Sipani-Hungwe v Masaiti & Anor (EP 53 of 2008; HH 57 of 2008) [2004] ZWHHC 57 (3 July 2004)

HH 57-2008 EP 53/08 OMEGA SIPANI-HUNGWE versus EVELYN MASAITI and ZIMBABWE ELECTORAL COMMISSION ELECTORAL COURT OF ZIMBABWE OMERJEE J HARARE: 3rd and 4th July, 2004 Electoral Petition Mr Mukome, for the petitioner Mr Bamu, for the first respondent OMERJEE J: On 29 March 2008, the harmonised presidential, parliamentary and council elections were held in Zimbabwe. The petitioner stood as the candidate on behalf of Zimbabwe African National Union (Patriotic Front) ‘ZANU PF’ for the House of Assembly seat in the constituency of Dzivarasekwa. The first respondent contested the seat on behalf of the Movement for Democratic Change ‘MDC’. The second respondent was responsible to conduct and supervise the polls. The first respondent was declared the winner of the Dzivarasekwa seat. Aggrieved with the prevailing pre election environment at the time as well as with the manner the election was conducted, the petitioner lodged the present petition with the Registrar on 14 April 2008. The petitioner seeks an order nullifying the result of the Dzivarasekwa constituency together with ancillary relief and an order as to costs. The relief sought is opposed by the first and second respondents, respectively. The first respondent submits in limine, that this court determine the issue as to compliance by first respondent with the electoral law in the following respects namely:- (1) Whether service of the petition outside the 10 day period stipulated in s 169 of the Electoral Act [Chapter 2:13] “the Act” is such non-compliance as to render the petition a nullity (2) Whether service of the petition at the headquarters of the first respondent’s political party is such non compliance with the provision of the Act as to render the petition invalid. Both issues arise from the wording of s 169 of the Act. The issues in simple terms HH 57-2008 EP 53/08 concern firstly whether service outside the 10 day period, and secondly, at the political party headquarters of the first respondent constitutes compliance with the provisions of the Act. Such finding will in turn determine, whether or not the petitioner is non suited. It is proposed to adopt this approach in dealing with this petition. Section 169 of the Act reads as follows: “Notice in writing of the presentation of a petition and of the names and addresses of the proposed sureties, accompanied by a copy of the petition, shall, within ten days after the presentation of the petition, be served by the petitioner on the respondent personally or by leaving the same at his or her usual or last known dwelling or place of business”. Mr Bamu on the behalf of the first respondent submitted that the petition was in violation of the terms of the said provision requiring that service be done within ten days. The petition was filed on 14 April 2008. The 10 day period expired at the close of the business on 24 April, 2008. Service of the petition it is not in dispute was effected on 6 May 2008 some 12 days outside the 10 day limit prescribed in s 169 of the Act, The petitioner failed to adhere to the 10 day limit. The petitioner did not achieve equivalent or substantial compliance with the prescribed limit of 10 days. On the basis of Pio v Smith 1986(3) SA 145 (ZH) in the absence of either exact or equivalent compliance, the petition becomes a nullity. In relation to the second issue, written notice of the petition was served at the first respondent’s political party headquarters. The electoral law sets out in specific and clear language the proper manner of serving election petitions. Service has to be personal or at the residence or place of business of the first respondent. In the view of this court, service of the petition at the party headquarters of the first respondent, does not constitute service at any of the places contemplated by s 169 of the Act. This court sitting as an Electoral Court, has no powers to condone any breach of the requirements as to time frames or as to the manner of service that are stipulated in the Act. Chitungo v Munyoro 1990(1) ZLR 52 (H) at 58 (H) Hove v Gumbo S. C.143/2004. In the result this court finds that service of the petition on 6 May 2008 was invalid for two reasons. Firstly, the petition was served outside the 10 day period and, secondly at the wrong place in contravention of the provisions of s 169 of the Act. At the hearing Mr Mukome advised that the petitioner was withdrawing his action against the second respondent and the has tendered wasted costs. In the result the final determination of this matter is as follows:- HH 57-2008 EP 53/08 1. 2. This petition is a nullity by reason of non compliance with the provisions of s 169 of the Act. The petitioner is to pay the respondent’s costs. Muvingi Mugadza & Mukome, petitioner’s legal practitioners Mbidzo, Muchadehama & Makoni, first respondent’s legal practitioners