BETA v Mudehwe & anor 2001 (1) ZLR 87 (S)

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Mr L T Biti for the first respondent

An unsuccessful candidate in an election cannot rely on allegations that voters have been wrongly omitted from the voters roll as a ground for having the election set aside. If a voter considers he has been unjustly left of the voters roll, it is he who has a right of action not the candidate. The candidate cannot wait until the roll is closed, and then until he has lost the election before going to court to complain about the election.

The appellant had unsuccessfully contested election for the post of may of mutated he sought to have the election set aside on the ground that persons who were ledgers in the municipal area had been wrongly refused registration as voters. on appeal from a decisions of the high court rejecting his application:

held that the applicants papers failed to show that there had been a blanket refusal to enroll ledgers as voters, or even that particular persons had been wrongly denied registration. held further that the application was misconceived: the proper complainants were the individual voters and the proper time for them to complain was before the voters roll was closed.

Akino v Mudede NO & Ors 2000 (1) ZLR 462 (H)

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Mr L T Biti for the applicant

The applicant was a candidate in a municipal election. When she went to the polling station to record her vote, she presented her voter registration card and her national identification papers. Although she was known to the official in at the polling station, she was refused the right to vote on the grounds that her national identity papers were so faded as to be illegible. When the voters were subsequently counted, both the applicant and her opponent received and equal number of votes. The returning officer decided to sing a coin to determine the result of the poll. Both candidates had drawn lots to determine who should have “heads” and who should have “tails” after the coin was spun the applicants opponent was declared the winner. The applicant sought an order setting aside the election. It was argued on her behalf that nothing in the electoral act {chapter 2:01} requires a voter to produce an identity card before voting.

The polling officer decision to deny the applicant her right to vote was irrational and unlawful and affected the result of the election. The method of deterring the result after the votes had been counted did not comply with he requirements of the Act and was a nullity. The first respond the registrar- general, contended that the polling officer had a discretion as to whether to allow the applicant to vote. The applicant should have obtained a legible identity document held, that there is no requirement to produce an identity card. The only requirement of the Act is that the presiding office may put to an applicant for a ballot paper such questions as he considers necessary to ascertain whether or no the applicant is registered on the voters roll.

The presiding officer must exercise his discretion but is expected to act reasonably and intelligently. He should act on the principle that persons eligible and  entitled to vote should be able to do so with as little formality as possible. An applicant for a ballot paper should not be denied a vote merely because he or she is not , for example, unable to produce a passport , national registration or drivers license, if he or she can produce a voters registration card. Held, further, that where there is an equality of votes and the returning officer is required to drawlotes , he must not decide the outcome on the toss of a coin. Drawing lots means drawing one thing from a number whose marks are concealed from the drawer. the returning officer should not use another procedure.