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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