The Supreme Court has dismissed MDC Mt Pleasant House of Assembly losing candidate Jameson Timba’s bid to access the 2013 general elections’ ballot boxes, which he intended to use in challenging Zanu PF candidate Jason Passade’s win.
Timba initially lost the case at the Electoral Court, prompting him to file an appeal at the Supreme Court. However, Supreme Court judges Elizabeth Gwaunza, Vernanda Ziyambi and Antonio Guvava yesterday unanimously dismissed Timba’s appeal.
“In the result, it is ordered as follows: The appeal be and is hereby dismissed with costs,” the court ruled.
In the application Timba cited chief elections officer Constance Chigwamba, Zimbabwe Electoral Commission (Zec) chairperson Rita Makarau, Zec, Passade and Peter Victor Mukuchamano as respondents.
The Electoral Court had previously dismissed Timba’s application on the basis that by granting his request, it would result in him simultaneously accessing election residue pertaining to the presidential and Local Government election results in circumstances where no pending petitions existed in relation to those results.
The court further ruled that it did not have jurisdiction to determine Timba’s petition.
However, the Supreme Court in its judgement said that, “…the court a quo had and should have properly exercised jurisdiction to hear the matter on the merits. That is, absent any procedural or other legal barriers.”
The Supreme Court further said that Timba should have cited other candidates in the presidential and Local Government elections as respondents, since they had a direct and substantial interest in the matter.
“Applied to the circumstances of this case, I find that candidates in the elections other than the applicant (Timba), had a direct and substantial interest in both the subject matter of the litigation, and its possible outcome,” Gwaunza said in the judgment that was consented to by Ziyambi and Guvava.
In the application, Zec argued that due to the harmonised nature of the elections, various functionaries of the commission had participated in the sealing of the ballot boxes in the presence of all interested parties.
“That being the case, I do not doubt that the granting of an order requiring the unsealing of such ballot boxes in the absence of those who had participated in such sealing, would visit unfairness, if not prejudice, on the affected candidates,” Gwaunza said, in support of the idea that Timba should have cited all interested parties.
The Electoral Court has since upheld Passade’s win in the Mt Pleasant constituency.