PIO v SMITH

1986 (2) ZLR 120 (SC)

Constitutional law — elections — rejection of ballot paper setting aside election — court
reluctant to do so — costs.
Interpretation of Statutes— reading “a” for “the” — reading provision couched in
negative as if couched in positive — interpretation to advance intention of legislature.
Legislation — Electoral Act 1979, ss 63(2), 79(3)(e), 79(3)(d), 156; Electoral
(Modification) Regulations SI 155A of 1985, s 6(1)(a).
A court ought not to be astute to adopt a construction of a section which would have the
effect of invalidating a vote where the intention of the voter has been indicated with
certainty and where in all other respects the ballot paper is in order.
An election conducted substantially in accordance with the principles of the Electoral Act
ought not to be invalidated on the ground that a narrow majority in favour of the
successful candidate would not have been achieved if only a few eligible voters had not
been discouraged from voting by encountering some modest inconvenience that could
have been avoided had better foresight been exercised by those responsible for
arrangements at the polling station.
An election should only be set aside where there is failure to comply in substance with
the principles underlying the Electoral Act or where a mistake or non-compliance with
the Act affected the result.
Page 121 of 1986 (2) ZLR 120 (SC)
Cases cited:
Mtoba & Ors v Sebe & Ors 1975 (4) SA 413 (E)
Borough of Hackney Case (1874) 31 LTR 69
Morgan & Ors v Simpson & Anor [1974] 3 All ER 722 (CA)
Gunn & Ors v Sharpe & Ors [1974] 2 All ER 1058 (QB)
A P de Bourbon SC for the appellant
M T O’Meara for the respondent
BECK JA: Voters on the White roll went to the polls on 27 June 1985 in the last
Parliamentary election. The appellant and the respondent were the only two candidates to
contest the Kadoma/Chegutu constituency. The next day, 28 June, the respondent was
declared duly elected, 849 votes having been counted in his favour against 847 votes for
the appellant.
The appellant petitioned the High Court for an order declaring the election for the above
mentioned constituency void on the ground of certain alleged irregularities. One of these
was conceded in the court below by the respondent. That concession was adhered to in
this court, and correctly so. The undisputed irregularity was that the returning officer had
allowed as a valid vote in favour of the respondent a ballot paper whereon the voter had
signed his name in the space provided for a cross or a number.
In terms of s 63(2) of the Electoral Act, 1979, as read with s 79(3)(e), that ballot paper
should not have been taken into account but had to be considered blank. The majority that
was gained by the respondent must therefore be taken to be a majority of one only.
Two further irregularities were alleged. In respect of one of these the learned judge a quo
found in favour of the respondent. In respect of the other he found in favour of the
appellant.
The appellant however, was non-suited and was denied the relief he sought because
written notice of the presentation of the petition, together with a copy of the petition, was
served on the respondent two days later than the time allowed for service by s 141 of the
Electoral Act; the provisions of that section in relation to the time within which service
must be effected were held to be peremptory so as to render fatal any failure to comply
strictly therewith.
By way of appeal and cross-appeal all these findings of the court below are challenged.
Page 122 of 1986 (2) ZLR 120 (SC)
I shall deal firstly with the alleged irregularity with regard to which the learned judge
found in favour of the appellant. It was held that the returning officer should not have
counted in favour of the respondent three ballot papers wherein a cross had been placed,
not in the blank rectangle furthest to the right of the rectangle in which the respondent’s
name was contained, but in the very rectangle that contained his name. It was held that
the returning officer is peremptorily obliged by s 79(3)(d) of the Act to reject and not to
count any such ballot paper. That section is in these terms:
“79. (3) Subject to the provisions of subsections (6) and (7), in the case of an election for
a White Roll member where there are only two candidates for election, the returning
officer shall reject and not count any ballot paper —
(d) on which a cross or the figure 1 has been placed elsewhere than in the rectangle
opposite the name of the candidate.”
(I may say that the provisions of subs (6) and (7) have no bearing on the question that has
arisen.)
I shall assume that the learned judge a quo was correct in holding, for the reasons that he
gave, that this is not a directory provision only. I do not however, agree that it was shown
that the provision had not been complied with in the three instances that I have
mentioned.
