The four appeals are against parts of the High Court's Judgment HB157-23 (“the court a quo”) which was handed down on 27 July 2023.
The appeals are against the decision of the court a quo setting aside the thirteenth respondent's decision to accept the appellants nomination papers as candidates for the impending harmonised general elections.
The four appeals SCB59/23, SCB60/23, SCB61/23 and SCB62/23 were consolidated and heard by this Court on 2 August 2023.
On 3 August 2023, we issued the following order:
1. The appeals be and are hereby allowed with costs.
2. The judgment of the court a quo be and is hereby set aside and substituted as follows:
'The applications be and are hereby dismissed with costs.'
3. The reasons for the court's decision will follow in due course.”
We undertook to furnish reasons for our disposition. These are they.
FACTUAL BACKGROUND
On 21 June 2023, the fourteenth respondent constituted a Nomination Court to receive submissions for the nominations of candidates for the election of constituency members to the National Assembly for the Bulawayo Metropolitan Province. This was in accordance with Proclamation 4 of 2023, gazetted under S.I. 85 of 2023 by the President.
The determinant facts of this appeal emanate from the events that transpired on 21 June 2023 at the Nomination Court.
The appellants appeared before the Nomination Court for their nominations as candidates for elections scheduled for 23 August 2023. The nomination officer accepted their nominations and registered them as candidates.
The respondents, except for the thirteenth to fifteenth respondents, applied to the court a quo for the setting aside of the appellants (respondents a quo) nominations. They alleged, that, their nomination papers were in disarray. They further alleged that when the appellants lodged their papers, before 4pm, they were advised to correct them. The respondents further alleged, that, the appellants thereafter filed their corrected papers out of time, after 4pm, in violation of the Electoral Act [Chapter 2:13] (“the Act”). They further alleged that, by 4pm, the appellants were outside the courtroom frantically trying to rectify their nomination papers. They further asserted, that, such nominations were null and void.
In response, some of the appellants asserted that their papers were in order and that they lodged them with the nomination officer who accepted them before 4pm. The other appellants stated, that, their papers had errors which were pointed out by the Nomination Court and were corrected and filed with the nomination officer before 4pm. Some of the appellants maintained, that, they were in court with their corrected papers which were accepted before 4pm.
In his opposing affidavit, the 13th respondent, Innocent Ncube, in his official capacity as the Provincial Elections Officer, and, for and on behalf of the Zimbabwe Electoral Commission (“ZEC”) and the Chairperson of ZEC, indicated that the nomination papers were procedurally and timeously lodged between 10am and 4pm. He also pointed out that the designated courtroom could only accommodate 12 to 15 people at any time. During the proceedings, at 3:55pm, he announced that all prospective candidates who were queuing outside because of his administrative decision (to allow 12 to 15 people at any time) should hand over their nomination papers to the police officer as the court was due to close at 4pm. The police officer collected all the nomination papers and handed them over to the thirteenth respondent before 4pm. Thereafter, the nomination officer would call in those whose papers he would be processing.
In respect of the form, Annexure “B” relied upon by the applicants a quo, he pointed out that it was a register in which the secretary captured the times when the nomination forms were inputted into the Zimbabwe Electoral Commission's (ZEC) records. In other words, he stated that the form was for the purpose of data capture into ZEC's system and not a record reflective of the time when the nomination papers were lodged with the nomination officer.
On the basis of the above facts, the court a quo found for the applicants a quo (now respondents). It held that the appellants nominations had been lodged after the stipulated cut-off time of 4pm. It, therefore, declared the nominations of the appellants as null and void.
PROCEEDINGS BEFORE THE COURT A QUO
The parties made submissions on both the preliminary points and the merits before the court a quo, after which the court a quo rendered a composite judgment for all the applications, which had been consolidated by consent.
Counsel for the thirteenth, fourteenth, and fifteenth respondents raised a preliminary point, that, the court a quo had no jurisdiction. He submitted that all the applications ought to have been filed in the Electoral Court.
Counsel for the first to the sixth appellants associated himself with the submissions made by counsel for the thirteenth, fourteenth, and fifteenth respondents on jurisdiction.
He further submitted, that, there was no application before the court because the first to twelfth respondents had irregularly truncated the dies induciae. Counsel also argued that the respondents had no locus standi and that the applications were based on hearsay evidence. He submitted that the first to twelfth respondents had not attended the Nomination Court but sought to rely on social media reports and a document, Annexure “B” which was differently interpreted by the Electoral Commission.
