It is correct, as submitted by the appellants in their heads of argument, that in terms of section 28 of the Interpretation Act [Chapter 1:01], the power to appoint necessarily includes the power to remove or suspend a person. Section 28 of the Interpretation Act [Chapter 1:01] provides as follows:

“28 Appointments

An enactment which confers power to make an appointment of a person to any office or post shall confer on the appointing authority –

(a) Power, at the discretion of that authority, to remove or suspend him; or

(b) Power exercisable in the like manner and subject to the like consent and conditions, if any, applicable on his appointment –

(i) To reappoint or reinstate him; or

(ii) To appoint another person in his stead or to act in his stead, and to provide for the remuneration of the person so appointed; or

(iii) To fix or vary his remuneration, to withhold his remuneration in whole or in part during any period of suspension from office, and to terminate his remuneration on his removal from office.”

However, on a careful reading of the Interpretation Act [Chapter 1:01], it is clear that such a power is not absolute and that the provision must be read against the specific provisions of a particular enactment. Section 2 of the Interpretation Act [Chapter 1:01] provides:

“2 Application of this Act

(1) The provisions of this Act shall extend and apply to every enactment as defined in this Act, including this Act, which was in force in Zimbabwe immediately before the 1^st November, 1962, or thereafter comes into force in Zimbabwe, except in so far as any such provisions –

(a) Are inconsistent with the intention or object of such enactment; or

(b) Would give to any word, expression or provision of any such enactment an interpretation inconsistent with the context; or

(c) Are, in such enactment, declared not applicable thereto.

(2) Nothing in this Act shall exclude the application to any enactment of any rule of construction applicable thereto and not inconsistent with this Act.”

Whilst there is no doubt that the the Interpretation Act [Chapter 1:01] empowers an appointing authority to remove a person from office, that provision is a general provision which is applicable to enactments generally but cannot supercede the specific provision of a particular enactment. For purposes of this appeal, whilst one should not lose sight of the provisions of the Interpretation Act [Chapter 1:01], regard must be had to the pertinent provisions in the Urban Councils Act [Chapter 29:15].

The Urban Councils Act [Chapter 29:15] prescribes how a councillor is elected as Mayor or Deputy Mayor and how such person ceases to hold such office. The relevant section is 103 of the Urban Councils Act [Chapter 29:15] which provides as follows:

“103 Election of mayor, deputy mayor, chairperson and deputy chairperson

(1) At the first meeting of a council, after it has been established, and thereafter at the first meeting held -

(a) After the general election of councillors; or

(b) After an initial election of councillors referred to in section 17(1)(c); or

the councillors present at that meeting shall, under the chairmanship of the district administrator, or in the case of the Harare and Bulawayo Municipal Councils, the Provincial Administrator, within whose province the municipal council lies, elect -

(c) In the case of a municipal council, one councillor or other person to be mayor and thereafter another councillor to be deputy mayor;

(d) In the case of a town council, one councillor to be chairperson and thereafter another councillor to be deputy chairperson.

(2) A person elected in terms of subsection (1) shall forthwith enter upon his or her office and shall hold office until the election or appointment of his or her successor in office.

(3) A person elected in terms of subsection (1) shall cease to hold office as such when his or her successor is elected in terms of that subsection:

Provided that-

(i) If a deputy is elected in terms of subsection (4) to be mayor, he or she shall cease to hold office as deputy with effect from that election;

(ii) If a deputy chairperson is elected in terms of subsection (4) to be chairperson, he or she shall cease to hold office as deputy chairperson with effect from that election;

(iii) If a mayor, chairperson, deputy mayor or deputy chairperson resigns, by notice in writing addressed to the town clerk, he or she shall cease to hold office as such with effect from the date the notice is received by the town clerk;

(iv) If the seat of the councillor, who is a mayor, chairperson, deputy mayor or deputy chairperson, becomes vacant by virtue of section 78(2)(b), (c), (d), (e), (f) or (g), he or she shall cease to hold office as such with effect from the date that seat becomes vacant.”

It is clear from the above provisions that it is the process of an election that gives rise to the election of a Mayor. Indeed, section 103(2) of the Urban Councils Act [Chapter 29:15] makes it clear that a person so elected shall forthwith enter upon his or her office and shall hold office until the election or appointment of a successor. Section 48 of the Urban Councils Act [Chapter 29:15] also makes it clear that a person elected as Mayor shall take office on the date on which he is declared, or deemed, to have been elected a Mayor unless his predecessor's term of office has not expired.

This is an appeal against the judgment of the High Court given on 6 December 2006 granting an application for a final order and confirmation of an interim order authorising the appellant to have rights under Special Grant No.1278 to mine precious stones (diamonds) in area No.405 in the District of Masvingo.

The background facts are these.

On 13 December 1992, the first respondent gave to Auridiam Zimbabwe (Pvt) Ltd a “Special Grant”, No.1278, under Part XVII of the Mines and Minerals Act [Chapter 21:05] authorizing it to carry out mining operations for diamonds in an area covering approximately 70 hectares within reserved area No.405 in the mining district of Masvingo for a renewable period of 25 years. Clause 14 of the Special Grant provides:

“Rights under this grant cannot be transferred and shall not be ceded or otherwise assigned without the consent of the Secretary in writing. Such consent shall be subject to the provisions of s265 of the Act.”

The Secretary referred to in clause 14 of the Special Grant is the Secretary for Mines and Mining Development. The reference, in clause 14, to section 265 of the Mines and Minerals Act [Chapter 21:05] was the numbering as it existed in 1992 in terms of what was then called the Mines and Minerals Act [Chapter 165]. In the revised edition of Statutes of 1994, the section number became 282. Section 282 of the Mines and Minerals Act [Chapter 21:05] provides:

“Notwithstanding anything contained in this Act or any other enactment, no holder of a mining location registered for precious stones or a mining lease on which the principal mineral being mined or to be mined is precious stones shall tribute, cede, assign, sell or otherwise alienate in any manner whatsoever that mining location or mining lease or any interest therein without the permission of the Minister.”

On 13 February 1997, Auridiam Zimbabwe (Pvt) Ltd changed its name to River Ranch (Pvt) Ltd (“the fourth respondent”). The fourth respondent continued the mining operations and production of diamonds in terms of the Special Grant until it was placed under voluntary provisional liquidation on 24 February 1998. Mr Lewis Bailey of KPMG was appointed the provisional liquidator.

On 13 October 1999, the provisional liquidator, representing the fourth respondent and its creditors, entered into an agreement of compromise with the appellant. The company had recently been incorporated by Mr and Mrs Farquhar who had acted as the fourth respondent's buyers before it was placed under provisional liquidation. The purpose of the agreement of compromise was stated as being to enable the appellant to take transfer of all proved claims of creditors of the fourth respondent and for the creditors to effect transfer of the liabilities of the fourth respondent to the appellant in accordance with the terms and conditions set out in the agreement.

It was a condition of the agreement of compromise that specific classes of creditors had to be paid specific sums of money by the appellant on specific dates from the effective date. The terms and conditions of the agreement of compromise had to be made part of a court order by which the fourth respondent was to be removed from provisional liquidation. Mr Bailey was to be appointed the agent of the creditors for the purposes of effecting transfer to the appellant of their claims. He was also to be appointed the agent of the appellant in order to receive, administer and make payments of money due to the creditors in terms of the agreement. It was also a term of the agreement of compromise that the shareholding structure of the fourth respondent would not be altered. The Directors of the appellant made a declaration, which was a term of the agreement, that neither the appellant nor any of them had any interest in the fourth respondent.

The order was made by the High Court in case HC1591/99 on 20 October 1999. As a result of the court order, the provisional liquidation of the fourth respondent was set aside. In terms of the order, Mr Bailey was appointed the agent of the parties for the purposes of effecting transfer of the claims of the creditors and for receipt, administration and payment of all monies due to the creditors in terms of the Agreement of Compromise. The effective date was the date on which the court order, and a copy of the Agreement of Compromise were served by the Deputy Sheriff for Harare on the office of the Registrar of Companies. The appellant took transfer of all proved claims of the creditors excluding the Shareholders' loans.

The appellant did not have money with which to meet its obligations to the creditors in terms of the Agreement of Compromise. It had controlling shareholding in two external companies, Sedna and Cornerstone, which had shares in the fourth respondent. The appellant entered into an agreement with Mr Adel Aujan, an external investor, who agreed to purchase shares in the two external companies. Mr Bailey, who still exercised administrative powers under the Agreement of Compromise, gave the appellant the right to treat stockpiles of ore at the mine in order to raise the money to pay the creditors. It was not given authority to mine the pit.

The appellant operated the mine until 2000. It did not have sufficient capital to conduct mining operations. It borrowed heavily from Mr Aujan. Over the period from 23 February 1999 to 1 October 2001, the appellant obtained seven loans from companies belonging to Mr Aujan, who was the fourth respondent's principal shareholder. The loans totalled US$1,399,764=. The first three loans were for capital expenditure and working capital at the mine. There was then one loan of US$1 million, in March 2000, for payment of a creditor of the fourth respondent because the appellant had failed to meet its commitments under the agreement of compromise. The last three loans were for payment of wages at the mine. From January 2001, the mine was under care and maintenance management.

On 21 February 2000, Mr E Matikiti wrote a letter to the first respondent seeking advice as to whether the Special Grant held by the fourth respondent could be “registered” in the appellant's name. He misrepresented that the appellant had purchased all the shares and assets of the fourth respondent which was liquidated. The letter reads:

“Re: SPECIAL GRANT NO. 1278 – RIVER RANCH LIMITED

Given that liquidation proceedings are now complete and Bubye Minerals (Pvt) Ltd has been awarded the shares and assets of River Ranch Limited (previously in liquidation) we are proceeding with the necessary matters of good housekeeping. This brings us to the matter of the Special Grant, which remains registered to River Ranch Limited. We strongly believe it is in the interests of the local partners that the Special Grant is registered to Bubye Minerals (Pvt) Ltd since the aforesaid company was the successful bidder for the shares, claims and assets of River Ranch Limited (Zimbabwe). This will serve to protect the interests of local shareholders and ensure that the partnership retains a majority indigenous component.

We would be glad to have your advice in this matter given that the way is legally clear for the transfer.”

Notwithstanding the attempt to found the right to claim transfer of the Special Grant from the fourth respondent to it on an alleged sale, the appellant sought the transfer at a time it was in breach of the agreement of compromise. On 16 May 2000, an official in the Ministry responded to the request for transfer of the Special Grant by saying that at its 492^nd meeting, the Mining Affairs Board (“the Board”) had resolved that the “application” could not be considered until outstanding payments to the creditors were made in terms of the Agreement of Compromise. On 12 September 2000, another letter was written to the appellant advising that at its 494^th meeting the Board had resolved that a final reminder be sent to it to the effect that unless the outstanding payments to creditors were made by the appellant before the Board's next meeting, on 11 October, the “application” for transfer of the Special Grant would not be considered. The appellant failed to pay the outstanding amounts owed to the creditors. The money was paid by Mr Aujan in 2004.

Mr Aujan decided to appoint a new Board of Directors and management to run the affairs of the fourth respondent. In March 2004, a general meeting of shareholders, at which the appellant was represented, was held. A new Board of Directors was appointed. It was tasked with taking possession of the mine and carrying out mining operations in accordance with clause 10 of the Special Grant requiring continuous working of the mine. The Board of Directors was also mandated to demand from the appellant a statement of account on the administration of the affairs of the fourth respondent during the period October 1999 to March 2004.

On 17 June 2004, Mr Farquhar wrote to the Secretary saying that the appellant was renewing the “application” it made on 21 February 2000 for “cession” of the Special Grant from the fourth respondent to it. He asked that the “application” be placed before the Board. The reason given for the renewed “application” was that all outstanding payments owed to the creditors had been made. The fourth respondent was not given notice of the renewed application. The appellant withheld from the Secretary the fact that the outstanding payments to the creditors had been made by Mr Aujan and not itself. At the time the appellant wrote the letter of 17 June 2004 it had been served, on 27 April, with a letter of demand for the statement of account.

On 7 September 2004, the fourth respondent applied to the High Court, in case HC10814/04, for an order directing the appellant and its Directors to render an account of the administration of its affairs from October 1999 to March 2004. The appellant opposed the application on the ground that the fourth respondent had no locus standi.

On 25 January 2005, without notifying the fourth respondent of its intention to consider the application, the Board, at its 518^th meeting, decided to “approve” the transfer of the Special Grant from the fourth respondent to the appellant. The letter, written on 28 January 2005, by the Secretary of the Board reads:

“RE: APPLICATION FOR CESSION OF SPECIAL GRANT NO. 1278 FROM RIVER RANCH (PVT) LTD TO BUBYE MINERALS (PVT) LTD

The above matter refers.

I am pleased to advise that the Chairman of the Mining Affairs Board, who is also the Secretary for Mines and Mining Development, has approved cession of the abovementioned Special Grant viz from River Ranch (Pvt) Ltd to Bubye Minerals (Pvt) Ltd with effect from 25 January 2005.”

On 15 February 2005, the High Court made an order, in case No. HC10814/04 referring the question of the obligation on the appellant to render the statement of account to trial on the ground that there was a dispute of facts which could not be resolved on the papers. On 13 May 2005, the fourth respondent made an application to the High Court, in case No. HC2091/05, for an order setting aside the decision of the Board to transfer the Special Grant to the appellant. The grounds on which the application was made were two. The first ground was that the decision was unlawful as no agreement of cession had been entered into by the fourth respondent with the appellant. The second ground was that the fourth respondent had not been notified of the proposed decision. 

The appellant opposed the application.

On 13 May 2005, the High Court stayed the proceedings pending the determination of the issues referred to trial in case no. HC10814/04. The ground on which the decision to stay the proceedings was made was that the two cases raised the same questions for determination. The fourth respondent appealed against the judgment of the High Court in case no. SC289-05. There is no doubt that the decision of the High Court to stay the proceedings for the reasons given was wrong. The issue of the validity of the decision of the Board, made on 25 January 2005, was unrelated in time and substance to the question whether the appellant was under an obligation to render the statement of account demanded by the fourth respondent in case no. HC10814/04. The validity of the decision of the Board could not have been raised in case no. HC10814/04 because the decision had not been made when those proceedings were commenced.

On 16 May 2005, the fourth respondent wrote a letter to the Minister questioning the legality of the decision to transfer the Special Grant to the appellant and asking that the decision be reversed. The argument put forward in support of the proposed action was that the decision was invalid for contravening section 282 of the Mines and Minerals Act [Chapter 21:05]. It was also pointed out to the Minister that the invalidity of the decision had been conceded by the representative of the Ministry at the hearing of the application in case No. HC2091/05 on the ground that it had been made on false information to the effect that the appellant had been awarded all shares and assets of the fourth respondent. It was indicated that at no time had the fourth respondent agreed to cede the rights under the Special Grant to the appellant. It said that the fourth respondent had not even known that the appellant had approached the Ministry seeking to have the Special Grant transferred to it.

On 28 July 2005, the fourth respondent made another application to the High Court in case No. HC3336/05 for a provisional order setting aside the decision of the Board. The appellant opposed the application which was dismissed by the court on 7 September. The ground for the dismissal of the application was that it raised the same issues as were referred to trial in case HC10814/04. The decision of the High Court was clearly wrong. The question of the validity of the decision of the Board arose after the decision was made on 25 January 2005. It could not have been part of the cause of action in case no. HC10814/04 which was commenced on 7 September 2004. The fourth respondent appealed, in SC144-05, against the judgment of the High Court.

On 22 November 2005, a letter was written to the fourth respondent on behalf of the Secretary, advising that the decision of the Board to transfer the Special Grant to the appellant had been set aside. The letter was communicating the decision of the first respondent made on 16 November. The first reason given for the reversal of the decision of the Board was that it was in contravention of section 282 of the Mines and Minerals Act [Chapter 21:05] as the permission of the Minister had not been obtained. The second reason was that the decision was made without notice to the holder of the Special Grant.

On 1 February 2006, the appellant made an application to the High Court, in case no. HC278/06, for a provisional order declaring that the “purported cancellation of the cession” by the first respondent was null and void and be set aside. An interim order interdicting the third respondent from giving effect to the “purported cancellation of the Deed of Cession of Special Grant 1278” was granted on 2 February 2006. The first respondent was also interdicted from representing to any person or authority pending determination of the application for the provisional order that, “the cession of Special Grant 1278” to the appellant was cancelled save in terms of the law. The appellant also sought a final order confirming the interim order and directing the fourth respondent to restore vacant possession of the area covered by the Special Grant save under express written authority of the appellant.

On 6 December 2006, the High Court discharged the interim order and dismissed the application for the provisional order. Although it was argued, on behalf of the appellant, that the sole issue for determination was the legality of “the cancellation of the cession” by the first respondent, the learned Judge accepted the contention advanced on behalf of the respondents that the validity of the decision of the Board to transfer the Special Grant from the fourth respondent to the appellant was the critical question for determination. The argument was that the legality of the “cancellation of the cession” could not be established if the decision of the Board was illegal.

Proceeding on the basis of the assumption that the Board had the power to entertain the “application for the cession” of the rights under the Special Grant from the fourth respondent to the appellant, the learned Judge held that the manner in which the decision to transfer the Special Grant was made was unfair and in contravention of section 3(2) of the Administrative Justice Act [Chapter 10:28] in that the fourth respondent was not given notice of the proposed action. The conclusion was that as the unlawful decision could not confer rights on the appellant the decision of the first respondent setting it aside did not affect any rights of the appellant under the Special Grant. Authority for the principle relied upon that all proceedings founded upon a decision which is null and void ab initio are also bad and incurably bad was found in the cases of MacFoy v United Africa Co. Ltd [1961] 3 ALL ER 1169 (PC)…, and Mugwebie v Seed Co. Ltd & Anor 2000 (1) ZLR 93…,.

The grounds of appeal are repetitive. 

They can be addressed comprehensively by addressing the question whether the learned Judge was correct in holding that the validity of the decision of the Board to transfer the Special Grant from the fourth respondent to the appellant was the critical question for determination….,.

Whilst the learned Judge found that the decision of the Board was unlawful on the ground of procedural unfairness based upon breach of the right of the fourth respondent to be heard, the facts show that the Board did not have the power to entertain the “application for cession” of the rights held by the fourth respondent under the Special Grant. It is a fundamental principle of law that a public official or public body can only do things which are governed by law and cannot act where there is no law authorizing the kind of action to be undertaken. As the validity of the decision of the Board was challenged, justification of the action taken had to be tested by reference to evidence of compliance with the procedural and substantive requirements of the provisions of clause 14 of the Special Grant as read with section 282 of the Mines and Minerals Act [Chapter 21:05]. Section 294(1) of the Mines and Minerals Act [Chapter 21:05] provides that a Special Grant shall be governed by its terms and conditions. It was to the terms and conditions of the Special Grant No.1278 that the court a quo had to turn to decide the question of validity of the decision of the Board.

Clause 14 of the Special Grant prescribed specifically the power to be used in cases of cession of rights under the Special Grant, the form the exercise of the power had to take, the repository thereof and conditions which had to prevail before it could be exercised. The power prescribed under clause 14 was exercisable by the repository giving consent to the holder of the mining rights under the Special Grant to cede those rights to a third party. The power was specifically vested in the Secretary acting as such. The consent had to be in writing. It is clear that no other public official could give written consent to the holder of mining rights under the Special Grant relating to precious stones to cede them to any other person. The Secretary clearly had no power to cede the mining rights under the Special Grant because he would not have been the holder of those rights. He could not cede what he did not have. The condition precedent to the exercise by the Secretary of the power reposed in him or her was that there had to be a proposed cession in terms of which the holder of the mining rights under the Special Grant (the cedent) agreed to cede them to the third party (the cessionary) who agreed to acquire them.

The prohibition directed specifically at the holder of the rights under the Special Grant to the effect that he or she could not cede the rights to any person without the written consent of the Secretary and the permission of the Minister did not only underlie the significance of the content of the power as a consent but also underlies the existence of an agreement of cession involving the holder of the mining rights as a condition precedent to the exercise of the power by the Secretary. The Secretary could not create a cession. He could not enter into an agreement of cession involving rights belonging to another person. It was the party holding the rights under the Special Grant who could enter into an agreement to cede the rights to another person, who, upon written consent being given by the Secretary, would move into the shoes of the cedent to become the new holder of the rights under the Special Grant.

