HARARE – The Supreme Court has rejected an appeal filed at the apex court by the first batch of CCC legislators ousted October from both the national assembly and the senate on the orders of self-proclaimed interim party secretary general Sengezo Tshabangu.
The opposition lawmakers were appealing against an earlier High Court order declaring their controversial recall was above board.
In its ruling, the Supreme Court ruled the application filed by the legislators was defective after lawyers failed to comply with the rules of the court in filing the papers.
The court did not go into the merits of the case.
Justice Joseph Musekwa, chairing a three-panel bench, struck the appeals off the roll. He declared there was no case before the court.
“It is common cause that the court aquo handed down a unitary judgement.
“Parties before the court aquo were supposed to be the same before this court. As such, the court agrees with Mr (Lewis) Uriri.
“The court is of the view that the notices of appeal are fatally defective. Consequently, there is no appeal before this court,” said Musakwa.
The judge said there were two notices of appeal before the Supreme Court.
One was filed on behalf of the first bunch of 14 MPS who were recalled from parliament by Tshabangu and another by the four senators recalled at the same time.
When the appeals were filed separately, the senators were not cited in the MPs’ appeal while the lower house legislators were not included in the senators’ appeal.
This was despite the fact that the cases were consolidated for the purposes of ruling before the High Court.
The High Court went on to deliver a unitary judgement, but parties filed separate appeals before the Supreme Court.
Representing Tshabangu, Advocate Lewis Uriri prayed for the appeals to be struck off the roll for having incorrectly been filed.
“The matters were consolidated aquo and the effect of that consolidation is that each of the matters lost its individual identity.
“At a case management meeting, all the parties consented to the consolidation of the applicants because the relief sought was similar.
“The effect is that the two matters became one; so, when judgement is rendered, one may not undo the consolidation and appeal as if they are two different matters which is what the appellants have done.
“The notice of appeal even if they are filing separately must relate to all the parties as per judgement,” he said.
In response, Advocate Thabani Mpofu who was representing CCC MPs argued the separation had no effect on the matter before the court.
“The MPs are not seeking relief against the senators. The senators are not obliged to be heard in the case of MPs.
“They have their own appeal and have a right to be heard in their own appeal.
“There is no rule of the court that is offended by the non-joinder of senators,” he argued.
Amanda Ndlovu, who was representing senators, concurred with Mpofu insisting that “the notices of appeal were compliant with the rules of the court and cannot be said to be fatally defective.”
After the ruling was handed down, Ndlovu told journalists outside court that the senators and MPs still have a chance to file another application.
“A technical point was raised with regards to the issue of paperwork. Uriri said because senators were excluded in the MPS appeal; it means it was defective.
“It was an unprecedented point … and the court found that the notices were fatally defective and struck off the roll.
“What that means is to say go and correct that and the appellants still have an opportunity to refile their appeal in a manner which complies with the rules of this court,” she said.
She also said the MPs can still contest in the upcoming by-elections.
Source: ZimLive
