The Supreme Court has overturned a High Court order that barred 12 Citizens Coalition for Change (CCC) parliamentary candidates in Bulawayo from running in the August 23 election.
A panel of three Supreme Court judges – Justices Tendai Uchena, Alfas Chitakunye, and Hlekani Mwayera – on August 3, 2023, unanimously decided to overturn a ruling of the Bulawayo High Court made on July 27, 2023, which had benefited Zanu PF by disqualifying opposition candidates and allowing it to run unopposed in the three constituencies of Cowdray Park, Bulawayo Central and Bulawayo South.
Justice Bongani Ndlovu of the Bulawayo High Court ruled that the Bulawayo Provincial Elections Officer (PEO) for the Zimbabwe Electoral Commission (ZEC) illegally accepted nomination papers from the 12 CCC candidates and others who filed after the deadline of 4 pm on June 21, 2023, when the Nomination Court sat.
Justice Ndlovu stated in his judgement in the matter of Tatenda Madzinashe and Others vs. Innocent Ncube and Others that ZEC, CCC candidates, and others failed to offer a detailed narrative of what happened when the Nomination Court sat and ruled in favour of the applicants.
However, the Supreme Court judges overruled this decision after hearing the grounds of appeal from counsel representing the 12 CCC candidates.
The bench chaired by Justice Uchena overturned Justice Ndlovu’s ruling.
The 12 appellants are Collins Descent Bajila, Sichelesile Mahlangu, Gift Siziva, Surrender Kapoikilu, Jane Nicola Watson, Minenhle Ntandonyenkosi Gumede, Prince Dube, Desire Moyo, Desmond Makaza, Obert Manduna, Pashor Raphael Sibanda and Gono Ereck.
In their notice of appeal SCB86/23, the 12 CCC appellants said having heard argument on points in limine including the critical point on jurisdiction, the High Court “grossly misdirected itself and erred in proceeding to hear argument on the merits of the matter without making a determination on the points taken before it in limine litis.”
The appellants said the High Court erred in assuming jurisdiction over a matter, which is by constitutional and statutory command subject to the exclusive jurisdiction of the Electoral Court and so erred in entertaining a review disguised as a declaratur.
“The court a quo erred and misdirected itself in failing to hold that there was no proper application before it, applicants having invented their own dies induciae in violation of the rules and of superior court authority and so erred in condoning a fatal defect and where no application for condonation had been made,” read their notice of appeal.
“The court a quo erred in granting relief to parties who had no locus standi in judicio, who could not swear positively to the “facts” they relied upon and who sustained their cause on the basis of objectively established falsehoods.”
The appellants said the High Court made a severe error in accepting inadmissible hearsay evidence on a point relevant to the outcome of the applications and permitting applicants to sustain their case on that basis.
After concluding that the CCC political party was harmed by the proceedings before it, the 12 candidates added the High Court erred in relating to and granting an application that harmed its interests without giving their concerned political party the opportunity to be heard.
“The court a quo having found that there was a dispute of fact material to the resolution of issues before it, erred in purporting to resolve such dispute in the absence of any work tools for such resolution and so erred in making credibility findings on motion that were unsupported by the evidence placed before it,” read the notice of appeal.
The appellants said the High Court erred in failing to find that factual issues should be resolved on the basis of ZEC’s position as well as the candidates themselves who were physically present at the Nomination Court, positions that could not be overruled by the first to twelfth respondents’ hearsay evidence (the 12 who sought to have the CCC candidates disqualified.)
The CCC also added that the High Court erred in failing to conclude that appellants had timely provided their papers, had an absolute right to have them processed, and were thus lawfully proclaimed duly nominated by the Nomination Court.
