The four appeals are against parts of the High Court's Judgment HB157-23 (“the court a quo”) which was handed down on 27 July 2023.
The appeals are against the decision of the court a quo setting aside the thirteenth respondent's decision to accept the appellants nomination papers as candidates for the impending harmonised general elections.
The four appeals SCB59/23, SCB60/23, SCB61/23 and SCB62/23 were consolidated and heard by this Court on 2 August 2023.
On 3 August 2023, we issued the following order:
1. The appeals be and are hereby allowed with costs.
2. The judgment of the court a quo be and is hereby set aside and substituted as follows:
'The applications be and are hereby dismissed with costs.'
3. The reasons for the court's decision will follow in due course.”
We undertook to furnish reasons for our disposition. These are they.
FACTUAL BACKGROUND
On 21 June 2023, the fourteenth respondent constituted a Nomination Court to receive submissions for the nominations of candidates for the election of constituency members to the National Assembly for the Bulawayo Metropolitan Province. This was in accordance with Proclamation 4 of 2023, gazetted under S.I. 85 of 2023 by the President.
The determinant facts of this appeal emanate from the events that transpired on 21 June 2023 at the Nomination Court.
The appellants appeared before the Nomination Court for their nominations as candidates for elections scheduled for 23 August 2023. The nomination officer accepted their nominations and registered them as candidates.
The respondents, except for the thirteenth to fifteenth respondents, applied to the court a quo for the setting aside of the appellants (respondents a quo) nominations. They alleged, that, their nomination papers were in disarray. They further alleged that when the appellants lodged their papers, before 4pm, they were advised to correct them. The respondents further alleged, that, the appellants thereafter filed their corrected papers out of time, after 4pm, in violation of the Electoral Act [Chapter 2:13] (“the Act”). They further alleged that, by 4pm, the appellants were outside the courtroom frantically trying to rectify their nomination papers. They further asserted, that, such nominations were null and void.
In response, some of the appellants asserted that their papers were in order and that they lodged them with the nomination officer who accepted them before 4pm. The other appellants stated, that, their papers had errors which were pointed out by the Nomination Court and were corrected and filed with the nomination officer before 4pm. Some of the appellants maintained, that, they were in court with their corrected papers which were accepted before 4pm.
In his opposing affidavit, the 13th respondent, Innocent Ncube, in his official capacity as the Provincial Elections Officer, and, for and on behalf of the Zimbabwe Electoral Commission (“ZEC”) and the Chairperson of ZEC, indicated that the nomination papers were procedurally and timeously lodged between 10am and 4pm. He also pointed out that the designated courtroom could only accommodate 12 to 15 people at any time. During the proceedings, at 3:55pm, he announced that all prospective candidates who were queuing outside because of his administrative decision (to allow 12 to 15 people at any time) should hand over their nomination papers to the police officer as the court was due to close at 4pm. The police officer collected all the nomination papers and handed them over to the thirteenth respondent before 4pm. Thereafter, the nomination officer would call in those whose papers he would be processing.
In respect of the form, Annexure “B” relied upon by the applicants a quo, he pointed out that it was a register in which the secretary captured the times when the nomination forms were inputted into the Zimbabwe Electoral Commission's (ZEC) records. In other words, he stated that the form was for the purpose of data capture into ZEC's system and not a record reflective of the time when the nomination papers were lodged with the nomination officer.
On the basis of the above facts, the court a quo found for the applicants a quo (now respondents). It held that the appellants nominations had been lodged after the stipulated cut-off time of 4pm. It, therefore, declared the nominations of the appellants as null and void.
PROCEEDINGS BEFORE THE COURT A QUO
The parties made submissions on both the preliminary points and the merits before the court a quo, after which the court a quo rendered a composite judgment for all the applications, which had been consolidated by consent.
Counsel for the thirteenth, fourteenth, and fifteenth respondents raised a preliminary point, that, the court a quo had no jurisdiction. He submitted that all the applications ought to have been filed in the Electoral Court.
Counsel for the first to the sixth appellants associated himself with the submissions made by counsel for the thirteenth, fourteenth, and fifteenth respondents on jurisdiction.
He further submitted, that, there was no application before the court because the first to twelfth respondents had irregularly truncated the dies induciae. Counsel also argued that the respondents had no locus standi and that the applications were based on hearsay evidence. He submitted that the first to twelfth respondents had not attended the Nomination Court but sought to rely on social media reports and a document, Annexure “B” which was differently interpreted by the Electoral Commission.
He also argued in limine, that, there were material disputes of fact that could not be resolved on paper.
He further submitted, that, there was a material non-joinder of Citizens Coalition for Change party (CCC) which had sponsored some of the appellants. In support of this assertion, he contended that the party would be prejudiced in obtaining proportional representation seats.
Finally, on preliminary points, counsel submitted that the applications were an abuse of the court process.
Counsel for the seventh to twelfth appellants in SCB59/23 associated himself with the preliminary points raised by counsel for the thirteenth, fourteenth, and fifteenth respondents and counsel for the first to the sixth appellants. He emphasised that the applications were based on hearsay evidence and that only the Electoral Court had exclusive jurisdiction to hear the applications.
Counsel for the first to fourth appellants in SCB61/23 associated himself with submissions made by counsel who addressed the court before him.
Counsel for the appellants in SCB60/23 also associated himself with submissions that had been made by counsel before him.
Per contra, counsel for the first to twelfth respondents opposed all the preliminary points raised, characterising them as meritless.
He relied on the case of Kambarami v 1893 Mthwakazi Restoration Movement Trust and Others SC66-21 for the proposition, that, the court had jurisdiction. Regarding the validity of the applications, he submitted that the parties had attended a case management meeting and agreed on truncating the dies induciae.
