Judgment No. CCZ 4/18 20
Case No. CCZ 3/18
treated in a manner different from the treatment meted out to him and that he is entitled
to the same or equal treatment as those persons.” (my emphasis)
The applicants have shown that there are other citizens, that is, State officials, who
are allowed to use postal voting, which they are denied by law. What they have not shown is
that they are in the same position as those State officials. In this respect I find to be persuasive
the following argument by the respondents, found in their heads of argument:
“… s 72 applies to persons who are ordinarily resident in Zimbabwe
and
are
registered voters who are actually on the voters’ roll. They are however outside the
country because their duties require that they be outside Zimbabwe on polling day
(and) are permitted in terms of s 72 to vote by post. This is a class of people
who have themselves not made a conscious decision to leave the country but do (sic)
so on national duty. They are a different class of persons from applicants who have
voluntarily left the country, are not ordinarily resident in Zimbabwe, are not
registered and have no constituency. The two are not in similar positions
and
cannot be compared.” (my emphasis)
As already determined, in terms of the Constitution, no person may vote without
being registered on the voter’s roll of a constituency. The applicants would be automatically
excluded from voting if they are not so registered, and if they are not resident (or deemed to be
so) in such constituency for the time periods specified in s 23 of the Act. A person entitled to
postal voting is deemed to be resident in the constituency for which he or she is enrolled as a
voter, see Madzingo and Others v Minister of Justice and Others 2005 (1) ZLR 171 (S). This
is in terms of s 23 (2) of the Electoral Act. It is that deeming which entitles them to utilise
postal voting. They are so deemed because, while they are on national assignments, their stay
outside their constituency is regarded as temporary. The situation is different as regards people
who have left their constituencies on their own accord. If they do not stay in their constituency
as is required by s 23 of the Electoral Act, they are taken to have left their constituency for a
duration which is not temporary. They are not deemed resident in that constituency and for
that reason, cannot vote in the constituency.
Select target paragraph3
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