Doctor Daniel Shumba and Advocate Bruce Justin Chiota v The Zimbabwe Electoral Commission and Mr Mushangwe N.O.

The applicants were leaders of two political parties who wished to contest the Presidential Election held on 29 March 2008. On 15 February 2008 (nomination day), the first applicant arrived at the nomination court at approximately 15:45 hours (15 minutes before the 16:00 closing time). The second respondent, the nomination officer, advised him to wait while attending to the second applicant who was filling in forms. When the second applicant presented his completed papers, he was told the nomination court had closed and his papers would not be accepted. The first applicant then attempted to submit his papers but was similarly told the court had closed. The applicants contended they were present within the nomination court before the closing time and their papers should have been accepted under section 46(7) of the Electoral Act. They initially approached the High Court, which declined jurisdiction, directing them to the Electoral Court. The Electoral Court also declined to hear the matter on the basis that it had prescribed (was out of time). The applicants then approached the Supreme Court under section 24(1) of the Constitution, seeking a declaratory order that their constitutional rights had been violated.

• Whether the applicants' constitutional rights to freedom of association (sections 21(1) and 21(2) of the Constitution) and protection of the law (section 18(1)) were violated by the nomination officer's refusal to accept their nomination papers
• Whether section 46(19) of the Electoral Act (providing for appeal to the Electoral Court) applied where nomination papers were rejected for alleged non-compliance with section 46(7) rather than sections 46(10) or 46(16)
• Whether the applicants were barred from approaching the Supreme Court directly under section 24(1) of the Constitution by virtue of section 24(3), given that they had previously approached the High Court and Electoral Court
• Whether the first respondent (Zimbabwe Electoral Commission) was correctly cited in light of section 18 of the Zimbabwe Electoral Commission Act
• Whether section 18 of the Zimbabwe Electoral Commission Act is mandatory (peremptory) or directory in nature

The application succeeded. The Court granted a declaratory order that the applicants' constitutional rights had been violated by the unlawful refusal to accept their nomination papers. The refusal was declared null and void. However, the Court noted this was somewhat academic as the election had already been completed and the applicants did not seek to affect that election outcome.

The binding legal principles established are: (1) Section 46(19) of the Electoral Act, which provides for appeal to the Electoral Court, only applies where nomination papers are rejected after acceptance and examination under sections 46(10) or 46(16), not where papers are rejected without acceptance for alleged non-compliance with section 46(7); (2) Where both the High Court and subordinate courts have declined jurisdiction and made final determinations to that effect, there are no ongoing "proceedings" within the meaning of section 24(2) of the Constitution, and applicants are not barred by section 24(3) from approaching the Supreme Court directly under section 24(1); (3) The use of "may" rather than "shall" in statutory provisions is generally indicative of directory rather than peremptory intent; (4) Section 18 of the Zimbabwe Electoral Commission Act, which requires citation of the Chairperson, is directory rather than peremptory, and non-compliance may be condoned where no prejudice results; (5) A nomination officer must accept nomination papers from candidates or their agents present in the nomination court at closing time, as required by the proviso to section 46(7) of the Electoral Act.

The Court made several non-binding observations: (1) The failure to provide a remedy in the Electoral Act for wrongful rejection of nomination papers for non-compliance with section 46(7) "appears to be an oversight by the draftsperson"; (2) Where no specific remedy is provided in the Act, the High Court can exercise its inherent jurisdiction of review; (3) Had the cause of action been properly pleaded in the High Court initially, "the probabilities are that the High Court would have exercised its review jurisdiction and determined the matter"; (4) Legal practitioners "should stand forewarned that in a proper case the Court may dismiss an application for failure to comply with s 18 of the Zimbabwe Electoral Commission Act"; (5) One object of sections 24(2) and 24(3) is "to prevent parallel proceedings in two courts and the possibility of two conflicting outcomes"; (6) The Court noted that while the exercise was "somewhat academic" given the completed election, it would provide "a useful guideline for the future conduct of election officials".

This case is significant in Zimbabwean constitutional and electoral law for several reasons: (1) It clarifies the scope of section 46(19) of the Electoral Act, establishing that the appeal mechanism to the Electoral Court only applies where nomination papers are rejected under sections 46(10) or 46(16), not for other grounds of rejection; (2) It interprets section 24(2) and 24(3) of the Constitution, holding that where courts have declined jurisdiction, there are no ongoing "proceedings" that would bar direct access to the Supreme Court under section 24(1); (3) It establishes that section 18 of the Zimbabwe Electoral Commission Act is directory rather than peremptory, though courts may dismiss applications or award costs for non-compliance in appropriate cases; (4) It affirms the principle that what is not denied in affidavits must be taken as admitted; (5) It demonstrates the Court's willingness to grant declaratory relief even where the practical outcome cannot be changed, to provide guidance for future conduct of election officials; (6) It confirms the High Court's inherent review jurisdiction where the Electoral Act does not provide a specific remedy.