High Court Judge Justice Bongani Ndlovu, presiding over the Electoral Court in Bulawayo, has rescinded the default judgment that nullified Dingumuzi Phuti’s election as Member of Parliament for Bulilima.
This decision comes after Phuti’s lawyers argued that his challenger, Bekezela Maplanka of the Citizens Coalition for Change (CCC), failed to properly serve the election petition.
Phuti, who serves as the Bulilima MP and ICT deputy minister, had faced the prospect of losing his position following Maplanka obtaining a court order invalidating his election. However, the reversal of the default judgment on Monday reopened Maplanka’s electoral petition, which alleges election rigging by Phuti.
Phuti’s lawyer, Nqobizitha Ndlovu of Cheda and Partners, confirmed that opposing papers would be filed against the electoral petition in preparation for a court hearing.
During the hearing at the Bulawayo High Court, Justice Ndlovu considered both the preliminary and merits of the case.
Representing Maplanka, Mzingayi Moyo of Mathonsi Ncube Law Chambers raised four preliminary points, all of which were dismissed by Justice Ndlovu.
The first was Phuti’s application seeking a reversal of a judgement was improperly before the court, that his application followed an ill-fated cause. Moyo also argued Phuthi had not paid costs when his application was withdrawn from the High Court before filing at the Electoral Court since Maplanka had paid US$2 000 and that his application was not urgent.
On the merits, Phuti’s lawyer argued that Maplanka’s team failed to properly serve the election petition to Phuti.
They claimed that the petition was given to someone named Sharon Moyo, who is cited as the wife of Phuti’s brother, residing at Nyele Primary School in Bulilima.
Phuti’s lawyer questioned the validity of this service, asserting that Phuti had never resided at Nyele Primary School, and it was unclear whether Sharon Moyo had indeed delivered the electoral petition to him.
Maplanka’s lawyer presented affidavits from villagers who knew Sharon Moyo as Phuti’s in-law.
However, Phuti’s lawyer insisted that claims by Maplanka’s legal counsel that it was immaterial whether “this Sharon Moyo is a wife, girlfriend or cohabiting with Phuti’s brother because that detail was important especially relating to court documents.”
Justice Ndlovu also raised concerns about the language used in Maplanka’s election petition, describing it as “overblown” and lacking decorum. Despite a disclaimer from Maplanka’s lawyer, Justice Ndlovu cautioned against such language in legal documents.
In his judgment, Justice Ndlovu dismissed all four preliminary points raised by Maplanka’s lawyer and affirmed the urgency of the matter in electoral cases. The language used in Maplanka’s petition was criticized, and the case will proceed with opposing papers to be filed against the reopened electoral petition.
Ndlovu also raised issues with the temperament of the language used in Maplanka’s election petition, saying phrases such as “sluggish, slothfulness, lackadaisical” to describe Phuti and that he needed “mental therapy” lacked decorum.
Moyo issued a disclaimer that although he did not write Maplanka’s petition, that was “simply a style of writing and not in any way temperate.”
In his judgement, Justice Ndlovu dismissed Moyo’s four preliminary points and said this matter was urgent as electoral matters citing that Chief Justice Luke Malaba had also previously emphasised that these must be dealt with urgently.
Justice Ndlovu also agreed with Phuti’s lawyer that the language used in Maplanka’s petition was “overblown and could have been toned down,” warning that “if every lawyer wrote petitions like that there could be blows in the court.”
In an interview with CITE, Phuti’s lawyer confirmed the effect of Monday’s judgement was the default order which set aside the electoral results for Bulilima constituency was reversed.
“This takes us back to the status of August 2023 of the election. Phuti remains the elected MP for Bulilima, remains the Deputy Minister in terms of the appointment by His Excellency and will remain undertaking his duties as per his appointment as the Deputy Minister,” Ndlovu said, noting the case was not really closed.
“What has happened is the electoral petition by Maplanka has been reopened. So now what we are going to do is file opposing papers against the petition. So the electoral petition is still before the court. It has been reopened today by the order rescinding that judgement.”
Maplanka’s lawyer acknowledged the judge had issues with the way the certificate of service was crafted.
“They have not said anything about the electoral petition itself, but the way it was crafted and I think that was the main issue. This is something that we might need to go back on and see whether it’s a matter of law or a matter of fact, and decide how to proceed here,” he said in an interview.
