ZIMBABWE AFRICAN NATIONAL UNION (PATRIOTIC FRONT) v UNITED AFRICAN NATIONAL COUNCIL AND OTHERS 1980 ZLR 69 (G)

Author: Trodat Zimbabwe

ZIMBABWE AFRICAN NATIONAL UNION (PATRIOTIC FRONT) v UNITED AFRICAN NATIONAL COUNCIL AND OTHERS 1980 ZLR 69 (G)

1980 ZLR p69

Citation                 1980 ZLR 69 (G)

Case No                Details not supplied

Court                    General Division, Salisbury

Flynote

Electoral law — treating — what amounts to — importance of purpose for which food, D drink and entertainment is provided for voters — whether food, drink, entertainment and lotteries may be provided at political rallies. E

Practice — interdict — locus standi of political party to seek to interdict unlawful campaign practices of rival party — degree of proof required for unlawful practices to be interdicted.

Headnote

The applicant, a political party contesting the general elections held in February, 1980, _F sought to interdict a rival party from providing food, drink and entertainment at a four­day political rally it was holding, and from conducting a draw at the rally with six motor­cars as prizes.

Held that providing voters with food, drink and entertainment becomes the offence of treating in terms of section 111 of the Electoral Act, 1979, only if it is done in order to influence the voters how to vote, but not if it is done merely to enable or induce them to attend a political rally. _G

Held, further, that the proposed draw of motor­cars was not necessary to enable persons to attend the rally, and amounted to the offence of bribery in terms of section 113 of the Electoral Act.

Held, further, that it was not necessary for an interdict to be granted that the existence of unlawful practices should be proved beyond a reasonable doubt. _H

Case information

G G Chidyausiku, for the applicant.

R R Horn, SC, for the respondents.

1980 ZLR p70

Goldin J

Judgment

Goldin J: Under the new Constitution, an election for 80 members to be elected by African voters is due to commence on the 27th of this month and to last until the 29th, a period of three days. The applicant and the first respondent are both parties participating in _A this election. The applicant now seeks to prevent the manner in which a four­day rally, which has already commenced, is taking place and is to continue taking place.

This rally has been advertised to last for four days. The advertisement _B placed before us (Annexure “A” to the Petition) ­ and there is no reason at all to doubt that this advertisement was placed by the party concerned ­ states, inter alia:

“The biggest rally in the history of Zimbabwe starts on Thursday, C February 21st. There will be so much to hear, so much to see and so much to do that the UANC Huruyadzo Rally will last for four days, until Sunday, February 24.”

Then the highlights are listed:

“All­denominational church services? D

District choirs; Soul

Savers pop band;

Aerobatic display

The Prime Minister and leader of the U A.N.C., Bishop Abel Muzorewa, will address the rally at 11.30 a.m. (on the Sunday).”

Also _E placed before us ­ and it can certainly be accepted as at least prima facie proof ­ is a press cutting to the effect that transport has been arranged on a large scale to enable persons to attend this rally from far away. Something in the neighborhood of about 500 buses and about eight or nine trains have been hired in order to serve this purpose. At _F this rally, food is being supplied to all those present, and some persons who live in Salisbury may even become entitled to take their rations and cook them at home ­ that is, where they live in Salisbury or nearby. In addition to that, shorter and drink is also provided, and a variety of forms of entertainment, including aerobatics, wrestling matches and _G so forth.

In addition to all that, about a quarter of a million leaflets have been distributed, each of which carries a number, and there will be a draw, so it is stated, on Sunday, the 24th February, at the Zimbabwe grounds to _H determine the winners, and six motor­cars are available as prizes? therefore six lucky winners, that is, holders of the right six numbers, will each obtain a motor­car. This relates to Annexure “D 1” before us. It is relevant to mention that this leaflet not only announces the four­day

1980 ZLR p71

Goldin J

rally and talks of the lucky draw for the six motor­cars to be won, but also has underneath in prominent print the words: _A

“Vote the winners. Vote U A.N.C. Vote Bishop Abel Muzorewa.” and then there appears the symbol of the party and an indication of how to vote for that particular party. _B

The applicant in the first place sought to ban, or interdict, the holding of this rally. I think this part of the petition was rightly withdrawn, because obviously any political party is entitled to hold rallies and to hold meetings and have speeches and so forth. So the rally itself cannot be banned.

It _C is also noteworthy that under our legislation it is permissible for a political party to convey people free of charge, in any numbers and no matter from how far away, to the place where a political rally is to take place. This is of importance, in my view, because it departs from the normal type of electioneering that one might have considered in the past. _D Some voters live far away, and in order to gather them up the Legislature and those responsible for legislation have permitted the bringing of any number of people, free of charge, to a particular place where a meeting is to be held. Moreover, provisions in the Electoral Act that music and bands and things like that cannot be employed do not apply _E to this election. Therefore the legislators have had in mind that parties can bring people to Salisbury (as is the case here) from far away, free of charge, and they can provide them with music and similar entertainment. Nevertheless, one has to have regard to section 111 of the Act, _F which reads as follows:

“(1) Any person who corruptly by himself or by any other person, whether before, during or after an election directly or indirectly gives or provides or pays wholly or in part the expense of giving or providing any food, drink, entertainment, lodgings or provisions to or for any person ­

(a)      for the purpose of corruptly influencing that person or any other G person to give or refrain from giving his vote at an election? or

(b)      on account of such person or any other person having voted or refrained from voting or being aboutto vote or refrain from voting at an election?

shall be guilty of the offence of treating.”

