David Antony Chimhini v Chairperson, Zimbabwe Electoral Commission & 4 Ors

### Preamble
1
HMA 59-18
Case No EC 2/18
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DAVID ANTONY CHIMHINI

versus

CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION

and

CHIDO MADIWA

and

JAMES MASAMVU

and

JOHN CHIREMBA

and

SHEPHERD CHIDEYA

ELECTORAL COURT OF ZIMBABWE

MAFUSIRE J

HARARE, 27 November 2018 & 19 December 2018

Opposed application

Mr P. Nyakureba, for the applicant

Mr T.M. Kanengoni, for the first respondent

Second, third, fourth and fifth respondents in default

MAFUSIRE J:

[1]	In the general election held in the country on 30 July 2018, the applicant was one of five candidates that contested for a Parliamentary seat in the House of Assembly in the constituency known as Mutasa North, Manicaland Province. The other four were respondents 2, 3, 4 and 5. The first respondent is the Chairperson of the Zimbabwe Electoral Commission (“ZEC”), an independent commission established by s 238 of the Constitution of Zimbabwe and tasked with several functions including the holding of elections in the country.

[2]	After the vote, and on the same day, ZEC declared the second respondent, Chido Madiwa (“Madiwa”), of the Zimbabwe African National Union – Patriotic Front (ZANU-PF) the winner of the constituency. On 1 August 2018 the applicant, who had run on a ticket of the Movement for Democratic Change – Alliance (MDC-A), made a written request for a recount of the vote in nine of the wards in the constituency. By 7 August 2018, the applicant had got no response.  He filed an urgent chamber application under the case reference no EC 1/18 for a declaration that the first respondent was in breach of her administrative duties as outlined by s 67A of the Electoral Act, Cap 2:13. He also sought an order directing the first respondent to recount the vote in the wards in question.

[3]	My Brother MAWADZE J, set the matter down for hearing on 10 August 2018. Although the hearing proceeded, argument on the merits was aborted. Just before the hearing, the applicant had been served with the first respondent’s response which was dated 7 August 2018. His request had been turned down. The applicant ended up withdrawing the urgent chamber application.

[4]	In this application the applicant, apart from an order of costs on an attorney and client scale, asks that the first respondent’s decision refusing to re-count the vote be declared unreasonable and unfair. He wants the decision reversed and an order that the vote in the nine wards in question be re-counted and the time frame to do so extended. It is agreed that the application is one for review.

[5]	In short, the basis of the applicant’s request for a review is that, in contrast to the detail in his request, ZEC’s response was thrifty and it failed to answer each and every particular averment. Furthermore, ZEC declined the request on a ground not raised by him. That showed that ZEC had given no due attention to the request. Thus, such a response was substantively and procedurally unfair and liable to be set aside, he concluded.

[6]	Initially, both ZEC and Madiwa opposed the application. But in the end, only ZEC persisted. Madiwa, despite filing a notice of opposition, did nothing further. She neither filed heads of argument nor appeared at the hearing.

[7]	Initially, ZEC took four points in limine. But at the hearing it persisted with only two. Mr Nyakureba, for the applicant, raised a point of order. He notified that the first respondent’s heads of argument had been filed two days out of time and that therefore she had been automatically barred. At first he seemed to be suggesting that if the first respondent was willing to abandon her own points in limine, he would consent to the uplifting of the automatic bar. When I sought clarification on whether he was seeking a trade-off, Mr Nyakureba firmed up to the position that he was not consenting to the uplifting of the bar and that any application for condonation would be opposed.

[8]	Mr Kanenegoni, for the first respondent, submitted that until Mr Nyakureba had brought the issue to his attention just before I had walked into court, he had been completely unaware that the first respondent’s heads of argument had been filed two days out of time. He proceeded to apply for condonation, conceding that he had miscalculated the dies induciae thinking that given that the application had been filed at Masvingo, some three hundred kilometres away from Harare where ZEC and the first respondent are headquartered, he had laboured under a misapprehension that the time frame within which to file the heads was twelve days instead of the prescribed ten.