He also argued in limine, that, there were material disputes of fact that could not be resolved on paper.
He further submitted, that, there was a material non-joinder of Citizens Coalition for Change party (CCC) which had sponsored some of the appellants. In support of this assertion, he contended that the party would be prejudiced in obtaining proportional representation seats.
Finally, on preliminary points, counsel submitted that the applications were an abuse of the court process.
Counsel for the seventh to twelfth appellants in SCB59/23 associated himself with the preliminary points raised by counsel for the thirteenth, fourteenth, and fifteenth respondents and counsel for the first to the sixth appellants. He emphasised that the applications were based on hearsay evidence and that only the Electoral Court had exclusive jurisdiction to hear the applications.
Counsel for the first to fourth appellants in SCB61/23 associated himself with submissions made by counsel who addressed the court before him.
Counsel for the appellants in SCB60/23 also associated himself with submissions that had been made by counsel before him.
Per contra, counsel for the first to twelfth respondents opposed all the preliminary points raised, characterising them as meritless.
He relied on the case of Kambarami v 1893 Mthwakazi Restoration Movement Trust and Others SC66-21 for the proposition, that, the court had jurisdiction. Regarding the validity of the applications, he submitted that the parties had attended a case management meeting and agreed on truncating the dies induciae.
On locus standi, he submitted that the respondents had a legitimate interest in the nomination proceedings because they had a direct and substantial interest in the outcome of the process. In relation to the applications being based on hearsay evidence, he contended, that, the respondents relied on public information and that there was Annexure “B” which supported their position. He further submitted that there were no material disputes of fact. A robust approach would resolve the matter.
Counsel for the first to twelfth respondents further submitted, that, the applications a quo were not an abuse of the court process given the substantial interests which the respondents had in the nomination of candidates for the constituencies where they were registered voters.
Finally, in relation to the non-joinder of Citizens Coalition for Change party (CCC) he argued that the party had no direct and substantial interest in the acceptance of the nomination papers.
The court a quo deferred the determination of the preliminary points to the end of the hearing and sought to be addressed on the merits.
Counsel for the first to twelfth respondents submitted, in support of the applications, that, the nominations ought to be nullified since they were accepted after 4pm in defiance of section 46 of the Electoral Act [Chapter 2:13]. He further submitted that the nomination officer unlawfully opened the court to specifically allow the affected candidates to present their papers out of time. He argued that the police officer who collected the papers was not a nomination officer. Annexure “B” confirmed that the nomination papers were filed out of time.
Counsel for the thirteenth to fifteenth respondents submitted that Annexure “B” was not a document reflective of the times when the nomination papers were lodged with the nominations officer. Further, he submitted, that, the nomination papers were submitted and received before the cut-off time of 4pm on the day in question. He emphasised that the officers of the Zimbabwe Electoral Commission (ZEC) who placed evidence before the court, through their supporting affidavits, spelt out that no nomination papers were submitted after 4pm. Finally, he submitted that there was no breach of section 46 of the Electoral Act.
Counsel for the first to the sixth appellants in SCB59/23 submitted, that, the respondents were relying on hearsay evidence that the social media was awash with; information that the appellants nomination papers were in disarray and filed out of time. He pointed out that the appellants filed their papers in compliance with section 46 of the Electoral Act before 1600 hours. Further, in opposing the allegations, he relied on the Zimbabwe Electoral Commission (ZEC) and the nomination officer's evidence that Annexure “B” was not a document indicative of the lodgement of nomination papers, but, that the time reflected on it related to the time of data capture.
Counsel for the seventh to twelfth appellants in SCB59/23 was also critical of Annexure “B” and he agreed with submissions by counsel for the first to the sixth appellants in SCB59/23 on it. He submitted that the respondents were relying on hearsay evidence and that they failed to discharge the onus and to prove the factual basis of their allegations. Their evidence was speculative as they relied on social media assertions.
Counsel for the appellants in SCB60/23 associated himself with submissions made by counsel who addressed the court before him. He emphasised, that, his clients submitted their nomination papers on time. He further added that the collection of nomination papers by the police officer, at the instruction of the nomination officer, did not amount to contravening section 46 of the Electoral Act.
Counsel for the first to fourth appellants in SCB61/23 associated themselves with counsel for the other appellants submissions.
