REPORTABLE (88)

Judgment No S.C. 93\2002

Civil Appeal No 245\2002

(1) MORGAN TSVANGIRAI (2) NOMORE SIBANDA

(3) THE MOVEMENT FOR DEMOCRATIC CHANGE

v THE REGISTRAR GENERAL OF ELECTIONS

SUPREME COURT OF ZIMBABWE

ZIYAMBI JA, MALABA JA & GWAUNZA AJA

HARARE OCTOBER 1 & NOVEMBER 14, 2002

J.J. Gauntlet SC, with him P. Nherere, for the first appellant

No appearance for the second and third appellants

L. Matanda-Moyo, with her C. Mudenda, for the respondent

GWAUNZA AJA: This is an appeal against the judgment of the High Court, in which the appellants’ application was dismissed, with no order as to costs.

In the court a quo the appellant sought the relief that is aptly summarised in the judgment of that court, and which is repeated here for convenience:-

“… an order compelling the respondent, on payment of one million two hundred thousand dollars, to make available to the applicants, the complete voters’ roll together with the two supplementary voters’ rolls used during the presidential election of 9 – 11 March 2002, on compact discs to be supplied by the applicants in a comma delimitated ASC 11 format. The applicants proceeded further in the draft order to specify and clarify the particulars of the voters’ rolls whose copies they seek, when the respondent should be ordered to comply with the order of the court, and an order safeguarding the effectiveness of such an order in the event of an appeal and costs.”

Before considering the merits of this appeal, it is pertinent that I deal with a few preliminary issues arising from the proceedings now before the Court.

The first relates to the implications of the ruling made by this Court at the beginning of the hearing, to the effect that Senior South African counsel, Advocate J J Gauntlet, had the authority to appear and argue this appeal before this Court. The ruling followed the objection, raised in limine, by the respondent’s counsel, Ms L Matanda-Moyo, to Mr Gauntlet so appearing. The Court was satisfied that the order giving Mr Gauntlet the authority to represent the first appellant in his challenge of the March 2002 Presidential Elections, and “in any proceedings related thereto” was sufficiently wide to cover the present appeal (Case No H-3616-02).

The High Court order in question (Case No H-8493-02), however, was specific in terms of who Mr Gauntlet could represent. The relevant part of that order reads as follows:-

“1. The applicant be and is hereby admitted as a Legal Practitioner of this Honourable Court, in order to represent Morgan Tsvangirai in challenging the legality and validity of the Presidential Elections held in Zimbabwe on 9 to 11 March 2002, in case no HC 3616/2002, and in any proceedings related thereto."

In this appeal, two other appellants are cited. The order of the court a quo, cited above, does not give Mr Gauntlet the authority to represent these appellants. Accordingly, since no other counsel appeared to represent them, this Court considers that only one of the three appellants cited, that is, Morgan Tsvangirai, is properly before it.

The second matter relates to the applications, each made by either side, for leave to adduce fresh evidence on appeal. Even though each side had filed papers opposing the other’s application, Ms Matanda-Moyo, for the respondent, withdrew both the respondent’s application and his opposition to the appellant’s application. The effect of such withdrawal was that the application of the appellant to adduce fresh evidence on appeal, was granted without opposition.

That notwithstanding, it was contended for the appellant that, since a fair amount of work had gone into the preparation of his opposing papers and heads of argument concerning the application by the respondent for leave to adduce new evidence on appeal, the costs attendant on that application should be awarded to the appellant. I will revert to that matter later.

The third issue relates to something that happened after the hearing of the appeal had been concluded and the court had reserved its judgment. The appellant, without first applying to do so and therefore, without the invitation of the Court, sought to introduce after the fact, a document entitled “The Appellant’s Further Submissions”. No authority was cited as a basis for the submission of this document. The two learned judges who heard this appeal together with me each received a copy of the document in question. We conferred over this unusual development and concluded that the submission of the document was an attempt by the appellant to improperly influence the outcome of this matter. We record our extreme displeasure at this attempt to influence our determination of this appeal and hope that such behaviour on the part of a senior legal counsel will not be repeated.

