KUVAREGA v REGISTRAR-GENERAL & ANOR 1998 (1) ZLR 188 (H)

1998 (1) ZLR p188

Citation 1998 (1) ZLR 188 (H)

   
Case No Judgment No. HH-48-98

   
Court High Court, Harare

   
Judge Chatikobo J

   
Heard 23 February 1998

   
Judgment 23 February 1998

   
M Hogwe, for the appllicant
Counsel Mrs J Zindi, for the first respondent
No appearance for the second respondent
 
 
Case Type Civil application

   
Annotations Link to case annotations

   
 

Flynote C

Elections —  Electoral Act [Chapter 2:01] -  s 118(1)(c)  —  wearing of apparel emblazoned with
party emblems or slogans  —  whether person wearing such apparel contravenes law prohibiting
uttering of slogans near polling stations

Practice and procedure —  application  —  chamber application  —  requirement to serve chamber

application on other parties  —  effect of failure to do so  —  provisional order  —  provisional order
having same D practical effect as final order  —  undesirability of allowing such relief  —  urgent
application  —  certificate of urgency  —  delay in making application certified as being urgent  — 
explanation for delay required

Headnote

Section 118(1)(c) of the Electoral E Act [Chapter 2:01] prohibits the “uttering” of slogans within 100
metres of a polling station. In this context, the word “utter” denotes the making of a sound, rather
than displaying a written or pictorial communication. It means to shout one’s catchword or war cry
or motto. Wearing of attire displaying a party’s slogans or symbols or pictures of a party’s candidate
would not offend against the prohibition against uttering slogans.

Where a chamber application is made, the High F Court Rules require that the application be served
on the other party or parties, subject to certain exceptions and to the certificate of the applicant’s
legal practitioner that there are grounds for dispensing with service. Failure to comply with this
requirement will bring the risk of being non-suited for non-compliance with the Rules.

Interim relief is meant to be precisely that, and can be obtained by the mere showing of a prima
facie case. Consequently, if the effect of interim relief is to obtain the substantive relief sought, the
litigant would obtain final relief without proving his case. This is clearly undesirable, and
practitioners should be careful in framing the interim and final relief sought, to avoid such
incongruities.

Applications are frequently made for urgent G relief. What constitutes urgency is not only the
imminent arrival of the day of reckoning; a matter is also urgent if, at the time the need to act arises,
the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action
until the deadline draws near is not the type of urgency contemplated by the rules. If there has been
any delay, the certificate of urgency or supporting affidavit must contain an explanation of the non-
timeous action. H

1998 (1) ZLR p189

Chatikobo J

Cases cited

R v Sachs 1953 (1) SA 392 (A) A

Legislation considered

Electoral Act [Chapter 2:01], s 118(1)(c)

High Court Rules 1971 (RGN 1047/71), r 242

Case information

M Hogwe, for the appllicant B

Mrs J Zindi, for the first respondent

No appearance for the second respondent

Judgment

CHATIKOBO J: This matter came before me through the chamber book. The papers were first placed
before me on Friday 20 February 1998. At that stage the second respondent was not a party to the
proceedings. I indicated that the application must be C served in compliance with r 242(1) of the
High Court Rules. I also directed that the second respondent should be cited and the papers should
be served on him. I must point out that this is one of numerous cases where legal practitioners pay
scant or no regard to r 242, which requires that all chamber applications must be served on the
other party or D parties, unless one of the things specified in that rule is shown to exist and the
practitioner concerned certifies that there are grounds upon which he believes that service should
be dispensed with. I must sound a warning that those practitioners who continue to offend against
this requirement run the risk of their applications being dismissed, without being heard, for non-
compliance with the rules. E

The papers were resubmitted on the same day after service had been effected on the first
respondent but although the second respondent had by then been included as a party, no service
had been effected upon him. Counsel for the applicant advised me that an attempt was made to
serve the papers at the provincial offices of the party which sponsors his candidacy in the by-election
but an official at those offices declined to accept service. Notwithstanding the non- F service of the
application on the second respondent, I was prepared to proceed with the matter, principally
because I was of the view that the second respondent would not be prejudiced. After I had
dismissed the application and intimated that my reasons would follow, I learnt through the media
that there was a third candidate contesting the election. He too should have been cited.
Practitioners who G bring such applications must always ensure that all interested parties are made
aware of the proceedings. It takes a mere modicum of diligence to ascertain the number and
identities of all candidates contesting a by-election. Regrettably, all I can do now is give reasons for
the decision I made.

The crisp question which I was asked to determine is whether s 118(1)(c) H

1998 (1) ZLR p190

Chatikobo J

of the Electoral Act [Chapter 2:01] (the Act) A outlaws the wearing or use of apparel adorned or
emblazoned with campaign slogans, pictures or symbols of any candidate to an election within a
radius of one hundred metres of any polling booth on a polling day. The question arises in this way.

