Gift Machoka Konjana v Dexter Nduna

This was an election petition brought under sections 66 and 167 of the Electoral Act [Chapter 2:13] of Zimbabwe. The petitioner, Gift Machoka Konjana, and the respondent, Dexter Nduna, were candidates in the National Assembly election for Chegutu West Constituency held on 30 July 2018. After the vote count, the Zimbabwe Electoral Commission (ZEC) declared the respondent the winner with 10,932 votes against the petitioner's 10,828 votes. The petitioner alleged that ZEC officials made an error in capturing data from ward centers - specifically, on the V11 Form from Propose Primary School Polling Station in Ward 12, the petitioner's votes (121 votes) were swapped with those of another candidate, Simon Kache (1 vote), when the results were transferred to the V23A Form. The petitioner claimed that if this error was corrected, he would be the duly elected member. He lodged a complaint with ZEC after discovering the mistake, and ZEC allegedly admitted the error. The petitioner sought to nullify the respondent's declaration as winner and to be declared the duly elected Member of Parliament for the constituency.

• Whether the election petition complied with the peremptory requirements of Rule 21 of The Electoral (Applications, Appeals and Petitions) Rules, 1995 S.I 74 of 1995
• Whether a petition can be brought 'on notice' rather than in the prescribed statutory form
• Whether the exact relief sought was stated ex facie the petition as required by Rule 21(g)
• Whether the relief sought was competent under sections 66 and 167 of the Electoral Act
• Whether the Electoral Court has power to declare a petitioner the winner in cases of undue return under section 167, or whether such power is limited to cases under section 66(4)(c) involving vote recounts

The petition was dismissed with costs. The Registrar of the Electoral Court was directed to serve a copy of the order on the Zimbabwe Electoral Commission and the Clerk of Parliament of Zimbabwe.

An election petition must strictly comply with the peremptory requirements of the applicable electoral rules. In terms of Rule 21 of The Electoral (Applications, Appeals and Petitions) Rules, 1995, the grounds relied upon and the exact nature of the relief sought must be apparent ex facie the petition itself. There is no provision for these details to be substantiated in supporting affidavits, draft orders, or other attachments to the petition. A petition brought 'on notice' rather than in the prescribed statutory form is fatally defective. The Electoral Court is a creature of statute with no residual discretion to overlook non-compliance with mandatory procedural requirements. These rules must be strictly, not substantially, complied with. However, under sections 167 and 171(3) of the Electoral Act, where a petitioner complains of an undue return (as opposed to an undue election), the Electoral Court has the power not only to set aside a declaration but also to determine whether another person is entitled to be declared duly elected and to make such a declaration, without the necessity of a vote recount under section 66(4)(c).

The court expressed strong criticism of the legal practitioner who drafted the petition, stating that the practitioner 'paid lip service to the law and rules governing election petitions' and 'failed to appreciate that he was dealing with an election matter which is governed by different rules of practice.' The court observed that 'had he been diligent, read relevant case authorities, the Act and the rules applicable, his client would not be in this predicament.' The court noted its 'misgivings with the arrangement of this petition' and commented that 'I do not get the sense that legal practitioners take these election petitions seriously or perhaps it may be a question of lack of experience in this area of the law.' The court lamented that 'the unfortunate scenario is that where a petitioner files a defective petition, the court can do nothing to salvage the situation even in a case where the petition may seem to have merit. The court's residual power to condone infractions in electoral matters is curtailed. The court's hands are tied.' The court also clarified that while Rule 21 states a petition shall 'generally' be in the form of a court application, this does not permit dispensing with the specific requirements laid out in Rule 21 itself. The court noted that Rule 21 does not outlaw the attachment of a draft order to a petition, but a petitioner cannot state on the face of the petition that relief is found in the draft order - the exact relief must still be stated on the face of the petition itself.

This case is significant in Zimbabwean electoral jurisprudence (and instructive for South African electoral law by analogy) for reinforcing the strict compliance required with electoral petition procedural rules. It emphasizes that: (1) Electoral courts are creatures of statute and must operate strictly within statutory boundaries; (2) The requirements of electoral petition rules are peremptory and substantial compliance is insufficient; (3) Election petitions cannot be brought 'on notice' in the manner of ordinary court applications; (4) The grounds and exact relief must appear on the face of the petition itself and cannot be substantiated in supporting documents or draft orders; (5) Even where a petition may have merit, procedural defects are fatal and the court has no residual power to condone such infractions; (6) Legal practitioners must thoroughly familiarize themselves with specialized electoral law and procedure. The judgment serves as a stern warning about the consequences of sloppy drafting in electoral matters and the importance of adhering to sui generis electoral procedures.