Consequently, I shall, in my determination of this matter, disregard both the document and its contents.

I will now consider the appeal.

The appellant is the President of the political party called the Movement for Democratic Change (“MDC”). He voted and stood as a candidate on behalf of his party in the Presidential Elections which took place on 9 – 11 March, 2002.

The respondent is the Registrar-General of Elections, and is empowered to exercise the functions which are provided or conferred upon him in terms of the Electoral Act [Chapter 2:01].

The pertinent background to the dispute is as follows. The appellant brought an urgent Chamber Application before the High Court on 24 December 2001 (Case No H-12092-2001) seeking an order compelling the respondent to furnish him with an electronic copy of the common voters’ roll in respect of all registered voters in Zimbabwe up to 2 January 2002.

The appellant was successful in his application and the following order was granted by consent:-

“3. That the respondent make available on or before 7 January 2002, to the applicant, an electronic copy on compact disc supplied by the Applicant and in a comma delimitated ASC 11 format, of the common voters’ roll in respect of all registered voters in Zimbabwe up to January 2002.”

This order was implemented on 7 January 2002, with the respondent handing over to the appellant’s representative, four compact discs previously supplied by him in blank. A letter confirming this handover, written by the respondent and signed at the bottom by the appellant’s representatives read in part as follows (Annexure ‘C’):-

“The Registrar-General is hereby providing on electronic media, ie CD’s, data concerning all the 120 constituencies. This is in compliance with Sec 18(2) of the Electoral Act Cap 2:01.

It should be noted that the data on the four compact discs does not include the majority of registrations which were effected during the voter registration exercise …”. (my emphasis)

Subsequent to these developments, considerable correspondence was exchanged between the representatives of the appellant, the respondent and the Civil Division of the Attorney-General’s office, over the appellant’s request for similar copies of the revised voters’ roll and two supplementary voters’ rolls that had subsequently been prepared. The appellant charges that the respondent was “repeatedly evasive” about supplying copies of these voters’ rolls. The respondent having declined to avail to the appellant the copies of the voters’ roll in the manner requested, the appellant, in an urgent High Court application, sought the order referred to.

The respondent, who had filed no opposing papers to the application, nevertheless sent a legal representative to represent him at the hearing. The learned trial judge, after voicing her concern at the unprocedural appearance of counsel for the respondent, reluctantly allowed such counsel to make her submissions. This was after counsel for the appellant had, because of the national importance of the matter, consented to such appearance. It is noted in the judgment of the court a quo that the submissions made for the respondent were simply to the effect that he abided by the contents of his letter, dated 10 April 2002, and submitted in an earlier hearing concerning whether or not the matter could be heard on an urgent basis.

The relevant part of that letter read as follows:-

“We are pleased to advise that the respondent is willing to supply Applicants with copies of the voters’ rolls upon payment of the prescribed fees. The rolls are available. Respondent cannot supply the rolls on compact discs as there is no such requirement in law. Applicants can capture the data from the printed rolls onto compact discs of their own.”

The learned trial judge conceded the “common sense” implicit in the argument advanced for the appellant that the respondent was estopped from opposing the relief sought by the appellant by virtue of his having consented to the granting of a similar order in H-12092/01. She, however, noted that she had “searched in vain” for a legal principle that compelled common sense in a situation where the law was clear. The learned judge was, in this respect, referring to s 18(3) of Electoral Act, as read together with s 14 of the Electoral Regulations, 1992, as amended. On the same principle, the learned trial judge rejected the argument put forward for the appellant that it would be far more convenient in the present computer age, for the appellant to have the voters’ roll on compact disc rather than in printed form. She noted in this respect that the law currently in force had remained in the “pre-computer” age. The learned judge also rejected the argument that the word “copy” in the Electoral Act should be read to include a copy held in electronic form. In her view there was no ambiguity in the law, which expressly provided for a “printed” copy.

Having in the final analysis found no legal basis for the appellant’s application, the learned trial judge dismissed the application, and made no order as to costs.

