Lwazi Sibanda & Betty Hlabangana v Francisca Ncube & Phillis Ndlovu & Chairperson, Zimbabwe Electoral Commission & Zimbabwe Electoral Commission & Nah Khumalo & Godwill Ndlovu

### Preamble
Judgment No. SC 158/2020
Civil Appeal No. SC 16/191
Civil Appeal No. SC 17/19
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REPORTABLE 		(147)

LWAZI     SIBANDA

BETTY     HLABANGANA

v

FRANCISCA     NCUBE

PHILLIS     NDLOVU

CHAIRPERSON,     ZIMBABWE     ELECTORAL     COMMISSION

ZIMBABWE     ELECTORAL     COMMISSION

NAH     KHUMALO

GODWILL     NDLOVU

v

CHIRATIDZO     MUDIMBA

PRESENCE     SHOKO

CHAIRPERSON,     ZIMBABWE     ELECTORAL     COMMISSION

ZIMBABWE     ELECTORAL     COMMISSION

SUPREME COURT OF ZIMBABWE

PATEL JA, GUVAVA JA & HUNGWE JA

HARARE: JULY 23, 2019 & NOVEMBER 24, 2020

L. Madhuku, for the appellants

K. Phulu and C. Mudenda, for the 1st and 2nd respondents

T.M. Kanengoni, for the 3rd and 4th respondents

PATEL JA:		Both matters herein emanate from two separate election petitions lodged before the High Court, qua Electoral Court, in Case No. EC 21/18 and Case No. EC 37/18. They were consolidated and heard together and determined in a single composite judgment (No. ECH 2-19) by the court a quo. Both appeals were similarly consolidated and heard together in this Court. At the end of that hearing, following submissions by counsel on two preliminary issues, the Court made the following order:

Judgment in relation to both preliminary points:

whether both appeals are properly before this Court in view of the timelines prescribed in s 182 of the Electoral Act [Chapter 2:13]; and

whether the appeals are fatally defective for failure to comply with r 37(1)(c) of the Supreme Court Rules 2018;

be and is hereby reserved.

In the event that the above stated questions are resolved in favour of the appellants, the Registrar of this Court will be directed to set both matters down before the same bench.

Background

Both election petitions in the court a quo involved certain common features. The complaint of the petitioners, in essence, was that the Provincial Elections Officer for Matabeleland North Province unlawfully excluded their party (the Movement for Democratic Change) from the list of participating political parties devised for the purpose of allocating seats under the proportional representation system in the National Assembly, the Senate and the Provincial Council for Matabeleland North Province. Both sets of petitioners moved that the election of the respondents be set aside and that the petitioners be declared duly elected instead.

Judgment of the Electoral Court

The court a quo addressed several aspects of the petitions before it. The first related to the signing of election petitions. The second concerned the mode of personal service of petitions on respondents. The third revolved around the payment of security for costs by petitioners.

The court found that s 168(1) of the Electoral Act [Chapter 2:13] is mandatory and requires every petitioner to personally sign his or her petition. There was no room for a legal practitioner or anyone else to sign the petition on his or her behalf.  In casu, one of the petitioners had not personally signed the petition in question.

The court further found that s 169 of the Act requires that every petition be served on the respondent in person or at his or her dwelling or place of business. Service of the petition on the neighbour of one of the respondents, as happened in this case, did not constitute proper service. Again, subsequent service at the direction of the court, having been effected outside the time prescribed, rendered the petition invalid.

Lastly, the court found that s 168(3) of the Act, as read with s 28 of the Electoral Regulations 2005, is peremptory and must be strictly complied with. These provisions require that security for costs in the prescribed amounts be paid by each petitioner and not only in respect of each petition. As regards the petitioners in casu, all four petitioners had failed to pay the requisite amounts in full.

In the event, consequent upon the abovementioned irregularities, the court held that both petitions were fatally defective and invalid and that it was therefore not necessary to consider them on their merits. The petitions were declared to be null and void and were dismissed with costs. Additionally, the four respondents in question were declared to have been duly elected.

Grounds of appeal and points in limine

The grounds of appeal herein attack the judgment a quo on the basis that the court misdirected itself and erred in finding that:

The prescribed security for costs was to be given by each petitioner and not in respect of each petition.

