Opinion / Columnist
Key parts of High Court's judgement nullifying nomination of Chamisa's candidates
27 Jul 2023 at 16:48hrs | Views
EXTRACT OF KEY PART OF TODAY'S HIGH COURT JUDGMENT NULLIFYING NOMINATION OF 12 CCC PARLIAMENTARY CANDIDATES & 4 OTHERS IN BULAWAYO
NB: Link to full judgment below the extract.
"We revert to the facts.
I have been moved by the Respondents, invariably all of them save for the self-actor, that I accept the facts as pleaded by the 1 st Respondent.
The 1 st Respondent stated in his affidavit that he only interacted with the individual Respondents when they submitted their nomination papers. Annexure B shows when each Respondent submitted his or her nomination papers. Annexure B is a document compiled by public officials during the course of their duty in service of the State. Long after 4 pm the majority of the Respondents filed their nomination papers. The 1 st Respondent and his staffers have said the times indicated in Annexure B are not what they purport to be. I find this explanation to be strange and improbable to the extent of being false. Annexure B speaks for itself. It does not need to be explained away by anyone including the 1 st Respondent and his staffers. In all probability, the 1 st Respondent comes up with this explanation upon realizing that this application has put him and ZEC on trial.
From the evidence available which is the 1 st Respondent's affidavit where he says that he only interacted with the Respondents when they submitted their papers, Annexure B, 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 Applicants' case is that the 1 st Respondent violated the law. I have also been moved by both sides of the bar, to give Section 46 (7) and (8) of the Act the golden rule of interpretation.
The Nomination Court closed at 4 pm. 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. 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 4 pm. It does not say that the candidate's papers alone must be in the courtroom.
The 1 st Respondent, therefore, violated the provisions of the electoral Act in that regard as he also did close to midnight when he adjourned to 22 June 2022.
The case of Mr. Zvikewete Innocent Mbano is different from the rest. Mr. Mbano told the Court that he submitted his papers earlier than 4 pm. His papers had anomalies. He was told to go and rectify the anomalies. He did and returned after 4 pm. He was clearly covered by the proviso.
DISPOSITION
The application succeeds against all the nominated candidates who are still respondents in this matter except Mr. Zvikwete Innocent Mbano HC 1362/23.
IT IS DECLARED THAT;
1. That the decision of the 1 st Respondent, sitting as a nomination court at Bulawayo on 21 and/or 22 June 2023 to accept the following Respondents' nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 was in contravention of Section 46(7) & (8) of the Electoral Act [Chapter 2;13].
2. That the decision of the 1 st Respondent sitting as a Nomination Court at Bulawayo on 21 and/or 22 June 2023 to accept the following Respondents' nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 is declared null and void and is hereby set aside.
ACCORDINGLY, IT IS ORDERED THAT;
3. 1 st Respondent is prohibited from including the names of the following Respondents in the preparation of ballot papers to be used in the general elections scheduled to be conducted on 23 August 2023.
4. Respondents shall jointly and severally, pay the costs of suit.
OBERT MANDUNA ERECK GONO
DOUGLAS NCUBE
GIFT SIZIVA
SANPOULUS MAPLANKA
PRINCE DUBE
NQOBIZITHA NDLOVU
DESMOND MAKAZA
BAJILA COLLINS DESCENT
SICHELESILE MAHLANGU
DESIRE MOYO
ALELAIDE MHLANGA
NOMPILO BHEBHE
SURRENDER KAPOIKILU
RAPHAEL PASHOR SIBANDA
NTANDOYENKOSI MINENHLE
GUMEDE FRANK MHLANGA.
5. The application against Zvikwete Innocent Mbano be and is hereby dismissed with costs.
6. The application against ADMORE GOMBA, NIGEL NDLOVU, SONENI MOYO, DINGILIZWE TSHUMA, STRIKE MKANDLA & ALBERT MHLANGA be and is hereby withdrawn.
NDLOVU J
27/07/2023
Messrs Cheda & Cheda Associates, applicants' legal practitioners.
Nyika, Kanengoni & Partners,1st 2 nd & 5 th respondents' legal practitioners.
Messrs Tanaka Law Chambers, Respondents' legal practitioners.
