Golden Rule (INTERPRETATION) https://old.zimlii.org/taxonomy/term/10716/all en Ngaru v Kusano (HH 265-21, HC 6160/20 Ref Case No. HC 2760/20) [2021] ZWHHC 265 (21 May 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/265 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 265-21</p> <p>HC 6160/20</p> <p>Ref Case No. HC 2760/20</p> <p>ESTHER NGARU</p> <p>versus</p> <p>LIVINGSTONE KUSANO</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZOFA J</p> <p>HARARE, 12&amp; 28 May 2021</p> <p> </p> <p> </p> <p><strong>Opposed Application- Special Plea</strong></p> <p> </p> <p><em>E.T Muhlekiwa</em>, for the plaintiff</p> <p><em>R. Gasa</em>, for the defendant</p> <p> </p> <p>            MUZOFA J: The plaintiff sued out summons for the division of immovable property acquired by the parties during the subsistence of their tacit universal partnership. Alternatively, the division of the immovable property acquired during the subsistence of the parties’ unregistered customary law union based on unjust enrichment. In opposition to the claim the defendant filed a special plea, that the claim is prescribed.</p> <p>The plaintiff and the defendant were living together as husband and wife in terms of an unregistered customary law union from December 1982 when lobola was paid. Three children were born of the union.  In 2010 the defendant gave the plaintiff “gupuro” a token of rejection thereby terminating the union. There is no dispute that this is when the plaintiff’s cause of action arose.</p> <p>            During the subsistence of the union the parties acquired both movable and immovable property. In order to obtain her share of the property, the plaintiff approached the community court in Bulawayo for division of property. She was awarded by consent an immovable property known as No 6 Birkley Street North End “the property”. The defendant was awarded No 32 Wigton Road, Avondale in Harare. Both properties were registered in the defendant’s name. When the defendant delayed in causing the transfer of the property, the plaintiff approached this court to compel transfer. The matter was heard and the court dismissed the application and set aside the community court order<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>. The court found that the community court had no jurisdiction to dissolve a customary law union neither could it share the “matrimonial” property because there was no marriage recognized at law between the parties. This was on 15 October 2020, some 7 years after the order of the community court. The plaintiff was undeterred, faced with this new hurdle, she did not throw in the towel. The plaintiff issued out summons as already set out.</p> <p>            In opposing the claim , the defendant filed a plea in bar that the claim is prescribed in terms of s 14 and s 15(d) of the Prescription Act [<em>Chapter 8:11</em>] (hereinafter referred to as the Act). The submission is that, the claim is founded in general law. Tacit universal partnership and unjust enrichment are general law concepts. As such prescription is applicable. The declaration is clear that the unregistered customary law union between the parties was terminated in 2010. The court process in the community court did not interrupt the running of prescription since the judgment was subsequently set aside. The summons in the main matter was issued in October 2020 almost 10 years after the cause of action arose.</p> <p>            In response, the plaintiff insisted on the claim. It was argued that the cause of action is based on the unregistered customary law union, pleading tacit universal partnership or unjust enrichment is for purposes of division of property only. In reality the claim is founded on customary law and in terms of s 3(2) of the Act prescription does not apply and referred to case authority for that proposition <a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a> where the court confirmed the position of the law that prescription does not apply where the rights and obligations of the parties are determined in terms of customary law.</p> <p>The issue for determination is whether prescription applies in the circumstances of this case. This is a matter of interpretation of statutes. The golden rule of interpretation is that where the language of the statute is clear and unambiguous, the words used ought to be given their ordinary grammatical meaning. However where the language used is ambiguous and lacks clarity or may result in an absurdity, the court will interpret it and give it meaning. In the event of an absurdity the court is required to give a meaning that does not result in an absurdity because it is presumed that the legislature in enacting any statute does not intend an absurdity<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3">[3]</a>.</p> <p>In <em>Coopers and Lybrand and Others v Bryant</em><a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4">[4]</a>  the court noted,</p> <p>‘According to the ‘golden rule’ of interpretation, the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity, or some repugnancy or inconsistency with the rest of the instrument”</p> <p> </p> <p>I find no ambiguity in the language used in s3 (2) of the Act. The intention of the legislature can easily be ascertained from the ordinary and grammatical meaning of the language used.</p> <p> Section 3(2) of the Act reads:</p> <p>"In so far as any right or obligation of any person in relation to any other person is governed by customary law this Act shall   not apply."</p> <p> </p> <p>            The section deals with the applicable law in the determination of the parties’ rights and obligations. It is the applicable law therefore that determines whether the provisions of the Act are applicable or not. The applicable law is determined by the nature of the pleadings through the cause of action.</p> <p>I was urged to consider the genesis of the right and conclude that the cause of action is based on customary law therefore the provisions of the Act do not apply. There is a difficulty in the submission. The plaintiff’s cause of action is based on tacit universal partnership and unjust enrichment. The plaintiff cannot rely on the customary law union since the cause of action is not based on the customary law union. Section 3 (2) of the Act is very clear and allows of no other interpretation. In other words where customary law is applied in the resolution of a dispute, the provisions of the Act will not apply. The opposite is equally true, where general law is applicable in the determination of the parties’ rights the provisions of the Act will apply. This interpretation resonates with reason since the concept of prescription is unknown under customary law.