CCC recall challenge thrown out by High Court

2023 Elections Courts Politics

The Harare High Court has dismissed with costs an application by Citizens Coalition for Change (CCC) Members of Parliament and Senate to be reinstated following their recall by Sengezo Tshabangu, who claimed to be the party’s Secretary General.


In a judgment delivered on Saturday, Justice Munamato Mutevedzi said the CCC members’ application was “full of infantile insults” and failed to prove that Tshabangu was an imposter.


This ruling paves the way for the sitting of the Nomination Court on November 7 and the December 9 by-elections respectively.


14 CCC MPs and nine senators had filed two urgent applications separately at the High Court seeking the same relief.


The first one was filed on October 12, 2023, under case number HCH 6684/23 while the second application was filed on October 16, 2023.


At a case management meeting held on October 17, 2023 all the parties to both applications consented to the consolidation of the two applications for them to be argued as one.

In his judgement, Justice Mutevedzi said what stood out in the case was Tshabangu’s letters to the presiding officers of Parliament satisfied all the requirements under Section 129(1) (k) of the Constitution.


The judge said Tshabangu also attached annexures ‘ST2’, a document addressed to the Zimbabwe Electoral Commission (ZEC), 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. (Tshabangu) went out of his way to prove what he ordinarily was not required to prove,” said Justice Mutevedzi.


“The applicants failed to produce their party constitution or any document which showed that (Tshabangu) could possibly not have held the position he claimed he held. It was simply their word that he wasn’t. That is not enough.”


Justice Mutevedzi said Tshabangu had in “innumerable paragraphs” stated 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 (CCC 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,” said Justice Mutevedzi.


In describing the parties conduct, Justice Mutevedzi said the court application by the CCC members were “unfortunately teemed with resentment and rage.”

“In my paraphrase, it was that in a nasty turn of fortunes on 3 October 2023, hardly a month after their momentous swearing in, the (Tshabangu) authored letters to the presiding officers. In that communication he alleged that the applicants had ‘seized’ to be members of the CCC political party. Although (Tshabangu) appeared to have followed up his letter with an erratum which indicated that by seized he meant ceased, the (CCC applicants) latched on to that error to allege that the first respondent’s letter was meaningless because to seize means to take hold of something suddenly and violently.”


The judge noted that as a result of the use or misuse of the two English words, the CCC applicants alleged the letters must have been authored by an “illiterate or semi-illiterate person yet both the presiding officers appeared to have scandalously acted on those letters.” “Displeased by that display of ‘injustice’ the applicants resorted to the use of expletives. They alleged that the presiding officers had failed to properly apply their minds and acted unashamedly, irrationally, capriciously, whimsically and in a biased manner to give effect to the letters,” said Justice Mutevedzi who noted that the CCC applicants claimed the Speakers “conspired with and were actually undertaking a hatchet job for Zanu PF to manufacture ‘goons and spooks’ like (Tshabangu).”


Justice Mutevedzi added: “I pause here to comment on the employment of the above nauseating profanities in an affidavit. An applicant who displays such ridiculously puerile disrespect to respondents whom he/she has dragged to court does himself a complete disservice by clouding his/her argument in revulsive insults.”


The judge said an affidavit which is full of “infantile insults” may easily lose its essence and detract the applicant from properly putting across their case.


“In addition, my view is that it is inappropriate for a litigant to denigrate a person or institution which he/she has deliberately neglected to cite in court papers with the full knowledge that whatever aspersions he/she casts on that person/institution, he/she/it will not have the opportunity to answer back,” said Justice Mutevedzi.


“The applicants’ attack on Zanu PF appears completely off-side. In reality, it smacks of cowardice and uncalled-for grandstanding. Allegations can only be made against a party who is before the court. In legal parlance, an allegation refers to a claim of fact not yet proven to be true. It is not synonymous with an insult.”