Why Prof Moyo lost

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MDC-Renewal team leader Tendai Biti may be battling on the political front after challenging party leader Morgan Tsvangirai’s authority, but he struck the right chord with the Supreme Court judges this week resulting in Media, Information and Broadcasting Services minister Jonathan Moyo’s electoral case being tossed out.

RICHARD MUPONDE
SENIOR COURT REPORTER

Moyo had filed an appeal with the Supreme Court against an Electoral Court ruling that dismissed his petition challenging the victory of Roselyn Nkomo in the Tsholotsho North constituency in last year’s legislative polls citing irregularities.

Biti successfully defended Nkomo after the judges threw out Moyo’s appeal with costs on Wednesday almost certainly ending the political scientist’s year-long challenge of the MDC-T legislator’s electoral victory. Explaining the reasons for dismissing Moyo’s appeal, Supreme Court judge Justice Elizabeth Gwaunza, on behalf of the appeals panel that comprised Justices Antonia Guvava and Paddinton Garwe, said his appeal lacked merit.

“In the result we are satisfied that a trial was properly held in accordance with Section 171 (1) and (3) of the Act (Electoral Act). It follows that the determination by the court a quo was proper.

“This appeal therefore lacks merit and must fail,” Justice Gwaunza said.

Moyo’s lawyer Terrence Hussein had argued that the dismissal of his electoral petition by Bulawayo High Court judge Justice Martin Makonese sitting in the Electoral Court on January 30 without a trial was in contravention of Section 171 of the Electoral Act.

Hussein also said the court had erred at law in finding that the form of petition adopted by Moyo was not in compliance with the Electoral Act and rules.

However, Biti’s submissions against Moyo’s arguments found favour with the appeals judges.

“We find merit in the submissions made by Biti for the respondent (Nkomo) that a trial is a process that consists of pleadings (which are adjectival and procedural) and substance (which in the oral hearing where viva voce evidence is led).

“Further, that as part of any trial, a court is enjoined to hear arguments on points in limine, if any, and may dispose of the matter purely on those points.

“As evident from the joint pre-trial conference minute, both parties appreciated this possibility,” Justice Gwaunza explained.

Moyo lodged a complaint with the Zimbabwe Electoral Commission soon after election results were announced in August 2013.