The applicant is a councillor for ward 5 in Chitungwiza. She is a candidate in the by-election for the
vacant parliamentary seat in the St Mary’s constituency. The B election, which is set to take place on
23 and 24 February 1998, is being contested by two other candidates, one of whom is sponsored by
the ruling party, ZANU (PF). In the recent past an election for the position of mayor was held in
Chitungwiza. The applicant claims to have observed that during the course of that election ZANU
(PF) supporters were wearing T-shirts with election slogans and/or their candidate’s C picture
adorned thereon. These supporters patrolled the perimeters of the polling stations and queued and
voted wearing these offending T-shirts. This, so the applicant contends, eroded the secrecy of the
ballot.

During the run-up to the by-election now under way, the applicant’s house has been attacked and so
have the houses of some of her supporters. Although she stops short of naming D the alleged
assailants, the inescapable implication is that this was done by ZANU (PF) supporters. She therefore
fears that the presence of ZANU (PF) supporters in labelled attire at the polling stations will scare
away her supporters as they will feel intimidated. She does not say that she harbours any reasonable
apprehension that ZANU (PF) supporters or any other persons will disrupt the proceedings at the
polling stations. She simply fears that the mere presence of people wearing labelled E attire will
intimidate her supporters. Had there been a reasonable apprehension that some people might try to
disrupt the elections and had there been evidence to substantiate such apprehension, there may
have been room for arguing that she is entitled to protection. Even then her prospects of success
would have been pretty dim, bearing in mind that the duty to ensure that the orderliness of an
election lies on the State F under the watchful eye of the Electoral Supervisory Commission. Her
application is based squarely on the premise that the conduct she complains of is outlawed by s
118(1)(c) of the Act.

Section 118(1)(c) of the Act provides as follows:

“Without derogation G from any other provision of this Act or any other enactment, no person shall,
within one hundred metres of any polling station on any polling day  -

   (a)     ...

   (b)     ...

   (c)     utter slogans; or

   (d)     ...

   (e)     ...

   (f)      ...” H

1998 (1) ZLR p191

Chatikobo J

By s 118(2) failure to observe the terms of s 118(1) is made an illegal practice. A

It is contended on behalf of the applicant that the phrase “utter slogans” includes the wearing of T-
shirts emblazoned with slogans, symbols or pictures of one’s candidate.

According to the Shorter Oxford English Dictionary, to “utter” means to “give vent to B (joy, etc) in
sound; to burst out to (a cry, etc); to give out in an audible voice”. The Concise Oxford Dictionary
adds the meaning “express in spoken or written words”. This extension of the meaning of the word
“utter” to include written communication appears to have been necessitated by the need to convey
one of the meanings often attributed to the word utter, namely, to “utter” a forged document by
putting it into circulation. I am convinced C that in the context of s 118(1)(c) the word “utter” is used
to denote the making of sound. If the intention of the legislature was to prohibit written or pictorial
communication it is unlikely that it would have been conjoined with the word slogan, which
ordinarily connotes a war cry.

D Clearly, to utter a slogan is to shout one’s catchword or war cry. A diagrammatic or pictorial
representation of one’s motto cannot be equated to chanting one’s motto. I am fortified in the view
that the legislature did not intend, by enacting s 118(1)(c), to outlaw the wearing of labelled T-shirts
by the fact that, in s 117(2) of the Act, the wearing, possession, display or publication of a thing
which consists of or incorporates a prohibited symbol is made an illegal practice if it is worn,
possessed or published to further the objects of a candidate or party for an E election. In s 117(3) it
is provided that the prohibition contained in s 117(2) shall extend to the use, possession, display,
publishing, or wearing of banners, flags, badges, uniforms, T-shirts, dresses or other items of
clothing. This can only mean that before a person is prohibited from wearing any piece or item of 
clothing for the purposes of furthering the objects of a candidate or a party in an election, the item
concerned must first be F proscribed in terms of s 117(1) of the Act. Anything which has not been so
proscribed can be worn anywhere.

Generally speaking, the meaning of the words of a statute is the same as their ordinary meaning,
but, this notwithstanding, a court faced with the interpretation of the words must examine the
words in their linguistic context and their wider legal and jurisprudential context. See, generally,
Devenish Interpretation of Statutes Chapter 13. G

The existence of comprehensive provisions in s 117 dealing with what items may be prohibited for
purposes of an election is, in my view, a compelling pointer to the conclusion that those items which
have not been banned cannot, by an extension of the meaning of the words employed H

1998 (1) ZLR p192

Chatikobo J

A in s 118(1)(c), be treated in the same way as those items which have been banned in terms of s
117(1) of the Act.

