CCC loses High Court application on recalled parliamentarians

CCC lawyer Advocate Amanda Sihle Ndlovu, addressing the media following the court session of recalled CCC MPs and Senators.
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CITIZENS Coalition for Change (CCC) has lost 14 parliamentary and nine senate seats after the High Court threw out an application by affected members who were seeking to be reinstated.

The lawmakers and senators were controversially recalled by Sengezo Tshabangu who claims to be the party’s interim Secretary General.

The matter was heard by Justice Munamato Mutevedzi who had reserved his judgement on Thursday.

In their court application, the recalled lawmakers and senators through their lawyers Amanda Ndlovu, Jabulani Ndlovu and Alec Muchadehama argued that Tshabangu was not a CCC member and therefore lacked legal authority to act on behalf of the party.

On the other hand, Tshabangu through his lawyer Advocate Lewis Uriri argued that the party was happy with the recall hence was not part of the proceedings.

The judge concurred with Tshabungu noting that the applicants’ case had a weak foundation.

“Just like it is difficult if not impossible for a man to impugn the paternity of his brother without directly involving the parents it is naïve for a member of a political party to approach a court seeking to prove that another is a non-member of the same party without the involvement of the political party itself,” noted the judge.

“A closer reading of s 129(1) (k) would show that nowhere in it is the Member of Parliament accorded any active role.

“The power of recall from Parliament created by s 129(1) (k) of the Constitution is reposed in the political party to which the Member of Parliament belonged at the time of the election.

“It is that concerned party which recalls a Member. By parity of reasoning the Member cannot contest his/her recall against any other person without joining the concerned political party,” he said.

He added, “Put in another way, the parasite and host relationship described above is not removed by the allegation that there is an intruder or an insurgent who has come between the concerned political party and the Member and has arrogated himself the political party’s entitlement. ”

Mutevedzi said the political party cannot abdicate the responsibility to approach the courts, broach the subject and seek redress in terms of s 129(1) (k) to reclaim its right.

He said where the concerned political party does not agree with the recall, it is as of necessity, required to contest the lawfulness or otherwise of a recall in court.

“A recalled Member of Parliament cannot come to court alone, drag in a third party, and choose to ignore his/her political party.”

The judge said that given all this what stands out is that Tshabangu’s letters to the presiding officers of Parliament satisfied all the requirements under s 129(1) (k) of the Constitution. In addition, he attached annexures ‘ST2’, a document addressed to the third respondent which showed that he was designated by the CCC as its officer.

“There is nothing to rebut that other than the belated and discredited letters of Nelson Chamisa.

“He went out of his way to prove what he ordinarily was not required to prove.

“The applicants failed to produce their party constitution or any document which showed that the first respondent could possibly not have held the position he claimed he held.

“It was simply their word that he wasn’t. That is not enough.

“Contrary to counsel’s allegation that Tshabangu conceded that he was not a member of the CCC party, his opposing affidavit has claims in innumerable paragraphs saying he is a bona fide member and official of that party with authority to write correspondences of recalls like he did.

“The onus to prove entitlement to the declaratory orders sought was on the applicants.

“They did not even begin to discharge it. They have not established their case on a balance of probabilities as required by law and are therefore not entitled to the declaratur which they seek.

“The other relief was consequential upon the grant of the declaratur. It should also fail,” he ruled.

CCC spokesperson Promise Mkwananzi said they are still studying the judgment before they come up with a way forward.