The ballot papers that were used contained four vertical columns and three horizontal
columns divided, by means of parallel vertical and horizontal lines, into twelve
rectangles. The first vertical column contained, in the top rectangle, the words “Name of
Candidate.” The two rectangles immediately beneath it contained, respectively, the
names of the appellant and respondent. The second vertical column contained, in the top
rectangle, the words “Name of Party” and the two rectangles immediately beneath it
contained, respectively, the names of the appellant’s and respondent’s parties. The third
vertical column contained, in the top rectangle, the word “Symbol”, and the two
rectangles immediately beneath it contained, respectively, the symbols of the appellant’s
and respondent’s parties. The fourth vertical column contained nothing in the top
rectangle, and the two rectangles beneath it were similarly blank. Obviously, being blank,
it is one of these two lower rectangles in the fourth vertical column that voters were
expected to use when indicating, by means of a cross, the candidate of their choice.
Page 123 of 1986 (2) ZLR 120 (SC)
But a blank rectangle in the fourth vertical column is clearly not the only rectangle, on a
ballot paper that is arranged in the way these ballot papers have been arranged, which
complies with the description used in s 79(3)(d) of the Act. The rectangles in the second
and third vertical columns of these ballot papers also do so, even though they are not
blank rectangles. There is ample room in either of those rectangles for a voter to place a
cross without superimposing it on the name, or on the symbol, of the party; and a cross so
placed would most certainly, so it seems to me, be placed “in the rectangle opposite the
name of a candidate”.
It is true that the use of the definite article “the” suggests a particular rectangle, rather
than just one of a number of rectangles; but that is not a sufficient warrant for reading the
subsection — if it is to be treated as peremptory — as if the word “rectangle” were
expressly qualified by the adjective “blank”, or by an adjectival phrase such as “furthest
to the right”, so as to invalidate any votes indicated by a cross placed in either of the
rectangles in the second or third vertical columns.
When a ballot paper is presented in the form in which these ballot papers were presented,
a form in which there are not only a number of rectangles opposite the name of each
candidate, but where the name of each candidate is itself in a rectangle of its own and
indeed when all twelve of the smaller rectangles into which the ballot paper has been
divided themselves form one large rectangle, then it seems to me that one is constrained
to treat the definite article “the” in s 79(3)(d) as if it were the indefinite article “a”. And if
s 79(3)(d) is to be so construed in relation to these particular ballot papers, then a cross
placed opposite the name of a candidate in any one of the four horizontal rectangles,
including the very rectangle in which the candidate’s name is contained, should not be
held to offend against s 79(3)(d). The court ought not to be astute to adopt a construction
of the section which would have the effect of invalidating a vote where the intention of
the voter has been indicated with certainty, and where in all other respects the ballot
paper is in order.
It is not suggested that the crosses, in the three instances in question, were superimposed
on the name of the respondent, an action that might be taken to indicate an intention to
vote against the candidate rather than for him; it was alleged merely that the crosses were
placed in the rectangles in which his name appeared. Opposite the respondent’s name in
that rectangle there is ample room for a cross to be placed without it being superimposed
on any part of the respondent’s name.
Page 124 of 1986 (2) ZLR 120 (SC)
Accordingly the returning officer acted correctly in my opinion in counting those three
ballot papers as valid votes in favour of the respondent, and the court a quo was wrong in
taking a contrary view.
I turn next to the remaining alleged irregularity, with regard to which the learned judge a
quo held in favour of the respondent.
The complaint of the appellant was that certain forms were not available at the Norton
polling station between 9.15 am and 4 pm on polling day, with the result that not less
than three persons who could allegedly have voted and who would have done so had the
forms been available at the Norton polling station between those hours, did not in fact
vote. It was contended on behalf of the appellant that this temporary non-availability of
these forms was an irregularity; and that, having regard to the majority of one only that
the respondent gained, the result of the election would have been different had the three
persons in question been able to vote since all three have said under oath that they would
have voted for the appellant.
The forms in question are those for which provision was made in the Electoral
Regulations 1979, contained in RGN No. 242 of 1979. Known as Form V.1, it is the
prescribed claim form for registration as a voter under Chapter III of the Electoral Act
1979, s 22(1) of which provides:
“22. (1) Any person who wishes to be registered as a voter on the Common Roll or the
White Roll shall complete the appropriate prescribed claim form and lodge it with the
electoral officer.”