</p> <p>The plaintiff and the defendant were married in terms of an unregistered law union and therefore customary law would apply in the division of the property they acquired together. However in light of s3 of the Customary Law and Local Courts Act (Chapter 7:05), a claim on a proper cause of action under general law can be made. Customary law applies in civil cases where, regard being had to the nature of the case and the surrounding circumstances, it appears just and proper that it should apply. It does not apply if the justice of the case otherwise requires. Where the application of customary law would bring injustice, the general law will apply. Indeed our courts have applied general law in many cases where the plaintiff has properly set out her cause<a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5">[5]</a>. Thus even if parties are married in terms of an unregistered customary law union, their rights and obligations can be determined applying general law provided the cause of action is properly pleaded.  </p> <p>The plaintiff’s cause of action as set out in the summons is</p> <ol> <li>Sharing of immovable property that was acquired by the parties during the subsistence of their universal partnership alternatively</li> <li>The plaintiff claims against the defendant sharing of immovable property acquired during the subsistence of an unregistered customary law union between the parties based on the principle of unjust enrichment.</li> </ol> <p>The pleaded causes of action are tacit universal partnership and unjust enrichment. These two concepts are unknown under customary law. They are common law concepts. The <em>Pasipanodya</em> case (supra) does not assist the applicant. In that case, the cause of action was based on the unregistered customary law union. The cause of action was not based on general law as set out in the plaintiff’s summons.</p> <p>In submitting that the provisions of the Act do not apply in this case, the plaintiff is blowing hot and cold. In pleading general law concepts as causes of action, she wants general law to apply in her circumstances. The plaintiff dedicated some paragraphs in her founding affidavit narrating how they lived a life that deserves the application of general law. It would seem that the plaintiff wants a restricted application of general law. If general law applies in the sharing of the parties’ property, therefore all the general law principles must apply. It would be an absurdity and an affront to the proper administration of justice to selectively apply the principles of general law by applying only the two concepts of general law as pleaded by the applicant and turn a blind eye to other general law principles. I was not given any authority for such a proposition which l believe maybe problematic.</p> <p>The court fully appreciates the plaintiff’s unfortunate circumstances. The status of a customary law union has not developed in light of modern trends .The legislature has not intervened to properly guide the parties on how to proceed in the event of termination of the union despite numerous calls from different sections of society<a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6">[6]</a>.As a result parties grope in the dark in pursuit of a share in their hard earned properties. While they knock different doors time lapses as in this case. The plaintiff held on to a nullity from 2012 until 2020. Surprisingly the defendant who initially consented to the division of property now raised a sword to destroy the plaintiff’s claim.   </p> <p>            As observed in the <em>Zembe</em> case (supra), it is for the litigant through their legal practitioners to approach the court and properly plead their cases. In this case even if the plaintiff properly pleaded her case, the claim had prescribed. This is so because in the determination of the parties’ rights and obligations general law shall  apply. As such the provisions of s3 (2) of the Prescription Act do not apply.</p> <p>            It is common cause that the summons was issued after the prescriptive period. It was also conceded that the litigation in the community court did not interrupt the running of prescription. On that basis the special plea must succeed.</p> <p>                        The defendant seeks costs on a higher scale. I do not find any justification for costs on a higher scale. The plaintiff’s claim was justified considering that the matrimonial property was not shared except for the technicality of prescription.</p> <p>           </p> <p>Accordingly the special plea is upheld</p> <p> </p> <p>            The plaintiff’s claim dismissed with costs.</p> <p> </p> <p> </p> <p><em>Gasa-Nyamadzawo &amp; Associates</em>, Plaintiff’s Legal Practitioners</p> <p><em>Muhlekiwa Legal Practice</em>, Defendant’s Legal Practitioners</p> <p>           </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> <em>Esther Kusano (nee Ngaru)</em> v <em>Livingstone Kusano and Another</em> HH 647/2</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> <em>Pasipanodya </em>v <em>Muchoriwa</em> 1997 (2) ZLR 182 (SC)</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> Endeavour Foundation and Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S) AT P356F-G</p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> 1995 (3) SA 761 (A) at p 767</p> <p><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5">[5]</a> Jengwa v Jengwa 1999 (2)ZLR 121 (H),Mtuda v Ndudzo 2000 (1) ZLRr 710 (H)</p> <p><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6">[6]</a> Jenke v Zembe</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/265/2021-zwhhc-265.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24020">2021-zwhhc-265.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/265/2021-zwhhc-265.pdf" type="application/pdf; length=354685">2021-zwhhc-265.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/enrichment">ENRICHMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/unjust-enrichment">Unjust enrichment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/interpretation-statutes">INTERPRETATION OF STATUTES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/ambiguity-interpretation">Ambiguity (INTERPRETATION)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/golden-rule-interpretation">Golden Rule (INTERPRETATION)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/partnership">PARTNERSHIP</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/tacit-universal-partnership">Tacit universal partnership</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1975/31">Prescription Act [Chapter 8:11]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1990/2">Customary Law and Local Courts Act [Chapter 7:05]</a></div></div></div> Thu, 10 Jun 2021 07:11:13 +0000 Sandra 10040 at https://old.zimlii.org Kambarami v 1893 Mthwakazi Restoration Movement Trust And 4 Others (SC 66-21, Civil Appeal No. SCB 25/19) [2021] ZWSC 