REPORTABLE (134)

Judgment No. SC. 132/04

Civil Appeal No. 112/01

OLIVIA MUCHENA v DEREK MUZIRA

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, ZIYAMBI JA & MALABA JA

HARARE, NOVEMBER 4, 2004 & SEPTEMBER 19, 2005

H Mazonde, for the appellant

E T Matinenga, for the respondent

ZIYAMBI JA: This is an appeal against a judgment of the High Court upholding an election petition presented by the respondent. The petition was presented to the court in terms of s 132 of the Electoral Act [Chapter 2:01] (“the Act”) (now repealed and replaced by the Electoral Act [Chapter 2:13].

The appellant, currently the Minister of Science and Technology Development, contested the Mutoko South Parliamentary seat as a candidate for the ZANU  (PF) party in the Parliamentary Elections held on 24 and 25 June 2000, while the respondent contested the same seat as a candidate for the MDC party. The appellant polled 19 228 seats while the respondent polled 1 177 seats.

On 26 July 2000 the respondent filed a petition in the High Court seeking the setting aside of the election on the basis that it was:

“… not conducted in accordance with the principles not only laid out in this Act but principles of fairness as guaranteed and implied in our Constitution …. My principle (sic) grounds for complaint are:

A) CORRUPT PRACTICES in the form of undue influence as defined in s 105 of the Electoral Act [Chapter 2:01] (“the Act”). These were manifested in the following forms –

i) gross pre-election violence;

ii) polling day violence, intimidation and duress;

B) ILLEGAL PRACTICES as defined in Part XX1 of the Electoral Act …(infractions of ss 116, 117 and 118 of the Act were cited);

C) GROSS IRREGULARITIES and GROSS UNREASONABLENESS … (certain acts by the constituency Registrar were cited); and

D) GROSS INFRINGEMENT OF (MY) CONSTITUTIONAL RIGHTS.”

Under this head it was alleged that the Government of Zimbabwe had unleashed war veterans, bandits and vigilantes in the rural areas and on commercial farms thereby preventing opposition political leaders, in particular the MDC, from having access to the electorate:

”The violence unleashed by ZANU (PF) sponsored vigilantes was as widespread as it was widely reported. At least thirty (30) MDC supporters were killed during the run up to the election and hundreds were maimed and tortured”.

He continued:

“I maintain that my Constitutional rights as protected by sections 18, 20, 21, 22 and 23 were infringed upon. I pray, that notwithstanding the narrow grounds for setting aside elections as defined in the Electoral Act, where there has being (sic) a serious infringement of Constitutional Rights then surely the Court ought to set aside the election.”

He also averred that there was widespread violence in the area and that war veterans, led by Maxwell Wise Rwodzi (“Rwodzi”), set up base camps at Mutoko Centre, Cornerstore, Kushinga and Chimurenga. Many people were kidnapped and taken to these base camps, where they were subjected to serious assaults and torture.

He concluded his affidavit with the following averment:

The fact of the matter is that the people of Mutoko South were thus denied the right to exercise their vote as a result of the embarrassing violence, intimidation and irregularities perpetrated by the respondent and ZANU  (PF) …”. (my underlining)

Supporting affidavits were filed sworn, inter alia, by –

a. Matthew Rukwata, who would testify as to the “violence that took place before the elections. He was kidnapped on 24 April 2000 for three weeks and taken to Mutoko base camp. The leaders of the perpetrators of the violence were Rwodzi and Ndemera”;

b. George Mabiri, who would testify “as to the killing of the headman (of) Nyamhanga, Mationa Mushaya and his son, Peter Mushaya, on 16 May 2000 by war veterans and ZANU  (PF)”; and

c. Kingstone Mwenye, who would testify as to the intimidation and assaults which forced him to flee from the Constituency.

There were, in addition, four supporting affidavits by persons who would testify as to various irregularities that took place at the various polling stations.

Save for the passing mention of the appellant in the concluding paragraph set out above, there was no allegation of impropriety made against the appellant.

That is the case the appellant was called upon to answer in the petition – a hotchpotch of allegations including general violence and intimidation by war veterans and supporters of ZANU (PF), irregularities and breach of Constitutional rights. It is not surprising that the manner in which the petition was presented drew criticism from the learned judge who commented at p 1 of the cyclostyled judgment:

“In this petition, in which it is prayed that the election of the respondent be declared void, every conceivable complaint which may be made against an election has been made and, for the most part, has not been made with the necessary degree of precision required by the law.”