This is an appeal against the judgment of the Administrative Court of Zimbabwe which upheld the decision by the respondent to order the destruction of gloves that it had found to be defective.

This is an application to review the actions of the second and third respondents with regards the distribution of the estate of the late Lloyd Chimhowa, who died intestate on 3 December 2007.

At the time of his death, the deceased was married to the first respondent, Joyce Chimhowa, in terms of the then Marriages Act [Chapter 37].

The parties initially contracted a customary law union. This union was subsequently solemnised on 14 June 1991. Up till then, the deceased was a widower, having been customarily married to Mary–Maria Mabwe in 1971. She died intestate in October 1987.

During the subsistence of this first marriage, the spouses acquired an immovable property known as House Number 7447, 6th Way, Glen View 7, Harare. The house was registered in the name of the deceased, Lloyd Chimhowa. The house was acquired in 1979. The spouses jointly contributed to the development of the Stand, including the construction of a dwelling house. Mary Maria died after completion of the house.

For one reason or another, her estate was neither registered nor administered as required by law. She was survived by her husband, Lloyd Chimhowa, and six children - the applicants in this matter.

The late Lloyd Chimhowa's second marriage to the first respondent was blessed with four children. The new family continued to reside at the house left behind by Mary Maria Mabwe. Also residing at the same address were the six children borne out of the deceased's marriage to Mary-Maria Mabwe.

When the late Lloyd Chimhowa died, the first respondent was appointed executor of the deceased estate. She did not last long in that appointment after the Master wrote to her accusing her of falsifying information in order to get authority to transfer estate assets into her name. For this, the Master threatened her with criminal prosecution.

Her appointment as executor was then revoked in favour of the second respondent.

The first respondent and the applicants were in bitter dispute as to the distribution of the matrimonial home. The parties eventually buried the hatchet and came to a mutually agreed distribution plan. It was agreed that the matrimonial home be jointly owned by the applicants, the first respondent, and her four children, in equal share. This agreement was referred to as 'the family tree”.

This agreement did not last long.

The first respondent opted out of it, and, in a letter addressed to the executor (the second respondent), dated 30 September 2008, she advised that she was resiling out of the agreement and demanded to be allocated what belonged to her and her biological children. She followed this with another letter dated 21 October 2009 in which she demanded to be allocated fifty per cent of the matrimonial home, with the other fifty per cent being allocated to the 6th applicant (Nyasha Masiyiwa Chimhowa) and her minor biological children.

On 4 August 2009, the executor submitted to the third respondent the first and final distribution account in terms of which it was proposed, inter alia, to award the immovable property (matrimonial home) No.7447–6th Way, Glen View 7, Harare, to the first respondent.

Despite the applicants' written objection to the distribution of the matrimonial home, the third respondent, the Master, confirmed the distribution, advising the applicants to seek review by this Honourable Court should they persist with their objections.

The applicants have proceeded accordingly by launching the present application. They contend as follows:

The third respondent did not take their objections into account, and, for that reason, he failed to apply his mind to the issues before him. Chief among the applicants reasons for objection was that the distribution did not take into account the fact that the matrimonial home also constituted part of their late mother's estate (Mary-Maria Mabwe's estate). This should have been taken into account in finalising the estate, they argue.

Secondly, the applicants were aggrieved, that, in compiling the inventory, the first respondent had left out the Rusape rural home, which their late father had specifically built for her. It is this rural home to which, in the opinion of the applicants, the first respondent would be entitled as she had not contributed to the acquisition and development of the Glen View matrimonial home.

It is further argued that the third respondent failed to recognise that he was essentially dealing with two estates. Maria-Mary Mabwe's estate, argue the applicants, would be entitled to fifty per cent of the matrimonial home. The balance of the value of the matrimonial home would have accrued to her late husband's estate. That is the value that the first respondent would have been entitled to.

The applicants admit that, at one stage, the first respondent had offered that they buy out her fifty per cent share. They were however unable to raise the amounts involved.

Further, the applicants aver, that, on a number of occasions, the first respondent had indicated that she wanted to sell the matrimonial property and that if she did so, the applicants, especially the 6th applicant (Nyasha Masiyiwa Chimhowa), who is disabled, would be greatly prejudiced.

For these reasons, the applicants seek an order setting aside the decision of the third respondent to award the matrimonial home to the first respondent. In its place, they seek the substitution of an order awarding the Rusape rural home to the first respondent with the applicants and the first respondent being jointly awarded the Glen View matrimonial home in equal share.

Alternatively, in the event that the matrimonial home is awarded to the first respondent, that the applicants, in particular the 6th applicant (Nyasha Masiyiwa Chimhowa), be granted the right to use the property and that the fourth respondent be directed to register a caveat against the property to prevent the first respondent from disposing of the property without the consent of the applicants.

The first respondent says she was initially amenable to sharing the immovable property with the applicants, but, because the applicants continually undermined her authority as mother, and also because there being ten people, the house was always overcrowded, she had changed her mind. She expected those of the applicants who had attained adulthood to move out.

They refused to so move out.

She said she had left out the rural home, in compiling the inventory, because although she regarded it as the family's rural home (Mary Maria Mabwe's hut is also situated there), she did not regard it as her matrimonial home as she hardly lived there, except for the odd weekend.

She denied that it was her intention to sell the matrimonial home in Glen View.

Above all, however, the first respondent argues that, at law, being the surviving spouse, she is entitled to the matrimonial home and that she is not obliged to co-own the matrimonial home with the applicants.

She also avers that had the estate of Mary-Maria Mabwe been registered it would have been handled under customary law and thus the house would have been excluded from her estate and awarded to her husband instead. It cannot therefore be argued that the house transcends two separate estates.

To that end, contends the first respondent, the Master's decision was sound at law and meets the justice of the case.

I believe, from the facts of this matter, that, the office of the Master followed the procedures outlined in terms of the Administration of Estates Act.

An edict meeting was held, attended by all stakeholders. When the first respondent failed to meet the required standards, the Master quickly intervened revoking her appointment as executor and replacing her with the second respondent. Various meetings were held among the parties with a view to getting them to agree on the way forward. They were unable to agree, and, naturally, the Master directed that the executor proceeds in terms of section 3A of the Deceased Estates Succession Act [Chapter 6.02].

In general, therefore, the Master and the second respondent cannot be faultered in the manner in which they handled this deceased estate. They were guided, ultimately, by the provisions of section 3A of the Deceased Estates Succession Act which provide that the surviving spouse of a person who dies wholly or partially intestate shall be entitled to receive, from the free residue of the estate, “the house or other domestic premises on which the spouses or the surviving spouse, as the case may be, lived immediately before the person's death and the household goods and effects which immediately before the person's death were used in relation to the house or domestic premises referred to in para (a), where such house, premises, goods and effects form part of the deceased person's estate.”

Section 68F(b)(i) of the Administration of Estates Act [Chapter 6:01], on the other hand, provides, in relation to the estates of persons who die intestate, as follows:

“…, where the deceased person is survived by one spouse and one or more children, the surviving spouse should get –

(i) Ownership of, or, if that is impracticable, a usufruct over the house in which the spouse lived at the time of the deceased person's death, together with all the household goods in that house.”

In reading the legislation governing deceased estates, in so far as the rights of surviving spouses are concerned, it is important to bear in mind the intention of the legislature, bearing in mind that this branch of the law has, in the last decade, been the subject of much debate and controversy.

A number of amendments have been brought to bear to this branch of the law.

The chief driver of this process has been the desire by the legislature to protect widows and minor children against the growing practice, by relatives of deceased persons, to plunder the matrimonial property acquired by the spouses during the subsistence of the marriage. Under this practice, which had become rampant, many widows were deprived of houses and family property, by marauding relatives, thus exposing the widows and their minor children to the vagaries of destitution.

In many cases, the culprit relatives would not have contributed anything in the acquisition of such immovable and movable properties, often the result of years of toil on the part of the deceased and the surviving spouse.

This is the mischief that the legislature sought to suppress in introducing provisions such as section 3A of the Deceased Estates Succession Act, section 68F of the Administration of Deceased Estates Act, and the Deceased Persons Family Maintenance Act [Chapter 6:03].

In my view, the legislature intended to protect, in the case of widows, that property acquired during the subsistence of their marriage to the deceased persons. This protection benefitted not just the widows but their minor children as well.

I do not perceive the legislature's intent to be to extend this protection and privilege to persons outside the marriage within which such property might have been acquired. To impute that kind of interpretation would lead to serious absurdities in the application of the law.

For example A marries B. They acquire jointly what may be termed matrimonial property. They have children. A, the husband, dies, and, in terms of the law, B, the wife and surviving spouse, is awarded the matrimonial property. Thereafter, B contracts another marriage with X, the second husband. She dies and X the second husband and surviving spouse, inherits the matrimonial property that B inherited from A, at the expense of A and B's children in that marriage.

Clearly, the children will have been disinherited of their parents' property.

They may, as a result, end up in the street, particularly if X sells the property and converts the proceeds to his own selfish ends.

In the result, the noble intention of Parliament, to keep the property within the family for the benefit of the surviving spouse and the children, will have been subverted.

During the course of hearing this application, an example was given of a surviving male spouse whose wife died leaving him to fend for their minor children. He was, in terms of the law, awarded the matrimonial house and movables. He retained the maid because it was in the interests of the children to keep them under the care of a person they were familiar with.

In time, a relationship developed between the maid and the widower, leading to marriage.

The widower dies and the maid, being the surviving spouse, is awarded the family's matrimonial home acquired during the subsistence of the first marriage - without the maid's contribution. Thereafter, the maid sells the matrimonial home, takes the money, deserts the deceased husband's children, and marries another man.

Again, in instances such as this example, the intention of the legislature is subverted.

For these reasons, I would conclude, that, the protection afforded surviving spouses is, in terms of inheritance, limited to those assets that were acquired during the course and subsistence of that spouse's marriage to the deceased person whose estate is under distribution.

In particular, surviving spouses cannot, by right, claim any right to matrimonial property acquired outside their own marriage.

To allow them to do so would lead to the absurdities alluded to above. It would be against public policy and conscience to deprive the children of deceased persons the common law right to inherit from their parents merely because, at some stage, the surviving parent had remarried.

If that had been what Parliament intended to do it would have expressly so provided.

I am satisfied that Parliament intended only the consequences I referred to earlier.

In my view, it is of paramount importance that the legislature revisits the relevant legislation in order that its intention be expressed in clearer terms than is presently the case.

In the result, I agree with the submissions made on behalf of the applicants vis a vis the distribution of the immovable property in this estate. I agree that it is impracticable and indeed undesirable that the first respondent be awarded property acquired before her marriage to the deceased, Lloyd Chimhowa. At the same time, I recognise the first respondent's right to live at this property, which, to all intents and purposes, is also her matrimonial home. Her four minor children, being dependants of the deceased person, also have the right to live with their mother at that property.

In the result, I order as follows:

(1) That, the immovable property commonly referred to as House No.7447–6th Way, Glen View 7, Harare be and is hereby awarded to the first to sixth applicants (Alex Chimhowa, Cleopas Chimhowa, Viola Chimhowa, Pauline Chimhowa, Edmore Chimhowa and Nyasha Masiyiwa Chimhowa) in equal shares.

(2) That, the first respondent be and is hereby granted a life usufruct over the said immovable property.

(3) That, the final order of the third respondent, given under DR15/08, Estate Late Lloyd Chimhowa, be and is hereby amended to the extent of paragraphs (1) and (2) above.

(4) That there be no order as to costs.

In Chagaresango v Chagaresango & Others 2000 (1) ZLR 99 (S)…, MUCHECHETERE JA held that this Court has the power to investigate whether the Minister and his officials, in formulating their advice to the President, acted on sound principle.

THE SECOND GROUND

Effect of Pre-charge Abduction and Violation of section 15(1) on Criminal Prosecution

The second ground on which the validity of the decision to institute the criminal prosecution was challenged was that the prosecution was unlawful because it was based on information or evidence obtained from the applicant by infliction of torture, inhuman and degrading treatment.

In the raising of the issue of the wrongful conduct of public officers antecedent to the charge being brought against the accused person, and its connection with the prosecution proceedings instituted, was the suggestion that the responsibility of the State was engaged in occasioning a violation of the accused person's fundamental right to personal liberty.

In such a case, there had to be produced clear evidence of a direct connection between the antecedent breach of the fundamental right of the accused not to be subjected to torture, or inhuman or degrading treatment and the decision to charge and prosecute him or her. The institution of the criminal prosecution had to be shown to have been a direct consequence of the precedent wrongful conduct of the State. In other words, it had to be a product of the outrageous conduct of pre-charge ill-treatment of the accused person by law enforcement agents.

According to the applicant, the use, by the public prosecutor, of information obtained from her by infliction of the treatment prohibited by section 15(1) of the Constitution, is evidence of the existence of the requisite direct connection between antecedent violation of the fundamental right and the criminal prosecution. The criminal prosecution was an outgrowth or fruit of the torture, inhuman, and degrading treatment to which she was subjected.

The contention advanced on behalf of the applicant, on the second ground, was premised upon an interpretation of the provisions of section 15(1) of the Constitution which recognises that the prohibition contains a rule, by which it imposes an obligation on public officers charged with the responsibilities of initiating and conducting criminal prosecution, and judicial officers who preside over them, not to admit or use information or evidence obtained from an accused person or any third party by torture, or inhuman or degrading treatment.

Three issues arise in this context for determination. They are:

(i) Whether or not section 15(1) of the Constitution contains a rule prohibiting the admission or use, in any legal proceedings, of information or evidence obtained from an accused person or defendant, or any third party, by infliction of torture or inhuman or degrading treatment.

(ii) On whom does the burden of proving the essential elements of the rule lie and what is the standard for the discharge of the onus.

(iii) What effect does a finding that the onus has been discharged have on the question of the contravention of the fundamental rights of the accused person protected under sections 13(1); 15(1) and 18(1) of the Constitution.

Section 15(1) of the Constitution and Evidence Obtained by Torture

The Court takes the first point for determination.

Its decision on the point is that section 15(1) of the Constitution contains the rule by which it imposes on the State, through its agents, the obligation not to admit or use, in any legal proceedings, information or evidence obtained from an accused person or defendant, or any third party, by torture, or inhuman or degrading treatment.

The reasons for the decision are these:

Article 15 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) (UN Convention on Torture) requires State parties to ensure “that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings except against a person accused of torture as evidence that the statement was made.”

Article 15 of the African Commission Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa and Article 16 of the Guidelines on the Role of Prosecutors, adopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders in Havana, Cuba on 27 August to 7 September 1990, are important.

They recognise the existence of an obligation on the public prosecutors not to use or rely on information, or evidence, obtained from an accused person, or any third party, by torture, or inhuman or degrading treatment to make decisions in the exercise of prosecutorial powers.

The relevance of the reference to the provisions of Article 15 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) is not in the substance of the obligation imposed on State parties.

It is on the principle of interpretation involved.

Of importance to the determination of the question before the Court, is the recognition and acceptance of the principle that the rules in Article 15 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) and the United Nations Guidelines on the Role of Prosecutors are based on the interpretation of Article 5 of the Universal Declaration of Human Rights (1948).

Article 5 of the Universal Declaration of Human Rights (1948) prohibits, in absolute and non-derogable terms, infliction of torture, inhuman or degrading treatment or punishment on any person.

The African Commission Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa are based on the interpretation of the relevant provisions of the African Charter on Human and People's Rights (1981).

Article 5 of the African Charter on Human and People's Rights (1981) prohibits torture, inhuman and degrading treatment or punishment of any person.

The principle of interpretation which emerges is that the fact that a stand-alone rule has been used to denote the meaning of a primary provision does not prevent a court interpreting the meaning of a primary provision in similar language as covering the matters explicitly dealt with in the rule if the meaning of the primary provision has not been explained by a similar rule.

The principle under consideration was applied by the European Court of Human Rights in Soering v United Kingdom (1989) 11 EHRR 439.

That Court held, on the interpretation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (“the ECHR”), that the prohibition by the Article was the basis for the rule against admission or use of information or evidence established to have been obtained or in respect to which there were substantial grounds for believing that it was obtained from the defendant, or a third party, by infliction of torture, inhuman or degrading treatment.

Considering the fact that Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (ECHR) did not spell out in specific terms, as did Article 3 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987), that no State “shall extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture,” the European Court of Human Rights, at para 88 of the judgment in Soering v United Kingdom (1989) 11 EHRR 439, said:

“The fact that a specialised treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 of the European Convention.”

The obligation on the State, through its agents, not to admit or use, in criminal proceedings, information or evidence obtained from an accused person, or any third party, by infliction of torture, inhuman or degrading treatment is not explicitly set out by a separate provision in the Constitution. It would be contrary to the object and purpose of the prohibition, under section 15(1) of the Constitution, to allow admission or use of such information or evidence in any legal proceedings.

A proper interpretation of section 15(1) of the Constitution, which takes into account the purpose and broadness of the language underlying the importance of the fundamental value protected, compels the Court to conclude that the obligation on the State not to admit or use information or evidence obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment in any legal proceedings attaches to the prohibition of such treatment by section 15(1) of the Constitution.

The obligation is inherent in the general terms of the section. It enjoys with the general prohibition the same qualities of being absolute and non-derogable.

The condemnation is more aptly categorised as a constitutional principle than as a rule of evidence.

The obligation is an exception to the general rule of evidence enacted by section 48(1) of the Civil Evidence Act [Chapter 8:01]]. That rule is to the effect that evidence of violation of a fundamental right or freedom is admissible in legal proceedings unless its admission would bring the administration of justice into disrepute: Paradza v Chirwa & Ors NNO 2005 (2) ZLR 94 (S)…,.; A & Ors v Secretary for State for Home Affairs [2005] UKHL 71…,.

At various stages of the whole process of proceedings by which the State deals with persons suspected of crime who are in the custody of public officers, the Constitution imposes duties for the protection of the fundamental rights of the suspect.

The primary duty is on the law enforcement agents not to abuse executive authority in the investigation of crime by torturing or treating suspects in an inhuman or degrading manner to extract information or confessions to be used against them in legal proceedings anticipated to follow the ill treatment.

If the duty fails to achieve its intended purpose at this stage, the law imposes the duty on public prosecutors not to admit or use information or evidence obtained from an accused person suspected of having committed a criminal offence, or any third party, by torture, inhuman or degrading treatment when making prosecutorial decisions.

If the duty fails at this stage, the law imposes the duty on judicial officers. Eventually, it lies with the Court to intervene, through the exercise of its original jurisdiction, to enforce or secure the enforcement of fundamental rights.

The rationale for the exclusionary rule is the protection of any person suspected of a crime, who is in the custody of a public officer, from torturous, or inhumane or debasing invasions of his or her dignity and physical integrity. Its object is to ensure that criminal prosecutions which are a direct consequence of the pre-trial illegality violative of fundamental rights of an accused person to freedom from torture, inhuman and degrading treatment are not used to give legitimacy to such conduct.

The rule has nothing to do with the fair determination of the guilt or innocence of the accused person.

Where there is independent evidence, which has been obtained lawfully, and on which reasonable suspicion of the accused person having committed the criminal offence with which he or she is charged is founded, an order of permanent stay of a criminal prosecution is not justified.

The rule represents a device designed to deter disregard for constitutional prohibitions and give substance to constitutionally protected fundamental rights.

The exclusionary rule, as a remedy for the enforcement of the protection of fundamental rights under the Constitution, is not intended to immunise an accused person from criminal prosecution for any action he or she is reasonably suspected of having committed which is provable at the trial by independent evidence lawfully obtained.

Information or evidence obtained from an accused person, or any third party, by torture, or inhuman or degrading treatment, if admitted or used in legal proceedings, would reduce section 15(1) of the Constitution to a mere form of words.

As JACKSON J put it, in the dissenting opinion in Korematsu v United States (1944) 323 US 214…, “once judicial approval is given to such conduct it lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

In People (Attorney-General) v O'Brien (1965) IR 142 KINGSMILL MOORE J, of the Supreme Court of Ireland, said that:

“To countenance the use of evidence extracted or discovered by gross personal violence would…, involve the State in moral defilement.”

