Judgment No. SC 69/15 2
Civil Appeal No. SC 9/14
1
FACTUAL BACKGROUND
The background to the dispute is as follows. The appellant was a candidate in
the harmonised Presidential, Parliamentary and Local Government elections held on the
31 July 2013.
He was a candidate in the Parliamentary election for the Mt Pleasant
constituency in Harare. He lost the election to the fourth respondent, who was duly declared
the winner in that particular constituency. The appellant was not happy at losing, and filed a
petition in the Electoral Court challenging the result of the election. Following the filing of
his petition, the appellant further filed an application in the Electoral Court, in terms of ss 21
and 70 of the Electoral Act [Chapter 2:13](“the Act”),seeking the relief referred to. This was
for the purpose of prosecuting his election petition.
The application was dismissed by the Electoral Court after a full hearing, on a
number of grounds. Firstly the court found that the granting of the order sought by the
appellant would result in him simultaneously accessing election residue pertaining to the
Presidential and Local Government election results in circumstances where no pending
petitions existed in relation to those results. Secondly it was the court’s finding that in any
event, any challenge or petition regarding the Presidential election would be a matter in
which only the Constitutional Court would have jurisdiction. Thus any access to election
residue pertaining to the Presidential election could only be by way of an appropriate order
granted by that court. Finally the court determined that the absence of any rules governing
selective access to election material stored together with that pertaining to the other two
components of the harmonised elections, created a lacuna in the law whose effect was to
disable the court from granting the order sought.