Court name
Supreme Court of Zimbabwe
Case number
SC 132 of 2004
Civil Appeal 112 of 2001

Muchena v Muzira (12/01) (SC 132 of 2004, Civil Appeal 112 of 2001) [2005] ZWSC 132 (18 September 2005);

Law report citations
Media neutral citation
[2005] ZWSC 132













REPORTABLE
(134)



Judgment No. SC. 132/04


Civil
Appeal No. 112/01









OLIVIA
MUCHENA v DEREK
MUZIRA








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, ZIYAMBI JA & MALABA JA


HARARE,
NOVEMBER 4, 2004 & SEPTEMBER 19, 2005








H
Mazonde
, for the appellant





E
T Matinenga
, for the respondent






ZIYAMBI
JA: This is an appeal against a judgment of the High Court
upholding an election petition presented by the respondent.
The
petition was presented to the court in terms of s 132 of the
Electoral Act [
Chapter 2:01]
(“the Act”) (now repealed and replaced by the Electoral Act
[
Chapter 2:13].





The
appellant, currently the Minister of Science and Technology
Development, contested the Mutoko South Parliamentary seat as a
candidate for the ZANU  (PF) party in the Parliamentary
Elections held on 24 and 25 June 2000, while the respondent contested
the same seat as a candidate for the MDC party. The appellant
polled 19 228 seats while the respondent polled 1 177
seats.






On
26 July 2000 the respondent filed a petition in the High Court
seeking the setting aside of the election on the basis that
it was:







“… not conducted in
accordance with the principles not only laid out in this Act but
principles of fairness as guaranteed and implied
in our Constitution
…. My principle (sic) grounds for complaint are:






A) CORRUPT PRACTICES in the form
of undue influence as defined in s 105 of the Electoral Act
[Chapter 2:01] (“the Act”). These were manifested
in the following forms –







i) gross pre-election violence;






ii) polling
day violence, intimidation and duress;







B) ILLEGAL PRACTICES as defined
in Part XX1 of the Electoral Act …(infractions of ss 116, 117 and
118 of the Act were cited);





C) GROSS
IRREGULARITIES and GROSS UNREASONABLENESS … (certain acts by the
constituency Registrar were cited); and







D) GROSS INFRINGEMENT OF (MY)
CONSTITUTIONAL RIGHTS.”





Under
this head it was alleged that the Government of Zimbabwe had
unleashed war veterans, bandits and vigilantes in the rural areas
and
on commercial farms thereby preventing opposition political leaders,
in particular the MDC, from having access to the electorate:


”The
violence unleashed by ZANU (PF) sponsored vigilantes was as
widespread as it was widely reported. At least thirty (30) MDC
supporters
were killed during the run up to the election and hundreds
were maimed and tortured”.









He
continued:






“I
maintain that my Constitutional rights as protected by sections 18,
20, 21, 22 and 23 were infringed upon. I pray, that notwithstanding
the narrow grounds for setting aside elections as defined in the
Electoral Act, where there has being (
sic)
a serious infringement of Constitutional Rights then surely the Court
ought to set aside the election.”









He also averred
that there was widespread violence in the area and that war veterans,
led by Maxwell Wise Rwodzi (“Rwodzi”), set
up base camps at
Mutoko Centre, Cornerstore, Kushinga and Chimurenga. Many people
were kidnapped and taken to these base camps,
where they were
subjected to serious assaults and torture.





He
concluded his affidavit with the following averment:





The
fact of the matter is that the people of Mutoko South were thus
denied the right to exercise their vote as a result of the
embarrassing
violence, intimidation and irregularities perpetrated by
the respondent
and ZANU  (PF) …”. (my underlining)





Supporting
affidavits were filed sworn,
inter
alia,
by –





a. Matthew Rukwata,
who would testify as to the “violence that took place before the
elections. He was kidnapped on 24 April
2000 for three weeks
and taken to Mutoko base camp. The leaders of the perpetrators of
the violence were Rwodzi and Ndemera”;






b. George
Mabiri, who would testify “as to the killing of the headman (of)
Nyamhanga, Mationa Mushaya and his son, Peter Mushaya,
on
16 May 2000 by war veterans and ZANU  (PF)”; and






c. Kingstone Mwenye,
who would testify as to the intimidation and assaults which forced
him to flee from the Constituency.






