this notice was served upon
you….,. Your affidavits may have annexed to them documents
verifying the facts set out in the affidavits…,.”…,.
Rule
17(2) of the Rules clearly states that the notice of opposition shall
be supported by an affidavit, deposed to by a person who can swear
positively to the facts, which details the facts and the basis on
which the respondent opposes the application, together with any
supporting documents which are relevant. The Rules require that a
notice of opposition be in terms of Form CCZ2. The preamble to Form
CCZ2 is an extension of Rule 17(2). It states as follows:
“TAKE
NOTICE THAT the Respondent intends to oppose the application on the
grounds set out in the supporting affidavit and supporting documents
attached hereto…,.”
A
reading of the preamble shows that the contents of the supporting
affidavit must oppose the relief that is sought by the applicant. The
intended respondent is warned, in advance, as to the objective of
filing the opposing papers.
The
object of an opposing affidavit is to oppose the relief sought by an
applicant. The respondent's position in the opposing affidavit must
be clear that he or she is opposing the relief that is sought by the
applicant. Once the opposing affidavit supports the relief sought by
the applicant, then it ceases to be an opposing affidavit.
The
face of Form CCZ2 expressly states that the respondent filing the
form has the intention to oppose the application. It does not provide
for an intention to support the application.
It
is, as the name implies, a notice of opposition and its contents have
to be in opposition to the application, as the Rules provide.
Rules
16, 17 and 23 of the Constitutional Court Rules have to be considered
in the context of section 93(1) of the Constitution. Section 93(1) of
the Constitution provides that any aggrieved candidate has to lodge a
petition or application within seven days of the date of the
declaration of the Presidential election result. There is an
opportunity for any of the aggrieved candidates to file such an
application within the prescribed time limit.
CONTENTS
OF THE AFFIDAVITS OF THE FIFTH, THE SEVENTEENTH AND THE TWENTIETH
RESPONDENTS
The
applicant called upon any of the respondents who intended to oppose
the court application to do so by filing a notice of opposition in
Form CCZ2.
The
fifth respondent's affidavit (Noah Manyika)
The
fifth respondent's notice of opposition reads as follows:
“TAKE
NOTICE that the fifth respondent intends to oppose this application
on the grounds set out in the Affidavit annexed to this notice,…,.”
The
facts detailed by the affidavit attached to the notice of opposition
tell a different story. The fifth respondent was in fact supporting
the applicant, contrary to the notice of opposition. The affidavit
contains the following:
“1-3…,.
INTRODUCTION
4.
While I am cited as a respondent, I support Mr Chamisa's
application to invalidate the recent presidential elections. The
purpose of this affidavit is briefly to set out the basis for my
support of this application.
5….,.
6….,.
My contribution will primarily take the form of advancing legal
submissions in support of the applicant, both in heads of argument
and at the hearing. I will advance three propositions:
6.1
First, the validity of a presidential election depends on whether it
was free and fair at all stages of the process.
6.2
Second, the presidential election was not free or fair on the basis
that:
6.2.1
There is clear evidence that the Zimbabwe Electoral Commission
manipulated the election results.
6.2.2
There was a pattern of irregularities and unlawful conduct during the
election campaign and on voting day.
6.3
Third, the just and appropriate remedy is to declare that the
elections were not free and fair, to invalidate the presidential
elections, and to order fresh elections. These fresh elections must
be subject to a structural interdict to ensure that the Zimbabwe
Electoral Commission (ZEC) delivers a truly free and fair
presidential election on its second attempt….,.
7-82…,.
JUST
AND APPROPRIATE REMEDY
83.
I substantially support the relief set out in the draft order
submitted by the applicant.
84
First, I support the declaratory order that the presidential
elections were not free and fair.
84.1
This declaration is necessary to vindicate the constitutional and
statutory rights to a free and fair election which have been
unjustifiably infringed.
84.2
It is just and equitable for this Court to grant this declaration to
ensure that the Zimbabwe
Electoral Commission (ZEC)
and other implicated respondents are under no illusions as to the
unlawful nature of their conduct and to provide proper guidance for
the conduct of future elections.
85
Second, I also support an order invalidating the presidential
elections under section 93(4)(b) of the Constitution and/or section
117 of the Electoral Act.
85.1
This order is the just and appropriate remedy under section 93(4)(b)
of the Constitution as the irregularities in the election process
resulted in an election that was not free and fair. I submit that the
absence of a free and fair process is sufficient to establish grounds
for invalidation.
85.2
This order is also justified under section 177 of the Electoral Act
as the irregularities in the election process were in breach of the
principles underlying the Electoral Act and affected the result of
the election. But for these irregularities, Mr Mnangagwa would not
have won the election.
85.3
Any difference between the two tests for invalidation under section
93(4)(b) of the Constitution and section 177 of the Electoral Act
will be addressed in argument.
86
Third, I further support the order directing a new presidential
election within 60 days. This order follows as a matter of course
from an order invalidating the election under section 93(4)(b) of the
Constitution.
86.1
I submit that this election should take the form of a run-off
election between the applicant and Mr Mnangagwa.
86.2
Alternatively, there should be an entirely new presidential election,
if it is found that the election results are too compromised to allow
for any accurate identification of the candidates for a run-off.