The need to be registered as a voter before polling day was considerably modified prior
to the 1985 Parliamentary elections. In particular the following provisions were enacted:
Section 14 of Act No. 13 of 1985 inserted the following subsection into the Electoral Act:
“24. (3) If a voter has applied for registration in terms of the National Registration Act,
1976 (No. 36 of 1976), and been issued with —
(a) a notice in writing in terms of subsection (1) of s 7 of that Act; or
(b) an identity document in terms of subsection (2) of s 7 of the Act;
Page 125 of 1986 (2) ZLR 120 (SC)
he need not be furnished or issued with a voters registration card in terms of this section.”
And in SI 155A of 1985 the following provision was enacted:
“Confirmation, correction and transfer of registration.
6. (1) Notwithstanding any provisions of the Electoral Act, where the presiding officer
for any polling station established for any constituency is satisfied that any person whose
name does not appear on the roll for that constituency —
(a) is registered as a voter or, by virtue of possessing a notice or identity document
issued to him in terms of section 7 of the National Registration Act, 1976 (No. 36 of
1976), is deemed to have applied for such registration and is therefore entitled to be
registered as a voter; and
(b) is entitled to be registered as a voter on the roll for that constituency, whether or
not he is registered on the roll for any other constituency; and
(c) has not already voted in that election;
he may, upon the application of that person, register him as a voter on the roll for that
constituency by entering, in a register to be kept by him for the purpose, the name and
address of that person and particulars of the notice or identity document that person has
produced and shall require that person to sign such entry.”
The appellant contends that the phrase that I have emphasised, viz “upon the application
of that person”, means “upon completion of ‘the appropriate prescribed claim form’ ”
which is referred to in s 22(1) of the Act, namely the Form V.1 that was set out in RGN
No. 242 of 1979. But I do not think that is so, because if the person concerned is already
registered as a voter (although for another constituency), as is envisaged by s 6(1)(a), he
will of necessity already have completed a Form V.1 and it would be pointless
supererogation to require of him that he do it again; if on the other hand, as is
alternatively envisaged by s 6(1)(a), the person concerned possesses a notice or an
identity document issued to him in terms of s 7 of the National Registration Act, then
physical completion of Form V.1 is pointless because
Page 126 of 1986 (2) ZLR 120 (SC)
the person concerned is deemed, by the mere fact of such possession, to have applied
already for registration as a voter, and indeed to be entitled to be registered as a voter.
Moreover, the application referred to in the above quoted emphasised portion of s 6(1)(a)
of SI 155A of 1985 is not an application that is to be lodged by the applicant with the
electoral officer — as is the position with the “appropriate prescribed form” required by s
22(1) of the Act — but merely with the presiding officer of the polling station in
question.
In the absence of any specific form in which the would-be voter under s 6(1) of the
Statutory Instrument is required to cast his application, the phrase “upon the application
of that person” cannot properly be construed to mean anything more than just “upon the
request of that person” after satisfying the presiding officer of either of the matters
referred to in s 6(1)(a), as well as of the further matters referred to in s 6(1)(b) and (c).
Having so satisfied the presiding officer, the person concerned will, as is indicated by the
heading to s 6(1), have either “confirmed”, or “corrected”, or “transferred” his
registration (deemed or actual) as a voter. Thereupon, the presiding officer has to enter
onto a roll kept for that purpose the person’s name and address, and the particulars of the
notice or the identity document issued to him under the National Registration Act, and
upon signing that entry the person concerned may vote at the polling station.
In my view therefore any would-be voter wishing to exercise his right to vote under the
provisions of s 6(1) of SI 155A of 1985 was not under any statutory obligation to
complete Form V.1 at the polling station and the non-availability of such forms was not a
breach of any statutory provision, to which our attention had been drawn, governing the
conduct of the election.
The evidence discloses however that it was nevertheless thought that such would-be
voters had to complete Form V.1 before they could vote, and that this view was shared or
at least unquestioningly accepted by the candidates and by their helpers. A message was
accordingly sent that more of these forms were needed at the Norton polling station and
everyone expected that they would arrive before long. In the meanwhile any people
affected by the non-availability of the forms were told by the candidates or by their
respective helpers that the forms should soon be available. It was open to such people
either to return later in the day to vote, or to proceed to another polling station for the
same constituency and vote there, if they did not wish to wait for the forms to arrive.
There were further polling stations at Selous, Warren Hills Golf Club and at the Harare
Motel. This last mentioned polling
Page 127 of 1986 (2) ZLR 120 (SC)
station was the nearest of the three to Norton and was about 24 kilometres away.
