Bulawayo High Court Judge, Justice Bongani Ndlovu, Thursday, reserved judgement in a matter brought by 12 registered voters challenging the nomination of 12 Citizens Coalition for Change (CCC) candidates for MP and other parliamentary candidates on the grounds that their nomination papers were filed after 4 pm on June 21.
The case began Wednesday with lawyers for all the parties making preliminary arguments, during which the respondents’ lawyers raised numerous issues they alleged to be defects in the applications.
Justice Ndlovu then ruled that he would decide whether to hear the merits or only rule on the preliminary grounds before proceeding with the merits.
When the case resumed on Thursday, Justice Ndlovu stated he would make a judgment based on the case merits and issue a decision on both the preliminary points and the merits at the same time.
Arguing on the merits, Advocate Magwaliba said according to Section 46(6) of the Electoral Act, the Nomination Court closed at 4pm on June 21, 2023, and that once closed, the nomination officer was no longer seated in an open court.
“Nomination Papers were therefore not accepted in open court after Nomination Court closed. The affected candidates were not in Court 5 at Tredgold and some candidates remained late on June 21 to June 22, 2023.”
Advocate Magwaliba presented Annexure B, an official document prepared by ZEC’s secretary of the Nomination Court ( a Ms Mwonzora), saying it was a submission form for Bulawayo Province June 21, 2023 and recorded serial numbers allotted to candidates, recorded time, district, full name, gender and party.
He added the fact that respondents said they were a victim of the “slow process of Nomination Court” means they did not comply with the law.
“It is clear, evidence from the respondents themselves say they were not in the courtroom, their papers were admitted late at night and some were accepted at wee hours of the day. You cannot say 3 am is close to midnight” Magwaliba argued.
ZEC lawyer, Tawanda Kanengoni, said facts of the Nomination Court are known to persons who were at the Nomination Court – primarily the various persons who were there.
“The affidavits filed by ZEC officers tell a very simple story – they all consistently say no nomination papers were received after the 4 pm cutoff time,” he said and argued with Magwaliba for saying the police officer who was tasked to collect nomination papers before 4 pm was wrong.
Kanengoni said, “a police officer is a court by extension, because a Nomination court is not a one-man band it is a public court.”
The ZEC lawyer said the document relied on by applicants – Annexure B – was an administrative tool for assisting ZEC officers.
“If doubt arises from the document, go to the administrative authority (ZEC) to explain but the fact that you don’t agree with it, doesn’t mean that what the authority is telling you is false,” Kanengoni said.
“ZEC officials under solemn oath told the court what the document is – they have explained but the challenge is the applicants don’t like what it is. But they’re not liking what it is, doesn’t take away what the document is.”
Kanengoni added the times in that submission document are not chronological because it was not intended to record the chronological time events as the candidates were submitting and asked how the applicants argued that the document was a time sequence of submissions when they were told it was not.
According to the ZEC lawyer, the applicants’ request for declaratory relief will ‘touch’ everyone because it will have repercussions on everything and everyone who participated in the Nomination Court, implying that everyone will be disqualified.
CCC lawyer, Prof Welshman Ncube said Section 46(7) of the Electoral Act stated if candidates of their agents are in court by 4 pm on nomination day, they can lodge papers even after 4 pm.
“If papers are lodged before 4 pm but queries are raised, such queries can be attended to after 4 pm and relodged after 4 pm. The court can adjourn for the sitting of papers. That’s what the law says,” he said.
Prof Ncube argued this applicants’ case “was a fishing expedition- which caught no fish and this court must bring this fishing expedition to an end by dismissing this application.”
A Lawyer, Brian B. Robi, representing fifth respondent – Maplanka said contrary to applicants case, Maplanka was in Nomination court because he even has a cautioned statement from police because his phone rang inside the Nomination Court,
Another lawyer Moses Mahlangu representing Adelaide Mhlanga from the FreeZim Party said she arrived at 8.45am and waited for the Nomination Court to open at 10am.
“The applicants don’t even tell the court which candidates or respondents who were outside the court are but bunched all respondents together,” Mahlangu said and together with Robi prayed the applicant’s case should be dismissed with costs