This case arose in the context of the Presidential Election held on 9-11 March 2002 in Zimbabwe. The respondent, Morgan Tsvangirai, had instituted an election petition (Case No. HC 3616/2002) challenging the election results. On 16 October 2002, a provisional order was granted by Makoni J requiring the Registrar-General of Elections (the applicant) to preserve all election materials (ballot papers, counterfoils, voters' rolls) in sealed packets and to transmit them to Harare for production to the Court within three days to prove compliance with section 78 of the Electoral Act. The provisional order was confirmed by Omerjee J on 13 November 2002 in the absence of opposition from the applicant. The applicant claimed he had instructed the Civil Division of the Attorney-General's office to oppose the order and had signed opposing affidavits on 23 October 2002, which were returned to the Civil Division on 29 October 2002. However, these affidavits were never filed. The applicant applied for rescission of the confirmed order on 15 November 2002. During the period, the applicant had been involved in several related applications concerning the preservation and destruction of election materials, all of which he had lost.
The application for rescission was dismissed with costs.
For rescission of a judgment granted in default, an applicant must establish good and sufficient cause by: (1) providing a reasonable explanation for the default that does not amount to wilfulness or gross negligence; (2) demonstrating that the application is bona fide and not intended to delay the other party's claim; and (3) showing a prima facie defense with reasonable prospects of success. Unconcern or insouciance in prosecuting litigation amounts to wilfulness that cannot be excused. Section 78(3) of the Electoral Act imposes a clear statutory duty on constituency registrars to transmit election materials to the Registrar-General in Harare as soon as may be after polling day. The word "transmit" means to send, deliver, forward, or dispatch. Electoral materials held pursuant to a High Court order under section 78(4) are held pursuant to both the court order and the Electoral Act, as the Act provides the statutory foundation for such orders. Administrative difficulties such as lack of physical space or financial resources do not excuse non-compliance with clear statutory duties that are part of an official's normal functions. The performance of statutory duties ancillary to the election process should be provided for at the time of holding elections.
The Court noted that while inadequacy of explanation for default may justify refusal of rescission, its weakness may be cancelled out by a bona fide defense with good prospects of success. However, the Court cautioned (citing Chetty v Law Society, Transvaal) that an unsatisfactory explanation remains so regardless of prospects of success on the merits. The Court observed that in V Saitis & Co (Pvt) Ltd v Fenlake (Pvt) Ltd, the true test is whether good and sufficient cause has been established, and the three requirements should be examined together, not in isolation. The Court noted that it would not lay down a general rule that judges must in all cases examine whether all requirements of good and sufficient cause have been met, suggesting some flexibility in approach. The Court commented on the "toing and froing" of applications between the parties, noting the applicant had not fared well in any of the related applications concerning election materials. The Court distinguished the facts from Chairman, PSC v Zimta regarding governmental allocation of funds, noting that case involved discretionary payment of bonuses pursuant to enabling legislation, whereas this case involved normal statutory functions.
This case is significant for establishing principles regarding rescission applications in the electoral context in Zimbabwe. It clarifies that electoral officials cannot avoid statutory duties under section 78 of the Electoral Act based on administrative or financial difficulties. The judgment affirms that the preservation of election materials pending election petitions is a core statutory function requiring proper planning and resource allocation. The case also illustrates the strict approach courts take to rescission applications, requiring clear and satisfactory explanations for default, bona fides, and reasonable prospects of success on the merits. It demonstrates judicial intolerance for dilatory tactics in election matters and reinforces that attorneys' negligence will ultimately be borne by their clients. The judgment is also notable for its interpretation of "transmit" in section 78(3) as requiring physical delivery to the Registrar-General in Harare, not mere retention at constituency level.