REPORTABLE
ZLR (51)
Judgment
No. SC 48/05
Civil
Application No. 77/05
(1) THE
CHAIRMAN ZIMBABWE ELECTORAL COMMISSION (IN HIS
OFFICIAL CAPACITY) (2) THE CONSTITUENCY
ELECTIONS
OFFICER CHIMANIMANI CONSTITUENCY (IN HER
OFFICIAL CAPACITY)
v
(1)
ROY LESLIE BENNET (2) THE PRESIDING JUDGE
ELECTORAL COURT
IN
THE SUPREME COURT OF ZIMBABWE
SANDURA
JA, CHEDA JA & ZIYAMBI JA
HARARE,
JUNE 16 & NOVEMBER 1, 2005
G
C Chikumbirike, for
the appellants
A
P de Bourbon SC, for
the first respondent
No
appearance for the second respondent
ZIYAMBI JA: On 18 February
2005 nominations were held in terms of the Electoral Act [Chapter
2:13] (the Act).
A Nomination Court sat at Mutare Magistrates Court for the
purpose of accepting nomination papers in respect
of aspiring
candidates for the elections scheduled to take place on 31 March
2005. The second applicant was the constituency elections
officer
who received and processed the nomination papers for all the
constituencies in the Manicaland Province.
The first respondent, who at
the time was the Member of Parliament for Chimanimani, submitted his
nomination papers through his
Chief Elections Agent. The nomination
papers were rejected by the second applicant on the ground that the
first respondent was,
at that time, serving a term of twelve months
imprisonment imposed on him by Parliament for contravening item 16 of
the Schedule
of the Privileges, Immunities and Powers of Parliament
Act [Chapter 2:08].
The
second applicant, relying on the provisions of subparagraph (2) (c)
of paragraph 3 of Schedule 3 (the Schedule) of the
Constitution
of Zimbabwe, took the view that the first respondent was disqualified
notwithstanding the fact that his name was on
the voters roll and
rejected his nomination papers. Subparagraph (2) of paragraph 3 of
the Schedule states:
(2) The
following shall be disqualified for registration as a voter for the
periods stated hereunder-
(a)
(b)
(c)
any person who has been convicted
(i)
within Zimbabwe of a criminal offence; or
(ii)
and
sentenced by a court to imprisonment, by whatever name called, for a
term of six months or more, for the period of his imprisonment.
The
first respondent was aggrieved by that decision and appealed to a
judge of the Electoral Court in terms of s 46(19)(b) of the
Act.
The
learned judge of the Electoral Court found that the rejection by the
second applicant of the first respondents nomination
papers was
not legally correct" in that the finding by Parliament that
the first respondent was guilty of a contempt offence
did not
constitute a criminal offence in the conventional sense and that
accordingly the sentence imposed upon the first respondent
did not
disqualify him from registration as a voter or standing as a
candidate for election to the office of Member of Parliament.
He
accordingly reversed the decision of the second applicant. In terms
of s 46(19)(b) no appeal lies against the decision of
a judge sitting
in terms of that subsection.
The applicants have brought
this application by way of review. They claim that they may
lawfully do so because the Electoral Court
being an inferior court,
its decisions are reviewable by this Court which possesses the same
powers on review as the High Court.
For this proposition they rely
on s 25 of the Supreme Court Act [Chapter 7:13] (the Supreme Court
Act), which provides as
follows:-
25
Review
Powers
(1) Subject
to this section, the
Supreme Court and every judge of the Supreme Court shall have the
same power, jurisdiction and authority as are vested in the
High
Court and judges of the High Court, respectively, to review the
proceedings and decisions of inferior courts of justice, tribunals
and administrative authorities.
(2) The
power, jurisdiction and authority conferred by subsection (1) may be
exercised whenever it comes to the notice of the Supreme
Court or a
judge of the Supreme Court that an irregularity has occurred in any
proceedings or in the making of any decision notwithstanding
that
such proceedings are, or such decision is, not the subject of an
appeal or application to the Supreme Court.
(3) Nothing
in this section shall be construed as conferring upon any person any
right to institute any review in the first instance before
the
Supreme Court or a judge of the Supreme Court,
and provision may be made in rules of court, and a judge of the
Supreme Court may give directions, specifying that any class of
review or any particular review shall be instituted before or shall
be referred or remitted to the High Court for determination.
(The
underlining is mine)
Alternatively, they contend,
rather curiously in my view, that the prohibition against appeals
contained in s 46(19)(b) of the Act,
applies only in respect of the
candidate whose nomination papers would have been rejected or
regarded as void by the Constituency
Elections Officer. Thus, they
argue, the second applicant was not denied a right of appeal by s
46(19)(b) of the Act. Accordingly,
if this Court is not persuaded
that the application for review is properly before it, the Court was
being asked, to grant, to the
applicants, leave to appeal out of time
and to regard the papers filed before it as an application seeking
such relief.
The
application was opposed by the first respondent (whom I shall refer
to as the respondent) on the following grounds, namely:-
(1) that
the applicants are not properly before this Court on review by virtue
of s 25(2).
(2) that
the applicants have not established a legal right to approach this
Court on review as a Court of first instance.
(3) that
reviews by the Supreme Court are limited to those done at the
instance of the Supreme Court or a judge thereof and in terms
of
subsection (3) individual litigants cannot directly approach the
Supreme Court on review.
