Frank Chitembwe v Chairperson, Zimbabwe Electoral Commission and 4 Others

### Preamble
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ECMT 1-19
EC 01/19
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FRANK CHITEMBWE

versus

CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION

and

CHIEF EXECUTIVE OFFICER FOR MUTASA RURAL DISTRICT

COUNCIL

and

JUSTIN TANYARADZWA CHIRIMO

and

TANYARADZWA MUKODZA

and

MARGARET TINDIRIKA

ELECTORAL COURT OF ZIMBABWE

MUZENDA J

MUTARE, 16, 24 and 25 April 2019

Urgent Chamber Application

C Ndlovu assisted by D Tandiri, for the applicant

J Zviuya, for the second respondent

MUZENDA J: On 12 April 2019, Mr Frank Chitembwe, councillor for Ward 10 of Mutasa Rural District Council (applicant) filed an urgent chamber application praying for the following relief:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

The declaration by Zimbabwe Electoral Commission of a vacant Council seat for Ward 10 in Mutasa Rural District Council be and is hereby set aside.

The nomination of 3rd to 5th respondents as candidates in the scheduled by-election for Mutasa Rural District Council Ward 10 be and is hereby set aside.

The declaration by the Zimbabwe Electoral Commission that there would be a by-election on 11 May 2019 for a council seat for Ward 10 Mutasa Rural District Council be and is hereby set aside.

1st and 2nd respondents or any other respondent who may be inclined to oppose the relief I seek shall pay the costs of this application

Costs of suit.

INTERIM RELIEF GRANTED

Pending determination of this matter, the applicant is granted the following relief:

That the holding by the Zimbabwe Electoral Commission of a by-election for Ward 10 Mutasa Rural District Council scheduled for 11 May 2019 be and is hereby suspended and stayed.”

FACTS

Sometime in January 2019, the Zimbabwe Congress of Trade Unions called for a nationwide stay away principally as a reaction against fuel price increases. It turned out that the events did not result in a stay away but blocking of major public roads, spikes, nails, boulders, tree trunks, tyres, drums and scrap metals were piled on the roads and in some instances human shield was used to thwart both human and automobile traffic. The applicant participated in this “stay away” and the end product of all this activity was an enormous number of people were arrested by the police, indeed the arrest was indiscriminate and sporadic.

Applicant was prosecuted and convicted for contravening s 38 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. On 12 February 2019, he was sentenced by Mutasa Magistrates Court to thirty six (36) months imprisonment and twelve (12) months imprisonment was suspended on the usual conditions of future good behaviour. On 13 February 2019, applicant noted an appeal against sentence only. On 8 April 2019, applicant was granted bail pending appeal and was released from custody.

Meanwhile the second respondent wrote to the District Elections officer for Zimbabwe Electoral Commission on 7 March 2019 in terms of s 121 (1) of the Electoral Act [Chapter 2:13] notifying a vacancy in respect of Ward 10. The applicant became aware of this development on 30 March 2019 and Notices were published in the local media to the effect that a Nomination Court was going to sit on 2 April 2019. After the successful sitting of the Nomination Court a by-election date was set for 11 May 2019. The candidates are third to fifth respondents for various political parties.

Having been granted bail by the Magistrates Court, the applicant quickly filed the current chamber application contending that the Electoral Commission had an obligation to notify him on its decision to hold a by-election in Ward 10 of Mutasa Rural District Council since he was the sitting councillor and its failure was fatal to what subsequently transpired. Since the applicant was now out on bail he was available to serve his constituency and the Zimbabwe Electoral Commission has to wait for the outcome of his appeal against sentence. He greatly anticipates that the Appeals Division of the High Court will return a non-custodial sentence. He further submitted in his founding affidavit that he had not been convicted of an offence involving dishonesty, breach of trust or physical violence.

The second respondent is opposing the application. The first respondent (ZEC) indicated on 24 April 2019 that it will abide by the decision of the court and third to fifth respondents do not oppose the application.