It was mandatory to have the petitioner’s personal signature on the petition and a petition signed by a legal practitioner was invalid.

Service of the petition outside the prescribed time limit was invalid even though it had been effected at the direction of the court itself.

One of the respondents was not properly before the court despite his actual presence in court.

The relief sought by the appellants is for the judgment a quo to be set aside and substituted by the dismissal with costs of all the points in limine. Additionally, it is prayed that both matters be remitted to the court a quo for their determination on the merits.

The two preliminary points taken by the respondents form the subject matter of this judgment. The first point is that the appeals in casu should have been determined within three months from the date when they were lodged, as is stipulated by s 182 of the Electoral Act. Since the appeals were not finalised within the stipulated period due to inaction by the appellants, they should both be dismissed. The second point is that the notices of appeal in casu purport to appeal against the whole judgment of the Electoral Court, whereas the grounds of appeal in each notice of appeal are confined to the particular parts of the judgment that deal with the respective cases of the four appellants. This renders both appeals non-compliant with r 37(1)(c) of the Supreme Court Rules which requires that an appellant must clearly indicate whether his or her appeal is against the whole or part of the judgment appealed against. This constitutes a fatal defect and both appeals should therefore be dismissed with costs.

Non-compliance with rule 37

Rule 37(1)(c)of the Supreme Court Rules 2018 stipulates that every notice of appeal:

“shall state … whether the whole or part only, and if so which part, of the 	judgment is appealed against.”

Mr Phulu and Ms Mudenda, for the first and second respondents in both matters, submit that both appeals are fatally defective for having appealed against the whole judgment a quo. The appellants should have either filed a single appeal against the whole of the composite judgment or noted two separate appeals against the applicable parts of the judgment. Rule 37(1)(c), so it is argued, must be strictly complied with. The failure to do so in casu should be visited with both appeals being dismissed in accordance with the approach adopted in Jensen v Acavalos 1993 (1) ZLR  216 (S) at 220A and Matanhire v BP Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S).

Mr Madhuku, for the appellants in both matters, takes the position that the present appeals were noted in terms of r 59, which is different from r 37 and which falls under Part VII of the Supreme Court Rules. Counsel for the respondents both agree that Part VII is the part that applies to electoral appeals, but persist with the point that r 37 (1) (c) should nevertheless be strictly complied with. Mr Madhuku counters that appeals under Part VII are distinct and intended to be more liberally addressed.

Rule 37 falls under Part VI of the Rules which relates to “Civil Appeals from the High Court”. In contrast, r 59 is to be found in Part VII under the broad rubric of “Miscellaneous Appeals and References”. In terms of r 57 (1), Part VII applies to any appeal to the Supreme Court which is provided for in any enactment in force, while r 57(2)(a) makes it clear that Part VII does not apply to any appeal or reference in terms of the High Court Act [Chapter 7:06]. Again, rr 62(1) and 62(2), which regulate the format, content and lodging of records of proceedings, make express reference to records from the Electoral Court. All of the foregoing leads to the only logical conclusion that appeals from the Electoral Court to this Court under the Electoral Act are governed by Part VII of the Rules.

Turning to r 59 itself, it is this rule that prescribes the requisites for the noting and service of appeals instituted under Part VII of the Rules. Rule 59 (3) further stipulates what should be stated in a notice of appeal. This subrule contains no equivalent of r 37(1)(c) and is conspicuously devoid of any reference to the whole or part of the judgment that is appealed against. In my view, there is no valid reason, whether administrative, procedural or otherwise, for importing the requirements of r (371)(c) into the interpretation and application of r 59 (3).

It follows that the anomalous but superfluous reference to an appeal against the whole judgment a quo in the notices of appeal in casu are of little consequence and cannot operate to vitiate or invalidate those notices. It also follows that the preliminary point raised by the respondents in this regard cannot be sustained and must therefore be dismissed.

Timeous Disposal of Election Petitions and Appeals

Section 182 of the Electoral Act governs the time within which election petitions and appeals are to be determined. The provision that was originally in force was repealed and substituted by s 34 of the Electoral Amendment Act No. 6 of 2018. Section 182 in its present form stipulates as follows:

“(1) Every election petition shall be determined within six months from the 	date of presentation.