DETERMINATION OF THE COURT A QUO
The court a quo gave a composite judgment. It dismissed all the preliminary points and made a finding that Annexure “B” was a document prepared by a Zimbabwe Electoral Commission (ZEC) official and that it spoke for itself, that, the nomination papers were submitted after 4pm. It found that the submission of papers from the appellants, through the police officer, was unlawful. It thus declared the nominations as null and void and issued the following order:
“IT IS DECLARED THAT:
1. That, the decision of the 1st Respondent, sitting as a nomination court at Bulawayo on 21 and/or 22 June 2023 to accept the following Respondents nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 was in contravention of section 46(7) & (8) of the Electoral Act [Chapter 2:13].
2. That, the decision of the 1st Respondent, sitting as a Nomination Court at Bulawayo on 21 and/or 22 June 2023, to accept the following Respondents nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 is declared null and void and is hereby set aside.
ACCORDINGLY, IT IS ORDERED THAT:
3. 1st Respondent is prohibited from including the names of the following Respondents in the preparation of ballot papers to be used in the general elections scheduled to be conducted on 23 August 2023.
4. Respondents shall jointly and severally pay the costs of suit.
OBERT MANDUNA; ERECK GONO; DOUGLAS NCUBE; GIFT SIZIVA; SANPOULUS MAPLANKA; PRINCE DUBE; NQOBIZITHA NDLOVU; DESMOND MAKAZA; BAJILA COLLINS DESCENT; SICHELESILE MAHLANGU; DESIRE MOYO; ALELAIDE MHLANGA; NOMPILO BHEBHE; SURRENDER KAPOIKILU; RAPHAEL PASHOR SIBANDA; NTANDOYENKOSI MINENHLE GUMEDE; FRANK MHLANGA.
5. The application against Zvikwete Innocent Mbano be and is hereby dismissed with costs.
6. The application against ADMORE GOMBA, NIGEL NDLOVU, SONENI MOYO, DINGILIZWE TSHUMA, STRIKE MKANDLA & ALBERT MHLANGA be and is hereby withdrawn.”
GROUNDS OF APPEAL
Aggrieved by the judgment of the court a quo in all the four applications, the appellants in SCB59, 60, 61 and 62 of 2023 launched appeals with this court on more or less similar grounds. All the appellants grounds of appeal can be summarised as captured in SCB59/23 except for ground 5 which is specific to candidates for Citizens Coalition for Change party (CCC).
Ground 5 speaks to non-joinder of Citizens Coalition for Change party (CCC). It reads as follows:
“(5) Having found that the Citizens Coalition for Change political party was adversely affected by the proceedings before it, the court a quo erred in relating to and affording an application which adversely affected its interests without affording the concerned political party the opportunity of being heard.”
The grounds of appeal which are similar for purposes of these appeals, as discerned from the record, are as follows:
(1) Having heard the argument on points in limine, including critical point (sic) on the jurisdiction, the court a quo grossly misdirected itself and erred in proceeding to hear the argument on the merits of the matter without making a determination on the points taken before it in limine litis.
(2) The court a quo erred in assuming jurisdiction over a matter which is by constitutional and statutory command subject to the exclusive jurisdiction of the Electoral Court and so erred in entertaining a review disguised as a declaratur.
(3) The court a quo erred and misdirected itself having invented their own dies induciae in violation of the rules and of superior court authority and so erred in condoning a fatal defect and where no application for condonation had been made.
(4) The court a quo erred in granting relief to parties who had no locus standi in judicio, who could not swear positively to the “facts” they relied upon and who sustained their cause on the basis of objectively established falsehoods.
(5)…,.
(6) The court a quo, having found that there was a dispute of fact material to the resolution of issues before it, erred in purporting to resolve such dispute in the absence of any work tools for such resolution and so erred in making credibility findings, on motion, that were unsupported by the evidence placed before it.
(7) The court a quo erred in not finding that matters factual stood to be resolved on the basis of the position given by the Electoral Commission as well as appellants who were physically in attendance at the Nomination Court and which positions could not be gainsaid by the first to twelfth respondents hearsay evidence.
(8) The court a quo erred in not concluding that appellants had timeously presented their papers, had an absolute right to have them processed, and, accordingly, had been properly declared duly nominated by the Nomination Court.
