Monday, 2 November 2020

WHY MDC A APPEAL WAS STRUCK OFF

The MDC-Alliance appeal challenging a High Court decision that the party does not legally exist as a legal person who can sue or be sued in court, was struck off the roll after the organisation’s lawyers failed to turn up to argue the matter at the Supreme Court yesterday.

The party was challenging the whole judgment handed down by Justice Tawanda Chitapi in May this year, who also ruled that in the dispute of the MDC-T recall of legislators; the party did not have the legal footing to sue, suggesting that the affected recalled MPs would have to individually take their cases to court.

Yesterday, the Supreme Court convened to hear the appeal, but MDC-A lawyers did not show up, prompting Professor Lovemore Madhuku, acting for MDC-T, to plead with the court to stand down the matter in case the lawyers were delayed.

The court agreed and adjourned for 20 minutes, but still the lawyers did not show up. MDC-A spokesperson Fadzayi Mahere, who was present when the matter adjourned, tried to contact the lawyers to no avail. The hearing proceeded in the absence of the MDC-A lawyers and in the end, the judges decided to strike the matter off the roll after Prof Madhuku raised a preliminary point that the appeal was defective and incurable at law.

When an appeal is struck off the roll, legally it means there is no appeal before the court, but the appellant is allowed to appeal out of time.

In this case, if the MDC-A wishes to appeal it must first seek condonation and an extension of time within which to appeal. But they need to explain why they did not appeal, why they filed a defective appeal and why they did not appear before the court.

This will be determined by a judge sitting in chambers. In an interview after the hearing, Prof Madhuku said they initially thought they could apply for the matter to be struck off the roll, but the court advised against that because the rules did not allow.

“If you are not present when you are the appellant, the matter is determined on merits,” he said. “You actually proceed with the appeal and the court can simply dismiss it without even hearing it.

“In this case, the court decided that they would want to hear the matter on the merits.” Prof Madhuku said in this particular case, he raised a preliminary point that the MDC-A appeal was defective, which point was accepted by the court.

“The papers that were before the court did not qualify as a notice of appeal in the number of respects that we mentioned, particularly they were failing to understand what Justice Chitapi had ordered,” said Prof Madhuku, a Constitutional law expert.

“What they (MDC-A) were asking the Supreme Court to put in place of Justice Chitapi’s order was not competent at law.” MDC-A lead counsel in the appeal Mr Alec Muchadehama could not be reached for comment.

In his judgment in the lower court, Justice Chitapi threw out the MDC-A application, finding that the only evidence brought before the court showed that the MDC-A was an alliance of other political parties, although it had been given the status of a political party under the Electoral Act.

However, participating in elections did not make MDC-A a legal person, in the absence of other requirements such as a decision to be a legally incorporated voluntary organisation or another type of body corporate. Herald

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