Consequent upon this judgment, the parties once again engaged in correspondence, this time over the issue of the respondent furnishing the appellant with printed copies of the voters’ roll, as promised. This correspondence is now admitted for consideration in this appeal, following the appellant’s successful application to adduce fresh evidence. The upshot of the matter, as appears from this correspondence, is that the respondent backtracked on his undertaking to supply the appellant with printed copies of the voters’ roll. The letter conveying this development is dated 19 August 2002 and reads as follows:

Dear Sir,

RE: PRESIDENTIAL ELECTION: PRINTED VOTERS’ ROLL

We refer to your letter dated 14 August 2002 on the above mentioned matter.

Although we know that you can get the voters’ rolls at a legally prescribed fee, these rolls have to be printed. They need finance, printing, logistics, stationery and manpower.

We note from your letter that you are asking for the rolls covering all constituencies in the country. We are unable to provide you with the said rolls.”

The appellant now appeals against the whole of the judgment of the court a quo, and has enjoined this Court to take into account the refusal by the respondent to supply even the printed copy of the voters’ roll in question.

The grounds of appeal can be summarised as follows:

1. That the court a quo erred in holding that the application before it had been made in terms of s 18(3) of the Electoral Act, as read with the regulations made in terms of such Act, when in fact the claim of the appellants was “grounded fundamentally” in section 18(2);¹

2. That the court a quo erred in not finding that res judicata or the doctrine of issue estoppel operated against the respondent’s opposition to the application because he had, in an earlier case, consented to substantially the same relief;

3. That the court a quo erred in finding that the Electoral Act had remained in the pre-computer age and that therefore the only copies envisaged therein were printed copies; and

4. That the court a quo erred in not finding that the refusal by the respondent to furnish copies of the rolls in computer format constituted an infringement of the appellant’s constitutional right to protection of the law and the right to receive information, a right now reinforced by the provisions of the Access to Information and Protection of Privacy Act [Chapter 10:27].

I will consider these grounds separately and in relation to the evidence placed before the court.

SECTION 18 OF THE ELECTORAL ACT [CHAPTER 10:27]

I find merit in the contention made for the appellant that the court a quo fell into error when it determined the matter, in part, on the basis that the application had been made in terms of s 18(3) of the Electoral Act.

A consideration of the whole of s 18 is apposite. It reads as follows:-

“18(1)The voters roll for every constituency shall be open for inspection by the public, free of charge, at the office of the constituency registrar during office hours.

2. Any person inspecting the voters roll for a constituency may, without payment make copies thereof or extracts therefrom during office hours.

2. A constituency registrar may, whenever he considers it to be desirable, have the voters roll for his constituency printed, and any person may obtain from the Controller of Printing and Stationery, on payment of such charges and subject to such conditions as may be prescribed copies of any voters roll as printed.

2. Where the voters roll for any constituency has been printed in terms of subsection (3) immediately before a general election, or by-election to the office of the President, and it contains the names of the voters entitled to vote at that election, the Registrar-General may publish a notice in the gazette declaring that the printed voters roll shall be used for the purposes of the identification of voters’ at that election”.

It will be seen from the above that subsection 3 envisages a situation where:

1. a constituency registrar, after considering it to be desirable, causes the voters’ roll for his constituency to be printed, and

2. thereafter such copies are available, through the Controller of Printing and Stationery, and on payment of the relevant charges and subject to given conditions, to any person requiring them.

This situation bears no resemblance to the one in casu. The appellant seeks from the Registrar-General copies of the common and supplementary voters’ rolls. He does not seek copies of a voters’ roll printed at the instance of a constituency Registrar and reposed with the Controller of Printing and Stationery. The fact that the appellant is offering to pay for the copies requested and in the format suggested, does not, as contended for the respondent, “remove” the application from s 18(2) to s 18(3). All that can be said of the tender of payment is that, on a reading of s 18(2) of the Act, it is not a requirement.

In all respects therefore, the appellant is correct in his contention that the learned trial judge erred in determining the matter on the basis that the application had been made in terms of s 18(3). In view of this finding, I do not consider it necessary to consider the merits of the argument that the learned trial judge further fell into “basic” error in seeking to interpret primary legislation (s18(3)) by recourse to secondary legislation.

