BGANYA v CHITUMBA & ORS 1998 (2) ZLR 171 (H)

Flynote

• Elections** — election offences — "treating" — what is — supplying of food and drink to election officials not treating
• Elections** — election petition — need to file and pursue expeditiously — 2 month delay before filing and lengthy delays on petitioner's part thereafter — delays sufficient to justify dismissal of action
• Elections** — irregularities — action which should be taken by candidate complaining of irregularities

Headnote

The applicant was the unsuccessful candidate in a local council election. He sought an order setting aside the election on various grounds, including undue influencing of voters. The application was filed almost two months after the election. The respondents replied within five weeks, but the applicant's answering affidavit was not filed until a further five months had passed. His heads of argument were filed three months after that. No explanation was given for the delays. Held, that the petition should have been launched as soon as possible after the election. Having the results of an election declared void is of such paramount urgency that delays cannot be brooked. The delays in this case were such that the application must be dismissed, irrespective of the merits.

Held, further, that "treating", which is proscribed by s 104 of the Electoral Act [Chapter 2:01], does not refer to cases where food is given to polling officers or police officers at polling stations.

Held, further, that where an unsuccessful candidate alleges that there were a number of mistakes or examples of non-compliance with the Act, the court should look at the totality of the facts established. An electionshould not be set aside for an informality or a triviality; the objection must be something substantial, really calculated to affect the result of the election.