Lawyers representing Citizens Coalition for Change (CCC) candidates in a case where twelve Bulawayo registered voters seek their disqualification from participating in the August elections want the case thrown out because they claim the applicants have no evidence to support their claims and are relying on hearsay when the case hearing began on Wednesday.
12 registered voters filed urgent chamber applications at the Bulawayo High Court, claiming the Zimbabwe Electoral Commission (ZEC) accepted candidate nomination papers from parties including CCC, ZAPU, Free Zim Congress and the Zimbabwe African National Congress (ZANC), as well as an independent, after the 4 pm deadline.
These 12 applicants want the courts to prevent the candidates from running in the elections and cite ZEC and different opposition party candidates as respondents.
However, following the submission of their points in limine (at the beginning), the respondents’ lawyers appeared to agree that the case was improperly before the High Court.
The matter was presided over by Judge, Justice Bongani Ndlovu, who said the case will continue on Thursday.
During their preliminary remarks, ZEC lawyer Tawanda Kanengoni, opposed the application, claiming the applicants chose the wrong court because specialised courts such as the Electoral Court would have no reason to exist if the High Court’s inherent jurisdiction was allowed to override it.
Kanengoni asked Justice Ndlovu to “decline jurisdiction” and dismiss the application.
Among other considerations, CCC lawyer Advocate Thabani ‘Fulcrum’ Mpofu, stated the applicants were not physically present before the Nomination Court and had no evidence, relying instead on social media reports.
“What needs to be established is for example, ‘What time did (CCC candidate for Cowdray Park) Pashor Sibanda get to nomination court and hand his nomination papers and what did the nomination officer say to Sibanda,” said Mpofu warning the court the essence of this application was to drag the court into a political fight, which the court must resist.
Mpofu posed questions as to what the legal interest of these 12 applicants was in seeking to disqualify oppositional candidates.
He argued, “the outcome of the nomination court does not give right to people to challenge it because that right is purposively accorded if they show a legal interest.”
Mpofu added that “the applicant’s legal interest should be in voting and if that right is taken away then they can go to court but as applicants, they have no right to tell people who want to vote for the other side that they don’t vote for opposition candidates.”
According to Mpofu, the case could be politically motivated because “there was a statement from a political party (Zanu PF) that it will litigate against the outcome of Nomination Court but suddenly it doesn’t, then such applications come before the court.”
Professor Welshman Ncube, also representing CCC candidates, weighed in that the applicants attempt to remove the nomination of opposition candidates relied on hearsay evidence, which is always inadmissible, except in specific cases involving criminal court.
Prof Ncube agreed with Mpofu that all the applicants were not present at the court.
“They witnessed nothing, they don’t even say they were told but what they are doing is bringing and telling fairy tales, which are not for court,” Prof Ncube said.
“Fairytales are for telling your children at night, not for court.”
The applicants’ founding affidavit refers to a document that they claim is publicly available from ZEC and shows the times the opposition candidates filed their nomination papers, however, ZEC denied the allegations in the document.
Prof Ncube further stated that the times that the applicants are citing to prove their case are incorrect because they are not actual candidate submission times, but rather times when their nomination papers were recorded.
He further stated the Electoral Court will have ‘exclusive jurisdiction’ to hear appeals and examine decisions made since ‘exclusive jurisdiction’ cannot be anything other, but the applicants wish to ignore that.
Prof Ncube added there was no legal truth in what the applicants were saying in their case.
“The applicants have a right to approach the Electoral Court if they have an interest in election cases but for the applicants to say the actions of Nomination Court were unlawful is a nullity,” he said.
“The applicants have no evidence that the Nomination Court accepted papers after 4pm or that it sat beyond 12 pm to receive nomination papers. It’s a fallacy for the applicants to say there were acts of illegality, which is a ground for review.”
A lawyer representing other respondents in the same case also argued the 12 applicants are improperly before the court.
However, Advocate Thembinkosi Magwaliba, who represented the 12 applicants, said the respondents’ lawyers’ claim that the High Court lacks jurisdiction to hear the matter is self-defeating because they also declare that the court must consider the substance of the case.
“The law is a matter for everyone,” he argues and added, “the applicants identified themselves as registered voters who don’t have a financial or remote interest but have a direct interest in the outcome of the nomination court.”
Magwaliba claimed the applicants were not relying on hearsay, but rather on ZEC’s public documents, which reveal when candidate nomination papers were filed.
“The CCC or any political party is not a candidate in the National Assembly election,” he noted, “the candidates are the ones who submitted the papers, whoever sponsored them is immaterial, so the case is between the candidates, not political parties.”
