Approach re: Issues in Limine, Technical or Procedural Objections iro Public Interest Litigation

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

APPLICATION FOR CONDONATION FOR NON-COMPLIANCEAn application for condonation of non-compliance with the procedural requirements prescribed by section 93(1) of the Constitution, albeit opposed by the respondents, was made by the applicant.Counsel for the first respondent specifically argued that non-compliance with the Constitution could not be condoned.Despite opposition to the application ...

APPLICATION FOR CONDONATION FOR NON-COMPLIANCE

An application for condonation of non-compliance with the procedural requirements prescribed by section 93(1) of the Constitution, albeit opposed by the respondents, was made by the applicant.

Counsel for the first respondent specifically argued that non-compliance with the Constitution could not be condoned.

Despite opposition to the application for condonation, the Court was prepared to, and did, grant the application. It considered the importance of the matter in dispute and the public interest involved. The detailed reasons for granting condonation are as follows;

LEGAL FRAMEWORK FOR DEPARTURE FROM THE RULES

The Constitutional Court is imbued with a wide discretion when deciding a constitutional matter within its jurisdiction. The wide discretion includes the power to condone a departure from the Rules.

The question whether the Court has power to condone non-compliance with procedural requirements prescribed by a constitutional provision given effect to by the Rules of the Court is a constitutional matter. Non compliance with the Rules, in relation to a procedural matter provided for under the Constitution, is non-compliance with the relevant procedural requirements prescribed by the Constitution.

In Grootboom v National Prosecuting Authority and Anor 2014 (2) SA 68 (CC)…, the Constitutional Court of South Africa had occasion to consider the question of the power to condone non-compliance with court rules. It said:

“[20]…, It is axiomatic that condoning a party's non-compliance with the rules of court or directions is an indulgence. The court seized with the matter has a discretion whether to grant condonation….,.

[35]…,. The granting or refusal of condonation is a matter of judicial discretion. It involves a value judgment by the court seized with a matter based on the facts of that particular case.”

In terms of section 175(6)(b) of the Constitution, the Constitutional Court, in deciding a constitutional matter within its jurisdiction, has a general power to “make any order that is just and equitable.”

Consideration of what is in the interests of justice is paramount. A court exists to do justice. It also exists to act fairly. Ordinarily, once a court finds that it is just and equitable to allow a matter to be brought to it outside the procedural requirements, it follows that it would be in the interests of justice to allow the matter to be heard. Minister of Justice v Ntuli 1997 (3) SA 772 (CC)…,.

If justice and fairness would best be served or advanced by the employment of an available remedy, then it ought to prevail as a constitutionally sanctioned solution to the procedural issue. The Court must not lose sight of the substantive values in the light of which procedural requirements are made.

Where the Constitutional Court considers that it is in the interests of justice to condone a departure from the procedural requirements, it is entitled to remedy non-compliance by giving an indulgence to the defaulting party. The order granting condonation is itself a form of a just and equitable remedy that the Court can grant in terms of section 176(5)(b) of the Constitution.

The consideration of what is “just and equitable” and what is in the “interests of justice” involves giving effect to the values of procedural justice and fairness. It is for this reason that section 176 of the Constitution provides that the Court has inherent power to protect and regulate its own process. Allowing a departure from the Rules is a form of the exercise of the Court's constitutional power to regulate its own process to give effect to and achieve justice.

Rule 5 of the Constitutional Court Rules provides as follows:

“5. Departure from rules and directions as to procedure

(1) The Court or a Judge may, in relation to any particular case before it or him or her, as the case may be -

(a) Direct, authorise or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he or she, as the case may be, is satisfied that the departure is required in the interests of justice;

(b) Give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to it or him or her, as the case may be, to be just and expedient.

(2) The Court or the Chief Justice or a Judge may -

(a) Of its, his or her own accord or on application and on sufficient cause shown, extend or reduce any time period prescribed in these rules and may condone non-compliance with these rules;

(b) Give such directions in relation to matters of practice or procedure or the disposal of any appeal, application or other matter as the Court or the Chief Justice or Judge may consider just and expedient.”…,.

Rules deal with procedural matters only. Procedural matters prescribed in section 93(1) of the Constitution are embodied in the Rules. They can be the subject of the exercise by the Court of the discretionary power provided for under Rule 5 of the Constitutional Court Rules.

In Marco Ltd v Newfoundland Processing Ltd (1995) 130 Nfld. & P.E.I.R. 308, as referred to in Duhaime's Law Dictionary, the Supreme Court of Newfoundland and Labrador, Trial Division, said:

“The Rules of Court…, set out procedural pathways or guidelines for the conduct of litigation. The court, in the exercise of its inherent jurisdiction to control its own process and under the Rules themselves, may modify the strictures of particular procedural requirements to meet the exigencies of a specific case provided always, of course, any such modification can be done without encroaching on the rights of other parties to a fair and proper hearing.”…,.