The record does not disclose how many people altogether may have been affected by the
non-availability of the forms at Norton, although the indications are that it was not more
than just a handful; nor do we know how many, if any, of the people affected in fact
waited or went to another polling station to vote, or came back to Norton later in the day
and did so. Only in relation to three would-be voters is there evidence that they neither
waited, nor went elsewhere to cast their vote, nor did they return later to the Norton
polling station to do so. They are the three who, as I have already mentioned, testified on
behalf of the appellant that had they cast their votes they would have voted for him.
It is by no means clear however that each of these three would-be voters would have been
able, armed only with the documents that they brought with them to the Norton polling
station, to satisfy the presiding officer that they were covered by the provisions of s 6(1)
of SI 155A of 1985. Mrs Howlin, for instance, testified that, although entitled to become
a citizen of Zimbabwe, she was not in fact a citizen of this country, had not registered as
a voter, and had arrived at the Norton polling station with her passport (obviously not a
Zimbabwean passport) and her driver’s licence. That evidence does not show that she
could have brought herself, without more, within subs (a) of s 6(1) of SI 155A of 1985,
and the completion by her of Form V.1 on her arrival at the polling station would have
been of no immediate help to her.
Mrs Wrench said that she is a Zimbabwean citizen and was in fact already registered as a
voter, presumably in another constituency, prior to polling day. In terms of SI 155A of
1985 she was therefore entitled to transfer of registration, for which purpose she needed
to satisfy the presiding officer that she was already a registered voter (and had therefore
already completed and lodged Form V.l). The appropriate way of doing that would have
been to produce to the presiding officer at Norton the voter’s registration card issued to
her on registration in terms of s 24(1) of the Electoral Act. Mrs Wrench did not suggest
anywhere in her evidence that she had her voter’s registration card with her or any other
proof of prior registration. She merely said that “we (referring in general apparently to
people whose names were not already on the Kadoma/Chegutu constituency roll) had
identity documents and passports and so on, but they were not accepted”. On the face of
it, it would seem therefore that even if the forms had not run out while she was at the
Page 128 of 1986 (2) ZLR 120 (SC)
Norton polling station assisting at the appellant’s table (she actually arrived there at 9 am
before the forms ran out, but did not attempt to vote until later) she would in any event
have first had to fetch, or send someone to fetch, her voter’s registration card or other
proof of prior registration in order to be able to satisfy the presiding officer of the first of
the three requirements specified in s 6(1) of SI 155A of 1985. So she would in any event
have had to wait until later in the day, and the fact that the forms had not yet arrived by
the time she went home was of no consequence in her case.
Mrs Wrench made mention of her adopted son arriving at Norton to vote while she was
there and being unable to do so. However, there is nothing in her evidence to show that
he would have been able there and then to satisfy the requirements of s 6(1) of SI 155A
of 1985. Apart from that, it also emerged from her evidence that he actually drove into
Harare after leaving the polling station at Norton, in which event he would necessarily
have driven past either the polling station at the Harare Motel or the polling station at
Warren Hills Golf Club, depending on which road he took into the city from Norton, and
he could readily therefore have voted at one or the other of those two polling stations had
he been so minded. He was not available to give evidence himself and it is not known
why he did not vote under these circumstances.
The third would-be voter who testified was Mrs McGhie who described herself as a
citizen of Zimbabwe and entitled to be registered as a voter, but not in fact registered. She
said that she arrived at the Norton polling station with her passport and her identify form.
Although she did not explicitly say so, it may well be that by her “identity form” she
meant to refer to an “identity document” issued to her in terms of the National
Registration Act, 1976. She is the only one therefore in respect of whom there was some
evidence to show that she arrived at Norton polling station sufficiently equipped to
satisfy, there and then, all the requirements of s 6(1) of SI 155A of 1985. On being asked
however to return later when the fresh supply of forms would have arrived, Mrs McGhie,
to use her own expression, was so irritated that she went off in a huff and could not be
bothered to return later in the day, or to go to another polling station.
The facts of this matter are very different from those in two cases on which the appellant
placed reliance: Mtoba & Ors v Sebe & Ors 1975 (4) SA 413 (E); and Borough of
Hackney Case (1874) 31 LTR 69. In the Mtoba case supra ballot papers ran out well
before the close of voting at twelve polling stations and it was held that “as the non-
availability of the ballot papers was
Page 129 of 1986 (2) ZLR 120 (SC)
on so extensive a scale leading to the extreme collapse of the poll, the election as a whole
was not conducted in accordance with the laid down principle that every voter must be
afforded a full and free opportunity to exercise his vote. The departure from this principle
was on a substantial scale”. So too in the Borough of Hackney case supra where two
polling stations were shut all day and others were shut for part of the day, so that almost 5
000 voters were effectively prevented from voting, it was held that “an election which is
conducted in such a way and which, by accident or by design, does not afford to a very
large mass of the electors an opportunity of voting, cannot be a true election.”
