Mutevedzi judgment on CCC MPs vs Sengezo Tshabangu a scandal
Justice Munamato Mutevedzi’s judgment on the CCC MPs v Tshabangu reads more like a defence outline rather than a High Court judgment.
A court judgment, let alone a High Court judgment, must be balanced, paying attention to detail and examining all the issues raised from both the applicant and the respondent. It should not be one sided as is the case in this judgment.
Only litigants’ attorneys can write a document in such a manner because they have a duty to highlight their clients’ side or version of story.
The tone of the judgment in the opening paragraphs is harsh, strong and borders on the defensive side if not partisan in this particular case.
The general tone of the judgment is antagonistic towards the applicants. Below is the opening paragraph to the judgement;
“Just like it is difficult if not impossible for a man to impugn the paternity of his brother without directly involving the parents it is naïve for a member of a political party to approach a court seeking to prove that another is a non-member of the same party without the involvement of the political party itself.
“The applicants in the two applications before me all share the mortification of failing to appreciate the elementary notion that they are individuals who are distinct from their political party.
“They cannot conflate the rights acquired through their individual membership in the party with the responsibilities which are reposed in the political party itself. I will later in the judgment, demonstrate the fallacy of believing otherwise.”
Usually judgments start by outlining the case and how it ended up before the courts, however, that is not the case with this judgement. The judgment shows the excitement and zealousness of the Judge to pass and write such a judgement.
There is no reason whatsoever for a reader to continue reading the judgment after such an introduction/preamble/summary, whatever one might call it.
Throughout the judgment you can feel the mood of the Judge and you cannot falter anyone who concludes that the Judge was so happy to pass such a judgment.
Judges reach a verdict not because the verdict excites them, but because they are led by the process of justice which allows them to carry out a series of legal tests that show the steps taken to reach the verdict.
The same applies to the delivery of the judgment, the Judge has to remain professional because he is not on either side of the litigants, he is a Judge between the litigants.
Judge Mutevedzi used phrases and words that appear biased against the applicants. Below are some of the phrases and words that Judge Mutevedzi used in his judgment;
“I pause here to comment on the employment of the above nauseating profanities in an affidavit.”
The above statement by the Judge was referring to the complaints by the applicants regarding the Speaker of Parliament and President of the Senate’s conduct when acting on Tshabangu’s letters while disregarding the letters from the President of the CCC party Advocate Nelson Chamisa.
Who would expect a fair judgment from such a Judge who refers to the submissions put across by the applicants as nauseating (sickening) profanities (dirty words).
The professional approach would have been to caution the applicants on their use of words without the Judge making the same mistake. One cannot be blamed for concluding that these are swear words.
When Judge Mutevedzi came across a similar situation in the past while presiding over a case between Yvonne Musarurwa and Others v Minister of Justice and Others HH 751/22, his comments were professional and below is what he said;
……The language used must remain temperate and respectful. The objective of averments in affidavits is not to gauge which party throws more insults than the other but to simply help the court in the determination of the issues before it.”
The above approach to cautioning the litigants was sober, professional and shows that the Judge was in a balanced state of mind while executing his duties.
Another example was when judge Mutevedzi referred to Advocate Chamisa as the fronted leader of Citizens Coalition for Change;
“The applicants were voted into Parliament on the ticket of a political entity called the Citizens Coalition for Change which uses the moniker CCC and is fronted by Nelson Chamisa.”
The word front can be used in other formal situations, but it can also be taken as derogatory in some instances. Its commonly used in slang language referring to an act of putting on a false facade to impress people, and in this case implying that advocate Chamisa puts on a false facade to impress people.
Judges stand for justice and they took an oath to deliver justice without fear nor favour. The Judge was supposed to apply due diligence to his choice of words so that the nation would not see him as denigrating the applicants, their political party and leader Advocate Chamisa.
The Judge must avoid the use of such words which may leave the readers of his judgment concluding that the Judge is partisan.