In A & Ors v Secretary for State for Home Affairs [2005] UKHL 71…, LORD BINGHAM OF CORNHILL quotes from a report by MR ALVARO GIL-ROBLES, the Council of Europe Commissioner for Human Rights on his visit to the United Kingdom in November 2004 (8 June 2005 Comm. DH 2005) where he said:

“Torture is torture whoever does it; judicial proceedings are judicial proceedings, whatever their purpose - the former can never be admissible in the latter.”

Giving as a reason for holding, in S v Nkomo 1989 (3) ZLR 117 (S), that a court was under an obligation not to admit or use, in any proceedings, evidence of objects pointed out as part of confessions extracted from an accused person by torture McNALLY JA…, said:

“It does not seem to me that one can condemn torture while making use of the mute confession resulting from that torture, because the effect is to encourage torture.”

In A & Ors v Secretary for State for Home Affairs [2005] UKHL 71…, LORD BINGHAM OF CORNHILL quotes from the work on “The United Nations Convention Against Torture” (1988) where BURGERS and DANELIUS suggest…, that:

“…, it should be recalled that torture is often aimed at ensuring evidence in judicial proceedings. Consequently, if a statement made under torture cannot be invoked as evidence, an important reason for using torture is removed and the prohibition against the use of such statements as evidence before a court can therefore have the indirect effect of preventing torture.”

Lastly, in Mthembu v The State 2008 SCA 51 the South African Supreme Court of Appeal ruled that the admission of evidence obtained through the use of torture would compromise the integrity of the judicial process and bring the administration of justice into disrepute.

The reason given is that torture is barbaric, illegal and inhuman and is one of the most serious of human rights violations. That court applied the exclusionary rule against the admission or use of information or evidence obtained by torture in legal proceedings as an exception to the general rule contained in section 35(5) of the Constitution of South Africa.

The section provides that:

“Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render that trial unfair or otherwise be detrimental to the administration of justice.”

It is clear that the rationale for the exclusionary rule against the admission or use of information or evidence obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment, as contained in section 15(1) of the Constitution, is founded on the absolute obligation imposed on the State.

It is also founded on the revulsion which attaches to the source of such information or evidence, coupled with its offensiveness to civilized values, and its degrading effect on the administration of justice.

The rule applies even when the evidence is reliable and necessary to secure the conviction of an accused person facing serious charges.

The reliability, or probative value, of the information or evidence is irrelevant because its admissibility is prohibited in absolute and peremptory terms.

It is vital, in a society governed by the rule of law, that persons in the custody of public officials should not be subjected to ill-treatment of the level of severity prohibited by section 15(1) of the Constitution.

ONUS

The Court takes the second point for determination.

Its decision is that the onus is on the applicant to establish, on a balance of probabilities, that the information or evidence of the crime used by the public prosecutor to charge her with the criminal offence and prosecute her for it was obtained by the infliction of torture, inhuman and degrading treatment at the hands of the State security agents prior to the charge being brought against her.

The reason for the decision is that it is the accused person, or defendant, who has to raise the question of contravention of fundamental rights by the State. It is he or she who would have knowledge of what was done to him or her and what information was extracted as a result of the ill-treatment. It was then for the State to prove, beyond reasonable doubt, that the decision to charge the applicant with, and prosecute the criminal offence, was taken upon consideration of independent information or evidence of the crime lawfully obtained and on which reasonable suspicion of her having committed the criminal offence was based.

The applicant discharged the onus on her.

She established, by oral and affidavit evidence, that in bringing the charge of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] against her, and initiating the prosecution proceedings, the public prosecutor relied solely on information on the commission of the alleged criminal acts obtained from her, and a third party, by torture, inhuman and degrading treatment.

There was an inextricable link between the ill-treatment and the criminal prosecution.

No evidence was placed before the Court, by the respondent, to show that the decisions by the public prosecutor were based on independent evidence of the crime which was lawfully obtained.

It is important to emphasize the fact that the ordering of the exclusion of evidence obtained by torture or inhuman or degrading treatment assumes, implicitly, that the remedy does not extend to barring the prosecution based on evidence wholly untainted by the misconduct of the law enforcement agents.

It is also important to point out that where the allegations by the accused are contested by the State, it is the court before which the allegations are first made, or the trial court, which must hear the parties and decide question of facts.

Effect on Violation of Exclusionary Rule

Finally, the Court takes the third point for determination.

Its decision on this point is that, the effect of the finding that the public prosecutor relied on information or evidence of the commission of the alleged criminal acts obtained from the applicant by torture, inhuman and degrading treatment in deciding to charge her with, and prosecute her for the criminal offence, is that there was a breach of sections 15(1) and 13(1) of the Constitution.

The breach of section 13(1) of the Constitution lies not in the use of torture, inhuman and degrading treatment to obtain the information or evidence of the crime from the applicant. That is a breach of section 15(1) of the Constitution.

The violation of section 13(1) of the Constitution lies in the use of, or reliance, by the public prosecutor, on the information or evidence obtained by torture, inhuman and degrading treatment for the purposes of making the prosecutorial decisions.

Had the public prosecutor rejected the information or evidence of the crime obtained from the applicant by torture, inhuman and degrading treatment, there would have been a violation of section 15(1) of the Constitution but no breach of section13(1) - provided the criminal prosecution was supported by a reasonable suspicion of her having committed the criminal offence with which she was charged.

The reason is that the criminal prosecution would be a proceeding for the proof, beyond reasonable doubt, of the guilt of the accused person of the crime with which he or she is charged, based on no more or less evidence of the criminal acts than was available at the time of their commission.

The criminal prosecution was a direct consequence of the violation of section 15(1) of the Constitution.

The absolute and non-derogable fundamental right of the applicant, not to have information or evidence of the crime obtained from her, or any third party, by torture, or inhuman or degrading treatment used or relied upon by the public prosecutor in making the prosecutorial decisions to charge her with the criminal offence, and institute the criminal prosecution, was contravened.

There was also a violation of the applicant's fundamental right to the protection of the law guaranteed by section 18(1) of the Constitution.

By acting in the manner he did, the public prosecutor failed to act in accordance with the requirements of the protection of the fundamental rights prescribed by sections 15(1) and 13(1) of the Constitution.

He acted in breach of the principle of the rule of law.

It is clear from the facts that, at the time the State security agents kidnapped the applicant from home and later detained her at the secret place, they did not have reasonable suspicion of her having committed the criminal offence she was later charged with. They then used torture, inhuman and degrading treatment, during interrogation, to extract from her information or evidence on which they expected that the public prosecutor would act as a basis of a reasonable suspicion of her having committed the criminal offence with which she was then charged.

The effect of the operation of the exclusionary rule is that the whole conduct of the State security agents, in kidnapping and detaining the applicant, and subjecting her to torture, inhuman and degrading treatment, was a violation of the fundamental rights guaranteed to her by section 13(1), 15(1) and 18(1) of the Constitution.

It also shows that the criminal prosecution was a direct consequence of the violation of section 15(1) of the Constitution thereby engaging the responsibility of the State in the contravention of sections 13(1) and 18(1) of the Constitution.

In so far as the applicant suggested that she should not be prosecuted because her presence in court followed her unlawful arrest or kidnapping and ill-treatment by State security agents, she could not claim immunity from prosecution on those grounds alone because her body is not a suppressible fruit and the illegality of her detention and treatment could not deprive the Government of the opportunity to prosecute her and prove her guilt on independent evidence wholly untainted by the misconduct of law enforcement agents; United States v Crews 445 US 463 (1980)…,; Key v Attorney General & Anor 1996 (4) SA 187 (CC)…,.

COSTS

The Court takes the question of costs for determination.

Its decision on this point is that there be no order as to costs. The reasons for the decision are these:

Section 24(4) of the Constitution gives the Court a wide discretion as to the choice of a practical and effective remedy which can appropriately redress a violation of a fundamental human right or freedom.

An order of permanent stay of the criminal prosecution was considered by the Court to be the appropriate remedy for the redress of the violation of the applicant's fundamental rights. The violation would otherwise have continued: In re Mlambo 1991 (2) ZLR 339 (S)…,.

In selecting an appropriate remedy under the Constitution, the primary concern of the Court must be to apply the measures that will best vindicate the values expressed in the Constitution and to provide the form of remedy to those whose rights have been violated that best achieves that objective. This flows from the Court's role as guardian of the rights and freedoms which are entrenched as part of the supreme law of the country: Osborne v Canada (1991) 82DLR (4th) 321…,.

Costs are in the discretion of the Court.

It is permissible, in cases of this nature, to order that costs incurred should follow the event: Bull v Attorney-General of Zimbabwe 1987 (1) ZLR 35 (S).

Nonetheless, a constitutional question was raised with regard to which the answer was not self-evident.

The question whether section 15(1) of the Constitution imposes an absolute and non-derogable obligation on the State, through its agents, not to admit or use information or evidence of the crime obtained from an accused person, or defendant, by infliction on him or her, or any third party, of torture, or inhuman or degrading treatment had not been raised and exhaustively determined by the Court before.

The opportunity arose for the Court to clarify the law on the fundamental right of a person accused of a crime not to have information, or evidence, obtained from him or her by infliction of torture, or inhuman or degrading treatment admitted or used against him or her in any legal proceedings.

The legal question had to be clarified not only for the benefit of accused persons in similar circumstances. It has been clarified for the benefit of public prosecutors and judicial officers.

The victor is therefore not the applicant but the administration of justice.

The respondent did not challenge the correctness of the factual basis of the constitutional question. He properly took the view that the resolution of the legal question was in the public interest. The Court considers that the respondent should not be penalised by an order of costs.

There will be no order as to costs.

On 12 December 2011, the applicant filed an application in this court under Case No. HC12336/11 seeking a prohibitory interdict against the respondents.

The remedy sought was to prevent the respondents from moving or accepting any motion from any member of the House of Assembly to dismiss the applicant without the matter of his dismissal first being brought before the Committee on Standing Rules and Orders (CSRO) or its sub-committee or other independent and impartial disciplinary authority.

On realising that, despite having filed the aforesaid application, the respondents were determined to proceed with the motion to have him dismissed, the applicant filed the instant urgent application whose amended interim relief is couched in the following terms:-

“1. Pending the determination of the Court Application under Case Number HC12336/11 the respondents are prohibited, restricted, and interdicted from continuing to debate and voting on any motion to dismiss the applicant.

2. Pending the determination of the Court Application under Case Number HC12336/11, any debate, voting, or decision on the motion to dismiss the applicant, with or without amendments, be and is hereby declared null and void ab initio and therefore of no force and effect.”...,.

ON MERITS

Having disposed of the preliminary points raised, I wish to focus on the substantive issues raised by the parties in this application.

The fundamental guiding principle in this case was eloquently summed up by Mr Shepherd Mushonga, the fourth respondent, when he put it in the following words:-

“The principle of separation of powers is he hallmark of a constitutional democracy which entails that the three (3) arms of State, namely, Parliament, the Executive, and the Judiciary are separate and independent of each other in so far as the exercise of their powers is concerned.

The Constitution vests Parliament with the powers to regulate its own affairs. Parliament exercise judicial powers in respect of certain matters that fall within its domain to the exclusion of the Courts.”…,.

I applaud the sentiments and indeed associate myself with same.

Be that as it may, one needs to appreciate the often overlapping function that characterize the legislature, the Executive, and the Judiciary.

Whilst these three arms of Government must enjoy their independence, they do not exist outside each other. They play a complimentary role.

The sovereignty of Parliament, or, to put it simply, the power enjoyed by Parliament is not absolute, for if it were so the citizens would be extremely vulnerable. It would mean that Parliament would do virtually everything it desired, including violating its own Rules and Regulations, to the detriment of its citizen with impunity. Such a scenario, in my view, would not be tenable. There must be some control mechanism through which Parliament is to be held accountable by disgruntled citizens: see The British Constitution by J.S. DUGDALE, M.A, published by Bath James Brodie Ltd, London 1962…,.

From my reading of the applicant's urgent chamber application, and the notices of opposition filed by the respondents, I discern the following issues to be pertinent and decisive in this matter;

(a) Whether or not the House of Assembly violated Standing Order 62(d) of the House of Assembly Standing Orders by continuing to debate and voting on the motion to dismiss the applicant after the applicant had filed case no HC12336/11.

(b) Whether or not the Members of Parliament have locus standi to initiate the applicant's dismissal in the manner that they have done in this case.

(c) Whether or not the House of Assembly, through the active participation of the respondents, used illegal means to initiate the dismissal of the applicant.

(d) What is the correct procedure which should be used to initiate the dismissal of the applicant?

(e) Whether or not the amended motion proposed on 14 December 2011, and eventually adopted by the House of Assembly, cures the defects which are of concern to the applicant.

Having identified the issues, I propose to deal with them in seratium.

(a) Alleged violation of Standing Order 62(d)

It was contended, by the applicant, that, after he had filed his application in this court seeking, among other things, to interdict the respondents from continuing to debate on the issue of his dismissal, and to force compliance with proper disciplinary procedures, the House of Assembly was obliged to follow the dictates of Standing Order 62(d) of the House of Assembly Standing Orders.

In countering this argument, the respondents argued that the existence of a court application could not operate as a bar to the conduct of Parliamentary business and that only a court order had the capacity to stop further debate on the motion that was already before the House.

The argument, by the respondents, in this regard, is quite pronounced in paragraph 8 of the joint Notice of Opposition filed by the first, second, fifth, sixth and seventh respondents.

In supporting the same argument, the fourth respondent, on his behalf and also duly authorised by the third respondent, re-affirmed the position that Parliamentary debate on the issue could not be stopped by the Court application alluded to by the applicant.

It is evident from the Hansard of the day that the members of the House offered conflicting views on this issue.

It is necessary to refer to the specific section in issue. The section reads as follows:-

“62 No member shall, while speaking to a question…,.

(d) Use derogatory, disrespectful, offensive or unbecoming words against the Head of State, Parliament or its members, the Speaker, nor reflect upon a statute unless for the purposes of moving for its repeal; nor shall a member refer to any matter on which a judicial decision is pending;”…,.

It appears to me that if one were to concentrate on the ordinary grammatical meaning of the Standing Order in question one would find it extremely difficult not to understand what the House intended when it crafted these rules of debate.

It is trite that in interpreting statutes the very basic approach is first to ascribe to the words used their ordinary grammatical meaning.

It is clear to me that the Standing Order referred to simply meant that when a matter is pending before the Courts, or when a matter is sub judice, House members are obliged to respect the Court process until a determination on that matter is made.

In this regard, 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)…,.

It will be noted that during debate on the issue, those who spoke in favour of proceeding with the tabled motion suggested, strangely so in my view, that the members of the House could only be stopped from debating the issue if, at the time, there was a Court order barring them from so acting.

With respect, the Standing Order in question does not say what the respondents, and those who contributed in support of the motion, desire it to mean. If Parliament intended the Standing Order to mean what the respondents say, surely Parliament could have had no difficulty in crafting the Standing Order to that effect.

It is not in dispute that the respondents, despite having been duly served with case no. HC12336/11 continued to debate the motion in complete defiance or violation of the Standing Order in question.

This belligerent attitude displayed by the respondents can only lead to one inevitable conclusion. That disobedience by the House of its own Standing Orders must be visited with “nullity” over what it did because it was not competent for the House to stubbornly ignore the clear provisions of section 62(d) of the House of Assembly Standing Orders.

(b) Did the Members of Parliament (the respondents inclusive) have locus standi to initiate the applicant's dismissal in the manner they did?

The applicant's case, in this regard, is that he is constitutionally appointed by the Committee on Standing Rules and Orders (CSRO) chaired by the Speaker of the House of Assembly. He likened the Committee on Standing Rules and Orders (CSRO) to a Board of Directors in a company set up and the Members of Parliament to shareholders in a similar set up.

It was the applicant's position that it is this organ of Parliament (CSRO) which is mandated to supervise him in the execution of his duties and that it should therefore be this body which should initiate disciplinary proceedings against him, as opposed to Parliamentarians, should the need arise.

The applicant also argued that, in his belief, section 48(2) of the Constitution does not preclude section 57 of the Constitution, the House of Assembly Standing Orders, Officers of Parliament (Terms of Service) Regulations 1977 and the Labour Act, from regulating his employment relationship with Parliament.

The respondents argued that it was within the power of Parliamentarians to initiate the applicant's dismissal and that the officers of Parliament (Terms and Service) Regulations 1977 and the Labour Relations Act are not applicable to the applicant.

Both counsels for the respondents…, argued, to my satisfaction, that the applicant, being a Constitutional appointee is not covered by the Labour Act and that his attempt to seek refuge in the Labour Act may have been misplaced. I agree.

In advancing this argument, reliance was placed on section 3 of the Labour Act [Chapter 28:01] which is self-explanatory and reads as follows:-

“3. Application of Act

(1) This Act shall apply to all employers and employees except those whose conditions of employment are otherwise provided for in the Constitution.”

I did not hear the applicant to have attempted to rebut this watertight argument. This argument was therefore conclusively made in favour of the respondents.

In order to appreciate whether or not the respondents, and other members of Parliament, have locus standi to initiate disciplinary proceedings against the applicant there is need to look closely on the office of the applicant.

The office of the applicant is created by section 48(1) of the Constitution of Zimbabwe and that section reads:-

“48. Clerk of Parliament and other staff

(1) There shall be a Clerk of Parliament appointed by the Committee on Standing Rules and Orders.”…,.

Section 57(2) of the Constitution then goes further to define, in an exhaustive manner, the composition of the Committee on Standing Rules and Orders (CSRO).

I do take the argument raised by counsel for the first, second, fifth, sixth, and seventh respondents that the Committee on Standing Rules and Orders (CSRO) is not a stand alone body but it is an organ of Parliament.

Despite this, however, it must be appreciated that the legislature has given the Committee on Standing Rules and Orders (CSRO) the mandate to appoint the applicant, and, consequently, the power to supervise him and other staff members of Parliament.

I see the Committee on Standing Rules and Orders (CSRO) as the administrative arm of Parliament.

If it is accepted that the Committee on Standing Rules and Orders (CSRO) is constitutionally mandated to appoint the applicant, then, surely, it must be to this same body that the Constitution reposes the power to initiate the dismissal of the applicant by following due process.

Because the Clerk of Parliament is a professional person whose life goes beyond the life of Parliament his supervision cannot be left in the hands of every Member in the august House who incidentally do not appoint him.

The view that I take is that the body which appoints the applicant is the same body that must supervise him. It is this same organ that must enjoy the prerogative to initiate disciplinary proceedings against him.

I am fully cognisant of the existence of section 48(2) of the Constitution and I intend to deal with its application and implications in greater detail later in this judgment.

If my reading of the role of the Committee on Standing Rules and Orders (CSRO) vis-a-vis the applicant is correct (which I am certain it is) then it goes without saying that the respondents must have lacked locus standi to initiate the motion, debate, and vote on it to determine the fate of the applicant. In so doing, the respondents violated the Constitutional provisions dealing with the appointment and supervision of the applicant, and, consequently, their actions were illegal.

As I will demonstrate in this judgment, there are grave consequences that would remain visible if the respondents conduct is not interfered with by this Court.

(c) and (d) The correct procedure in initiating the dismissal of the applicant

I intend to deal with issues (c) and (d) together.

To fully understand the fear that gripped the applicant in this case, one needs to understand the motion that was tabled for debate in Parliament.

Following numerous allegations which touched on the alleged shortcomings of the applicant in the execution of his duties as the Clerk of Parliament the motion that eventually stood, in the name of the third respondent, was worded as follows:

“Now, therefore, this House places on record its disapproval of the untoward behaviour and actions exhibited by the Clerk of Parliament, Mr Austin Zvoma, and further resolves to invoke provisions of 48(2) of the Constitution of Zimbabwe to dismiss Mr Austin Zvoma from the service of Parliament forthwith through a secret ballot process – Hon Tshuma”…,.

The wording of the motion shows the inherent dangers of allowing the respondents, and other Parliamentarians, to determine the fate of the applicant.

The motion, as it stood, had no provision for proper disciplinary proceedings, yet, the right to be heard, even for a murderer, is one of the core values of the rules of natural justice.

As already alluded to elsewhere in this judgment, section 48(1) of the Constitution of this country has vested the power to appoint a Clerk of Parliament (the applicant) not to every Member of Parliament but to a special organ of Parliament called the Committee on Standing Rules and Orders (CSRO) which organ is tasked to supervise not only the applicant but also other staff members of Parliament who are appointed in terms of section 48(3) of the Constitution.