66 (27 May 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/66 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>Judgment No. SC 66/21</strong></p> <p><strong>Civil Appeal No. SCB 25/19</strong></p> <p><strong>REPORTABLE</strong><strong>        (63)</strong>                 </p> <p> </p> <p><strong> TINASHE     KAMBARAMI</strong></p> <p><strong>vs</strong></p> <ol> <li><strong>    1893     MTHWAKAZI     RESTORATION     MOVEMENT     TRUST     (2)     NOMALANGA     DABENGWA     (3)     CITY     OF     BULAWAYO     (4)     ZIMBABWE     ELECTORAL     COMMISSION    (5)     MOVEMENT     FOR     DEMOCRATIC     CHANGE     ALLIANCE</strong></li> </ol> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GUVAVA JA, MATHONSI JA &amp; KUDYA AJA</strong></p> <p><strong>BULAWAYO, 20 JULY 2020 &amp; 27 MAY 2021</strong></p> <p> </p> <p> </p> <p> </p> <p><em>S. M. Hashiti</em>, for the appellant</p> <p><em>G. Nyoni</em>, for the first and second respondents</p> <p>No appearance for the third, fourth and fifth respondents</p> <p> </p> <p><strong>GUVAVA JA</strong>:</p> <p><strong>INTRODUCTION</strong></p> <ol> <li>This is an appeal against the whole judgment of the Electoral Court sitting in Bulawayo dated 29 August 2019.  The court granted a declaratory order sought by the first and second respondents (‘the respondents’) that the appellant’s election was in contravention of the Electoral Act [<em>Chapter 2:13</em>] and as a result set aside the appellant’s election as councilor for Ward 3 in Bulawayo.</li> </ol> <p><strong>BACKGROUND FACTS</strong></p> <ol> <li>The background to the matter may be summarized as follows: The appellant was elected councilor for Ward 3 Bulawayo.  The first respondent is a Trust, established in terms of the law in Zimbabwe. Its objectives are to promote economic and sound development in Matabeleland and Midlands.  The second respondent is a registered voter in Ward 3 Bulawayo. The third respondent is a local authority operating in terms of the Urban Councils Act [<em>Chapter 29:15</em>]. The fourth respondent is an independent commission established in terms of s 238 of the Constitution of Zimbabwe. The fifth respondent is an alliance of political parties. </li> <li>On 14 June 2018, following a proclamation by the President of the Republic of Zimbabwe in terms of s 144(2) of the Constitution as read with s 38(1)(c)of the Electoral Act [<em>Chapter 2:13</em>] (the Act), the Nomination Court sat and accepted the appellant’s nomination papers. This resulted in the appellant being registered as a candidate to contest as a councilor for ward 3 in Bulawayo under the banner of the fifth respondent. </li> <li>On 27 June 2018, two weeks after the appellant’s nomination, he was arraigned before the Bulawayo Magistrates Court. He was charged with the crime of theft as provided for in s 113 of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>]. The appellant pleaded guilty to the offence and was fined US$80.00 or in default of payment 18 days imprisonment.</li> <li>On 30 July 2018 the elections were held and on 2 August 2018 the appellant was declared the duly elected Councilor for Ward 3 Bulawayo.  Following the election, the first and second respondents made an application before the Electoral Court seeking a <em>declaratur</em> to set aside the election of the appellant on the ground that he was disqualified from holding office following his conviction.</li> </ol> <p> </p> <p><strong>PROCEEDINGS <em>A QUO </em></strong></p> <ol> <li>The application was opposed by the appellant who argued that the first and second respondents did not have <em>locus standi</em> to bring the application before the court and that the first and second respondents had filed a disguised election petition in the name of an application. The appellant also argued that the court did not have jurisdiction to entertain the application as he could only be removed from office in accordance with s 278 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 (‘the Constitution’).</li> <li>In granting the application, the court found that the Electoral Court had the power to grant an application for a <em>declaratur</em> as long as the application related to the electoral process. On the argument that the court did not have jurisdiction to set aside the nomination since the respondents had not filed an election petition, the court found that it had the requisite jurisdiction since it was not being called upon to remove the appellant from office, but to declare him as a disqualified person to hold office by virtue of his conviction. The court also found that the first and second respondents were interested parties and hence were qualified to bring the application.</li> </ol> <p>In the result the court made the following order:</p> <p>“1.      It be and is hereby declared that the election of first respondent as councilor for ward 3 in Bulawayo was in contravention of s 119(2)(e) of the Electoral Act [<em>Chapter 2:13</em>] following his conviction of the offence of theft at the Bulawayo Magistrates’ Court under Criminal Record Book (CRB) number 1981/18 on 27 June 2018, and it is therefore set aside on account of it being null and void and his unsuitability to hold public office.</p> <ol> <li>That first respondent pays costs of suit on the ordinary scale.”</li> </ol> <p> </p> <p>Dissatisfied by the decision of the court <em>a quo</em> the appellant noted this present appeal under the following grounds:</p> <p>“1.     The Court <em>a quo</em> erred to hear and determine this matter on the basis that the same was not an election petition filed under s 168 of the Electoral Act [<em>Chapter 2:13</em>] nor was it at law an appeal application or petition in terms of the same Act.</p> <ol> <li>The Court <em>a quo</em> erred as a question of law in failing to hold that the first respondent a Trust had no legal capacity of suing and being sued and more importantly in failing to hold that the same had no <em>locus standi</em> or legal basis of bringing the application.</li> <li>The Court <em>a quo</em> erred to hold that the second respondent Nomalanga Dabengwa did not have <em>locus standi</em> to approach the court and could only have done so through an election petition in terms of s 168 of the Electoral Act of which the application in the court <em>a quo</em> was not won (<em>sic</em>).</li> <li>The Court <em>a quo</em> erred in its interpretation of s 119(2) of the Electoral Act.</li> <li>More importantly the court <em>a quo</em> failed in not holding that once a person had been lawfully nominated, such as the appellant he could only be removed from the office in terms of s 278 of the Constitution of Zimbabwe.”</li> </ol> <p> </p> <p>8.         