In Mukaddam v Pioneer Foods (Pty) Ltd and Others 2013 (5) SA 89 (CC), the Constitutional Court of South Africa relied on the same principle. In paragraph [39] it said:

“[39] Flexibility in applying requirements of procedure is common in our courts. Even where enacted rules of court are involved, our courts reserve for themselves the power to condone non-compliance if the interests of justice require them to do so. Rigidity has no place in the operation of court procedures. Recently, in PFE International and Others v Industrial Department Corporation of South Africa Ltd [2013 (1) SA 1 (CC)] this Court re-affirmed the principle that rules of procedure must be applied flexibly. There this Court said:

'Since the rules are made for courts to facilitate the adjudication of cases, the superior courts enjoy the power to regulate their own processes, taking into account the interests of justice. It is this power that makes every superior court the master of its own process. It enables a superior court to lay down a process to be followed in particular cases, even if that process deviates from what its rules prescribe. Consistent with that power, this Court may, in the interests of justice, depart from its own rules.'”

It is on the basis of the principle behind the purpose of the inherent power of the Constitutional Court to control its own process, provided for in section 176 of the Constitution, that counsel for the first respondent's submission, that non-compliance with a requirement of a rule giving effect to a constitutional provision cannot be condoned, must fail.

Once a procedural matter is made the subject of a rule of court, and there is a general rule giving the Court the power to condone non-compliance with the procedural requirements, when it is in the interests of justice to do so, the fact that the procedural matter has its origin in the Constitution is no bar to the Court exercising its discretionary power in terms of the Rules.

The one-day delay in serving the application on the respondents, through the Sheriff, was not inordinate. The respondents did not allege any prejudice arising from the applicant's non compliance with the procedural requirements of Rule 23(2) as read with Rule 9(7) of the Constitutional Court Rules. The national importance of the dispute cannot be overlooked. It has been held that where the delay is relatively short and no prejudice is suffered, the court is likely to grant condonation of non-compliance with procedural requirements. See Oriani-Ambrosini MP v Sisulu MP, Speaker of the National Assembly 2012 (6) SA 588 (CC)…,.

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

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

(a) Preliminary Issues

Counsel for the first to the twelfth respondents raised three preliminary issues.

The first point related to the status of the fifth appellant in SCB59/23 (Jane Nicola Watson). He noted, that, the order of the court a quo did not list her as one of the respondents, which omission was accepted by the fifth appellant.

Counsel accordingly sought an order deeming the judgment of the court a quo as being applicable to the fifth appellant as such a course would prevent the appeal by the fifth appellant from being struck off the roll.

The second point raised was that the appeals were fatally defective because the appellants appealed against the whole judgment instead of the parts that affected them.

He further pointed out that some of the appeals did not cite some of his clients who were applicants before the court a quo. This was particularly argued to be the case with SCB60/23. In his view, such an omission denied parties who were before the High Court the right of audience. It was contended, that, the appeals could not be valid appeals if they left out interested parties.

Per contra, counsel for the first to sixth appellants opposed the procedure suggested in respect of the omission of the name of the fifth appellant in the court a quo's judgment. He argued that it was incompetent. After an argument by both counsels, it was resolved that the issue will be determined by the court in terms of section 22(1)(b)(ix) of the Supreme Court Act [Chapter 7:13].

Further, in respect of the points in limine, counsel for the first to sixth appellants argued that the points that were taken by counsel for the respondents were not procedurally raised because no notice had been given in compliance with Rule 51 of the Supreme Court Rules 2018.

He added that a declaratory order could not be separated into parts and hence it was necessary for the appellants to appeal against the whole judgment of the court a quo. Counsel submitted, that, an appellant challenging the jurisdiction of a court could not challenge it in part.

Counsel for the seventh to twelfth appellants in SCB59/23, counsel for the first to fourth appellants in SCB61/23, and counsel for the appellants in SCB60/23, on the points in limine raised, essentially associated themselves with the arguments that had been advanced by counsel for the first to sixth appellants.

Eventually, all parties agreed that in light of the decision of the Constitutional Court in the case of Chamisa v Mnangagwa CC21-19 it was not necessary to dwell on the preliminary issues. Moreso considering the role of the court in matters of public importance as set out in the cited case.

Counsel for the first to twelfth respondents abandoned the preliminary points and accepted that the appeal be determined on the merits.

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Approach re: Issues in Limine, Technical or Procedural Objections iro Public Interest Litigation

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

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Approach re: Issues in Limine, Technical or Procedural Objections iro Public Interest Litigation

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

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CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA