'No valid application before the court'

'No valid application before the court'
Published: 18 August 2018 (159 Views)
The following is part of Justice Chigumba's response to the application by MDC Alliance president Nelson Chamisa challenging President-elect Emmerson Dambudzo Mnangagwa

I, Priscilla Makanyara Chigumba, in my capacity as the Chairperson of the Zimbabwe Electoral Commission and by due authority of the Zimbabwe Electoral Commission and that of the 25th respondent, hereby take oath and state that the facts I depose to hereunder are within my personal knowledge and belief and are true and correct. Where I relate to issues of a legal nature, I do so on advice from counsel which advice I accept.

I have read and understood the applicant's founding papers and wish to respond thereto as follows:

In LimineIMINE
i. No valid application has been filed by the applicant challenging the election of the 1st respondent to the office of the President of the Republic of Zimbabwe, in terms of s93 of the Constitution of Zimbabwe as read with the Constitutional Court Rules, 2016.

ii. In terms of s93(1) of the Constitution, a challenge to the validity of an election to the office of President is instituted by way of a petition or application lodged with the Constitutional Court within seven days after the date of the declaration of the results of the election. Being a period prescribed by statute, the seven days provided by s93(1) of the Constitution are reckoned with the inclusion of Saturdays, Sundays and public holidays. The time for lodging a petition in terms of s93(1) thus expired on the 10th of August 2018.

iii. In terms of r23(2) of the Constitutional Court Rules, the application provided for in terms of s93(1) of the Constitution of Zimbabwe shall be filed with the Registrar of the Constitutional Court and shall be served on the respondent(s) within seven days of the date of the declaration of the result of the election. Both, such filing and service within the seven-day period are constitutive of the proper lodging of a challenge to the election of a President.

iv. Being peremptorily limited to the period of seven days after the declaration of the result of the election, any filing and/or service that is done outside that timeframe is, accordingly, invalid with the correlative effect of rendering the entire application fatally and incurably defective.

v. In terms of r9(7) of the Constitutional Court Rules, all process initiating litigation, (such as an application initiating a challenge to the election of a president), shall be served by the Sheriff.

vi. On the 10th of August 2018 the applicant herein purported to file, with the Registrar of the Constitutional Court, an application in terms of s93(1) of the Constitution of Zimbabwe as read with r23 of the Constitutional Court Rules. In that application, the applicant cited me, in my capacity as the Chairperson of the Zimbabwe Electoral Commission, as the 24th respondent; the Zimbabwe Electoral Commission as the 23rd respondent and the Chief Elections Officer of the Zimbabwe Electoral Commission as the 25th respondent.

vii. Thereafter the applicant, through his legal practitioners, without the aid of the Sheriff and thus in violation of the rules of this Honourable Court, purported to serve a copy of that application upon the Zimbabwe Electoral Commission in the evening of the 10th of August 2018. A single copy was received at the Electoral Commission's offices at Mahachi Quantum Building. No copy of the application was served on me or on the 25th respondent on the 10th of August 2018 or subsequently. Suffice to state that the purported service on the 10th of August 2018 was defective.

viii. As both filing, and service are constitutive of an application made in terms of s93(1) of the Constitution as read with r23 of the Constitutional Court Rules, the defective service effected on the 10th of August 2018 rendered the applicant's application fatally and incurably defective.

ix. The defects with the papers received at the 23rd respondent's offices on the 10th of August 2018 did not, however, end there. Upon perusal of the papers purportedly served by the applicant on the 10th of August 2018, it was noted that whilst the single bundle of bound papers was titled "Court Application", there was in fact no court application as prescribed under r16 of the Constitutional Court Rules, (form CCZ1), in that bundle. Let me be clear on this, I do not mean that there was a defective form CCZ1 in the bundle of papers but that there was no form CCZ1, defective or otherwise, in the bundle of papers.

