The Chairman Zimbabwe Electoral Commission (In His Official Capacity) & Another v Roy Leslie Bennett & Another

On 18 February 2005, nominations were held for parliamentary elections scheduled for 31 March 2005. The first respondent, Roy Leslie Bennett, who was then the Member of Parliament for Chimanimani, submitted his nomination papers through his Chief Elections Agent. The second applicant (Constituency Elections Officer) rejected the nomination papers on the ground that the first respondent was serving a twelve-month imprisonment term imposed by Parliament for contravening item 16 of the Schedule of the Privileges, Immunities and Powers of Parliament Act. The rejection was based on paragraph 3(2)(c) of Schedule 3 of the Constitution, which disqualifies from registration as a voter any person convicted of a criminal offence and sentenced to imprisonment for six months or more. The first respondent appealed to a judge of the Electoral Court in terms of s 46(19)(b) of the Electoral Act, who found the rejection was not legally correct as the parliamentary contempt offence did not constitute a criminal offence in the conventional sense. The judge reversed the rejection. The applicants then sought review by the Supreme Court, alternatively seeking leave to appeal out of time.

• Whether the Supreme Court has jurisdiction to entertain review applications at first instance in terms of s 25 of the Supreme Court Act
• Whether s 25(3) of the Supreme Court Act prohibits litigants from directly approaching the Supreme Court on review
• Whether the applicants had a right of appeal against the Electoral Court judge's decision made in terms of s 46(19)(b) of the Electoral Act
• The proper interpretation of the phrase 'there shall be no appeal from the decision of that judge' in s 46(19)(b) of the Electoral Act

The application was struck off the roll. The costs of the application were ordered to be borne by the first applicant (The Chairman Zimbabwe Electoral Commission).

Section 25(3) of the Supreme Court Act expressly prohibits any person from instituting review proceedings in the first instance before the Supreme Court. The Supreme Court's review powers under s 25(1) and (2) are to be exercised as part of its appellate jurisdiction, with s 25(2) applying only to irregularities that come to the Court's attention at its own instance, not at the instance of litigants. The phrase 'there shall be no appeal from the decision of that judge' in s 46(19)(b) of the Electoral Act constitutes a clear and unambiguous prohibition against any appeal whatsoever from an Electoral Court judge's decision on nomination disputes, applying to all parties and not only to the candidate.

The Court observed that the intention of the legislature in enacting s 25 of the Supreme Court Act was to ensure that the Supreme Court remains the final Court of Appeal. The Court also noted that for an application for leave to appeal out of time to succeed, the applicant must have a right of appeal and must demonstrate prospects of success on appeal, among other requirements.

This case is significant in Zimbabwean law (relevant to South African jurisprudence on similar issues) as it clarifies the scope of the Supreme Court's review jurisdiction and reinforces the principle that the Supreme Court is primarily an appellate court. It establishes that litigants cannot approach the Supreme Court directly on review at first instance, even where the court has statutory review powers. The judgment emphasizes the importance of adhering to legislative intent regarding finality of certain electoral decisions and the hierarchy of courts. It also demonstrates the strict interpretation of statutory provisions prohibiting appeals, rejecting attempts to read exceptions into clear legislative language.