GWAUNZA
JA: This
is an appeal against the entire judgment of the Electoral Court,
Bulawayo, handed down on 31 January 2014.
The
brief facts of the matter are as follows:
The
appellant was a candidate for the National Assembly seat for
Tsholotsho North Constituency in Matabeleland North Province in the
harmonised elections held on 31 July 2013. He was a nominee of the
ZANU (PF) political party. The respondent was also a candidate for
the same seat representing the MDC-T political party.
The
respondent was declared the winner of the National Assembly election
in respect of the said constituency. The appellant was not satisfied
with this outcome and filed a petition in terms of section 167 of the
Electoral Act [Cap
2:13]
(“the Act”)
Among
other relief, the appellant sought an order in the following terms:
1.
That the respondent was not duly elected as the representative of
Tsholotsho North Constituency as declared on 1 August 2013 by the
Zimbabwe Electoral Commission; and
2.
That the said election be set aside and a by-election held within 90
days of the order.
At
the hearing of the petition the court a
quo
upheld the points in
limine raised
by the respondent and issued an order in the following terms:
“1.The
Electoral Petition filed by the petitioner in this case is fatally
defective and is of no force and effect for want of compliance with
Rule 21(e) and (g) of the Electoral (Application, Appeals and
Petitions) Rules, 1995.
2.
The Applicant's Petition is hereby dismissed with costs.
3.
The Respondent Roseline Nkomo be and is hereby declared duly elected
member of the National Assembly for the Tsholotsho North
Constituency.
4.
The Registrar is hereby directed to proceed in terms of section
171(3)(a)(ii) of the Electoral Act [Cap
2:13].”
Dissatisfied
with the judgment of the court a
quo,
the appellant noted an appeal to this Court and raised a number of
grounds of appeal which may be summarised as follows;
1.
The dismissal of the Petition without a trial was in contravention of
section 171 of the Electoral Act, which makes a trial mandatory;
2.
That the court a
quo
erred at law in finding that the form of the petition adopted by the
Appellant was not in compliance with the Electoral Act and Rules.
The
appellant accordingly seeks an order that:
(i)
The appeal be allowed.
(ii)
The order of the court a
quo
be set aside and substituted with an order to the effect that the
points in
limine
raised by the respondent be dismissed with costs and the matter
referred to trial before a different judge of the Electoral Court.
Before
the hearing in the court a
quo
the parties agreed on the issues to be determined by the court and
these were set out in a joint pre-trial conference minute dated 13
December 2013. Among such issues were two preliminary matters one
being whether the petition conformed to the provisions of the Act and
relevant Rules.
As
already indicated the court a
quo
found that the petition did not comply with Rule 21(e) and (g) of the
Electoral (Applications, Appeals and Petitions) Rules S.I. 74A of
1995 (“the Rules”).
The
appellant challenges this finding on the two grounds mentioned above.
He contends;
(i)
firstly, that it is contrary to section 171(1) & (3) of the Act
which requires that such a determination be made only at the end of a
trial.
(ii)
Secondly he submits that in any case, the petition that he filed
complied substantially with the requisite requirements of the Act and
Rules.
The
section reads as follows:
“1.
An Election Petition shall be tried
by the electoral court in open court.
2.…
3.
At the conclusion of the trial
of an election petition, the electoral court shall determine whether
the respondent was duly elected or whether any, and if so, what
person other than the respondent was entitled to be duly elected ….”
(emphasis supplied)
The
appellant argues on the basis of these provisions that in the court a
quo
a trial neither commenced nor was it concluded, as the matter had
been determined on preliminary points.
It
is the appellant's further argument that the order of the court a
quo
was therefore not competently made.
We
find merit in the submissions made by Mr Biti
for the respondent that a trial is a process that consists of
pleadings (which are adjectival and procedural) and substance (which
is the oral hearing where viva
voce
evidence is led). Further that, as part of any trial, a court is
enjoined to hear arguments on points in
limine,
if
any,
and may dispose of the matter purely on those points. As is evident
from the joint pre-trial conference minute, both parties appreciated
this possibility. Indeed at the commencement of the hearing before
the court a
quo
the parties made submissions on the preliminary issues raised. The
court was, after that, required to make a determination on these
issues and properly proceeded to do so.
