BULAWAYO – The Bulawayo High Court on Thursday reserved judgement in a consolidated application brought by Zanu PF activists seeking the disqualification of 12 Citizens Coalition for Change candidates for the National Assembly from standing in the August 23 elections.
The Zanu PF activists claim the 12, and others from smaller parties, filed their nomination papers out of time on June 21. If the application is granted, Zanu PF candidates including the finance minister Mthuli Ncube would become Members of Parliament without contest.
After two days of hearings, Justice Bongani Ndlovu indefinitely reserved judgement.
The case hinges on a document obtained by the 12 applicants styling themselves as “registered voters” who claim the Zimbabwe Electoral Commission (ZEC) accepted nomination papers from candidates representing several parties including CCC, ZAPU, Free Zim Congress, and ZANC after the 4PM deadline.
The document reflects time stamps next to the names of the various candidates, which the 12 applicants – who are all represented by Advocate Thembinkosi Magwaliba instructed by Cheda and Partners – claim is the time that the challenged candidates filed their nomination papers. The times are all after 4PM on June 21 into the early hours of June 22.
“The papers for the respondents were accepted outside the courtroom well after the 4PM deadline, which is an illegality and a violation of Section 46 of the Electoral Act. From the evidence of the respondents, the affected candidates were not in the courtroom,” said Adv Magwaliba.
“ZEC committed acts which are grossly flawed and not provided for in the law by directing a police officer to collect nomination papers of respondents who were outside the courtroom.”
ZEC, represented by Tawanda Kanengoni, says the Zanu PF activists got their information wrong and the times on the document they are relying on do not reflect the time when the candidates filed their papers but when data was imputed on a computer. ZEC insists all candidates it accepted filed their nomination papers by the 4PM cut-off time.
“The facts stated by the applicants are only known by those who were in court, the applicants do not claim they were not there. No nomination papers were submitted after the cut-off time, and the crux of the matter by applicants to allege that ZEC officials accepted papers after 4PM is not true,” Kanengoni said.
“In fact, the applicants relied on third parties on what transpired at the nomination court since they were not there. ZEC officials have experience and are trained to conduct electoral processes.”
Kanengoni said since the applicants are saying the entire process was flawed and chaotic, the declaratory order being sought to nullify the nominations of the CCC candidates and others should also be extended to other candidates whose nomination is not being challenged.
Professor Welshman Ncube, representing the 12 CCC candidates, said given that the applicants’ case was entirely based on the disputed document – known as Annexture B – the applicants must concede that they do not have a case against five of the CCC candidates whose names do not appear on the document: Obert Manduna for Nketa; Gift Siziba for Pelandaba-Tshabalala; Desmond Makaza running in Mzilikazi-Mpopoma; Sichelesile Mahlangu of Pumula and Desire Moyo the candidate for Nkulumane.
It emerged during the hearing that lawyers for the Zanu PF activists erroneously sent one page of Annexture B, instead of two pages, to ZEC and the CCC when serving them summons. The missing page has names of the five.
“Immediately the case against them (the five) collapses,” Prof Ncube argued.
He also said the applicants had no case against the other seven remaining candidates because they could not factually prove their claims of late filing because they were not in court.
“This is a mere fishing expedition, which I submit caught no fish, and the High Court should bring the expedition to an end,” said Prof Ncube.
Innocent Zikwete Mbano who is running for ZANC in Mzilikazi Mpopoma maintained that he submitted his papers before 4PM.
Sampoulus Maplanka, running for EFF in Pelandaba Tshabalala told the court through his lawyer Brian B. Robi that he presented his documents to the nomination court at 3PM. Robi said the applicants had produced no evidence that he filed after 4PM.
Robi said to prove that Maplanka was in the nomination court before 4PM, he has a warned and cautioned statement from police because his phone rang inside the court, and he was arrested.
Jeremiah Bamu, representing Frank Mhlanga the deputy leader of the United Zimbabwe Alliance led by Elizabeth Valerio, said the Zanu PF activists had no evidence that Mhlanga submitted his papers after 4PM and the court should dismiss the application.
Free Zim Congress candidate Adelaide Mhlanga, represented by Moses Mahlangu of Mathonsi Law Chambers, insisted that she arrived at the nomination court by 8.45AM and waited for nomination court to open at 10AM.
Mahlangu said the applicants bunched all the respondents together and provided no evidence to show that Mhlanga submitted papers after 4PM. Annexture B, he argued, was not an official document and the court could not rely on it as it was hearsay evidence.
The applicants were forced to drop their cases against five of the respondents during the hearing, including three CCC “double candidates”, after Magwaliba conceded that they had not been served the papers. The applicants delivered 15 summons to the CCC office in Bulawayo but were told that the party only recognised 12 of the respondents, and the trio of Soneni Moyo (Pelandaba Tshabalala), Albert Mhlanga (Pumula) and Dingilizwe Tshuma (Entumbane Njube) were never located.
The first day of the hearing on Wednesday saw lawyers for ZEC and all the respondents raise more than half-a-dozen preliminary points as they pleaded with the judge to toss out the consolidated applications.
Prof Ncube and Advocate Thabani Mpofu, for the CCC 12, argued that the applicants served them papers giving them 48 hours to respond to the application in breach of the rules which provide for 10 days. Applicants can then request a judge to truncate the timeframe. The application was therefore “fatally defective” and should be dismissed on that basis alone, they argued, citing a previous Supreme Court ruling.
ZEC argued that the applicants should have filed an appeal with the Electoral Court and not the High Court, but Advocate Magwaliba insisted it was within the High Court’s province to hear the matter.
Advocate Mpofu told Justice Ndlovu that Zanu PF now realised the error of its ways and a new set of 12 litigants had approached the Electoral Court with new applications. Advocate Magwaliba said the new applications at the Electoral Court had nothing to do with his clients in the present matter.
The respondents also argued that Annexture B was hearsay evidence, and the court should not rely upon it.
Justice Ndlovu decided not to rule on the preliminary points raised by the respondents, but instead said he would hear the merits of the case and then give judgement on both at once.