Subsection _H (2) also renders it an offence not only to provide food and entertainment, but also to receive it:

“(2) Any voter who corruptly accepts or takes any food, drink, entertainment, lodging or provisions supplied by a person guilty of an offence in terms of subsection (1) shall be guilty also of the offence of treating.”

1980 ZLR p72

Goldin J

The persons attending this rally will be receiving food and drink and entertainment of a type I have referred to previously, and in my view this constitutes a prima facie contravention of section 111. Mr Horn, for the respondent, argued, however, that the important aspect is to _A determine the purpose for which this gathering is taking place and the purpose for which food and drink and entertainment are provided. He made the point that the object of giving food and entertainment is not to influence persons how to vote, but to induce persons to attend the meeting or rally, which will then enable speakers so to influence them. In other _B words, the provision of food and

entertainment is a means of bringing people to attend the meeting. But securing their attendance is not necessarily corruptly influencing them how to vote. This is an important aspect, because it affects the question of the type of relief that we can _C grant to the applicant. If the applicant had a clear right, that is, clear proof of a right being infringed or breached, then, in my view, there would probably be only one possible remedy in these circumstances, and that is to have granted this interdict. But I am not satisfied that a clear right has been established. In my view, paragraph (a) of subsection (1) of section 111 has to be read by giving full emphasis and _D meaning to the words

“for the purpose of corruptly influencing”. It is not an offence to provide food or drink or entertainment. It only becomes an offence if it is done for the purpose of corruptly influencing a voter how to vote, in other words, either to vote or to refrain from voting in the _E particular manner so influenced.

[The learned Judge then dealt with factual considerations and, having declined to interdict the provision of food and drink at the rally, continued:] _F

I now turn especially to Exhibit D 1., to which I have already referred.

That is in relation to the matter of the draw. In my view, the draw falls into quite a different category altogether. You may have to bring people to _G Salisbury, and you are allowed to bring people to Salisbury in order to attend the rally. That is perfectly permissible. You may provide them with food and drink in order to enable them to participate in the meeting and listen to speakers in the manner I have described. They would then be enabled to attend, because they have got to be a considerable time and _H distance away from home. What is being done may in fact ­ I do not say it is ­ be for the purpose of gathering them up, and from the mere fact that they are present it does not necessarily follow that you are getting them there for the purpose of influencing their vote in a corrupt manner.

1980 ZLR p73

Goldin J

This, however, does not apply to the draw, nor do the other facts which I have mentioned, namely the possibility of a reaction from the crowds. _A If you deprive them of food, drink or shelter, there can be very little doubt ­ or certainly one has to take into account ­ that they may react in a manner leading to breaches of the law on a very widespread scale. But in relation to the draw, this is probably prompted from different motives altogether. _B

Firstly, it is not necessary to give motor­cars in order to make it possible for persons to be present at a meeting. This type of draw is not necessary in order to enable a person who otherwise would not be able to attend the meeting, as may be the case in relation to transport, food and so on, to attend the meeting. _C

The other aspect is that I do not think that if this draw were interdicted it would result in the same reaction or anything remotely resembling the reaction that would follow if we had to interdict the provision of food, _D drink, or even entertainment. I have listened to the police evidence, and I found it to be honest and straightforward, but it does not establish that to interdict this draw would result in violence. In fact, as I understood the evidence, there would be very little expected at the gathering at all. The possible danger is that after the meeting had taken place, and else _E where, members of the respondent party would try to seek revenge by assaulting members of the applicant party for being “spoil­sports” and depriving them of their right to have an opportunity of winning a motorcar. _F

In all these circumstances, I feel that this draw is a violation of section 113. It was submitted by Mr Horn that the Court requires proof beyond reasonable doubt that the law has been contravened. I do not think that consideration arises in this case, because I am not approaching it on the basis of a clear right at all. But even if I approached it on that basis, in _G a case of this nature it would not require that type of proof. The urgency and the facts before us justify the exercise of a discretion at this stage.

In my view, the interdict requested in respect of the draw for these vehicles should be granted. Accordingly, I would grant an interdict _H restraining and prohibiting the holding of the draw concerning the winning of six or any number of vehicles at the rally by the respondent party. [The learned Judge then dealt with the question of costs.]

1980 ZLR p74

Beck J

Beck J: I agree with the reasons given in the judgment which my brother has delivered and with the order that he has read. I would only wish to add that, in relation to the draw for the motorcars, I am satisfied _A that the evidence indicates a prima facie contravention of section 113 and no more than that. That being so, the Court, of course, has a discretion, and those factors which inhibited us from exercising our discretion in favour of granting an interdict in relation to the other matters complained of do not apply in relation to this matter. It is for that reason that _B I agree that the interdict should he granted with regard to the draw for the motor­cars.

Goldin J: There will be an order in the terms I have indicated.