In
contending that the petition that he filed in the court a
quo
substantially complied with the relevant provisions of the Act and
the Rules, the appellant specifically cites Rule 21 which in part
states that:
“An
election petition shall be generally in the form of a court
application….”
The
appellant further argues that since “court application” is not
defined in the Rules, resort must be had to Rule 33 of the High Court
Rules, 1971 which defines a court application.
On
the basis of this definition, the appellant submits that a petition
can properly take the form of a court application as set out in Form
29 of the High Court Rules. This is despite the fact that Form 29
does not have a provision that requires that the petitioner's cause
of action or relief be set out within the said document.
While
this may be true of ordinary court applications, we find that sight
must not be lost of the rest of Rule 21 which provides, inter
alia,
that an election petition shall
state:
“(a).…
(b).…
(c)…..
(d)……..
(e)
the grounds relied on to sustain the petition.
(f)……….
(g)
the exact relief sought.”
In
our view Rule 21 is not only specific and peremptory but it also
clearly and adequately sets out the requirements regarding the form
and content of a petition.
Specifically,
the grounds relied on and the exact relief sought must all
be
apparent ex
facie
the petition.
There
is no provision for these details to be substantiated in supporting
affidavits or other attachments to the petition.
There
is accordingly, in our view, no merit in the contention made on
behalf of the appellant that there is no specific provision relating
to petitions nor that Rule 33 of the High Court Rules should be
adopted as the default rules in this respect.
It
is not in dispute that the form and content of the appellant's
petition did not conform to the format set out in Rule 21(e) and (g).
The petition set out in very brief terms, three grounds on the basis
of which he sought the relief outlined in his draft order. Its
petition ended with the following;
“TAKE
FURTHER NOTICE THAT the accompanying affidavit and supporting
documents are tendered in support of this application and should be
read as specifically forming part of this notice.”
This
latter part of the petition suggests that the appellant, erroneously
in our view, took the view that a petition can also properly be
called a “Notice.”
The
court a
quo
considered, but was not persuaded by, Mr
Hussein's
submission that, taken together with the other supporting documents
attached to it, the petition that was filed substantially satisfied
the requirements of Rule 21. The court found, as stated on page 4 of
its cyclostyled judgment, as follows:
“I
am of the view that if the framers of the law intended to provide
that the petition shall be accompanied by an affidavit and supporting
documents, this would have been stated in clear and unambiguous
terms….
The
express provisions of the law allow a petitioner to lodge a petition
in terms of the laid down procedure…. Whilst it may be convenient
for the applicant to present a petition with brief grounds set out in
what he refers to as the “notice” accompanied by an affidavit and
other supporting documents, this does not become in my view the form
prescribed by statute….”
The
reasoning of the court a
quo
in our view cannot be faulted.
It
reinforces the position at law, that our Electoral Court is a
creature of statute. It cannot operate beyond or outside the
provisions of the enabling statute and the Rules made thereunder.
The
reasoning also finds support in a plethora of cases in the Electoral
Court and this Court, some of which were cited in the respondent's
heads of argument.
The
remarks made in the case of Hove
v Gumbo
(Mberengwa
West Election Petition Appeal) 2005 (2) ZLR 85 are particularly
pertinent in this respect. At page 92A the court stated as follows:
“A
petition is not a common law cause of action. It is a special
procedure created by statute. The law governing the manner and
grounds on which an election may be set aside must be found in the
statute and nowhere else.”
The
court also cited with approval remarks in the Indian case of Sahu
v Singh
& Anor
(1985) LRC 31 at page 39 that:
“The
rights arising out of elections, including the right to contest or
challenge an election are not common law rights. They are creatures
of statutes which create, confer or limit those rights. Therefore,
for deciding the assertion whether an election can be set aside on
any alleged ground, the courts have to consult the provisions of the
law governing the particular election. They have to function within
the framework of that law and cannot travel beyond it.”
In
the result we are satisfied that a trial was properly held in
accordance with section 171(1) and (3) of the Act. It follows that
the determination by the court a
quo
was proper. This appeal therefore lacks merit and must fail.
It
is accordingly ordered as follows:
“The
appeal be and is hereby dismissed with costs.”
GARWE
JA: I
agree
GUVAVA
JA:
I agree
Messrs
Hussein Ranchod & Co,
Appellant's Legal Practitioners
Messrs
Phulu & Ncube,
Respondent's Legal Practitioners