[9]	Mr Kanengoni felt it inappropriate to abandon the first respondent’s points in limine as some kind of trade-off in return for the applicant’s consent to the upliftment of the automatic bar. He formally applied for condonation, submitting that his failure to file the first respondent’s heads of argument, though wrong, was not wilful, but mere inadvertence that had caused no one prejudice. He apologised. He further submitted that in contrast, the points in limine that he himself had taken on behalf of the first respondent were cogent. They went to the root of the matter. If upheld, there would be no need to deal with the matter on the merits.

[10]	Mr Nyakureba opposed the application. He said while he appreciated that election petitions are public interest litigation that should be dealt with on the merits instead of on technicalities, nevertheless he felt compelled to oppose the application for condonation because the applicant had given him no instructions to consent to the upliftment of the bar. He argued that Mr Kanengoni had exhibited a casual approach to the matters at hand and had displayed a deliberate disdain for the Rules of Court. There being no heads of argument properly before the court on behalf of the first respondent, the matter had to be dealt with as unopposed in terms of Order 32 r 238.

[11]	I granted the application for condonation for the late filing of the first respondent’s heads of argument and gave brief reasons ex tempore. I expressed regret that I was being asked to make a formal ruling in a matter such as that when parties normally just agree to have the automatic bar uplifted. I said there had been no prejudice suffered by the late filing of the heads of argument and that a miscalculation of the dies induciae or the entering of wrong dates in diaries, though unacceptable, are errors common to many litigants. Election matters evoke considerable public interest. Where possible, they should be dealt with on the merits instead of on mere technicalities, unless circumstances severely militate against it.

[12]	The disposal of the issue of the late filing of the respondent’s heads of argument, paved the way for argument on the two residual points in limine raised by the first respondent. They were these:

The application, it being one for review, was fatally defective for want of compliance with Order 33 r 257 of the Rules of this Court, in that the reasons for review ought to have been stated on the face of the application. This had not been done.

The first respondent’s refusal to recount the vote in the nine wards in question is final. In accordance with s 67A(7) of the Electoral Act that decision is neither appealable nor reviewable.

[13]	Mr Nyakureba conceded that the application was not in accordance with the format prescribed by r 257. The rule commands, among other things, that an application for review must state shortly and clearly the grounds upon which an applicant seeks to have the proceedings of the lower court or tribunal set aside or corrected.

[14]	There is a glut of cases on the point to the effect that non-compliance with the peremptory provisions of r 257 renders the entire application fatally defective and may not be heard on the merits unless condonation is granted upon good cause shown: see for example, Minister of Labour & Ors v PEN Transport (Pvt) Ltd 1989 (1) ZLR 293 (S); Mushaishi v Lifeline Syndicate & Anor 1990 (1) ZLR 284 (H); Chitaira v Zimbabwe Electricity Supply Authority 2001 (1) ZLR 30 (H); Chataira v ZESA S 83-01; Dandazi v Wankie Colliery Co Ltd 2001 (2) ZLR 298 (H); Malambo v City of Harare 2001 (2) 545 (H) and Mambo National Railways of Zimbabwe & Anor 2003 (1) ZLR 347 (H).

[15]	In respect of the repeated non-compliance by legal practitioners with r 257 SMITH J, in the first of the Chitaira cases above, said (and was quoted verbatim on appeal by EBRAHIM JA in the second Chitaira case above [unreported]):

“In the PEN Transport, Mushaishi and Marumahoko cases referred to earlier, the courts clearly stated that failure to comply with r 257 constituted a fatal flaw. Despite those warnings, legal practitioners still fail to comply with the rule. The time has surely come to say enough is enough and to dismiss the defective applications without considering the merits.”