And later at p 3 of the cyclostyled judgment:

“Procedure lies at the heart of the law. Its aim is to guarantee precision in order that the ends of justice may be achieved and unnecessary time and expense avoided. These ideals are placed in jeopardy where lack of precision leads to the person accused not knowing with sufficient clarity the case he has to meet. Much time and expense is wasted by the failure to set forth succinctly and according to the law the charge raised and the particulars relied upon.

In regard to those complaints made relating to the procedures and rules prescribed in the Act for the administration of the electoral process the Registrar General, who was not cited, was nonetheless served with the petition and he filed a detailed affidavit in which he disputed and raised substantial disputes of fact on the allegations of non-compliance with the election procedures. Likewise the respondent in her opposing papers had to deal with each and every allegation made. The numerous charges made were not pursued with any seriousness of purpose in the evidence and indeed Mr Matinenga for the petitioner in his closing submissions to his credit relied upon only one ground of challenge, namely, that specific acts of intimidation had been committed by named persons; and that the conclusion of law to be drawn from the evidence as a whole was that the respondent had recognised and accepted these persons as her agents, even though there was no express agency. I have satisfied myself, having re-examined the petition in the form it was presented with some thoroughness, that this ground of challenge, that the respondent is answerable in law for the acts of her agents, is made no mention of in the petition and that agency is not mentioned save by necessary implication.” [My emphasis]. “As to the procedural propriety of raising constitutional grounds for challenge in a petition brought in terms of the Act, and reliance on international election observer reports as evidence upon which the court must act, I have already made my views known on this subject and have nothing further to add. Where the conduct of the office of the Registrar General in regard to the administration of the electoral process is relied upon to impeach the election, as was done in this case, counsel should heed the provisions of s 159 of the Electoral Act, which states that:

‘An election shall be set aside by the High Court by reason of any mistake or non-compliance with the provisions of this Act if, and only if, it appears to the High Court that –

(a) the election was not conducted in accordance with the principles laid down in this Act; and

(b) such mistake or non-compliance did affect the result of the election.’ (My underlining)

This section introduces a cause of action separate and distinct from s 124 of the Act which deals with when an election is void owing to corrupt or illegal practices as opposed to when it may be set aside. The section is concerned with the technical requirements for the conduct of an election to be observed by all parties, in particular the Registrar General.”

It was never alleged that acts of undue influence, in the form of violence or intimidation, were carried out with the knowledge, consent or approval of the appellant or her agents. No averment was made that might have put the appellant on her guard that it might be alleged at the trial that the war veterans were her agents in committing corrupt or illegal practices.

On 27 February 2001 a synopsis of evidence was filed on behalf of the respondent. It was said that:

“Dereck Muzira will affirm his petition and give general evidence of difficulties in campaigning, general violence and problems with polling agents …. (My underlining)

The trial began on 6 March 2001. It was not until 8 March 2001 that affidavits sworn by Arumigio Jimu, Muradzi Tafirenyika Tafa and Bernignous Jacha (referred to collectively as “the additional affidavits”), were filed, all deposing to the occurrences at a meeting which took place at Cornerstore on 27 April 2000, and which I will refer to as “the Cornerstore meeting”.

Indeed, at the commencement of the hearing, on 6 March 2001, in his opening address to the court a quo, the respondent’s legal practitioner said:

“ADV. MATINENGA: My Lord you would have noticed that the papers in this petition are slightly different from the previous petition which was before you …”. (My underlining)

There appears, surprisingly, to have been no objection to the production of the additional affidavits, although they contained evidence that had not been pleaded in the petition presented to the court in terms of s 132 of the Act.

As will be seen below, the respondent’s oral evidence centred on the Cornerstore meeting. His evidence was as follows -

Matthew Rukwata (“Rukwata”), the designated candidate for the MDC in the Mutoko South Constituency, was kidnapped by war veterans on 24 April 2000. The respondent therefore volunteered to be the MDC candidate there. He was asked by an informant to go to Mutoko to facilitate the release of Rukwata on 26 April 2000. He was advised that a ZANU (PF) rally was being held at Cornerstore in Mutoko South on 27 April 2000. On that date he set out to attend the rally, accompanied by three men. They left their vehicle in Murehwa, for fear of its being burnt, and boarded lifts to Cornerstore, a shopping centre in the Muyuyu resettlement area. On arrival there they found people gathering for the rally. There were some six hundred people at the rally and the Governor for Mashonaland East addressed the crowd in anti-MDC sentiments. The purpose of the meeting was to ascertain whether the resettled farmers in the area were being sufficiently provided with tillage necessities. After addressing the tillage issue, the Governor spoke of the MDC, which he “aligned with the white people”.

