On a careful perusal of the provisions of the Urban Councils Act [Chapter 29:15], it is clear that there is no specific provision dealing with the removal of a Mayor from office. In order to determine the intention of the legislature on this important issue, one must, I think, have regard to the entirety of the provisions of the Urban Councils Act [Chapter 29:15] and the Interpretation Act [Chapter 1:01].

This matter was initially placed before me under a certificate of urgency. As the final and interim relief sought on the provisional order were the same, I wrote an endorsement on the face of the application querying the manner in which the relief had been framed.

The letter of explanation was not placed before me and it was not until after some months that the matter was then brought to my attention. In the event, it was set down before me in chambers to be argued as an urgent application.

The respondents indicated a desire to file affidavits in opposition and it was agreed between the parties that the best way was for the matter to be dealt with as an opposed application. The parties thereafter filed their documents, including heads of argument, and the matter was then argued in court.

On the date of hearing, counsel for the applicants made reference to a number of authorities to which I had no access. He promised to avail them to me shortly thereafter, but, it was not until 31 May 2007 that this request was complied with. It was, as a consequence, virtually impossible to render a judgment soon after the hearing as I then was heavily committed in other duties.

I turn now to the application before me.

The applicants are unions representing members in the employ of the second respondent. The first respondent is a medical aid society set up for the benefit of the employees of the second respondent and would appear to have been set up by virtue of a Collective Bargaining Agreement between the second respondent and its employees.

It is common cause that the first respondent was collecting subscriptions from the employees and the second respondent. Benefits which the employees received were not related to the level of payment by the beneficiary and it was, consequently, a fact that the second respondent was operating as a welfarist society with its members being afforded the same benefits.

In August 2006, the second respondent put into effect a three-tier system where benefits were structured according to the level of contributions paid by respective members.

Following representations made to the second respondent, the changes were not put into effect immediately as the parties attempted to find a common position. However, at the end of August 2006, the second respondent gave notice of its intention to put the changes into effect at the beginning of October 2006. The changes were put into effect and the system is now operational.

In view of the reasons I alluded to earlier, an attempt to have a temporary interdict stopping the implementation was still-born. It therefore only leaves the final relief for determination.

The terms of the final relief are in the following terms:

1. That the implementation and execution of the tiered system by the first respondent, effected on 1 October 2006, be and is hereby set aside.

2. That the first respondent be and is hereby ordered to cease/stop and be inducted from implementing the tiered system introduced on 1 October 2006.

3. That the first respondent pays the costs of suit.

Extensive heads of argument were filed on behalf of the parties. In addition, both counsel addressed the court orally.

Counsel for the applicants argued that there were three issues for determination:

(i) The first issue was whether or not the first respondent had powers, in terms of its Constitution, to alter the medical aid scheme in existence since its inception. Counsel invited me to look at the narrow positivist meaning of clause 11(2) as well as the context of the agreement.

(ii) The second issue was whether or not the Board of the third respondent had issued a directive to the first respondent following upon a meeting held on 20 October 2006; and

(iii) The last issue was whether or not the applicants had a legitimate interest to be heard before a decision was made to link benefits to subscriptions.

Counsel for the respondents argued almost on the same premise as counsel for the applicants viz whether the second respondent had the power to introduce the benefit structure that it did.

His argument was that the applicants had considered the structure of the third respondent in isolation of the statute. He submitted that the first respondent had the power to alter the benefits accorded to its members. In so far as the third respondent was concerned it was his contention that it had not issued a directive to the first respondent to stop implementing the alteration in the benefit structure. Lastly, it was argued, on behalf of the first respondent, that, the provision of medical services by the first respondent to members of the applicants was not a condition of service and that therefore there was no need for the applicants' members to be consulted prior to the implementation of the changes.

I think the logical place to start in this matter is the examination of the relationship between the applicants and the first respondent.

The first respondent was established by the National Industrial Council for the Railway Industry in 1970. One of its objects was to afford members the facility of obtaining medical and surgical treatment for themselves, and their dependants, including the provision of drugs and medicines.

According to the Constitution in terms of which the first respondent was set up, its members comprised of the following; employees of Railways, employees of National Railways of Zimbabwe, Railmed, National Railways of Zimbabwe Pension Fund, RAE, RAU, RAYOS, REC, RMS, and Z.A.R.W.U. who are entitled to membership in terms of their conditions of employment.

Also included in the list of people entitled to be members are pensioners of the various institutions described above and the widows or widowers of those persons who had been in employment in the same and were members of the first respondent.

The applicants, being unions, are representing the persons employed by the various bodies I have referred to. Except for those employed by the first respondent, none of the members of the applicants can say that they are employees of the same. The greater number of the applicants' members therefore are employed by the other bodies.

Going by the objects of the Constitution of the first respondent, the applicants' members have a relationship with the first respondent whereby the latter has undertaken to afford the members facility for the provision of medical and surgical treatment as well as drugs and medication. Nowhere in their papers have the applicants' alluded to any other contract with the first respondent except for the provision of the services I have described above.

Yet, in addressing the question of the first respondent's actions in altering the benefit structure being offered to their members, the applicants contend that the actions of the first respondent are in fact an alteration of their conditions of service.

In order to dispose of the issue of the relationship between the applicants and the first respondent, it then becomes necessary to arrive at a decision as to the meaning to be ascribed to the phrase “conditions of service.”

When one is in service, one is in employment, and, therefore, conditions of service are the same as conditions of employment. In the case of OK Bazaars (1929) Ltd v Madeley NO & Anor 1943 TPD392, conditions of employment were described as:

“Conditions of employment in the present context means simply the terms, either express or implied, contained in a contract of employment.”

The terms and conditions of the employment contracts of the applicants' members are not in the purview of the first respondent. In my view, conditions of service can only exist where services of a personal nature are rendered, the one being the employer the other the employee.

We do not have services of a personal nature being rendered by the applicants' members to and on behalf of the first respondent.

I presume that the contracts of employment provide for contributions by the employer for subscriptions to a medical aid society. Beyond that, I refuse to go as the contracts are not before me and any further comments on my part would be mere speculation.

The point is made by counsel for the applicants that the effect of the alteration put in place by the first respondent was to fundamentally alter the structure of the Medical Fund from one based upon the principle of equal contributions from the employer and employee and equal unlimited benefits to a new principle of a scheme based on full recovery.

I accept that the entitlement to the medical aid benefit, on the basis of the equal contribution with the employer and attendant benefits is a condition of service. I do not accept, as contended by counsel for the applicants, that receiving equal benefits with other members where the one pays less than another member is a condition of service.

However, the linking of the benefits to the level of subscriptions paid by the first respondent's members does not affect the terms on which the members of the applicant are afforded employment by their respective employers.

The level and extent of benefits afforded to members is within the discretion of the first respondent and the employer has no input in such assessment.

There is no suggestion that under the new scheme the employer will contribute less than it has been contributing, because if that were the case then the applicants' members would have been on very firm ground in arguing that their conditions of service had been altered.

All the scheme does is to ensure that a contributor obtains services according to the level to which they can contribute in terms of subscriptions. The employer's obligation is not lessened in any manner as he is still obliged to contribute in equal measure to the contributions made by the member.

The condition of service is the entitlement to membership in terms of the contract of employment coupled with the employer's obligation to contribute an equal measure as the employee.

Since the employer does not determine the level of benefits afforded by the first respondent, the fact the benefits are reduced does not alter the conditions of service which remain unchanged. I am unable to find, therefore, that, the scheme has the effect of altering the conditions of service of the first respondent's members.

I move on.

The next issue I have to determine is whether the first respondent has the power, under the Constitution, to alter the benefit scheme in the manner that it did.

The powers of the first respondent must, of necessity, be examined in the conjunction with the provisions of the Medical Services Act [Chapter 15:13] (“the Act”) which regulates the manner in which medical aid societies conduct their business as well as the manner in which they are managed.