The appellant has reiterated that the application at hand was made in terms of s 18(2) of the Electoral Act. It is asserted for him in paragraphs 37 and 38 of his heads of argument:-

“37. As already stated, the application was based on Sec 18(2) of the Act, following concession (in annexure “c”) at page 25, that the furnishing previously of the roll in computer format was in compliance with that provision.

38. What the court below, with respect overlooked, was the dominant provision in Sec 18 namely that (significantly, in peremptory language) the voters’ roll for every constituency shall be accessible to the public (by being available for free inspection). This is admitted by the respondent in his own letter, annexure “A” (page 22). It is on this primary provision in section 18(1), that subsection (2) builds. The latter permits a person inspecting the roll simply to ‘make copies thereof or extracts therefrom’. It does so without specifying further the nature or form of the copies.”

I find to be eminently sound, the assertion by the appellant that subsection 18(2) builds on the primary provisions in s 18(1). It therefore came as somewhat of a surprise that counsel for the appellant, Mr Gauntlet, in an obvious departure from this stance, entreated the Court to interpret subs 2 of s 18 in isolation and not within the context of s 18 as a whole. His contention was in effect that since the respondent had not in its papers taken up this point (i.e. that the two paragraphs should be read together), the Court could not, on its own, do so.

This reasoning is flawed for a number of reasons. Firstly, while the respondent may not have advanced the argument in question, the appellant himself did so in his heads of argument. After contending that the court a quo had overlooked the matter (by implication therefore, that this court should not fall into the same error) it was somewhat contrary for Mr Gauntlet to now contend that the Court should not do so. Secondly, once the issue of how the subsection in question should be interpreted had been raised by the appellant himself, it became untrue, as contended by Mr Gauntlet, that the Court had sought of itself to raise it. Thirdly, it is a fundamental principle of legislative interpretation that a provision in an enactment must be interpreted within the context of, firstly, the section or part of the enactment that it appears in and, secondly, the context of the entire statute. Therefore, even if the appellant himself had not raised the matter, the court whose task it is to interpret the law, would have been perfectly within its rights to do so.

Be that as it may, the appellant is correct in his assertion that s 18(2) must be read together with s 18(1). Subsection (1), which the appellant correctly refers to as the dominant provision, places an obligation on the respondent to make available, for inspection by the public and at no charge, the voters’ roll for every constituency. My understanding of this subsection is that the voters’ roll in whatever form for every constituency shall be opened for inspection by the public. Following from that, subs 2 provides that a person who inspects such roll, in whatever form it is presented, may make copies or extracts of it during office hours.

If the two subsections are read together it becomes evident that subs 2 gives the option to a person inspecting a voters’ roll pursuant to subsection 1, to then make copies or extracts of what he/she is inspecting. In other words the option to make copies or extracts of the voters’ roll is open only to a person inspecting it. It follows from this that a person who has not or will not inspect the voters’ roll in question does not have the right to make, or request, copies of such roll.

The reference in subss 1 and 2 of s 18, to constituencies is, in my view, significant. The country is divided into 120 constituencies. Every constituency will have its own voters’ roll, reflecting the names of people who have registered to vote in that particular consistency. As such a voter one would, logically, be interested in inspecting the voters’ roll of the constituency in which one is registered to vote. One does so, primarily, to ensure that one’s name appears on the roll. It is this type of voter, with that special interest, who is envisaged by subsection (1) and (2) as firstly inspecting, and secondly, making copies of or extracts from such roll. Logically, therefore, and as correctly contended for the respondent, such inspection and such copying should be done before the elections, not after.

This brings me to the contention made for the respondent, which I do not find to be without foundation, that appellant lacked locus standi to make the application in question. The appellant seeks copies of the voters’ roll i.e. the complete roll for all 120 constituencies. He has based his application on subs (2) of s 18 of the Act, yet has not made the essential averment that would give him the right to demand such copies. That averment is that he inspected the voters’ roll in question. Without such inspection having taken place, the bottom is, as it were, removed from under his application, which is based on subs (2) of s 18.