There were, in
addition, four supporting affidavits by persons who would testify as
to various irregularities that took place at the
various polling
stations.





Save
for the passing mention of the appellant in the concluding paragraph
set out above, there was no allegation of impropriety made
against
the appellant.





That
is the case the appellant was called upon to answer in the petition –
a hotchpotch of allegations including general violence
and
intimidation by war veterans and supporters of ZANU (PF),
irregularities and breach of Constitutional rights. It is not
surprising that the manner in which the petition was presented drew
criticism from the learned judge who commented at p 1 of
the
cyclostyled judgment:





“In
this petition, in which it is prayed that the election of the
respondent be declared void, every conceivable complaint which may
be
made against an election has been made and, for the most part, has
not been made with the necessary degree of precision required
by the
law.”








And
later at p 3 of the cyclostyled judgment:





“Procedure
lies at the heart of the law. Its aim is to guarantee precision in
order that the ends of justice may be achieved and
unnecessary time
and expense avoided. These ideals are placed in jeopardy where lack
of precision leads to the person accused not
knowing with sufficient
clarity the case he has to meet. Much time and expense is wasted by
the failure to set forth succinctly
and according to the law the
charge raised and the particulars relied upon.





In
regard to those complaints made relating to the procedures and rules
prescribed in the Act for the administration of the electoral
process
the Registrar General, who was not cited, was nonetheless served with
the petition and he filed a detailed affidavit in which
he disputed
and raised substantial disputes of fact on the allegations of
non-compliance with the election procedures. Likewise
the
respondent in her opposing papers had to deal with each and every
allegation made. The numerous charges made were not pursued
with
any seriousness of purpose in the evidence and indeed Mr 
Matinenga
for the petitioner in his closing submissions to his credit relied
upon only one ground of challenge, namely, that specific acts
of
intimidation had been committed by named persons; and that the
conclusion of law to be drawn from the evidence as a whole was
that
the respondent had recognised and accepted these persons as her
agents, even though there was no express agency. I have satisfied
myself, having re-examined the petition in the form it was presented
with some thoroughness,
that
this ground of challenge, that the respondent is answerable in law
for the acts of her agents, is made no mention of in the petition
and
that agency is not mentioned save by necessary implication

[My emphasis]. “As to the procedural propriety of raising
constitutional grounds for challenge in a petition brought in terms
of the Act, and reliance on international election observer reports
as evidence upon which the court must act, I have already made
my
views known on this subject and have nothing further to add. Where
the conduct of the office of the Registrar General in regard
to the
administration of the electoral process is relied upon to impeach the
election, as was done in this case, counsel should heed
the
provisions of s 159 of the Electoral Act, which states that:






‘An
election shall be
set
aside
by the High
Court by reason of any mistake or non-compliance with the provisions
of this Act if, and only if, it appears to the High
Court that –







(a) the election was not
conducted in accordance with the principles laid down in this Act;
and





(b) such
mistake or non-compliance did affect the result of the election.’
(My underlining)





This
section introduces a cause of action separate and distinct from s 124
of the Act which deals with when an election is
void
owing to corrupt or illegal practices as opposed to when it may
be
set aside
. The
section is concerned with the technical requirements for the conduct
of an election to be observed by all parties, in particular
the
Registrar General.”





It
was never alleged that acts of undue influence, in the form of
violence or intimidation, were carried out with the knowledge,
consent
or approval of the appellant or her agents. No averment was
made that might have put the appellant on her guard that it might be
alleged at the trial that the war veterans were her agents in
committing corrupt or illegal practices.







On 27 February 2001 a
synopsis of evidence was filed on behalf of the respondent. It was
said that:







“Dereck
Muzira will affirm his petition and give
general
evidence of difficulties in campaigning, general violence and
problems with polling agents
…. (My underlining)






The
trial began on 6 March 2001. It was not until 8 March
2001 that affidavits sworn by Arumigio Jimu, Muradzi Tafirenyika
Tafa
and Bernignous Jacha (referred to collectively as “the additional
affidavits”), were filed, all deposing to the occurrences
at a
meeting which took place at Cornerstore on 27 April 2000, and
which I will refer to as “the Cornerstore meeting”.





