Temba Mliswa v The Chairperson (ZEC) and Others

The applicant was an independent candidate for the Hurungwe West By-Election scheduled for 10 June 2015. He filed an ordinary application seeking to suspend the election due to alleged violence and intimidation by ZANU PF (3rd respondent), its candidate (5th respondent), the Secretary for Administration (4th respondent), and traditional leaders (6th-10th respondents). Alternatively, he sought orders compelling respondents to issue corrective statements about voters' rights. The applicant filed the application using the ordinary application procedure under Rule 231(3) of the High Court Rules but sought to have it heard urgently, modifying the dies induciae (notice period) from 10 days to 3 days. The application was served on different respondents on different dates (2 June and 6 June 2015) and set down for 8 June 2015, just two days before the scheduled election. Three preliminary issues were raised: (1) whether respondents were entitled to the full dies induciae under the rules; (2) whether the Electoral Court had jurisdiction to hear the application; and (3) whether the 4th respondent was correctly cited in his personal capacity.

• Whether respondents were entitled to the full dies induciae (notice period) provided under Rule 232 of the High Court Rules despite the applicant's unilateral modification to 3 days
• Whether the Electoral Court has jurisdiction to hear applications arising under the Electoral Act following amendments to section 161
• Whether an applicant can unilaterally modify procedural rules without court approval under section 165(4) of the Electoral Act
• Whether a government minister can be sued in his personal capacity for utterances made at political campaign meetings
• What is the scope and meaning of 'exclusive jurisdiction' conferred on the Electoral Court by section 161(2) as amended in 2012

1. The 3rd and 5th Respondents are entitled to the dies induciae provided for by the rules in terms of the type of application the applicant filed. 2. The 1st and 2nd respondents' preliminary issue is dismissed with costs. 3. The 4th respondent's preliminary issue is dismissed with costs. 4. The applicant shall pay the 3rd and 5th respondents' costs. 5. The applicant's application is removed from the roll.

The binding legal principles established are: (1) An applicant who chooses the ordinary application procedure under Rule 231(3) and Rule 232 cannot unilaterally reduce the dies induciae; respondents are entitled to the full notice period provided by the rules unless the proper urgent application procedure under Rule 244 is followed. (2) Section 165(4) of the Electoral Act requires that modifications to High Court rules must 'appear to the Electoral Court to be necessary' - this is a judicial determination, not a unilateral applicant decision. (3) The Electoral Court, as constituted under section 161(2) of the Electoral Act as amended by Act 3 of 2012, has exclusive jurisdiction to hear all appeals, applications and petitions arising under the Electoral Act, with powers equivalent to those of the High Court, except for criminal cases. This represents a fundamental expansion from the pre-2012 position. (4) A government minister or official may be sued in his personal capacity where the impugned conduct relates to personal or political activities unconnected to official ministerial duties. (5) Procedural rules must be strictly complied with even in urgent electoral matters; the urgency of elections does not excuse failure to follow proper procedures for expedited hearings.

The court made several non-binding observations: (1) The court acknowledged that the need to hear electoral cases urgently is not in dispute and that such cases should be heard as soon as possible, but emphasized that this does not excuse procedural non-compliance. (2) The court observed that it does not assist the smooth and efficient administration of justice for an applicant to apply for remedies at the eleventh hour and for legal practitioners to choose the wrong procedure and then expect the court to extricate them without doing what the law requires. (3) The court noted that the statement sought from the 4th respondent in his personal capacity would not have the same weight as a ministerial statement, but accepted that the applicant deliberately sought a personal retraction rather than an official pronouncement. (4) The court observed that the Legislature is deemed to know the law, and therefore the deliberate changes to section 161 in 2012 indicated clear legislative intent to alter the case law position established in Makone. (5) The court implicitly criticized the timing and procedural choices made by the applicant's legal practitioners in bringing the application so close to the election date.

This case is significant in Zimbabwean electoral and procedural law for several reasons: (1) It clarifies the scope of the Electoral Court's jurisdiction following the 2012 amendments to section 161 of the Electoral Act, establishing that the court now has exclusive and unlimited jurisdiction over electoral matters with powers equivalent to the High Court; (2) It overrules the restrictive interpretation of Electoral Court jurisdiction in Makone v Chairperson (ZEC) 2008 (1) ZLR 230 (H), reflecting legislative intent to enhance the Electoral Court's powers; (3) It establishes important principles regarding procedural compliance in urgent electoral matters, emphasizing that litigants cannot unilaterally modify procedural rules even in time-sensitive cases - proper procedures must be followed; (4) It reinforces the principle that modifications to High Court rules under section 165(4) require judicial approval, not unilateral applicant decision; (5) It clarifies when government officials can be sued in their personal versus official capacities, particularly in the context of political activities. The case demonstrates the tension between the need for expeditious resolution of electoral disputes and the requirements of procedural fairness and due process.