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Tsvangirai v Chairperson of ZEC - Electoral Court for access to ZEC electoral information
High Court of Zimbabwe
August 02, 2013

Case No. EC 6/13
Case No. EC 27/13
Case No. EC 28/13

MORGAN TSVANGIRAI
versus

CHAIRPERSON OF THE ELECTORAL COMMISSION
and

THE CHIEF ELECTIONS OFFICER OF THE ZIMABABWE ELECTORAL COMMISSION
and

ZIMBABWE ELECTORAL COMMISSION
and

REGISTRAR GENERAL OF VOTERS
and

ROBERT GABRIEL MUGABE

HIGH COURT OF ZIMBABWE
BHUNU J
Harare, 14 August 2013 and 20 August 2013

L.Uriri,A. Muchadehama and T. Mutangi, for the Applicant.
T.M. Kanengoni, for 1st, 2nd and 3rd Respondents.
C. Chopamba, for 4th Respondent.
F.I. Gijima, for 5thRespondent.
F. Mutamangira and G.N Mlotshwa, for the Attorney General.

BHUNU J: The Applicant is the losing candidate in the recent Presidential Election held on 31 July 2013 whereas the fifth respondent is the winning candidate in that election. The first to fourth respondents are electoral officials and entity who were responsible for running and administering the elections. Their functions are apparent from their respective titles. It is not necessary to expound on their functions beyond what emerges from their respective titles.

Aggrieved by the outcome of the elections the Applicant has now filed two applications in this Court under cases number EC 27/13 and 28/13. The net effect of both applications is to request this Court to direct the respondents to provide the applicant with certain materials and information pertaining to the disputed Presidential Election. Both applications are hotly contested with the respondents taking several preliminary issues being points in limine.

As both applications seek substantially the same relief it is convenient to consolidate the two applications and determine them as one. All the parties concerned have consented to this procedure.

The results of the disputed Presidential Election were announced on 3 August 2013. That being the case, the cause of action must have arisen at the latest on that date. In terms of s 93 of the Constitution the applicant was obliged to file his petition with the Constitutional Court within 7 days of the announcement that is to say, by 9 August 2013. It is clear that by decreeing that Presidential Election petitions be filed within 7 days of the announcement of results the law maker intended the aggrieved party to act with convenient speed and due diligence. And yet with the full knowledge that time was of the essence the applicant sat on his laurels and only started to seek evidence through this Court on 8 August 2013 around 4pm. No cogent explanation has been proffered for the inordinate delay of 5 days.

Considering that the applications were filed at the closure of business on 8 August 2013 they could only be processed and allocated to a judge for a hearing on the following day. It is a legal requirement that notices be given to the other party in conformity with the audi alteram partem rule, that is to say, the need to hear the other party before making any determination affecting his rights. This is a cardinal principle of universal application not to be lightly overlooked. The net result is that this application was only heard on the eve of the deadline to the filing of the Electoral Petition in the Constitutional Court.

The materials and information demanded by the applicant is massive requiring the opening of more than 9000 ballot boxes throughout the country. It is preposterous and grossly unreasonable to suggest that such information and materials could be gathered and presented to the applicant within such a short space of time to beat the deadline even if the application was to succeed on the day of hearing.

In a long line of decided cases the Superior Courts have consistently held that for an application to be treated as urgent, not only must there be the danger of irreparable prejudice if the matter is not dealt with immediately, but also the applicant must himself have treated the matter as one of urgency. See Madzivanzira and OrsvDexprint Investments (Pvt) Ltd and Anor 2002 (2) ZLR 316.

It is often easy for litigants to blame others as a subterfuge for their predicament in cases of this nature without looking at their ownunbecoming deplorable conduct. It was obviously remiss of the applicant and his lawyers, in the circumstances of this case to wait until the eve of the day of reckoning without filing this application. In the absence of any cogent reason, there is absolutely no logic in one starting to gather such massive evidence on the eve of the date of reckoning.

To make matters worse the applicant has filed case number EC 27/13 without a valid certificate of urgency as is required by law. A perusal of the documents shows that Mr. Batasara issued the certificate of urgency on 5 August 2013 three days before the applicant had deposed to his founding affidavit on 8 August 2013. Mr. Batasara’s assertion that he had read and understood the applicant’s affidavit on 5 August 2013 is therefore false in fact and misleading. He could not possibly have read and understood the applicant’s founding affidavit on 5 August 2013 when it was not in existence. Thus the applicant filed the application with a fake certificate of urgency. With respect, a fake and to that extent irregular certificate of urgency cannot establish urgency. For the foregoing reasons, I can only come to the conclusion that there is merit in the respondents’ objection that the matter is not urgent for the simple but good reason that the applicant did not himself treat the matter as urgent. It is ridiculous and unreasonable for the applicant to expect others to treat the matter as urgent in circumstances where he has dismally failed to treat it as such.