[16]	Thus, way back in 2001 the courts said enough was enough. That warning was repeated in several other cases afterwards, like Dandazi and Mambo above. More than seventeen years later Mr Nyakureba still commits the same breach. What hope does he have to save the application? He makes two points. The one is that this particular application, though being one for review, is nevertheless governed by s 165(4) of the Electoral Act which provides that until the Electoral Court has its own rules made for it, the rules of the High Court shall apply with such modifications (emphasis by Counsel) as appear to the Electoral Court to be necessary. His point is that the omission to state the reasons for review on the face of the application is one such modification.

[17]	Mr Nyakureba’s other point is that on the authority of Moyo v Forestry Commission 1996 (1) ZLR 173 (H), apart from review proceedings, there are other methods of challenging administrative decisions.

[18]	Mr Nyakureba’s attempts to excuse non-compliance with r 257 are ineffectual and almost border on mischief. Section 165(4) of the Electoral Act does not sanction the non-observance of a rule of procedure so consistently and emphatically insisted upon by both the High Court and the Supreme Court. As observed by HLATSHWAYO J, as he then was, in Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H), such issues are not “sterile disputes about forms”. CHINHENGO J said in Dandazi (supra) they are not an “idle requirement”.

[19]	The purpose of r 257 is to inform, right at the outset, both the respondent and the judicial officer of the grounds of the intended review. The respondent can then decide whether or not to oppose. It does not matter that the founding affidavit should ordinarily deal more substantively with the grounds for review. It is the application that outlines, in summary fashion, the nature of the dispute. The affidavit then gives the evidence, the substance and the detail. In the appeal judgment in Forestry Commission v Moyo 1997 (1) ZLR 254 (S) the Supreme Court said that though the rules of court are not an end in themselves, to be slavishly applied for their own sake, nevertheless they are there to regulate the practice and procedure of the High Court. In general, strong grounds would have to be advanced to persuade a court or judge to act outside them.

[20]	Mr Nyakureba’s reliance on the High Court case of Moyo v Forestry Commission 1996 (1) ZLR 173 (H), for the argument that other procedures outside reviews exist to impugn the conduct of an administrative functionary, is ill-conceived. This application is classically and unequivocally one for review. The applicant himself says it is based on s 68 of the Constitution and s 4 of the Administrative Justice Act, Cap 10:28. But both of these are review provisions.

[21]	Reviews are governed by Order 33 of the High Court Rules of which r 257 is a part. The Electoral Court does not have its own separate set of rules governing this procedure. Its enabling Act expressly says where the court does not yet have its own set of rules on any aspect resort shall be had to the High Court Rules. The High Court Rules say a review application shall state the grounds of review.

[22]	The applicant’s reliance on the Moyo judgment of the High Court is surprising. It was expressly and emphatically overruled by the Moyo judgment of the Supreme Court, squarely on the point that non-compliance with the review rules is fatal.

[23]	Mr Nyakureba undoubtedly appreciated that his attempt to cover-up the grave non-compliance with r 257 was perilous. He then applied for condonation. His major ground was that it was undesirable for election matters to be disposed of on the basis of a mere technicality given the public interest involved. In this regard he cited what he referred to as the Law Society of Zimbabwe’s June 2018 Handbook on Constitutional Matters and quoted an article at p 75, to the effect that an election is a communal process involving the electorate and the candidates. It is said when an election is challenged, the process does not only attempt to untangle the interests of the different actors, but must take into account the interest of each and every stakeholder. To this extent electoral dispute resolutions arouse a great deal of public interest.

[24]	Litigants that play possum with the rules of procedure place the courts in an invidious position. The courts cannot ignore the public interest in election challenges. Out there, and given this application, the world would now want to know if Madiwa was the duly elected Member of Parliament for Mutasa North Constituency despite the declaration by ZEC. Out there the public is little concerned with the letter of the law or the small print. Judges that block litigants’ rights to judgment on the merits for non-compliance with the rules of procedure are sometimes maligned in all manner of language. They are said to be ‘captured’. They are said to lack independence. Few critics if any, concern themselves with the nuts and bolts of the half-baked case placed before the court.