In
any event, so the respondent submitted, the applicants had not
complied with Order 33 on which they rely and the application
should
on that ground also, fail.
It
is proposed firstly to deal with the issue of whether the application
is properly before this Court for review for if it is not,
that is
the end of the matter.
It
appears to me that the effect of subsections (2) and (3) of s 25 of
the Supreme Court Act is that although the Supreme Court may
correct
an irregularity in proceedings or in the making of a decision which
comes to its attention, not necessarily by way of appeal
or
application, no person has the right to institute any review in the
first instance before this Court. Thus it is not open to
a party
aggrieved by proceedings in a lower court to apply directly to the
Supreme Court on review for redress. This much is clear
from the
wording of s 25 (3) of the Supreme Court Act.
The
Supreme Court is an appellate Court. It has no original
jurisdiction except when it sits as a Constitutional Court by virtue
of s 24 of the Constitution of Zimbabwe (the Constitution).
The powers conferred on the Supreme Court by s 25(1) of the Supreme
Court Act are, therefore, to be exercised as part of its appellate
jurisdiction. This view is, in my judgment, emphasized by the
fact
that the legislature has made the provisions of subsection (1)
subject to the rest of the section, that is, subsection
(2) and
(3).
Section
25(2) confers additional jurisdiction which may be exercised when it
comes to the notice of the Supreme Court or a judge of
that court
that an irregularity has occurred in proceedings not before it on
appeal or application. Thus s 25(2) deals with irregularities
in
respect of which no appeal or application is before the Supreme Court
and the review is undertaken at the instance of the Supreme
Court and
not of any litigant. Reviews of such irregularities would, but for
the provisions of s 25(2), fall outside the jurisdiction
of the
Supreme Court acting in terms of its appellate jurisdiction or
sitting in terms of s 24 of the Constitution. This view is
emphasized by s 25(3) which states that s 25(1) and (2) must not be
construed as giving a right of review at first instance.
It was submitted on behalf of the
applicants that whilst it is generally accepted that the Supreme
Court, being a court of appeal,
its powers of review and the power of
review of individual judges are normally used only in circumstances
in which the matter, the
subject of review, is properly before the
Court by way of appeal, this, however, does not mean that a matter
cannot be brought for
review before this Court at first instance.
Support for this stance, it was submitted, was to be found in
subsection (3) of s 25
which, while conferring no right to institute
proceedings in the first instance before this Court, places the
institution of proceedings
at first instance in the Supreme Court at
the discretion of the Court.
This submission is in my view
untenable for, if the intention of the legislature was that
applications for review in the first instance
should be instituted in
the Supreme Court, and at its discretion, that intention would be
expressly stated. On the contrary, there
is a clear prohibition
against the institution of review proceedings in the Supreme Court as
a Court of first instance.
What is also clear from a reading
of s 25 is that, but for s 25(2), the Supreme Court would be unable
to correct such irregularities
as are envisaged in that subsection
unless such proceedings were the subject of an appeal or application
properly before it. Thus
s 25(2) relaxes, to the extent stated
therein, the limitation on the jurisdiction of the Supreme Court to
appeals and applications
in terms of s 24 of the Constitution.
However, lest it should be
thought that litigants have, because of the provisions of s 25(2),
the right to approach the Supreme Court
directly in order to obtain
redress for perceived irregularities, s 25(3) was enacted to correct
any misconception that a litigant
may approach this Court directly
for review. Thus the Act expressly prohibits any attempt to
approach the Supreme Court as a Court
of first instance in an
application for review.
It
is clear from the above, that the intention of the legislature was to
ensure that the Supreme Court remains the final Court of
Appeal.
The application before us is one for review at first instance - the
very thing which is prohibited by s 25(3).
In the premises,
I agree with the submission advanced on behalf of the first
respondent, namely, that this application was contrary
to statute.
I turn to consider the alternative relief sought by the applicants.
The applicants seek leave to
appeal out of time. The success of such an application depends in
the first place, on the applicant
having a right of appeal and, inter
alia, on there being
prospects of success on appeal.
Subsection (19) of s 46 of the
Act provides:-
(19) If
a nomination paper has been rejected in terms of subsection (10) or
been regarded as void by virtue of subsection (16) -
(a)
.
(b) the candidate shall have the
right of appeal from such decision to a judge of the Electoral Court
in chambers and such judge
may confirm, vary or reverse the decision
of the constituency elections officer and there
shall be no appeal from the decision of that judge;
(my underlining).
The submission advanced by the
applicants that the prohibition against appeals in terms of this
subsection applies only to the candidate,
in this case, the
respondent, is far fetched. The prohibition against any appeal
whatsoever is clear and does not in my view admit
of the
interpretation sought to be placed on it by the applicants. The
language used by the legislature is indicative of its intention
that
the decision of the Judge sitting in terms of s 46(19)(b) should be
final. Since the applicants have no right of appeal, not
only are
there no prospects of success on appeal but in the absence of a right
of appeal, the application for leave to appeal cannot
be entertained
by this Court.
Accordingly
the application was ill advised and not properly before us. In the
circumstances no consideration of the merits of
the application is
possible and it is therefore struck off the roll. The costs of the
application shall be borne by the first applicant.
SANDURA JA: I
agree.
CHEDA
JA: I agree.
Chikumbirike & Associates,
applicants legal practitioners
Kantor
& Immerman, first
respondent's legal practitioners