News / Regional
Prof Jonathan Moyo's election challenge dismissed with costs
31 Jul 2014 at 06:43hrs | Views
THE Supreme Court yesterday dismissed with costs Media, Information and Broadcasting Services Minister Professor Jonathan Moyo's appeal against an earlier High Court ruling which had set aside his petition seeking to nullify last year's Tsholotsho North National Assembly election results.
The case was heard by the Supreme Court bench circuit sitting in Bulawayo consisting of Justices Elizabeth Gwaunza, Antonia Guvava and Paddington Garwe.
Justice Gwaunza delivered the judgment on behalf of the bench.
In her ruling she said: "The electoral petition filed by the petitioner in this case is fatally defective and is of no force and effect for want of compliance with Rule 21 (e) and (g) of the Electoral (Applications, Appeals and Petitions) Rule, 1995."
Justice Gwaunza said there was no merit in the contention made on behalf of the appellant.
"It is not in dispute that the form of and content of the appellant's petition did not conform to the format set out in Rule 21 (e) and (g). The rights arising out of elections, including the right to contest or challenge an election are not common law rights. Therefore, for deciding the assertion whether an election can be set aside on any alleged ground, the courts have to consult the provisions of the law governing a particular election. They have to function within the framework of that law and cannot travel beyond it.
"In that result we are satisfied that the trial was properly held in accordance with section 171 (1) and (3) of the Act and accordingly the appeal lacks merit and must fail.
"The applicant's petition is hereby dismissed with costs and the respondent Roselene Nkomo be and is hereby declared duly elected member of the National Assembly for Tsholotsho North Constituency. The registrar is hereby directed to proceed in terms of section 171 (3) (a) (ii) of the Electoral Act, Chapter 2:13," ruled Justice Gwaunza.
Prof Moyo narrowly lost the polls to MDC-T's Nkomo and challenged the outcome citing alleged irregularities.
He sought a recount of the votes citing numerous alleged anomalies in the process and subsequently filed a petition against the Zimbabwe Electoral Commission (ZEC) and Nkomo.
However, Bulawayo High Court judge Justice Martin Makonese, sitting in the Electoral Court, dismissed the petition on January 30 this year.
In his heads of argument, Prof 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 argued 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. 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.
According to the Notice of Appeal, Hussein said the court erred at law in finding that the form of petition adopted by Prof 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. 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.
"In light of the above, it is respectfully submitted that every petition once at issue, can only be disposed of at the conclusion of a trial. This is the only way that an election dispute can be properly ventilated to preserve the integrity of the election," he said.
Hussein said Prof Moyo wanted the matter referred back to the Electoral Court before a different judge.
"It may be tempting to argue that since the matter is to go to trial one would use the same or similar trial procedure as the High Court and therefore disposing of a matter in limine is permissible. As difficult as it may be, this temptation should be resisted with the fortitude counseled in the Book of Genesis! The simple reason is that the High Court is of inherent jurisdiction whereas the Electoral Court is a creature of statue.
"Appellant prays that the appeal be allowed with costs but also with the greatest respect that the matter be referred back to the Electoral Court before a different judge. The interests of justice would be better served by it being presented before a fresh pair of eyes," he said.
Nkomo's lawyer, Tendai Biti, leader of the MDC-T renewal team, opposed the application, saying that it should be dismissed with costs. He argued that Prof 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. 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.
He 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.
Prof 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.
The appellant lodged a complaint with ZEC soon after election results were announced in August 2013.
The case was heard by the Supreme Court bench circuit sitting in Bulawayo consisting of Justices Elizabeth Gwaunza, Antonia Guvava and Paddington Garwe.
Justice Gwaunza delivered the judgment on behalf of the bench.
In her ruling she said: "The electoral petition filed by the petitioner in this case is fatally defective and is of no force and effect for want of compliance with Rule 21 (e) and (g) of the Electoral (Applications, Appeals and Petitions) Rule, 1995."
Justice Gwaunza said there was no merit in the contention made on behalf of the appellant.
"It is not in dispute that the form of and content of the appellant's petition did not conform to the format set out in Rule 21 (e) and (g). The rights arising out of elections, including the right to contest or challenge an election are not common law rights. Therefore, for deciding the assertion whether an election can be set aside on any alleged ground, the courts have to consult the provisions of the law governing a particular election. They have to function within the framework of that law and cannot travel beyond it.
"In that result we are satisfied that the trial was properly held in accordance with section 171 (1) and (3) of the Act and accordingly the appeal lacks merit and must fail.
"The applicant's petition is hereby dismissed with costs and the respondent Roselene Nkomo be and is hereby declared duly elected member of the National Assembly for Tsholotsho North Constituency. The registrar is hereby directed to proceed in terms of section 171 (3) (a) (ii) of the Electoral Act, Chapter 2:13," ruled Justice Gwaunza.
Prof Moyo narrowly lost the polls to MDC-T's Nkomo and challenged the outcome citing alleged irregularities.
He sought a recount of the votes citing numerous alleged anomalies in the process and subsequently filed a petition against the Zimbabwe Electoral Commission (ZEC) and Nkomo.
However, Bulawayo High Court judge Justice Martin Makonese, sitting in the Electoral Court, dismissed the petition on January 30 this year.
In his heads of argument, Prof 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."
"It will be seen that no trial ever commenced or was concluded. 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.
According to the Notice of Appeal, Hussein said the court erred at law in finding that the form of petition adopted by Prof 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. 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.
"In light of the above, it is respectfully submitted that every petition once at issue, can only be disposed of at the conclusion of a trial. This is the only way that an election dispute can be properly ventilated to preserve the integrity of the election," he said.
Hussein said Prof Moyo wanted the matter referred back to the Electoral Court before a different judge.
"It may be tempting to argue that since the matter is to go to trial one would use the same or similar trial procedure as the High Court and therefore disposing of a matter in limine is permissible. As difficult as it may be, this temptation should be resisted with the fortitude counseled in the Book of Genesis! The simple reason is that the High Court is of inherent jurisdiction whereas the Electoral Court is a creature of statue.
"Appellant prays that the appeal be allowed with costs but also with the greatest respect that the matter be referred back to the Electoral Court before a different judge. The interests of justice would be better served by it being presented before a fresh pair of eyes," he said.
Nkomo's lawyer, Tendai Biti, leader of the MDC-T renewal team, opposed the application, saying that it should be dismissed with costs. He argued that Prof 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. 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.
He 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.
Prof 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.
The appellant lodged a complaint with ZEC soon after election results were announced in August 2013.
Source - chronicle
