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