Both these cases are illustrations of the principle that “if the election was conducted so
badly that it was not substantially in accordance with the law as to elections, the election
is vitiated, irrespective of whether the result was affected, or not.” (Per Denning MR in
Morgan & Ors v Simpson & Anor [1974] 3 All ER 722 (CA) at 728d-e.) Nothing
remotely approaching such a state of affairs happened in this case. It is not suggested that
more than just a very few persons arrived between 9.15 am and 4 pm at the Norton
polling station in the expectation of obtaining registration under the provisions of the
Statutory Instrument. Except for the possible case of Mrs McGhie it is a matter for
speculation whether each one of those very few persons could then and there, or even at
all, have satisfied the presiding officer on the matters provided for in the Statutory
Instrument. Mrs McGhie may therefore have been the only person who arrived equipped
to qualify herself for registration under the latitude allowed by the Statutory Instrument,
only to be inconvenienced by being required to wait for the V.1 forms to arrive, or to
proceed to another polling station, or to return to the Norton polling station later in the
day. But even if a handful of other persons were unnecessarily confronted with that same
inconvenience and, like Mrs McGhie, chose to forego their right to such registration
rather than to wait, or go elsewhere, or return later, I do not for one moment consider that
this could be said to constitute so gross a departure from the principles of the Electoral
Act concerning the conduct of elections as to require this election to be set aside,
regardless of whether or not the result of it was affected thereby.
However, while not contending that what occurred constituted, per se, an irregularity so
serious that the election was not conducted in accordance with the principles laid down in
the Electoral Act, the appellant does contend that it was nevertheless an irregularity, and
that it cannot be said that it did not affect the result of the election, regard being had to
the minuscule majority of one only.
Page 130 of 1986 (2) ZLR 120 (SC)
Section 156 of the Electoral Act is designed to ensure that an election will not lightly be
set aside. In Gunn & Ors v Sharpe & Ors [1974] 2 All ER 1058 (QBD) Willis J, at 1063j-
1064a, said of the similarly worded s 37(1) of the Representation of the People Act,1949:
“We are very conscious of the importance of the principle which occurs throughout the
cases to which we have been referred that elections should not be lightly set aside, simply
because there have been some informalities and errors, and that both s 13 of the 1872 Act
and s 37 of the 1949 Act were framed with this principle in mind.”
Section 156 of the Electoral Act reads as follows:
“156. No election shall be set aside by the High Court by reason of any mistake or non-
compliance with the provisions of this Act if it appears to the High Court that the election
was conducted in accordance with the principles laid down in this Act and that such
mistake or non-compliance did not affect the result of the election.”
In Morgan v Simpson supra at 725e-g, Lord Denning, speaking of the corresponding s
37(1) of the Representation of the People Act, 1949, pointed out that it, like our s 156, is
couched in the negative and says when an election is not to be declared invalid. He held
however, having regard to the history of the law as to elections and to the case law, that
the section should be construed as if it was couched in positive form. Mutatis mutandis,
in relation to our s 156, that positive form would run thus:
“An election shall be declared invalid by reason of any mistake or non-compliance with
the provisions of this Act if it appears to the High Court that the election was not so
conducted as to be substantially in accordance with the principles laid down in this Act or
that the mistake or non-compliance did affect the result.”
So construing the section the court of appeal held that any breach of the election rules
which is shown to have affected the result of an election is of itself enough to cause the
elections to be set aside.
The facts of the matter before us reveal two features both of which, in my view, tell
against the appellant’s contention that the result of the election was affected by an
irregularity.
Page 131 of 1986 (2) ZLR 120 (SC)
In the first place the conclusion is not justified that any eligible voters were precluded
from voting by an unnecessary insistence upon form V.1 being completed, coupled with
the absence of those forms at the Norton polling station for some hours. It was not the
insistence upon the use of that form, and the temporary absence of a supply thereof, that
was the real reason for Mrs McGhie not casting a vote. It was her own decision not to
wait, nor to return later, nor to proceed to another polling station, that was the direct and
immediate reason why her vote was not cast. And if any other eligible voters reacted
similarly to the inconvenience with which they were confronted on arrival at Norton
polling station the same comment applies.