According to the provisions of s 118(2) of the Act, it is an illegal practice to utter a slogan within the
defined perimeter and such conduct is punishable by a fine of $2 000 (s 123). In addition, if such
person is convicted by the High Court, he can be declared to be incapable of registering as a B voter
or of voting at an election for up to five years or of filling any public office whose tenure is regulated
exclusively by the Constitution. Where the offender already holds such office the High Court may
declare that the office shall be vacated by him as from the date of conviction. It can thus be seen
that not only can the breach of s 118 be visited with criminal sanctions, but the penalties to which an
offender is liable upon conviction are severely disabling. If C there was any doubt as to what
meaning to ascribe to the phrase “utter slogans”, hallowed tradition would have demanded that a
restrictive interpretation be placed upon it. Cf R v Sachs 1953 (1) SA 392 (A).

Sight should not be lost of the fact that these provisions are intended to ensure that peace and
orderliness prevail during an election. They are not meant to discourage people from openly
supporting their party or candidate. Any voter would be aware that at the polling station there
would D be people who support rival candidates, whether or not they go to vote clad in T-shirts
emblazoned with portraits of candidates or emblems of parties of their choice. It is more than
probable that not every ZANU (PF) supporter will go to vote draped in that party’s regalia. The
secrecy of the ballot lies not in the facelessness of the voter but in the E opportunity to make a
secret choice. The ascendancy of a nation to the sublime ideals of democracy demands of each
contestant in a national election a valiant demonstration of a high degree of tolerance and fair play.
The role of the courts remains that of a disinterested umpire to provide redress and protection to
those who are denied a level field of play.

Before concluding this judgment I must deal with a F procedural matter which, regrettably, seems to
present difficulty to many practitioners.

The applicant applied for the issue of a provisional order calling upon the respondents to show cause
on the return day why the wearing of T-shirts within the prohibited distance of a polling booth
should not be declared unlawful. In addition, the applicant prayed the court to issue G an interim
interdict prohibiting the use of such T-shirts. As already pointed out, the application was filed on the
Friday immediately preceding the Monday on which the election commenced. If the interim relief
had been granted, the applicant would have obtained the substantive relief claimed before the
return date and after the election she would not have had any reason to move for the confirmation
of the order. There was nothing interim about the H

1998 (1) ZLR p193

Chatikobo J

provisional relief sought. It would have provided the applicant with the relief she sought on the day
of the A election. The practice of seeking interim relief, which is exactly the same as the substantive
relief sued for and and which has the same effect, defeats the whole object of interim protection. In
effect, a litigant who seeks relief in this manner obtains final relief without proving his case. That is
so because interim relief is normally granted on the mere showing of a prima facie case. If the
interim B relief sought is identical to the main relief and has the same substantive effect, it means
that the applicant is granted the main relief on proof merely of a prima facie case. This, to my mind,
is undesirable especially where, as here, the applicant will have no interest in the outcome of the
case on the return day. The point I am making will become clearer if I put it another way. If, by way
of C interim relief, the applicant had asked for a postponement of the election pending the discharge
or confirmation of the provisional order she would not in that event gain an advantage over the
respondents, because the point she wanted decided would have been resolved before the election
was held. But, if the interim relief were granted in the form in which it is presently couched, she
would get effective protection before she proves her case and the election would be conducted on
the basis that it is unlawful to wear T-shirts emblazoned with party symbols and slogans. D
Thereafter it would be fruitless for the respondents to establish their entitlements to wear such T-
shirts. Care must be taken in framing the interim relief sought as well as the final relief so as to
obviate such incongruities. E

There is an allied problem of practitioners who are in the habit of certifying that a case is urgent
when it is not one of urgency. In the present case, the applicant was advised by the first respondent
on 13 February 1998 that people would not be barred from putting on the T-shirts complained of. It
was not until 20 February 1998 that this application was launched. The certificate of urgency does
not explain why no action was taken until the very last working day before the election began. No
explanation was given about F the delay. What constitutes urgency is not only the imminent arrival
of the day of reckoning; a matter is urgent, if at the time the need to act arises, the matter cannot
wait. Urgency which stems from a deliberate or careless abstention from action until the dead-line
draws near is not the type of urgency contemplated by the rules. It necessarily follows that G the
certificate of urgency or the supporting affidavit must always contain an explanation of the non-
timeous action if there has been any delay. In casu, if I had formed the view that it was desirable to
postpone the election I may nevertheless, have been dissuaded from granting such an order
because, by the time the parties appeared before me to argue the matter, the election was already
under way. Those who are diligent will take heed. Forewarned is forearmed. H

1998 (1) ZLR p194

Chatikobo J

I did not however non-suit the applicant because of A the procedural flaws dealt with in this
judgment. I was satisfied, for the reasons I have given, that there was no merit in the application and
I dismissed it with costs.

Mangwana, Hogwe & Partners, B applicant’s legal practitioners

Civil Division of the Attorney General’s Office, first respondent’s legal practitioners