Professor Moyo appealed to the Supreme Court his application was thrown out by High Court Judge Justice Bharak Patel in March this year saying it lacked merit and failed to establish any justification to nullify the election.
The full bench comprising Chief Justice Godfrey Chidyausiku, his deputy, Luke Malaba, as well as Justices Wilson Sandura, Vernada Ziyambi and Paddington Garwe heard oral submissions from Professor Moyo’s lawyer Terrence Hussein as well as those from the respondents Clerk of Parliament Austin Zvoma and Speaker Moyo who is cited as the
Chief Justice Chidyausiku said the bench would need time to go through the papers and the submissions made in court and “the therefore the judgement is accordingly reserved”.
Zvoma was represented by Choice Damisa, counsel to Parliament while the Speaker was represented by South African constitutional lawyer Mathew Chaskalson who was being instructed by Chris Mhike of Atherstone and Cook.
Lawyer Hussein told the bench that Justice Patel had erred in finding that a proper election for the speaker of Parliament had been conducted in terms of the constitution.
He said the election should have been held by a secret ballot but the clerk of parliament failed to stop the election after some MPs openly displayed who they had voted for in the election that was contested by the current speaker Moyo and former MP Paul Themba Nyathi in a clear violation of the constitution.
“There was no compliance in terms of the constitution. The misbehaviour by the named MPs tainted the whole election,” argued Hussein.
“The judge erred in finding that the participants’ exposure of their completed ballot papers was not a violation of the secret ballot,” Hussein said.
“He also erred in finding that a secret ballot took place. The judge erred in interpretation section 39 (2) of the constitution as read with ordinance 6 of the house of assembly standing orders as directory and not peremptory (he interpreted the constitution and law as if it
gave him discretion when in fact it does not give him discretion).
Wherefore appellant will pray that the appeal to be allowed on any one or more or all of the grounds of the appeal and that the decision of learned Judge Patel can be set aside.”
However Damisa on belhalf of the Clerk of Parliament said there was nothing wrong done by Zvoma since he had provided an environment that allowed for the holding of an election by secret ballot.
“There were no elections irregularities of high magnitude that can warrant the nullification of the whole process. Trivial deviations should not lead to the setting aside of an election. The said deviations are only a mere irregularity but they do not amount failure of holding a secret ballot as enshrined in the constitution,” said Damisa.
Chaskalson on behalf of the Speaker described Professor Moyo’s actions as opportunism only found individual who would have lost an election.
He said the right to the secret of the ballot lied with the voters themselves and not the presiding officer.
“There is no MP out there who can openly say that my ballot had been compromised by the display by the six members. The role of the presiding officer and in the case the first respondent was to provide an enabling environment for the attainment of the secret ballot. Rights to a secret ballot vest in the individual voter,” said Chaskalson.
He said the four MPs who are challenging the election should have raised their objections with the Clerk of Parliament before seeking the court’s intervention.
“The affected MPs should have used internal remedies to resolve disputes. Jonathan Moyo as an election agent for Paul Themba Nyathi had the greatest opportunity to raise objections if there were any serious irregularities to warrant nullification,” said Chaskalson.
He mentioned the principles of the separation of powers between the two arms of government that is the legislature and the judiciary and therefore the application should not be allowed.