Gift Machoka Konjana v Dexter Nduna

In July 2018, the applicant participated in a parliamentary election in Chegutu West constituency. The respondent was declared the winner with 10,932 votes compared to the applicant's 10,828 votes. The applicant challenged the results with the Zimbabwe Electoral Commission (ZEC) District Elections Officer, alleging mistakes in collating and verifying results, which ZEC admitted. On 10 August 2018, the applicant filed an election petition in the Electoral Court seeking correction of the erroneous declaration. The Electoral Court dismissed the petition on the basis that it was fatally defective for non-compliance with Rule 21 of the Electoral (Applications, Appeals and Petitions) Rules 1995. The applicant appealed to the Supreme Court, but the respondent raised a preliminary objection that the Supreme Court was barred from adjudicating because section 182(2) of the Electoral Act requires election appeals to be disposed of within 3 months. The Supreme Court sustained the preliminary objection and removed the appeal from the roll for lack of jurisdiction. The applicant then sought leave to appeal to the Constitutional Court.

• Whether the Supreme Court's decision involved a constitutional matter that could be appealed to the Constitutional Court
• Whether the interpretation of section 182(2) of the Electoral Act as mandatory violated the applicant's constitutional rights to access to courts under section 69(2) and (3) of the Constitution
• Whether section 182(2) of the Electoral Act is directory or mandatory in nature
• Whether the Supreme Court's interpretation of section 182(2) violated the right to protection and benefit of the law under section 56(1) of the Constitution
• Whether the Constitutional Court has jurisdiction to hear an appeal from the Supreme Court where no constitutional matter was decided

The application for leave to appeal was dismissed with no order as to costs.

The binding legal principles established are: (1) The Constitutional Court has specialized jurisdiction limited to constitutional matters only - matters where the Constitution must be interpreted, protected or enforced; (2) The interpretation of legislation does not constitute a constitutional matter unless the Constitution is brought to bear in the interpretive exercise; (3) A decision by a subordinate court involving straightforward application of statutory provisions without constitutional interpretation does not give rise to an appealable constitutional matter to the Constitutional Court; (4) Section 182(2) of the Electoral Act creates mandatory, imperative time limits that cannot be exceeded under any circumstances, and any adjudicative proceedings beyond those time limits are null and void; (5) An applicant as dominus litis must be vigilant in monitoring and managing the progress of electoral appeals to meet statutory time limits.

The Court made obiter observations about costs in constitutional matters, noting that while the matter could have been more competently and expeditiously handled by the applicant and his lawyers, there was nothing suggesting abuse of court processes meriting a costs order. The Court also observed that it would be improper to bend the rules to rectify the situation as this would set a bad precedent, quoting William Shakespeare's Merchant of Venice to emphasize that setting bad precedents must be avoided at all costs. The Court noted that the respondent had abandoned his preliminary objection regarding the use of the wrong form (chamber application instead of ordinary application under Rule 32(2)).

This case clarifies the limited and specialized jurisdiction of the Constitutional Court of Zimbabwe, emphasizing that it only hears constitutional matters where the Constitution must be interpreted, protected or enforced. The judgment establishes that the mere interpretation of legislation does not constitute a constitutional matter unless the Constitution is brought to bear in the interpretive exercise. The case also confirms that section 182(2) of the Electoral Act creates mandatory, peremptory time limits for electoral appeals that cannot be exceeded, and that litigants as domini litis have a duty to ensure their cases are prosecuted within statutory time limits. The judgment serves as an important precedent on jurisdictional questions and reinforces that the Supreme Court remains the final court of appeal except in matters over which the Constitutional Court has jurisdiction under section 169(1) of the Constitution.