Movement for Democratic Change Alliance (MDC Alliance) v Zimbabwe Electoral Commission and Another

The applicant (MDC Alliance) brought an urgent chamber application seeking to interdict the Commissioner General of the Zimbabwe Republic Police from conducting supervised postal ballot voting of police officers. The applicant alleged that postal ballot voting conducted at Zimbabwe Republic Police Ross Camp Bulawayo and Fairbridge Police Station on 12 July 2018 violated the Constitution and electoral law by causing police officers to vote in groups, thus infringing on the requirement for secret voting. The applicant sought a declaration that the postal ballot process was null and void and requested that ZEC organize fresh postal ballots. The application was heard on 17 July 2018, after postal voting had already closed on 14 July 2018 at 12 noon in terms of the Electoral Act. The applicant's evidence consisted primarily of hearsay allegations and anonymous tip-offs without supporting affidavits from any actual voters.

• Whether the interim interdict sought could be granted after the postal voting period had already closed
• Whether there was sufficient evidence to support allegations that postal ballot voting violated the constitutional requirement for secret voting
• Whether knowledge by police commanding officers of postal voting occurring constituted a violation of the requirement for secret voting
• Whether the court should order fresh postal ballots on the basis of unsubstantiated allegations
• Whether costs should be awarded against the applicant

The application was dismissed with costs awarded against the applicant.

The binding legal principles established are: (1) An interdict cannot be granted to prevent conduct that has already concluded - where postal voting has closed by operation of law, an application to interdict such voting cannot succeed as the essential requirement of apprehension of future harm cannot be met. (2) Knowledge by commanding officers that postal voting is taking place, as contemplated by Section 73(1) of the Electoral Act, does not constitute a violation of the constitutional requirement for secret voting under Section 155(1)(b) of the Constitution. (3) Allegations of violations of electoral rights must be supported by factual evidence from affected voters themselves; courts will not interfere with electoral processes based on hearsay, anonymous tip-offs, speculation, or unsubstantiated assertions. (4) The requirement for 'secret voting' under Section 75 of the Electoral Act and Section 155(1)(b) of the Constitution refers to the actual casting of the ballot being concealed, not to the fact that voting is occurring being unknown. (5) Political parties seeking to challenge electoral processes must provide concrete evidence of violations rather than relying on assumptions or presumptions.

The court observed that the applicant did not present itself as a serious litigant but rather one 'taking a gamble with the court on the unsubstantiated notion of "I smell a rat."' The court noted that the applicant's misapprehension of the law was evident in its demand that ZEC officials or political agents should supervise postal voting, when Section 75 of the Electoral Act requires voting to be done secretly without such supervision. The court commented that once ballot papers are requested and supplied, voting could occur anywhere without being watched by anyone, with ZEC's role limited to receiving applications, issuing ballot papers, and receiving sealed postal ballots. The court observed that the conspicuous absence of evidence from actual voters 'only points to speculative assumptions and misapprehension of the law.' The court also remarked that the request for the court to 'regulate elections' as a matter of principle was improper, and that the applicant's request for re-conducting postal votes had no basis in legal provisions.

This case establishes important principles regarding electoral disputes in Zimbabwe, particularly: (1) the evidentiary requirements for challenging electoral processes, emphasizing that courts will not act on speculation, hearsay, or unsubstantiated allegations; (2) the interpretation of the constitutional requirement for 'secret voting' in the context of postal ballots by members of disciplined forces; (3) the proper understanding of Section 73(1) of the Electoral Act, which contemplates that commanding officers will have knowledge of postal voting occurring without this violating the secrecy requirement; (4) the principle that political parties cannot claim rights superior to those of individual voters themselves, who must provide evidence if their voting rights have been violated; and (5) the mootness doctrine in urgent electoral applications where the relief sought is overtaken by events.