Although the first respondent, as an entity, was set up in 1970, which was prior to the promulgation of the Medical Services Act, its registration was deemed in terms of section 17 of the Medical Services Act.

I start with the definition section which not only describes a medical aid society but also specifies its purposes. The definition in section 2 of the Medical Services Act is as follows:

“…, any association or organization which accepts subscriptions from members or other persons wholly or mainly for the purposes of -

(a) Paying any expenses incurred by such members or persons, and, additionally, or alternatively, their dependants or employees, in respect of medical or dental treatment; and

(b) Meeting the whole or part of any expenses incurred by such members or persons, and, additionally, or alternatively, their employees, in respect of medical or dental treatment.”

The registration of a medical aid society is provided for in section 9 of the Medical Services Act.

Section 9(5) of the Medical Services Act provides that the Secretary shall be satisfied in relation to the following before he can register a medical aid society:

(a) The minimum cover for medical services to be provided by the medical aid society is adequate for the purpose of meeting the costs of medical services at such level as may be prescribed; and

(b) Adequate financial provisions have been made for the proper maintenance of the medical aid society.

In terms of section 10 of the of the Medical Services Act, the Secretary is empowered to cancel the registration of any medical aid society which fails to comply with the provisions of section 9(5).

My view is that the powers granted to the first respondent, in terms of the Constitution, have, of necessity, to be considered in conjunction with the provisions of sections 9 and 10 of the Medical Services Act.

The Constitution provides for the creation of a Board to administer the affairs of the first respondent. Ten members are required to sit on the Board; five of whom shall be appointed by National Railways of Zimbabwe and the last five from the other entities mentioned earlier on in the judgment, from those institutions whose employees or members are entitled to membership of the first respondent.

Clause 11, from which the Board derives its powers, is phrased thus:

“Powers and Functions of the Board of Management

(1) Subject to the provisions of the Medical Services Act, the regulations made in terms thereof and any other law, it shall be the duty of the Board to administer the affairs of Railmed in a judicious manner at all times and always to act in the best interest of both Railmed and its individual members and to implement the directives of the Secretary responsible for the Health Ministry and REC as may be given from time to time.

(1) It shall have the power to:

(a) Formulate and issue Rules of Railmed to include the schedule of rates payable by different categories of members;

(b) Modify, amend, repeal, substitute or suspend any or all of such Rules where general or specific circumstances require such action;

(c) Determine the range and scope of benefits to be afforded by Railmed; and

(d) Refuse, terminate or restrict benefits in respect of any beneficiary who contravenes any Rule of Railmed.”

Although they have been placed before me, I have not been referred to the Rules of Railmed specifically and I cannot comment further on them other than to say that the first respondent does have the power in formulating such Rules to regulate the rates payable by the different categories of members which, of necessity, taking into account the different levels of employees in the undertakings must go with a medical aid society.

In real terms, the first respondent would have to set the level and range that each category of membership would have to pay as subscription for the services to be availed to such member.

It follows, therefore, that, the rates of contributions set by the first respondent would then have a bearing on the range of benefits that can be accorded for the categories of rates of contributions set in the Rules. It is only fitting, therefore, that consistent with the power to regulate the schedule of rates of contributions to be paid by the various categories of the members, the first respondent also be endowed with the power to regulate the range and scope of the benefits to be afforded by Railmed.

I cannot see the practical effect of a medical aid society having the power to set the schedule of rates of contributions to be paid by the different categories of members but not having the power to set the range and scope of the benefits to be afforded to the membership. It would, in my view, be only logical that the range and scope of benefits be set and then the contributions be calculated. The one cannot exist independently of the other.

I venture to suggest, that, in arriving at the benefits and contributions that are attendant thereon the Board of the first respondent has to bear in mind the provisions of the Medical Services Act, in particular that it act in the best interests of the members and the society itself.

I am fortified in this view by the intent of the first respondent as spelt out in its objects - that, primarily of providing members the facility of obtaining medical and surgical treatment for themselves and their dependants, including the provision of drugs and medicines.

The objects of the first respondent would not be met if the first respondent were curtailed in its power as to what benefits it can offer to its members. If that were a matter for the decision of the REC then the latter would have been specifically accorded those powers.

It has not.

It merely has the power to make decisions of a strategic nature.

This brings me to the next rung. Is the decision regarding the extent of benefits to be afforded to the members of the first respondent one that can be termed strategic in nature?

According to counsel for the applicants, even though the first respondent had the power, under its Constitution, to determine the range and scope of the benefits to be afforded to its members, it did not have the power to change the society from a welfarist one to one run on market principles with the aim of full cost recovery.

I find it hard to comprehend why the restriction on the power afforded to the first respondent, under the Constitution, was framed in such a vague manner.

If it was the intention that the REC gives directives of a long-term plan to the first respondent it was simpler, in my view, to have phrased it as such.

Counsel for the applicants went further and argued that the three tier system that was adopted by the first respondent was not a mere scheduling of the rates and contributions or the mere determination of the range of scope of benefits, but, was rather the essence and product of the first respondent's strategic recovery plan which was prepared in 2004 and commissioned in 2005. He premises his view on the argument that the entitlement to medical benefits is a condition of service.

I have already found that the medical benefit is not a condition of service, but that what was a condition of service was the entitlement to membership and the concomitant contribution by the employer on behalf of the employee.

It is pertinent to note that the contracts of employment where the conditions are spelt out were not displayed to the court as much of the argument is based on the alteration of the same.

The Constitution does not define what it means by strategic.

From the argument pursued by counsel for the applicants, it is clear that the meaning he ascribes to strategic is to do with an alleged alteration of conditions of service.

I have above already discussed on whether the introduction of the three-tier system of benefits, by the first respondent, constituted a change in the members conditions of service and my conclusion was that it did not constitute such.

I turn next to the question whether or not the REC issued a directive to the first respondent.

The REC wrote two letters to the first respondent subsequent to the adoption by it of the three tier system of benefits. The first letter to the first respondent was phrased as follows:

“RE: INTRODUCTION OF THE THREE-TIER SYSTEM EFFECTIVE 1 OCTOBER 2006

1. On 20 October 2006, the Railway Employment Council met and decided as follows:-

1.1 The introduction of the proposed Three-Tier Scheme is to be suspended with immediate effect, viz from the 20th instant and it shall remain so suspended until you are advised to the contrary in due course.

1.2 The suspension is intended to enable the Railway Employment Council to have the matter resolved and you are advised accordingly.

2. In the meantime, the deductions for the remission to you shall be as hitherto was the case before the purported introduction of the Three Tier System by yourselves.”

The letter was written by the chairman of the REC, and, on receipt of this letter, the chairman of Railmed sought clarification, as, in his view, it appeared that the four trade unions and NRZ had not resolved to direct the Board of Railmed to suspend the Three-Tier System.

A letter was dispatched from the office of the chairman of the REC in the following terms:

“I merely advised you that the feeling in Council was that the introduction of the proposed three-tier system be suspended with effect from the 20th instant. This was necessary in order to enable the members of the Council to reach an agreement.

However, you may choose to ignore my advice but you do not have any reason to misunderstand what I said.

I never pretended to say that the trade unions and NRZ resolved to direct the Railmed Board to suspend the three tier system. I have no power to direct any member or constituent member of the REC to do anything.”

What emerges from the last quoted letter is that the Board of the REC had not passed a resolution which would have issued a directive to the first respondent to suspend the introduction of the three-tier system.

It also emerges clearly from the chairman's letter that he was talking about a feeling in Council. There had been no agreement that the three tier system be suspended.

The letter from the chairman is very clear and it seems to me that if the applicants wish to contradict him and put forward a version that differs from his statement in the letter then they should have produced minutes of the meeting where the directive was given.

In the meeting of the Railway Employment Council (REC) Board, held on 20 October 2006, the chairman had noted that “the Council had no jurisdiction to instruct Railmed to cease the implementation of the scheme.”

