JONATHAN NATHANIEL MOYO
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 14 JANAURY 2014 AND 31 JANUARY 2014
Mr T. Hussein for applicant
Mr K. Phulu for respondent
MAKONESE J: The Applicant was a candidate for the National Assembly seat for Tsholotsho North constituency in Matabeleland North Province in the Harmonised General Elections held on 31st July 2013 as a nominee of ZANU (PF). The Respondent was declared winner of the National Assembly election in respect of the said constituency. She stood in the election as a candidate for the MDC (T) party.
The Applicant was not satisfied with the outcome of the election, and accordingly, on 1st August 2013, filed a Petition in terms of section 167 of the Electoral Act [Chapter 2:13], hereinafter referred to as the “Act”. The Petition filed by Applicant is couched in the following terms:
“BE PLEASED TO TAKE NOTICE THAT the Petitioner hereby petitions the Electoral Court for an Order in terms of the Draft annexed hereto on the grounds that:
1. The Petitioner was a candidate in the National Assembly Election for the Tsholotsho North Constituency on the 31st July 2013.
2. That the 9th Respondent was returned as the National Assembly member for Tsholotsho North in that election and this return was improper and irregular for the reasons detailed in the annexed affidavit.
3. The combination of electoral malpractices and irregularities highlighted in the annexed affidavit render the election null and void or voidable as the court may deem appropriate.
TAKE NOTICE FURTHER THAT, the accompanying affidavit and supporting documents are tendered in support of this application and should be read as specifically forming part of this notice.”
The Applicant prayed that this court grants him relief in the Draft order, in the following terms:-
“1. The 9th Respondent was not duly elected as the representative of Tsholotsho North Constituency as declared on 1st August 2013 by the First Respondent.
2. That the said election be and is hereby set aside and that a bi-election be held within 90 days of this order.
3. That the voters roll for Ward 22 and 9 of Tsholotsho North Constituency be rectified to reflect voters resident in these wards prior to the election referrein herein.
4. That the Registrar of this Honourable Court duly communicate this court’s order to the Speaker of Parliament.
5. That the Respondent’s jointly and severally pay the costs of this application.”
Pursuant to the filing and service of the Electoral Petition upon the nine Respondents, 1st to 6th Respondents filed an Exception to the Petition on the grounds of mis-joinder in that the citation of 1st to 6th Respondents was contrary to the provisions of Part XXII and section 166 of the Electoral Act. The Applicant subsequently withdrew all actions against 1st to 8th Respondents, leaving the 9th Respondent, who is now the only Respondent in this action.
Both Applicant and Respondent filed fairly detailed Heads of Argument in support, and defence of the Preliminary points raised by the Respondent. The preliminary points were initially premised on six grounds but at the commencement of the hearing of oral argument, Respondent’s legal practitioner announced that there were only two grounds to be dealt with, conceding that the rest of the objections were not sustainable. The Respondent argued that the Applicant’s petition is fatally defective and therefore a nullity in that it does not comply with the Provisions of the Electoral Act [Chapter 2:13] and section 169 of the same Act and sections 21(e) and (g) of Statutory Instrument 74A of 1995 also known as the Electoral (Applications, Appeals and Petitions) Rules, 1995.
Further, the Respondent avers that throughout the petition, the Petitioner has not specifically alleged any electoral law infractions by either the Respondent or its agents. In other words the Petitioner’s gripe seems to be with the electoral body and or its officials, and as such, the Petitioner’s remedies lie in an application for a review. The Respondent contends that the petitioner has not brought out a complaint or cause against the Respondent or her agents, and that if he has done so, this has been put across in a manner so lackadaisical and imprecise and so vague that the Respondent does not know what she must answer to.
I shall deal with the objections raised by the Respondent in turn:
1. FAILURE TO SPECIFY GROUNDS RELIED UPON
It is the Respondent’s contention that in terms of section 21(e) of the Electoral (Applications, Appeals and Petitions) Rules 1995, an election petition; “---shall state the grounds relied on to sustain the petition.” The Respondent further avers that the Applicant does not state ex facie, the petition the grounds upon which he relies to sustain the petition, preferring to improperly hide the same in the Petitioner’s affidavit for this court to fish and find therefrom. It is further contended on behalf of the Respondent that the exact relief the Petitioner seeks does not appear ex facie the petition, and such is left for the court to fish and find from the Petitioner’s Founding Affidavit and prayer.
