via Dabengwa’s Zec appeal struck off – Southern Eye January 13, 2016
OPPOSITION Zapu leader Dumiso Dabengwa’s appeal challenging former High Court judge Justice Chinembiri Bhunu’s ruling was yesterday struck off the Supreme Court roll after it was adjudged to be fatally defective.
BY CHARLES LAITON
In the matter, Dumiso had appealed against Justice Bhunu’s order which granted the Zimbabwe Electoral Commission (Zec) unfettered discretion to use or not to use the voters’ rolls compiled by the Registrar-General.
The opposition leader argued that Justice Bhunu “erred in issuing what he termed a mandamus and yet was so general in its terms that it was vague, meaningless and unenforceable”.
In legal terms, a mandamus may be a command to do an administrative action or not to take a particular action.
The matter was thrown out after Deputy Chief Justice Luke Malaba noted that Dabengwa’s appeal papers did not comply with provisions of the Supreme Court Rules. Dabengwa’s lawyer Tererai Mafukidze later conceded his papers were not in order.
“Failure to comply (with Rule 29) is fatally defective and cannot be amended because there will be nothing to amend. In this case the appeal is against part of the judgment and the whole order,” Justice Malaba said.
“The purported notice of appeal cannot be amended and the only remedy available is an order striking it off the roll.
Therefore, the matter is struck off the roll with no order as to costs.”
Dabengwa had in his appeal said Justice Bhunu ought to have issued a clear and specific relief in line with the terms set out in his draft order, as is the practice of the courts when a mandamus is granted.
Dabengwa had previously made an application at the High Court seeking to compel Zec to craft its own voters’ rolls without relying on previous ones compiled by the Registrar-General of Voters.
The Zapu leader also wanted Zec to immediately take over from the Registrar-General’s Office duties such as registering voters, compiling its own voters’ roll, keeping and maintaining voters’ rolls and ensuring that the public had access to the voters’ rolls as provided for in terms of the country’s Constitution.
But, in his judgment, Justice Bhunu said there was no law compelling the commission to craft a new register from scratch.
Justice Bhunu, however, partially granted an order sought by Dabengwa and directed Zec to “forthwith” discharge its mandate in accordance with the available resources, a decision which prompted Dabengwa to file an appeal.