The recalled Citizens Coalition for Change (CCC) members have approached the Supreme Court to overturn a previous High Court decision that denied their request to be reinstated.
On November 4, 2023, the High Court dismissed with costs an application by CCC legislators to be reinstated following their recall by Sengezo Tshabangu, who claimed to be the party’s interim Secretary General.
In his judgment, High Court Justice Munamato Mutevedzi said the CCC members’ application failed to prove that Tshabangu was an imposter, paving the way for the sitting of the Nomination Court on November 7 and the December 9 by-elections respectively.
The CCC members, however, are not giving up their fight and have gone to the Supreme Court to have their recall overturned, even though they also filed their election nomination papers, indicating they will run in the December 9 by-election.
Tshabangu, on his part, also hinted at going to court to challenge the fielding of candidates he recalled.
However in a Notice of Appeal filed by the CCC members dated November 6, 2023, they state:“Take Notice That the Appellants, hereby appeal against the whole, final and definitive judgment of the High Court sitting at Harare (per Mutevedzi J) on the 4th of November 2023 under Judgment number HH601/23 and case number HCH6649/23 wherein the High Court dismissed an application for declaration of rights and consequential relief.”
In this appeal, the 14 recalled MPs cited Tshabangu as the first respondent, Speaker of National Assembly, Jacob Mudenda as the second respondent and the Zimbabwe Electoral Commission (ZEC) as the third respondent.
In their grounds of appeal, the CCC applicants said the High Court erred in law by ruling that Tshabangu’s letters dated 3 and October 2023 “fulfilled the requirements of a valid recall in terms of Section 129 (1)(k) of Zimbabwe’s Constitution.”
The CCC member argued that the High Court erred in failing to find that the onus rested on Tshabangu to prove that they were no longer CCC members when he had initially accepted they were members at the time of the August election.
According to the applicants, the High Court erred in failing to find that, in circumstances where the applicants denied that Tshabangu had authority to recall them on behalf of CCC, and because the basis for his “alleged authority is only known to him,” the onus was on him to produce evidence of his authority.
“The Court a quo grossly erred in fact and in law when it made a finding that the 1st Respondent proved that he had authority to represent and act on behalf of the Citizens Coalition for Change when there was no such evidence before it,” read the appeal.
The CCC members also stated the High Court erred in law by dismissing their case on the basis that the Citizens Coalition for Change had not been joined as a party to the proceedings when “the same Court had made a finding that the non-joinder of the Citizens Coalition for Change was not fatal to the case.”
“The court a quo erred in law and in fact by making a finding that the membership of the Appellants and (Tshabangu) in the Citizens Coalition for Change and any alleged termination thereof could not be proved in the absence of the Citizens Coalition for Change when the evidence before it dictated otherwise,” read the appeal.
“ Having found that the involvement of the Citizens Coalition for Change was central to its determination, the court a quo erred in law by failing to join that party mero-motu given that the law permits it to do so.”
The CCC members seek the following relief:
1. That the Appeal be allowed with costs to be borne by Tshabangu.
2. That the judgment of the court a quo be set aside and the following be substituted in place thereof:
a. The application succeeds with costs on a legal practitioner and own client scale against Tshabangu
b. It be declared that Tshabangu had no right or authority to write letters to the Speaker of the National Assembly, recalling the CCC members from the National Assembly.
c. It be declared that the recall of CCC MPs from the National Assembly by Tshabangu was illegal, null and void and of no force and effect.
d. The applicants be deemed to be still MPs duly elected as such on a CCC Political Party ticket.
e. Tshabangu and all those claiming or acting through him or on his behalf be and are hereby interdicted from interfering with the CCC members duties as MPs
f. Tshabangu be interdicted and restrained from effecting any further recalls.