The Governor then gave the appellant an opportunity to speak. The appellant chanted the party slogan and addressed the crowd on the tillage program. She then “ventured into political issues about MDC”. He was:

“… very much frightened by the manner in which she was uttering at this meeting such that I nearly left the rally before it was over. She was saying that the MDC was the white man’s party and that anyone who will be supporting MDC will be killed. She was urging ZANU (PF) supporters that should they find out that (if there) was anybody supporting MDC (he) should be killed.”

While the appellant was addressing the people, a Nissan Hi Rider truck from the District Development Fund (“DDF”) arrived with about fifteen young men, two of whom were in handcuffs. The appellant continued addressing the crowd. When she was finished, the delegation from Mutoko stood up, including the two men in handcuffs, who were introduced to the Governor and the appellant. Rwodzi, the person who had brought these young men from Mutoko, said “we want to show you what (we) will do on apprehending the enemies from the MDC”. The meeting was told “that the two young men who had been apprehended were supporting the white man’s party”. The appellant then stood up and chanted a slogan, saying “down with them” and they “should be struck with a knobkerrie on the head”. She then said that they (ZANU (PF)), are the people who had liberated this country and that she would give jobs to these people so they would look after the country which they had liberated.

The two young men were made to sit and at that moment another truck arrived with two young men in handcuffs and fifteen others. These two young men were made to stand up and the same procedure was followed as with the other two. When they introduced them to the Governor and the appellant, they said “these young men from MDC will never been seen again …”.

The young men were made to sit on the ground and a war veteran, Gwishiri, complained to the appellant that there was no food at the base camp. At this the appellant, the Governor and others donated some $5 000 or so. In answer to a question by the court, the respondent said that as the appellant contributed the money she said “we have heard your request and we have given you money, we want you to carry out the job which we had assigned you to do”.

The respondent later learned the identity of the men who were in handcuffs (from his informant) as being Matthew Rukwata and Arumigio Jimu.

It was put to the respondent in cross-examination on this incident that his evidence was a recent fabrication since none of it had been included in the petition. The respondent’s reply to the question as to why he had not alleged in the petition that the appellant had urged “beat the people with knobkerries” was:

“I think I have clearly indicated that if at all I wanted to write all the details I could have written books and books. In this regard our lawyers advised us to touch on pertinent issues and that the other evidence would be adduced in court.”

One asks what was more pertinent to the respondent’s case than the damaging occurrences and utterances alleged by the respondent to have taken place at the Cornerstore meeting.

That notwithstanding, at the end of the evidence, the issue for determination by the court a quo was whether the war veterans were the agents of the appellant and whether the appellant was therefore responsible for the corrupt practices found by the court to have been committed by them.

The learned Judge, relying on the evidence of the respondent and his witnesses of the occurrences at the Cornerstore meeting, found that the war veterans were the agents of the appellant and that the appellant was accordingly responsible for the corrupt practices proved in evidence to have been committed by them.

In relying on this evidence, the learned Judge erred, firstly because the issue of agency was not pleaded and secondly, the evidence which was relied upon to establish the fact of agency was unreliable.

THE ISSUE OF AGENCY – THE PLEADINGS

It is common cause that the issue of agency was not pleaded in the petition. The learned judge made that finding in the course of his criticism, already quoted above, of the manner in which the petition was presented.

The evidence of the respondent’s witnesses on the violence perpetrated on them and on other followers of the MDC by war veterans was not disputed. The learned judge found as a fact that corrupt practices in the form of undue influence had prevailed extensively during the election but that no corrupt practice had been proved in evidence to have been committed by or with the knowledge and consent of the appellant. He went on to find, however, that:

“… the agency of the war veterans at Mutoko base camp was such as to render the respondent responsible for all that they did and for which the respondent is answerable in law”.

The issue which must be determined in this appeal is whether the court is endowed with power to determine an election petition on grounds other than those pleaded in the petition at the time it was presented to the High Court and served on the party against whom the petition is being brought.

In Mfandaedza Hove v Joram Gumbo SC 143/04 (not yet reported) MALABA JA remarked at p 19 of the cyclostyled judgment:

“It appears to me the learned judge misdirected himself in accepting the proposition that he could invalidate the election on general violence established by evidence in the course of the trial of the petition when it was not pleaded as a cause on which the election of the respondent was challenged. A petition is not a common law cause of action. It is a special procedure created by statute. The law governing the manner and grounds on which an election may be set aside must be found in the statute and nowhere else.”