Although five grounds were raised the appellant argued the appeal on only one ground which he submitted would resolve the dispute between the parties. The issue was whether or not the electoral court had the jurisdiction to grant the declaratory order sought by the first and second respondents.</p> <p> </p> <p><strong>SUBMISSIONS BEFORE THIS COURT</strong></p> <ol> <li>At the commencement of the hearing, the appellant placed before the Court a copy of a judgment handed down on 18 June 2020 by Makonese and Mabhikwa JJ under case number HCA 05/19 and judgment number HB 119/20 being an appeal made by the appellant against both his conviction and sentence. The judgment was to the effect that the appeal had been allowed. This resulted in the setting aside of the appellant’s conviction and sentence. I hasten to state that the judgment of the acquittal of the appellant was made part of the record by consent of the parties. However in my view the judgment setting aside the appellants conviction, does not take the appellants case any further as this was only granted after he had been elected into office.</li> </ol> <p> </p> <ol> <li>Counsel for the appellant, Mr. <em>Hashiti</em> submitted in the main that the court <em>a quo</em> erred in granting the declaratory order sought by the first and second respondents as it had no power to issue such an order. It was counsel’s argument that s 161 of the Electoral Act sets out the powers that the court can exercise. The Electoral Act does not grant the court the power to issue a <em>declaratur</em>. It was also his submission that the court erred in resorting to s 14 of the High Court Act [<em>Chapter 7:06</em>] (‘the High Court Act’) in granting the <em>declaratur </em>when the application had been made in terms of the Electoral Act.</li> </ol> <p> </p> <ol> <li>On the other hand, counsel for the respondents, Mr <em>Nyoni</em>, argued that the court <em>a quo</em> did not misdirect itself when it granted the declaratory order sought by the respondents. It was counsel’s argument that s 161 of the Electoral Act gave the court exclusive jurisdiction over all electoral matters. It was also argued that the Electoral Court, in carrying out its functions, could exercise the same powers as the High Court. Thus, it had the power to grant the <em>declaratur</em> sought by the respondents. On this basis the respondent submitted that the appeal must be dismissed with costs.</li> </ol> <p> </p> <p><strong>APPLICATION OF THE LAW TO THE FACTS</strong></p> <ol> <li>In finding that it had jurisdiction to deal with the application for a <em>declaratur</em> the court <em>a quo</em> relied on s 161 (2) of the Act. The court made the following remarks:</li> </ol> <p>“The Electoral Court now has powers similar to those exercised by the High Court and that this Court sitting as it does as a division of the High Court, otherwise known as the Electoral Court, can now properly sit and entertain an application for a Declaratur for as long as, in my view that matter is in relation to the Electoral Act and election processes.”</p> <p> </p> <ol> <li>The Electoral Act was promulgated on 1 February 2005 as Act 25/2004. Section 161 of that Act gave the court its jurisdictional powers and provided as follows:</li> </ol> <p>“(1)     There is hereby established a court, to be known as the Electoral Court for the purpose of hearing and determining election petitions and other matters in terms of this Act.</p> <ol> <li>The Electoral Court shall have no jurisdiction to try any criminal case.</li> <li>The Electoral Court shall be a court of record.”</li> </ol> <p> </p> <ol> <li>In 2012 the Electoral Act was amended by Act 3 of 2012. Under the amendment the jurisdictional powers of the court were broadened under s 161. Section 161 now reads as follows:</li> </ol> <p>“<strong>161 Establishment and jurisdiction of Electoral Court</strong></p> <p>(1)          There is hereby established a division of the High Court, to be known as the Electoral Court, which shall be a court of record.</p> <p>(2)          The Electoral Court shall have exclusive jurisdiction—</p> <p>(<em>a</em>) to hear appeals, applications and petitions in terms of this Act; and</p> <p>(<em>b</em>) to review any decision of the Commission or any other person made or purporting to have been made under this Act; and shall have power to give such judgments, orders and directions in those matters as might be given by the High Court:</p> <p>Provided that the Electoral Court shall have no jurisdiction to try any criminal case.</p> <p>(3)       Judgments, orders and directions of the Electoral Court shall be enforceable in the same way as judgments, orders and directions of the High Court.”</p> <p> </p> <p>15.     Section 161 gives the court exclusive power to deal with all issues pertaining to election processes. The court can hear appeals, applications and petitions within the confines of the Act. It can also review decisions of the commission and shall grant such orders, judgments and directions as may be granted by the High Court in such matters.  It is a creature of statute and its powers are confined to the four corners of the Act. In discussing the jurisdiction of the Electoral Court UCHENA J (as he then was) in <em>Mliswa v The Chairperson Zimbabwe Electoral Commission</em> HH 586-15 stated the following:</p> <p>“The Electoral Court now has exclusive jurisdiction, which it did not have in 2008. The word “exclusive”, means this court, now has a domain over which, it does not share its jurisdiction with any other court. That domain is marked by s 161 (2) (a) and (b), which caps it all by adding that this court now has powers similar to those exercised by the High Court, when, it determines electoral issues. The combination of exclusive jurisdiction and the addition of powers similar to those exercised by the High Court means this court now enjoys unlimited jurisdiction over all electoral cases, except criminal cases and cases, which have been specifically, allocated to other courts. Applications are now specifically mentioned as falling within the Electoral Court’s jurisdiction. In 2008 they fell under “other matters”. The Electoral Court now has “power to give such judgments, orders and directions in those matters as might be given by the High Court”. The granting to the Electoral Court of exclusive jurisdiction, and power to give such judgments, orders and directions in those matters as might be given by the High Court, is a clear enhancement of the Electoral Court’s jurisdiction after the Makone case (<em>supra</em>).”</p> <p> </p> <ol> <li>There can be no doubt that the amendment to s 161 of the Electoral Act by Act 3 of 2012 widened the powers of the court. The court is no longer limited to hearing petitions only but can deal with appeals and applications in similar ways as they are dealt with by the High Court. The Electoral Act provides that the court can give judgments orders and directions as may be given by the High Court. The Act however does not specifically state whether or not the court has the power to grant declaratory orders.