The appellant, even if it was assumed he made the application as a voter, would, in any case, have found it difficult to convince the court that he had personally inspected each and every constituency’s voters’ roll. As already shown, failure to prove such inspection is fatal to the application.

Mr Gauntlet contends that s 18(2) must be interpreted broadly so as to accommodate copies of the voters’ roll in a format different from the one such roll was presented in for inspection. This argument carries the appellant’s case no further, as long as the averment has not been made, or proved, that the person requesting such copies inspected the voters’ roll in question.

One crucial fact seems to have been overlooked, and that is that sections 18(1) and 18(2) clearly envisage a situation where only constituency voters’ rolls are inspected at the office of the relevant constituency registrars, from where, therefore, copies can be made during office hours. The two subsections do not deal with the combined voters’ roll being inspected and copies thereof being sought from the respondent, who is the Registrar-General. Ms Matanda-Moyo, for the respondent, argues in this respect that our law does not provide, like the South African law, for the provision of common voters’ rolls to political parties. Therefore, Ms Matanda-Moyo contends, the appellant should properly seek to have an amendment to the law in order to bridge this gap, instead of asking the Court to stretch the meaning of existing provisions so as to find a legal basis for the relief sought.

I am persuaded by this contention. The simple reality is that neither subsections 18 (1) and (2) nor other provisions of the Electoral Act provide a basis for what the appellant seeks in this application, which is the acquisition of a copy of the common voters’ roll by a candidate in the same Presidential elections to which the voters’ roll in question relates.

According to my interpretation of subss (1) and (2) of s 18 of the Electoral Act, the previous issuance by the respondent of copies of the original common voters’ roll, in computer or any other format to the appellant, could not properly have been done pursuant to those two provisions. This finding, in my view, holds true despite the respondent’s written notification that he was furnishing the computer discs in question in terms of s 18(2) of the Electoral Act. As already mentioned, that action by the respondent, in reality, finds no basis in any provision of the Electoral Act. Accordingly, no weight can be attached to the letter in which the respondent asserted he was furnishing the appellant with the copies in question, pursuant to subs (2) of s 18 of the Electoral Act.

To succeed in his claim, the appellant would have to look to another basis, not s 18(2) of the Electoral Act, for the desired relief. In the light of these findings, nothing really turns on the letters from the respondent’s office, to the effect that his office, firstly, was prepared to provide the printed copies of the voters’ roll in question and, secondly, in a reversal of the earlier stance taken, that he was not prepared to provide even those.

To the extent, therefore, that the present claim is premised on s 18(2) of the Electoral Act, I would dismiss it.

ESTOPPEL

It is correctly contended for the appellant that the issue of estoppel is part of the law of Zimbabwe, as the Court has previously held.² By estoppel is meant that a person is precluded or estopped from denying the truth of a representation previously made by him to another person if the latter, believing in the truth of the representation, acted thereon to his detriment.

In para 37 of the appellant’s heads of argument (cited above), it seems to be suggested that the application was based on s 18(2) of the Electoral Act partly because the respondent had, in an earlier matter, conceded that the furnishing of the voters’ roll in computer format was in compliance with that provision.

I have already determined that s 18(2) does not give the respondent the authority to do what he did. He, in effect, misinterpreted the subsection, thereby justifying an action that has in effect no legal basis. The law is clear that estoppel cannot be used to make legal what otherwise would be illegal.³ I have no hesitation in extending this principle to the case at hand. The appellant cannot use the doctrine of issue estoppel to vest with legality the furnishing, by the respondent, of the voters’ roll in question, in electronic form, where such action is not supported by the law quoted. This ground of appeal must, accordingly, also fail.

RES JUDICATA

This leaves only one other ground upon which the principle of res judicata could appropriately be applied, i.e. the order by consent. As correctly asserted by the appellant, the learned trial judge did not deal with this issue in the judgment. It is significant that the appellant does not make the averment that the court a quo, in case H-12092-2001, made a finding that the appellant was entitled to the electronic copies of the voters’ roll, by virtue of s 18(2) of the Electoral Act. Indeed, paragraph 3 of the consent order, which the appellant now relies on to raise the plea of res judicata against the respondent, makes no reference to s 18(2) of the Electoral Act. As the actual application of the appellant, in case H-12092-2001, is not part of the record, I have not been able to ascertain the basis upon which the application in that matter was made. If the court a quo did not grant the consent order in question on the basis that the entitlement of the appellant was based on s 18(2) of the Electoral Act, it cannot, in my view, be said to have effectively disposed of the matter.