Indeed,
at the commencement of the hearing, on 6 March 2001, in his
opening address to the court
a
quo
, the respondent’s
legal practitioner said:





“ADV.
MATINENGA: My Lord you would have noticed that the papers in this
petition are
slightly
different from the previous petition which was before you

…”. (My underlining)







There
appears, surprisingly, to have been no objection to the production of
the additional affidavits, although they contained evidence
that had
not been pleaded in the petition presented to the court in terms of
s 132 of the Act.





As
will be seen below, the respondent’s oral evidence centred on the
Cornerstore meeting. His evidence was as follows -





Matthew Rukwata
(“Rukwata”), the designated candidate for the MDC in the Mutoko
South Constituency, was kidnapped by war
veterans on 24 April
2000. The respondent therefore volunteered to be the MDC candidate
there. He was asked by an informant
to go to Mutoko to facilitate
the release of Rukwata on 26 April 2000. He was advised that a
ZANU (PF) rally was being
held at Cornerstore in Mutoko South on
27 April 2000. On that date he set out to attend the rally,
accompanied by three men.
They left their vehicle in Murehwa, for
fear of its being burnt, and boarded lifts to Cornerstore, a shopping
centre in the Muyuyu
resettlement area. On arrival there they found
people gathering for the rally. There were some six hundred people
at the rally
and the Governor for Mashonaland East addressed the
crowd in anti-MDC sentiments. The purpose of the meeting was to
ascertain whether
the resettled farmers in the area were being
sufficiently provided with tillage necessities. After addressing
the tillage issue,
the Governor spoke of the MDC, which he “aligned
with the white people”.





The
Governor then gave the appellant an opportunity to speak. The
appellant chanted the party slogan and addressed the crowd on
the
tillage program. She then “ventured into political issues about
MDC”. He was:


“…
very much frightened by the
manner in which she was uttering at this meeting such that I nearly
left the rally before it was over.
She was saying that the MDC was
the white man’s party and that anyone who will be supporting MDC
will be killed. She was urging
ZANU (PF) supporters that should
they find out that (if there) was anybody supporting MDC (he) should
be killed.”





While
the appellant was addressing the people, a Nissan Hi Rider truck from
the District Development Fund (“DDF”) arrived with
about fifteen
young men, two of whom were in handcuffs. The appellant continued
addressing the crowd. When she was finished,
the delegation from
Mutoko stood up, including the two men in handcuffs, who were
introduced to the Governor and the appellant.
Rwodzi, the person
who had brought these young men from Mutoko, said “we want to show
you what (we) will do on apprehending the
enemies from the MDC”.
The meeting was told “that the two young men who had been
apprehended were supporting the white man’s
party”. The
appellant then stood up and chanted a slogan, saying “down with
them” and they “should be struck with a knobkerrie
on the head”.
She then said that they (ZANU (PF)), are the people who had
liberated this country and that she would give
jobs to these people
so they would look after the country which they had liberated.





The
two young men were made to sit and at that moment another truck
arrived with two young men in handcuffs and fifteen others.
These
two young men were made to stand up and the same procedure was
followed as with the other two. When they introduced them
to the
Governor and the appellant, they said “these young men from MDC
will never been seen again …”.





The
young men were made to sit on the ground and a war veteran, Gwishiri,
complained to the appellant that there was no food at
the base camp.
At this the appellant, the Governor and others donated some $5 000
or so. In answer to a question by the
court, the respondent said
that as the appellant contributed the money she said “we have heard
your request and we have given you
money, we want you to carry out
the job which we had assigned you to do”.





The
respondent later learned the identity of the men who were in
handcuffs (from his informant) as being Matthew Rukwata and
Arumigio Jimu.





It
was put to the respondent in cross-examination on this incident that
his evidence was a recent fabrication since none of it had
been
included in the petition. The respondent’s reply to the question
as to why he had not alleged in the petition that the appellant
had
urged “beat the people with knobkerries” was:





“I
think I have clearly indicated that if at all I wanted to write all
the details I could have written books and books. In this
regard
our lawyers advised us to touch on pertinent issues and that the
other evidence would be adduced in court.”