Section 132 of the Act provides that:

“(1) A petition complaining of undue return or an undue election of a Member of Parliament by reason of want of qualification, disqualification, corrupt practice, illegal practice, irregularity or other cause whatsoever may be presented to the High Court …”.

As HLATSWAYO J remarked in Mfandaidza Hove v Joram Gumbo HH 43/2002:

“… my reading of the above provision is that it sets out wide grounds on the basis of which the election petition may be brought. However, it stands to reason that any petitioner must indicate specifically the grounds upon which she or he requires the respondent’s election to be voided. Further, the very fact that the provision is so widely framed as to include ‘any other cause whatsoever’, though of course the ambit of this phrase must be understood in the light of the maxim, ejusdem generis, is additional reason to require that the petitioner should plead his case with specificity so that the respondent is put on sufficient notice concerning the case he has to answer. It is not fair for any respondent to be dragged into court without being informed of the basis upon which his election is being challenged.

Accordingly, when s 136(3) states, as it does, that at the conclusion of an election petition, the court shall determine whether the respondent was duly elected, it is clear that such a decision must be arrived at in terms of what is specifically pleaded in the petition and not on what was revealed by chance in the course of the inquiry.”

Thus, an election petition must contain the essential averments on which the petitioner intends to rely, as well as the relief sought. It is impermissible for the petitioner to allege one cause of action in his petition and then rely on a different one at the trial. The respondent is entitled to know at the time when the petition is served on him what case he is being called upon to meet. After all, the grounds on which it is sought to set an election aside must be clear to the petitioner at the time he files his petition.

The respondent relied at the trial on corrupt and illegal practices alleged to have been committed by war veterans who, so it was alleged, were shown on the evidence to be agents of the appellant. The learned judge found that the corrupt and illegal practices complained of were committed by or with the knowledge and consent or approval of the agents of the appellant in terms of s 124(a) of the Act, which provides as follows:

“124 When election void owing to corrupt or illegal practices

Subject to sections one hundred and twenty, one hundred and twenty-five and one hundred and twenty-six –

(a) if upon the trial of an election petition the High Court certifies to the Minister that any corrupt practice or illegal practice has been committed with reference to the election the subject of the petition, by or with the knowledge and consent or approval of the candidate returned at that election, or with the knowledge and consent or approval of any of his agents, the election of that candidate shall be void, and a fresh election shall thereupon be held;”. (My underlining)

As I have stated above, not only was the evidence of agency suspect and unreliable by reason of the conflict in the evidence of the witnesses but, as the learned judge found, there was no averment in the petition that the war veterans who allegedly committed the corrupt practices were agents of the appellant. That being so, the learned judge ought to have held that the petition disclosed no cause of action. Compare Mithilesh Kumar v Venkataraman [1989] LRC (Const.) 1.

The cause of action in an electoral petition being derived from statute, the court has no power to exempt a petitioner from strict adherence to the terms of the statute. In Nath v Singh and 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.”

For the above reasons, the petition ought to have been dismissed.

THE ISSUE OF AGENCY – THE EVIDENCE

The evidence of the respondent has been set out above.

Muradzi Tafirenyika Tafa told the court that he is the vice-chairman of the MDC Branch in Mutoko South. He attended the meeting called by ZANU (PF) at Cornerstore. When he arrived at the meeting after 9 am the regional director of DDF was addressing the meeting about the tillage program. Then the leader of the war veterans at Base 1 camp, Mutoko, stood up and requested the four young men to stand up. They were all from Mutoko. Two came from the same village as he did. He said that when Rwodzi stood up, he turned to the appellant and “indicated to her that the four young men were rebels and that they were teaching them in order for them to teach other young men …”. He then ended up by saying to the appellant: “As regard (sic) to the job you have assigned us to do, the job is continuing very well”. He further told her that they needed finances for food, fuel and transport for the base. The appellant then stood up and chanted slogans which frightened people there. She said: “down with MDC” and “strike them with knobkerries on the head”. She said “down with MDC” meant that an MDC member should be buried down. After chanting the slogans, she thanked Rwodzi for the job they were doing and urged them to go forward. “She also urged Rwodzi to open up more base camps in other areas so that nothing will be said about MDC in their area”. The appellant then contributed some one hundred dollar notes which she put in a hat and other people followed. The witness left before the meeting was over because “since I was now an MDC member it was impossible for me to remain at this meeting because the focus of the meeting had now turned to political issues against the MDC so I became afraid of victimising (sic)”.