(2) An appeal under section 172(2) shall be determined within three months 	from the date of the lodging of the appeal.

(3) For the purpose of ensuring that an election petition or an appeal is 	determined within the time-limit prescribed in subsection (1) or (2), as the 	case 	may be—

(a) the Judge President of the High Court or the presiding judge of 				the Electoral Court, in the case of an election petition; and

(b) the Chief Justice or the senior presiding judge of the Supreme 				Court, in the case of an appeal from a decision on an electoral 				petition;

may, notwithstanding any other enactment, give such directions as to the filing 	of documents and the hearing of evidence and argument as will, in his or her 	opinion, ensure that the time-limit is met, and the parties shall comply with 	those directions.”

The last general elections were conducted at the end of July 2018. The election petitions in casu were lodged on 10 and 16 August 2018 respectively. The Electoral Court heard both matters on 8 November and 6 December 2018 and delivered its judgment on 9 January 2019. This occurred within the prescribed period of six months from the date of the presentation of the petition. However, as I have already noted, the court a quo did not determine the petitions on their merits but dismissed them on purely procedural and technical grounds.

Subsequent to the dismissal of the petitions, the appellants noted the present appeals on 22 January 2019. The appeal records were inspected on 2, 3 and 15 April 2019. Notices of set down were sent on 21 May 2019 and both appeals were heard on 23 July 2019. By virtue of s 182(2) of the Act, the appeals should have been determined within three months from the date when they were lodged, i.e. by 22 April 2019.

Mr Madhuku relies on s 182(3) of the Act to submit that this provision was inserted to emphasise that the duty to ensure that election petitions and appeals are timeously determined lies on the courts. The judicial officers identified in s 182(3) are enjoined to give the requisite directions to ensure compliance with the stipulated time limits. If they fail to give those directions, then the litigants concerned should not be penalised. Mr Madhuku also relies on the case of Timba v Passade ECH 4/14, where the election petition in question was heard and determined a year after it was filed. It was held in that case that s 182 of the Act was directory and not mandatory and that its command was directed at the Electoral Court over which the litigants involved had no control. It was further observed that the right to be heard would be violated if the courts did not fulfil their statutory duty.

Mr Phulu submits that Timba’s case is inapplicable as it dealt with s 182 before it was amended in 2018. The primary purpose of s 182(2) as amended was to ensure compliance with its timelines and not to give any power to condone non-compliance. The giving of directions is not triggered by the court but by the litigants themselves who should, through their legal practitioners, seek directions when necessary in accordance with r 4 of the Supreme Court Rules. Mr Phulu contends that this is what the appellants should have done in this case.

Ms Mudenda agrees that Timba’s case is inapplicable as it was decided in 2014 before the Act was amended in 2018. Section 182(2) states that election appeals must be determined within three months. This is buttressed by r 31 of the Electoral Rules 1995 which requires that the Registrar and all the parties must take all the necessary steps to ensure that election petitions and appeals are dealt with as quickly as possible.

Mr Kanengoni for the third and fourth respondents also submits that the provisions of s 182 of the Act are to be implemented through the Electoral Rules of 1995, which enjoin the Registrar and all the parties to take steps to ensure compliance with the prescribed timelines. The appellants could not be excused for having done nothing formal to expedite the matter. Mr Kanengoni further submits that s 182 is not directory but peremptory. Parliament has the power to direct the courts to deal with matters expeditiously. There would be no violation of the separation of powers doctrine if s 182 were to be construed as being mandatory.

Turning to the Timba case, supra, the petition in question was filed on 16 August 2013 and was only determined on 18 August 2014. The issue that arose was what effect the failure to comply with the six months period prescribed by s 182 of the Act had on the petition. The court noted that the reason for the delay in concluding the matter was due to the filing and determination of a separate application launched by the petitioner, seeking access to certain election material residue in ballot boxes for use at the main trial. The court further observed that the purpose of s 182 was “to avoid electoral disputes going beyond the life of Parliament without being determined” and was therefore “meant for the benefit of the petitioner”. It was found that the command of the provision was “directed at the court over which both litigants have no control regarding the manner in which it discharges its duties”. Consequently, “it would lead to an absurdity if Parliament were to visit the petitioner with a penalty extinguishing his right to a fair hearing and determination of his claim within a reasonable time in circumstances where he is not at fault”. For these reasons, the court held that “s 182 which requires that a petition be determined within 6 months is merely directory rather than mandatory”.

