‘Mliswa’s petition a nullity at law’

Fidelis Munyoro Chief Court Reporter
Former Zanu-PF Mashonaland West provincial chairman Mr Temba Mliswa’s election petition challenging the victory of Zanu-PF legislator Cde Keith Guzah is defective and a nullity at law, the Electoral Court heard on Wednesday. Cde Guzah polled 5 961 votes against Mr Mliswa’s 4 239 in the by-election held on June 10 this year.

Cde Guzah’s lawyer Advocate Sylvester Hashiti made an application seeking to stop Mr Mliswa’s petition prematurely for want of compliance with the rules of the court.

“The petition does not comply with the peremptory provision of Rule 21G of the Electoral Court Rules,” argued Adv Hashiti. “A petition that does not comply with this strict requirement, which cannot be condoned, is a nullity at law and has no legal consequence whatsoever. Anything founded upon it is equally void and of no legal consequence.”

Adv Hashiti submitted that the position he took had been confirmed by the Supreme Court in the case of Professor Jonathan Moyo Vs Mrs Roseline Nkomo regarding the Tsholotsho North election held on July 31 2013.

In that case, the Supreme Court set out the mandatory requirements regarding the form and content of a petition. It said: “Specifically, the grounds relied on and the exact relief sought must all be apparent ex facie (on the face of) the petition”.

Adv Hashiti argued that Mr Mliswa in his petition failed to show compliance with the rules of the court since he did not state the exact relief he wanted from the court and “the nature of the relief”. Mr Kudzai Kadzere, who is representing Mr Mliswa, argued that an attempt to comply with the rules was made and that they had successfully done so.

He said the relief his client was seeking was in the draft order and that the Supreme Court judgment did not apply and that it was distinguishable to the present case.

Mr Kadzere also argued that it was improper for Cde Guzah’s lawyer to raise the point of law at the trial. The point of law, he argued, should have been raised at the commencement of the trial.

Justice Tendai Uchena made an observation that he was bound by the Supreme Court judgment. He reserved judgment to a later date. The disputed by-election arose after Mr Mliswa was expelled from Parliament when Zanu-PF wrote disowning him.