Opinion / Columnist
Chamisa faces 4 September deadline
02 Sep 2023 at 15:50hrs | Views
Although the seven days within which anyone seeking to file a ConCourt application to overturn ZEC's declaration of Emmerson Mnangagwa as the duly elected President of the Republic of Zimbabwe expire on Saturday 2 September, the deadline is nevertheless on Monday, because the seven-day period ends on a Saturday.
In terms of s 336(2) of the Constitution:
"Subject to this Constitution, whenever the time for doing anything in terms of this Constitution ends or falls on a Saturday, Sunday or public holiday, the time extends to and the thing may be done on the next day that is not a Saturday, Sunday or public holiday."
How this is reckoned is explained in an instructive extract of the full part of Chief Justice Luke Malaba's judgment, in Nelson Chamisa v Emmerson Mnangagwa and 24 Ors [at pages 27 to 37], reproduced below:
"WHETHER THE APPLICATION IS PROPERLY BEFORE THE COURT THE
Judgment No. CCZ 21/19
Constitutional Application No. CCZ 42/18
LODGING OF THE COURT APPLICATION
The first respondent, the Commission, the twenty-fourth and the twenty-fifth respondents took points in limine. One of the points in limine was that the court application was not properly before the Court. Although filed within seven days, as is stipulated by s 93(1) of the Constitution, the court application was served on the respondents on the eighth day, in violation of r 23(2) of the Rules. In addition, the applicant served the application only on the first respondent on his own, rather than through the Sheriff as required by the Rules.
The first respondent was declared to be duly elected as President of the Republic of Zimbabwe on 3 August 2018. In terms of s 93(1) of the Constitution, as read with r 23(2) of the Rules, the applicant had until 10 August 2018 to file and serve the court application on the respondents.
The applicant appears to have been cognisant of the reckoning of days and times prescribed by the Constitution. He waited until the last day before filing the court application with the Registrar shortly before close of business on 10 August 2018. He was entitled by law to do so.
Having filed the court application with the Registrar, the applicant was required by r 23(2) of the Rules to serve the court application on all the respondents within the prescribed period. Rule 9(7) of the Rules required the court application, as process initiating litigation in the Court, to be served by the Sheriff within the period prescribed for the service of the process. The respondents submitted that the applicant instructed the Sheriff to serve the court application outside the period prescribed for service of process.
The contention advanced on behalf of the applicant was that the Sheriff was given the instruction to serve the documents on the respondents eight hours before the expiry of the prescribed period. The allegation was made that the Sheriff executed service of the court application and the supporting documents on the respondents outside the prescribed period. The applicant put the blame for failure to serve the respondents timeously on the Sheriff. The affidavits submitted by the respondents show that the applicant had attempted to effect service of the court application and the supporting documents without the involvement of the Sheriff on 10 August 2018.
It is common cause that the court application was eventually served on the respondents on 11 August 2018, outside the period prescribed by the Rules. Service was outside the period of seven days prescribed in s 93(1) of the Constitution as the period within which a petition or application by an aggrieved candidate challenging the validity of a Presidential election had to be lodged.
The notices of opposition would have been due within three days from that date, being 14 August 2018.
In terms of s 336(2) of the Constitution:
"Subject to this Constitution, whenever the time for doing anything in terms of this Constitution ends or falls on a Saturday, Sunday or public holiday, the time extends to and the thing may be done on the next day that is not a Saturday, Sunday or public holiday."
The dies induciae having expired on 14 August 2018, which was a public holiday in Zimbabwe, the notices of opposition had to be filed on the next business day, being 15 August 2018. They were duly and properly filed with the Registrar on that date.
WHETHER THE COURT APPLICATION WAS FILED OUT OF TIME
Mr Uriri and Mr Magwaliba submitted that the court application was filed out of time. The submission was that to successfully lodge an application in terms of s 93(1) of the Constitution, as read with r 23(2) of the Rules, it was imperative to file and serve the court application on the interested parties within seven days of the declaration of the Presidential election result. The first respondent also argued that the seven-day period as contemplated by the Constitution included weekends.