SUBMISSIONS BEFORE THIS COURT
(1) Submissions on the Merits
Counsel for the first to sixth appellants, in SCB59/23, submitted that the High Court had no jurisdiction to hear the matter. He submitted that section 161 of the Electoral Act as read with section 5 of the Judicial Laws Amendment (Ease of Settling Commercial and Other Disputes) Act 2017 constituted the Electoral Court as a specialised division of the High Court, and, therefore, now has jurisdiction to hear an application for a declaratur.
He further argued, that, the relief sought was worded in the form of a review relief.
Further, he submitted, that, the authority of Kambarami v 1893 Mthwakazi Restoration Movement Trust and Others SC66–21, relied upon by the court a quo, was rendered per incuriam and, thus, it was inapplicable.
It was also counsel for the first to sixth appellants in SCB59/23 submission, that, there were no valid applications before the High Court. He argued, that, the court a quo disregarded two binding authorities of this Court to the effect that an applicant cannot specify a dies induciae other than the one that is set out in the rules. He proceeded to argue, that, the court a quo compounded its error of adjudicating over an invalid application by proceeding to grant condonation where such had not been applied for.
On the merits of the applications that were before the court a quo, he further submitted that section 46(7) of the Electoral Act, which the court a quo relied on, was not properly engaged. He also submitted, that, the decision of the court a quo was wrong and contrary to the evidence adduced. To illustrate his point, counsel for the first to sixth appellants in SCB59/23 mentioned the case of Zvikwete Innocent Mbano who was also a respondent in the same matter but treated differently by the court a quo despite his circumstances being identical to those of the appellants.
He submitted, that, his clients had filed their papers before 4pm.
In any event, the thirteenth respondent (nominations officer), had, before 4pm, requested for all prospective candidates queuing outside awaiting their turn to file nomination papers, to hand in their papers through the police officer attached to the Nominations Court.
By so doing, the thirteenth respondent enabled everyone in the queue outside the small courtroom to submit their papers within the prescribed time.
He further submitted, that, the thirteenth respondent acted in terms of section 24(1) of the Interpretation Act [Chapter 1:01].
He also submitted, that, the appellants evidence established that they had lodged their papers before 4pm. He further submitted that there was no evidence that his clients papers were collected through the police officer. He thus argued that these facts were at variance with the conclusion of the court a quo.
In respect of Annexure “B” counsel contended, that, the times set out in that document were the times of inputting data as opposed to the time for filing nomination papers with the thirteenth respondent.
Finally, counsel argued that the applications were based on hearsay evidence from social media as deposed to by the respondents. This disregarded the fact, that, the appellants papers were presented in open court as required by section 46 of the Electoral Act.
He, therefore, prayed that the appeal be allowed with costs.
Counsel for the seventh to twelfth respondents submitted, that, there were no valid applications filed by the respondents before the court a quo. He associated himself with submissions made by counsel for the first to sixth appellants in SCB59/23. He further submitted, that, the respondents cases were based on hearsay evidence, which issue was not resolved by the court a quo. Counsel submitted that the conclusion reached by the court a quo was indefensible.
He prayed that the appeal be allowed with costs.
Counsel for the first to fourth appellants in SCB61/23 associated himself with submissions made by counsel for the first to sixth appellants in SCB59/23 and counsel for the seventh to twelfth respondents. He, however, further pointed out that the court a quo erroneously took all the respondents who were before it to be Citizens Coalition for Change party (CCC) sponsored candidates when this was not correct as some of the respondents were affiliated to different political parties and others were independent candidates. To demonstrate his point, he quoted the portion of the judgment a quo which mentioned that if one read one affidavit, he would have read all.
In respect of one of his clients, Adelaide Mhlanga, counsel for the first to fourth appellants in SCB61/23 submitted that she averred that she was in the court at all material times. To counsel, there was no evidence that the papers were collected after 4pm from persons who were outside.
In his submissions, counsel for the first to fourth appellants in SCB61/23 intimated that the court a quo took a casual approach to the evidence of the appellants and that of the nominations officer and the Zimbabwe Electoral Commission (ZEC). He stated that the court a quo regarded the appellants averments as merely bald denials. The court a quo was also accused of making sweeping statements against the electoral authority. For instance, it is said to have referred to the majority of the respondents, but, without specifying who they are.
He prayed for the appeal in SCB61/23 to be allowed with costs.