It is pertinent to highlight two critical features of the findings made in the Timba case. The first is that the disputing parties had no control over the manner in which the court discharged its duties. The second is that the petitioner in question was not at fault in the failure to determine the petition within the stipulated period of six months. I shall revert to both of these aspects later in this judgment.

A further aspect that is equally important is that the relevant provisions of the Act in 2014 were markedly different in two significant respects. Firstly, in terms of s 172 before it was amended, election appeals before this Court were to be determined within six months from the date of having been lodged, rather than within three months as is the case at the present time. The import of this reduction in the period for determining election appeals is fairly obvious. Parliament clearly intended that the overall appeal process should be substantially shortened. Secondly, prior to being amended, the Act did not contain any provision similar or equivalent to the current s 182(3), enabling the giving of directions to ensure that the prescribed time limits are met. The significance of this provision in the present context is that it raises the following crucial questions for consideration: Does the duty to ensure compliance with the stipulated time limits lie with the courts or their officers and functionaries or does it lie with the litigants themselves? How is that duty to be performed and what are the consequences of the failure to meet the prescribed time limits?

The answer to the first question, in my view, is that it is incumbent upon all the players involved in the adjudication of electoral matters to ensure compliance with the time limits stipulated in subss (1) and (2) of s 182. That this is so is made abundantly clear by the provisions of subs (3) of s 182. What is not explicitly articulated is the extent to and manner in which each player is expected to carry out his or her respective role in the adjudicative process. These are matters to be inferred from other relevant statutory provisions and from the rules of practice and procedure generally. The most relevant statutory provision aliunde is to be found in r 31 of the Electoral (Applications, Appeals and Petitions) Rules 1995, the heading of which rule emphasises the urgency of electoral matters. It provides that:

“The Registrar and all parties to any stated case, petition, appeal or 	application referred to in these rules shall take all steps necessary to ensure 	that the matter is dealt with as quickly as possible.”

The “Registrar” in this context is identified, in r 2(1), as being the Registrar of the High Court. What is relatively clear, therefore, is that it is this Registrar and all the parties to any election petition or appeal who are enjoined to take all the steps necessary to ensure that the matter in question is dealt with as quickly as possible and, in any event, in compliance with the time limits prescribed in s 182 of the Act.

What is also fairly clear is that the judicial officers specified in s 182(3), i.e. the Chief Justice, the Judge President and the presiding judge in any election petition or appeal, cannot be expected to issue directions, either in general or in vacuo, as to the filing of documents and the hearing of evidence and argument, to ensure that the relevant time limits are met. The requisite directions will obviously vary from case to case and will depend upon the particular difficulty or obstacle encountered in any given case. By the same token, I do not think that the Registrar, whether of the High Court or the Supreme Court, should be expected to minutely and closely monitor and supervise every electoral matter that falls under his or her remit or authority. He or she will only be able to act, if and when he or she is alerted to the particular circumstances of any matter requiring his or her specific attention. Any other interpretation of s 182 of the Act, taken in conjunction with r 31 of the Rules, would render the performance of the Registrar’s functions procedurally unworkable and administratively unmanageable.

Ultimately, it seems to me that it is for the parties themselves, and the petitioner or appellant in particular, qua dominus litis, to initiate the process of seeking and obtaining the requisite directions envisaged in s 182(3) of the Act. It is they and their legal practitioners who should be especially vigilant in monitoring and managing the progress of their own cases in order to meet the stipulated time limits. And it is the parties, through their lawyers, who should take the initiative to approach the relevant Registrar to apprise him or her of the specific difficulty that may have been encountered in complying with the provisions of subss (1) or (2) of s 182, as the case may be. Indeed, this is entirely consistent with prevailing practice in the conduct of litigation generally insofar as concerns adherence to the procedural timelines set out in all our rules of court.