Section 48(4) of the Constitution then gives Parliament the power to formulate terms or conditions of service for the staff members. The officers of Parliament (Terms of Service) Regulations 1977 were approved by Parliament in terms of this section. These Rules cover, in sufficient detail, the appointment procedure, conditions of service including the procedure to be adopted in the termination of the employee's service should the need arise.

It is pertinent to note that in terms of Part 1 of the Officers of Parliament (Terms of Service) Regulations, 1977 it is stated that “the staff of Parliament shall in addition to the Clerk of Parliament, consist of such officers…,.”

The Regulations go on to identify these other officers or employees as specified in the Regulations.

I do not read this section to exclude but to include the person in the position of the applicant.

A simple perusal of the Regulations concerned clearly show that the administration of the staff members of Parliament, as well as their appointments, is vested in the Committee on Standing Rules and Orders (CSRO).

The Rules, in so far as they deal with the disciplinary proceedings of the staff members of Parliament, are clear and they do not require any complicated interpretation.

The Speaker of the House of Assembly (first respondent) is firmly empowered by the Rules to initiate any enquiry against any of the staff members of Parliament who incidentally include the applicant.

There does not seem, in my view, to be any room for the Committee on Standing Rules and Orders (CSRO), through the Speaker of the House of Assembly, to relinguish or to delegate its administrative functions to the ordinary members of Parliament. This appears to me to have been done for obvious reasons. Ordinary members of Parliament do not appoint the staff of Parliament and the applicant and may not have the capacity or ability to supervise the employees in their day to day activities.

There seems to be greater wisdom in dealing with disciplinary proceedings in terms of the regulations of Parliament. That procedure comments itself in that before anyone is condemned, the individual is given an opportunity to explain his conduct in line with the much cherished and time honoured principle of the audi alteram partem.

It occurs to me that it is only when the Committee on Standing Rules and Orders (CSRO) has conducted a proper inquiry against the applicant, and the applicant found to be guilty, that the Speaker can then advise Parliament in terms of section 48(2) of the Constitution. It is only then that the House of Assembly can then resolve, by the affirmative votes of more than one-half of its total membership, to have the applicant removed.

Anything short of this would be illegal and any finding in support of the approach taken by Parliament would amount to this Court sanctioning Parliament to act in breach of its own Regulations.

This Court did not make the Parliament regulations in question. It was Parliament, in its own wisdom, which made them and the members of Parliament must be seen to be complying with such Regulations.

Having said this, I have not the slightest hesitation in concluding that, Parliament, in allowing the motion, debating on same, and voting on it, clearly overstepped its authority. This is so because the voting that is referred to in section 48(2) of the Constitution must be the end result of due process in the removal or dismissal of the applicant.

(e) Has the amended motion cured the defect alluded to by the applicant?

During argument, it was suggested to me by the two counsels representing the respondents that the seemingly rough edges of the motion that triggered debate in Parliament…, was ultimately refined by the amendment that was proposed by the fourth respondent and subsequently adopted by the House thereby removing the defect complained of by the applicant.

I am not persuaded by this argument.

It completely misses one fundamental issue in these proceedings. The issue is that the respondents or Parliament, as a body, did not have the power to do what it did.

Even if I were to assume, for a moment, that the respondents, and Parliament in general, had such powers, one needs to look at the resolution that was eventually passed, with particular regard to the terms of reference of the proposed five member committee, to appreciate the fallacy of the position taken by the respondents.

The House concluded by proposing the appointment of a special five (5) member committee whose terms of reference is as follows:-

“(a) The special five member committee is to make recommendations to the full House on its findings whether:

(i) To terminate immediately the Clerk of Parliament's contract of employment.

(ii) To suspend without pay for a period of time.

(iii) To demote and/or reprimand the Clerk of Parliament…,.”

The terms of reference, on their own, make it impossible for the committee of five (5) to approach the inquiry with an open or impartial mind. Their mandate is simply to find the applicant guilty at all cost and consider the nature of punishment to be meted out against him. Such an approach clearly represents kangaroo proceedings which must not be allowed to happen within the precincts of the supreme law making body of this country – Parliament.

If allowed to happen, this would be a clear violation of the applicant's constitutionally recognised right to be afforded a fair hearing before an impartial body. The applicant's apprehension is clearly justified and Parliament must not be allowed to stampede on his rights with impunity.

During submissions I was referred to two very important decisions in this country for guidance, viz the case of Bennett v Mnangagwa N.O. & Ors 2006 (1) ZLR 218 (S) and the case of Mutasa v Makombe N.O. 1997 (1) ZLR 330 (S)…,.

These two cases were referred to me as authority for the re-affirmation of the doctrine of the separation of powers and generally as authorities demonstrating the reluctance of Courts to interfere in the internal processes of Parliament in regulating its own practices and procedures.

With respect, I believe reference to these two cases missed one fundamental issue.

In both cases, Parliament was dealing with the punishment of its members for contempt of court.

There is no doubt in my mind that Parliament, by its very nature, and largely as a result of the doctrine of the separation of powers, enjoys quite some latitude in dealing with its own members, but, even in such circumstances, the cited cases clearly show that where Parliament's conduct exceeds the bounds of reasonable justification the Courts will interfere with its decision: see the case of Smith v Mutasa N.O. & Anor 1989 (3) ZLR 183 (SC).

But, the main line of distinction between these cases and the applicant's case is that the applicant is not a Member of Parliament but a professional in the employment of Parliament. There is no way the applicant can be treated like a politician or a Member of Parliament.

As already highlighted, Parliament's involvement in the treatment of a person in the position of the applicant is greatly curtailed and is clearly limited by the provisions of section 48(2) of the Constitution not as a starting point but as the end result after a proper enquiry has been carried out and concluded in terms of the applicant's contract of employment, and that action having been initiated by that organ which appoints and supervises him – the Committee on Standing Rules and Orders (CSRO).

So, really, reference to these cases was clearly out of context.

In conclusion, I wish to point out that, Parliament, because of its unique position as the supreme law-making body must project itself as the epitome of fair play. It must demonstrate to the citizens of this country the importance of complying with its own rules and regulations. It visibly came short in this regard, and, because of this, its processes scream for interference by this Court.

In Smith v Mutasa N.O. & Anor 1989 (3) ZLR 183 (SC) the full Supreme Court bench unanimously agreed to reverse the decision of the Parliament in depriving the appellant of his salary and allowances.

The interference by the Courts with the activities of Parliament, (respondents inclusive), must be seen as a desperate clarion call by the Court to insist on Parliament conducting its affairs above board.

I am satisfied that the applicant's apprehension, as captured in his papers, is more than justified. He stares irreparable harm to his employment if corrective action, as prayed for, is not taken.

I accordingly grant the following order:-

1. Pending the determination of the Court Application under case number HC12336/11 the motion passed by Parliament, as amended, be and is hereby declared to be null and void ab initio and therefore of no force and effect.

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.

The applicant is a duly registered company in terms of the laws of this country. It is in the business of importing and marketing fuel in terms of licence number 000228 issued by the respondent Ministry on the 2^nd of January 2009.

It is common cause that on the 4^th of September 2009 a consignment of 476,427 litres of diesel was imported into the country from Sasol South Africa through the Beitbridge boarder post. The diesel was delivered to Zimbabwe in train wagons to be off-loaded at NOCZIM, Beitbridge but destined for Chiredzi. The transporter was unable to off load the product on the instructions of the second respondent, a director in the first respondent's ministry.

The second respondent's functions include:

1. Managing, monitoring and reviewing all Government-initiated or sponsored liquid fuel supplies contract and all fuel safety and quality standards; and

2. Providing leadership and facilitating the strategic management process to guide the operation of the Petroleum Department and the oil industry.

The applicant's complaint is basically that the second respondent is abusing his authority and has taken the law into his own hands by placing an embargo on the product when there is no law which authorizes him to do so.

The responsible Minister in the respondent's ministry has since filed an affidavit dated 8^th October 2009 ratifying the second respondent's conduct. In that affidavit he acknowledges responsibility for his conduct in the following terms:

"4. On the 14^th September 2009 I ordered the return of substandard diesel imported by a company called BSKY because it did not meet the quality specifications that we have determined. The level of 4400ppm imported by BSKY was too high and thus unacceptable.

5. Moreso is the fact that the high sulphur content of 50ppm to 500ppm is a Regional standard that has been agreed upon by South Africa, Zimbabwe, Tanzania, Mozambique, and Malawi. This position has been approved by Cabinet.

6. This Cabinet position is known and was communicated to the oil industry leading to the setting up of the National Procurement Committee to enforce quality and prices monitoring, and, sometimes, control.

7. Soon after we liberated the importation of fuel the rule of practice in the industry to set the quality has now been breached by BSKY.

8. There is no understanding the damage that can be caused by high sulphur diesel being imported in the knowledge of the serious corrosive effect.

9. The imported diesel is hazardous to property and I believe, as Minister of the State of Zimbabwe, I have a duty flowing from the Constitution to protect our citizens and property posed by such dangers knowingly caused by a licensed company because it believes there may be a gap in the law in terms of quality level stipulation by statutory instrument.

10. I am reliably informed that the diesel is a hazardous substance therefore is limited in its use as it damages the environment.

11. I am informed, in terms of the Environmental (Hazardous Substances Pesticides and Other Toxic Substances) Regulations, 2007 such substance(s) can only be imported under notification and license from the Environmental Management Agency.

12. I am also informed that counsel for the applicant has failed to produce the same under law.

13. The licence issued by my ministry is not for the importation of the substandard fuel."

Upon placing an embargo on the fuel in dispute the ministry constituted an investigating team comprising Ministry and NOCZIM staff. The team's terms of reference were to inspect the product by way of reading documents or breaking seals and taking samples for testing. Thereafter, the team would gather information and report on the quality of fuel being imported by various companies through the Beitbridge boarder post.

In discharging its mandate, the team was supposed to work in conjunction with ZIMRA staff. ZIMRA however objected to the intended investigations particularly the breaking of seals and taking of samples pointing out that it was unlawful. With much reluctance ZIMRA management finally granted the team access to the relevant documents. The team then proceeded to discharge its mandate by restricting itself to perusing the documents without breaking the seals and analyzing samples. In its written report the investigating team made the following findings:

"Findings

(a) We found that all fuel from SASOL was of the high sulphur type (0.5/500ppm). This is far above Zimbabwe spec.

(b) All companies importing SASOL products were dumping its product on poor countries (Zambia, Zimbabwe, DRC and other countries).

(c) ZIMRA had no legal mandate to check fuel quality as there was no instrument to that effect.

(d) We have always been using high sulphur diesel in our engines, so there is no new harm that can be done now.

(e) Ministry, in collaboration with EMA and ZIMRA, to draft an instrument on fuel specifications that is legally binding.

(f) ZIMRA to act on the basis of the instrument on fuel specifications so that they deny product on entry.

(g) SASOL to be advised of Zimbabwe's required fuel specifications.

(h) BSKY fuel is released as demurrage charges may be charged to the Ministry upon losing its case.

(i) Fuel samples should be collected at destinations as companies may possibly change their paper work without changing their product quality.

OPTIONS

Option One

Stopping high product entry.

Implication of Option One

It has some legal implications as there is no instrument to that effect. This may also result in critical fuel shortage…,.

Option Two

To continue business while putting the required legislation in place.

Implications of Option Two

This will ensure a smooth change over to agreed specs without interrupting product inflow into the country."

The above report is expertly written and presented such that one cannot imagine a better report or recommendations.

What emerges quite clearly from the report is that Zimbabwe has no legal instrument which entitles the respondents, or anyone, to regulate the quality of fuel being imported into the country. This stark reality has left both the Minister and the second respondent groping in the dark for legal authority to justify what is clearly unlawful conduct.

Both the first and second respondents have conveniently made no reference to the above report in their detailed opposing affidavits. As things stand, one cannot but surmise that they have deliberately sought to steer away from the report because it is not to their liking and yet they are unable to challenge its findings. That kind of conduct smacks of a deliberate attempt to mislead the Court by silence particularly on the part of the second respondent whose function includes advising the Minister on policy issues such as these.

On the facts before me it is doubtful that the report was drawn to the Minister's attention before he endorsed the order to place an embargo on the fuel in dispute or at the time he executed his opposing affidavit.

The attempt to conceal the investigating team's report tends to confirm the applicant's allegation that the second respondent was motivated by some improper motive, malice or ill-will in placing an embargo on its fuel when its competitors were importing the same fuel without let or hindrance from the same respondents. The applicant's Managing Director makes the telling point, in paragraph 10 of the applicant's founding affidavit, when he says:

"It will also be seen from the letter from Sasol, dated 1^st October 2009, that apart from the applicant, fifteen other companies are importing the same diesel as the one imported by the applicant in this case. These other companies have been allowed to have their diesel imported into the country without any obstruction. I must point out that Redan, the largest private importer and retailer of fuel in Zimbabwe are importing the same Sasol diesel. This can be seen from the letter from Sasol mentioned above and which I attach as Annexure "E".

The letter from Sasol reads in part:

"As from the 29^th of September 2009 Sasol Oil sold approximately 1,500m³ of Diesel 5000ppm into Zimbabwe. This is to let you know that Diesel 5000ppm is also sold in Zambia and the DRC in considerable quantities. The following companies all moved diesel 500ppm into Zimbabwe for the month of September 2009: UTEC, Nettrade Marketing, Redan, FX International, Petrotrade, Tradimex, Imvuselelo, Cargo Carriers, Lydon, Lemino, Zelda, Stoner Trading, Khumbulani and Bojas."

That much is common cause as the respondents have not been able to challenge those factual dispositions.

In his opposing affidavit, the first respondent nevertheless deposed that in imposing the embargo he was exercising his Constitutional mandate to give general direction and control over his ministry and departments in terms of section 31D of the Constitution which provides that:

"(3) Subject to the provisions of this Constitution and any Act of Parliament, where any Minister has been charged with responsibility for any Ministry or department he shall exercise general direction and control over that Ministry or department, and, subject to such direction and control, any such Ministry shall be under the supervision of a Secretary."

It must be noted that the Constitutional mandate restricts the minister's authority to his ministry in so far as the section states that "…, he shall exercise general control and direction over that Ministry" and not any other Ministry.

While it is correct for the first respondent to say, as Minister, he has a Constitutional duty to exercise general direction and control over his ministry or departments, that Constitutional mandate must be exercised within the strictest confines of the law. It cannot, and must not, be used as a vehicle to act outside the strict confines of the law. The words of PROFESSOR FELTOE, in his booklet, A Guide To Administrative Law…, are instructive when he says:

"All administrative powers (other than those exercised by domestic tribunals) derive from statute and the nature and extent of those powers are to be found in the statutory provisions whereunder these powers have been granted. Such powers are not unlimited. The legislature will not give unlimited power, but, instead, it will give power for specific purpose only or subject to special procedures or with some other kinds of limits. In other words, the limits upon the power are to be discovered by examining the statutory provisions in order to determine what powers the legislature has expressly or impliedly granted. The exercise of a power by an administrative official or body will be invalid unless the official or body is authorized to exercise that power. If an administrator purports to exercise a power he does not have or acts in excess of a power he possesses, his action will be invalid on the basis that it is ultra vires."….,.

Thus, the first respondent cannot use the general powers granted to him by the Constitution to arrogate to himself specific administrative powers which have not been granted to him by the legislature.

His resort to cabinet authority and directives as justification of his unlawful conduct is equally misplaced and without merit because cabinet has no legislative authority. It is trite that laws are made in Parliament and not in Cabinet.

The first respondent also sought to argue that as a Government Minister he placed the embargo on the diesel in the public interest because it constituted a harmful substance in terms of the Environment Management Act [Chapter 20:27] as read with the Environment Management (Hazardous Substances, Pesticides and other Toxic Substances) Regulations, Statutory Instrument 12 of 2007.

In other words, the first respondent is claiming that he has authority to administer the Environmental Management Act simply because he is a Government Minister.

Section 2 of the Environment Management Act [Chapter 20:27], however, defines Minister in the following terms:

"'Minister' means the minister of Environment and Tourism or any other minister to whom the President, may, from time to time, assign the administration of this Act."

What that means is that for the purposes of administering that Act, the law does not recognize any other Minister other than the Minister of Environment and Tourism or any other Minister specifically assigned the task of administering that Act by the President.

In this case, it is common cause that the first respondent, as Minister of Energy and Power Development, he is neither the Minister of Environment and Tourism nor has he been assigned by the President the right to administer the Environment Management Act. For that reason, he cannot assign to himself the power to administer the Environment Management Act without usurping both the President and the Minister of Environment and Tourism's functions.

That being the case, the first respondent's conduct, in assuming responsibility over the Environment Management Act, without Presidential authority, was unconstitutional, and, to that extent, unlawful. In legal parlance his conduct was ultra vires the Constitution as read with the Environment Management Act [Chapter 20:27] and the Environment Management (Hazardous Substances, Pesticides and other Toxic Substances) Regulations, S.I.12 of 2007.

Looked at from a different angle, a perusal of the Constitution, the Environment Management Act [Chapter 20:27] and the Environment Management (Hazardous Substances, Pesticides and other Toxic Substances) Regulations, S.I.12 of 2007 shows that nowhere do they authorize any Minister to place an embargo on any fuel on the basis that its specifications constitute a hazardous substance or is harmful to motor vehicles. This explains why the responsible Minister, that is to say, the Minister of Environment and Tourism has wisely chosen not to interfere with the importation of the diesel in question.

Resorting to the Constitution, the Environment Management Act [Chapter 20:27] and the Environment Management (Hazardous Substances, Pesticides and other Toxic Substances) Regulations, S.I.12 of 2007 could not assist the respondents achieve their purpose considering that in the case of Minister of Justice and Law and Order and Another v Musarurwa and Others 1964 RLR 298 the Appellate Division held, per BEADLE CJ, that:

"(3) When several Acts are used together for the single purpose of producing a desired result, all the Acts must be looked at together as comprising one scheme, If, in its pith and substance, such scheme is unlawful, what was done under each Act must be regarded as having been unlawfully done."

In the same case, QU'ENET JP weighed in with the observation that:

"In exercising his powers of restriction, the Minister was not influenced by a desire to give effect to the purpose of section 50(1)(b) of the Law and Order (Maintenance) Act [Chapter 39], but by a desire to achieve a result not contemplated by the section, viz, to regulate the visits of other persons to the area of restriction. The existence of such ulterior motive invalidated the orders."

In this case, the Minister's resort to section 72 of the Environment Management Act was not motivated by a desire to advance the purpose of that section but to bar the applicant from importing the diesel in circumstances where others were importing such diesel without let or hindrance. I come to that conclusion because the section does not authorize anyone to bar the importation of such diesel. It reads:

"72 Hazardous waste

(1) The Standards and Enforcement Committee shall, in consultation with the Agency, recommend to the Board standard criteria for the classification of hazardous wastes with regard to determining —

(a) Hazardous waste;

(b) Corrosive waste;

(c) Flammable waste;

(d) Toxic waste;

(f) Radioactive waste;

(g) Any other category of waste the Board may consider necessary.

(2) The Board shall, on the recommendation of the Standards and Enforcement Committee, issue guidelines and recommend to the Minister the making of regulations for the management of each category of hazardous waste determined under subsection (1).

(3) Regulations referred to in subsection (2) may prescribe the procedure and criteria for:

(a) The control of imports and exports of toxic and hazardous chemicals and materials permitted to be so imported or exported;

(b) The distribution, storage, transportation and handling of chemicals and materials."

As can be seen, the section simply authorizes the responsible Minister to make regulations controlling the importation of hazardous waste. Diesel with a high sulphur content is however not waste. The section does not prohibit the importation of substandard fuel.

The general rule of law is that what is not prohibited is allowed. As the importation of sub-standard fuel is not prohibited by law it means its importation is legally permissible.

It follows, therefore, that the Investigating Committee and ZIMRA were absolutely correct in advising the second respondent that his conduct was unlawful.

He disregarded that sound advice at his own peril.

His conduct becomes especially malicious and objectionable if one takes into account that he singled out the applicant for victimization in circumstances where fifteen (15) others were not penalized at all and continue not to be penalized for the same alleged misdemeanor. This discriminatory conduct offends both against the Constitution and all notions of justice and fairness.