On locus standi, he submitted that the respondents had a legitimate interest in the nomination proceedings because they had a direct and substantial interest in the outcome of the process. In relation to the applications being based on hearsay evidence, he contended, that, the respondents relied on public information and that there was Annexure “B” which supported their position. He further submitted that there were no material disputes of fact. A robust approach would resolve the matter.
Counsel for the first to twelfth respondents further submitted, that, the applications a quo were not an abuse of the court process given the substantial interests which the respondents had in the nomination of candidates for the constituencies where they were registered voters.
Finally, in relation to the non-joinder of Citizens Coalition for Change party (CCC) he argued that the party had no direct and substantial interest in the acceptance of the nomination papers.
The court a quo deferred the determination of the preliminary points to the end of the hearing and sought to be addressed on the merits.
Counsel for the first to twelfth respondents submitted, in support of the applications, that, the nominations ought to be nullified since they were accepted after 4pm in defiance of section 46 of the Electoral Act [Chapter 2:13]. He further submitted that the nomination officer unlawfully opened the court to specifically allow the affected candidates to present their papers out of time. He argued that the police officer who collected the papers was not a nomination officer. Annexure “B” confirmed that the nomination papers were filed out of time.
Counsel for the thirteenth to fifteenth respondents submitted that Annexure “B” was not a document reflective of the times when the nomination papers were lodged with the nominations officer. Further, he submitted, that, the nomination papers were submitted and received before the cut-off time of 4pm on the day in question. He emphasised that the officers of the Zimbabwe Electoral Commission (ZEC) who placed evidence before the court, through their supporting affidavits, spelt out that no nomination papers were submitted after 4pm. Finally, he submitted that there was no breach of section 46 of the Electoral Act.
Counsel for the first to the sixth appellants in SCB59/23 submitted, that, the respondents were relying on hearsay evidence that the social media was awash with; information that the appellants nomination papers were in disarray and filed out of time. He pointed out that the appellants filed their papers in compliance with section 46 of the Electoral Act before 1600 hours. Further, in opposing the allegations, he relied on the Zimbabwe Electoral Commission (ZEC) and the nomination officer's evidence that Annexure “B” was not a document indicative of the lodgement of nomination papers, but, that the time reflected on it related to the time of data capture.
Counsel for the seventh to twelfth appellants in SCB59/23 was also critical of Annexure “B” and he agreed with submissions by counsel for the first to the sixth appellants in SCB59/23 on it. He submitted that the respondents were relying on hearsay evidence and that they failed to discharge the onus and to prove the factual basis of their allegations. Their evidence was speculative as they relied on social media assertions.
Counsel for the appellants in SCB60/23 associated himself with submissions made by counsel who addressed the court before him. He emphasised, that, his clients submitted their nomination papers on time. He further added that the collection of nomination papers by the police officer, at the instruction of the nomination officer, did not amount to contravening section 46 of the Electoral Act.
Counsel for the first to fourth appellants in SCB61/23 associated themselves with counsel for the other appellants submissions.
DETERMINATION OF THE COURT A QUO
The court a quo gave a composite judgment. It dismissed all the preliminary points and made a finding that Annexure “B” was a document prepared by a Zimbabwe Electoral Commission (ZEC) official and that it spoke for itself, that, the nomination papers were submitted after 4pm. It found that the submission of papers from the appellants, through the police officer, was unlawful. It thus declared the nominations as null and void and issued the following order:
“IT IS DECLARED THAT:
1. That, the decision of the 1st Respondent, sitting as a nomination court at Bulawayo on 21 and/or 22 June 2023 to accept the following Respondents nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 was in contravention of section 46(7) & (8) of the Electoral Act [Chapter 2:13].
2. That, the decision of the 1st Respondent, sitting as a Nomination Court at Bulawayo on 21 and/or 22 June 2023, to accept the following Respondents nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 is declared null and void and is hereby set aside.
ACCORDINGLY, IT IS ORDERED THAT:
3. 1st Respondent is prohibited from including the names of the following Respondents in the preparation of ballot papers to be used in the general elections scheduled to be conducted on 23 August 2023.
4. Respondents shall jointly and severally pay the costs of suit.
OBERT MANDUNA; ERECK GONO; DOUGLAS NCUBE; GIFT SIZIVA; SANPOULUS MAPLANKA; PRINCE DUBE; NQOBIZITHA NDLOVU; DESMOND MAKAZA; BAJILA COLLINS DESCENT; SICHELESILE MAHLANGU; DESIRE MOYO; ALELAIDE MHLANGA; NOMPILO BHEBHE; SURRENDER KAPOIKILU; RAPHAEL PASHOR SIBANDA; NTANDOYENKOSI MINENHLE GUMEDE; FRANK MHLANGA.
5. The application against Zvikwete Innocent Mbano be and is hereby dismissed with costs.
6. The application against ADMORE GOMBA, NIGEL NDLOVU, SONENI MOYO, DINGILIZWE TSHUMA, STRIKE MKANDLA & ALBERT MHLANGA be and is hereby withdrawn.”...,.
SUBMISSIONS BEFORE THIS COURT
(a) Preliminary Issues
Counsel for the first to the twelfth respondents raised three preliminary issues....,.
The second point raised was that the appeals were fatally defective because the appellants appealed against the whole judgment instead of the parts that affected them.
He further pointed out that some of the appeals did not cite some of his clients who were applicants before the court a quo. This was particularly argued to be the case with SCB60/23. In his view, such an omission denied parties who were before the High Court the right of audience. It was contended, that, the appeals could not be valid appeals if they left out interested parties....,.