87
Finally, I submit that it would be just and appropriate for this
Court to exercise its broad remedial discretion to grant a structural
interdict directing the Zimbabwe Electoral Commission to take
appropriate steps to ensure that the fresh election is truly free and
fair and to report to this Court on its progress. I submit that there
are ample grounds for this structural interdict on the basis that:
87.1-87.2…,.
87.3
There is clear evidence that the presidential elections were not free
and fair…,.”….,.
The
seventeenth respondent's affidavit (Daniel
Shumba)
The
seventeenth respondent's affidavit captured his position as
follows:
“1-1.1…,.
1.2.
I have read the founding affidavit of NELSON CHAMISA, the applicant
in this matter.
1.3.
In the main, I agree with the application, but I do wish to be
involved in these proceedings and would want my views to be
considered by this Honourable Court.
1.4.-1.7…,.
(b)
NATURE OF THE APPLICATION
Ad
paragraph 3.8
1.8.
It is admitted that this application is a challenge of the
Presidential election which announcement the applicant deems to have
been irregular and illegal. I concur with the applicant's averment
that the announcement by the twenty-third and twenty-fourth
respondents was ultra vires the prescripts of the Electoral Act and
the Constitution.
1.9.
To the extent that the announcement of the election results was
irregular, I wish to associate myself and my party with the second
relief sought, that the declaration by the twenty-third respondent
and that the first respondent is the duly elected Presidential
Candidate falls to be challenged as well…,.”…,.
The
twentieth respondent's affidavit (Elton
Mangoma)
The
twentieth respondent went further to make a specific prayer in the
affidavit he filed together with the notice of opposition. The
relevant part of the affidavit reads as follows:
“1….,.
2.
To start with, I do confirm that I duly received a copy of the
petition filed on behalf of the applicant. The petition consists of
the application and a bundle of documents. I have carefully and
diligently read the contents thereof and wish to state that I am
opposed to the granting of part 2 of the relief sought for the
reasons that will more fully appear in the body of my opposing
affidavit. Given the gross irregularities and the margin that was
wrongly attributed to the first respondent it is improper to declare
either the applicant or the first respondent the winner without a
full audit by independent qualified auditors. I wish to place it on
record that I did not file a petition of my own because I believe
that I did not earn reasonably sufficient votes to warrant making a
petition. But this is not to say I am in agreement with the manner in
which the elections were conducted by the twenty-third respondent.
Far from it. I therefore wish to make the following averments to
enable this Court to make an informed determination of this important
matter whose implications will be felt by everyone for the next five
years….,.
3.
The elections were not conducted by the twenty-third respondent in
accordance with the principles of fairness set out in the Electoral
Act and the Constitution. The election was also not free from gross
electoral malpractices, which tainted the whole process to such an
extent that the election cannot be deemed credible. Basically, the
results announced by the twenty-third respondent are not accurate,
verifiable, secure and transparent as contemplated in the
Constitution as I will demonstrate below.”…,.
In
the same affidavit, the twentieth respondent also challenged the
Presidential election result by alleging that some votes that were
counted in favour of the first respondent were from non-existent
polling stations. He claimed that there was bias by the State media
towards the first respondent's campaign, contrary to the Electoral
Act. His substantive relief was couched as follows:
“I
accordingly pray as follows:
(a)
The Presidential election of 2018 was not conducted in accordance
with the laws of Zimbabwe and was not credible and fair;
(b)
In terms of section 93(4)(b), an election to the office of the
President of the Republic of Zimbabwe shall be held within sixty (60)
days of this order.
(c)
The twenty-third, twenty-fourth and twenty-fifth respondents be
ordered to pay costs of the petition on a higher scale.”
As
already indicated, the twentieth respondent had the right to approach
the Court in terms of section 93(1) of the Constitution. The term
“aggrieved candidate” is not qualified by the number of votes the
aggrieved candidate received in the Presidential election. There is
no merit in the twentieth respondent's submission that he could not
have lodged his own court application because he did not earn
sufficient votes to warrant making the application. The misconception
does not validate the procedure he adopted.
When
a person acts as a respondent in terms of Rule 17(2) of the
Constitutional Court Rules, he or she does so for the specific
purpose of opposing the granting of the relief sought by the
applicant and challenging the veracity of the grounds on which the
application is based. He or she must meet the procedural and
substantive requirements, compliance with which confers on a
respondent the right to appear before the Court and be heard in his
or her own cause.
It
is plain that the Rules adequately provide for the procedure to be
followed when filing a notice of opposition.
The
fifth, the sixth, the seventeenth, the eighteenth and the twentieth
'respondents' were not respondents within the meaning of Rules
16(3)(d), 17(1), 17(2), 23(2) and 23(3) of the Constitutional Court
Rules.
DISPOSITION
ON THE EXPUNGING OF THE OPPOSING PAPERS OF THE FIFTH, THE SIXTH, THE
SEVENTEENTH, THE EIGHTEENTH AND THE TWENTIETH RESPONDENTS
The
fifth, the sixth, the seventeenth, the eighteenth and the twentieth
respondents failed to comply with the requirements of the law
relating to the substance of an opposing affidavit. They had no locus
standi and the papers they purported to file were not properly before
the Court. An order that the papers filed by the fifth, the sixth,
the seventeenth, the eighteenth and the twentieth respondents be
expunged from the record of proceedings was accordingly made by the
Court.