In fact, the meeting could not agree on what action to take and the chairman indicated that he would write to Railmed and state that Council's position was that the status quo, as it was before the introduction of the three-tier system (for whatever merit), should prevail until Council wrote to Railmed on the position. This then led to the crafting of the letter initially sent to the first respondent, which letter was subsequently clarified.

When the two letters are read in conjunction with the minutes it becomes clear that the Railway Employment Council (REC) did not take a position on the implementation because of the divergence of views expressed by the Board members present.

Further, I did not understand, from my reading of the minutes, that the Railway Employment Council (REC) had resolved to give a directive to the first respondent to stop implementing the new system.

In the absence of that, I have to find that the Railway Employment Council (REC) did not issue a directive to the applicants to suspend the introduction of the three tier system of benefits.

The first applicant is a nominated Parliamentary candidate for the Movement For Democratic Change, the (“MDC”). He will stand for the Goromonzi West House of Assembly constituency seat in Mashonaland East Province. The second applicant is the Movement for Democratic Change, a political party which fielded candidates for the Presidential, Parliamentary, Senatorial and Local Council elections.

The first respondent is the Chairman of the Zimbabwe Electoral Commission, which is responsible for the conducting of elections in Zimbabwe. The second respondent is the Registrar-General of Voters, responsible for the registration of voters, though he does so under the control and supervision of the first respondent.

The brief facts leading to this application are as follows:

The applicants, exercising their right under section 21(4) of the Electoral Act [Chapter 2:13], which I will refer to as the Electoral Act in this judgment, requested the respondents to supply them with electronic copies of the voters roll. They supplied the respondents with compact disks onto which the voters roll was to be copied. The applicants have since been given fifty compact disks, with voters rolls copied onto them - but in a format not acceptable to the applicants. They were advised that other disks could not presently be copied because of the breakdown of the respondents' computers.

The applicants, being spurred by the approaching election day on 29 March 2008, urgently want the Voters Roll, hence the filing of an urgent application. They seek an order compelling the respondents to give them electronic copies of the voters roll in a format they have specified.

Counsel for the respondents raised a point in limine.

He submitted that this court, being a creature of statute, does not have jurisdiction to determine issues arising from the provisions of section 21 of the Electoral Act as that section does not confer jurisdiction on the Electoral Court.

He submitted that this court can only exercise jurisdiction in cases where the Electoral Act specifically confers jurisdiction on it.

He further submitted that the Electoral Act specifies instances when the court has jurisdiction, meaning, in instances where jurisdiction is not specifically conferred the legislature did not intend to confer jurisdiction. He relied on the expressio unius est exclusio alterius rule of interpretation.

Counsel for the applicants, in response, submitted that this court was created to deal with electoral matters, and, therefore, has jurisdiction to hear and determine matters arising from failure to comply with any provisions of the Electoral Act.

He submitted that the use of the words “and other matters in terms of this Act”, means and other cases arising from this Act confers jurisdiction on this court in instances where the legislature did not specifically do so.

He summed up by saying the Electoral Court was created to hear and determine electoral cases.

He pointed out various provisions in which various officials are required to act in one way or the other and asked what would happen if they did not comply. He submitted that this court should intervene and order the officials to comply as should be done in this case.

Counsel for the respondents, in reply, submitted that the applicants are not left without remedy as they can apply to the High Court which has inherent jurisdiction and can hear and determine matters for which the Electoral Court has no jurisdiction.

Creature of Statute

This court was created in terms of section 161(1) of the Electoral Act. There is no doubt that it is a creature of statute.

As a creature of statute, it can only exercise the jurisdiction conferred on it by the statute which created it. Its powers are confined within the provisions of the creating Act.

In the case of Vengesai & Ors v Zimbabwe Glass Industries Ltd 1998 (2) ZLR 593 (H)…, GILLESPIE J said:

“The concept of the rule of practice is peculiarly appropriate only to superior courts of inherent jurisdiction. Any other court, tribunal, or authority is a creature of statute and bound by the four corners of its enabling legislation.”

See also the cases of Chairman, Public Service Commission and Ors v Zimbabwe Teachers Association & Ors 1996 (1) ZLR 637 (S)…,; Harare City v TA Prop (Pvt) Ltd 1994 (2) ZLR 82 (S)…,; and Gwalazimba v PG Merchandising Ltd and Anor 1993 (2) ZLR 215 (S)…, where McNALLY JA said:

“This submission is undoubtedly correct. The Tribunal is a creature of statute and can only hear appeals as provided in the Labour Relations Act 16 of 1985.”

In the case of PTC v Mahachi 1997 (2) ZLR 71 (H)…, CHATIKOBO J, commenting on the powers of a court created by statute, said:

“The Tribunal was established by section 83(1) of the Labour Relations Act [Cap 28:01] (“the Act”). Being a creature of statute, the Tribunal has no powers other than those conferred upon it by the legislature either expressly or by necessary implication.”

The important observation made by CHATIKOBO J, which I respectfully agree with, is that the Act which confers jurisdiction on the creature of statute can do so expressly or by necessary implication. This means the enabling Act must be analysed to determine whether or not the implied jurisdiction, which, in this case, counsel for the applicants seems to rely on, was conferred. The implied jurisdiction must be discovered from the provisions of the Electoral Act.

The provision in dispute

Section 161(1) of the Electoral Act provides as follows:

“(1) There is hereby established a court to be known as the Electoral Court for the purpose of hearing and determining election petitions and other matters in terms of this Act.”

There is no dispute on the meaning of the part of section 161(1) which establishes the Electoral Court. It is common cause that this court has jurisdiction to hear and determine election petitions.

The dispute arises from the interpretation of the later part of section 161(1), namely, the words “and other matters in terms of this Act.”

Most of the words in that phrase present no difficulties as their meanings are obvious. They are not ambiguous as they admit of no other meanings besides their ordinary grammatical meanings. It is the word “terms” which the parties rely on in arriving at their respective constructions of the phrase in question.

Construction of the phrase

The meaning of the phrase “and other matters in terms of this Act” can be discovered by assigning an ordinary, literal, or grammatical meaning to every word in the phrase.

In Keyter v Minister of Agriculture 1908 NLR 522…, BALE CJ said:

“It is the duty of the court to give effect to every word which is used in a statute unless necessity or absolute intractability of the language employed compels the Court to treat the words as not written. (Salmon v Duncombe & Ors 7 NLR 182).

Another cardinal rule, in ascertaining the meaning of a statute, is that in construing the words used we are to ascertain the meaning from the words themselves, and not from what we imagine to have been the intention of the legislature.”

In the case of The Queen v Bishop of Oxford 4 QBD 261, it was said a statute “should be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant.”

In the case of Chegutu Municipality v Manyora 1996 (1) ZLR 262 (SC)…, McNALLY JA said:

“There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to, as LORD WENSLEYDALE said in Grey v Pearson (1857) 10 ER 1216 at 1234, 'unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency - but no further.'”

In this case, the word “and” in the phrase is a conjunction joining the other matters which this court can hear and determine to petitions, which are agreed can be heard and be determined by this court.

The word “other” simply means other than the petitions already referred to.

The word “matters” means other cases which can be heard and determined along side the petitions which it is common cause can be heard by this court.

The word “in” directs the inquirer to the source from which he or she can look for the “other matters” which can be heard and determined by this court.

The word “terms” refers to what qualifies a matter to be heard and determined by this court. It is the word whose true meaning has to be construed to determine whether or not this court has jurisdiction to hear this case….,.

The remaining words “of this Act” directs the inquirer to look within the Electoral Act for the other cases or matters which can be heard and determined by the Electoral Court.

In this case, the key word is “terms”.

Its interpretation should be based on its ordinary, literal, grammatical meaning.

In the case of Expedite Haulage (Pvt) Ltd v Scotfin Ltd 2000 (2) ZLR 113 (HC)…, CHATIKOBO J said:

“On the face of it, the contention advanced by Mr de Bourbon seems to be closer to the wording of the statute than that advanced by Mr Colgrave, and, of course, the cardinal rule of construction is that the words of a statute must be given their ordinary, literal, grammatical meaning, unless to do so would lead to a glaring absurdity.”