</li> </ol> <p> </p> <ol> <li>Both the Labour Court and Electoral Court share the characteristic of being specialized courts which exercise jurisdiction within the confines of enabling Acts of Parliament. This Court faced with a similar question of whether or not the Labour Court has jurisdiction to grant a declaratory order in <em>Stylianou and Others v Mubita and Others</em> SC 7/17 at page 7 to 9 reasoned as follows:</li> </ol> <p>“Section 89 of the Labour Act determines the functions, powers and jurisdiction of the Labour Court. The relevant section is s 89(1)(a) which reads as follows:</p> <p>‘89 Functions, powers and jurisdiction of Labour Court</p> <p>(1)     The Labour Court shall exercise the following functions—</p> <p>(a) hearing and determining applications and  appeals in terms of this Act or any other enactment; …’</p> <p>(b)  ……….</p> <p> </p> <p>Turning to the declaratory order granted by the court <em>a quo</em>, the same question arises as to whether or not the Labour Court has the jurisdiction to make such orders. Paragraph 4 of the provisional order attached to the urgent chamber application <em>a quo</em> read as follows:</p> <p>4.       The agreement signed by the works council will be and is hereby declared null and void. (my emphasis)</p> <p>The same question was deliberated upon by Ziyambi JA in <em>UZ-UCSF Collaborative Research Programme in Women’s Health v David Shamuyarira</em> SC 10/10 where she held as follows:</p> <p>“… nowhere in the Act is the power granted to the Labour Court to grant an order of the nature (declaratory order) sought by the respondents in the court <em>a quo</em>, nor have I been referred to any enactment. So, too, in this case, there is no provision in the Act (nor have I been referred to any provision in any other enactment) authorizing the Labour Court to issue the declaratory order sought by the respondent. It is therefore my view that the Labour Court ought to have dismissed the application for want of jurisdiction authorizing the Labour Court to grant such an order.</p> <p>It is therefore evident that the court <em>a quo </em>acted outside its jurisdiction. Consequently, the declaratory order, like the interdict it granted, was null and void.””</p> <p> </p> <ol> <li>A reading of s 161 of the Electoral Act has similar wording as found in s 89(1)(a) of the Labour Act [<em>Chapter 28:01</em>]. Section 161 clearly states that the court has jurisdiction to hear appeals, applications and petitions in terms of the Act. All matters brought before the court must be over election processes or any matter relating to elections. Likewise all issues brought before the Labour Court must pertain to labour matters only. The only difference between the two provisions which are strikingly similar is on s 161(b).</li> </ol> <p> </p> <ol> <li>Section 161(b) gives the Electoral Court extra power to grant judgments, orders and directions as may be granted by the High Court. A cursory examination of the provision suggests that it is an open ended provision which suggests that the Electoral Court is <em>at par</em> with the High Court as both courts can grant similar judgments, orders and directions.</li> </ol> <p> </p> <p> </p> <ol> <li>In discussing the principle to be applied by a court in interpreting statute, MALABA CJ in <em>Zambezi Gas (Pvt) Limited v NR Barber (Pvt) Ltd and Another</em> SC 3/20 stated the following:</li> </ol> <p>“It is the duty of a court to interpret statutes. Where the language used in a statute is clear and unambiguous, the words ought to be given the ordinary grammatical meaning. However, where the language used is ambiguous and lacks clarity, the court will need to interpret it and give it meaning. There is enough authority for this rule of interpretation. In <em>Endeavour Foundation and Anor</em> v <em>Commissioner of Taxes</em> 1995 (1) ZLR 339 (S) at p 356F-G the Supreme Court stated:</p> <p>‘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.’”</p> <p>…          </p> <ol> <li>In <em>Chihava and Others</em> v <em>The Provincial Magistrate Francis Mapfumo N.O and Another</em> 2015 (2) ZLR 31 (CC) at pp 35H-36A the Constitutional Court said:</li> </ol> <p>“The starting point in relation to the interpretation of statutes generally would be what is termed ‘the golden rule’ of statutory interpretation. This rule is authoritatively stated thus in the case of <em>Coopers and Lybrand &amp; Others</em> v <em>Bryant </em>1995 (3) SA 761 (A) at 767:</p> <p>‘According to the “golden rule” of interpretation, the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity, or some repugnancy or <em>inconsistency with the rest of the instrument</em>.’” (the underlining is for emphasis)</p> <p> </p> <ol> <li>Applying the above principles, it seems to me that an interpretation of s 161(2)(b) of the Electoral Act requires that I apply the golden rule. As a starting point an examination of the meaning of “applications” envisaged under s 161(2)(a) of the Act is imperative. Examples of applications envisaged in the Act are set out in Part X111 of the Electoral Act. The main one is an electoral petition.  There is also provision for an application made in terms of s 67A of the Act for the extension of the period for counting votes, an application made in terms of s 70(4) where the court may grant leave to any person to open any packet or box containing electoral residue and lastly an application made in terms of s 129(1) of the Act wherein the court can order a runoff of elections to be done on the same day. The case in issue was clearly not an electoral petition nor did it fall under any of the above cited examples.</li> </ol> <p> </p> <ol> <li>The examples cited above, which are aptly captured in the appellant’s heads of argument, serve to show that applications, which may be entertained by the Electoral Court, have a marked difference from those that may be heard by the High Court. This is where, in my view, the court <em>a</em> <em>quo</em> fell into error.  The High Court is a court with inherent jurisdiction. It has the power to hear all types of applications brought to it in terms of Order 32 of the High Court Rules, 1971. The types of applications that the High Court can hear are not stipulated in the Act as is the position in the Electoral Act. That the High Court has inherent jurisdiction is a common law principle which has been specifically codified by s 176 of the Constitution. The Electoral Act does not have such a provision. Thus, the High Court can grant any order as it may deem fit. This is in complete variance with the applications envisaged under the Electoral Act where there is a set remedy which the court must apply for every application before it. For example under s 67A in an application for the extension of the period for counting votes the court’s remedy is that it may for good cause shown extend the period for counting of the votes. Also, in an application made in terms of s 70(4) the court on application can order that a ballot packet be reopened. It is clear that the Electoral Act provides for situations where the court can exercise its jurisdiction and further provides for the remedies which the court can grant.