Mr Uriri argued that the purpose of s 93(1) of the Constitution was to afford an aggrieved candidate an opportunity to challenge the validity of the Presidential election at the earliest time possible, bearing in mind the importance of the Office of President.
Mr Kanengoni also submitted that the court application was served out of time. It was his position that "lodge", as contemplated by s 93(1) of the Constitution, meant that the court application had to be filed and served on all the respondents within seven days. He submitted that, for service of the court application to be effective, it had to be executed by the Sheriff.
According to the applicant, the word "lodge", as used in s 93(1) of the Constitution, means to file the court application with the Registrar.
Counsel for the applicant sought to rely on s 169 of the Act to support the contention that the court application was timeously filed and served on the respondents. Section 169 of the Act sets out the time-frame for service of election petitions presented to the Electoral Court where one complains of an undue return or an election of a Member of Parliament by reason of want of qualification, disqualification, electoral malpractice, irregularities, or any other cause. In terms of s 169 of the Act, the petition shall be served on the respondents within ten days after the presentation of the petition, either personally or by leaving the same at his or her usual or last known dwelling or place of business.
Mr Uriri submitted that s 169 of the Act was of no relevance to the construction of s 93(1) of the Constitution, which begins with the words "Subject to this section". The effect of the use of the words "Subject to this section" is that any provision on time limits within which anything is required to be done which is contrary to what is prescribed under s 93(1) of the Constitution would have to be subservient to the provisions of s 93(1) of the Constitution.
THE LAW GOVERNING THE FILING AND SERVICE OF A COURT APPLICATION MADE IN TERMS OF SECTION 93(1) OF THE CONSTITUTION
Section 93(1) of the Constitution provides that any aggrieved candidate may challenge the validity of an election of a President by lodging a petition or application with the Court within seven days after the date of the declaration of the result of the Presidential election. Subsection (3) of s 93 enjoins the Court to hear and determine the petition or application lodged in terms of subs (1) within fourteen days after the application is lodged.
The meaning of the word "lodge" was the point of departure for the parties. The applicant's view was that it meant simply filing the application with the Registrar. The respondents, on the other hand, contended that "lodge" means to file the application with the Registrar and serve it on the respondent within seven days after the date of the declaration of the result of the Presidential election.
It is not possible to find the true meaning of "lodge", as used in s 93(1) of the Constitution, without having regard to the relevant provisions of the Rules. The general principle is that when one interprets a constitutional provision, any law that is subsidiary to the Constitution must be read together with the constitutional provision in question. The subsidiary law must be given effect as long as it is constitutionally valid. It is common cause that the constitutionality of the Rules was not questioned. They are valid and fully applicable.
Section 93(1) of the Constitution simply states that an aggrieved candidate may lodge an application within seven days after the date of the declaration of the Presidential election result. If he or she decides to do so, the lodgment of the petition or application must be effected within seven days of the declaration of the Presidential election result. The finer details of how the petition or application is effectively lodged are left to be prescribed by the Rules.
Section 93(1) of the Constitution confers on an aggrieved candidate the right to challenge the validity of a Presidential election. It confers on the aggrieved candidate the right of access to the Court. Where there is a right, there is a remedy. The remedy is the provision for the institution of proceedings in the Court by way of a petition or application to vindicate the right to challenge the validity of a Presidential election. The right to the remedy is conditional upon the petition or application being lodged with the Court within seven days of the declaration of the Presidential election result. Section 93(1) of the Constitution makes provision for both substantive and procedural rights. The question of filing and serving process is a question of procedure which falls within the purview of the Rules.