Being an adviser to the first respondent, the second respondent appears to have misled his principal by concealing and deliberately not disclosing to him the Investigating Committee's report.

That kind of conduct cannot be tolerated by these courts.

By consciously ignoring sound advice, thereby deliberately straying into the wilderness of costly illegality, the second respondent cannot cry foul when he is personally visited with adverse costs.

Granted, the second respondent was acting in the course of duty as a civil servant but while going about his duties he was not entitled to act unlawfully thereby trampling on other people's rights.

A civil servant, or any other employee for that matter, who acts unlawfully in the course of duty attracts personal liability for the simple reason that he is not employed to discharge his duties contrary to law. People must not cause harm to others under the guise of executing official duties. There is therefore no merit in the second respondent's objection to being sued in his personal capacity.

While the importation of substandard fuel is undesirable and harmful to public interest, there is absolutely nothing the respondents can do about it in the absence of the necessary legal instruments as recommended by the Investigating Committee. This is what the cherished rule of law is all about.

It is accordingly ordered that a provisional order be and is hereby granted in the following terms:

TERMS OF THE FINAL ORDER SOUGHT

Pending the final determination of this matter, Applicant is granted the following relief:

That you show cause to this Honourable Court why a final order should not be made in the following terms:

(a) That the respondents pay demurrage costs to the amount of South African R308,660=.

(b) That the respondents pay costs of suit on an attorney client scale.

INTERIM RELIEF GRANTED

Pending determination of this matter, the Applicant is granted the following relief:

(c) That the Respondents release to the Applicant diesel or its agent fuel held at Beitbridge being a total of 476,427 litres without any conditions.

(d) That the Respondents are interdicted from unlawfully frustrating or preventing Applicant from carrying out its business of trading in fuel including importing and distributing fuel in the country.

Did the first respondent fail to comply with the provisions of section 3(1), (2), and (3) of the Administrative Justice Act [Chapter 10:28]?

The first respondent is an administrative authority in terms of section 2(1)(c) of the Administrative Justice Act [Chapter 10:28], and, as such, he is enjoined to act lawfully, reasonably, and fairly, as required by section 3(1) of the Administrative Justice Act [Chapter 10:28].

From what the applicant outlined in detail in his founding affidavit, the Roads Toll (Regional Trunk Road Network) [Amendment] Regulations, 2009, (S.I.39 of 2009) are partial, and unequal in their operation as between people who are ratepayers and residents of the City of Bulawayo. The objective of the location of this toll point, that is to enhance traffic catchment, is disproportionate with the financial oppression it is causing to residents of Norwood in the applicant's position.  

The declaration of the disputed toll point is manifestly unjust, and discriminatory, to the residents of Norwood who are ratepayers of Bulawayo City Council. The declaration is partial, and unequal, in its operation as between different classes of the City of Bulawayo ratepayers.

It is trite that delegated legislation, like the Roads Toll (Regional Trunk Road Network) [Amendment] Regulations, 2009, (S.I.39 of 2009), can be declared ultra vires the primary legislation - if it is grossly unreasonable. Gross unreasonableness is present when the provisions of the enactment entail discrimination, are disproportionate, vague, or uncertain – Administrative Law by L.BAXTER (1984)...,.; R v Jeremiah 1956 (1) SA 8 (SR); ZAPU V Minister of Justice, Legal and Parliamentary Affairs 1985 (1) ZLR 305 (S); S v Nyamapfikudza 1983 (2) ZLR 234 (S); and S v Delta Consolidated (Pvt) Ltd and Others 1991 (2) ZLR 234 (S).

In the circumstances, I make the following order -

It is declared that:-

“1. The declaration by the first respondent of the toll point on the Bulawayo-Victoria Falls Road, before the Nyamandlovu turn-off, between the 12,5 kilometre peg and the 13,5 kilometre peg, is unjust, grossly unfair, and discriminatory, and, therefore, a nullity, for non-compliance with section 3 of the Administrative Justice Act [Chapter 10:28].  

The executor in this matter has sought to rely on the letter from the Law Society of Zimbabwe as authority for the proposition that he was justified to rely on the tariff of 2009 to charge for work done prior to that date.

With respect, the letter from the Law Society of Zimbabwe cannot possibly be relied upon as authority for the proposition to flout the Law Society's own Regulations for the levying of legal fees.

That letter is not precedent.

If anything, it is no more than an ordinary letter carrying the opinion of the Executive Secretary of the Law Society as an organisation.

The applicants in this matter are all duly elected Members of Parliament. The first respondent is the Clerk of Parliament, cited herein in his official capacity.

The second respondent was elected to the position of Speaker of the House of Assembly on the 25th of August 2008.

The applicants challenge the validity of the second respondent's election as Speaker on several grounds.

They originally sought an order setting aside the second respondent's election, and, consequentially, an order nullifying all acts performed by him qua Speaker. However, at the hearing of this case, counsel for the applicants conceded the excessiveness and enormity of the consequential relief sought and opted not to pursue that aspect.

Background

By virtue of section 39(2) of the Constitution of Zimbabwe, the Speaker must be elected in accordance with the Standing Orders of the House of Assembly.

On the 25th of August 2008, following the swearing-in of Members of Parliament (Members), the first respondent announced the procedure for the election of the Speaker. As there was more than one person proposed as Speaker, the election was to be conducted by secret ballot as enjoined by Standing Order Nos. 4 and 6 of the House of Assembly.

According to the applicants, what ensued in Parliament thereafter was chaotic and disorderly and quite contrary to the requirements of a secret ballot.

The first respondent concedes that there was an unprecedented number of Members in the Chamber on that day but denies that the voting process was disorderly or improper. The second respondent supports this position and also raises several preliminary objections to the application, pertaining to locus standi, non-joinder, and the exhaustion of domestic remedies.

The Issues

In the event, the preliminary and substantive issues for determination in this matter, as I perceive them, are as follows:

(i) Whether the applicants have locus standi herein....,.

Locus Standi of Applicants

The second respondent challenges the applicants' locus standi on the grounds that they do not allege any violation of their own right to vote by secret ballot and that it is the losing candidate, one Paul Themba Nyathi, who should have been the principal applicant in this case.

The latter point is untenable for the simple reason that Mr. Nyathi, who was not an MP on the date of the election, has chosen, for reasons known only to himself, not to attack the election process. As for the applicants themselves, they were clearly entitled, as Members, to participate in the election conducted by the first respondent and they unquestionably had a real and substantial interest in the outcome of that election. That being so, they are also entitled to challenge the legitimacy of the election process to ensure that it is conducted in accordance with the prescribed procedures and that it yields a legitimate result.

In the present context, section 3 of the Administrative Justice Act [Chapter 10:28], which codifies and restates the common law position, is directly relevant.

Section 3(1)(a) of the Administrative Justice Act requires every administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person to “act lawfully, reasonably, and in a fair manner.”

In terms of section 4(1) of the Administrative Justice Act, “any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.”

There can be no doubt, in my view, that the conduct of the Speaker's election affected the interests and legitimate expectations of the applicants in the outcome of the election. If they claim to be aggrieved by the first respondent's alleged failure to act lawfully, reasonably, and fairly in the conduct of that election, they are eminently entitled to approach this Court for appropriate relief.

I am therefore satisfied that the applicants have the requisite locus standi in this matter and that the first respondent's objection thereto cannot be sustained....,.

As is clearly recognised in section 5 of the Privileges, Immunities and Powers of Parliament Act [Chapter 2:08], Members enjoy full freedom of speech and debate in Parliament and the proceedings of Parliament are generally immune from being questioned or impeached in any court of law. In other words, as a general rule, Parliament is at large to regulate its own proceedings without external interference.

However, it is well-established that in a constitutional democracy, such as ours, this general immunity is necessarily and invariably subject to the provisions of the Constitution. This subordination to the primacy of the Constitution is entrenched and clearly recognised in sections 3 and 49 of the Constitution. See Smith v Mutasa N.O. & Another 1989 (3) ZLR 183 (SC)…,; Chairman, Public Service Commission & Others v Zimbabwe Teachers Association & Others 1996 (1) ZLR 637 (S)…,.

The election of the Speaker is a process that is not exclusive to Parliamentary privileges and powers. It is explicitly regulated by section 39 of the Constitution and there can be no doubt that it is a matter that is justiciable by the courts to ensure due compliance with the Constitution and the Standing Orders....,.

As I have already stated earlier, Parliament is generally at large to regulate its own proceedings without external interference. As a rule, the courts should be loathe to interfere with the internal proceedings of Parliament unless there is a failure to comply with Constitutional strictures.

This court should only intervene in cases where it is obvious that domestic remedies will not do justice in the case before it.

This approach is consistent with the principle of judicial deference, commented on, in the South African cases of Bato Star Fishing (Pty) Limited v Minister of Environmental Affairs 2004 (4) SA 490…, and Ekuphuleni Metropolitan Municipality v Dada NO & Ors 2009 (4) SA 463 (SCA)…, where HURT AJA commented on judicial deference as follows:

“In Logbro Properties CC v Bedderson NO & Ors 2003 (2) SA 460 (SCA) (2003) 1 All SA 424, para 21, CAMERON JA referred, in the context of a necessity for 'judicial deference', with approval to the following passage from an article by CORA HOEXTER entitled The Future of Judicial Review in South African Administrative Law (2000) 117 SALJ 484, at 501-2, which is to the following effect:

'…, the sort of deference we should be aspiring to consists of a judicial willingness to appreciate the legitimate and constitutionally-ordained province of administrative agencies; to admit the expertise of these agencies in policy-laden or polycentric issues; to accord their interpretation of fact and law due respect; and to be sensitive in general to the interests legitimately pursued by administrative bodies and the practical and financial constraints under which they operate. This type of deference is perfectly consistent with a concern for individual rights and a refusal to tolerate maladministration.'

This passage was also referred to with approval and the theme taken up by SCHUTZ JA in Minister of Environmental Affairs and Tourism & Ors v Phambili Fisheries (Pty) Limited; Minister of Environmental Affairs and Tourism & Ors v Bato Star Fishing (Pty) Limited 2003 (6) SA 407 (SCA) ([2003] 2 All SA 616), paras 52 and 53, where, after quoting the passage set out above, the learned judge said:

I agree with what is said by HOEXTER (op cit at 185):

'The important thing is that judges should not use the opportunity of scrutiny to prefer their own views as to the correctness of the decision, and thus obliterate the distinction between review and appeal'.

(53) Judicial deference is particularly appropriate where the subject-matter of an administrative action is very technical or of a kind in which a court has no particular proficiency. We cannot even pretend to have the skills and access to knowledge that is available to the Chief Director. It is not our task to better his allocations, unless we conclude that his decision cannot be sustained on rational grounds.”

I also find that even though the appeal took long to be determined there was no prejudice to the applicant as he remained on his salary of Inspector for the time it took for the initial decision to be made that his rank be reduced and its eventual implementation. In the event, the delay in finalization of the process may have, in the short run, acted to his benefit in terms of the salary and emoluments that went with the rank of Inspector.

I do not find that any relief under the Administrative Justice Act would assist him.

McNALLY JA..., in Macape (Pty) Ltd v Executrix Estate Forrester 1991 (1) ZLR 315 (SC) said…,:

“The contract to pay is lawful. Actual payment in pursuance of the contract is unlawful without permission. There is no reason why the court should not order payment; subject to the condition that authority is obtained. I must make it clear that this judgment in no way inhibits the Reserve Bank in the exercise of its discretion. It is entirely for the Reserve Bank to decide whether or not to authorise the payment. If it decides not to do so the payment may not be made. The contract remains lawful. Payment will then have to await a change either in the law or in the policy of the Reserve Bank.”

After hearing submissions made by counsel in this matter I dismissed the application with costs and said the reasons will follow. These are the reasons.

This is an application in terms of section 4 of the Administrative Justice Act [Chapter 10:28].

The applicant seeks an order declaring the respondent's failure to renew its Wholesale Dealer's Permit as constituting an unreasonable and unfair administrative action in breach of section 3 of the Administrative Justice Act [Chapter 10:28] and directing the respondent to forthwith renew its permit.

The allocation and expenditure of public funds is a matter that stands on a different footing from any other form of expenditure or disbursement of moneys. Apart from being preconditioned by the need for Parliamentary approval, public expenditure is also subject to Executive control and restriction in the best interests of the community. See Murray v McLean N.O. 1969 (2) RLR 541…,. See also section 24(4) of the Audit and Exchequer Act [Chapter 22:03] which explicitly empowers the Treasury to limit or suspend any authorized expenditure “if, in its opinion, such action is in the public interest.”

The applicant contended that the suggestion by the respondent that it would not be promoted because there was no slot in Division One League was without merit whatsoever for the simple reason that Victoria Falls United, which lost in the play offs against the applicant, ought to have been relegated from the Division One League to Division 2. But, strangely, the respondent had decided to keep it in Division One League at the expense of the applicant which had won all its games in the play-offs.

That was grossly unfair and unreasonable.

The respondent argued that its decision to promote the applicant as well as the decision to promote the team which won its games in the play offs was reversed by an assembly of clubs in the Division One League. An assembly of eleven clubs was alleged to have made the decision to rescind the respondent's decision on 9 February 2010. The decision was allegedly ratified on 7 March 2010. The respondent did not file the minutes of the meeting allegedly held on 9 February 2010. The minutes of the alleged Annual General Meeting of 7 March 2010 are not dated. It is therefore not clear when the alleged Annual General Meeting was held. The applicant went on to conclude that no meeting was held on 9 February 2010. If such a meeting had been held and resolved not to promote the applicant, the respondent would not have directed the applicant, on 18 February, to participate in play offs starting on 27 February 2010. The applicant continued with the play offs until 6 March 2010 - which was a day before the alleged Annual General Meeting. The last match was against Victoria Falls United, which failed to attend, resulting in the applicant being declared the winner of that match. The applicant was invited to attend a meeting the following day whereat it was advised that it could not be promoted to the next division league. Yet, the losing team which should have been relegated was allowed to remain in Division 1 league.

I find it very difficult to imagine anything more unfair and unreasonable than the actions of the respondent.

The respondent's contention that its decision was overturned by that of the assembly of eleven clubs clearly reveals the confusion that exists within the two organisations. The respondent was acting without the mandate of the supreme body. It failed to consult the supreme body before confirming that the applicant was admitted to Division 1 League. It also was not mandated by the supreme body to invite the applicant to participate in play offs. If the court is to accept the assertion that the decision not to promote the applicant was that of the assembly of clubs then that assembly of clubs was approbating and reprobating (blowing hot and cold). This is so because having allegedly resolved not to promote the applicant on 7 March 2010 it invited the respondent to an extraordinary meeting on 28 April 2010. There were eleven clubs each being represented by two representatives. The representatives of the applicant were requested to sit outside since the meeting had specifically been called to deal with their issue. After deliberations, the applicant was informed that the assembly had resolved to accommodate them in Division 1 by extending the league to 18 teams. The respondent confirmed that the meeting was indeed held and also agreed that the assembly of eleven clubs was in fact the majority of the teams in the league of sixteen teams. The respondent, however, went on to state that the meeting was illegal since it was not held in terms of their Constitution. It pointed out that to the committee that was sent by the assembly which apologised to it. It went on to allege that it was contemplating charging the clubs concerned with bringing the game of football into disrepute.

The applicant seeks a provisional order in the following terms:

“Terms of final order sought

That you show cause to this honourable court why a final order should not be made in the following terms:

1. That the respondents, their servants, agents, assigns or successors in title be and are hereby permanently restrained from interfering in any way with applicant's mining and other operations at Norma V 2-4 and Panganai 7 and 8 mining claims.

2. That the respondents and all such persons keep a distance of half a kilometre from such mining claim.

3. That the respondents jointly and severally, the one paying the other to be absolved, pay the costs of this application.

Interim relief granted

Pending determination of this matter, the applicant in [sic] granted the following relief –

That paragraphs 1 and 2 of the terms of the final order sought operate as an interim interdict restraining the respondents as there set out, that is to say, from interfering in any way with applicant's mining and other operations at Norma V 2-4 and Panganai 7 and 8 mining claim, and that they keep a distance of half a kilometer from the said claims.”

The respondents have filed a notice of opposition and opposing papers. They also filed a counter-application.

The respondents also raised some points in limine. In light of the concession made by the applicant to limit the interdict to Norma V 2-4-, the points in limine that had some merit fall away.

As alluded to above, the applicant has conceded that there are problems as regards Panganai 7 and 8 mining claims. This concession is rightly made as the applicant's name does not appear as the purchaser of these claims in the Agreement of Sale forming the basis of the claim. The same cannot be said of Norma V 2-4 mining claims. In the latter, it is clear that the applicant purchased them.

A dispute arose between the applicant and the first respondent. The boundary dispute was correctly referred to the Mining Commissioner, Bulawayo for resolution. A Mr Nyoni from the Mining Commissioner's office attended to the dispute and visited the area. Mr Nyoni's determination was that the first respondent was working “outside his Panganai claims but inside one of Norma V 2-4 claims belonging to the applicant.” The Mining Commissioner informed the parties about this determination in writing. The Mining Commissioner also advised the Zimbabwe Republic Police, Filabusi, to assist the applicant to remove the first respondent and his employees from Norma V 2-4.

What I discern from the first respondent's opposing papers and counter application is that the first respondent does not dispute that Norma V 2-4 belongs to the applicant. Equally, the first respondent does not lay any claim to Norma V 2-4. The respondents are claiming Norma 2C and 2D. In particular, the respondents dispute that the area determined by the Mining Commissioner to be part of Norma V 2-4 (i.e the area where the respondents have their workers carrying out mining operations) is indeed so; they allege that it is part of their Norma 2C. They, in essence, are challenging the above-mentioned findings of Mr Nyoni of the Mining Commissioner's office. The applicant's case is that this area is part of Norma V 2-4 and hence the protection that is sought in casu.

As alluded to, the applicant is supported by the statutory authority in charge of such mining claims.

The applicants seek a provisional order in the following terms:

“Terms of the final order sought

That you show cause to this honourable court why a final order should not be made in the following terms:

1. The decision of the respondent to remove the applicants from the list of persons who are part of the Outreach Teams of the constitution-making process without giving the applicants a hearing and without giving reasons, be and is hereby declared to be unfair, and in contravention of section 3(1)(a) of the Administrative Justice Act [Chapter 10:28].

2. The respondent be and is hereby directed to include the applicants as part of the Outreach Teams in the constitution-making process without loss of benefits.

3. The respondents be and are hereby ordered to pay the costs of suit on an attorney and client scale if it oppose [sic] confirmation of the provisional order.

Interim Relief Granted

Pending the finalization of the matter, applicants be and are hereby granted the following relief:

1. The respondent be and is hereby ordered and directed to take all reasonable steps to forthwith include the applicants as part of the individuals in respondent's Outreach Teams on constitution making with full benefits including payment of allowances.

2. The respondent must further forthwith communicate in writing to the applicants' legal practitioners of record the inclusion of the applicants in the Outreach Teams for the constitution-making process.”

The applicants are members of a civic organization known as Ibhetshu likaZulu which is based in Bulawayo and is a pressure group advocating for “equitable development of all parts of the county.”

When the Constitutional Select Committee commenced the process of setting up structures to facilitate the making of a new Constitution, it selected individuals across the country to be part of the Outreach Teams that will gather people's views and input on the content of the new Constitution. The applicants were initially part of the people selected to be part of the Outreach Team. They underwent training to achieve this objective between 10 and 14 January 2010. The training was conducted by the Constitutional Select Committee for all delegates from all over the country. At the end of the training the Constitutional Select Committee caused the applicants and all the delegates to sign Codes of Conduct binding themselves as members of the Constitutional Select Committee's Outreach Teams. The applicants, like all other members of the Outreach Teams, were accredited and issued with accreditation cards. All the Outreach Teams' members were detailed in the media.

A copy of the Chronicle newspaper of 9 January 2010 was filed of record to evince this.

On 11 June 2010, the Constitutional Select Committee published another list of members of its Outreach Teams. The applicants' names did not appear on this latter list resulting in this application.

The Constitutional Select Committee's explanation for this state of affairs is that it does not nominate members to the Outreach Teams. The political parties and civic organizations do the nomination.