In its opposing papers the second respondent raised a preliminary point based on an improper citation. He submitted that he is but an employee of Mutasa Rural District Council, the Council is body corporate in terms of s 12 of the parent Act and in that capacity it can sue and can be sued in its own name. At all material times second respondent was acting in his capacity as an employee of the said Rural District Council. When he communicated the existence of a vacancy in Ward 10 he did so on behalf of Mutasa Rural District Council not in his personal capacity but as the incumbent Chief Executive Officer of the Rural District Council.

In response to the second respondent’s point in limine, the applicant contends that it is the second respondent who notified the Zimbabwe Electoral Commission about the vacancy and not Mutasa Rural District Council. Applicant further argued that the function and administrative duty to do any work for the Council lies with the second respondent and not the Council. The second respondent did not produce any legal instrument nor resolution from the Council to prove the source of his authority to act in the manner he did. The Electoral Act cites the Chief Executive officer and not the Council and in so doing he performs an administrative function he does not do so on behalf of Council. Applicant strongly contends that second respondent is properly cited in his official capacity and for his role as demanded by the Electoral Act.

Section 12 of the Rural District Council Act [Chapter 29:13] provides as follows:

“12: Councils to be bodies corporate. Every Council established in terms of this Act shall be a body corporate with perpetual succession and in its own name, shall be capable of suing and being sued, and, generally of doing, suffering and performing all things which in terms of this Act or any other law, it may do, suffer and perform.”

Section 3 of the Revenue Authority Act has a similar provision to s 12 of the Rural District Council Act, and provides:

“There is hereby established an authority to be known as the Zimbabwe Revenue Authority which shall be a body corporate capable of suing and being sued in its own name and subject to this Act, of performing all acts that bodies corporates may by law perform.”

Section 66 (1) of the Rural District Councils Act, stipulates that:

“Subject to this section, a council shall appoint a person approved by the Minister to be the Chief Executive officer of the Council.”

It is thus clear from the above that the Legislature never intended that a Chief Executive officer of a Rural District Council can be sued in his own name for official decisions executed in his official capacity. In reading and hearing counsel for the applicant, the court did not find any submission directly dealing with whether the Chief Executive officer is a legal persona capable of being sued. The Chief Executive officer is answerable to the Council and Zimbabwe Electoral Commission deals with the local authority, the Rural District Council.

A Rural District Council is thus a body corporate capable of suing or being sued in its own name and the second respondent is just an employee or agent of the council whose official decisions are executed in the name of his office. There is no allegation that the Chief Executive officer personally acted in a manner leading to the institution of legal action, but rather it is the conduct of the local authorities’ employee which is under scrutiny and the Chief Executive officer cannot be liable. The applicant should have cited Mutasa Rural District Council as the second respondent and the citation of the Chief Executive officer was improper.

In City Bolts (Pvt) Limited v Workers Committee, the Supreme Court held that:

“At the hearing of this matter, it appeared to this court that the respondent simply cited ‘Workers Committee’ was not a legal persona capable of being sued. Accordingly both counsel were asked to address the court on the matter. Both counsel accepted that the respondent which is Workers Committee appointed by workers of the appellant company is not a legal persona and cannot therefore be sued.”

In the matter of Macfoy v United Africa Company Limited, it was held that:

“of an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of court to set it aside. It is automatically null and void, without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

The second respondent placed the applicant on alert about the improper citation but the applicant instead of applying for an amendment, persisted with its stance to the effect that second respondent had been properly cited. The citation of the second respondent was wrong and hence there is no second respondent before the court. Consequently, the point in limine raised is upheld, the second respondent succeeds and that is the cause for the dismissal of the application.

It is there ordered as follows:

Applicant’s application is dismissed.

Applicant to pay second respondent’s costs.

Gonese and Ndlovu, applicant’s legal practitioners

Bere Brothers, second respondent’s legal practitioners