The same principles were expressed by the Supreme Court in the case of Endevour Foundation & Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S)…, where GUBBAY CJ said:

“The general principle of interpretation is that the ordinary, plain, literal meaning of the word or expression, that is as popularly understood, is to be adopted, unless that meaning is at variance with the intention of the legislature as shown by the context, or such other indicia as the court is justified in taking into account, or creates an anomaly or otherwise produces an irrational result. See Stellenbosch Farmers' Winery Ltd v Distillers' Corp (SA) Ltd & Anor 1962 (1) SA 458 (A) at 476E-F.

The same notion was expressed in another way by MARGO J in Loryan (Pvt) Ltd v Solarsh Tea & Coffee (Pvt) Ltd 1984 (3) SA 834 (W) at 846G-H:

'Dictionary definitions of a particular word are very often of fundamental importance in the judicial interpretation of that word in a statute or in a contract or in a Will. Nevertheless, the task of interpretation is not always fulfilled by recourse to a dictionary definition, for what must be ascertained is the meaning of that word in its particular context, in the enactment, or contract, or other document.'”

The inquiry, according to these cases, must encompass the following rules of interpretation:

(a) The literal rule, to establish the ordinary, literal, grammatical or dictionary meaning of the word;

(b) Intention of the legislature to determine the contextual meaning of the word as guided by the clear intention of the legislature; and

(c) Other indicia or rules of interpretation to confirm the presence or absence of anomalies and absurdity in the resultant meaning established through the use of the above-mentioned.

The Literal Interpretation

It is trite that a court can rely on a dictionary meaning in the construction of statutes. See the cases of Endevour Foundation & Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S) and Chegutu Municipality v Manyora 1996 (1) ZLR 262 (SC).

The ordinary grammatical meaning of the word “terms”, according to the Shorter Oxford English Dictionary, means:

“(i)(a) limit in space, duration, etc, that which limits the extent of anything; a limit, extremity, boundary, bound; (b) Utmost or extreme limit, end; (c) That to which movement or action is directed or tends, as its object, end or goal.

(ii) A limit in time; a space of time.

(iii) Limiting conditions pl. Conditions or stipulations limiting, what is proposed to be granted or done.”

The dominant meaning of the word “term” clearly has something to do with limiting, conditioning, bounding, and directing, whatever is to be done.

In the context of this case, this means the jurisdiction of this court, is as is limited, conditioned, bound, and directed by the Electoral Act. In simple language, the jurisdiction of the Electoral Court is as is provided by the Electoral Act.

The word “term” has acquired a well known judicial meaning.

In the Law of Contract, when one refers to the terms of a contract, the clear meaning is the conditions on which the contract is premised.

In a Will, it means as is provided by the testator in the Will.

Similarly, in an enactment, it means as is provided by the provisions of the enactment.

In the result, the literal, ordinary, plain, and technical meaning of the word “terms”, as used in section 161 of the Electoral Act, and in the context of the Electoral Act, means as stipulated, limited, or provided by the Electoral Act.

The Intention of the Legislature

Counsel for the applicants took this court through the various sections of the Electoral Act for which no court is vested with jurisdiction to enforce compliance in the event the officer who is required to act does not do so.

He argued that in such situations the Electoral Court has jurisdiction.

He obviously had in mind the implied intention of the legislature referred to in PTC v Mahachi 1997 (2) ZLR 71 (H) or the assumed or imagined intention of the legislature, referred to in Keyter v Minister of Agriculture 1908 NLR 522.

Counsel for the respondents argued that, in such circumstances, the aggrieved party should apply to the High Court which has inherent jurisdiction. He referred to section 13 of the High Court Act [Chapter 7:06].

It is correct that the High Court has inherent jurisdiction and can hear such cases, but, the issue is: does the Electoral Court have jurisdiction to hear such cases as submitted by counsel for the applicants?

This can be determined by ascertaining the expressed or implied intention of the Legislature from the construction of the sections which confer jurisdiction on the Electoral Court and a careful study and construction of the scheme of the Electoral Act.

This calls for an analysis of the sections conferring jurisdiction on this court and other courts.

In Part V of the Electoral Act, aggrieved parties are, in terms of section 25(6), referred to a designated magistrate for the province in which the affected constituency is situated for redress in the case of a dispute over claims for transfer of registration.

In Part VI, sections 27(3)(a) and (b), 28(3)(b) and 29 of the Electoral Act confers jurisdiction on a designated magistrate to hear appeals against objections by the Constituency Registrar or a voter.

Section 30(1) to (4) provides for the submission of a stated case by the designated magistrate to a judge of the High court for his opinion.

In Part X, section 44(7) confers jurisdiction on the Electoral Court to hear and determine petitions against the decision of the presiding officer over the election of the Council of Chiefs and of President and Deputy President of the Council of Chiefs and other Senator Chiefs.

In Part XI, section 46(19)(b) and (c) confers jurisdiction on the Electoral Court to hear and determine appeals from the Nomination Court.

In Part XIII, section 66(2) provides for the presence of an Electoral Court Judge at the drawing of lots to determine the winning candidate. Section 66(4) confers jurisdiction on the Electoral Court to hear and determine a petition against the decision of the Chief Elections Officer. Section 70(3)(b), (4), (5), and (8) confers jurisdiction on the Electoral Court to determine issues and make orders in relation to the destruction or preservation of electoral documents.

In Part XIV, section 81 confers jurisdiction on the High Court to, on convicting a person for inducing any person to obtain a ballot paper and influencing him or her to vote in favour of a particular candidate, to declare the convicted person disqualified from voting in any election for a period not exceeding five years.

In Part XVII, section 111 confers jurisdiction on the Electoral Court to hear and determine petitions on an undue return or an undue election of a person to the office of President, while section 112A as read with the Fifth Schedule, confers jurisdiction on the Chief Justice to preside over the electoral college for the election of a President.

In Part XVIIIA, in sections 133E and 138, confers jurisdiction on the High Court to impose additional punishment, of a civil nature, to a person it will have convicted for intimidatory practices. The same jurisdiction is conferred on the High Court in terms of section 150. Identical jurisdiction is conferred on the Electoral Court by section 155, but after the hearing of a petition after the election. It is clear the legislature conferred jurisdiction on two different courts on this aspect. The High Court deals with intimidatory and illegal practices before the elections, while the Electoral Court deals with the same situations and can impose the same additional penalties after the elections.

In Part XXI, sections 155 to section 158 confer jurisdiction on the Electoral Court to hear and determine petitions and applications and make appropriate orders specified in the various sections.

In Part XXII, section 161 establishes the Electoral Court, and, in subsection (1) and (2) specifies what it can or cannot do.

In Part XXIII, section 167 provides for the presentation of election petitions to the Electoral Court. Section 170(1) confers jurisdiction on the Electoral Court to hear and determine objections on the sufficiency of the security provided by an applicant to an election petition. Section 171(1) confers jurisdiction on the Electoral Court to hear and determine election petitions. Sections 177, 179, 180, and 181 provide for the other powers the Electoral Court may exercise in the hearing of petitions.

In Part XXIV, section 183 confers jurisdiction on the Electoral Court to hear and determine applications by persons convicted on perjured or false evidence, for the removal of the incapacity imposed at the time of conviction.

An examination of the sections conferring jurisdiction on the various courts clearly demonstrates the legislature's deliberate intention as to which court it intended to deal with which situation.

There is no doubt in my mind that where the legislature intended to confer jurisdiction on this court it did so by conferring it through a specific provision in the Electoral Act. There is clearly no room for the conferring of jurisdiction by implication.

The legislature's specific mention of the instances where this court has jurisdiction means where it did not confer jurisdiction it intended not to confer jurisdiction.

This would support counsel for the respondents submission that the application of the expressio unius est exclusio alterius rule to the specific conferring of jurisdiction in some instances means this court has no jurisdiction where it is not specifically conferred.