Turning to the instant case, the petitions in question were lodged in August 2018 but were only disposed of in January 2019 without any determination of their substantive merits having been made by the court a quo. Thereafter, both of the present appeals were noted on 22 January 2019 and the appeal records were inspected by the appellants on 2 April 2019 and by the respondents on 3 and 15 April 2019. The matters were then set down on 21 May 2019 and eventually heard by this Court on 23 July 2019. There is nothing on record, and nothing was stated by counsel before us, to explain the various gaps and delays that occurred in the proceedings before the court a quo and before this Court. Nor is there any correspondence before us to show what formal approach, if any, was made by any of the parties to the relevant Registrars in order to expedite the determination of the petitions and the consequent appeals. I should observe that these issues would only become relevant if it were to be found that the provisions of s 182 are merely directory, in which case the question of default or inaction on the part of the appellants would become relevant. If, on the other hand, those provisions are found to be peremptory, the specific reasons for non-compliance with the prescribed time limits would be rendered entirely immaterial.

Whether Time Limits are Mandatory or Directory

It is trite that the use of the word “shall” in the context of a statutory duty ordinarily connotes the imperative nature of that duty. In each case, it is necessary to determine whether the legislature intended the duty to be mandatory or purely directory. The difficulty in construction usually arises where the relevant duty is not complied with and the intended consequence of that failure to comply is not expressed in the legislation itself. Where the duty in question is held to be peremptory, the failure to comply with it will operate to invalidate or nullify anything done under the governing statutory provision. On the other hand, where the relevant duty is held to be merely directory, the failure to comply with it will not invalidate or nullify the thing done under the enactment. In that case, the statutory provision must be applied as nearly as may be as if the duty had been complied with. (See, in these respects, Bennion: Statutory Interpretation (1984) at p. 21).

The broad test for ascertaining the true nature of a statutory duty was enunciated more than a century ago in the case of Howard v Bodington (1877) 2 PD 203, at 211:

“…….. in each case you must look to the subject-matter, consider the 	importance of the provision and the relation of that provision to the general 	object intended to be secured by the Act, and upon a review of the case on that 	aspect decide whether the enactment is what is called imperative or only directory 	…….. “

A further aspect that may be relevant is the need to distinguish between those persons who are bound to perform the statutory duty and those who might be affected by its performance or non-performance. (See Bennion, op cit, at p. 21). In this context, the extent to which the former are in a position to exercise control over the latter may become a crucial consideration. This point was aptly elucidated in Montreal Street Railway Company v Normandin [1917] AC 170, at 174:

“When the provisions of a statute relate to the performance of a public duty 	and the case is such that to hold null and void acts done in respect of this duty would 	work serious inconvenience or injustice to persons who have no control over those 	entrusted with the duty, and at the same time would 	not promote the main object 	of the legislature, it has been the practice to 	hold such provisions to be directory 	only, the neglect of them, though punishable, not affecting the validity of the acts 	done.”

Reverting to s 182 of the Electoral Act, I have earlier concluded that the duty to ensure the timeous determination of electoral petitions and appeals lies, in varying degrees, upon the courts and its officers as well as the parties themselves. In this respect, the litigants are better placed to monitor their respective cases and initiate the measures necessary to expedite their finalisation. In these circumstances, it cannot be said that they have no control over the requisite adjudicative processes and that, therefore, they should not be visited with any inconvenience or penalty consequent upon the failure to comply with the time limits stipulated in subss (1) and (2) of s 182. This would therefore militate against the proposition that those provisions should be regarded as being purely directory.

There is the further argument, addressed by counsel for all the parties, apropos the constitutional dimension of electoral matters. In terms of s 46(2) of the Constitution, when interpreting an enactment, our courts must be guided by the spirit and objectives of Chapter 4, viz. the Declaration of Rights. Section 44 reinforces this injunction by commanding the State and every person to respect, protect, promote and fulfil the rights and freedoms set out in Chapter 4. Amongst those rights and freedoms are the right to a fair hearing, as elaborated in s 69, which includes the right to a fair, speedy and public hearing within a reasonable time as well as the right of access to the courts for the resolution of any dispute. Additionally, although outside the ambit of the Declaration of Rights per se, there is s 157(1) of the Constitution which dictates that an Act of Parliament must provide for the conduct of elections and referendums and, in particular, through s 157(1)(g), for challenges to election results.

