MAKAMURE v MUTONGWIZO & ORS 1998 (2) ZLR 154 (H)

Flynote

Elections — election petition — local government election — election for position of executive mayor — need to bring election petition in respect of mayoral election expeditiously

Election — election petition — investigation of allegations of irregularities — should be by trial action, rather than through affidavits

Elections — election morality — enforcement of — adequacy of systems provided by Zimbabwean legislation — history of development of such systems in Britain and adaption of them in Zimbabwe

Headnote

The applicant was the unsuccessful candidate for the mayoral elections in Harare, held on 14 and 15 September 1996. On 29 October, he instituted the present proceedings to set aside the election, citing irregularities of five main types. No explanation was given as to why the petition could not have been presented more expeditiously. On 20 November 1996 and 28 February 1997, the respondents filed their opposing affidavits. These affidavits did not deal adequately with some of the complaints raised. On 5 May 1997, the applicant filed his answering affidavit. His heads of argument were filed on 27 November.

Held, that in view of the dilatory manner in which the applicant had pursued his petition, and the lack of explanation for the delay, the application should be dismissed, without considering the merits. The need to present election petitions expeditiously was particularly important in the case of the election of an executive mayor, because, in view of the powers vested in the mayor, the validity of many things done by him would be impugned if the election were declared to be void.

Held, further, that there appeared to be much merit in the application's allegations, when regard was had to the failure of the respondents to deal adequately with some of the complaints raised. While it is permissible in an ordinary civil application to take a robust view of the facts where a party fails to controvert allegations made, in an application of this nature the failure of a public officer to deal adequately with the allegations is not a proper basis on which to make firm findings of fact. The case showed the desirability of resolving election disputes by trial action.

Held, further, that although it was not necessary to comment on the adequacy of the electoral system and the machinery for enforcing election morality, an examination of the history of the development of such machinery in Britain - which took place over several decades - showed that the machinery developed there was largely reproduced in the Zimbabwean legislation, which, if properly implemented, provided an effective machinery for enforcing electoral morality.