Mathonsi Ncube Law Chambers, respondents' legal practitioners
Dube Legal Practice,5th respondent HC 1360/23' legal practitioners
Mbidzo, Muchadehama & Makoni, 4 th respondent HC 1368/23's legal practitioners"
NB: Link to full judgment below the extract.
"We revert to the facts.
I have been moved by the Respondents, invariably all of them save for the self-actor, that I accept the facts as pleaded by the 1 st Respondent.
The 1 st Respondent stated in his affidavit that he only interacted with the individual Respondents when they submitted their nomination papers. Annexure B shows when each Respondent submitted his or her nomination papers. Annexure B is a document compiled by public officials during the course of their duty in service of the State. Long after 4 pm the majority of the Respondents filed their nomination papers. The 1 st Respondent and his staffers have said the times indicated in Annexure B are not what they purport to be. I find this explanation to be strange and improbable to the extent of being false. Annexure B speaks for itself. It does not need to be explained away by anyone including the 1 st Respondent and his staffers. In all probability, the 1 st Respondent comes up with this explanation upon realizing that this application has put him and ZEC on trial.
From the evidence available which is the 1 st Respondent's affidavit where he says that he only interacted with the Respondents when they submitted their papers, Annexure B, 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 Applicants' case is that the 1 st Respondent violated the law. I have also been moved by both sides of the bar, to give Section 46 (7) and (8) of the Act the golden rule of interpretation.
The Nomination Court closed at 4 pm. 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. 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 4 pm. It does not say that the candidate's papers alone must be in the courtroom.
The 1 st Respondent, therefore, violated the provisions of the electoral Act in that regard as he also did close to midnight when he adjourned to 22 June 2022.
The case of Mr. Zvikewete Innocent Mbano is different from the rest. Mr. Mbano told the Court that he submitted his papers earlier than 4 pm. His papers had anomalies. He was told to go and rectify the anomalies. He did and returned after 4 pm. He was clearly covered by the proviso.
DISPOSITION
The application succeeds against all the nominated candidates who are still respondents in this matter except Mr. Zvikwete Innocent Mbano HC 1362/23.
IT IS DECLARED THAT;
1. That the decision of the 1 st Respondent, sitting as a nomination court at Bulawayo on 21 and/or 22 June 2023 to accept the following Respondents' nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 was in contravention of Section 46(7) & (8) of the Electoral Act [Chapter 2;13].
2. That the decision of the 1 st Respondent sitting as a Nomination Court at Bulawayo on 21 and/or 22 June 2023 to accept the following Respondents' nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 is declared null and void and is hereby set aside.
ACCORDINGLY, IT IS ORDERED THAT;
3. 1 st Respondent is prohibited from including the names of the following Respondents in the preparation of ballot papers to be used in the general elections scheduled to be conducted on 23 August 2023.
4. Respondents shall jointly and severally, pay the costs of suit.
OBERT MANDUNA ERECK GONO
DOUGLAS NCUBE
GIFT SIZIVA
SANPOULUS MAPLANKA
PRINCE DUBE
NQOBIZITHA NDLOVU
DESMOND MAKAZA
BAJILA COLLINS DESCENT
SICHELESILE MAHLANGU
DESIRE MOYO
ALELAIDE MHLANGA
NOMPILO BHEBHE
SURRENDER KAPOIKILU
RAPHAEL PASHOR SIBANDA
NTANDOYENKOSI MINENHLE
GUMEDE FRANK MHLANGA.
5. The application against Zvikwete Innocent Mbano be and is hereby dismissed with costs.
6. The application against ADMORE GOMBA, NIGEL NDLOVU, SONENI MOYO, DINGILIZWE TSHUMA, STRIKE MKANDLA & ALBERT MHLANGA be and is hereby withdrawn.
NDLOVU J
27/07/2023
Messrs Cheda & Cheda Associates, applicants' legal practitioners.
Nyika, Kanengoni & Partners,1st 2 nd & 5 th respondents' legal practitioners.
Messrs Tanaka Law Chambers, Respondents' legal practitioners.
Mathonsi Ncube Law Chambers, respondents' legal practitioners
Dube Legal Practice,5th respondent HC 1360/23' legal practitioners
Mbidzo, Muchadehama & Makoni, 4 th respondent HC 1368/23's legal practitioners"
Source - Twitter
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