Mr Madhuku invokes the foregoing provisions to submit that Parliament cannot command the courts to dispose of electoral matters within prescribed timelines. He further argues that, if s 182 of the Electoral Act were to be construed literally, it would violate the aforementioned fundamental rights and would therefore be unconstitutional. He does not, however, go so far as to contend that s 182 itself is unconstitutional.

Ms Mudenda submits that the courts should not read anything into the provisions of s 182 of the Act and that there is no ambiguity in those provisions. Mr Phulu argues that the right of access to the courts may be limited in a reasonable way and that s 182 of the Act prescribes reasonable limitations on that right.

Mr Kanengoni agrees with these arguments from a wider angle. He submits that the conduct of elections necessitates time frames and timelines that must be complied with. Thus, the application of s 46(2) of the Constitution must have regard to the rights of all other citizens. The latter are entitled to regular, free and fair elections. They also have rights to administrative justice. It is therefore necessary to balance the rights of parties to electoral litigation with those of other citizens. Their interests cannot be subjected to the right of access to the courts. On this approach, the strict interpretation of s 182 of the Act does not violate the application of s 46(2) of the Constitution.

According to Bennion, op. cit., at p. 259:

“The basic rule of statutory interpretation is that it is taken to be the 	legislator’s intention that the enactment shall be construed in accordance with the 	general guides to legislative intention laid down by law; and that where these 	conflict the problem shall be resolved by weighing and balancing the factors 	concerned.”

The cardinal rule of construction is to ascertain the true intention of the lawmaker. In ascertaining that legislative intent, the golden rule of statutory interpretation is that every enactment must be given its plain, ordinary and grammatical meaning, unless to do so would result in some inconsistency, absurdity or repugnancy, in which case the provision may be construed and applied with such modification as may be necessary to obviate the anomaly in question. The corollary to this rule, where fundamental rights and freedoms or other constitutional provisions are implicated, is that the enactment must be construed, insofar as is possible without doing violence to its language, so as to conform with those rights and freedoms or other constitutional provisions. In the event that it is not possible to do so, the enactment is exposed to the risk of being challenged and struck down as being unconstitutional.

As I have intimated earlier in this judgment, the decision in Timba’s case, supra, is clearly distinguishable from the situation in casu, principally because the provisions of s 182 of the Electoral Act were radically different at the time of that decision in 2014. Most significantly, there was no equivalent of the current s 182(3), which now enables the contesting parties to seek and obtain such directions as will ensure that the requisite time limits are met. Consequently, it can no longer be pleaded, as was reasoned in Timba’s case, that the parties have no control over the adjudicative process and therefore cannot be faulted and held accountable for having failed to expedite the finalisation of electoral matters.

Turning to s 182 itself, the provisions of subs (3) are obviously directory and the discretionary powers conferred thereby are to be exercised as and when necessary depending, as I have already explained, upon the particular circumstances of each case. In contrast, the peremptory language employed in subss (1) and (2) leaves very little room for the proposition that they are permissive and therefore purely directory.

The legislative history of these provisions, captured in their genesis and subsequent development, makes it abundantly clear that the purpose for which they were designed was to expedite the final determination of electoral petitions and appeals and thereby curtail the perceived mischief of interminable electoral proceedings. In addition, the discretionary powers conferred by subs (3) were deliberately inserted in 2018 so as to achieve and secure that legislative purpose and design. To construe the provisions of s 182, taken as a whole, as being merely directory would only serve to frustrate and defeat the clear intention of the legislature and the objective that it sought to attain. It follows, in my view, that the provisions of subss (1) and (2) are imperative and therefore mandatory and that the time limits stipulated in those provisions cannot be exceeded under any circumstances. It also follows that any adjudicative proceedings that may be conducted beyond those time limits are rendered nugatory and must be regarded as being null and void. Put differently, the courts are not at liberty to entertain such proceedings outside the mandated timelines.

To conclude this aspect of the matter, the foregoing construction of s 182 as demanding strict compliance with its prescribed time limits, although seemingly draconian in effect, substantially accords with its plain and grammatical meaning. In this respect, I am unable to perceive any glaring absurdity or inconsistency in the adoption and application of that construction.