Whilst it is beyond dispute that the applicants are members of Ibhetshu likaZulu, they are also active members of ZAPU political party. The applicants have not disputed this fact by averments in answering affidavits. The Constitutional Select Committee set out a framework which was to be strictly adhered to by the political parties and civic organizations in selecting individuals for the Outreach Teams. The framework that had to be followed was as follows -

(a) Political parties were to provide thirty percent (30%) of the total membership of Outreach Teams.

(b) The remaining seventy percent (70%) was to be drawn from the civic society.

(c) The political parties were to nominate and submit, to the Constitutional Select Committee, the names of candidates from their respective political parties and also the names of those selected from the civic society. In other words, all names of selected individuals for the outreach programme were submitted by the political parties, be it from the political parties themselves or from the civic organizations.

(d) A person who is an active member of a political party cannot be selected under the slot given to civic organizations. The rationale for this provision is to ensure that political parties do not gain unjust advantage over political parties by selecting their members in the slot given to political parties and also have some of its members selected under civic society. Not only would this be prejudicial to other political parties but it would prejudice the civic organizations.

In casu, the applicants' names were submitted to the Constitutional Select Committee by the Movement for Democratic Change (“MDC-M”). It is submission by MDC-M that resulted in the applicants' inclusion in the abovementioned training programmes and accreditation. The Constitutional Select Committee later received communication from the MDC-M that it had discovered that the applicants enjoyed active dual membership of ZAPU and Ibhetshu likaZulu - a fact they were not aware of at the time when their names were submitted to the Constitutional Select Committee.

The applicants have not disputed the Constitutional Select Committee's assertion to that effect.

The criteria was agreed upon by political parties. In fact, the applicants are said to be prominent members of ZAPU with the first applicant being the Provincial Chairperson of ZAPU's Youth Wing in Bulawayo Province. In terms of the above criteria, the applicants could not be allowed to proceed to participate in the outreach programme as this would give undue advantage to ZAPU over other political parties. ZAPU was allowed to nominate five (5) people just like other political parties of its size. By allowing the applicants to participate it would have meant that ZAPU would be represented by eight (8) people, i.e. three (3) more than other political parties of its size. It was on this ground that the applicants' names were dropped from the latter list of members of the outreach programme.

The applicants were not expressly informed of the decision to remove them from the progamme neither did the applicants demand the reasons for their removal from the Constitutional Select Committee.

It seems to me that they were so much affected by the removal that they approached this court directly without first asking the Constitutional Select Committee for reasons. They did not confront the Constitutional Select Committee or MDC-M about their removal.

It does seem to me that the parties in their papers delved unnecessarily on emotive aspects of the abandoned game and personalities involved. In the process they tended to lose focus on the main issue.  The main issue seems to be whether the game was abandoned on account of the behavior of Highlanders supporters (the basis for Ad Hoc Committees finding against the applicant) or whether it was on account of poor visibility as reflected in the Match Referees Report. If it is the former, then the Ad Hoc Committees findings would be understandable. But if it is the latter, then a replay of the game would most likely outcome would have been a replay. It is for this reason that I had encouraged the parties to see if they cannot find common ground but it seems they failed. This issue will be dealt with by the court on review under HC1800/10.

The third respondent…., does not oppose the application.

With such an attitude by the sponsor of the competition one would have expected the issue to have been resolved much earlier. The second respondent submitted that they are opposing this application because they have been battling to attract sponsors.

If they are to succeed in this endeavour, they have to develop and enhance their dispute resolution mechanisms. This case is not a good advertisement to attract sponsorship.

Following his unhappiness with the Chief's order, the respondent resorted to filing an application for review at the Magistrates Court. This approach is perfectly allowed in terms of section 25 of the Customary Law and Local Courts Act [Chapter 7:05].

After hearing the matter, the magistrate annulled the Chief's ruling. His reasons for doing so were that section 26 of the Traditional Leaders Act [Chapter 29:17] prohibited occupation of communal land other than with the approval of the Rural District Council. The same section confirms the administrative jurisdiction of Rural District Councils over the control, use and allocation of all communal land. The magistrate found that by ordering the eviction of the respondent, the Chief had effectively allocated communal land in contravention of section 26 of the Traditional Leaders Act [Chapter 29:17]. The magistrate had further found that by evicting the respondent, the Chief had usurped the powers of Manyame Rural District Council which had authority over the land in question in terms of section 26(3) of the Communal Lands Act [Chapter 20:04].

On that basis alone the Chief's judgment was annulled on account of lack of jurisdiction.

It seems to me that the learned magistrate erred and misdirected himself in holding that the Chief had no jurisdiction to entertain the matter considering the correct circumstances of this case. It is my considered view that the Chief only entertained a dispute relating to land and did not allocate land. This is so because the land in question was already allocated way back. It is correct that section 16(g) of the Customary Law and Local Courts Act [Chapter 7:05] provides that a local court shall have no jurisdiction in any case to determine rights in respect of land or immovable property. It is equally true that section 5(1)(e) of the Traditional Leaders Act [Chapter 29:17] provides that a Chief shall be responsible within his area for discharging any functions conferred upon him in terms of the Customary Law and Local Courts Act [Chapter 7:05]. Section 5(1)(n) of the Traditional Leaders Act [Chapter 29:17] specifically provides that the duties of Chiefs as;

“A chief shall be responsible within his area for….,.

(n) Adjudicating in and resolving disputes relating to land in his area.”

It is therefore clear that the Chief adjudicated and resolved a land dispute in his area in terms of the law. He did not allocate land. Allocation of land and resolving of a dispute are totally different things. Allocation of land, in my considered view, involves the granting of rights, interest and title to land to an individual, whereas the resolving of a land dispute involves the entertainment of a dispute between or amongst individuals over an already allocated piece of land. The appellant brought a dispute before the Chief for resolution - not a request for allocation of land. The appellant would not have brought a case for allocation of land because his case was to the effect that his father had been allocated the land in the 1960's and he was paying dues to Council for the piece of land. The Chief made the ruling confirming that position after satisfying himself that the piece of land in question was indeed registered in the names of the appellant's father.

Consequently, the appeal succeeds.

The review judgment of the magistrate in the court a quo is therefore set aside. The respondents are to pay costs of suit.

The rules of natural justice, as embodied in the audi alteram partem rule, require that a person be given reasonable notice to make representations where another takes action which adversely affects his/her interests or rights. The rule, as espoused in the Administrative Justice Act [Chapter 10:28], require that an administrative authority, such as the first respondent, with the responsibility to take an administrative action which may adversely affect the rights or interest of any person, to give that person an opportunity to make adequate representations. (See U-Tow Trailers (Private) Limited v City of Harare & Anor HH103-09).

It appears that the first respondent did not give the applicant the opportunity to make any representations before it unilaterally and summarily terminated the lease agreement. The first respondent did not oppose the application. Therefore, the applicant's averments and contentions were not disputed. In the absence of any opposition from the first respondent, it is my view that the first respondent did not act fairly by not giving the applicant the opportunity to make representations.

The lease agreement between the applicant and the first respondent, therefore, still subsists….,.

Turning to the relief sought, it appears that the draft order was not elegantly drafted. It is, however, clear from the pleadings that the applicant was seeking the nullification of the summary cancellation of the lease agreement with the first respondent. It will therefore be necessary for me to first order the setting aside of the summary termination of the applicant's lease. The other relief sought will thereafter follow.

The applicant is also, in my view, entitled to the expeditious processing of the approval of his building plans. The lease agreement requires that he commences constructing a building not later than twelve months after the commencement of the Agreement. The Agreement commenced running from August 2007. The applicant submitted his plan timeoulsy on 12 December 2007. Four years later the plan has not yet been processed one way or the other. The third respondent's plan was processed and approved on the very same day that it was submitted. The applicant therefore has a legitimate expectation that the first respondent should expedite the processing of his plan if he is to comply with the terms of the lease agreement.

In the result it is ordered that:

1. The decision of the first respondent to summarily cancel the applicant's lease agreement be and is hereby set aside.

2. The allocation of Stand Number 32, Muguta Shopping Centre, Epworth to the second, third, fourth respondents be and is hereby reversed.

3. The first respondent be and is hereby ordered to expedite the consideration of the applicant's building plans.

By authorizing the applicant to carryout dairy business on the premises until April 2012 the Dairy Officer was not allocating any land to the applicant. This was a mere administrative measure to facilitate the operation of dairy business on the land.

The applicant is the holder of a Part IV permit or registration certificate issued by a Dairy Officer. Section 27 of the Dairy Act [Chapter 18:08], however, provides that such a permit or certificate of registration can only be issued by the Chief Dairy Officer or local authority. Section 27 of the Dairy Act [Chapter 18:08] provides that:

“27. Dairies, depots, and ice-cream factories to be registered

(1) No person shall use any premises as:-

(a) A farm butter dairy; or

(b) A farm cheese dairy; or

(c) A farm dairy; or

(d) An ice-cream factory; or

(e) Milk dairy; or

(f) A milk depot;

Unless he holds a Part 1V registration certificate which -

(i) Has been issued in respect of the premises; and

(ii) Is not suspended in terms of subsection twenty-eight.

(2) Subject to this section, if the premises referred to in subsection (1) are -

(a) Situated within the area of a local authority, registration thereof shall be effected with the local authority;or

(b) Situated outside the area of a local authority, registration thereof shall be effected with the Chief Dairy Officer.”

POINT I

This point relates to paragraph 2 of the draft order only.

I will not dwell much on it as, in my view, even if I were to make a finding in favour of the respondents, it will not dispose of the matter. The court still has to consider whether it can grant the other paragraphs of the draft order.

Counsel for the first and second respondents submitted that the applicants chose to proceed to seek relief in terms of a specific statute and not through the common law approach. The relief they seek in paragraph 2 of the draft order is one that effectively substitutes the administrative authority's decision. This is not envisaged anywhere in the Administrative Justice Act [Chapter 10:28].

Counsel for the applicants submitted that it is a general principle of our law that our courts do not lightly interfere with administrative decisions made by administrative authorities in the absence of illegality, irrationality or procedural impropriety. The High Court can interfere with an administrative decision on the aforementioned grounds. He further submitted that in terms of section 4(2) of the Administrative Justice Act [Chapter 10:28], the High Court may confirm or set aside the decision concerned or refer the matter back to the administrative authority concerned for consideration or reconsideration.

Paragraph 2 of the Draft Order reads:

“2. The first and second respondents are hereby directed to issue fishing permits to the first, second and third applicants upon payment of the requisite fees and compliance with other statutory requirements.”

The point being made by the respondents, which point I agree with, is that the effect of granting paragraph 2 of the order is to substitute the decision of the respondents with that of this court. No such power is conferred on this court by section 4(2) of the Administrative Justice Act [Chapter 10:28]. Section 4(2) of the Administrative Justice Act [Chapter 10:28] provides:

“(2) Upon an application being made to it in terms of subs (1), the High Court may, as may be appropriate -

(a) Confirm or set aside the decision concerned;

(b) Refer the matter back to the administrative authority to take administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(c) Direct the administrative authority to take administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(d) Direct the administrative authority to supply reasons for its administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(e) Give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with section three.”

In my view, the language used in the above section was carefully crafted in a bid to avoid the undesirable situation where the courts would take over the functions of an administrative authority. See Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S)…,. McNALLY JA quoted, with approval, comments in BAXTER's Administrative Law that:

“The function of judicial review is to scrutinise the legality of administrative action, not to secure a decision by a judge in place of the administrator. As a general principle, the court will not attempt to substitute their own decision for that of the public authority; if an administrative decision is found to be ultra-vires the court will usually set it aside and refer the matter back to the authority for a fresh decision. To do otherwise 'would constitute an unwarranted usurpation of the powers entrusted to the public authority by the legislature.' Thus, it is said that: 'the ordinary course is to refer back because the court is slow to assume a discretion which has, by statute, been entrusted to another tribunal or functionary. In exceptional circumstances this principle will be departed from. The overriding principle is that of fairness.'”

This is an opposed court application. The facts of the matter are as follows;

The applicant is a qualified surgeon practising as such in Harare. He is a registered member of the respondent. On 15 January 2009, the applicant lodged a complaint with the respondent against three of its registered medical practitioners. The applicant believed that the medical practitioners he specifically mentioned in his letter of complaint had committed wrongful acts that constituted professional misconduct in terms of the Health Professions Act [Chapter 27:19].

On 23 April 2012, (a period in excess of three years), the respondent, through its Registrar, advised the applicant that his complaint had been dismissed. The following day, the applicant wrote a letter to the respondent requesting reasons for the decision to dismiss his complaint. The respondent advised in its letter dated 2 May 2012 that such reasons will only be availed after 31 July 2012, the date the respondent is expected to meet and confirm the minutes of its Executive Committee meeting held on 12 April 2012. On 16 May 2012, the applicant wrote yet another letter insisting that he be given the reasons. The respondent replied, on 18 May 2012, indicating its earlier position that the reasons will be released after 31^st July 2012.

The applicant then sought the intervention of his lawyers who wrote to the respondent asking for reasons for the respondent's decision to dismiss the applicant's complaint. The respondent's reply was that it had referred this letter to its legal practitioners. On 31 May 2012, the applicant's legal practitioners wrote to the respondent warning it that if the reasons are not furnished the applicant will apply to this court for an order compelling the respondent to supply the reasons. When no reasons were furnished the applicant then filed this application on 20 June 2012.  In his application, the applicant stated two reasons why he required the respondent's reasons, namely;

(i) That he wanted to exercise his right of appeal; and

(ii) That he was considering taking the respondent's decision on review.

Both remedies have certain time limits which must be observed.

The application was opposed on the grounds that it was not properly before me and that the applicant was advised that the “decision making processing was still taking place.”…,. The respondent prayed for the dismissal of the application with “an order for punitive costs.”…,.

On the merits, the applicant's case is simply that he has a statutory right to be informed of the reasons for the respondent's decision to dismiss his complaints against some of the respondent's members. This right arises from the provisions of section 6(1) of the Administrative Justice Act [Chapter 10:28]. Section 6(1) of the Administrative Justice Act [Chapter 10:28] states;

“Subject to this Act and any other enactment, any person -

(a) Whose rights, interest of legitimate expectations are materially and adversely affected by any administrative action; or

(b) Who is entitled to apply for relief in terms of section four, and who is aggrieved by the failure of an administrative authority to supply written reasons for the action concerned within -

(i) The period specified in the relevant enactment; or

(ii) In the absence of any such specified period, a reasonable period after a request for such reasons has been made;

May apply to the High Court for an order compelling the administrative authority to supply reasons.”

In casu, despite the respondent's feeble denials, it is crystal clear that the applicant requested for reasons.

On one hand, the respondent argued that the applicant only asked for a “determination” and not “reasons”; and yet, on the other, it argued that the applicant was not entitled to reasons. The respondent became aware, as far back as 23 May 2012 (if not earlier), that the applicant wanted reasons for its decision….,. During the hearing, the respondent's counsel submitted that the applicant no longer has a cause of action since he was furnished with “Council's reasons.” The evidence shows that the respondent has been dodging this issue for quite some time. This is why Josephine Mwakutuya's letters on the issue do not make sense. In one of the letters, dated 30 May 2012, the respondent's Registrar alleged that the applicant could not be supplied with reasons for the decision as yet because the Executive Committee of the respondent responsible for confirming the decision would only convene on 31 July 2012…,. In the second letter, date 28 June 2012, the same person wrote that the decision of the Executive Committee had already been confirmed at its meeting of 29 May 2012. Now, this was a day before the first letter was written, meaning that the first letter was a deliberate misrepresentation of the date the Executive Committee would convene to confirm the decision. The question that boggles the mind is; in which letter did the Registrar indicate the truth? Obviously the two positions are mutually exclusive in that if what is contained in the second letter is the truth, then the first letter was a deliberate misrepresentation of facts. In my view, it cannot be said that the applicant's request is frivolous. The complaints he raised relate to the practice of his profession. The respondent dismissed his complaints without giving him the reasons why those complaints were dismissed. The applicant is entitled to know the reasons and the respondent has no legitimate grounds to continue in its delay to furnish the applicant with reasons for its decision….,.

For these reasons, it is ordered;

(i) That the respondent furnishes the reasons for its decision made on 12 April 2012, dismissing the applicant's complaints against Dr N. Mawere, Mr F. Lovemore and Mr Govah, within 7 days of this order being served on it.

In the alternative, the applicant applied in terms of section 4(1) of the Administrative Justice Act [Chapter 10:28] for leave to sue SMM Holdings (Pvt) Ltd as the respondent's failure to consider the application for leave and to make a decision as an administrative authority amounts to a breach of section 3 of the Administrative Justice Act [Chapter 10:28].

The applicant supported its request for the court to grant leave in the respondent's stead on the basis that not only is the court armed with all the facts to enable it to make that decision, but also that the respondent appears to have taken a position not to grant leave and is unlikely to alter his position….,.

The respondent also questioned the regularity of the application which, in his view, should have been brought by way of a review as section 4 of the Administrative Justice Act [Chapter 10:28] is:

“A codification of an established common law provision for the review of administrative authorities' actions.”…,.

Finally, I turn to the application for leave to sue.

It cannot be disputed that once appointed as Administrator of a company under reconstruction, the Administrator is an administrative authority, which, in terms of section 2 of the Administrative Justice Act [Chapter 10:28] is:

“…, any person who is -

(a) An officer, employee, member, committee, council, or board of the State or a local authority or parastatal; or

(b) A committee, or board appointed by or in terms of any enactment; or

(c) A Minister or Deputy Minister of the State; or

(d) Any other person or body authorised by any enactment to exercise or perform any administrative power or duty;

and who has the lawful authority to carry out the administrative action concerned.”

In terms of section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27] once a reconstruction order is issued by the Minister of Justice, no action or proceeding can be proceeded with or commenced against the company under reconstruction except by the leave of the Administrator and subject to such terms as he may impose. It was in line with that provision that the applicant applied to the respondents for leave to bring legal proceedings in pursuance of the Sale Agreement of the parties. The Administrator, as I have said, dithered and in the end did not deal with that application. It is only in his opposing affidavit that he has come out openly to say that he will not grant leave because the applicant has no cause of action on the merits as he is standing on firm ground having lawfully sold the mining location and given possession to the applicant.

In paragraph 18.2, the respondent stated:-

“Annexure K (referring to the letter of Dube, Manikai & Hwacha dated 29 May 2012 which is in fact not annexure K to the applicant's founding affidavit but is erroneously marked “B”) being my legal practitioners' letter to applicant's legal practitioners, was really my final position on the matter at the relevant time. It was supported by an order of court and I do not believe that I did anything wrong nor do I believe SMM breached its contract with the applicant. In fact, 'Annexure 1' is itself evidence that the law recognises what I am saying now: SMM gave vacant possession to applicant and Mujumi was an unauthorised third party to the agreement between the parties with no lawful right to the claims. The applicant should, in fact, institute proceedings against Takunda Mujumi and not myself or SMM.”

Therein lies the trick and perhaps the biggest challenge with the provisions of section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27] which appear to permit an interested party to be the judge over his own case.

What comes out from the above passage in the respondent's deposition is that not only did he assume the obviously biased view that the applicant had no case against him and therefore could not sue him or SMM Holdings (Pvt) Ltd but also that he arrived at that position prematurely and without regard to due process in that his “final position” was achieved months before an application for leave which was only made on 3 August 2012. That final position was arrived at on 29 May 2012 and therefore preceded the application for leave. As contained in the letter from his legal practitioners to the applicant's legal practitioners it was to the effect that:-

“We refer to the above matter and to your letter of 10 May 2010 and that of 4 April 2012. Kindly accept our apology for failing to respond to your letters. We advise that our client has no other way of resolving the impasse expect (sic) by finalising the litigation matters with Mr Mujumi. We believe that our client will succeed in court.”

In my view, this was self-serving and detached from the responsibility of considering the application for leave to sue which was made by the applicant. The respondent was pre-occupied with his own defence in the intended suit and not with considerations of fairness and according the applicant the opportunity to present his case before an impartial court or tribunal of competent jurisdiction. The respondent, inevitably fell into the trap of self- preservation. As they say; “he that conducts his own defence has a fool for a lawyer.”