What was in the bound bundle of papers was a cover, a consolidated index, notices of addresses of service and a founding affidavit deposed to by the applicant with various annexures thereto.

x. What was purportedly served by the applicant on the 10th of August 2018 was, therefore, not a court application but an indexed bundle of evidence and notices of addresses of service. I do not know whether on the 10th of August 2018 the applicant had in fact issued with the Registrar of the Constitutional Court a court application in form CCZ1.

xi. On the following day, the 11th of August 2018, the Sheriff of Zimbabwe served three copies of the applicant's application at Mahachi Quantum Building, which copies now had as part of the bundle of documents, a court application. This was on the eighth day after the declaration of the result in the election sought to be challenged by the applicant, contrary to the peremptory dictates of the rules of court viz. the filing of such an application and consequently, in violation of the seven-day period for lodging a petition against the election of a person to the office of the President of the Republic as prescribed in s93(1) of the Constitution of Zimbabwe.

xii. Further, upon perusing the applicant's founding affidavit, it was noted that extensive reference is made to a separate bundle of documents purportedly filed together with his application, called the "123 Series". That bundle does not form part of any papers received at the Zimbabwe Electoral Commission's offices either on the 10th or 11th of August 2018. At the time of deposing to this affidavit, that bundle has still not been served on myself; the 23rd respondent or the 25th respondent.

xiii. Further still, the applicants founding affidavit refers, in several instances, to compact discs that are said to be attached to the application. No such compact discs were served at the 23rd respondent's offices either on the 10th or on the 11th of August.

xiv. It is these absent compact discs and separate bundle of evidence that the applicant avers contain the source material used in, inter alia, the statistical analysis that he refers to as the "main challenge" to the 1st respondent's election to the office of the President of the Republic.

xv. It is not clear whether the separate bundle and the compact discs were filed with the Registrar of the Constitutional Court on the 10th of August 2018 and if so it is unclear why the applicant has elected not to serve them on the 23rd and 24th respondents and I in terms of the rules of court. As this separate bundle and compact discs are clearly intended to form an integral part of the applicant's founding papers in his challenge to the presidential election return, if they were not filed, the view can be taken, persuasively so, that what was filed by the applicant on the 10th of August 2018 was only half of his application. Indeed, what was served on the respondents was not the complete application in the absence of the bundles and compact discs referred to by the applicant. A party cannot file and serve a court application in instalments.

xvi. Because of the Constitutional time limit prescribed in s93(1) of the Constitution, the applicant can no longer present any further founding papers to the Registrar of the Constitutional Court in respect of CCZ42/18. The separate bundle and the compact discs are thus no longer capable of being filed by the applicant in founding his cause in this matter. They most certainly are no longer capable of being served in conformity with the peremptory timeframes set out in the rules of court which timeframes determine whether a petition in terms of s93(1) of the Constitution has been duly lodged. It has not.

xvii. Lest the points I make herein above be viewed as sterile and formalistic, I aver that they have a very practical and substantive significance in this matter. Matters initiated by notice of motion require, by peremptory dictate of our law, that the applicant make out his entire case in the founding papers.

In turn, a respondent served with an application ought to be confident that the case made out in the papers so served is the full case he/she is called to plead to. If the applicant by inadvertence, error or lack of diligence fails to incorporate all relevant evidence in his founding papers, it does not avail to him to seek to file further 'founding papers' to augment those originally issued and served. He stands or falls by his originally issued founding papers. If such a litigant could file and serve his founding papers in batches or waves, the respondent would be called upon, within a limited dies induciae, to continually re-evaluate the case he/she is called to meet.

xviii. The applicant, therefore, has done two things in violation of the peremptory rules of court: he has failed to file a complete and therefore valid application with the Registrar of the Constitutional Court and he has failed to effect valid service of his application within the prescribed seven-day period.

His application is thus fatally and incurably defective. It ought to be struck off the roll.

- chronicle

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