One asks what was more
pertinent to the respondent’s case than the damaging occurrences
and utterances alleged by the respondent
to have taken place at the
Cornerstore meeting.





That
notwithstanding, at the end of the evidence, the issue for
determination by the court
a
quo
was whether the
war veterans were the agents of the appellant and whether the
appellant was therefore responsible for the corrupt
practices found
by the court to have been committed by them.





The
learned Judge, relying on the evidence of the respondent and his
witnesses of the occurrences at the Cornerstore meeting, found
that
the war veterans were the agents of the appellant and that the
appellant was accordingly responsible for the corrupt practices
proved in evidence to have been committed by them.







In relying on this evidence, the
learned Judge erred, firstly because the issue of agency was not
pleaded and secondly, the evidence
which was relied upon to
establish the fact of agency was unreliable.






THE
ISSUE OF AGENCY – THE PLEADINGS






It
is common cause that the issue of agency was not pleaded in the
petition. The learned judge made that finding in the course of
his
criticism, already quoted above, of the manner in which the petition
was presented.







The evidence of the respondent’s
witnesses on the violence perpetrated on them and on other followers
of the MDC by war veterans
was not disputed. The learned judge
found as a fact that corrupt practices in the form of undue influence
had prevailed extensively
during the election but that no corrupt
practice had been proved in evidence to have been committed by or
with the knowledge and
consent of the appellant. He went on to find,
however, that:





“… the
agency of the war veterans at Mutoko base camp was such as to render
the respondent responsible for all that they did and for
which the
respondent is answerable in law”.








The
issue which must be determined in this appeal is whether the court is
endowed with power to determine an election petition on
grounds other
than those pleaded in the petition at the time it was presented to
the High Court and served on the party against whom
the petition is
being brought.






In Mfandaedza Hove v Joram
Gumbo
SC 143/04 (not yet reported) MALABA JA remarked
at p 19 of the cyclostyled judgment:






“It appears to me the learned
judge misdirected himself in accepting the proposition that he could
invalidate the election on general
violence established by evidence
in the course of the trial of the petition when it was not pleaded as
a cause on which the election
of the respondent was challenged. A
petition is not a common law cause of action. It is a special
procedure created by statute.
The law governing the manner and
grounds on which an election may be set aside must be found in the
statute and nowhere else.”









Section 132
of the Act provides that:






“(1) A petition complaining of
undue return or an undue election of a Member of Parliament by reason
of want of qualification,
disqualification, corrupt practice, illegal
practice, irregularity or other cause whatsoever may be presented to
the High Court …”.





As
HLATSWAYO J remarked in
Mfandaidza
Hove v Joram Gumbo

HH 43/2002:






“… my
reading of the above provision is that it sets out wide grounds on
the basis of which the election petition may be brought. However,
it stands to reason that any petitioner must indicate specifically
the grounds upon which she or he requires the respondent’s election
to be voided. Further, the very fact that the provision is so
widely framed as to include ‘any other cause whatsoever’, though
of course the ambit of this phrase must be understood in the light of
the maxim,
ejusdem
generis,
is additional
reason to require that the petitioner should plead his case with
specificity so that the respondent is put on sufficient
notice
concerning the case he has to answer. It is not fair for any
respondent to be dragged into court without being informed
of the
basis upon which his election is being challenged.






Accordingly,
when s 136(3) states, as it does, that at the conclusion of an
election petition, the court shall determine whether
the respondent
was duly elected, it is clear that such a decision must be arrived at
in terms of what is specifically pleaded in
the petition and not on
what was revealed by chance in the course of the inquiry.”











Thus,
an election petition must contain the essential averments on which
the petitioner intends to rely, as well as the relief sought.
It is
impermissible for the petitioner to allege one cause of action in his
petition and then rely on a different one at the trial.
The
respondent is entitled to know at the time when the petition is
served on him what case he is being called upon to meet.
After all,
the grounds on which it is sought to set an election aside must be
clear to the petitioner at the time he files his petition.