An election conducted substantially in accordance with the principles of the Electoral
Act, as this election was, ought not to be invalidated on the ground that a narrow majority
in favour of the successful candidate would not have been achieved if only a few eligible
voters had not been discouraged from voting by encountering some modest degree of
inconvenience that could have been avoided had better foresight been exercised by those
responsible for the arrangements at the polling station. The situation is hardly any
different from that of voters who arrive at a polling station only to find that the number of
people already there has resulted in queues and delays which could have been avoided
with better organisation, and who choose not to vote rather than accept the inconvenience
of waiting, or returning, or going to a less busy polling station. In short it seems to me
that the responsibility for Mrs McGhie’s lost vote, and for whatever other handful of
votes may have been lost for similar reasons, lies at least as much at the voter’s door as it
does at the door of those responsible for the Norton polling station.
In the second place, one cannot be certain that the result of the election, meaning thereby
the success of the respondent over the appellant, was in fact affected by the insistence
upon use of the forms and the temporary absence of a stock of them at the polling station.
Without intending to cause the slightest slur on Mrs McGhie’s honesty, I think courts
should be properly cautious in election cases about accepting the ipse dixit of people who
did not vote, as to the manner in which they would have voted. In cases such as Morgan v
Simpson supra and Gunn v Sharpe supra the courts knew as a fact that the result of the
election had been affected, because the votes in dispute had been cast and the ballot
papers revealed for which candidate each of the disputed votes would have gone had they
been counted.
Even if the court were to accept without reservation Mrs McGhie’s assertion regarding
the candidate for whom she would have voted, the difficulty
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remains that the respondent testified that a few of his professed supporters, as well as an
individual whose professed allegiance was unknown, were also confronted with the same
inconvenience with which Mrs McGhie was confronted. So she may not have been the
only qualified voter who allowed herself to be discouraged from voting, which renders it
a matter for speculation as to what the result of the election would have been, despite the
majority of one only, if the forms had been available at all times throughout the day.
Accordingly it is my view that no grounds have been shown for setting the election aside.
The conclusion that the appellant failed to show any ground for invalidating the election
makes it unnecessary to consider whether the court a quo was correct in holding that the
appellant had to be non-suited because written notice of the presentation of the petition,
together with a copy of the petition, was served on the respondent two days later than the
period of ten days which is allowed by s 141 of the Electoral Act.
In fairness to the appellant’s legal practitioner it is perhaps necessary to comment that the
fault was really not his, as was suggested by the learned judge, because the papers were
put into the hands of the Deputy Sheriff when four days still remained for service to be
effected timeously, and the Deputy Sheriff was asked to effect service as a matter of
urgency. The lateness of service was due rather to an understandable reluctance on the
part of the Deputy Sheriff to incur unnecessary costs by travelling a long distance to the
respondent’s farm to effect service when it was expected that service could economically
and timeously be effected in Harare where the respondent was expected to be. But for a
misunderstanding between the respondent and the Deputy Sheriff’s office over a
telephonic message, service would in fact have been effected in Harare before it was too
late.
The court a quo, while it dismissed the petition, ordered each party to bear his own costs.
It did so because, in terms of its judgment, although the respondent won on two issues,
the petitioner won on one. It has been my conclusion however that the court a quo
incorrectly held in favour of the petitioner on that one issue, namely, the issue as to
whether the returning officer acted correctly in treating as valid the three ballot papers
where the cross had been put in the same rectangle as that in which the candidate’s name
appeared. The respondent has noted a cross-appeal against the order of costs that was
made in the court below.
Page 133 of 1986 (2) ZLR 120 (SC)
In my view the respondent is entitled to an alteration of that order. Both in the court a quo
and in this court there is no reason to depart from the general rule that costs should follow
the result. There has been no vexatious conduct, nor any unfounded allegations or
unfounded objections, nor any needless expense that can be attributed to either party, so
as to justify an apportionment of costs in terms of s 151 of the Electoral Act.
In the result therefore the appeal is dismissed with costs and it is ordered that the costs of
the proceedings in the court below are also to be borne by the appellant (petitioner). It is
determined in terms of s 143(3)(a) of the Electoral Act that the respondent was duly
elected.
McNally JA: I agree.
Dumbutshena CJ: I agree.
Gill, Godlonton & Gerrans, appellant’s legal practitioners
Coghlan, Welsh & Guest, respondent’s legal practitioners