In the case of Nkomo & Anor v Attorney-General & Ors 1993 (2) ZLR 422 (SC)…, GUBBAY CJ said:

“To ascribe a sensible meaning to subs (5) and to avoid superfluity necessitates the legitimate recourse of construing the general words 'any sentence' in subs (6) as excluding the specific reference to 'a sentence of death' in subs (5). This is no more than an application of the rule embodied in the maxim 'expressio unius exclusio alterius.' It draws attention to the fairly obvious linguistic point that in many contexts the mention of some matters warrants an inference that other cognate matters were intentionally excluded. See MAXWELL on The Interpretation of Statutes 12ed at p293.”

In the case of Eagle Insurance Co. Ltd v Grant 1989 (3) ZLR 278 (SC)…, KORSAH JA, commenting on the operation of the maxim, said:

“A rule which is variably resorted to in the interpretation of statutes, the expressio unius rule, is that the mention of one or more things of a particular class may be regarded as silently excluding all other members of the class.”

The use of the words “may be regarded as silently excluding”, leaves room for the inapplicability of the rule in some cases. This is confirmed in the case of Chivinge v Mushayakarara & Anor 1998 (2) ZLR 500 (SC); at p506E-F GUBBAY CJ said:

“The same result is arrived at, so it seems to me, by a cautious application of the maxim expressio unius est exclusio alterus: see Taylor v Prime Minister & Anor 1954 SR 94 at 165; 1954 (3) SA 956 (SR) at 965B-D; R v Ndhlovu (1) 1980 ZLR 96 (G) at 100A-D; Hewlett v Minister of Finance & Anor 1981 ZLR 571 (S) at 596C-E; National Automobile & Allied Workers Union v Borg-Warner 1994 (3) SA 15 (A) at 26H–I.

The specific mention of the instances of permissible discharge of termination on notice by a permanent employee, to my mind, leads to the unavoidable inference that it was not the intention of the parties to the contract to allow termination on notice of a permanent employee.”

The need to exercise caution before relying on the expressio unius rule is because a conclusion based on it is a product of a logical deduction inferred from the specific mention of the other thing being an implied exclusion of that which was not mentioned.

In the case of Commissioner of Taxes v F Kristiansten (Pvt) Ltd 1994 (1) ZLR 412 (SC)…, the Supreme Court, commenting on the nature of the rule, said:

“It may be that one cannot rely on that uncertain principle of interpretation known as the 'expressio unius exclusio alterius' in this situation.”

The uncertainty of the expressio unius est exclusio alterius rule was again commented on by the Supreme Court in the case of Davies and Ors v Minister of Lands, Agriculture & Water Development 1996 (1) ZLR 681 (SC)…, where GUBBAY CJ said:

“Mr Anderson's counter to this argument was that the principle expressio unius est exclusio alterius was one of limited application to be applied with great caution. This is of course true, but, whereas here something which is not on the face of it acquisition is specifically stated so to be, there is a strong indication that acquisition is to otherwise be given its ordinary meaning.”

In the present case, a careful reading of the sections of the Electoral Act conferring jurisdiction on this court and other courts, together with section 161 of the Electoral Act, whose interpretation restricts the search for jurisdiction within the Electoral Act, the express mention of the instances where this court has jurisdiction is a clear indication that where no jurisdiction was specifically conferred the legislature did not intend to confer jurisdiction on this court. In the context of the whole Act, the words “and other matters in terms of this Act” means and other matters in which jurisdiction has been conferred by provisions of this Electoral Act.

Other indicia

Counsel for the applicants referred this court to section 157 of the Electoral Act and submitted that reference in it to “petitions and applications” when no specific jurisdiction in terms of the Act is conferred on this court to hear and determine petitions means applications such as the applicant's are the “other matters” which can be heard and be determined by this court.

This tends to suggest that the literal meaning, as established above, should include applications as provided in section 157.

The expressio unius est exclusio alterius rule would not be applicable as the mentioning of applications, without providing for them in any specific sections of the Electoral Act, would leave this court with jurisdiction in circumstances mentioned by counsel for the applicants. That would not be consistent with the plain meaning of the phrase “and other matters in terms of this Act.” It would entitle this court to depart from the plain, literal, and grammatical meaning to avoid the inconsistency or the absurdity: see the case of Chegutu Municipality v Manyora 1996 (1) ZLR 262 (SC).

Counsel for the first respondent submitted that the word “application” means petition. He therefore argued that its being mentioned in section 157 is of no significance. He relied on section 15(2) of the Interpretation Act [Chapter 1: 01] which provides as follows:

“Any reference in an enactment to a petition to a court shall be construed as a reference to an application to the court or to a judge, magistrate, or other judicial officer of the court, made in accordance with rules of the court.”

Counsel for the first respondent's submission is persuasive but does not explain why the legislature would convey the same concept using two different words of the same meaning in succession. This would suggest that one of the words is superfluous. If the use of both words was out of caution then why would the legislature use the word “or” between them suggesting that it should be one or the other?

A careful reading of section 157 of the Electoral Act is called for. It provides:

“(1) When it appears to the Electoral Court, either on application or upon an election petition, that –

(a) Any act or omission of a candidate at an election or of his or her chief election agent or of another agent or person, which but for this section would be an illegal practice, has been done or made in good faith through inadvertence or accidental miscalculation or some other reasonable cause of a like nature; and

(b) By reason of the circumstances it would be just that the candidate or his or her chief election agent or other agent or person, or any of them, should not be subject to any of the consequences under this Act of the said act or omission;
the Electoral Court, may make an order allowing the act or omission to be an exception from the provisions of this Act which would otherwise make the act or omission an illegal practice, and thereupon the candidate, agent or person shall not be subject to any of the consequences under this Act of the said act or omission.

(2) Where application is made for relief in terms of subsection (1), the Electoral Court, before hearing the application, shall be satisfied that reasonable notice of the application has been given in the constituency or area in which the election was held.”

The clear meaning of section 157 of the Electoral Act is that the Electoral Court, may, during the hearing of a petition or when an application is made to it in terms of sub-section (2), make an order allowing an otherwise illegal practice an exception to the provisions of the Electoral Act.

The provisions of section 15 of the Interpretation Act are therefore not applicable in this case.

Subsection (2) specifically provides for the making of an application to the Electoral Court, and confers jurisdiction on it to hear and determine such applications.

I, with respect, do not agree with both counsel for the applicants and counsel for the respondents' respective interpretations of section 157 of the Electoral Act: therefore, the interpretation of the words “and other matters in terms of this Act,” as discussed above, remains unaffected by the provisions of section 157 of the Electoral Act.

Even if subsection (2) of section 157 had not clarified the issue, there are other sections of the Electoral Act which confer jurisdiction on this court to hear and determine applications.

Section 179(2) of the Electoral Act provides for an application for substitution of a petitioner. Section 183 provides for an application to the Electoral Court for the removal of any incapacity imposed upon conviction based on perjured or false evidence.

It is therefore beyond doubt that the instances in which this court has jurisdiction to hear and determine applications are specifically provided for in the Electoral Act.

As already indicated, that means all the instances in which the legislature intended to confer jurisdiction on this court are specified leaving no room for this court to assume jurisdiction in circumstances referred to by counsel for the applicants.

Counsel for the respondents sought costs on the legal practitioner and client scale against the applicants on the basis that his clients were unnecessarily dragged to a court which does not have jurisdiction to hear the application.

It is true that, with careful reading of the Electoral Act, the applicants should have known that they were suing the respondent in a court which did not have jurisdiction. It is however apparent from counsel for the respondents own failure to appreciate that the Electoral Act confers jurisdiction on this court to hear applications that the Electoral Act, as recently amended, is still to be fully understood by legal practitioners - especially those who infrequently appear before this court.

There is need for guidance through the judgments of this court.

I can therefore not grant punitive costs in circumstances which clearly call for the guidance of this court.