[25]	Given the political crevasse between the major political parties in this country and the attendant polarity in our society, justice is only justice if one wins, never mind the graceless presentation of the cases in court. One gets the sense that some legal practitioners like Mr Nyakureba bank on that and play to the gallery. In this particular case for example, Mr Nyakureba’s heads of argument begin with a curios quotation, completely out of context, said to be from a speech by one Caroline Kennedy, a US attorney and head of the John F. Kennedy Library, at some award presentation in 2012 in Boston, that:

“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.”

[26]	No one can argue with that. Our Constitution says much the same thing in s 164. It is the duty of the courts to uphold and give effect to the rights and freedoms enshrined in the Constitution. There can be no question about that. But the question that may arise is whether the litigants themselves have played the game according to the book of rules, because the law says it is only when they do so that the court can become umpire.

[27]	Be that as it may, in casu I have condoned the applicant’s non-compliance with r 257 solely because of the public interest evoked by election disputes. I take the cue from the Constitutional Court in the recent case of Chamisa v Mnangagwa & Ors CCZ 42-18, where the apex court condoned the non-timeous filing of an election petition on the basis of the considerable public interest in the matter. But obviously this is not a licence for impunity. Every case depends on its own merits. There can be no blanket rule that non-observance of the rules of procedure in election petitions will always be condoned because of the public interest.

[28]	The first respondent’s second point in limine was on s 67A(7) of the Electoral Court. The section reads:

“The Commission’s decision on whether or not to order a recount and, if it orders one, the extent of the recount, shall not be subject to appeal.”

[29]	In spite of the fact that on the face of it, s 67A(7) only ousts the jurisdiction of the court on appeal, and is silent on the power of review, Mr Kanengoni argued that in fact, the jurisdiction of the court both on appeal and on review are ousted because that is how this court ruled in the case of MDC & Anor v Chairperson, (ZEC) 2008 (1) ZLR 275 (H). He quoted the following passage from the judgment of UCHENA J, as he then was:

“The fact that ZEC’s decision to recount and the extent thereof is not subject to an appeal means that it was intended to act independently and that its decision would be final (emphasis by Counsel). The provision barring an appeal simply means ZEC has been given a very wide discretion as to whether or not to order a recount. The provision that ZEC’s decision shall not be subjected to an appeal also means this court cannot inquire into that decision (emphasis by Counsel again). This should, therefore, be the end of the enquiry, as ZEC’s conduct can only be open to the jurisdiction of this court when it strays from the law.”

[30]	But with all due respect to Counsel, this court did not rule like what he was saying. Firstly, the court’s remarks, particularly the portions highlighted by Counsel, should be understood in the context of an appeal which was the subject matter before the court, not a review. The court was simply saying it could not enquire into the decision of ZEC if it was brought on appeal (my emphasis). Counsel knows there is a world of difference between an appeal and a review. An appeal attacks the decision of the lower court or tribunal. A review attacks the decision-making process itself, or the conduct of the lower court or tribunal. In fact, the court was making that distinction clear in that same passage. After talking about an appeal and the ousting of the court’s jurisdiction, the court went on to say, in the same quotation above:

“This should, therefore, be the end of the enquiry, as ZEC’s conduct can only be open to the jurisdiction of this court when it strays from the law” (my emphasis).

[31]	Thus, the court was saying if ZEC strays away from the law, then that is conduct that can be brought on review. Nothing can be clearer.

[32]	In the premises, the first respondent’ second point in limine is hereby dismissed. That then paves the way for a consideration of the merits of the application.

