Prof Jonathan Moyo case opens at court

THE Supreme Court yesterday heard Media, Information and Broadcasting Services minister Jonathan Moyo's challenge against a High Court ruling setting aside his petition to nullify the Tsholotsho North National Assembly July 31 election results.

Moyo lost the polls to Roselyn Nkomo of the MDC-T, but he rejected the outcome citing alleged irregularities.

Bulawayo High Court judge Justice Martin Makonese sitting in the Electoral Court dismissed the petition on January 30 this year.

The Supreme Court bench consisting of judges Justice Elizabeth Gwaunza, Justice Antonia Guvava and Justice Paddington Garwe heard the case while on circuit in Bulawayo .

In his heads of argument, Moyo's lawyer Terrence Hussein said the petition had been unfairly dismissed.

"The appellant's appeal should for the following reasons be allowed," he said. "Dismissal of petition in limine without a trial is ultra vires (beyond the powers of) the Electoral Court.

"The Electoral Act prescribes the procedure for an election petition.

"It clearly stipulates in peremptory that Section 171 (1) an election petition shall be tried by the Electoral Court in open court. At the conclusion of the trial of an election petition, the Electoral Court shall determine whether the respondent was duly elected or whether any, and if so what, person other than the respondent was or is entitled to be declared duly elected."

Hussein said the petition should only have been dismissed at the conclusion of trial in terms of Section 171 (3) of the Act.

"It will be seen that no trial ever commenced or was concluded," he submitted. Although Section 171 of the Act prescribing the holding of a trial does not lend itself to ambiguity or an absurdity, the authorities have had to emphasise this point."

He submitted that the court erred at law in finding that the form of petition adopted by Moyo was not in compliance with the Electoral Act and regulations.

"The court clearly tried to make a distinction between a petition and a court application," he said.

"In doing this the court fell into error and fundamentally misdirected itself. In terms of the Electoral Act, the document to be used to complain about an undue election is a petition."

Hussein said Moyo wanted the matter referred back to the Electoral Court before a different judge.

Nkomo, who is being represented by MDC-T renewal team leader Tendai Biti, opposed the application saying it should be dismissed with costs. He said Moyo's appeal was dismissed by the High Court after a trial.

"The net effect of the appellant's submissions would be to render all legal formalities, especially pleas and compliance with the rules totally unnecessary," he said.

"The literal meaning being given to Section 171 is that parties should simply be heard in a trial here.

"Anything else according to the appellant would amount to a breach of Section 171 of the Electoral Act — with great respect a very absurd position."

Biti said when a matter is dismissed or where one of the parties falls by the wayside as a result of a technical hurdle, he or she cannot claim that he has not had a day in court and that a trial was not held.

Judgment was reserved in the case. Moyo's petition had a technicality in that most of his reasons for petitioning were included in his founding affidavit in which Nkomo challenged that an affidavit was not an application, but a supporting document.

Moyo lodged a complaint with the Zimbabwe Electoral Commission (ZEC) soon after election results were announced in August last year.

He sought a recount of the votes citing numerous alleged anomalies in the process and subsequently filed a petition against ZEC and Nkomo.

But he withdrew his petition against all other respondents and focused on challenging Nkomo's victory.