</li> </ol> <p> </p> <ol> <li>The net effect is that the nature of the jurisdiction which is granted in the Electoral Act is that the court cannot stray from the provisions of the Act. It is bound to follow the powers set out in the Act. Therefore a proper interpretation of the provision that the Electoral Court can exercise the same powers as the High Court in making judgments, orders and directions in appeals, applications and petitions, can only be that such power is limited to the confines of the Act.</li> </ol> <p> </p> <p>25.     The Electoral Act does not provide nor purport to give the court the jurisdiction to grant declaratory orders. A <em>declaratur </em>by nature is a special remedy open to any individual who has an interest in any matter who seeks a declaration on existing or future rights. The power of the High Court to grant declaratory orders is entrenched in s 14 of the High Court Act. Section 14 provides as follows:</p> <p>“14. High Court may determine future or contingent rights</p> <p>The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”</p> <p> </p> <ol> <li>It seems to me that s 14 of the High Court Act is a special provision which flows from the fact that the High Court has inherent jurisdiction which the Electoral Court does not have. The remedy of a declaration of rights is a remedy which the High Court grants within its discretion. That is not a remedy which may be shared by a court which has limited jurisdiction.</li> </ol> <p> </p> <ol> <li>It could not have been the intention of the legislature to give the Electoral Court the power to grant declaratory orders through the amendment of s 161 of the Act. In my view, s 161 of the Act was amended so as to provide the Electoral Court with wider powers so that it is not restricted to dealing only with election petitions as was the position prior to 2012.</li> </ol> <p> </p> <p>28.     For the application for a declaratory order made <em>a quo</em> by the first and second respondents to have been properly before the court, it must have been provided for in the Act as can be drawn from the remarks by ZIYAMBI JA in <em>National Railways of Zimbabwe v Zimbabwe Railway Artisans Union and Others</em> 2005 (1) ZLR 341 (S) wherein the court noted the following at 347.</p> <p>“Thus, before an application can be entertained by the Labour Court, it must be satisfied that such an application is an application “in terms of this Act or any other enactment”. This necessarily means that the Act or other enactment must specifically provide for applications to the Labour Court, of the type that the applicant seeks to bring.”</p> <p> </p> <p>Before the court <em>a quo</em> could entertain the application before it ought to have been satisfied that the application fell within the confines of the Electoral Act.</p> <p> </p> <p>29.     It should also be observed that the court <em>a quo, </em>in invoking s 14 of the High Court Act, applied principles which were not argued before it by the parties. It thus again fell into error by determining a matter based on an issue which had not been placed before it. Clearly, by acting in this manner the court went on a frolic of its own.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>30.     The Electoral Court like the Labour Court does not have jurisdiction to grant declaratory orders. The Electoral Court, being a creature of statute can only deal with issues which are set out in its enabling Act.  The court <em>a quo</em> thus erred in finding that it had jurisdiction to deal with the application for a declaratory order.</p> <p>31.     The appeal must thus succeed on this basis. In respect to costs, the appellant has been successful and I find no reason why costs should not follow the cause.</p> <p> </p> <p>32.       In the result, it is accordingly ordered as follows:</p> <ol> <li>The appeal be and is hereby allowed with costs.</li> <li>The judgment of the court <em>a quo</em> is set aside and substituted with the following:</li> </ol> <p>“The application is dismissed with costs.”</p> <p> </p> <p><strong>MATHONSI JA        </strong>            I agree</p> <p> </p> <p><strong>KUDYA AJA</strong>                                    I agree</p> <p> </p> <p><em>Messrs Samp Mlaudzi and Partners</em>, appellant’s legal practitioners</p> <p> </p> <p><em>Messrs Moyo and Nyoni</em>, 1st and 2nd respondents’ legal practitioners</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/66/2021-zwsc-66.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=39967">2021-zwsc-66.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/66/2021-zwsc-66.pdf" type="application/pdf; length=469700">2021-zwsc-66.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/elections-0">ELECTIONS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-elections">Appeal (ELECTIONS)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/electoral-court-jurisdiction">Electoral Court jurisdiction</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interpretation-statutes">INTERPRETATION OF STATUTES</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/golden-rule-interpretation">Golden Rule (INTERPRETATION)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2016/7">Styllianou &amp; Others v Mubita &amp; 25 Others (SC 7/17 Civil Appeal No. SC 117/11) [2017] ZWSC 7 (29 March 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2020/3">Zambezi Gas Zimbabwe (Pvt) Ltd. v N. R. Barber (Pvt) Ltd. &amp; Another (SC 3/20 , Civil Appeal No. SC 437/19) [2020] ZWSC 03 (20 January 2020);</a></div><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2015/6">Chihava &amp; Another v Provincial Magistrate Mapfumo N.O. &amp; Another (No. 02/14) [2015] ZWCCZ 6 (14 July 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/25">Electoral Act [Chapter 2:13]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2001/222001">Urban Councils Act, 2015 [Chapter 29:15]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item even"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Tue, 08 Jun 2021 08:58:19 +0000 Sandra 10023 at https://old.zimlii.org S v Komichi (HH 369-20, APP 29/19 X Ref CRB 9633/19) [2020] ZWHHC 369 (08 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/369 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> MORGAN