What, however, falls to be determined is whether the order by consent operates as an effective bar to the refusal by the respondent to act in the same manner he did when he provided the electronic copy of the original voters’ roll.

It is contended for the appellant that the consent by the respondent to the previous final High Court order (i.e. to supply the copies in electronic format) should have been treated by the court a quo as having disposed of the matter. A number of authorities are cited on behalf of the appellant concerning the frequent recognition and application of the principle of res judicata by our courts.⁴ It is pertinent to repeat the contention as it appears in paras 21 and 22 of the appellant’s heads of argument:

“21. … As the principle has been stated:

‘If a cause of action has been finally litigated between the parties, then a subsequent attempt by one to proceed against the other on the same cause for the same relief can be met by an exceptio rei judicatae vel litis finitae.’

Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A) at 472 A-B. …

22. The exceptio can, of course, be raised (as here) to a defence as well as a cause of action.”

I understand, by para 22, the appellant to contend that in this case, where a cause of action (and the defence proffered by the respondent) has been finally determined between the parties, then a subsequent attempt by the respondent to raise the same defence on the same cause for the same relief can be met by the exceptio rei judicatae vel litis finitae. The immediate question raised by this, of course, is whether the same cause for the same relief would have been pursued by the applicant, if the matter had been finally determined? More on this point later.

As to the nature of the order, it is contended for the appellant that it is not required that the order in question be given in contested proceedings, since a judgment granted by consent, or by default, can sustain a plea or replication of res judicata. Again, a number of authorities are cited to support this contention.

Disregarding for a moment the question of which of the parties raised the principle of res judicata against the other, there can be no doubt that for all cases in which it is raised, all the requisites, as correctly cited for the appellant (above), must exist for the plea to be successful. This is reinforced in the following words by MULLER J in African Wanderers Football Club v Wanderers Football Club supra at 45E, an authority cited by the appellant’s counsel in his heads of argument:

“There is nevertheless no room for this exception (of res judicata) unless a suit which had been brought to an end is set in motion afresh between the same persons about the same matter and on the same cause for claiming, so that the exception falls away if one of these three things is lacking.” (my emphasis)

In casu, while the two actions may have been between the same parties (or their “privies”)⁵, and founded on the same cause of action, I am not satisfied that the two actions concerned the same subject matter.

The earlier order of the court a quo was specific in terms of what copies the appellant was to be provided with, i.e. copies of the voters’ roll up to January 2002. What the appellant now seeks is the total voters’ roll, including the supplementary voters’ rolls compiled after the earlier copies had been provided. Even the originals of the copies already supplied by the respondent have, it is not in dispute, been updated. In essence, therefore, what the appellant now seeks is substantially different from what he was before provided with. Certainly the first copy cannot be put to the same use as is now intended for the copies in casu.

It is on this basis that the question of whether or not the relief sought is the same as before, is to be considered. The following definition of “subject matter” or relief, in relation to a plea of res judicata, is particularly helpful (see Horowitz v Brook & Ors 1988 (4) SA 160 at 178):

“The requisites of a valid defence of res judicata in Roman Dutch law are that the matter adjudicated upon, on which the defence relies, must have been for the same cause, between the same parties and the same thing must have been demanded.” (my emphasis)

As indicated above, the appellant, in the court a quo, did not demand copies of the same voters’ and supplementary voters’ rolls that he is demanding in casu. When the principles enunciated above are applied to the circumstances of this case, it is evident that, whether the plea of res judicata is raised in relation to a cause of action or defence, it must fail on the basis that all the requisites for such plea have not been met.

It follows that, even were it possible to apply the principle in reverse, as the appellant now seeks to do, his invocation of it against the respondent must fail.

