Expelled MPs appeal to Supreme Court

THE three expelled MDC MPs have appealed to the Supreme Court against the decision by the High Court to dismiss their application to review their expulsion from the party and Parliament.

According to the application, which was filed on 27 August, the trio argued that High Court judge, Justice Maphios Cheda who dismissed their application erred in accepting the arguments from their party, the party’s National Disciplinary Committee chairman, Mr Lyson Mlambo, and the Speaker of the House of Assembly Mr Lovemore Moyo who are cited as the first, second and third respondents, that they were no longer members of the party and the House of Assembly.

The former legislators, Mr Abednico Bhebhe (Nkayi South), Mr Njabuliso Mguni (Lupane East), and Mr Norman Mpofu (Bulilima East) as well as Mr Alex Goosen, a member of the national executive council, were expelled from the party last month for misconduct.

“The learned judge erred in law in that he didn’t give sufficient weight to the fact that the expulsion of all the applicants from the party was done pendente-lite. The matter under case number HC 1102/09 had already been filed and was pending when the two major decisions or actions complained of, were taken — the decision to expel the applicants from the party and the notification of the Speaker of Parliament about the said expulsions, which the latter acted upon, constitutes expulsion from Parliament,” they argued through their lawyer, Mr Thamsanqa Khumalo of Khumalo and Partners.

The quartet also said the decision by Mr Mlambo and the MDC to expel them from the party bordered on contempt of the already pending court process.
“It is submitted that it was more desirable for the Respondents to have waited for the outcome of the said court applications before acting in the manner they did and it is submitted that the pending review applications cross-referenced have a reasonable probability of success and Appellants stand to suffer prejudice or harm if no stay of execution were granted,” argued Mr Khumalo.

He also argued that Justice Cheda erred in ruling that their application before him was not urgent yet there was a decision, which had already been made.

“The laws of interdict cover even damage, harm or injury actually suffered. Moreover, the relief sought was merely procedural in that there are pending applications whose results may be of no use if the harm has already occurred, in this case if first, second and third Applicants have been ejected from the House of Assembly. Appellants stand to suffer irreparable harm if the interdict is refused and they turn out to be successful in the main action whereas there will be no prejudice if the Appellants lose as they will be deleted from the register of members of the party and be ejected from Parliament,” submitted Mr Khumalo.

The trio argued that if their expulsions were suspended, elections would be held and it would be impossible for them to get back to Parliament even if the review applications succeeded. They also argued that Justice Cheda erred by ruling that they should have exhausted the domestic remedies first before approaching the High Court.

“The party constitution does not provide for judicial review, which is what Appellants herein really wanted. An appeal is not suitable in the circumstances of this matter as the affidavits show. The prejudice Appellants stand to suffer in the circumstances warrant a review of the proceedings, not appeal. Moreover the party’s constitution specifically provides that expulsion is appealable in courts,” they said.

On 15 August, Justice Cheda dismissed the MPs’ urgent chamber application with costs, as they sought a review of their expulsion from the party, saying they did not exhaust all the domestic remedies as stipulated by their party’s constitution.- The Chronicle