KOMICHI</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSAKWA &amp; MUZOFA JJ</p> <p>HARARE,10 February &amp; 8 June 2020</p> <p> </p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p> </p> <p><em>O. Shava,</em> for the appellant</p> <p><em>A. Muziwi,</em> for respondent</p> <p> </p> <p> </p> <p>MUZOFA J: On 2 August 2018 the Harare International Conference Centre, (the HICC) was the location for the announcement of the   30 July 2018 Presidential Election results. The Zimbabwe Electoral Commission (ZEC) has the prerogative to announce the results. The HICC was a hive of activity with all and sundry anxious to hear the results. The specific room designated for the purpose was full of people from different political parties, journalists and other accredited people. The process was that election results would be sent from different provinces to the HICC. After some verifications ZEC officials would make the announcements. It is not in dispute that at around 2245 hours the ZEC officials took leave of their seats and retired to a different room awaiting results from one province. While they were on adjournment, the appellant walked to the podium reserved for the ZEC officials for purposes of announcing the results and announced that the Movement for Democratic Change Alliance (MDC-A) rejected the results for noncompliance with due process. He alleged that the MDC Alliance agents had not verified the results. The appellant was immediately arrested.</p> <p>For his excursion, the appellant was subsequently charged for contravening s 186 of the Electoral Act [<em>Chapter 2:13</em>] (hereinafter referred to as the Act) for unlawfully and wilfully interrupting, disrupting and disturbing the proceedings of the announcement of the Presidential election results. He denied the charge. Despite that, after a trial he was convicted and sentenced to pay a fine of $200 in default of payment 2 months imprisonment, in addition 3 months’ imprisonment was wholly suspended for 5 years on condition he did not commit a similar offence involving a contravention of s 186 of the Electoral Act for which upon conviction a sentence of imprisonment without the option of a fine would be imposed.</p> <p>Dissatisfied with the conviction the appellant noted an appeal. The grounds of appeal were set out as follows;</p> <ol> <li>The learned magistrate <em>a quo</em>, having properly made a finding that when the appellant went to the podium, the Zimbabwe Electoral Commission officials had taken an adjournment, erred at law in finding him guilty as charged when he could not, legally and factually have interrupted, disturbed or disrupted any proceedings during such an adjournment period.</li> <li>The learned magistrate <em>a quo</em> erred at law in misinterpreting s 186 of the Electoral Act, in particular by reading the term “proceedings” out of context or contrary to the rules of statutory interpretation, thereby convicting the appellant on the basis of a conduct which is not penalized under the said section.</li> </ol> <p>            From the two grounds, the appeal turns on the interpretation of the words used in the section creating the offence. In other words the issue for determination is whether the ZEC proceedings were still in progress such that the appellant’s conduct disrupted, interrupted or disturbed them.</p> <p>            In coming to its decision, the trial court was very methodical. Having established the facts, it defined the words creating the offence. It set out the meaning of disrupt, obstruct and disturb which words generally imply some hindrance in the flow of something. Thereafter it noted that the Act did not define the term  ‘proceedings’ and the trial court opted to find the definition from <em>Black’s Law Dictionary</em> which defines proceedings as including ‘all acts and events between the time of commencement and the entry of judgment’. The trial court concluded that since the ZEC officials were still to announce results from one province the proceedings were still in progress. To that extent the appellant’s conduct disturbed or disrupted the proceedings that had not fully terminated.</p> <p> <em>Mr Shava</em> for the appellant submitted that the words   used in the Act, to disturb, interrupt and obstruct envisage an interference with a process that is ongoing. The words cannot and should not be taken to apply to situations where the process is not ongoing. There must be some prevention or hindrance of the process. In this case ZEC had taken an adjournment, no proceedings were taking place therefore factually the appellant could not have interfered with proceedings. Conversely there was no evidence to show that during such adjournment ZEC was hindered in its work. I pause here to comment that the offence is not confined to ZEC but to any proceedings taken in connection with an election. He argued that the trial court erred by defining ZEC proceedings to include the adjournment. Relying on the principles of interpretation enunciated in <em>Anna Colleta Chihava and Others v The Provincial Magistrate Francis Mapfumo<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1"><strong>[1]</strong></a> </em>he urged this court to apply the golden rule in coming to the true intention of the legislature by taking the words used in their context.</p> <p>The respondent opposed the appeal .It was submitted that the trial court was correct in its approach to use the ordinary meaning of the word ‘proceedings’ in  <em>Blacks’ Law Dictionary.</em> The meaning of a word should be ascertained from its dictionary meaning taken in its context. For this submission the respondent relied on the authority of <em>Mavengenge v Minister of Justice, Legal and Parliamentary Affairs and Others<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2"><strong>[2]</strong></a> </em> and <em>Endevour Foundation and Another v Commissioner of Taxes</em>.<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3">[3]</a> Further to that it was submitted that since the ZEC officials were still to announce some results, the proceedings had not been terminated. The appellant did not have authority to make any announcement on the day.