In the result, the applicant's application is dismissed with costs.

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)…,.

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.

On 7 January 2009, the applicant filed this application seeking an order compelling the first respondent to change its name within six weeks of the granting of the order.

In its founding affidavit, the applicant averred that it was duly registered by the third respondent on 26 October 2006. On 12 November 2008, it came to its attention that the third respondent had registered the first respondent, whose name is identical to its own.

The applicant further averred, that, on 14 November 2008, it wrote to the third respondent objecting to the registration of the first respondent on the basis that their two names were identical and pointing out that the first respondent's main line of business was also real estate.

No response was elicited by this letter, although, in consequence to a follow up on the letter, the third respondent wrote to the first respondent bringing to its attention the objection and the basis of the objection and gave a copy of this letter to the applicant.

In opposing the application, the second respondent deposed to an affidavit on behalf of the first respondent and also on his own behalf.

In the affidavit, the first respondent indicated, by way of giving a historical background to the dispute, that, as far back as 2001, the promoters of the first respondent had registered a company by the name Southbay Investments (Private) Limited. The promoter was therefore the first to use the prefix “Southbay”.

In 2006, the applicant changed its name from Vineyard Real Estate to its current name with the full knowledge of the existence of Southbay Investments (Private) Limited. Objections were raised to the proposed change of name to no avail.

Regarding the merits of the application, the first and second respondents argued that the applicant did not have goodwill in the name “Southbay”; denied that the first respondent had misrepresented to the public or caused any confusion in the public as to the distinction between the two companies as the first respondent was not trading as a real estate agency and had made no moves to be registered as such with the Estate Agents Council; finally, the respondent argued that there is a big difference between the two companies such that the public will not be confused by the two registrations.

In the main, the second respondent argued that since it was incorporated as a subsidiary to Southbay Investments (Private) Limited, it was not meant to carry out real estate business but to manage the property portfolio of the parent company.

The third respondent did not oppose the application....,.

I now turn to the merits of the application.

Section 24(2) of the Companies Act [Chapter 24:03] provides:

“No name shall be reserved and no company shall be registered by a name which is identical with that for which a reservation is current or with that of a registered company or a registered foreign company or a private business corporation registered under the Private Business Corporations Act [Chapter 24:11] or which so nearly resembles any such name as to be likely to deceive unless the registered company or registered foreign company or private business corporation, as the case may be, is in liquidation and signifies its consent to the registration in such manner as the Registrar may require.”

The applicant argues, firstly, that the registration of the first respondent was unlawful as it was done in contravention of this section. In other words, the applicant is arguing that the third respondent erred at law in registering the first respondent in contravention of the specific language used in the section.

In my view, once the Registrar makes a decision to register a name in terms of the Companies Act, such an exercise, being a juristic act, cannot be impugned by this court save by way of an appeal in terms of section 24(11) of the Companies Act or by way of review at common law.

It is trite, in my view, that the registration of names in terms of the Companies Act is a function in the exclusive discretion of the third respondent: such discretion to be exercised not only in terms of the guidelines set out in the Companies Act, but also judiciously. It is thus a quasi judicial exercise that confers not only corporate status on the company so registered but also creates a new legal persona.

Thus, the decision by the third respondent is not one that can be set aside by this court exercising its own discretion in the matter outside the appeal process set out in the Companies Act and/or outside the inherent powers of this court to review and set aside, in appropriate cases, decisions of inferior tribunals and quasi-judicial authorities.

The application before me is neither an appeal in terms of section 24(11) of the Companies Act nor a review at common law. I therefore cannot set aside the decision of the Registrar on any ground outside the above two processes.

It has not been argued before me that a registration in contravention of the section is void ab initio such that any person can approach this court for the registration to be set aside: see Musara v Zinatha 1992 (1) ZLR 9 (H).

It does not appear to me that it was the intention of the legislature to deem void a registration in violation of the section 24(2) of the Companies Act [Chapter 24:03]:

(i) Firstly, there is no clear language to this effect in the law.

(ii) Secondly, the law provides processes and remedies for redressing grievances arising out of registrations done in contravention of the section.

On the basis of the above, I decline to determine this issue in the present application.

This is an urgent chamber application for stay of execution pending review. The relevant background to this matter is as follows:

On 14 December 2009, the Regional Court sitting at Harare convicted the applicant Bank of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced the applicant to pay a fine of $500 and also ordered the applicant to compensate the first respondent the sum of $250,000.

The learned Magistrate suspended the payment of the fine to the next day, 15 December 2009. Immediately after the sentence, the applicant noted an appeal against both conviction and sentence.

That appeal is still pending before this court.

Mr Clemence Zingoni, who deposed to an affidavit on behalf of the applicant says that he was shocked to hear, on 17 December 2009, that, on the same day, the second respondent, armed with a writ of execution together with a Bond of Indemnity, had been at the applicant's Head Office with the intent to attaching property in order to satisfy the Order of Restitution.

Mr Zingoni averred, that, the issuing of the writ was improper and unlawful, as, the effect of noting of an appeal against the magistrate's decision was to suspend its execution. The writ was therefore defective as it could not be issued in those circumstances.

It was Mr Zingoni's further contention that the value of the writ exceeded the jurisdiction of the Regional Magistrate as prescribed by Statutory Instrument 21 of 2009.

It was also contented, that, in terms of section 372 of the Criminal Procedure and Evidence Act [Chapter 9:07] any Court purporting to enforce a Restitution Order made in criminal proceedings can only do so if it has monetary jurisdiction in the first instance.

Following the service of the writ of execution on the applicant, its legal practitioners immediately filed an ex parte application, on 18 December 2009, in the Magistrate's Court, for stay of execution.

The application was dismissed by a magistrate on the same day.

Immediately thereafter, the applicant filed an application for review of the learned magistrate's judgment. That application for review was filed simultaneously with this application for stay of execution.

It is worthy noting, that, in its application for the review of the conduct of the learned magistrate who dismissed the ex parte application, the Messenger and the Clerk of Court, the applicant concedes, that, the noting of an appeal does not suspend the execution of any sentence of imprisonment, fine or community service as is provided in section 63 of the Magistrate's Court Act [Chapter 7:10].

However, the applicant's argument is that the Order which is subject of these proceedings is neither a term of imprisonment, a fine nor an Order for community service. It is an order for restitution. It is further argued that restitution is not specifically mentioned by the said Magistrates Court Act, and, therefore, in accordance with rules of interpretation, the express mention of the other forms of punishment excludes what is not stated in section 63 of the Magistrate Court Act....,.

It was further argued, that, the order of compensation, which prompted the writ of execution, had been suspended by the appeal which the applicant had filed.

Section 63 of the Magistrate Court Act provides as follows:

“The execution of any sentence of imprisonment, fine, or community service shall not be suspended by -

(a)…,.

(b) The noting of an appeal referred to in section sixty unless -

(1) In the case of imprisonment or fine, bail is granted by a judge or magistrate in terms of section 163 of the Criminal Procedure and Evidence Act [Chapter 9:07]; or

(2) In the case of community service, an application is granted by the magistrate to suspend the operation of the sentence pending determination of the appeal.”

What this means is that the payment of the fine is not suspended by the appeal.

The Magistrate Court Act does not, however, mention whether or not an order of compensation is suspended by an appeal.

In terms of section 370 of the Criminal Procedure and Evidence Act “a court which makes an award or order in terms of this Part may require the injured party to give security for repayment of the compensation or the return of the property, in case the award is reversed on appeal or review.”

This clearly suggests that payment of compensation is immediate and is not suspended by an appeal or review.

If an order of restitution was suspendable by an appeal or review, the legislature would not have provided for security to be given by the injured party. The need to provide security by the injured party pre-supposes that compensation would have been paid soon after the sentence is passed....,.

It was Mr Zingoni's further contention that the value of the writ exceeded the jurisdiction of the Regional Magistrate as prescribed by Statutory Instrument 21 of 2009.