The respondents have also taken objection to the jurisdiction of this Court. It is common cause that the Electoral Court is a creature of statute. It has no inherent jurisdiction of its own. Its jurisdiction is strictly to be found within the 4 corners of the enabling statute, that is to say, the Electoral Act [Cap: 2:13] as read with the Constitution. The Constitution being the supreme law of the land takes precedence and supersedes any other laws.

Section 167 (2) (b) of the Constitution provides that:

“Subject to the Constitution, only the Constitutional Court may –

...
hear and determine any disputes relating toelection to the office of President.”

What the applicant is doing is to call upon the Electoral Court to determine a dispute concerning the gathering of evidence and information relating to the election of the respondent to the office of President. The request is contrary to law and patently unlawful. The section is couched in simple grammatical terms admitting of no other interpretation. It expressly prohibits the Electoral Court or any other court except the Constitutional Court to hear and determine any disputes relating to the election of the President. It is framed in peremptory terms constituting a prohibition thereby admitting no exception or discretion on the part of this court.

The applicant’s attempt to found jurisdiction for this Court in terms of the Electoral Act is misplaced as the Constitution is supreme. It is absurd to suggest that the law maker could have contemplated that different aspects of the Presidential Election Petition should fall to be determined in two different courts, for to do so is to set the two courts on a collision course in the event that they reach different decisions on the same issue. For instance, it will be scandalous if this Court grants the application and proceeds to order the opening of the ballot boxes when the Constitutional Court is of a different view.

That being the case I cannot but sustain the respondents’ objection and hold that this Court has no jurisdiction to hear and determine both applications as they relate to disputes concerning the election of the applicant to the office of President.

This really should be the end of the matter. I cannot however, conclude my judgment without expressing my displeasure at the unwarranted attack on the integrity and dignity of this Court and the entire judiciary of this country perpetrated by the applicant and his lawyers by association.

In a dossier filed in the Electoral Court at p 18 the applicant had the occasion to launch a scathing attack on this Court, and the entire judiciary including those who had absolutely nothing to do with his electoral petition or grievances. The applicant through his lawyers did not dispute that he is the author of that document. All what he could say was that since the document was meant for the Constitutional Court the issue must be left for that Court to settle. The applicant cannot however, insult and hold this Court in contempt and then seek to hide behind the Constitutional Court.

The dossier reads in part:

“- Judiciary is not independent from the executive, and politically, from Zanu-PF. Since 2000 the President has appointed or elevated 23 judges to the High Court, Supreme Court and the new Constitutional Court without consulting Prime Minister Morgan Tsvangirai contrary to requirements of the GPA and the Constitution. Consequently the opposition does not view the judiciary as independent of Zanu-PF.”

Considering that the opposition is composed of various political parties it is not clear whether they share the same views and the applicant had the mandate to speak on their behalf.

It is ironic that having made those scathing disparaging remarks of and concerning the entire judiciary of this country, the applicant and his lawyers are now seeking justice before the same judiciary in which they have no confidence. His conduct in this regard is symptomatic of an unbalanced convoluted mind set unbefitting a man of his stature and station in life.

While the applicant’s reprehensible conduct in this respect, may be attributable to ignorance of the law, the same cannot be said for his lawyers. As officers of the Court they filed and sought to rely on the appalling document from which they now seek to resile with the full knowledge that their conduct was patently unethical.

Their conduct betrays a determined frame of mind to abuse and hold this Court in contempt with scant regard to its integrity. Previous warnings appear to have fallen on deaf ears. That type of conduct cannot be tolerated by these Courts. Time has now come to reign in errant Legal Practitioners bent on bringing this Court’s integrity into disrepute.

Having aligned themselves with their client’s views and his perception of this Court and the entire judiciary by filing the despicable dossier of papers in Court documents which have been placed before this court, the applicant’s lawyers cannot seek to dissociate themselves from their client’s contemptuous conduct. They must share collective responsibility as they appear to have acted in common purpose and seek to justify and sustain those views and perception of the judiciary in a Court of law.

In the final analysis I come to the conclusion that there is no merit in both applications. Because of the applicant’s gross conduct in soiling the dignity and integrity of this court. The Court can only express its displeasure by an award of costs at the higher scale. It is accordingly ordered:

That both applications be and are hereby dismissed with costs at the legal practitioner and client scale.
That the registrar be and is hereby directed to serve a copy of this judgment on the Attorney General or The Prosecuting Authority for the appropriate action according to law.

Donsa- Nkomo & Mutangi, the applicant’s legal practitioners EC 27/2013

Mbidzo Muchadehama and Makoni, the applicant’s legal practitioners.

Nyika Kanengoni & Partners, the 1st, 2ndand 3rdrespondent’s legal practitioners.

Thodlana and Associates, 4th respondent’s legal practitioners

F. G. Gijima and Associates, 5th respondent’s legal practitioners

Mutamangira and Associates and Titan Law Chambers, the Attorney General’s legal practitioners.

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