via MDC-T election petitions continue crumbling | The Herald November 13, 2013 by Zvamaida Murwira
MDC-T election petitions continue to crumble, with the Electoral Court dismissing an application by the party’s losing candidate for Mt Pleasant Mr Jameson Timba to have an electronic voters’ roll which he intended to use in his petition to challenge Cde Jaison Passade’s victory.
The party’s deputy national chairman, Morgan Komichi was recently convicted of poll fraud and is doing his 350 hours of community service at Mabelreign Clinic in Harare.
Komichi tampered with a ballot in a bid to cast aspersions on the Zimbabwe Electoral Commission to abet his party’s claims that the harmonised elections were rigged.
Justice Chinembiri Bhunu also castigated Mr Timba’s lawyer, Mr Trust Maanda for unprofessional conduct by misrepresenting to the media that a consent order had been granted when no such court ruling was made.
The dismissal of Mr Timba’s case came as the Electoral Court was set to hear 12 election petitions, starting today.
Justices Bhunu, Tendai Uchena and Lavendar Makoni are set to hear 12 MDC-T election petitions.
In Mr Timba’s case, Justice Bhunu also dismissed the application seeking to bar the Zimbabwe Electoral Commission from being heard for filing their papers out of time.
“That the Applicant’s application to be provided with the voters’ roll in electronic form be and is hereby dismissed,” said Justice Bhunu.
In dismissing the application, Justice Bhunu said it had not been shown that ZEC’s equipment was now functional for it to be used as had initially been directed by Justice Joseph Mafusire in another application by MDC-T secretary-general Mr Tendai Biti to be given the voters’ roll in electronic form.
“Thus, before the Applicant’s application in this respect can succeed, he needs to show that the suspensive condition relating to the non-functionality of the electronic equipment has been fulfilled. In the absence of such fulfilment, the application can not succeed,” ruled Justice Bhunu.
On Mr Maanda’s conduct, Justice Bhunu castigated the lawyer for misrepresenting to the media regarding confidential discussions lawyers for parties involved had had in the judge’s chambers, where the lawyer emerged from the meeting to claim that a consent order had been granted when no such order had been made.
Justice Bhunu said if such an order had been made, there would be no need for Mr Maanda to come back before the court to argue his case, as what happened last week, as he would have just sought for its enforcement.
He dismissed allegations by Mr Maanda who had sought to cast aspersion on Mr Tawanda Kanengoni, the legal counsel for ZEC.
Mr Maanda had accused Mr Kanengoni of unprofessional conduct by allegedly negotiating for proposed terms of settlement without the electoral body’s mandate
“It is surprising that Mr Maanda as a senior lawyer would want to cling onto a non-existent consent order which he alleges was instigated by a lawyer who lacked the necessary mandate to bind his principal,” he said.
Justice Bhunu said having realised the futility of his argument in this respect, Mr Maanda sought to argue that the respondents be barred for allegedly filing papers out of time.
He said that was not sustainable because ZEC had filed an exception papers within the prescribed 10 days.
“An exception by its very nature seeks to challenge the validity of the application and to that extend the relief sought. In my view, the filing of the exception can only amount to the filing of opposing papers,” he said.
“It is self evident that Mr Maanda was happy to let the respondents be heard up to the point it dawned on him that his perceived consent order was non-existent. Unfortunately, he cannot have his cake and eat it. Thus if I am wrong in holding that there is no bar operating against the respondents, the applicant has laid fertile ground for the upliftment of the bar in terms of the respondent’s oral arguments,” he said.
In October this year, MDC-T withdrew eight election petitions, leaving the Electoral Court to deal with 31 petitions from a total of 39 that were accepted by the court after payment of security of costs of US$10 000 each.