It was also contented, that, in terms of section 372 of the Criminal Procedure and Evidence Act [Chapter 9:07] any Court purporting to enforce a Restitution Order made in criminal proceedings can only do so if it has monetary jurisdiction in the first instance....,.

It is also my considered view, that, the Regional Court had the jurisdiction to order compensation as it did for section 367 of the Criminal Procedure and Evidence Act provides that:-

“Notwithstanding any enactment limiting the civil jurisdiction of the court concerned, any court, including the court of a Regional magistrate, may:

(a) Award compensation in terms of section three hundred and sixty two, three hundred and sixty three, or three hundred and sixty four in any amount; or

(b) Make an order in terms of section three hundred and sixty five for restitution of property, whatever the value of the property concerned.”

Counsel for the first respondent does not dispute this interpretation of section 91 of the Administration of Estates Act [Chapter 6:01] and that in terms of it Israel Gumunyu was not entitled to sell the flat without the authority of either the High Court, a Judge of the High Court or the Master of the High Court. He, however, submitted that the provisions of section 41(a) of the Administration of Estates Act [Chapter 6:01] authorized him to do so as it does any other person. Section 41(a) of the Administration of Estates Act [Chapter 6:01] provides as follows;

“41 If -

(a) Before letters of administration are granted by the Master to any executor for the administration of any estate, any person takes upon himself to administer, distribute or in any manner dispose of such estate or any part thereof, except in so far as may be authorized by a competent court or by the Master or may be absolutely necessary for the safe custody or preservation thereof or for providing a suitable funeral for the deceased or for the subsistence of the family or household or livestock left by the deceased; or

(b) …,.:

Provided that when any person who is sued for the payment of any debt or legacy which he has rendered himself personally liable to pay in manner aforesaid proves to the satisfaction of the court before which he is sued that the true amount and value of the property which has actually been duly administered, distributed and disposed of by him did not exceed a certain sum, and that his administration, distribution or disposal of the same was not fraudulent, then and in every such case such person shall only be personally liable for so much of such sum as he fails to prove has been distributed or disposed of in such manner and for such purposes as by law the same ought to have been distributed or disposed of, and for the amount of the costs by him incurred in and concerning such suit by the plaintiff therein, notwithstanding that by reason of such person's personal liability having been restricted in manner aforesaid such plaintiff has not recovered from such person any part of the debt or legacy sued for.”

Counsel for the first respondent submitted that a curator bonis, can, like “any other person” within which definition he falls dispose of the deceased's property without any authorization for the benefit of the deceased's family. He, in this case, relies on John Moir Rosslyn Hedley's desperate need for cash.

Section 41(a) of the Administration of Estates Act [Chapter 6:01] as read with the proviso to section 41 of the Administration of Estates Act [Chapter 6:01] authorizes any person without the authority of a competent court or the Master to take it upon himself to take the deceased's property into his safe custody for its preservation or to sell the deceased's property when it is absolutely necessary for the  purpose of providing a suitable funeral for the deceased or for the subsistence of the deceased's family or household or livestock, and limits such person's liability to the deceased's estate or its creditors, in the circumstances there-mentioned. The words “any person” have a very wide meaning and can mean any person without exception. That is the meaning counsel for the first respondent sought to give to section 41(a) of the Administration of Estates Act [Chapter 6:01].

His submissions are persuasive when considered from a general perspective. He submitted that the need to sell arose from the apparent desperation of John Moir Rosslyn Hedley - the beneficiary of the applicant. That would, if that was the only consideration to be given to the interpretation of section 41(a) of the Administration of Estates Act [Chapter 6:01], have given him success.

Counsel for the applicant submitted that provisions of a statute should be construed in harmony with each other so that there would be no conflicts between sections of a statute. He submitted that if the legislature wanted to include a curator bonis within the meaning of the words “any person” in section 41(a) of the Administration of Estates Act [Chapter 6:01] they would not have limited his authority to dispose the deceased's property in section 22(2) of the Administration of Estates Act [Chapter 6:01] and section 91 of the Administration of Estates Act [Chapter 6:01].

My understanding of his submission is that the interpretation of section 41(a) of the Administration of Estates Act [Chapter 6:01], must be sought ex visceribus actus. This means the intention of the legislature, in enacting section 41(a) of the Administration of Estates Act [Chapter 6:01], must be sought from the bowels of the Administration of Estates Act [Chapter 6:01]. The bowels of the Administration of Estates Act [Chapter 6:01] here refers to other parts of the Administration of Estates Act [Chapter 6:01], in this case including section 22(2) of the Administration of Estates Act [Chapter 6:01] and section 91 of the Administration of Estates Act [Chapter 6:01]. The resultant interpretation becomes clear when the section in issue is read and interpreted together with provisions which precede and follow it. Counsel for the applicant was therefore arguing that the legislature could not have given the curator bonis powers under section 41(a) of the Administration of Estates Act [Chapter 6:01] which it had taken away from him in section 22(2) of the Administration of Estates Act [Chapter 6:01] and section 91 of the Administration of Estates Act [Chapter 6:01].

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 [Chapter 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....,.

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)...,. 

(ii) Secondly, he submits that in any case, the petition that he filed complied substantially with the requisite requirements of the Electoral Act and the Electoral (Applications, Appeals and Petitions) Rules S.I.74A of 1995....,.

In contending that the petition that he filed in the court a quo substantially complied with the relevant provisions of the Electoral Act and the Electoral (Applications, Appeals and Petitions) Rules S.I.74A of 1995, the appellant specifically cites Rule 21 of the Electoral (Applications, Appeals and Petitions) Rules, 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 Electoral (Applications, Appeals and Petitions) Rules S.I.74A of 1995, 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 of the Electoral (Applications, Appeals and Petitions) Rules 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 of the Electoral (Applications, Appeals and Petitions) Rules S.I.74A of 1995 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.

The right to protection of the law entails that the law be expressed in clear and precise terms to enable individuals to conform their conduct to its dictates. A law may not be so widely expressed that its boundaries are a matter of conjecture nor may it be so vague that the people affected by it must guess at its meaning. If it does, it will fail to meet the test of validity. A subject must be able to foresee to a reasonable degree the consequences which his chosen course of conduct might entail.

As it was put in The Sunday Times v The United Kingdom (1979-80) 2 EHRR 245 at 271 (para 49):

“…, a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able, if need be, with appropriate advice, to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances.”

The right to protection of the law also includes the right not to be prosecuted under a law that is unconstitutional.

Consequently, it is always open..., to challenge the constitutionality of legislation..., the onus being on him to prove the unconstitutionality: see Zimbabwe Township Developers v Lous Shoes 1983 (2) ZLR 376 (S)…,.

In Base Minerals Zimbabwe (Private) Limited & Anor v Chiroswa Minerals (Private) Limited & Ors HH559-14 I said, in relation to non-urgent chamber applications…,:

“The proviso to Rule 241(1) permits the modification of Form 29 where the chamber application has to be served. What would constitute 'appropriate modifications' is not stated. Why, then, does it become important that every time a chamber application has to be served, the applicant should abandon Form 29B and switch over to Form 29?

In my view, once the chamber application becomes one that must be served, then, the respondent is entitled to a period within which to file opposing papers. The 'appropriate modifications' would include, in my view, a fusion of the contents of Form 29 and those of Form 29B. In other words, it becomes a hybrid, containing both '…, the plethora of procedural rights…,” of Form No.29, including the dies induciae, and a summary of the grounds of application of Form No.29B.”

This is an appeal against the decision of the Labour Court confirming the draft ruling of the respondent, a labour officer. The ruling was in favour of the appellant's former employee, Ms Umarah Khan whose contract of employment was summarily terminated as from 15 April 2015 on allegations of certain acts of misconduct, including theft.

FACTUAL CONSPECTUS

The decision to dismiss Ms Khan from employment was reached after it was found that she had two earlier written warnings in relation to similar offences. An amount of US$3,986=61 was paid as terminal benefits through her bank account after Ms Khan refused to sign the letter of termination.