The
respondent relied at the trial on corrupt and illegal practices
alleged to have been committed by war veterans who, so it was
alleged, were shown on the evidence to be agents of the appellant.
The learned judge found that the corrupt and illegal practices
complained of were committed by or with the knowledge and consent or
approval of the agents of the appellant in terms of s 124(a)
of
the Act, which provides as follows:







“124 When election void
owing to corrupt or illegal practices





Subject
to sections one hundred and twenty, one hundred and twenty-five and
one hundred and twenty-six –






(a) if upon the trial of an
election petition the High Court certifies to the Minister that any
corrupt practice or illegal practice
has been committed with
reference to the election the subject of the petition, by or with the
knowledge and consent or approval of
the candidate returned at that
election, or with the knowledge and consent or approval of
any
of his agents
, the
election of that candidate shall be void, and a fresh election shall
thereupon be held;”. (My underlining)









As
I have stated above, not only was the evidence of agency suspect and
unreliable by reason of the conflict in the evidence of the
witnesses
but, as the learned judge found, there was no averment in the
petition that the war veterans who allegedly committed the
corrupt
practices were agents of the appellant. That being so, the learned
judge ought to have held that the petition disclosed
no cause of
action. Compare
Mithilesh
Kumar v Venkataraman
[1989]
LRC (Const.) 1.






The
cause of action in an electoral petition being derived from statute,
the court has no power to exempt a petitioner from strict
adherence
to the terms of the statute. In
Nath
v Singh and Ors
[1954]
SCR 892 at 895 MAHAJAN CJ said:






“The general rule is well
settled that the statutory requirements of election law must be
strictly observed and that an election
contest is not an action at
law or a suit in equity but is a purely statutory proceeding unknown
to the common law and that the court
possesses no common law power.
It is also well settled that it is a sound principle of natural
justice that the success of a candidate
who has won at an election
should not be lightly interfered with and any petition seeking such
interference must strictly conform
to the requirements of the law.”





For
the above reasons, the petition ought to have been dismissed.





THE
ISSUE OF AGENCY – THE EVIDENCE






The
evidence of the respondent has been set out above.







Muradzi Tafirenyika Tafa told the
court that he is the vice-chairman of the MDC Branch in Mutoko South.
He attended the meeting
called by ZANU (PF) at Cornerstore.
When he arrived at the meeting after 9 am the regional director
of DDF was addressing
the meeting about the tillage program. Then
the leader of the war veterans at Base 1 camp, Mutoko, stood up
and requested
the four young men to stand up. They were all from
Mutoko. Two came from the same village as he did. He said that
when Rwodzi
stood up, he turned to the appellant and “indicated to
her that the four young men were rebels and that they were teaching
them
in order for them to teach other young men …”. He then
ended up by saying to the appellant: “As regard (sic) to
the job you have assigned us to do, the job is continuing very well”.
He further told her that they needed finances for food,
fuel and
transport for the base. The appellant then stood up and chanted
slogans which frightened people there. She said: “down
with MDC”
and “strike them with knobkerries on the head”. She said “down
with MDC” meant that an MDC member should be
buried down. After
chanting the slogans, she thanked Rwodzi for the job they were doing
and urged them to go forward. “She
also urged Rwodzi to open up
more base camps in other areas so that nothing will be said about MDC
in their area”. The appellant
then contributed some one hundred
dollar notes which she put in a hat and other people followed. The
witness left before the meeting
was over because “since I was now
an MDC member it was impossible for me to remain at this meeting
because the focus of the meeting
had now turned to political issues
against the MDC so I became afraid of victimising (sic)”.





In
cross-examination he said:





“Matthew Rukwata
did not say anything (at the meeting) but it was Rwodzi, the war
veterans leader who announced to the crowd there
that four men had
surrendered and they had renounced their membership to MDC and the
(appellant) indicated that she was going to
invite the crew from ZBC
to give coverage to that.”





Matthew Rukwata
also gave evidence. His supporting affidavit was part of the
petition. In his affidavit he averred that
he was an aspiring
candidate in the Mutoko South area but that he was forced to resign
because of intimidation and violence from
ZANU  (PF)
supporters. He mentioned his abduction on 24 April 2000 and
subsequent detention at Mutoko base for three
weeks. He mentioned
that he was harassed by being made to denounce the MDC and its
leaders. No mention was made of the incident
at Cornerstore.





