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Supreme Court throws out Timba’s appeal

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Losing MDC-T Mt Pleasant candidate Jameson Timba’s application challenging a High Court decision to dismiss his electoral petition, went up in smoke for the second time yesterday after the Supreme Court upheld the initial judgment and dismissed his appeal with costs.

Losing MDC-T Mt Pleasant candidate Jameson Timba’s application challenging a High Court decision to dismiss his electoral petition, went up in smoke for the second time yesterday after the Supreme Court upheld the initial judgment and dismissed his appeal with costs.

BY CHARLES LAITON

Timba had applied to have access to the electronic voters’ roll and an order to open sealed ballot boxes and to inspect the July 31, 2013 election material, in his bid to prove alleged electoral fraud in his former constituency.

His initial application, however, was dismissed by former High Court judge Justice Chinembiri Bhunu, prompting him to file an appeal at the Supreme Court.

Jameson-Timba-etched

But in her judgment, Judge of Appeal, Justice Elizabeth Gwaunza, said Timba ought to have cited all other participants in the harmonised election, such as the President and MP since the election material he was seeking to have unsealed had been stored together with those of other winning and losing parties that had not challenged the results.

“It is in my view safe to assume that, with the election materials sought to be accessed by the appellant (Timba) being stored together with those to the Presidential and local government elections, candidates in the latter two elections must have had a vested interest in the subject matter of the litigation, as well as relief sought therein,” she said.

“To that extent, the candidates concerned may have wished to have their views known to, and considered by, the court on whether or not in the absence of a challenge to their election, the ‘residue’ relating to their respective election results should be uncovered.

“This particularly so given that the unsealing of the boxes in question would have been at the instance of another candidate, not themselves.”

The judge added: “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 participated in such sealing would be to visit unfairness, if not prejudice, on the affected candidates.”

Justice Gwaunza further said she found that while the High Court, in the absence of procedural or other legal barriers, would have had the jurisdiction to hear the matter on the merits, “its decision to dismiss the application is the one that this court (Supreme Court) may not properly interfere with”.

“In all respects, therefore, I am satisfied that the appeal has no merit and ought to be dismissed.”

Justices Vernanda Ziyambi and Antonia Guvava concurred with Justice Gwaunza’s judgment.