SHUMBA v CHAIRMAN, ZIMBABWE ELECTORAL COMMISSION & ANOR 2008 (2) ZLR 370 (H)

Flynote

Costs“ legal practitioner and client scale “ abuse of process “ persistence in argument on which a ruling has already been delivered

Elections“ election petition “ time limits “ failure to comply with “ High D Court has no power to condone such failure

Practice and procedure“ condonation “ application for “ failure to adhere to time limits “ act to be condoned must be provided for in Rules “ not applicable to situations outside High Court Rules

Headnote

Where the applicant persisted with an argument on which the court, in an earlier case, had already made a pronouncement against him, it amounted to an abuse of process which led to the respondents being unnecessarily brought to court. In the circumstances the court was justified in awarding costs in favour of the respondents and against the applicant on the higher scale. The applicant had wanted to contest the presidential election in March 2008. His nomination papers were rejected. He made an urgent application to the High Court, which was rejected on the grounds of lack of jurisdiction. The Electoral Court, to which the applicant then turned, declined to hear the case on the grounds that the time for presenting a petition had expired. The applicant appealed to the Supreme Court, sitting as a constitutional court. After the run-off election in June 2008, the Supreme Court handed down its decision (see Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65 (S), above, in this volume). The applicant then presented an election petition to the Electoral Court and simultaneously applied to the High Court for condonation of the late presentation of the petition.

The respondents opposed the application, arguing that the High Court had no jurisdiction to grant condonation. The Electoral Court could only hear election petitions and other matters in terms of the Electoral Act [Chapter 2:13] and the Act did not provide for condonation. The applicant also argued that in terms of s 165(4) of the Act that if no rules in terms thereof are made, the High Court Rules 1971 (RGN 1047 B of 1971) shall apply. Rule 4C thereof gives a judge the power "... to condone a departure ..." from the High Court Rules "... including an extension of any period specified therein ..." where in the interest of justice a departure is so required. Held, that the Electoral Court can only hear election petitions and other matters in terms of the Electoral Act [Chapter 2:13]. The Electoral Court is a creature of statute whose powers and functions are to be found in the statute. It has no inherent powers such as are possessed by the High Court and can therefore not claim authority to do which cannot be found within the four corners of the Electoral Act. No provision is made in that Act for condonation, so the High Court cannot grant condonation. To ask the court to condone a departure from a period provided for in an enactment, as urged by the applicant, would be to usurp the functions of the legislature. With regard to r 4C of the High Court Rules 1971, the act to be condoned must be provided for in the Rules themselves and not in any situations which are outside the provisions thereof. The court had no power to condone an act provided for in an Act of Parliament.