In Tsvangirai v Mugabe & Ors supra the Court held that s 93 of the Constitution must be considered as one whole. All other provisions which have a bearing on its true meaning must be considered so as to enforce the spirit and underlying values of the Constitution. At p 14 of the cyclostyled judgment the Court said:
"What is not to be overlooked when interpreting the provisions of s 93 of the Constitution is the fact that they set up a procedural mechanism, the purpose of which is the protection of the fundamental right of every Zimbabwean citizen to a free, fair and credible election for the public office of President. It is a procedural mechanism, the implementation of which is intended to uphold the fundamental principle of the rule of law on which Zimbabwe is founded." (the underlining is for emphasis)
Rule 23 of the Rules provides in relevant part as follows:
"23. Dispute relating to the election to the office of President or Vice President
(1) An application where the election of a President or Vice President is in dispute shall be by way of court application.
(2) The application shall be filed with the Registrar and shall be served on the respondent within seven days of the date of the declaration of the result of the election." (the underlining is for emphasis)
Rule 23(2) of the Rules explains the meaning of the word "lodge", as contemplated by s 93(1) of the Constitution. In terms of the subrule, to "lodge" means to file and serve the application made in terms of s 93(1) of the Constitution within seven days of the declaration of the Presidential election result.
There is no merit in the applicant's contention that "lodge", as used in s 93(1) of the Constitution, means to place the application in the Registrar's office. That interpretation would negate the effect of the intended relationship between the constitutional provisions and the Rules that are intended to give effect to them.
Section 93(1) of the Constitution cannot stand on its own because it sets up a general procedural mechanism, the specifics of which are grounded in the Rules. The law, as sanctioned by the Constitution itself, requires that the application be filed and served within seven days of the declaration of the Presidential election result.
THE APPLICABILITY OF SECTION 169 OF THE ACT
It is also important to highlight that s 169 of the Act does not apply to a court application that is brought to the Court in terms of s 93(1) of the Constitution. This is so because s 169 of the Act applies to election petitions presented to the Electoral Court. More importantly, the Act itself recognises the distinction between petitions presented to the Electoral Court in terms of the Act and petitions brought to the Court in terms of s 93(1) of the Constitution. Section 111 of the Act specifically provides for election petitions in respect of the election to the Office of President. Consistent with s 93(1) of the Constitution, s 111(1) of the Act provides as follows:
"(1) An election petition complaining of an undue return or an undue election of a person to the office of President, by reason of irregularity or any other cause whatsoever, may be presented to the Constitutional Court within seven days of the declaration of the result of the election in respect of which the petition is presented, by any person —
(a) claiming to have had a right to be elected at that election; or
(b) alleging himself or herself to have been a candidate at such election." (the underlining is for emphasis).
In the light of the provisions of s 111(1) of the Act, there was no merit in Mr Mpofu's attempt to persuade the Court to apply s 169 of the Act to purge the applicant's non-compliance with the requirements of s 93(1) of the Constitution. The applicant had to file and serve the application on all the respondents within seven days of the declaration of the Presidential election result by the twenty-fourth respondent.
COMPUTATION OF DAYS
There was also no merit in the applicant's computation of days. The Constitution does not refer to weekdays but days. This is to be taken to mean seven calendar days and includes Saturdays
35 Judgment No. CCZ 21/19
Constitutional Application No. CCZ 42/18
and Sundays. In terms of r 23(2) of the Rules, the court application shall be lodged with the Registrar and shall be served on the respondent within seven days of the declaration of the result of the Presidential election.
The applicant's interpretation of s 93(1) of the Constitution does not accord with the importance that is attached to the declaration of a Presidential election result, and the need for certainty as to who is the President soon after the Presidential election result is declared. The intention behind s 93 of the Constitution is that the Office of President be filled immediately after a declaration of the Presidential election result. In the event that the validity of the Presidential election is challenged, it is the will of the people, as expressed in s 93(3) of the Constitution, as read with r 23(7) of the Rules, that the challenge be determined within fourteen days after the application is lodged.
