High Court judge Never Katiyo has reserved his judgement in a case in which Sengezo Tshabangu is seeking the disqualification of CCC MPs and senators he recalled from participating in Saturday by-elections.
Tshabangu, who claims to be the party’s interim secretary general, recalled 14 lower house legislators and eight senators in October this year claiming that they had ceased to be CCC members.
The MPs would later lose two appeals filed with the High Court and the Supreme Court.
They however successfully filed their nomination papers for the by-elections under CCC in what triggered the latest challenge by Tshabangu.
When the case was argued Wednesday, Tshabangu’s lawyer Lewis Uriri said the 14 MPs should not contest under the name of a party from which they were recalled.
“They were recalled and as a result, by-elections were called for.
“We submit that ZEC should not have accepted nomination papers of recalled members without confirmation of their restoration to the party,” Uriri argued.
Tshabangu filed his application citing CCC as the first applicant.
In a turn of events, CCC party led by Nelson Chamisa sought to be joined in the proceedings.
Uriri insisted that the CCC which joined the proceedings was bogus.
“There was one CCC before Munamato Mutevedzi (the judge who dismissed the MPs appeal before the High Court); not two.
“An allegation was that Tshabangu was an impostor. That allegation failed. This court found the recall was not false. This court having validated that recall it was not proper for them to file papers under the same party,” Uriri said, adding that the Constitution submitted by CCC was “a fabrication”.
In response, Alec Muchadehama, representing the recalled legislators, argued the High Court had no jurisdiction to hear the case.
“In our papers, we raise a number of preliminary issues and we still stand by them. This court has no jurisdiction to entertain this matter.
“It is an electoral matter which ought to have been filed in the Electoral Court.”
Muchadehama also said Tshabangu’s request has been overtaken by events.
“Ballot papers have already been printed and sent to constituencies in readiness for the election.
“All systems are now in place for the election to be heard. To take submissions already overtaken by events will be pointless,” he said.
Agency Gumbo, representing CCC, complained Tshabangu’s application was being brought through the back door.
“Before this court is a review application disguised as an application for declaration,” he said, adding that the process should have been executed under the Electoral Court.
“This application is being taken in through the back door,” Gumbo said.
“You cannot seek to smuggle a review application where a process for review application has even been provided for.
“I submit that this application must fail. This application is full of misrepresentations and fake lies. A litigant who brings false information to the court to seek protection should be frowned upon.
“The first applicant makes a claim that respondents were sponsored by CCC which has Tshabangu as its interim secretary general which is false,” he said.
The judge interjected stating that the lawyers were contradicting themselves.
“By your own submission, you seem to be recognising Tshabangu as not bogus but a member who belongs to another party also called CCC. If there was no constitution, why then did you call him an impostor?”
The judge also queried why there was only one political party before his colleague Mutevedzi when the recalled MPs challenged their recall.
He said parties were making it difficult for him because there was nothing much to distinguish the two CCCs.
Uriri, in his closing submissions, also said the respondents were seeking to confuse the court.
“They are now disputing this saying its two different parties which go by the same name yet in fact they called Tshabangu an impostor in a case before Mutevedzi and in a case before the Supreme Court.
“They even categorically stated that they had reported him to the police yet now they are making allegations of two political parties,” he said.
In response, Muchadehama said this was the reason why the case was complex for a court which is not an Electoral Court.
“This is why we said this court has no jurisdiction to hear this matter,” he said before judgement was reserved.