Mr Phulu, for the Respondent forcefully and passionately implored the court to find that the grounds upon which the Applicant relies upon to sustain the petition must by law, be found in the petition, and that the Applicant’s supporting affidavit merely supports the grounds raised in the petition itself, which petition must in terms of the Rules be in the form of an application. He further pointed out that the petition exhibits no grounds ex-facie, upon which the petition is based, further, that the Applicant has invented his own manner and method of presenting an election petition, outside the provisions of the statute.
Mr Hussein, for the Applicant strongly objected to the preliminary points raised by the Respondent and indicated that he found the objections to be strange in that whilst the Petition notice does not contain some details, the Petitioner’s affidavit does so comprehensively. It was contended on behalf of the Applicant that the Respondent’s approach was wrong and that Respondent was afflicted with some amount of confusion. Applicant argued that in terms of the Electoral Act the document to be used to complain about an undue election is a “petition.” The Electoral Act, in the definitions section, lists, “election petition” for definition but does not do so by what appears to be drafting error. The Applicant contended that by default, therefore, one would seek the definition of “petition” in the Interpretation Act [Chapter 1:01] which states:-
“Any reference in an enactment to a petition to a court shall be construed as a reference to an application to court or to a judge, magistrate or other judicial officer of the court, made in accordance with the rules of the court.”
The Applicant’s main argument to the objection is that the petition/application is merely a formal notice to an interested party that a petition has been filed, whereas the accompanying affidavits and Order provides the details. The Applicant persuaded the court to accept that the Petitioner provided more information in the petition than was required to, and that the Petition complied with the Rules of court.
In determining whether the failure to specify the grounds upon which the Petition is found in the Petition itself, it is necessarily to review the provisions under Rule 21 of the Electoral (Applications, Appeals and Petitioners), Rules of 1995. The Rule provides as follows:
“FORM OF ELECTION PETITION
An election petition shall be generally in the form of a court application and shall state - - - -
(e) the grounds relied on to sustain the petition - - - -
(g) the exact relief sought by the Petitioner.”
The Applicant goes further to indicate in his Petition as follows:
“TAKE FURTHER NOTICE that the accompanying affidavit and supporting documents are tendered in support of this application and should be read as specifically forming part of this notice.”
The Applicant contends, very strongly, that the supporting documents and affidavits annexed to the Petition satisfy the requirements of Rule 21(e) and (g) of Electoral Rules as cited above. Whilst one may easily be tempted to agree with the Applicant it is necessarily to closely examine the law. I am of the view that if it was the intention of the framers of the law to provide that the Petition shall be accompanied by an affidavit and supporting documents this would have been stated in clear and unambiguous terms.
The definition section of the Electoral Act provides as follows:
“election petition””means a petition referred to in Section one hundred and sixty seven.”
The express provisions of the law allow a petitioner to lodge a petition in terms of the laid down procedure. The rules and regulations for the filing and determination of electoral petitions is governed within the four corners of the Electoral Act and the Electoral Rules, 1995. In this regard, I tend to agree with the Respondent that the Petitioner has sought to invent his own method of presenting the election petition, which is outside the provisions of statute. Whilst it may be convenient for the Applicant to present a Petition with brief grounds set out in what the Applicant refers to as the “notice”, accompanied by an Affidavit and other supporting documents, this does not become, in my view, the format prescribed by statute. In any event no reasonable and acceptable explanation has been proffered for the departure in the rules.
The law governing the manner and grounds on which an election may be set aside is to be found in statute and the Court can do no more than relate to the provisions of the Electoral Act and the Electoral Rules as they stand. I find support in this approach in the case of: Hove v Gumbo (Mberengwa West Election Petition Appeal) 2005 (2) ZLR 85(S).
In the cited case, MALABA, JA quoted with approval the case of Nath v Singh and Others (1954) SCR 892 at 895, where MAHAJAN, CJ said:-
“The general rule is well settled that the statutory requirement of law must be strictly observed and that an election contest is not an action at law or a suit 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.”
The learned Judge also alluded to the case of Sahu v Singh and Another (1985) LRC 31, where CHANDRACHUD CJ, had this to say at page 39:-
“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 statues 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.”