As regards the constitutional conspectus, I am not persuaded by the argument that the strict interpretation of s 182 operates to violate any interpretive or substantive norm of the Constitution. I am in total agreement with the broad proposition that statutory provisions in general must, as is enjoined by ss 44 and 46(2) of the Constitution, be construed and applied in conformity with the fundamental rights and freedoms entrenched in the Declaration of Rights. These include the right to a fair hearing and the right of access to the courts in all civil matters, expressly enshrined in s 69 of the Constitution, as well as the associated entitlement to challenge election results that is contemplated and impliedly guaranteed by s 157(1)(g) of the Constitution. Again, however, I do not discern any meaningful contradiction or inconsistency between the enjoyment of these rights and freedoms and the strict implementation and enforcement of the timelines demanded by s 182 of the Electoral Act.

More particularly, s 182 is undoubtedly an integral part of the process of challenging election results envisaged by s 157(1)(g) of the Constitution. By the same token, the rules governing the adjudication of election petitions and appeals must inevitably implicate and advance the right to a fair hearing and the right of access to the courts embodied in s 69 of the Constitution. In this general sense, s 182 itself is relatively unimpeachable. What might be problematic is the constitutionality of the strict time limits that it imposes on the finalisation of electoral matters. These time limits obviously impinge upon the constitutional rights that I have alluded to by restricting the length of the period during which they may be exercised.

In this regard, I take the view that the restrictions imposed by s 182 are eminently “fair, reasonable, necessary and justifiable in a democratic society”, taking into account the relevant factors delineated in s 86(2) of the Constitution. In particular, they are necessary in the general public interest to secure the expeditious determination of electoral challenges. Furthermore, given that the timeframes stipulated are not unduly attenuated, they do not operate to impose any greater restrictions on the rights concerned than are necessary to achieve their intended purpose. Lastly, I am unable to conceive any less restrictive means of achieving the purpose of the limitations imposed by s 182.

Apart from the specific criteria to be considered under s 86(2) of the Constitution, there is also the general limitation postulated by s 86(1), viz., that fundamental rights and freedoms “must be exercised reasonably and with due regard for the rights and freedoms of other persons”. In particular, s 67(1)(a) of the Constitution affirms the right of every citizen “to free, fair and regular elections for any elective public office”. The regularity of elections perforce imports the notion of finality to electoral litigation, necessitating the imposition of reasonable time limits on the determination of electoral challenges. As noted earlier in this judgment, the need to avoid electoral disputes extending beyond the life of parliament without being finalised was quite correctly recognised in Timba’s case, supra.

To conclude my analysis of s 182 of the Electoral Act, I take the view that the time limits imposed by that provision on the determination of election petitions and appeals are mandatory and must be strictly complied with. Moreover, the adoption and application of this strict construction does not entail any contravention or violation of constitutional rights and freedoms.

Disposition

The point in limine, to the effect that both notices of appeal in casu are fatally defective for failure to comply with r 37(1)(c) of the Supreme Court Rules, is devoid of merit and must therefore be dismissed. On the other hand, the further point in limine, challenging the continued adjudication of both appeals beyond the time limits prescribed by s 182 of the Electoral Act, is sustained and must be upheld.

The appeals in casu were lodged on 22 January 2019. They should have been heard and determined within three months, i.e. on or before 22 April 2019. For reasons that were not self-evident or explained to the Court, the appeals were only set down for hearing by notices dispatched on 21 May 2019 and the points in limine raised by the respondents were eventually heard on 23 July 2019. Consequently, the appeals can no longer be heard or determined by this Court.

As regards costs, in view of the fact that the appellants as well as the respondents have enjoyed relatively equal success, it seems just and equitable that each party should be ordered to bear its own costs.

It is accordingly ordered that both appeals in this matter, having ceased to be properly before this Court by reason of the time limit stipulated by s 182(2) of the Electoral Act having been exceeded, be and are hereby removed from the roll with each party to bear its own costs.

GUVAVA JA			:		I AGREE

HUNGWE JA			:		I AGREE

Lovemore Madhuku Lawyers, appellants’ legal practitioners

Mudenda Attorneys, 1st and 2nd respondents’ legal practitioners

Nyika Kanengoni & Partners, 3rd and 4th respondents’ legal practitioners