Now, section 3(1) of the Administrative Justice Act [Chapter 10:28] sets out the responsibilities of an administrative authority. It provides:

“An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall -

(a) Act lawfully, reasonably and in a fair manner; and

(b) Act within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to take the action by the person concerned; and

(c) Where it has taken the action, supply written reasons therefor within the relevant period specified by law, or, if there is no such specified period within a reasonable period after being requested to supply reasons by the person concerned.” 

Section 4 of the Administrative Justice Act [Chapter 10:28] authorises any person aggrieved by the failure of an administrative authority to comply with section 3 of the Administrative Justice Act [Chapter 10:28] to apply to this court: Makromed (Pvt) Ltd v Medicines Control Authority of Zimbabwe 2011(1) ZLR 324 (H)…,.

I must add that so fundamental are the rights to administrative justice that they have now been elevated to Constitutional rights in section 68 of the current Constitution. It is those rights to administrative justice that the applicant has sought to enforce in the second leg of this application.

Counsel for the respondent protested that a wrong procedure was employed as section 4 of the Administrative Justice Act [Chapter 10:28] is an embodiment of common law grounds for review. For that reason, the applicant should have brought a review application in terms Order 33 of the High Court Rules.

I do not agree.

Section 4 of the Administrative Justice Act [Chapter 10:28] allows an aggrieved party to seek recourse in this court. It makes no reference to a review application. I agree with counsel for the applicant that if the legislature desired to provide for a remedy of review in terms of Order 33, it would have specifically said so. It, however, elected to create a statutory remedy in terms of which a party is entitled to approach this court, by application, where the administrative authority has come short.

In casu, we have a situation in which the respondent entered into a Sale Agreement with the applicant involving a sum in excess of $4 million while acting on behalf of SMM Holdings (Pvt) Ltd. He was paid that sum but the applicant finds itself without possession because of a conflicting claim of a third party. Years down the line the issue remains unresolved and that is certainly not a temporary issue as alleged by counsel for the respondent. The applicant applied to the respondent for leave to sue which application was completely ignored - even though the respondent is tasked with the responsibility of determining such application. In fact, the respondent has now emphatically stated that he will not grant leave because the applicant has no cause of action against him - a true case of pre-judging the matter.

I accept that the applicant is indeed entitled to its day in court. It matters not that the respondent sees no merit in the case. Whether the case is well founded or not is neither here nor there as civilisation dictates that the litigant must be allowed to bring a civil action to protest its right. To deny a party that opportunity would be to expose the party to the impulses of a rudimentary soul, to resort to his hand in order to achieve justice.

The applicant has urged of me the grant of the leave to sue which should have been granted by the respondent mainly because the respondent is not going to grant the leave, having already nailed his colours onto the mast, and, in any event, because I have all the facts with which to base such decision. While it is rare that the court would be justified in usurping the decision making function of the administrative authority, McNALLY JA set out four situations where the court might take such action in Affretair (Pvt) Ltd & Anor v M.K. Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S). These are:

1. Where the end result is a foregone conclusion and it would be a waste of time to refer the matter back;

2. Where further delay could prejudice the applicant;

3. Where the extent of bias or incompetence is such that it would be unfair to the applicant to force it to submit to the same jurisdiction again; and

4. Where the court is in as good a position as the administrative body to make the decision.

In this case, although some of the requirements maybe said to be mutually exclusive, I am of the view that all of them exist. To my mind, it is a foregone conclusion that the applicant should be granted leave although the respondent thinks otherwise. The applicant has waited for leave for more than a year and further delay would be unfair to him. I have already expressed my suspicion of the existence of bias - the respondent being an interested party. In any event, I am in as good a position to make the decision as the respondent….,.

Accordingly, it is ordered that;

1. …,.

2. The alternative relief is hereby granted and accordingly the applicant is granted leave in terms of section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27] to institute any action or proceedings in any court or tribunal of competent jurisdiction in Zimbabwe against SMM HOLDINGS (PVT) LTD (under reconstruction), to claim payment of US$4,350,000= or part thereof together with interest thereon at the prescribed rate of 5% per annum and costs of suit or any other relief available to the applicant at law.

The applicant seeks the following order from this court;

“(1) That first respondent shall approve the layout plan for applicant within ten (10) days of service of this order, failure of which the Sheriff for Zimbabwe shall sign the layout plan in approval for subdivision E of Arlington Estate, Harare.

(2) 1^st respondent shall pay the costs of this application if he opposes same.

(3) 2^nd respondent, the administrative authority for the municipal area of Harare, shall be bound by the provisions of this court order.

ALTERNATIVELY 

(4) 1^st respondent shall allocate applicant, Co-operative Society, another piece of land similar to the remainder of subdivision E of Arlington Estate measuring  530,25 hectares, both in distance from Central Business District and same value of location.

(5) If first respondent fails to comply with paragraph 4 above, the first order prayed for in paragraphs 1 to 3 shall become effective and operative.”

The brief facts are that the applicant is a housing co-operative duly registered under section 17 of the Co-operative Societies Act [Chapter 24:05]. Such co-operative was registered on 26 January 2011.

On 15 January 2006, the applicant was allocated certain piece of land, namely, subdivision E of Arlington Estate, measuring 530,25 hectares. The applicant produced layout plans for a housing project and submitted the plans to the first respondent's Department of Physical Planning for approval. The Department of Physical Planning refused to approve the layout plans because the applicant did not have a valid offer letter for that piece of land. The applicant failed to produce documentation to the effect that it is the lawful owner of that piece of land.

For the applicant to succeed in its claim it has to show that it is the lawful owner of the piece of land. The applicant has to provide proof of such entitlement.

The applicant has annexed to its application a letter dated 15 January 2006 titled “OFFER TO DEVELOP THE REMAINDER OF SUBDIVISION E OF ARLINGTON ESTATE (530,25 HECTARES).” In that letter, the applicant was offered the said piece of land on various conditions. The applicant is silent on whether it satisfied the said conditions in that offer letter.

The land in question was acquired by the State in 2012. When the above offer letter was made to the applicant it was not made by a competent authority. The offer of 15 January 2006 is therefore invalid….,.

I agree with the respondent's submission that the offer letter that the applicant was given was void and anything flowing from such an offer letter is a nullity. See McFoy v United Africa Company (1961) 3 ALL ER 1169…, where LORD DENNING said;

“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.”

As the applicant's claim is based on a nullity - it cannot stand.

The applicant's argument on legitimate expectation cannot succeed as it is trite that the law only protects those expectations which are legitimate. See National Director of Public Prosecutions v Phillips 2002 (4) SA 60 (W)….,.

The first respondent is an autonomous entity. 

This court cannot take it upon itself to interfere with the exercise of its autonomy. If the exercise of such powers are challenged by a person or persons who have proper locus standi to do so then the use of that authority can be put under scrutiny.

Further, there is no legal basis for the argument that the Police Service Commission acted improperly. To the contrary, it is clear that the applicants, though having a right to pursue their case in this court on review, the background to the matter highlighted above tends to show an abuse of court process by the applicants. The applicants did not have a defence to the allegations against them. The allegations are serious. The applicants are lucky that they were not prosecuted in the criminal courts for more serious charges for obstructing the course of justice and corruption.

The Police Service Commission is constituted in terms of PART VI of the Schedule to the Police Act [Chapter 11:10]. Its functions are clearly enunciated in the Police Act [Chapter 11:10] (see section 51 and 55). The Police Service Commission deals with appeals pertaining to discharges of members by the Commissioner General of the Zimbabwe Republic Police. The Commission has the mandate to scrutinize all the evidence presented to it, and will, on that basis, determine the matter. 

In this case, the Commission has made a decision based on the record and all the facts presented to it - including all the complaints raised by the applicants in the conduct of proceedings. The Commission decided that on the basis of the record the applicants were not suitable persons to remain in the force. It is my view that the Police Service Commission's dismissal of the appeal was in accordance with the law and there is no legal basis to interfere with its decision.

See the case of Moyo v President Board of Inquiry and Others 1996 (1) ZLR 319.

In the result, I conclude that the application for review has no merit and accordingly, the application is dismissed.

There are two matters in this case.

The first matter, HC1396/09, is for the confirmation or discharge of a provisional order granted by this court on 10 September 2009. The second, which is the main matter, under HC1410/09, is for the rescission of the decision to appoint the first respondent as substantive Chief Bunina.

In the latter matter, the applicant also seeks that the matter be remitted to the office of the second respondent for the reconvening of a selection meeting of all interested parties for the fresh selection of a candidate for appointment as Chief Bunina.

The first respondent had raised points in limine in respect of main matter. I propose to deal with these points in turn.

Non-compliance with Order 33 Rule 256

The first point is that the application was filed out of time.

It is alleged that the applicant fell foul of the provisions of Rule 259 of the High Court Rules as it was filed after the eight (8) week period.

The decision by the President i.e. the fifth respondent was made on 7 May 2007. The decision was communicated to the second respondent by letter dated 8 May 2007. The second respondent attempted to communicate this decision to the applicant by a letter dated 30 May 2007. Unfortunately, the letter was misdirected to a non-existing address, viz “132 Iona Road, Pilani, Bulawayo.”

It is beyond dispute that this address does not exist and that the letter did not reach the applicant.

It is trite that the running of the eight (8) week period, supra, only starts from the time the applicant is notified of completion of the proceedings.

In Clan Transport Co (Pvt) Ltd v Road Service Board 1956 (4) SA 26 (SR)…, it was stated -

“To my mind, when an administrative body, such as the present Board, is called upon to perform functions of a semi judicial character, the delivery of its judgment on the issue before it is as much a part of its proceedings as its deliberations and the arrival, after discussion, at its conclusion.

Until its conclusion has been clothed with finality, by its communication either in open sitting, or by its administrative officer to the parties, I find it difficult to see on what ground a party could legitimately attack any subsequent unanimous decision by it to reconsider the matter and reverse the conclusion at which it had at one stage arrived…,. I have come to the conclusion that the Board's proceedings terminated only on communication of its decision in April 1956.”…,.

Further, in Vrystaat Estates (Pvt) Ltd v President, Administrative Court & Ors 1991 (1) ZLR 323 (S)…, McNALLY JA said –

“No authority is necessary for the proposition that the eight weeks cannot possibly apply to an applicant who does not even know of the decision for far longer than eight weeks after it was made, precisely because he was not informed of the proceedings as he should have been.

Indeed, it seems to me to be artificial to seek to apply the eight weeks rule as from the date the appellant became aware of the proceedings. The Cluff Minerals case 1989 (3) ZLR 338 (SC) and the Clan Transport case 1956 R & N 322 at 325-6 were concerned with the date when the proceedings were terminated. They decided that this was the date when official notice of the decision was communicated to the party concerned.”…,.

See also Gula-Ndebele v Bhunu NO HH14-10.

This should put this half-hearted argument to rest, because, in casu, the termination of the appointment proceedings was only communicated to the applicant, by the third respondent, on 4 September 2009. The purported proof of the first respondent's appointment was only released to the applicant on 9 September 2009. This application was filed two days later, on 11 September 2009.

This point is devoid of merit.

The applicant seems to be relying on such earlier clearance to imply that it legitimately expects the current consignment to be cleared.

Away from the emotions and hyperbole, the substance of the application was that the respondent's tax assessments were demonstrably fallacious, manifestly wrong and grossly unreasonable in the “Wednesbury” sense.

The applicant picked a number of examples. The respondent had rejected certain sources of income or the shareholder assets that had been injected as start-up capital for the hospital project. Those ranged from Dr Munyaradzi Kereke's immovable property upon which the hospital was to operate. The respondent was said to have disallowed the cost of the renovations and extensions to those premises as not being genuine tax deductible expenditures. The respondent argued that the premises remained registered in the name of Dr Munyaradzi Kereke and that they would not form part of the assets for the applicant in the event of its liquidation.

The respondent was also accused of having treated as income for the applicant and of having taxed it accordingly, Dr Munyaradzi Kereke's terminal benefits and severance package from his former employer, the Reserve Bank of Zimbabwe,  in the sum of US$950,000= (nine hundred and fifty thousand United States dollars). Almost half of it was said to have been injected into the hospital project.

Other sources of income for the hospital project were said to have included the proceeds from Dr Munyaradzi Kereke's farming operations, including the sale of tobacco and goats. It was also said that they had included the bride price, or lobola, proceeds from sisters getting married.

Other flash points included the respondent's refusal to acknowledge payments for specialist consultants such as doctors and auditors whose fees would ordinarily not be subject to 'Pay As You Earn' (PAYE) but to a 10% withholding tax. There were numerous other issues such as those relating to related party borrowings. In particular, the respondent was said to have disallowed tax deductions for interest charges on certain loans by the applicant from certain commercial banks that the applicant had accessed through a surrogate entity called Pedalball Investments (Private) Limited. Dr Munyaradzi Kereke said he controlled Pedalball Investments (Private) Limited indirectly. It was explained that such a disguised manner of borrowing had been necessary as a sanctions-busting measure since Dr Munyaradzi Kereke was one of those Zimbabweans under sanctions by Western countries.

In opposing the application, the respondent first took a technical objection.

It was argued that the application, being in terms of the Administrative Justice Act, and that this Act being a codification of the common law remedy for review, it was incumbent upon the applicant to have brought itself squarely within the ambit of reviews, either in terms of the common law or in terms of the Administrative Justice Act. It was argued that the application failed to satisfy the requirements for review.

The respondent also argued that the applicant sought a substantive relief. The court was being asked to effectively usurp the functions of an administrative authority by granting the leave that the respondent had turned down. This was said to be contrary to administrative law. Reference was made to the cases of Mhanyami Fishing & Transport Co-operative Society Limited & Ors v The Director General Parks and Wildlife Management Authority NO & Ors HH92-11 and Affretair (Pvt) Ltd & Anor v M K Airlines (Pvt) Ltd 1996 (2) 15 (S)….,.

The respondent argued that it was not competent for this court to usurp the function of an administrative authority by, in this case, granting the leave that the respondent ought to have granted. It was pointed out that in terms of section 4 of the Administrative Justice Act, the courses open to the court are to set aside or confirm the decision or to refer the matter back to the administrative authority or to give appropriate directions to the administrative authority.

I was urged to follow the approach of MAKONI J in the Mhanyami Fishing & Transport Co-operative Society Limited & Ors v The Director General Parks and Wildlife Management Authority NO & Ors HH92-11 case. In that case, the learned judge declined to grant the fishing licences that the applicants had clamoured for. She had felt that to do so would be tantamount to substituting the decision of the court for that of the administrative functionary.

The approach in such matters was set out by McNALLY JA in the Affretair (Pvt) Ltd & Anor v M K Airlines (Pvt) Ltd 1996 (2) 15 (S) case. Quoting from BAXTER, Administrative Law…, the learned judge of appeal said…,:

“The function of judicial review is to scrutinize the legality of administrative action, not to secure a decision by a judge in place of an administrator. As a general principle, the courts will not attempt to substitute their own decision for that of the public authority; if an administrative decision is found to be ultra vires, the court will usually set it aside and refer the matter back to the authority for a fresh decision. To do otherwise 'would constitute an unwarranted usurpation of the powers entrusted [to the public authority] by the Legislator'. Thus, it is said that: '[t]he ordinary course is to refer back because the Court is slow to assume a discretion which has, by statute, been entrusted to another tribunal or functionary. In exceptional circumstances, this principle will be departed from. The overriding principle is that of fairness.”

It is not an absolute position that a court will not substitute its own decision for that of the administrative functionary. In exceptional circumstances it will. Section 4 of the Administrative Justice Act does not lay down an absolute course of action that the court should follow. It gives broad guidelines. The list of those guidelines, in subsection (2), cannot be said to be exhaustive. In subsection (1) the right to a recourse that an aggrieved party may seek from this court in terms of that section is made subject to that Act “and any other law.” Furthermore, the court may follow any of the courses suggested in subsection (2) only in “appropriate” circumstances.

A court will substitute its own decision for that of the administrative functionary in exceptional circumstances. There are four criteria. These were discussed by McNALLY JA in the Affretair (Pvt) Ltd & Anor v M K Airlines (Pvt) Ltd 1996 (2) 15 (S) and aptly summarised by MATHONSI J in the Gurta AG v Afaras Mtausi Gwaradzimba N.O. HH353-13 case. They are:

1. Where the end result is a foregone conclusion and it would be a waste of time to refer the matter back;

2. Where further delay could prejudice the applicant;

3. Where the extent of bias or incompetence is such that it would be unfair to the applicant to force it to submit to the same jurisdiction;

4. Where the court is in as good a position as the administrative body to make the decision. 

The Mhanyami Fishing & Transport Co-operative Society Limited & Ors v The Director General Parks and Wildlife Management Authority NO & Ors HH92-11 case is clearly distinguishable from this one. In that case, the court dismissed the application on the basis of the points raised in limine. One of them was the question of whether or not the court could substitute its own decision for that of the administrative functionary. The court held that it could not. In my view, and with due respect, the court was quite correct. There had simply been no sufficient information laid before it to grant the licences sought.

In the Gurta AG v Afaras Mtausi Gwaradzimba N.O. HH353-13 case the court granted the leave to institute legal proceedings under section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27]. It found that all the four criteria above existed. Again, that decision was, with due respect, also correct.

In casu, I consider that the applicant's case is even stronger than that of the applicant in the Gurta AG v Afaras Mtausi Gwaradzimba N.O. HH353-13 case. Among other things, in the Gurta AG v Afaras Mtausi Gwaradzimba N.O. HH353-13 case, the respondent had declined leave because he had perceived that he had some kind of defence to the proposed action. That was an improper exercise of discretion. In the present case, the respondent admitted the debt. All the facts germane to the issue were common cause. The respondent acknowledged the applicant's right to be paid. Part of the letter of 28 August 2012 reads:

“The Administrator is aware of SMM's obligations to your client and assures us that as soon as funding is in place, your client's matter will be addressed. Accordingly, for the reasons set out above, the request is declined.”

Thus, he had no defence to the claim. Leave was refused for fear that a suit by the applicant would trigger several other suits by other creditors. That was an improper exercise of discretion.

Just as in the Gurta AG v Afaras Mtausi Gwaradzimba N.O. HH353-13 case, I am satisfied that the applicant in casu has met all the criteria for this court to take the exceptional step to substitute its own decision for that of the respondent. It will be a waste of time to refer the matter back to the respondent. The delay will prejudice the applicant. These were commercial loans. Delays are undoubtedly prejudicial, even without considering the question of the prescription of debts. Most importantly, the court is in as good a position as the respondent to make the decision. It is not fettered by self-serving interests as the Administrator undoubtedly was. That the applicant's litigation may open what the respondent termed “a Pandora's Box” was not a relevant consideration. Section 6(b) of the Reconstruction of State-Indebted Insolvent Companies Act [Chapter 24:27] was evidently not designed to provide an Administrator of State-indebted companies some form of immunity from civil suits. In terms of section 18(1)(e) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27], the Administrator is authorised and empowered, among other things, to defend legal proceedings of a civil nature on behalf of the company. He is also authorised and empowered, in terms of section 18(1)(g) of the Reconstruction of State-Indebted Insolvent Companies Act [Chapter 24:27], inter alia, to compromise or admit any claim or demand against the company.

In the premises, I grant the leave sought by the applicant under section 6(b) of the Reconstruction of State-Indebted Insolvent Companies Act [Chapter 24:27].

Having reached a decision on the substantive claim, I find it unnecessary to deal with the constitutionality of section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27]….,.

The respondent's next argument was that his refusal to grant leave had not been grossly unreasonable. His decision could only be set aside if it was so grossly unreasonable as to be irrational in the Wednesbury sense, that is to say, a decision so grossly irrational as to be outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it….,.

I should not concern myself with whether or not the decision of the respondent in turning down the applicant's request for leave to institute proceedings for the recovery of its loans was grossly unreasonable in the Wednesbury sense. I am satisfied that in coming up with his decision the respondent had failed to live up to the principles set out in section 3(a) of the Administrative Justice Act.

DISPOSITION

It is ordered that:

1. The decision of the respondent, on 28 August 2012, refusing the request by the applicant in terms of section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27] for leave to institute civil proceedings against SMM Holdings (Private) Limited is hereby set aside.

2. The applicant is hereby granted leave to institute proceedings against SMM Holdings (Private) Limited in respect of a claim for the sum of US$3,635,158=31 (three million six hundred and thirty five thousand one hundred and fifty eight United States dollars and thirty one) together with costs of suit and interest as applicable thereon.

