via Supreme Court throws out Timba’s request | The Herald April 7, 2014 by Daniel Nemukuyu
MDC-T losing candidate for the Mt Pleasant National Assembly seat Mr Jameson Timba has filed heads of argument in a Supreme Court case in which he is contesting the dismissal of his request for residue election material and reopening of sealed ballot boxes and packets. He wanted access to the election material for use in his poll petition but Electoral Court judge Justice Susan Mavangira threw it out before the petition was heard.
Meanwhile, Mr Timba now awaits judgment in the main petition at the Electoral Court but he still wants access to the election material.
Justice Mavangira last year dismissed Timba’s application on the basis that opening the boxes and packets would amount to opening the material in other elections like the Presidential and council polls considering that the July 31 2013 election was harmonised.
Justice Mavangira ruled that since the elections were harmonised, it was incompetent to grant the order that would see the opening of papers for the Presidential and local authority elections.
She ruled that only the Constitutional Court had jurisdiction to order the opening of boxes and packets relating to the Presidential election.
In the heads of argument filed last week at the Supreme Court by Mr Trust Maanda on behalf of Mr Timba, it is argued that Section 70 (4) of the Electoral Act provides for the right of a petitioner to ask for the materials to be opened in relation to his or her election petition.
It is argued that Justice Mavangira’s judgment was erroneous.
“The restriction on opening sealed boxes and packets only applies to a constituency election officer.
“Once such items are not in the custody of the Constituency Elections Officer, pursuant to an order of the court, there is no restriction on the opening of the ballot boxes,” reads part of the heads of argument.
Mr Timba lost the election to Zanu-PF legislator Cde Jaison Passade on July 31 last year.
To substantiate his petition, Mr Timba, through his lawyer Mr Trust Maanda, decided to file an application for the unsealing of the boxes and packets containing election material.
Harare lawyers Mr Charles Nyika and Mr Tawanda Kanengoni of Nyika, Kanengoni and Partners represented the Zimbabwe Electoral Commission.