Aggrieved by the decision to terminate her employment, Ms Khan filed a complaint of unfair labour practice against the appellant in terms of section 93 of the Labour Act [Chapter 28:01] (“the Act”). The dispute was placed before the respondent for a hearing.

It was her case, that, no proper investigations were conducted into the allegations levelled against her, and, further, that she was not granted the right to be heard before she was summarily dismissed.

She thus claimed damages for unlawful dismissal totalling US$23,253=34.

Before the labour officer, the parties did not agree on Ms Khan's monthly salary, as the appellant alleged that it was US$750 while Ms Khan argued that it was US$1,500. The respondent ruled in favour of Ms Khan on this point, and, having found that her dismissal from employment was unfair, ordered the appellant to reinstate her without loss of pay and benefits. Alternatively, the appellant was to pay Ms Khan damages in lieu of reinstatement amounting to a total of US$9,000.

Subsequently, the labour officer applied to the Labour Court in terms of section 93(5a) of the Labour Act for confirmation of her draft ruling. In the application, she cited the appellant only as the respondent while Ms Khan, in whose favour the draft ruling was made, was neither cited, nor joined, as a party to the proceedings.

The appellant opposed the application, but, the court a quo, after hearing oral argument from the appellant, granted an order confirming the ruling.

PROCEEDINGS BEFORE THIS COURT

The appellant was aggrieved by the decision of the court a quo and has appealed against it to this Court.

It argues in the main, that, the court a quo erred in simply confirming the respondent's award to Ms Khan of US$9,000 as damages without fully addressing the principles of law to be applied thereto. It further argued, that, the respondent made a ruling in favour of Ms Khan despite the fact that she was charged with disobedience of lawful orders, negligence or misuse of company property, and, in addition, had failed to avail herself for the hearing which led to her dismissal.

The respondent, that is the labour officer, did not file any heads of argument nor did she appear before this Court on the date of hearing.

The court observed, that, the respondent, who was in effect a nominal respondent, had no personal interest in the dispute nor any outcome thereof.

Ms Khan, was not cited in the appeal before this Court.

Accordingly, a default judgment in this case, whose effect would be to set aside an award made in her favour would be manifestly unjust, given that she would not have been notified of the hearing, nor accorded the right to be heard before such an adverse order is made against her.

SECTION 93(5a) OF THE LABOUR ACT – NEED FOR EMPLOYEE TO BE JOINED IN CONFIRMATION PROCEEDINGS

Counsel for the appellant rightly conceded, that, the Labour Court could have properly ordered the joinder of Ms Khan to the confirmation proceedings before it. This would have given her the right to defend the application for confirmation of the award made in her favour, both in the court a quo and in this Court.

Accordingly, he further conceded that the matter be remitted to the Labour Court for Ms Khan to be joined as a party.

The court saw merit in his request for written reasons for the judgment, in order to clarify both the procedure and the law to be applied, in the face of confusion as to the handling of this and other cases brought to the Labour Court in terms of section 93(5a) of the Labour Act.

The need was recognized for that court to follow a procedure that would ensure that all parties who have a substantial interest in the dispute at hand are accorded the right to argue their respective cases before the determination is made as to whether to confirm or not, a labour officer's draft ruling in terms of section 93(5b) of the Labour Act.

It is noted, that, prior to the Labour Amendment Act No.5 of 2015, labour disputes of right would go before a labour officer for conciliation, and, if conciliation failed and the parties did not reach a settlement, the labour officer would refer the dispute to compulsory arbitration, and both parties would be heard.

Where an arbitral award was made, the successful party would then file the award for registration with a relevant court for purposes of enforcement. The losing party, on the other hand, had the right to appeal against the award to the Labour Court.

The legislature took the view that this procedure resulted in long delays in the determination of the disputes in question, thus depriving litigants of speedy justice. The enactment of section 93(5a) and (5b) of the Labour Act was meant to address this mischief.

Subsections 93(5a) and (5b) of the Labour Act provide as follows:

“(5a) A labour officer who makes a ruling and order in terms of ss(5)(c) (this paragraph provides in the relevant part that a labour officer, after issuing a certificate of no settlement, may order that the employer pays damages to the employee or that he ceases or rectifies any alleged unfair labour practice that is a dispute of rights) shall as soon as practicable -

(a) Make an affidavit to that effect incorporating, referring to, or annexing thereto any evidence upon which he or she makes the draft ruling and order; and

(b) Lodge, on due notice to the employer or other person against whom the ruling and order is made (“the respondent”), an application to the Labour Court, together with the affidavit and a claim for the costs of the application (which shall not exceed such amount as may be prescribed), for an order directing the respondent by a certain day (the “restitution day”) not being earlier than thirty days from the date that the application is set down for hearing (the “return day” of the application) to do or pay what the labour officer ordered under ss(5)(c)(ii) and to pay the costs of the application.

(5b) If, on the return day of the application, the respondent makes no appearance or, after a hearing, the Labour Court grants the application for the order with or without amendment, the labour officer concerned shall, if the respondent does not comply fully or at all with the order by the restitution day, submit the order for registration to whichever court would have had jurisdiction to make such an order had the matter been determined by it, and thereupon the order shall have effect, for purposes of enforcement, of a civil judgment of the appropriate court.”…,.

My interpretation of the two provisions cited suggests the following procedural steps;

(a) The labour officer, after making a ruling in terms section 93(5)(c)(ii) of the Labour Act, makes an affidavit to that effect and attaches to it any evidence on which such ruling is based.

(b) The labour officer then gives notice to the employer or any person against whom such ruling and order is made (respondent), of the lodging by him, of an application with the Labour Court for an order directing the respondent to comply with the ruling within a period not less than 30 days from the date the matter is set down for hearing (restitution day).

(c) The labour officer then appears before the Labour Court on the date of hearing, as the applicant, seeking an order confirming his or her draft ruling.

(d) Should the respondent fail to make an appearance, the Labour Court will nevertheless make a ruling confirming the order with or without an amendment.

(e) On the date of hearing (and presumably with the respondent in attendance) the Labour Court may also conduct a hearing and grant (confirm) the order sought with or without amendment.

(f) Thereafter, should the respondent fail to comply with the order of the Labour Court within 30 days of the hearing date, the labour officer will submit to the relevant court, such order (obtained in default of appearance by the respondent, or after a hearing by the Labour Court) for registration.

(g) Upon submission of the order to the relevant court for registration, it shall have the same effect, for purposes of enforcement, as any civil judgment of that court.

It is to be noted from the above, that, only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in sections (5a) and (5b) of the Labour Act.

In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee (such employee would, it seems, have to pursue other avenues to appeal against the draft ruling).

That this is the case is left in no doubt by the wording of section 93(5)(c)(ii) of the Labour Act which specifically provides for a ruling, like the one in casu, in circumstances where the labour officer finds that the dispute of right in question 'must be resolved against any employer or other person in a specific manner…,.'

Without a clear pronouncement to that effect, there can, in my view, be no doubt that reference to 'any person' in this provision, is not to be read as including the employee in the same dispute.

I am satisfied, that, the import of the provision is to exclude the confirmation and registration of a draft ruling by the labour officer, which is made in favour of an employer and against an aggrieved employee....,.

It is noted further, that, the wording of section 93(5b) of the Labour Act, albeit not specifically stating so, excludes the employee concerned from the confirmation proceedings....,.

Even the nature of the hearing mentioned in section 93(5b) of the Labour Act is not clear (the hearing is certainly not an appeal against nor a review of the Labour Officer's ruling. This is because the procedure that is set out in sub-sections (5a) and (5b) is not capable of accommodating an appeal or review process in relation to the labour officer's ruling) one may safely assume that like in any hearing, all interested parties must be afforded the opportunity to be heard, unless they choose not to be heard.

Only then would the Labour Court be in a position to fully determine the matter and render a judgment that meets the justice of the case.