The importance of the Office of President and the reason why the determination of who holds that office should be finalised as soon as possible after a declaration of the Presidential election result were highlighted by the Court in Tsvangirai v Mugabe and Ors supra at pp 24-26 of the cyclostyled judgment. The Court said:
"Every constitutional democracy sets great value on the office of President in the distributionof the powers of the State. By the Constitution, the people in the exercise of theirsovereign authority designated the office of President as one of the most important offices. They assigned to the office of President powers by the lawful exercise of which they committed themselves to be governed in accordance with the conditions they prescribed. An election of a President is therefore a central institution for securing democratic self-government. By the election, the people choose the person who will exercise the powers of self-government for their benefit. …
An election of a President in Zimbabwe is a popular affair, in that every citizen registered on a voters roll at ward and constituency level countrywide is eligible to vote for a President. … Once chosen in a free, fair and credible election, a President assumes an office with enormous powers which he or she is required to exercise in accordance with the Constitution or any other law. …
An election of a President is bound to generate profound public interest, not necessarilymeasured by the number of votes cast in the election. Stakes are very high and politicaltensions may rise to levels that threaten public order and national security. The election of a President is not just about finding an answer to the question who of the candidates should be the leader of the Government. It is about choosing a leader who will have the interests of all Zimbabwean citizens at heart and has the intellectual ability to exercisethe powers of the office in accordance with the fundamental principles and values on which a democratic society is based to change the lives of the people for the better.
By the very nature of the circumstances in which it arises, a petition or application challenging the validity of an election of a President alleging that the President-elect stole the election requires effective and urgent determination on the merits. It is indicative of simmering political tension and potential disturbance of public peace and tranquillity. The cause is the very fact that those who would have voluntarily taken part in the electoral process, convinced that the rules by which they act guarantee the validity of the electoral outcome, challenge it as losers." (the underlining is for emphasis)
It is because of the essential nature of the Office of President and the emotions surrounding a Presidential election that the requirement to file and serve a challenge to the election result must be strictly honoured. It is after the filing and service of the application within seven days of the declaration of the Presidential election result that all other procedures for the filing of opposition papers and heads of argument in the matter start to kick in. The time-frames set out in r 23 of the Rules are computed from the day that the court application is filed and served. From that day, the Court, the opposing parties as cited in the application, and the nation at large, begin to prepare themselves for the hearing and determination of the question whether the Presidential election was free, fair and credible.
It follows from all of the foregoing that, although the application in casu was filed within the prescribed seven-day period, it was not served on the respondents within that time-frame.
Accordingly, it cannot be held to have been duly lodged in accordance with the applicable provisions of the Constitution and the Rules". - Chief Justice Luke Malaba
In terms of s 336(2) of the Constitution:
"Subject to this Constitution, whenever the time for doing anything in terms of this Constitution ends or falls on a Saturday, Sunday or public holiday, the time extends to and the thing may be done on the next day that is not a Saturday, Sunday or public holiday."
How this is reckoned is explained in an instructive extract of the full part of Chief Justice Luke Malaba's judgment, in Nelson Chamisa v Emmerson Mnangagwa and 24 Ors [at pages 27 to 37], reproduced below:
"WHETHER THE APPLICATION IS PROPERLY BEFORE THE COURT THE
Judgment No. CCZ 21/19
Constitutional Application No. CCZ 42/18
LODGING OF THE COURT APPLICATION
The first respondent, the Commission, the twenty-fourth and the twenty-fifth respondents took points in limine. One of the points in limine was that the court application was not properly before the Court. Although filed within seven days, as is stipulated by s 93(1) of the Constitution, the court application was served on the respondents on the eighth day, in violation of r 23(2) of the Rules. In addition, the applicant served the application only on the first respondent on his own, rather than through the Sheriff as required by the Rules.
The first respondent was declared to be duly elected as President of the Republic of Zimbabwe on 3 August 2018. In terms of s 93(1) of the Constitution, as read with r 23(2) of the Rules, the applicant had until 10 August 2018 to file and serve the court application on the respondents.
The applicant appears to have been cognisant of the reckoning of days and times prescribed by the Constitution. He waited until the last day before filing the court application with the Registrar shortly before close of business on 10 August 2018. He was entitled by law to do so.