In cross-examination he said:

“Matthew Rukwata did not say anything (at the meeting) but it was Rwodzi, the war veterans leader who announced to the crowd there that four men had surrendered and they had renounced their membership to MDC and the (appellant) indicated that she was going to invite the crew from ZBC to give coverage to that.”

Matthew Rukwata also gave evidence. His supporting affidavit was part of the petition. In his affidavit he averred that he was an aspiring candidate in the Mutoko South area but that he was forced to resign because of intimidation and violence from ZANU  (PF) supporters. He mentioned his abduction on 24 April 2000 and subsequent detention at Mutoko base for three weeks. He mentioned that he was harassed by being made to denounce the MDC and its leaders. No mention was made of the incident at Cornerstore.

However, in his evidence before the court, he told of his attendance at that meeting. He was asked to stand by Rwodzi in the company of his “three colleagues”, Almegio Jim and two others from Mutoko North Constituency. Rwodzi introduced him as an “MDC candidate who was carrying out a training programme for people in Mutoko”. He was then asked to sit down. Rwodzi then requested for financial assistance to provide food for the maintenance of the persons at the base camp. A collection was taken up while a hymn was being sung. He mentioned that the appellant was chanting slogans, i.e., “down with MDC” and “strike them with a knobkerrie on the back of their heads”. He arrived there at 12.30 pm and the meeting dispersed at 1.45 pm. He then got into the Nissan Hi Rider motor vehicle in order to be driven back to the base camp. He was not handcuffed. There was television coverage of the incidents of MDC people who had defected to ZANU (PF). That night at about 10.30-11 pm he was among those who went to Tafa’s homestead. He was under guard so he could not dissociate himself from the group. He managed to run towards the highway to Mutoko and back to the base camp. He finally escaped from his captors when they left him at his homestead to find his bicycle. He was to take the bicycle to them when he found it.

Arumigio Jimu, whose evidence the learned judge accepted as being reliable, in his evidence made a brief reference to the meeting at Cornerstore, saying that he, Rukwata and two others were paraded before the rally as persons “who had gone astray”. It was then said that the MDC members should be clubbed. A question as to who said so brought the answer that it was the appellant. The rest of his evidence related to the activities of the persons at the base camp, including himself and the other three MDC members – for example, the attack on village 16, Huyuyu Resettlement, and a certain quarry where they recovered MDC T-shirts and membership cards from the members of the MDC and assaulted them.

It is to be noted from this witness’s evidence and that of Rukwata that he and the other MDC youths were introduced as persons who had gone astray but returned to ZANU (PF). They were not in handcuffs. Indeed Rukwata’s evidence was that he was introduced as “carrying out a training program in the area”. Their evidence of the incident differed substantially from that given by the respondent. From their account of the events, there was nothing which would have alerted the respondent to the fact that they were not at the Cornerstore meeting of their own volition.

At the trial, an article from the Daily News newspaper dated 14 August 2000, about three weeks after the petition was filed, was produced by the respondent. It spoke of the murders of Mationa Mashaya and his son, Onias Mashaya, and placed the responsibility for the murders on the appellant who, it alleged, chanted slogans at the Cornerstore meeting, inciting her followers to be violent against the MDC members.

One common thread running through the evidence of those who gave evidence of the occurrences at the Cornerstore meeting is the allegation that the appellant chanted the slogan which, when translated, meant that the MDC members should be clubbed on the head with knobkerries. The newspaper article was produced by the respondent, no doubt, in an attempt to prove that the appellant made the utterances attributed therein to her but, judging by the late hour at which the additional affidavits were produced, it would require little imagination to conclude that they were prompted by the newspaper article.

The material inconsistencies in the evidence of the petitioner and his witnesses, as well as the date and contents of the newspaper article, ought to have placed the learned judge on his guard against possible fabrication of evidence. However, despite the inconsistencies, the learned judge proceeded on the basis that the evidence led had established facts on which he could find that the appellant had accepted the agency of the war veterans in running of the Mutoko base camp and that the appellant was accordingly answerable at law for the corrupt practices committed by the war veterans for the purposes of s 124 of the Act.

In this regard the learned judge also erred in basing his conclusions on the unreliable evidence adduced by the respondent.

Accordingly, the appeal is allowed with costs.

CHIDYAUSIKU CJ: I agree.

MALABA JA: I agree.

Gambe & Associates, appellant's legal practitioners

Honey & Blanckenberg, respondent's legal practitioners