[33]	The applicant’s request for a vote recount in the wards in question was almost two pages long. The first segment of the letter said:

“Re: REQUEST FOR A RECOUNT OF VOTES CAST AT THE FOLLOWING POLLING STATIONS CHISUKO A & B, SAGAMBE PRIMARY SCHOOL & CHIKOMBA PRIMARY SCHOOL, WARD 1, MURARA POLLING STATION, WARD 6, MUTERERE, PIMAYI & RUMBIZI REST CAMP POLLING STATIONS, WARD 30, MUUYA WARD 09, MUTASA NORTH CONSTITUENCY ON 30TH JULY 2018.

I write to request a recount of the votes at the above polling stations in terms of Section 67A of the Electoral Act (Chapter 2:13).

The reasons for the request being that as the contesting and losing candidate under the banner of MDC-Alliance I am strongly convinced that the votes declared to have been garnered by the winning candidate Chido Mwadiwa do not correspond with the actual vote cast at these polling stations;

Specifically,

The vote counting process conducted and announced at Chisuko polling stations A & B, Ward 1 does not agree with the vote cast. I firmly believe that Chido Mwadiwa was awarded 200 votes not due to her on the V11 form as opposed to the actual vote counted.

The vote counting process conducted and announced at Sagambe Primary School, Ward 1 does not agree with the vote cast. I firmly believe that Chido Mwadiwa was awarded 60 votes not due to her on the V11 form as opposed to the actual vote counted.

The vote counting process conducted and announced at ……”

[34]	I have deliberately cut short the letter at paragraph iii because for the next five paragraphs that followed, the applicant merely repeated himself, virtually word for word, only changing the name of the polling station and the number of the votes allegedly misappropriated. That repetition accounted for more than half of the two-page letter.

[35]	The next segment of the letter read as follows:

“I do not specifically know how this miscount could have arisen but I believe that there was a failure in the system or manipulation to warrant a recount of the vote. With regard to ward 30 the results for Muterere polling station, Pimayi polling station and Rumbizi rest camp polling station, I have not even had sight of my personal copies of the V11 forms which my polling agents whom I suspect to have been compromised by my rivals have vanished with.

I allege that in total Chido Mwadiwa was awarded a total 800 votes not due to her.

More specifically in that the result of the election was certainly influenced by the miscount because eventually the winning candidate Chido Mwadiwa was declared a winner over me with just 278 votes only. She polled 11 913 votes against 11 635 I pulled (sic).

Finally, I submit that this request is substantively (sic) enough to warrant the recount of the votes cast at the specified polling station.

The recount of the polling stations (sic) in question will resolve my issues which I allege herein.

Thank you for urgently considering this request. I look forward to hearing from you

soonest or in any case no later than 2 August 2018.”

[36]	The first respondent’s response was as follows:

“RE:	REQUEST FOR A RECOUNT OF VOTES CAST AT THE FOLLOWING POLLING STATIONS CHISUKO A AND B SAGAMBE PRIMARY SCHOOL AND CHIKOMBA PRIMARY SCHOOL WARD 1, MURARA PIOLLING (sic) STATIONS, WARD 30, MUUYA WARD 9, MUTASA NORTH CONSTITUENCY ON THE 30TH JULY 2018

Your letter dated the 3rd (sic) of August 2018 regarding the above subject matter is hereby acknowledged.

We regret to advise that your request has been declined owing to the fact that there are no reasonable grounds cited for a recount to be granted.

The absence of election agents at opening and closing of ballot boxes does not stop the electoral process and we refer you to provisions of section 84 of the Electoral Act [Chapter 2:13].”

[37]	As already been stated, the applicant’s contention was that the first respondent’s decision to turn down his request for a vote recount in the wards in question was grossly unreasonable because it was frugal in its response and that she failed to answer each and every particular averment. The applicant further contended that ZEC declined the request on a ground not raised by the applicant. According to him, that showed that ZEC had given no due attention to his request. Thus, such a response was substantively and procedurally unfair and liable to be set aside on the basis of s 68(1) of the Constitution and s 4 of the Administrative Justice Act.