The court application was on the legality or authenticity of the recalls by the first respondent who in this case is Sengezo Tshabangu. There is talk from different circles regarding the burden of proof.
While it is true that the burden of proof lays with the alleger, one who alleges must produce evidence but there are situations where the burden can shift to the defendant/respondent. This is especially in matters that have public interest.
Even though the public or society are not listed as litigants, but the judgement in this case will also have a bearing on the interests of the society at large.
The respondent could have been asked to provide evidence that proves his claims in order for the Judge to arrive at a safe conclusion that does not set a bad precedent or create a constitutional crisis by opening floodgates for others to act in a manner that the respondent did.
In this case the judgement has set a precedent that anyone can come from nowhere and recall members of Parliament belonging to a political party while he is not designated or instructed by the party to do so.
MPs are elected into office by the people in the constituency, who are not listed as litigants as highlighted earlier on. Surely for the interest of the constituency, Tshabangu was supposed to be asked to prove his claim in order to arrive at a fair judgment.
The MPs lost the case but the biggest loser was the electorate. It is unfortunate that the matter had to be decided without their involvement.
Surely Judge Mutevedzi needed to have taken the electorate into consideration by making sure that the respondent was not taking the people’s vote for granted by arbitrarily reversing the peoples vote.
It was in the interest of justice and the public for the Judge to have asked himself the question; what if the respondent is not what he claims to be? Such cases are not just between the litigants, but are for national interest.
The Judge dwelt much on section 129 of the constitution and appeared to have satisfied himself that the respondent acted according to the law in writing the letters to Parliament.
The issue at hand was not about the law being followed, but it was about the eligibility and authenticity of him being in that position to write the letters. This was not a matter of procedure but a matter of misrepresentation.
This line was deliberately missed by the Judge. The applicants were before the courts asking for the respondent to prove that his actions were genuine if not fraudulent.
According to section 29 a Member of Parliament can cease to be a member of the august house by voluntary withdrawal or is no longer a member of the political party that sponsored his/her election to Parliament.
None of the two reasons applied to the applicants in this case and it was up to the courts to administer justice to the affected Members of Parliament and their respective constituencies.
In support of his erratic position, the judge went to town (to use his other phrase in reference to the applicants) about why the party CCC was not in court to support its members.
The Judge used the analogy of a parasite and the host in reference to the MPs as party members and the party, compelling the host to be present to defend its parasites.
Surely the parasites’ rights cannot be ignored by the courts because the host did not come to defend them. The MPs approached the court as aggrieved citizens and therefore expected justice rather than to be informed that they had no locus standi (right to approach the court).
The judgment was not only erratic, but it also disarmed MPs as citizens, of their constitutional right to redress in the event that they have been treated unfairly in their area of operation.
It is surprising that Members of Parliament who have been fraudulently recalled are said by the Judge not to have a locus standi. Locus standi defines whether one has a right to approach a court and be heard in a particular matter.
Lack of locus standi means that the MPs had no legal right to approach the courts for their unlawful recall. Instead of Judge Mutevedzi’s analogy of a parasite and its hosts, let me use a simple example of a land lord and a tenant.
If the City Council does not collect refuse and a resident who rents or leases a house in a suburb catches cholera, Judge Mutevedzi is implying that the lodger cannot approach the courts for redress because he is not a house owner.
Again the tenant cannot complain to the City Council about refuse collection in the area because he is not a house owner but lives, pays rent and rates in that suburb.
This kind of reasoning is neither common sense nor legal. It boggles the mind that the learned Judge concluded that the affected persons cannot approach the courts for redress.
The judgment implies that the MPs don’t have the right to be heard before a court of law. This is a scandal and a clear sign of bias let alone incompetence.
Such kind of a judgment may be expected at the kangaroo courts because even the Sabhuku can pass a better and sound judgment than the Mutevedzi judgment.
Alexios P. Makotose was the CCC candidate for Chivi Central in the August 2023 elections