However, in his
evidence before the court, he told of his attendance at that meeting.
He was asked to stand by Rwodzi in the company
of his “three
colleagues”, Almegio Jim and two others from Mutoko North
Constituency. Rwodzi introduced him as an “MDC
candidate who was
carrying out a training programme for people in Mutoko”. He was
then asked to sit down. Rwodzi then requested
for financial
assistance to provide food for the maintenance of the persons at the
base camp. A collection was taken up while a
hymn was being sung.
He mentioned that the appellant was chanting slogans,
i.e.,
“down with MDC” and “strike them with a knobkerrie on the back
of their heads”. He arrived there at 12.30 pm and
the
meeting dispersed at 1.45 pm. He then got into the Nissan Hi
Rider motor vehicle in order to be driven back to the base
camp. He
was not handcuffed. There was television coverage of the incidents
of MDC people who had defected to ZANU (PF).
That night at
about 10.30-11 pm he was among those who went to Tafa’s
homestead. He was under guard so he could not dissociate
himself
from the group. He managed to run towards the highway to Mutoko and
back to the base camp. He finally escaped from his
captors when
they left him at his homestead to find his bicycle. He was to take
the bicycle to them when he found it.





Arumigio
Jimu, whose evidence the learned judge accepted as being reliable, in
his evidence made a brief reference to the meeting
at Cornerstore,
saying that he, Rukwata and two others were paraded before the rally
as persons “who had gone astray”. It was
then said that the MDC
members should be clubbed. A question as to who said so brought the
answer that it was the appellant.
The rest of his evidence related
to the activities of the persons at the base camp, including himself
and the other three MDC members
– for example, the attack on
village 16, Huyuyu Resettlement, and a certain quarry where they
recovered MDC T-shirts and membership
cards from the members of the
MDC and assaulted them.





It
is to be noted from this witness’s evidence and that of Rukwata
that he and the other MDC youths were introduced as persons
who had
gone astray but returned to ZANU (PF). They were not in
handcuffs. Indeed Rukwata’s evidence was that he was introduced
as “carrying out a training program in the area”. Their
evidence of the incident differed substantially from that given by
the respondent. From their account of the events, there was nothing
which would have alerted the respondent to the fact that they
were
not at the Cornerstore meeting of their own volition.





At
the trial, an article from the
Daily
News
newspaper dated
14 August 2000, about three weeks after the petition was filed,
was produced by the respondent. It spoke of
the murders of Mationa
Mashaya and his son, Onias Mashaya, and placed the responsibility for
the murders on the appellant who, it
alleged, chanted slogans at the
Cornerstore meeting, inciting her followers to be violent against the
MDC members.





One
common thread running through the evidence of those who gave evidence
of the occurrences at the Cornerstore meeting is the allegation
that
the appellant chanted the slogan which, when translated, meant that
the MDC members should be clubbed on the head with knobkerries.
The
newspaper article was produced by the respondent, no doubt, in an
attempt to prove that the appellant made the utterances attributed
therein to her but, judging by the late hour at which the additional
affidavits were produced, it would require little imagination
to
conclude that they were prompted by the newspaper article.





The
material inconsistencies in the evidence of the petitioner and his
witnesses, as well as the date and contents of the newspaper
article,
ought to have placed the learned judge on his guard against possible
fabrication of evidence. However, despite the inconsistencies,
the
learned judge proceeded on the basis that the evidence led had
established facts on which he could find that the appellant had
accepted the agency of the war veterans in running of the Mutoko base
camp and that the appellant was accordingly answerable at law
for the
corrupt practices committed by the war veterans for the purposes of
s 124 of the Act.





In
this regard the learned judge also erred in basing his conclusions on
the unreliable evidence adduced by the respondent.





Accordingly,
the appeal is allowed with costs.










CHIDYAUSIKU
CJ: I agree.















MALABA
JA: I agree.














Gambe
& Associates
, appellant's legal practitioners


Honey
& Blanckenberg
, respondent's legal practitioners