</p> <p>            Where the interpretation of a statute is in issue, the starting point is that words should be given their ordinary grammatical meaning unless this would result in some absurdity, repugnancy or inconsistency with the statute. Both parties properly set out the law in this aspect, they diverge in its application to the facts of this case. The <em>Chihava</em> case <em>supra </em>relied on by the appellant   succinctly sets out the approach at 35F -36 E as follows;</p> <p>“The starting point in relation to the interpretation of statutes generally would be what is termed ‘the golden rule’ of statutory interpretation. This rule is authoritatively stated thus in the case of Coopers and Lybrand &amp; Others v Bryant 1995 (3) SA 761 (A) at 7;</p> <p>‘According to the ‘golden rule’ of interpretation, the language in the document is to be given its grammatical and ordinary meaning, <strong>unless this would result in some absurdity, or some repugnancy or inconsistency with the rest of the instrument</strong>. In his book ‘Principles of Legal Interpretation - Statutes, Contracts and Wills’ 1st Ed. At page 57, E A Kellaway echoes this statement as follows:</p> <p>‘The dominating Roman-Dutch law principle is that an interpretation which creates an absurdity is not acceptable (that is <em>‘interpretatio quae parit absurdum, non est admittenda)” </em>(See among other authorities, Exparte Fourie 1962 (3) SA 614 (O); <em>S v Nyathi </em>1978 (2) SA 20 (B) and <em>Canca v Mount Free Municipality</em> 1984 (2) SA 870 (TK) 833)’</p> <p> </p> <p>The learned author, at page 62, further states:                                                    </p> <p> </p> <p>“Even if a (South African) court comes to the conclusion that the language is clear and unambiguous, it is entitled to reject the purely literal meaning if it is apparent from the <strong>anomalies which flow therefrom that the literal meaning could not have been intended by the legislature”</strong> (<em>my emphasis</em>)</p> <p> </p> <p>The Court at page 37A-D summed up the approach and said-</p> <p>It is a sound principle of the law that when interpreting a statutory provision, the court must bear in mind that the legislature does not intend irrational or unreasonable results. In discussing the import of absurdity Devenish<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4">[4]</a> opines that the absurdity must be obvious, it must lie in the words of the statute. This approach has been partially codified<a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5">[5]</a>.  </p> <p>In coming to the true meaning of the words forming the basis of this appeal the court should consider the purpose of the Act. One of its purposes is ‘to provide for offences and penalties and for the prevention of electoral malpractices ’.The offences created by the Act are therefore connected and incidental to elections. It is trite that an election is not an event but a process. The offences therefore relate to the processes associated with elections and the announcement of electoral results is part of this process.</p> <p>If the restrictive interpretation advanced for the appellant were to be accepted, it would certainly result in an absurdity that the legislature did not intend. Simply put the appellant’s interpretation is that the proceedings should be confined to the time when the ZEC officials were sitting and making the announcements. When they adjourned the proceedings had terminated, the proceedings could not be disrupted. This approach narrows the announcement proceedings to an event and not a process. It is a process because it involved a lot more than the sitting of the ZEC officials. To our mind it involved the transmission of the results, the setting up of the room (s) associated with the announcements. The intention of the legislature in enacting the provision was to make sure that whatever proceedings conducted in connection with elections be carried out seamlessly devoid of any hindrances.</p> <p>            The term proceedings therefore should be taken to include all the processes culminating in the sitting of the ZEC officials making the announcements. This will include even the processes taking place on the day at the provincial centres associated with the transmission of the electoral results. To our mind even an interference of the transmission of the provincial results to the HICC would constitute a disturbance in the proceedings of the announcement of results. An adjournment by the ZEC officials on the day, was a break only in respect of the sitting which is but a part of the announcement proceedings. The legislature intended to preserve the integrity of the electoral process by ensuring that they proceed smoothly to their logical conclusion. There was evidence that the appellant’s conduct resulted in some commotion as representatives from other political parties responded to his announcement. His conduct was captured on video by journalists. The appellant’s conduct should not be condoned especially in view of the fact that the same Act<a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6">[6]</a> provides for recourse that any disgruntled member could pursue to remedy any perceived irregularities. It was open for the appellant to pursue the proper legal channels to challenge the process.</p> <p>            It is our considered view that the court <em>a quo</em> did not misdirect itself. The appeal lacks merit and it is accordingly dismissed.</p> <p> </p> <p> </p> <p>MUSAKWA J agrees ………………</p> <p> </p> <p><em>Mbidzo, Muchadehama &amp; Makoni</em> ; appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> 2015 (2) ZLR (3) CC</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> CC Z ZLR 339 (S)</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> 1995 (1) 339 (S)</p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> Interpretation of Statutes ,Juta &amp; Co 1992</p> <p><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5">[5]</a> Section 15 B of the Interpretation Act [Chapter 1:01]</p> <p><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6">[6]</a> Section 167 of the Electoral Act</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/369/2020-zwhhc-369.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26352">2020-zwhhc-369.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/369/2020-zwhhc-369.pdf" type="application/pdf; length=528431">2020-zwhhc-369.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/elections-0">ELECTIONS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/electoral-act-chapter-201">Electoral Act [Chapter 2:01]</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/interpretation-statutes">INTERPRETATION OF STATUTES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/golden-rule-interpretation">Golden Rule (INTERPRETATION)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/meaning-words">Meaning of words</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/particular-words-interpretation">Particular words (INTERPRETATION)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2015/6">Chihava &amp; Another v Provincial Magistrate Mapfumo N.O. &amp; Another (No. 02/14) [2015] ZWCCZ 6 (14 July 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2018/6"> Electoral Amendment Act, 2018</a></div><div class="field-item odd"><a href="/zw/legislation/act/1962/1">Interpretation Act [Chapter 1:01]</a></div></div></div> Wed, 08 Jul 2020 10:28:35 +0000 Sandra 9775 at https://old.zimlii.org