The point must be made, however, that a diligent search on my part has failed to yield any authorities or legal basis for the invocation of the principle of res judicata against a defence that a respondent or defendant raises. It can be assumed that the appellant’s counsel came up against the same problem as evidenced by the fact that, while a variety of authorities were cited to explain the principle where it is raised in relation to a cause of action, by the defendant, not a single authority has been cited to support the proposition that the principle can, equally, be raised against a respondent/defendant by an applicant/plaintiff.

There is, instead, much in the language used in the authorities in reference to res judicata that suggests that the principle should only properly be invoked by a respondent/defendant against an applicant/plaintiff. The learned authors of Amler’s Principles of Pleadings⁶ even refer to it as a defence, as the following excerpt illustrates:

“Procedure: In spite of the fact that the defence (of res judicata) was known at common law as an exceptio, it cannot be raised by way of exception but must be raised in a special plea …”.⁷ (my emphasis)

Thankfully, I am saved the task of delving more deeply than I have done into the application (if any) of the plea of res judicata in reverse, by the finding that in any case all the requisites of such a plea have not been met.

This ground must also fail.

VIOLATION OF THE APPELLANT’S CONSTITUTIONAL RIGHTS

This brings me to the final ground of appeal, which is that the refusal by the respondent to furnish the copies of the voters’ rolls in computer format constituted an infringement of the appellant’s constitutional right to protection of the law and the right to receive information. Again, the appellant is correct in his assertion that the court a quo did not address this ground despite the issue having been raised in the founding affidavit.

This right, it is contended for the appellant, is now “reinforced” by the provisions of the Access to Information and Protection of Privacy Act [Chapter 10:27].

Section 18 of the Constitution of Zimbabwe guarantees every citizen of Zimbabwe equal right to protection of the law. In support of the appellant’s claim that his rights in this respect have been infringed, it is contended as follows in para 52 of his founding affidavit:

“… the applicants are not being afforded the protection of the law in terms of the Electoral Act in that the respondent is breaching section 18 of that Act.”

I have already dealt at length with the meaning of subss (1) and (2) of s 18 of the Electoral Act, and the question of whether or not, by refusing to furnish the appellant with the requested copies of the voters’ roll in electronic format, the respondent has offended against these subsections. I have in fact found that the respondent had misinterpreted the subsections in question and handed over compact disks containing the original common voters’ roll, under the mistaken belief that subs 18(2) gave him the authority to do so. To the extent, therefore, that the appellant’s claim that his constitutional right to protection of the law has been infringed is based on the respondent’s refusal to hand over the required copies in terms of subs 18(2) of the Electoral Act, such claim is misconceived and has no merit.

The appellant charges in respect of s 20(1) of the Constitution that his right to receive information has been violated by the respondent’s refusal to give him the required voters’ roll in the format indicated. My reading of this subsection suggests a different context for the receipt of information, from the one obtaining in casu. It is pertinent to set out what the subsection provides:

“20 Protection of freedom of expression

(1) Except with his own consent or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.”

This subsection is clearly concerned, basically, with the right to freedom of expression. The “spirit and letter”⁸ of the provision is that, in the exercise of his right to freedom of expression, every person is entitled to, among other things, receive information without interference.

In my view, to regard, as the appellant does, the entitlement to receive information as the dominant concern of subs 20(1) of the Constitution is to clearly misinterpret and distort its otherwise clear meaning. It is not in dispute that the appellant requires the copies of the voters’ roll in question, not for purposes of exercising his right to freedom of expression, but for purposes of exercising his “right to challenge” the outcome of the March 2002 Presidential Election.⁹ Section 20(1) of the Constitution is quite evidently, in my view, not intended to cover such a situation.

The appellant contends that the right to receive information that is safeguarded by subs 20(1) is further reinforced by s 5 of the Access to Information and Protection of Privacy Act, which reads as follows:

“Subject to section 10, every person shall have a right of access to any record, including a record containing personal information, that is in the custody or under the control of a public body.”

He contends further that the Registrar-General’s Office is a “public body” in terms of the Second Schedule to the Access to Information and Protection of Privacy Act.

