CHIVORE v MUDAVANHU & ANOR 2008 (2) ZLR 16 (H)

Flynote

Elections — election petition — service of notice of petition on respondent — where such notice must be served — must be at respondent's "usual or last known" dwelling or place of business — meaning

Headnote

Section 169 of the Electoral Act [Chapter 2:13] provides that notice of the presentation of an election petition shall "be served by the petitioner on the respondent either personally or by leaving the same at his or her usual or last known dwelling or place of business." This means that service must be either personally or by leaving the papers at the respondent's usual or last known dwelling or place of business. It is not enough to serve the notice at the respondent's party's offices. The legislature intended that the respondent should get to know about the petition personally as soon as possible. The addresses for service are such that the respondent frequents them as his usual dwelling or place of business. The term "usual" in this instance means "ordinarily used", "frequently used" or "that is in ordinary use". The dwelling place or place of business thus has to be where the respondent is ordinarily found or frequents or is expected to be available on a day to a day basis; it is not just any dwelling place or place of business for the respondent. It is for the petitioner to show that the respondent frequents or is ordinarily found at the place at which service was effected. To merely say that a party headquarters is the respondent's place of business is not good enough. Even if, for instance, the respondent was employed by the party, the party's headquarters would still not suffice if that is not where the respondent is based. Election petitions are for the personal attention of the particular respondent. It is the respondent's, not the party's, election which is being challenged. It is the respondent, not his party, on whom the responsibility to act promptly is imposed and on whom the dire consequences of failure to act promptly fall.