News / Local
Dingumuzi Phuti election petition goes to Supreme Court
15 Dec 2023 at 02:24hrs | Views
LOSING candidate for Bulilima Constituency in the August 23-24 harmonised elections, Ms Bekezela Maplanka of the Citizens Coalition for Change (CCC) has approached the Supreme Court challenging the decision by the High Court to rescind a default judgment nullifying Zanu-PF candidate, Dingumuzi Phuti's victory.
A default judgment was last month granted in favour of Ms Maplanka by Harare High Court judge Justice David Mangota after Phuti did not oppose the application.
In his judgment, Justice Mangota nullified Phuti's victory as duly elected MP for Bulilima and ordered the Zimbabwe Electoral Commission (ZEC) to prepare for a by-election.
Phuti who is also the Deputy Minister of Information, Communication Technologies, Postal and Courier Services, through his lawyer Mr Nqobizitha Ndlovu of Cheda and Cheda Associates, later approached the High Court in Bulawayo challenging the nullification of his electoral victory.
Bulawayo High Court judge Justice Bongani Ndlovu on Monday rescinded the default judgment and granted Phuti leave to file his opposing papers to the electoral petition within 14 days.
Aggrieved by the ruling, Ms Maplanka, through her lawyers Mathonsi Ncube Law Chambers, filed an appeal on Wednesday at the Supreme Court citing Phuti as a respondent.
In her grounds of appeal, Ms Maplanka argued that the High Court misdirected itself when it entertained Phuti's application for rescission of its decision in case number HCBEC29/23.
"The court a quo erred at law thus misdirecting itself when it dismissed the points in limine that the Electoral Court did not have jurisdiction and that the matter had not been properly withdrawn and was thus still pending at the High Court," she argued.
"The court a quo erred as a matter of fact and law when it failed to appreciate that the decision of the Electoral Court in HCBEC29/23 was a factual decision and therefore final. It was a decision on the law and only an appeal to the Supreme Court can be made against it."
Ms Maplanka further argued that the finding that the respondent could not, in the opinion of the court, appeal against a default judgment of the Electoral Court and did not award the court jurisdiction to hear the application for rescission.
She said the High Court erred by making a finding that a certificate of service filed in case number HCBEC29/23 was not clear on where service was effected.
"It is clear that the service was effected at the respondent's homestead. This finding was also in disagreement with the findings of the Electoral Court in HCBEC29/23 that is satisfied with the same certificate of service, and on the same basis had granted the judgment," argued Ms Maplanka.
She said the High Court erred when it decided to rescind its judgment without making the finding that Phuti had indeed not been served.
"The court a quo erred when it granted the rescission application when the respondent had failed to prove that he had not been served with the petition. The appellant prays that the appeal succeeds with costs, and the judgment of the court a quo be overturned," argued Ms Maplanka.
In her election petition, Ms Maplanka wanted a court order directing the ZEC to conduct fresh National Assembly elections for Bulilima Constituency.
THE Zimbabwe Electoral Commission has confirmed that all centres with by-elections opened on time at 7AM and voters were already queuing to cast votes.
Phuti polled 7 185 votes while Ms Maplanka got 6 660 votes.
Ms Maplanka argued that there were various electoral irregularities such as voter intimidation, rigging and vote buying.
In response to Justice Mangota's default judgment, Phuti filed an urgent chamber application last month seeking a rescission of the default judgment and condonation for the late filing of opposing papers, citing Ms Maplanka as a respondent.
In his founding affidavit, Phuti argued that he was not properly served with the election petition filed by Ms Maplanka under HCBCEC29/23 as required by the law.
He argued that he only became aware of the petition and the resultant court order on November 23, 2023 after it was widely publicised on social media.
He said in terms of Section 169 of the Electoral Act, the respondent was supposed to either serve the election petition on him or at his usual or last known address.
Phuti is yet to respond to the Ms Maplanka's Supreme Court appeal.
A default judgment was last month granted in favour of Ms Maplanka by Harare High Court judge Justice David Mangota after Phuti did not oppose the application.
In his judgment, Justice Mangota nullified Phuti's victory as duly elected MP for Bulilima and ordered the Zimbabwe Electoral Commission (ZEC) to prepare for a by-election.
Phuti who is also the Deputy Minister of Information, Communication Technologies, Postal and Courier Services, through his lawyer Mr Nqobizitha Ndlovu of Cheda and Cheda Associates, later approached the High Court in Bulawayo challenging the nullification of his electoral victory.
Bulawayo High Court judge Justice Bongani Ndlovu on Monday rescinded the default judgment and granted Phuti leave to file his opposing papers to the electoral petition within 14 days.
Aggrieved by the ruling, Ms Maplanka, through her lawyers Mathonsi Ncube Law Chambers, filed an appeal on Wednesday at the Supreme Court citing Phuti as a respondent.
In her grounds of appeal, Ms Maplanka argued that the High Court misdirected itself when it entertained Phuti's application for rescission of its decision in case number HCBEC29/23.
"The court a quo erred at law thus misdirecting itself when it dismissed the points in limine that the Electoral Court did not have jurisdiction and that the matter had not been properly withdrawn and was thus still pending at the High Court," she argued.
"The court a quo erred as a matter of fact and law when it failed to appreciate that the decision of the Electoral Court in HCBEC29/23 was a factual decision and therefore final. It was a decision on the law and only an appeal to the Supreme Court can be made against it."
Ms Maplanka further argued that the finding that the respondent could not, in the opinion of the court, appeal against a default judgment of the Electoral Court and did not award the court jurisdiction to hear the application for rescission.
She said the High Court erred by making a finding that a certificate of service filed in case number HCBEC29/23 was not clear on where service was effected.
"It is clear that the service was effected at the respondent's homestead. This finding was also in disagreement with the findings of the Electoral Court in HCBEC29/23 that is satisfied with the same certificate of service, and on the same basis had granted the judgment," argued Ms Maplanka.
She said the High Court erred when it decided to rescind its judgment without making the finding that Phuti had indeed not been served.
"The court a quo erred when it granted the rescission application when the respondent had failed to prove that he had not been served with the petition. The appellant prays that the appeal succeeds with costs, and the judgment of the court a quo be overturned," argued Ms Maplanka.
In her election petition, Ms Maplanka wanted a court order directing the ZEC to conduct fresh National Assembly elections for Bulilima Constituency.
THE Zimbabwe Electoral Commission has confirmed that all centres with by-elections opened on time at 7AM and voters were already queuing to cast votes.
Phuti polled 7 185 votes while Ms Maplanka got 6 660 votes.
Ms Maplanka argued that there were various electoral irregularities such as voter intimidation, rigging and vote buying.
In response to Justice Mangota's default judgment, Phuti filed an urgent chamber application last month seeking a rescission of the default judgment and condonation for the late filing of opposing papers, citing Ms Maplanka as a respondent.
In his founding affidavit, Phuti argued that he was not properly served with the election petition filed by Ms Maplanka under HCBCEC29/23 as required by the law.
He argued that he only became aware of the petition and the resultant court order on November 23, 2023 after it was widely publicised on social media.
He said in terms of Section 169 of the Electoral Act, the respondent was supposed to either serve the election petition on him or at his usual or last known address.
Phuti is yet to respond to the Ms Maplanka's Supreme Court appeal.
Source - The Chronicle