Counsel for the sixteenth appellant in SCB59/23 and the appellants in SCB62/23 submitted, that, the court a quo had no jurisdiction to deal with the matter because the Electoral Court exercises the general jurisdiction of the High Court in any matter before it. In addition, counsel moved the Court to depart from Kambarami v 1893 Mthwakazi Restoration Movement Trust and Others SC66–21…, as, in his view, it conflicted with section 171(1) of the Constitution and section 161 of the Electoral Act. He associated himself with submissions made by counsel for the appellants who addressed the Court before him.
He further submitted, that, the matter was disposable on the one question of whether or not the nomination papers were received by 4pm.
He finally submitted, that, section 46 of the Electoral Act simply requires papers to be received by a nomination officer, and, it does not prohibit any person from delivering the forms. Thus, to the extent that section 46(7) of the Electoral Act did not prohibit a police officer assigned by the nominations officer from receiving nomination papers from any person before 4pm, the conduct cannot be said to be illegal as it is not forbidden by statute.
Counsel for the sixteenth appellant in SCB59/23 and the appellants in SCB62/23, therefore, prayed that the appeal be allowed with costs.
Counsel for the first to the twelfth respondents submitted, that, the seventh ground of appeal resolved the appeal. He submitted that the court a quo accepted the evidence of the thirteenth to the fifteenth respondents. He however said that what the court a quo rejected were the opinions of the Electoral Commission.
Counsel further submitted, that, in terms of section 46(5) and 46(6) of the Electoral Act, the Nomination Court is a public and open court that closes at 4pm, after which time it cannot accept nomination papers from new prospective candidates.
He further submitted, that, the evidence from the Commission was that the appellants were not in court. He also referred to the evidence of Tabeth Mwonzora, a secretary at the Nomination Court, to the effect, that, a police detail collected the papers. Relying on the definition of a nomination officer, counsel also submitted that the definition does not include a police officer. Thus, by directing the police detail to collect the nomination papers, the nomination officer acted unlawfully and his conduct was null and void. He referred the court to Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S) in support of this proposition.
He submitted, that, the circumstances of this case warranted a declaration on the correct position of the law.
In respect of Annexure “B” counsel for the first to the twelfth respondents contended, that, it was a public document which is acceptable in terms of section 12 of the Civil Evidence Act [Chapter 8:01]. He further submitted that the document is a submission form from Bulawayo Province which sets out the times when the nomination papers were accepted. He stressed the point, that, all the appellants nominations were captured as having been accepted after 4pm.
On the question of jurisdiction, counsel for the first to the twelfth respondents submitted that Kambarami v 1893 Mthwakazi Restoration Movement Trust and Others SC66–21 was good law, having been decided after the adoption of the 2013 Constitution and the enactment of the Judicial Laws Amendment (Ease of Doing Business) Act 2017. He therefore submitted, that, the High Court has jurisdiction to grant a declaratur.
Regarding the issue of the validity of the applications a quo, counsel submitted that the High Court issued an order truncating the dies induciae. He further contended, that, Rule 59(6) of the High Court Rules 2021 does not specify that urgent applications must be filed with a modified dies induciae only after the High Court has granted such leave.
In respect of the first ground of appeal, he submitted that it was a bad ground at law as it challenged a decision on how the court should have conducted its proceedings. He argued that such a decision was not appealable.
In respect of the fifth ground of appeal, counsel for the first to the twelfth respondents submitted that the first to the twelfth respondents had locus standi. He relied on the decision in Stevenson v Minister of Local Government & Others 2002 (1) ZLR 498 (S).
On the issue of non-joinder of Citizens Coalition for Change party (CCC), counsel averred that it was not an interested party.
He prayed for the dismissal of the appeals with costs.
Counsel for the thirteenth, fourteenth, and fifteenth respondents submitted that his clients would abide by the decision of this Court. Accordingly, he did not make any submissions.
ISSUES FOR DETERMINATION
The issues which commend themselves for determination by this Court are as follows:
(i) Whether or not the court a quo erred and misdirected itself in dismissing the appellants preliminary points.
(ii) Whether or not the court a quo was correct in its findings, that, the appellants nomination papers were submitted to the nomination officer after 4pm.
THE APPLICABLE LAW
The appeals are all hinged on the law relating to the procedure for the nomination of candidates for election as Members of Parliament. Sections 46(6), (7) and (8) of the Electoral Act are central to the resolution of these appeals. They read:
“(6) The nomination officer, shall, in open court —
(a) Announce whether any candidate has lodged his or her nomination paper before the sitting of the court, and, if so, the name of every such candidate; and
(b) Receive any further nominations for election as constituency member of the National Assembly for the constituency for which he or she is the nomination officer.