Having filed the court application with the Registrar, the applicant was required by r 23(2) of the Rules to serve the court application on all the respondents within the prescribed period. Rule 9(7) of the Rules required the court application, as process initiating litigation in the Court, to be served by the Sheriff within the period prescribed for the service of the process. The respondents submitted that the applicant instructed the Sheriff to serve the court application outside the period prescribed for service of process.
The contention advanced on behalf of the applicant was that the Sheriff was given the instruction to serve the documents on the respondents eight hours before the expiry of the prescribed period. The allegation was made that the Sheriff executed service of the court application and the supporting documents on the respondents outside the prescribed period. The applicant put the blame for failure to serve the respondents timeously on the Sheriff. The affidavits submitted by the respondents show that the applicant had attempted to effect service of the court application and the supporting documents without the involvement of the Sheriff on 10 August 2018.
It is common cause that the court application was eventually served on the respondents on 11 August 2018, outside the period prescribed by the Rules. Service was outside the period of seven days prescribed in s 93(1) of the Constitution as the period within which a petition or application by an aggrieved candidate challenging the validity of a Presidential election had to be lodged.
The notices of opposition would have been due within three days from that date, being 14 August 2018.
In terms of s 336(2) of the Constitution:
"Subject to this Constitution, whenever the time for doing anything in terms of this Constitution ends or falls on a Saturday, Sunday or public holiday, the time extends to and the thing may be done on the next day that is not a Saturday, Sunday or public holiday."
The dies induciae having expired on 14 August 2018, which was a public holiday in Zimbabwe, the notices of opposition had to be filed on the next business day, being 15 August 2018. They were duly and properly filed with the Registrar on that date.
WHETHER THE COURT APPLICATION WAS FILED OUT OF TIME
Mr Uriri and Mr Magwaliba submitted that the court application was filed out of time. The submission was that to successfully lodge an application in terms of s 93(1) of the Constitution, as read with r 23(2) of the Rules, it was imperative to file and serve the court application on the interested parties within seven days of the declaration of the Presidential election result. The first respondent also argued that the seven-day period as contemplated by the Constitution included weekends.
Mr Uriri argued that the purpose of s 93(1) of the Constitution was to afford an aggrieved candidate an opportunity to challenge the validity of the Presidential election at the earliest time possible, bearing in mind the importance of the Office of President.
Mr Kanengoni also submitted that the court application was served out of time. It was his position that "lodge", as contemplated by s 93(1) of the Constitution, meant that the court application had to be filed and served on all the respondents within seven days. He submitted that, for service of the court application to be effective, it had to be executed by the Sheriff.
According to the applicant, the word "lodge", as used in s 93(1) of the Constitution, means to file the court application with the Registrar.
Counsel for the applicant sought to rely on s 169 of the Act to support the contention that the court application was timeously filed and served on the respondents. Section 169 of the Act sets out the time-frame for service of election petitions presented to the Electoral Court where one complains of an undue return or an election of a Member of Parliament by reason of want of qualification, disqualification, electoral malpractice, irregularities, or any other cause. In terms of s 169 of the Act, the petition shall be served on the respondents within ten days after the presentation of the petition, either personally or by leaving the same at his or her usual or last known dwelling or place of business.
Mr Uriri submitted that s 169 of the Act was of no relevance to the construction of s 93(1) of the Constitution, which begins with the words "Subject to this section". The effect of the use of the words "Subject to this section" is that any provision on time limits within which anything is required to be done which is contrary to what is prescribed under s 93(1) of the Constitution would have to be subservient to the provisions of s 93(1) of the Constitution.
THE LAW GOVERNING THE FILING AND SERVICE OF A COURT APPLICATION MADE IN TERMS OF SECTION 93(1) OF THE CONSTITUTION
Section 93(1) of the Constitution provides that any aggrieved candidate may challenge the validity of an election of a President by lodging a petition or application with the Court within seven days after the date of the declaration of the result of the Presidential election. Subsection (3) of s 93 enjoins the Court to hear and determine the petition or application lodged in terms of subs (1) within fourteen days after the application is lodged.