It is pertinent to note that this contention is contained in the appellant’s notice of appeal and heads of argument, and was therefore raised for the first time at the appeal stage. The averment now being made, that the appellant’s application for copies of the voters’ roll in question was, in the alternative, made in terms of the Access to Information and Protection of Privacy Act, was not made in the founding affidavit accompanying the application in the court a quo.

Paragraph 51 of the founding affidavit (at p 18 of the record), which the appellant avers spelt out this “explicit basis”¹⁰ for the application, makes reference only to the infringement of the appellant’s constitutional rights.

To set out this “explicit basis”, the appellant would, of necessity, have had to show that he had made the request to the respondent under the Access to Information and Protection of Privacy Act in the manner prescribed in s 6 of that Act, and that such request had been refused by the respondent, again in the manner set out in that Act (see s 9). Had all that been averred and proved, one would have ordinarily expected the appellant to then approach the High Court for a review of such refusal, again in the prescribed manner. An appeal to this Court on the same matter would have depended on the decision of the court a quo thereon. All this did not happen.

The argument made for the appellant, that the rights under the Access to Information and Protection of Privacy Act arise from the rights constitutionally guaranteed in s 20(1) of the Constitution, while ingenious, does not, in my view, cure the defect, which is his failure to place before the High Court a proper application for relief under the Access to Information and Protection of Privacy Act. The result of this failure is that the court a quo did not consider that submission, whatever its merits or demerits.

While it is conceded that the court a quo should have addressed the merits of the submissions relating to the doctrines of issue estoppel and res judicata and that relating to the infringement of the appellant’s constitutional rights, the court cannot be criticised, as the appellant does in his grounds of appeal and heads of argument, for not addressing its mind to an issue that was not raised before it. Since that argument was not placed before the court a quo, and therefore not dealt with, the ground of appeal that charges that the learned judge a quo erred “in failing to appreciate that the appellants are in any event entitled to copies of the voters’ roll in an electronic format in terms of s 5, as read with s 8, of the Access to Information and Protection of Privacy Act [Chapter 10:27] has neither foundation nor merit.

It hardly needs mentioning that the matter in the court a quo did not fall to be determined on unstated entitlements. The observation must also be made that the Access to Information and Protection of Privacy Act came into effect on 15 March 2002. The appellant’s founding affidavit is dated 9 April 2002. There was, therefore, no reason for the appellant not to mention in such affidavit that the application was in part based on the Access to Information and Protection of Privacy Act. To now call upon this Court, as the appellant does, to consider this appeal on the basis of information and arguments not placed before, and therefore not considered by, the court a quo is both unprocedural and improper.

That ground of appeal must, therefore, fail.

One last ground of appeal merits comment.

Cogent arguments, well supported by relevant authorities, were advanced by the appellant against the finding, based on her interpretation of s 18 of the Electoral Act, by the learned trial judge that the Electoral Act had remained in the “pre-computer” age and therefore that the copies of the voters’ roll referred to were printed and not electronic.

In the light of my finding that s 18 does not provide a basis for the type of application now before the Court, I do not consider it necessary to consider the merits of these submissions. Suffice it to say that I would have found the arguments to be very persuasive had they been advanced within the appropriate context.

I will now turn, finally, to the question of costs.

The costs of this appeal will follow the cause, thereby determining the outcome of the application by the appellant for costs to cover two counsel.

The appellant has applied for costs against the respondent, in relation to the latter’s application, now withdrawn, to adduce fresh evidence on appeal. The evidence in question was an affidavit deposed to by the respondent himself, and another deposed to by an official in his Office. The appellant filed, not only an opposing affidavit to this application, but also fairly lengthy heads of argument. I have no doubt that much work went into the preparation of these documents, only for all of it to turn into a wasted effort. The application is, in my view, and given these circumstances, with merit. It shall be granted.

It is in the premises ordered as follows:

1. The appeal is dismissed with costs.

2. The respondent shall pay the wasted costs of the application, by it, to adduce fresh evidence on appeal.

MALABA JA: I agree

ZIYAMBI JA: I agree.

Gill, Godlonton & Gerrans, appellant's legal practitioners

Civil Division of the Attorney-General’s Office, respondent's legal practitioners