(7) No nomination paper shall be received by the nomination officer in terms of subsection (6) after four o'clock in the afternoon of nomination day, or, where there is more than one nomination day for the election concerned, the last such nomination day: Provided, that, if at that time a candidate or his or her chief election agent is present in the court and ready to submit a nomination paper in respect of the candidate, the nomination officer shall give him or her an opportunity to do so.
(8) The nomination officer shall examine every nomination paper lodged with him or her which has not been previously examined by him or her in order to ascertain whether it is in order, and shall give any candidate, or his or her election agent, an opportunity to rectify any defect not previously rectified and may adjourn the sitting of the court for that purpose from time to time: Provided that the sitting shall not be adjourned to any other day that is not a nomination day.”
The Interpretation Act [Chapter 1:01], section 24(1) and (2), are also relevant and provide as follows:
“POWERS AND APPOINTMENTS
24. Statutory powers and duties generally
(1) Where an enactment confers a power, jurisdiction, or right, or imposes a duty; the power, jurisdiction or right may be exercised and the duty shall be performed from time to time as occasion requires.
(2) Where an enactment empowers any person or authority to do any act or thing, all such powers shall be deemed to be also given as are reasonably necessary to enable that person or authority to do that act or thing or are incidental to the doing thereof.”
In our view, the appeals can be resolved by a correct interpretation of section 46(6), (7) and (8) of the Electoral Act. The interpretation of section 24(1) and (2) of the Interpretation Act will also be considered in resolving the appeals.
Section 46(6)(a) of the Electoral Act permits a prospective candidate to lodge his or her nomination papers before the nomination day. On nomination day, the nomination officer must announce, in open court, the names of all candidates who lodged their nomination papers prior to the nomination day.
Section 46(6)(b) of the Electoral Act provides for the nomination officer's receipt of nomination papers on the nomination day.
Section 46(7) of the Electoral Act forbids a nomination officer from receiving nomination papers after 4pm on nomination day except for those candidates, or their election agents, who will be present in the courtroom and ready to submit their nomination papers by 4pm. Therefore, candidates, or their election agents, who will be in the courtroom will not be affected by the cut-off time of 4pm.
Section 46(8) of the Electoral Act mandates the nomination officer to attend to and examine all nomination papers lodged with him or her between 10am and 4pm, and give opportunities to candidates, or their agents, to rectify anomalies by adjourning the court to enable them to do so by not later than the end of the nomination day.
Section 24(1) of the Interpretation Act provides, that, where a statute gives a public officer power to perform a duty, such power includes the power to organise and perform as occasion requires.
Section 24(2) of the Interpretation Act gives a public officer powers to take reasonable steps that enable him or her to accomplish what the law mandates.
The principles of interpretation of statutes have been discussed by this Court in a number of cases. In the case of Endeavour Foundation and Anor v Commissioner of Taxes 1995 ZLR 339 (S)…, this Court held that:
“The general principle of interpretation is that the ordinary, plain, literal meaning of the word or expression, that is, as popularly understood, is to be adopted, unless that meaning is at variance with the intention of the Legislature as shown by the context, or such other indicia, as the court is justified in taking into account, or creates an anomaly, or otherwise produces an irrational result.”
See also Zambezi Gas Zimbabwe (Pvt) Ltd v N.R. Barber (Pvt) Ltd & Anor SC03–20…,.
According to case law on rules of interpretation, the use of the word “shall” in a statute denotes a mandatory intention by the legislature for the provision to be complied with. In the case of Shumba and Anor v ZEC and Anor 2008 (2) ZLR 65 (S)…, this Court held:
“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.”
Given that it is generally accepted that the use of the word “shall” in any enactment is understood as being indicative of the legislature's intention of making the provision peremptory, it becomes necessary to consider some hallowed principles of interpretation for determining the intended effect of non-compliance with a peremptory statute. There are principles that the courts resort to in order to determine whether or not the legislature intended non-compliance with a provision to be fatal.
Thus, in Shumba and Anor v ZEC and Anor 2008 (2) ZLR 65 (S)…, it was stated that:
“Francis Bennion, Statutory Interpretation submits that the courts have to determine the intention of the legislalture 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, 7ed 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 those 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.'”
