The Constitution does not refer to weekdays but days. This is to be taken to mean seven calendar days and includes Saturdays and Sundays. In terms of section (23) subsection (2) of the rules, the application shall be lodged with the registrar and shall be served on the respondent within seven days of the declaration of the results of that election.
The 1st respondent was declared the duly elected President on the 3rd of August 2018. In terms of section (93) subsection (1) of the constitution as read with rule 23 sub rule 2 of the Constitutional Court rules, the applicant had until the 10th of August 2018 to file and serve the application on the respondent.
It appears to have been cognisant of the reckoning of days and time limitations prescribed by the Constitution and waited until the last day to file his application shortly before closing the Constitutional Court registry on the 10th of August 2018. He was entitled by law to do so.
Having done so, the applicant was then faced with a further obligations to serve the process on all respondents on the day. The applicant could only do so through the Sheriff of Zimbabwe in terms of Rule 9 sub rule 7 of the Constitutional Court rules.
The applicant indicates that he did so. The sheriff had until 10pm that same evening to effect service in compliance with the rules. The affidavit submitted by the respondents show the applicant had in fact attempted service in their own capacity and without the assistance of the sheriff on the 10th of August 2018.
It is common cause that the application was eventually served on the respondents on the 11th of August 2018, outside the time frames stipulated in the Constitution and contrary to the provisions and contrary to the Constitutional Court rules.
The same limitation applied to the respondents who were served with the application on Saturday the 11th of August 2018. The notices of opposition would have been due within three days from that date being the 14th of August 2018.In terms of section 336 subsection 2 of the Constitution of Zimbabwe: “Subject to this constitution whenever the time of doing anything in terms of this constitution ends or falls on a Saturday, Sunday or a public holiday the time extends to, and the thing may be done on the next day that is not a Saturday, Sunday or public holiday.”
The notices of opposition both had to be filed the on the next business day thereafter being the 15th of August 2018. They were dually served and properly logged with the central registrar in terms of the law.
The applicant however clearly breached the rules of the court and filed a defective application. However, due to the importance of the matter and the public interest, the court has the power and to condone non-compliance rules in the interest of justice. An application for condonation of this non-compliance albeit opposed by the respondents, was made for the applicant.
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