A default judgement was granted in Bekezela Maplanka’s favour by Justice David Mangota after Phuti did not oppose the application.
Maplanka, the CCC candidate in the general elections, had challenged Phuti’s victory at the High Court, arguing that “voter intimidation, rigging and vote buying… produced an undue return” in the election leading to the announcement of Phuti as the winner.
The court ordered the Zimbabwe Electoral Commission (ZEC) to prepare a by-election.
Phuti’s legal representative Nqobizitha Ndlovu of Cheda and Partners told ZimLive that they were seeking a rescission of the default judgement, and condonation for their late filing of Phuti’s opposing papers.
According to Veritas, an application for rescission of judgment is made to rescind (reverse) the decision of the court on the basis that the other party defaulted court proceedings or failed to attend court, or where a party fails to enter appearance to defend, resulting in a judgment being entered in default.
Ndlovu argues that his client was not properly served with the petition as is provided for in the Electoral Act. He said:
Honourable Phuti was not served with the election petition. The papers were not served by the sheriff.
They were served by a person who purports to be a clerk from the other party’s lawyers.
The certificate of service is dubious as it says that the petition was served at a primary school but in terms of the Electoral Act, an electoral petition has to be served personally or at the place of residence or business of the person who is being petitioned.
In this case, really, it is common cause that honourable Phuti does not reside at a primary school. He has his own home.
Ndlovu said the application for rescission “has got good prospects of success”.
A date for hearing of Phuti’s application is expected to be given early this week.
Phuti polled 7 185 votes beating Maplanka into second with 6 660 votes. ZAPU’s Artwell Ndlovu polled 933 votes while Aleck Moyo of MRP had 509.
Combined, the opposition candidates received 8 102 votes, which is more than the votes garnered by Phuti.
Meanwhile, Maplanka’s lawyer Khulekani Sibanda told ZimLive that they did not know why Phuti did not oppose the application, but added: He was properly served with the papers.