It must be few decisions that will surpass the irrationality of the respondent's conduct in this matter.

The sole point for determination was whether the course of study that the respondent had offered the applicants and others, and for which the applicants had studied for a year, was a postgraduate diploma or a mere diploma. The applicants said it was a postgraduate diploma. The respondent said it was a mere diploma. There was a deadlock. The parties came to court. I read the papers. I heard argument. At the end of the hearing I granted the applicants the relief they sought. I considered that the respondent's decision to switch, in midstream, and in the manner it did, the designation of the course from postgraduate diploma to a mere diploma, was grossly unreasonable in the Wednesbury sense, that is to say, a decision so grossly unreasonable as to be irrational and outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the issue to be decided would have arrived at it. See CCSU v Minister for the Civil Service [1984] 3 All ER 939 (HL)….,.

Here are the facts.

The respondent is a university. The course in question was offered by its Faculty of Law. It was called Diploma in Law (Conciliation and Arbitration). The applicants had not been the pioneers of that course. I was not told for how long it had been running. But graduates in the stream ahead of that of the applicants had been awarded certificates with the designation “Post-Graduate Diploma in Law (Conciliation and Arbitration)”.

The respondent said that was immaterial.

The respondent had invited interested persons to apply for the course. It had flighted an advert. The heading on that advert had read: “UNIVERSITY OF ZIMBABWE FEBRUARY 2011 POST GRADUATE AND DIPLOMA PROGRAMMES”. There had been several other courses offered by several other faculties such as Agriculture, Arts, Engineering, Science, Social Studies and Veterinary Sciences. Most of these were Masters' degrees. Under the Faculty of Law the advert said: “Diploma in Law (Conciliation and Arbitration) (1 yr f/t)”. The respondent said the advert did not say “post graduate diploma in law”. Therefore, so the argument ran, the applicants could not have been under any illusion as to the exact designation of the course that they had enrolled for.

That was the bulwark of the respondent's case.

However, it seems the respondent had conveniently ignored, or inadvertently overlooked, the rest of the advert and the other documents relevant to that course. Starting with the advert itself, under “Entry Requirements” and against “Diploma in Law…,” was the following: “A good first degree in Law. Applicants with other professional qualifications and experience in Labour Law and Labour Relations may be required to sit a qualifying examination.” Now, is a University course that requires as an entry qualification a first degree not a post graduate course?

But this is just the beginning. There is more to come. It was a charade.

The applicants had responded to the advert. They had applied. They had been accepted. The acceptance letter had read, in part:

“ADMISSION IN THE YEAR 2011 TO THE POST GRADUATE DIPLOMA IN LAW – CONCILIATION AND ARBITRATION

------------------------------------------------------------------------------------------------------- 

I am pleased to inform you that your application for admission to the above mentioned degree programme has been accepted.

……………………………………………………………………………………………………………………………………………………………………………………

I would like you to note that this offer is made without prejudice to the rights which the University may have to withdraw or cancel in the event of you or the University being unable to meet the conditions of the offer.

Kindly note that admittance to the University is made subject to your accepting the conditions set out in this letter and your registering for the programme. Failure to do so may result in the University withdrawing your name from its list of successful applicants for the 2011 admission year.”….,.

It was part of the respondent's argument that the prerogative to offer any course of study, to regulate it, and even to withdraw it, lies not with the applicants, not with the court, not with anyone else, but solely with the respondent's Senate. Therefore, so the argument ran, where the respondent had decided to withdraw the academic transcripts and diploma certificates that said “Post-graduate Diploma in Law” and replace them with those simply inscribed “Diploma in Law” it was not up to the applicants or the courts to question that decision.

This was in spite of the acceptance letter saying the respondent could withdraw or cancel the offer only in the event of an applicant or the respondent failing to meet the conditions of the offer. The conditions of the offer, as stipulated in the letter, related to the registration times, the starting times for lectures, the payment of the various fees for tuition, for registration, for examinations and for the library, and the need for an identity photograph.

The applicants argued that they had a legitimate expectation to be conferred with diploma certificates that were properly designated for the type of course that they had studied. They argued that the respondent had breached the audi alteram partem rule of natural justice when they had not been afforded the chance to make representations. Inevitably, reference was made to the cases of Administrator, Transvaal and Ors v Traub and Ors 1989 (4) SA 731 (A); Metsola v Chairman, Public Service Commission & Anor 1989 (3) ZLR 147 (S); Health Professions Council v McGown 1994 (2) ZLR 329 (S); Taylor v Minister of Education & Anor 1996 (2) ZLR 772 (S); Mawenga v PTC 1997 (2) ZLR 483 (S) and Minister of Information v PTC Managerial Employees Workers' Committee 1999 (1) ZLR 128 (S).

The court was urged to desist from usurping the powers of the administrative agency, and referred to the following cases:

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & Tourism & Ors [2004] ZACC 15 - where the court affirmed that the court's task is to ensure that decisions taken by administrative agencies fall within the bounds of reasonableness. See also Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S)…, where the Supreme Court stated that:

“The duty of the courts is not to dismiss the authority and take over its functions but to ensure that…, it carries out its functions fairly and transparently.”

I propose to start by looking at what the highest law in this land has to say about the exercise of discretion by an administrative body. Section 68 of the Constitution of Zimbabwe, Amendment (No.20) Act 2013, provides that;

“Right to Administrative Justice

1. Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.”

Section 3 of the Administrative Justice Act [Chapter 10:28] provides as follows;

“Duty of Administrative Authority

1. An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall –

(a) Act lawfully, reasonably, and in a fair manner.”

Section 2 of the Administrative Justice Act [Chapter 10:28] provides for Interpretation and application as follows;

'Administrative action' means any action taken or decision made by an administrative authority.

'Administrative authority' means any person who is an officer, employee, member, committee, council, or board of State or a local authority or parastatal.

The respondent, by its own description in paragraph 5 of its notice of opposition, is an administrative authority. My reading of the interpretation section of the Administrative Justice Act [Chapter 10:28] is that any action taken by the respondent, or any of its employees, is administrative action, and that in exercising discretion in any administrative action, the conduct must be reasonable, and substantively and procedurally fair. The applicant has not denied that the respondent's actions were lawful. It has not sought to challenge the powers of the respondent to act in the manner that it did. My understanding of the applicant's contention is that the exercise of discretion by the respondent was not reasonable, in the sense of violating the provisions of section 3(1)(a) of the Administrative Justice Act [Chapter 10:28], and section 68 of the Constitution, in the sense that the exercise of discretion was not reasonable, or proportionate, or both substantively and procedurally fair to it.

The applicant contended that it has been rendered unable to operate, and, consequently, unable to discharge its tax obligations to the respondent. The applicant contended that the respondent is shooting itself in the foot, which indicates that its decision is irrational. The argument is that the respondent ought to cooperate with the applicant so that if the applicant remains a going concern, it is likely to discharge its tax obligations in full, now and in the future. The applicant has contended that it stands to lose its workforce of over 1,000 workers. The applicant has contended that the prevailing economic conditions, where at least ten companies every month are being liquidated, make it irrational and unreasonable of the respondent to order a garnishee of twenty million dollars when it is clear that the effect of that directive will be to force the applicant into liquidation.

The applicant's contention that its right to administrative action that is fair and reasonable has been violated can be examined further.

Irrationality, in relation to the exercise of discretion by an administrative body had been defined as a decision that is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the issue to be decided would have arrived at it. See CCU v Minister for the Civil Service [1984] All ER 939 HL…, followed in Zimbabwe in Patriotic Front - ZAPU v Minister of Justice, Legal & Parliamentary Affairs 1999 (2) ZLR 305 (SC). The Wednesbury principle was laid down by LORD GREENE MR in Associated Provincial  Picture House Ltd v Wednesbury Corporation [1984] 1 KB 223 9 CA in the context of judicial review.

What has come to be known as “Wednesbury unreasonableness” was described by LORD GREENE as follows:

“When an executive discretion is entrusted by Parliament to a body, such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the courts in a strictly limited class of cases.”…,.

It is this court's considered view that the imposition of a garnishee order on the applicant's accounts was an exercise of discretion on behalf of the respondent, and that, in view of the provisions of section 14 of the Fiscal Appeals Act, the figure of twenty million was not proportionate, or reasonable, and was outrageous in its defiance of logic in the Wednesbury sense. The Fiscal Appeals Act, in section 14, clearly stipulates that applicant is liable to pay the admitted amount, which in this case is about a million dollars. Its liability to pay the disputed amount of nineteen million dollars was not automatically suspended by the noting of the appeal in terms of section 14 of the Fiscal Appeals Act. What was suspended was the requirement to make actual payment of the disputed nineteen million dollars …,.. To direct that the applicant's account be garnished for the full twenty million dollars was grossly unreasonable. To infer that the applicant ought to beg the Commissioner to revise or reconsider an exercise of discretion which was made in violation of its right to fair, reasonable and proportionate administrative justice, is, in my view, also grossly unreasonable. This court is not agitating for the watering down of any powers that the respondent has in respect of various tax instruments to appoint designated agents and to direct that taxpayer's accounts be garnished. This court is merely reminding the respondent, that, as an administrative body, its power and discretion must always be exercised reasonably and fairly at all stages at all times, particularly because, by the very nature of tax collection, some of the actions that the respondent is authorized to take may be considered necessarily draconian.

The respondent submitted that its actions were not unlawful and relied on the cases of Rudolph & Anor v Commissioner of Inland Revenue & Ors 1994 (3) SA 771; Stauffer Chemicals v Monsato Company 1988 (1) SA 805…, in which the court made a finding that the applicants had failed to establish a prima facie right because the respondents had acted lawfully in terms of the powers granted to them by an existing Act of Parliament, and that they had properly exercised those rights.

This case begs the question of what happens where these lawful powers are not exercised properly.

It is not only unlawful exercise of power which may establish a prima facie right for purposes of qualifying for an interim interdict. Failure to take relevant principles into consideration may result in the improper exercise of rights which are lawfully conferred on an administrative body. In my view, the applicant has a prima facie right conferred on it by section 68 of the Constitution, by section 3 of the Administrative Justice Act [Chapter 10:28], and by the principle of 'Wednesbury unreasonableness', to administrative justice. This means that it has the right to administrative conduct that is reasonable, proportionate and both substantively and procedurally fair.

Imposing a garnishee order of twenty million on the applicant's account was not procedurally fair because section 14 of the Fiscal Appeals Act stipulates that the disputed amount of the tax assessment be suspended pending the determination of the appeal. It was not substantively fair because there is no provision, in section 32 of the Value Added Tax Act [Chapter 23:12], for objections to the Commissioner against the imposition of a garnishee order.

I find that the applicant's fear that it will be forced into liquidation if the garnishee order remains in place in its current form constitutes irreparable harm to it. By the time damages are ordered to be paid, there will likely be no applicant to receive the damages, because the applicant is not likely to remain in business, at this time when our economy is in freefall, under these circumstances. The balance of convenience favors granting an interim order that the directive to garnish twenty million dollars on the applicant's account be suspended. In my view, there is no alternative remedy that is effective. In the result, the following interim order is granted by the court;

IT IS HEREBY ORDERED THAT:

1. The respondent uplifts and suspends the garnishee order placed on the applicant's accounts with FBC Bank immediately and forthwith, until the appeal that is pending before the Fiscal Appeals Court is finalised.

2. The respondent shall allow a period of seven working days to elapse after the upliftment and suspension of the original garnishee order, whereafter it shall replace it with a fresh garnishee order for the sum of USD$905,801=32 (nine hundred and five thousand dollars eight hundred and one dollars and thirty two cents), which shall remain in place until the appeal is finalized or payment is made in full, whichever comes first.

Whether the court a quo was, at law, empowered to remove the garnishee order

The power of ZIMRA to make Value Added Tax assessments is to be found in section 31 of the Value Added Tax Act [Chapter 23:12]. Section 31(3) of the Value Added Tax Act [Chapter 23:12] provides:

“(3) Where -

(a) Any person fails to furnish any return as required by sections twenty-eight, twenty-nine or thirty or fails to furnish any declaration as required by section thirteen; or

(b) The Commissioner is not satisfied with any return or declaration which any person is required to furnish under a section referred to in paragraph (a); or

(c) The Commissioner has reason to believe that any person has become liable for the payment of any amount of tax but has not paid such amount; or

d) Any person, not being a registered operator, supplies goods or services and represents that tax is charged on that supply; or

(e) Any registered operator supplies goods or services and such supply is not a taxable supply or such supply is a taxable supply in respect of which tax is chargeable at a rate of zero per centum, and in either case that registered operator represents that tax is charged on such supply at a rate in excess of zero per centum; the Commissioner may make an assessment of the amount of tax payable by the person liable for the payment of such amount of tax, and the amount of tax so assessed shall be paid by the person concerned to the Commissioner.

(4) In making such assessment, the Commissioner may estimate the amount upon which the tax is payable.

(5) The Commissioner shall give the person concerned a written notice of such  assessment, stating the amount upon which tax is payable, the amount of tax payable, the amount of any additional tax payable in terms of section sixty-six and the tax period, if any, in relation to which the assessment is made, and -

(a) Where the assessment is made on a seller referred to in subparagraph (i) of paragraph (b) of subsection (2), send a copy of that notice of assessment to the owner referred to in that subsection; or

(b) Where the assessment is made on an owner referred to in subparagraph (ii) of paragraph (b) of subsection (2), send a copy of that notice of assessment to the seller referred to in that subsection.

(6) The Commissioner shall, in the notice of assessment referred to in subsection (5), give notice to the person upon whom it has been made that any objection to such assessment shall be lodged or be sent so as to reach the Commissioner within thirty days after the date of such notice.”

The power to make the assessments which are the substance of this dispute is not in doubt. Indeed, the court a quo made a finding that the actions of ZIMRA, right up to the appointment of an agent, under section 48 of the Value Added Tax Act [Chapter 23:12], were lawful. However, notwithstanding the finding by the court a quo, that the Commissioner had acted lawfully in all respects, the court went ahead and imposed an interdict against the collection of any sums in excess of USD905,801=32. This was on the premise that it was the amount of tax which Packers acknowledged as being due and owing. In addition, ZIMRA, in consequence of the order by the court a quo, could not collect on the stated sum before the expiry of a week from the date of the order.

The decision to remove the garnishee and impose an interdict against the placing of further garnishees was based on what the court stated to be an irrational exercise of the discretion bestowed upon the Commissioner under the Value Added Tax Act [Chapter 23:12].

ZIMRA has argued, correctly in my view, that in stating so the court a quo misdirected itself.

An interdict serves to protect a right not an obligation. The papers filed on behalf of Packers did not identify any right that ZIMRA had threatened. The court a quo found, as a matter of fact, that ZIMRA had acted in terms of the law in assessing VAT which remained unpaid. Once this finding was made, including the further finding that the agent had been appointed lawfully, there was no lawful justification at law for suspending payment for a week.

I am fortified in this view by the remarks of the learned DEPUTY CHIEF JUSTICE MALABA in the Mayor Logistics (Pvt) Ltd v ZIMRA SC7/14 case, to the following effect:

“The subject of the application is not the kind of subject matter an interdict, as a remedy, was designed to deal with. An interdict is ordinarily granted to prevent continuing or future conduct which is harmful to a prima facie right, pending final determination of that right by a court of law. Its object is to avoid a situation in which, by the time the right is finally determined in favour of the applicant, it has been injured to the extent that the harm cannot be repaired by the grant of the right. It is axiomatic that the interdict is for the protection of an existing right. There has to be proof of the existence of a prima facie right. It is also axiomatic that the prima facie right is protected from unlawful conduct which is about to infringe it. An interdict cannot be granted against past invasions of a right nor can there be an interdict against lawful conduct. Airfield Investments (Pvt) Ltd v Minister of Lands & Ors 2004 (1) ZLR 511 (S); Stauffer Chemicals v Monsato Company 1988 (1) SA 895; Rudolph & Another v Commissioner for Inland Revenue & Others 1994 (3) SA 771.

The applicant accepted, in the founding affidavit, that the respondent acted lawfully in enforcing the obligation to pay the tax notwithstanding the noting by it of the appeal to the Fiscal Appeal Court against the correctness of the assessment. It did not allege any unlawful conduct on the part of the respondent which would justify the granting of an interdict. It also accepted that at the time the respondent put in place measures to collect the tax, the provisions of ss36 of the VAT Act and 69(1) of the Income Tax Act were binding on it. That means that the applicant had no prima facie right in existence at the time not to pay the amount of tax it was liable to pay to the fiscus. Sections 36 of the VAT Act and 69(1) of the Income Tax Act protect a duty, not a right.”

The fact that Packers had launched an appeal with the Fiscal Appeals Court against an assessment is not such right as would justify interference by the court. The court could only act to protect a litigant if it was established that the Commissioner had acted illegally in assessing taxes, imposing a garnishee and appointing an agent for the collection of the tax so assessed….,.

The import of the provisions of section 48 of the Value Added Tax Act [Chapter 23:12] is to provide a mechanism by which the Commissioner is enabled to collect taxes due and remit the same to the fiscus. Its import cannot be, as found by the learned judge in the court below, to protect registered operators from what is described as “litigation in terms of other laws for the act of forwarding money in their clients' accounts to the respondent.”

In addition, the issue of the quantum of tax due was not before the court a quo, and, as a consequence it could not lawfully replace the garnishee properly issued with one for a lesser sum. It could not, at law, preclude ZIMRA from acting lawfully, after making the finding that, at law, the Commissioner is permitted to garnishee a taxpayer after assessment of taxes….,.

In construing the powers of ZIMRA under the Value Added Tax Act [Chapter 23:12], the court perforce had to examine the provisions of section 14 of the Fiscal Appeal Court Act which reads:

“14 Payment of tax pending appeal

Where any person has given notice of intention to appeal in accordance with section eleven or thirteen, payment of so much of the tax which he has been called upon to pay as would not be payable by him if the appeal were allowed shall be suspended until the appeal has been decided, unless the Commissioner, whose decision is the subject of the appeal, otherwise directs.”

The court a quo concluded that in view of the provisions of section 14 of the Fiscal Appeal Court Act, Packers should not be required to pay the amount reflected on the garnishee, the reason being that the noting of the appeal suspended the actual payment of the portion that Packers was disputing.  The court found that the Commissioner was required to state in specific terms, and in writing, to the operator that notwithstanding the noting of the appeal, he was directing that the full sum being demanded be paid. The court opined that by imposing a garnishee it was arguable that the Commissioner had directed that the full sum be paid.

It was common cause that the appeal had been noted after the garnishee was imposed. Even assuming that the appeal was noted before the garnishee was imposed, the statement by the court a quo in relation to the provisions of section 14 of the Fiscal Appeal Court Act was in direct contradiction to its earlier finding in its construction of section 36 of the Value Added Tax Act [Chapter 23:12]. The two sections could not be construed in isolation from each other. Whilst section 36 of the Value Added Tax Act [Chapter 23:12] applies strictly in relation to the Value Added Tax Act [Chapter 23:12], section 14 of the Fiscal Appeal Court Act applies to all relevant Acts in terms of which ZIMRA is empowered to assess and collect taxes and other dues on behalf of the fiscus.

The dispute before the court a quo was premised on the powers of ZIMRA, as exercised under the Value Added Tax Act [Chapter 23:12]. In light of the seeming contradiction of the sections, the court had to consider the dispute in the light of the two sections. The court a quo could not lawfully have made a determination of the dispute on the premise of the two sections without construing them together.  The court a quo, however, dealt with the two Acts and the two sections in isolation. The result of this decision was that the two Acts appeared to be in conflict with each other. As a consequence, the court went on to find that the actions of ZIMRA were lawful in relation to section 36 of the Value Added Tax Act [Chapter 23:12], and, that those same actions were unlawful when viewed against section 14 of the Fiscal Appeal Court Act.

What was in issue was the powers bestowed on ZIMRA by the legislation and the court failed to properly construe the legislation which dealt with those powers. The misdirection is, in my view, obvious.

The position is now settled that Parliament can only do what is authorised by law and specifically by the Constitution – Biti & Anor v Minister of Justice, Legal & Parliamentary Affairs & Anor 2002 (1) ZLR 177 (S)…,. In terms of section 18(1a) of the Constitution, the second, third and fourth respondents have a duty to exercise their functions in accordance with the law and to observe and uphold the rule of law.