BULAWAYO – Dingumuzi Phuti, the former Zanu PF MP for Bulilima, filed an urgent court application weekend seeking rescission of judgement after his August 23 election win was nullified by the High Court on Thursday.
Phuti did not oppose an application filed by his beaten rival Bekezela Maplanka, who argued that “voter intimidation, rigging and vote buying… produced an undue return” in the election leading to the announcement of Phuti as the winner.
A default judgement was granted in Maplanka’s favour by Justice David Mangota.
The court ordered the Zimbabwe Electoral Commission to prepare a new vote.
Phuti’s lawyer Nqobizitha Ndlovu of Cheda and Partners told ZimLive that they were seeking a rescission of the default judgement, and condonation for their late filing of Phuti’s opposing papers.
Ndlovu argues his client was not properly served with the petition as is provided for in the Electoral Act.
“Honourable Phuti was not served with the election petition,” Ndlovu said.
“The papers were not served by the sheriff. They were served by a person who purports to be a clerk from the other party’s lawyers.
“The certificate of service is dubious as it says that the petition was served at a primary school but in terms of the Electoral Act, an electoral petition has to be served personally or at the place of residence or business of the person who is being petitioned.
“In this case really, it is common cause that honourable Phuti does not reside at a primary school. He has his own home.”
Ndlovu said the application for rescission “has got good prospects of success”.
He added, “Even in terms of defending the actual electoral petition. It is just made of allegations which are not really supported by any form of tangible evidence.
“We believe he has a good and sufficient cause to seek for rescission of judgement.”
A date for hearing of the application is expected to be given early this week.
Phuti’s total votes were less than the combined opposition tally after CCC, ZAPU and the Mthwakazi Republic Party all fielded candidates.
According to the declared results, Phuti polled 7,185 votes beating Maplanka into second with 6,660 votes. ZAPU’s Artwell Ndlovu polled 933 votes while Aleck Moyo of MRP had 509.
Combined, the opposition candidates received 8,102 votes.
Maplanka said on Election Day on August 23, Zanu PF illegally placed its agents who had tables outside polling stations who maintained a register of people as they went into polling stations and targeted elderly voters and accompanying them into polling stations as assisted voters.
She said Zanu PF agents were also actively campaigning in villages on Election Day, contrary to the law.
“This campaigning was done through tokens given to voters in the form of prepared meals and drinks for voters coming in and out of polling stations,” she said in an application accompanying her affidavit.
“Furthermore, I discovered that some members of Zanu PF had infiltrated ZEC and were purporting to be polling officers on the day and were assisting voters to vote for Zanu PF. I found this to be an intimidatory tactic on voters.”
Maplanka’s lawyer Khulekani Sibanda said they did not know why Phuti did not oppose the application, but added: “He was properly served with the papers.”
Meanwhile, Justice Mangota has asked for more information from lawyers relating to the service of papers in another election petition for Insiza South constituency also won by Zanu PF.
Paul Sifanjani Moyo of CCC challenged the declaration of Spare Sithole as winner, also citing electoral malpractice. Sithole beat Moyo by 633 votes after polling 8,072 votes to Moyo’s 7,439.
“We will file the papers required by the judge and ask the registrar to re-enrol the matter, but the other side is still barred,” Sibanda said.
The petition for Gwanda South is opposed and will be argued on November 29.
Omphile Marupi of Zanu PF won that close election by 842 votes. His victory is being challenged by Patrick Dube of CCC who polled 5,099 votes.
Timothy Nare of ZAPU and Happy Gumbo of UZA polled 270 and 269 votes respectively.