The Applicant has sought to argue that the Petition in its present form complies with the provisions of the Electoral Rules. To extend the argument further, the Applicant contends that the petition is but a notice and the accompanying affidavit provides adequate detail narrating the grounds relied upon to sustain the petition. I have read the accompanying affidavit of the Applicant and while I agree, that the affidavit is lengthy, a careful scrutiny of the document reveals that the content therein does not really disclose with any reasonable clarity the grounds upon which the election challenge is made. In the opening pages of the affidavit the Applicant deals with what he refers to as wrongful denial of a recount “under confused and confusing circumstances.” That aspect of the Applicant’s case falls away by virtue of the fact that the vote recount was set aside by an order of the court, under case number EC 25/13. The court made an order to the effect that the recount was in violation of section 70(4) of the Electoral Act and therefore unlawful. The rest of the affidavit deals with extensive and general complaints of misplacement, misdirection and non-counting of votes and disenfranchisement of voters in certain wards in the Constituency. The Applicant, clearly misses the point and his Petition does not comply with the express and peremptory provisions of Rule 21(e) and (g) of the Electoral Rules and it is on the basis of the non-compliance, which non-compliance the court may not condone, the petition is held to be fatally defective, beyond cure or redemption that I would uphold the Respondent’s point in limine.
2. THE GROUNDS RELIED UPON ARE VAGUE AND IMPRECISE
The other issue raised by the Respondent is that the Petitioner’s grounds upon which the petition is sustained are so imprecise and vague that it is not clear what the Respondent must answer to. The Applicant’s Affidavit is quite voluminous but is thin on content. I have already indicated that the issue of a refusal of re-count was disposed of by virtue of the court order of this court. What then remains in the petition are alleged infractions related to the counting of votes. The Applicant alleges that there were various anomalies and inconsistencies that compromised the integrity of the election results. Some of the alleged anomalies involved instances where the Applicant had only one polling agent present during the counting of votes. In a specific instance the Applicant refers to an affidavit sworn to by Jabulani Tsheza who was a polling agent in Ward 8, Tsholotsho North Constituency. The deponent complained that on the 30th July 2013 he observed a White Nissan Pick-up Truck with a Methodist church emblem on its doors. The vehicle was parked outside the polling station. Jabulani Tsheza deemed the presence of the vehicle as suspicious as the driver drove away without explaining why he was at that polling station. In another sworn statement in support of the Applicant’s petition one Kelvin Sibanda complained that he was based at Sandawana Primary School which was a collation centre. He observed a white pick-up truck with red Methodist church stickers on its doors. The deponent did not get a satisfactory explanation for the presence of the truck at the collation centre. The deponent goes further that he went to Ntulula Polling Station at Ntulula Primary School where he found cow horns in the polling station. When he approached the Presiding Officer about the cow horn, which resembled the ZAPU party emblem which used a bull its symbol he did not get a satisfactory response. Kelvin Sibanda concluded that the presence of the white Methodist Pick Up truck and the cow horns found in one of the classrooms was suspicious and could have compromised the election result.
I will not endeavour to analyze the various affidavits attached to the Applicant’s petition as this would simply be an exercise in futility.
I found the detail in the Applicant’s affidavit and supporting affidavits to contain vague and general complaints which do not state in precise terms the grounds relied upon to sustain the petition as contemplated under Rule 21(e) of the Electoral Rules, 1995.
I am of the firm view that where the grounds upon which the petition is to be sustained are vague and imprecise, the court cannot cure such defect by referring the matter to trial. To refer the matter to trial under such circumstances amounts to a fishing expedition. The Petitioner is required by the Rules to state in clear and unambiguous terms the nature of his complaint. The Respondent in this instance will clearly be embarrassed because she does not know how to respond to these general and rambling accusations, which as it turns out, are not directed at her but to some unknown persons. The Applicant’s affidavit contains far too many broad and vague generalisations of irregularities which cannot give rise to triable issues.
I would therefore sustain the Respondent second point in limine and find that the petitioner’s grounds of complaint are vague and imprecise to the extent of non-compliance with the Rules of the Electoral Court. The Respondent asked for costs at the higher scale in their Heads of Argument but when the matter was argued there was no serious intent on the part of the Respondent to recover costs on a punitive scale. I do not consider the arguments raised on behalf of the Applicant to be outrageous so as to attract costs on the higher scale.
In the result, the Respondent’s preliminary points are sustained and I make the following order:-
1. The Electoral Petition filed by the petitioner in this case is fatally defective and of no force and effect for want of compliance with Rule 21(e) and (g) of the Electoral (Applications, Appeals and Petitions) Rules, 1995.
2. The Applicant’s Petition is hereby dismissed with costs.
3. The Respondent Roseline Nkomo be and is hereby declared duly elected member of the National Assembly for the Tsholotsho North Constituency.
4. The Registrar be and is hereby directed to proceed in terms of Section 171 (3) (a) (ii) of the Electoral Act [Chapter 2:13].
Hessein Ranchhord and co,C/o J Sibanda & Associates, applicant’s legal practitioners
Phulu and Ncube, respondent’s legal practitioners