The meaning of the word "lodge" was the point of departure for the parties. The applicant's view was that it meant simply filing the application with the Registrar. The respondents, on the other hand, contended that "lodge" means to file the application with the Registrar and serve it on the respondent within seven days after the date of the declaration of the result of the Presidential election.
It is not possible to find the true meaning of "lodge", as used in s 93(1) of the Constitution, without having regard to the relevant provisions of the Rules. The general principle is that when one interprets a constitutional provision, any law that is subsidiary to the Constitution must be read together with the constitutional provision in question. The subsidiary law must be given effect as long as it is constitutionally valid. It is common cause that the constitutionality of the Rules was not questioned. They are valid and fully applicable.
Section 93(1) of the Constitution simply states that an aggrieved candidate may lodge an application within seven days after the date of the declaration of the Presidential election result. If he or she decides to do so, the lodgment of the petition or application must be effected within seven days of the declaration of the Presidential election result. The finer details of how the petition or application is effectively lodged are left to be prescribed by the Rules.
In Tsvangirai v Mugabe & Ors supra the Court held that s 93 of the Constitution must be considered as one whole. All other provisions which have a bearing on its true meaning must be considered so as to enforce the spirit and underlying values of the Constitution. At p 14 of the cyclostyled judgment the Court said:
"What is not to be overlooked when interpreting the provisions of s 93 of the Constitution is the fact that they set up a procedural mechanism, the purpose of which is the protection of the fundamental right of every Zimbabwean citizen to a free, fair and credible election for the public office of President. It is a procedural mechanism, the implementation of which is intended to uphold the fundamental principle of the rule of law on which Zimbabwe is founded." (the underlining is for emphasis)
Rule 23 of the Rules provides in relevant part as follows:
"23. Dispute relating to the election to the office of President or Vice President
(1) An application where the election of a President or Vice President is in dispute shall be by way of court application.
(2) The application shall be filed with the Registrar and shall be served on the respondent within seven days of the date of the declaration of the result of the election." (the underlining is for emphasis)
Rule 23(2) of the Rules explains the meaning of the word "lodge", as contemplated by s 93(1) of the Constitution. In terms of the subrule, to "lodge" means to file and serve the application made in terms of s 93(1) of the Constitution within seven days of the declaration of the Presidential election result.
There is no merit in the applicant's contention that "lodge", as used in s 93(1) of the Constitution, means to place the application in the Registrar's office. That interpretation would negate the effect of the intended relationship between the constitutional provisions and the Rules that are intended to give effect to them.
Section 93(1) of the Constitution cannot stand on its own because it sets up a general procedural mechanism, the specifics of which are grounded in the Rules. The law, as sanctioned by the Constitution itself, requires that the application be filed and served within seven days of the declaration of the Presidential election result.
THE APPLICABILITY OF SECTION 169 OF THE ACT
It is also important to highlight that s 169 of the Act does not apply to a court application that is brought to the Court in terms of s 93(1) of the Constitution. This is so because s 169 of the Act applies to election petitions presented to the Electoral Court. More importantly, the Act itself recognises the distinction between petitions presented to the Electoral Court in terms of the Act and petitions brought to the Court in terms of s 93(1) of the Constitution. Section 111 of the Act specifically provides for election petitions in respect of the election to the Office of President. Consistent with s 93(1) of the Constitution, s 111(1) of the Act provides as follows:
"(1) An election petition complaining of an undue return or an undue election of a person to the office of President, by reason of irregularity or any other cause whatsoever, may be presented to the Constitutional Court within seven days of the declaration of the result of the election in respect of which the petition is presented, by any person —
(a) claiming to have had a right to be elected at that election; or
(b) alleging himself or herself to have been a candidate at such election." (the underlining is for emphasis).