[38]	Section 68 of the Constitution governs the right to administrative justice. It gives every person the right to administrative justice that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair. The section empowers Parliament to enact a law that provides for the review of administrative conduct.

[39]	Section 3 of the Administrative Justice Act imposes a duty on administrative authorities to act lawfully, reasonably and in a fair manner. In terms of s 4 a person aggrieved by the failure of an administrative authority to comply with s 3 can apply to the High Court for appropriate relief.

[40]	In counter, the first respondent said there was nothing wrong with her response. It adequately met the substance of the request which was merely repetitive and based on an unsubstantiated belief that the vote had been miscounted.

[41]	The first respondent further submitted that the applicant’s belief that there had been a vote miscount, in the absence of the V11 forms or any other evidence, was grounded on nothing. It was fanciful. The opposing affidavit gave an analysis of the voting patterns and returns on each of the impeached polling stations. The analysis would start by stating the total number of the ballot papers distributed to the polling stations. It would then list the total number of votes cast; the number of spoilt or unused ballots; it would record the number of votes cast for each of the respective candidates, and then show that all the vote returns reconciled or tallied perfectly with the original number of the ballot papers initially distributed to the polling stations.

[42]	The first respondent also made the point that at each of the polling stations each of the candidates, including the applicant, was duly represented by their polling agents who, at the end of voting, all signed the V11 forms signifying their agreement with, and confirmation of, the count and the tally of the votes recorded on them. The declaration that they signed read: “I hereby declare that this return is a correct statement of all the votes cast at the above mentioned polling station.”

[43]	In his answering affidavit, and dealing specifically with the depth to which his ‘strong conviction’ about a vote miscount had to be grounded, the applicant said the Electoral Act does not give any grounds upon which an application for a recount should be made, and that any party that is not satisfied with the result of an election is entitled to have a recount.

[44]	Section 67A governs the recounting of votes following an election and the declaration of a winner. The request is made to ZEC. It can be made by any political party or candidate that contested the election, or their representatives. There are several other requirements which, by the use of the word “shall”, are peremptory. By the use of “and” they are also conjunctive, not disjunctive, meaning all of them have to be considered together. Subsection (2)(b) says the request must state specifically the number of votes believed to have been miscounted and, if possible, how the miscount may have occurred. Paragraph (c) requires the request to state how the alleged miscount affected the results of the election.

[45]	Section 67A also provides peremptorily the steps ZEC is obliged to take on receipt of a request for a vote recount. Of particular relevance in this regard is subsection (3)(b). It directs ZEC to order a recount in the polling stations concerned if it considers there are reasonable grounds for believing that the alleged miscount occurred, and that if it did, it would have affected the result of the election.

[46]	Subsection (7) then goes on to say ZEC’s decision whether or not to order a recount, and if it does, the extent of that recount, shall not be subject to appeal.

[47]	At the hearing, Mr Nyakureba submitted that since the Electoral Act says nothing about the depth to which the belief of a miscount that a party or candidate requesting a vote recount alleges must be grounded, it is enough if an applicant simply states that he entertains the belief. He argued that it was enough that the applicant stated that he was ‘strongly convinced’ that there had been a miscounting of the votes; that he had gone on to specify for each polling station the quantum of such miscounting and that it was self-evident that if the anomaly was corrected the applicant would be the run-away winner for Mutasa North Constituency.

[48]	The applicant is mistaken. He gave ZEC nothing to motivate a recount. He has given this court nothing to upset ZEC’s decision. His belief or ‘strong conviction’ that there was a vote miscount or that the vote was misallocated was grounded on nothing. Nothing comes from nothing.

