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Mashudu Netsianda Senior Court Reporter
ZANU-PF legislator for Kwekwe Central Cde Masango Matambanadzo has filed an urgent chamber application for stay of execution following a ruling by Bulawayo High Court judge Justice Andrew Mutema that declared the Kwekwe Central constituency vacant. Following an application by losing MDC-T candidate, Blessing Chebundo in the July 31 elections, Justice Mutema, sitting in an Electoral Court in Bulawayo on Monday, declared the Kwekwe Central seat vacant and ordered the Zimbabwe Electoral Commission (ZEC) to hold fresh elections within 10 days.
The judge’s order read: “It is declared that the respondent (Matambanadzo) was not duly elected as a member of the House of Assembly for Kwekwe Central in the harmonised July 31 elections.
“The parliamentary seat for Kwekwe be and is hereby declared vacant (and) ZEC to set a date for the elections within 10 days of the order and the cost of this petition is borne by the respondent.”
Cde Matambanadzo, through his lawyer, Advocate Fred Gijima yesterday filed two applications before Bulawayo High Court judge Justice Nokuthula Moyo, one for an urgent chamber application for stay of execution and the other for rescission of the judgment.
However, no date has been set yet for the hearing.
In his appeal against the ruling, Cde Matambanadzo is arguing that he had not been served with court papers challenging his election as Kwekwe Central MP.
“On 2 December, 2013, the respondent (Chebundo) was granted judgment in default of my appearance on the set-down date. This is now an application in which I request this Honourable Court to stay execution of the judgment entered before Honourable Justice Mutema of my appearance pending the hearing of my application for rescission of judgment.
“I was never served with court papers challenging my election and so this ruling is null and void as I duly opposed that petition by filing my Notice of Opposition wherein I raised some points in limine and prayed for the dismissal of the matter,” said Cde Matambanadzo.
He said the Heads of Argument were issued on 21 October, 2013, and served on the respondent’s lawyers on the same day.
“My lawyers then waited to receive the respondent’s Heads of Argument and subsequently the Notice of Set Down. Two weeks passed by with nothing being received by my lawyers as evidenced by their supporting affidavit. My lawyers then telephoned their corresponding attorneys, Mudenda Attorneys enquiring about the Heads of Argument and it emerged that no such documents were served including a Notice of Set Down.
“I was only surprised on 3 December, when I read in the newspapers that the judgment had been entered against me in default,” said Cde Matambanadzo.
In his founding affidavit, Cde Matambanadzo further argued: “The matter is extremely urgent in that there is already an operative order declaring the parliamentary seat for Kwekwe Central as vacant and also ordering ZEC to hold fresh elections within 10 days as of 4 December, 2013, hence a fresh election is imminent if this application is not granted I will be greatly prejudiced. I will suffer irreparable harm if this application is not granted as the holding of fresh elections cannot be reversed.
“If relief is not granted, my right to be a Member of the National Assembly, the chosen one by the Kwekwe Central Constituency would have been extinguished.”
Chebundo issued an election petition in case No EC34/13 with the Electoral Court seeking an order that the National Assembly seat for Kwekwe Central be declared vacant and fresh election to be held.
Several losing MDC-T candidates have filed petitions against Zanu-PF MPs contesting the outcome of the 31 July harmonised elections but their bids have fallen on the wayside.
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