THE High Court has dismissed with costs an application by Registrar-General Tobaiwa Mudede for the court to rescind a ruling compelling him to move to Harare electoral mat
erial from the 2002 presidential poll.
High Court Judge Moses Chinhengo said last week that Mudede had a statutory obligation to move the papers from the constituencies.
“Here the issue is simply one where the applicant is required to perform a function required of him by statute and in the normal course of his duties.
The facts are quite distinguishable,” Justice Chinhengo said.
Opposition Movement for Democratic Change leader Morgan Tsvangirai last October obtained an order in default after Mudede failed to file the requisite opposing papers on time. Mudede subsequently filed the application asking the court to rescind the ruling. He argued in his application that the delay in filing the requisite papers was caused by a mix-up by lawyers at the Attorney General’s Office.
The electoral material is key evidence in Tsvangirai’s petition challenging Mugabe’s re-election as president last year. Section 78 of the Electoral Act compels constituency registrars to seal packets containing electoral material and transmit them to the Registrar-General.
Justice Chinhengo said Mudede had failed to comply with an earlier High Court ruling last year regarding the handling of the electoral material, which compromised the bona fides of his application for rescission.
“The failure to comply with the interim order indicates an initial unwillingness (to comply) with the terms of the provisional order. I do not think that I need to say more about the application’s bona fides,” said Justice Chinhengo.
He criticised Mudede’s lawyer, Caroline Mudenda of the Civil Division of the AG’s Office, for failing in her duties to ensure that the papers were filed on time.
“The failure by anybody to clearly explain what clearly happened to the affidavits once they were delivered to the Civil Division indicates unconcern or insouciance which the court cannot condone or approve of,” the judge said.
“The subsequent failure by the applicant’s legal practitioner to prosecute this matter diligently is further evidence of the ineptitude with which she conducted this case,” he said. “I accordingly regard the information given as vague, intended to delay matters and quite insufficient.”