[49]	An applicant’s belief in s 67A(2)(b) of the Electoral Act of a vote miscount is tested on reasonable grounds. Otherwise any manner of belief whether fanciful; whimsical; impulsive; impetuous; spiteful, and the like, can always ground a request for a vote recount. That cannot have been the intention of the Legislature. I say so because the same paragraph (b) goes on to say “… and, if possible, how the miscount may have occurred.” Furthermore, under s 67A(3)(b) ZEC itself is entitled to consider whether an applicant’s belief is reasonable and whether the alleged miscount would affect the election result.

[50]	Thus, the Legislature does not expect a nude belief as a ground for a vote recount. It must be a belief clothed with some information on how the miscount might have occurred.

[51]	The applicant says he does not specifically know how the miscount might have occurred but believes there was a system failure or manipulation. But what system failure? What manipulation? These are all naked allegations. They are mere conjecture. Yet this attitude is difficult to understand. How was the applicant able to tell with such mathematical precision that such and such number of votes belonging to him at such and such polling station had wrongly been allocated to Madiwa? He came up with a total of 800 votes. He must have been reading from something. He must have got the information from somewhere. But he did not tell ZEC. He has not told the court.

[52]	The applicant also alleges he did not see the V11 forms from some of the polling stations because his polling agents at those stations had vanished. He suspected that those agents had been compromised by his rivals. This information cannot possibly be speaking to the quality or depth of the belief that is envisaged by s 67A(2)(b) as read with subsection (3)(b) of the Electoral Act. To the contrary, it further undresses the belief, if ever it had any clothes. In other words, a party or candidate cannot say ‘I want a vote recount because I don’t know what the election return says. I don’t know what the election return says because I never saw it. I never saw it because my agent ran away with it. He ran away with it because he was corrupted. But all the same I want a vote recount.’

[53]	By the applicant’s own admission an election challenge is a serious process. It is not a contest for the challenger and ZEC only. It also involves the other contesting parties or candidates who, by s 67A(3)(a), are entitled to be notified of the challenge immediately. Further, the electorate and, indeed the entire nation, have an interest in such a challenge. The applicant’s request lacked seriousness. It was bare. It was fanciful. It was a fishing expedition.

[54]	I am satisfied that ZEC’s response was adequate. It answered the substance of the request. As previously pointed out, the request was repetitive. The figures given for the alleged miscount per polling station seemed plucked from the air.

[55]	There was nothing wrong in the last paragraph of ZEC’s response about an electoral process going ahead even in the absence of polling agents at opening or closing of ballot boxes. Plainly, it was dealing with the applicant’s reference to some of his polling agents having vanished with his copies of the V11 forms.

[56]	This application lacked merit. It is liable to be dismissed. The first respondent prays for costs on an attorney and client scale. Such a prayer is not unreasonable for a number of reasons. This was not an election petition under Part XXIII of the Electoral Act, where among other things, a challenger has greater weaponry and more leverage to upset the outcome of an election. A review is more limited. Its reach is much shorter. It is confined to examining whether ZEC’s decision constituted a palpable inequity that no sensible person acting carefully would have arrived at. Unless that conclusion is reached, this court will not upset the decision. The applicant ought to have appreciated this pitfall.

[57]	Furthermore, the application was almost a replica of EC 1/18 which ZEC had also responded to in the same way. Thus, the applicant was already aware of what defence ZEC would mount. But in spite of that he plunged headlong into costly but unmeritorious litigation on virtually the same grounds and virtually the same wording.

[58]	The general rule is that costs follow the result. Generally, the loser pays the winner’s costs. However, for the reason that an election challenge is public interest litigation, I shall spare the applicant costs at any scale. But it shall not be long before unmeritorious litigation such as this shall attract punitive orders of costs.

[59]	In the result, the application is hereby dismissed with no order as to costs.

19 December 2018

Maunga Maanda & Associates, applicant’s legal practitioners

Nyika Kanengoni & Partners, first respondent’s legal practitioners

Mugadza Chinzamba & Partners, second respondent’s legal practitioners