Similarly, in the case of Sibanda & Anor v Ncube & Ors; Khumalo & Anor v Mudimba & Ors SC158–20…, PATEL JA…, held that:
“The broad test for ascertaining the true nature of a statutory duty was enunciated more than a century ago in the case of Howard v Bodington (1877) 2 PD 203, at 211:
'…, in each case, you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and, upon a review of the case on that aspect, decide whether the enactment is what is called imperative or only directory….,.'
A further aspect that may be relevant is the need to distinguish between those persons who are bound to perform the statutory duty and those who might be affected by its performance or non-performance: see Bennion, op cit, at p21.
In this context, the extent to which the former are in a position to exercise control over the latter may become a crucial consideration. This point was aptly elucidated in Montreal Street Railway Company v Normandin [1917] AC 170, at 174:
'When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in respect of this duty would work serious inconvenience or injustice to persons who have no control over those entrusted with the duty, and, at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.'”
These principles must be understood within the context of the law relating to electoral matters in general.
In Hove v Gumbo (Mberengwa West Election Petition Appeal) 2005 ZLR 85 (S) MALABA JA…, summarised some of the principles. At pp92B–E, it was held that:
“The law governing the manner and grounds on which an election may be set aside must be found in statute and nowhere else. In Nath v Singh & Ors [1954] SCR 892 at 895, MAHAJAN CJ said:
'The general rule is well settled, that, the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power.
It is also well settled, that, it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.'
About twenty years later, the same principle was reiterated by CHANDRACHUD CJ in Sahu's case supra, where at p39 he said:
'The rights arising out of elections, including the right to contest or challenge an election, are not common law rights. They are creatures of the statutes which create, confer, or limit those rights. Therefore, for deciding the assertion whether an election can be set aside, on any alleged ground, the courts have to consult the provisions of law governing the particular election. They have to function within the framework of that law and cannot travel beyond it.'”…,.
Although this relates to the setting aside of an election, it applies with equal force to setting aside nominations of candidates for the National Assembly constituencies as in the present case.
APPLICATION OF THE LAW TO THE FACTS
On the merits, the Court makes the following observations:
It is common cause, that, on the nomination day, the court commenced at 10am. It is also not in dispute that the designated Nomination Court was a small courtroom and the nomination officer could only allow 12 to 15 people at a time. The rest of the candidates and/or agents queued outside the courtroom. At 3:55pm, the nomination officer announced that all prospective candidates were to hand over their nomination papers to the police officer attached to the Nomination Court.
The police officer complied and directed, from the end of the queue, that, nomination papers be handed to the police officer at the door who then handed over the nomination papers to the nomination officer before 4pm.
A reading of section 24(1) and (2) of the Interpretation Act shows, that, the nomination officer, as a public officer, has the power to employ such appropriate administrative tools to accomplish his duty: see Shumba and Anor v ZEC and Anor 2008 (2) ZLR 65 (S).
He accepted lodgement of nomination papers within the prescribed time limits in compliance with section 46(6) as read with section 46(7) and 46(8) of the Electoral Act.
Evidence from the thirteenth to fifteenth respondents confirms, that, the nominations lodged on the nomination day were lodged before 4pm and that Annexure “B” was not an official document indicating the times of lodgement of nomination papers in the Nomination Court.
It appears, that, the court a quo turned a blind eye to the responsible authority's evidence and relied on the first to twelfth respondents evidence, which was heavily borrowed from social media, and, that is hearsay.
A close examination of Annexure “B” reveals that it is a submission form, without specification as regards what was submitted and to whom. Further, the form only starts recording at 1300 hours and the recordings are randomly captured at different times, some of which were prior to 1300 hours. It was therefore speculative for the court a quo to ascribe the unsystematically recorded form as proof of the times of lodgement of nomination papers.
The court a quo thus erred in dismissing the Electoral Commission's evidence as regards the use of Annexure “B” when it relied on its own interpretation of the document as opposed to the evidence presented by the nomination officer and all the other officials who deposed to supporting affidavits.
It is important to note, that, the nomination officer deposed the opposing affidavit on behalf of the Zimbabwe Electoral Commission (ZEC) and its Chairperson who had authorised him to do so. His deposition must therefore be understood to be the evidence of ZEC and its Chairperson…,.
In our view, the court a quo should have exercised caution in dismissing the Zimbabwe Electoral Commission's explanation of the form because one cannot lightly dismiss the responsible authority's explanation of the purpose for which the form is used in the absence of cogent evidence to the contrary. It is up to an Administrative Authority to devise administrative tools to function efficiently.