In the light of the provisions of s 111(1) of the Act, there was no merit in Mr Mpofu's attempt to persuade the Court to apply s 169 of the Act to purge the applicant's non-compliance with the requirements of s 93(1) of the Constitution. The applicant had to file and serve the application on all the respondents within seven days of the declaration of the Presidential election result by the twenty-fourth respondent.
COMPUTATION OF DAYS
There was also no merit in the applicant's computation of days. The Constitution does not refer to weekdays but days. This is to be taken to mean seven calendar days and includes Saturdays
35 Judgment No. CCZ 21/19
Constitutional Application No. CCZ 42/18
and Sundays. In terms of r 23(2) of the Rules, the court application shall be lodged with the Registrar and shall be served on the respondent within seven days of the declaration of the result of the Presidential election.
The applicant's interpretation of s 93(1) of the Constitution does not accord with the importance that is attached to the declaration of a Presidential election result, and the need for certainty as to who is the President soon after the Presidential election result is declared. The intention behind s 93 of the Constitution is that the Office of President be filled immediately after a declaration of the Presidential election result. In the event that the validity of the Presidential election is challenged, it is the will of the people, as expressed in s 93(3) of the Constitution, as read with r 23(7) of the Rules, that the challenge be determined within fourteen days after the application is lodged.
The importance of the Office of President and the reason why the determination of who holds that office should be finalised as soon as possible after a declaration of the Presidential election result were highlighted by the Court in Tsvangirai v Mugabe and Ors supra at pp 24-26 of the cyclostyled judgment. The Court said:
"Every constitutional democracy sets great value on the office of President in the distributionof the powers of the State. By the Constitution, the people in the exercise of theirsovereign authority designated the office of President as one of the most important offices. They assigned to the office of President powers by the lawful exercise of which they committed themselves to be governed in accordance with the conditions they prescribed. An election of a President is therefore a central institution for securing democratic self-government. By the election, the people choose the person who will exercise the powers of self-government for their benefit. …
An election of a President in Zimbabwe is a popular affair, in that every citizen registered on a voters roll at ward and constituency level countrywide is eligible to vote for a President. … Once chosen in a free, fair and credible election, a President assumes an office with enormous powers which he or she is required to exercise in accordance with the Constitution or any other law. …
An election of a President is bound to generate profound public interest, not necessarilymeasured by the number of votes cast in the election. Stakes are very high and politicaltensions may rise to levels that threaten public order and national security. The election of a President is not just about finding an answer to the question who of the candidates should be the leader of the Government. It is about choosing a leader who will have the interests of all Zimbabwean citizens at heart and has the intellectual ability to exercisethe powers of the office in accordance with the fundamental principles and values on which a democratic society is based to change the lives of the people for the better.
By the very nature of the circumstances in which it arises, a petition or application challenging the validity of an election of a President alleging that the President-elect stole the election requires effective and urgent determination on the merits. It is indicative of simmering political tension and potential disturbance of public peace and tranquillity. The cause is the very fact that those who would have voluntarily taken part in the electoral process, convinced that the rules by which they act guarantee the validity of the electoral outcome, challenge it as losers." (the underlining is for emphasis)
It is because of the essential nature of the Office of President and the emotions surrounding a Presidential election that the requirement to file and serve a challenge to the election result must be strictly honoured. It is after the filing and service of the application within seven days of the declaration of the Presidential election result that all other procedures for the filing of opposition papers and heads of argument in the matter start to kick in. The time-frames set out in r 23 of the Rules are computed from the day that the court application is filed and served. From that day, the Court, the opposing parties as cited in the application, and the nation at large, begin to prepare themselves for the hearing and determination of the question whether the Presidential election was free, fair and credible.
It follows from all of the foregoing that, although the application in casu was filed within the prescribed seven-day period, it was not served on the respondents within that time-frame.
Accordingly, it cannot be held to have been duly lodged in accordance with the applicable provisions of the Constitution and the Rules". - Chief Justice Luke Malaba
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