THE main opposition Citizens’ Coalition for Change (CCC) will not have representation in the Senate from Bulawayo after the party’s 12 National Assembly candidates in the city were disqualified from taking part in the August 23 general elections.
Bulawayo High Court Justice Justice Bongani Ndlovu made the ruling disqualifying the 12 candidates on Thursday following an application by Zanu PF activists styling themselves as “registered voters”.
However, in a turn of events, the 12 have filed an appeal at the Supreme Court complaining that Ndlovu erred in making his ruling as he relied on hearsay evidence.
They also complained that the High Court failed to realise that the electoral body had no issues with their nomination, hence they were allowed to file.
According to the draft order, they want the judgment of the court a quo to be set aside and in its place substituted the following: “The application is struck off the rollwith costs at the higher scale of legal practitioner and own client being paid by the applicants jointly and severally the one paying the other to be absolved.
Alternatively, they are seeking a relief that the court declines jurisdiction over the matter with costs at the higher scale of legal practitioner and own client being paid by the applicants jointly and severally the one paying the other to be absolved.
“Alternatively, the application is dismissed with costs at the higher scale of legal practitioner and own client being paid by the applicants jointly and severally the one paying the other to be absolved,” reads part of their draft order.
At the lower court, the 12 separately filed appeals from each of Bulawayo’s 12 constituencies, and Justice Ndlovu had consolidated the appeals into one.
The Zanu PF activists argued that CCC candidates filed their nomination papers after the 4pm deadline on 21 June.
The Zimbabwe Electoral Commission had opposed the applications, insisting that the 12 had filed by 4pm.
The CCC candidates had opposed the application, arguing that the High Court had no jurisdiction to hear and determine the matter, a position they maintain in their appeal.
They said the application was a review disguised as a declaratur, adding that Zanu PF activists had no locus standi or legal interest in the matter.
“The application is pivoted on inadmissible hearsay evidence, there was fatal non-joinder of the sponsoring political party in respect of some of the respondents, invalid application, abuse of court processes,” they further argued.
The CCC members also argued that the court is being dragged into a political dogfight that is better confined to the combat at the arena of the ballot box. But the judge dismissed the allegations, insisting that the courts will play referee to avoid worse scenarios.
“It goes without saying that the judiciary will frown at any attempt to be used by anyone. The judiciary should equally be careful that it does not close its access doors to the Zimbabweans in the exercise of their political rights and freedoms that they derive from section 67 of the constitution,” said Ndlovu.
“A balance must be struck. Once elections are nigh, pushing and shoving for the political space becomes commonplace. Courts can therefore not afford to shy away from playing referee and lightly refer the belligerents to the ballot box, lest we degenerate to anarchy.”
The judge said it is obvious that CCC is an interested entity in this matter because the outcome of the application would visit CCC with either a positive or negative risk.
“However, in my view, citing CCC would have meant that no one is left behind, surely its non-joinder is not fatal,” he ruled.
The respondents also argued that applicants based their applications on inadmissible hearsay evidence of purported social media reports and that the affidavits are, as a result, a nullity and should accordingly be expunged and the application struck off the roll or, worse still, dismissed.
The registered voters argued back and told the court that it is not true that the application is based on hearsay evidence.
They said they relied on the official documents in the possession of Zec and its officials and that they also relied on the results of their inspection of the nomination papers as set out in the Electoral Act.
The judge said the issue of hearsay is central to the resolution of the case if one has a close consideration of the facts of the matter.
“I find it to be going to the heart of the controversy between the parties and is better left to the merits of the matter. It is a defence by the respondents to the application and I duly dismiss it.”
The nomination court sat at Tredgold Building. The court opened at 10am and sat beyond midnight that day.
The court heard there were many candidates applying to file their nomination papers for different political offices within Zimbabwe.
The respondents were filing to contest for the National Assembly seats. Ncube was the nomination officer. By 4pm on 21 June, the respondents had not filed their nomination papers.
The controversy is about where the respondents were at 4pm on 21 June.
The CCC’s Frank Mhlanga told court that he was at court at 9.30am and camped outside since the courtroom was small and was taking 10 people at a time.
He said Mthuli Ncube (Finance minister and Zanu PF Cowdray Park candidate) arrived well after him but he was served first.
Mhlanga also said he was called in to submit by 4pm and spent only five minutes on his papers. He said Zec did not block him and allowed him to go through the entire process.
Adelide Mhlanga said she was at court by 8.45am and stayed there throughout the day. She said she successfully filed and only left at 3am after the results were posted.
“From the evidence available which is the first respondent’s affidavit where he says that he only interacted with the respondents when they submitted their papers, the allegations and the denials all taken together, I come to the conclusion that the respondents except one submitted their nomination papers in violation of the law.
“We now know that a police officer collected the nomination papers from the candidates. The applicant’s case is that the first respondent violated the law.
“The nomination court closed at 4pm. Once it closed, it was no longer sitting in open court and by the time the respondents sat before him they were not doing so in open court,” said the judge in his ruling.
He said the separation of the papers from the respondents through the medium of the police officer was unlawful.
“The statute says the candidate or his/her agent must be in court and ready to submit at 4pm. It does not say that the candidate’s papers alone must be in the courtroom.
“The first respondent therefore violated the provisions of the Electoral Act in that regard as he did close to midnight when he adjourned to June 22 .
“The application succeeds against all the nominated candidates who are still respondents in this matter except Mr Zvikwete Innocent Mbano 1362/23,” he ruled.
He then declared the 12 CCC candidates’ nominations null and void.
Those affected are Obert Manduna, Ereck Gono, Douglas Ncube, Gift Siziba, Sapolous Maplanka, Prince Dube, Nqobizitha Ndlovu, Desmond Makaza, Collins Descent Bajila, Sichelesile Mahlangu, Desire Moyo, Adelide Mhlanga, Nompilo Bhebhe, Surrender Kapoikilu, Raphael Pashor Sibanda, Ntandoyenkosi Minenhle Gumede and Frank Mhlanga.
— STAFF WRITER.
