The Supreme Court on Thursday struck off the roll, an appeal by recalled Citizens Coalition for Change (CCC) legislators and senators after they failed to pay their security costs.
In certain jurisdictions during litigation, parties request the court to provide a financial guarantee from the opposing party through the legal concept of security for costs. The usual principle in the realm of costs is that the winning party is entitled to have the losing party pay their legal costs.
The case involving the first batch of over a dozen lawmakers, controversially recalled by Sengezo Tshabangu claiming to be the CCC acting secretary general, was struck off the roll.
Recalled lawmakers seek legal recourse, facing non-joinder challenges and financial barriers in ongoing legal battle.
A three-panel bench comprising of Justices Elizabeth Gwaunza, Antoneta Guvava and Alphius Chitakunye removed the case from the roll before hearing the merits ruling that the aggrieved former lawmakers should first settle US$5000 security costs.
The appeal hearing has flopped for the second time, as it was initially thrown out in December last year for being fatally defective due to the non-joinder of some respondents.
Non-joinder refers to the failure to include a necessary party in a legal action.
The former Members of Parliament (MPs) seek a declaratory, which is a declaration of rights, despite the fact that by-elections have already replaced them in parliament.
“What these MPs are saying is we never ceased to be members of our political party and this person did not have authority to recall us,” said their lawyer Advocate Amanda Sihle Ndlovu.
Ndlovu said they still have a chance to have their case heard however noting that it is difficult for her to state when.
“We still have not yet been heard on the merits. The appeal has not been dismissed, which means that we can still sort out the issue of security costs before coming back to court for an appeal,” she said after the case was adjourned.
In court, the MPs, through their lawyers, insisted that they should use the money they paid when the court struck off their initial application in December for this case since it was not heard.
Tshabangu’s lawyer, Lewis Uriri said this was not practical at law.
“The appeal was struck off the roll. My learned friends submit that the money paid in SC631/23 is good security. We submit differently.
“It cannot be transferred to the present appeal,” he protested.
Ngobani Sithole also representing Tshabangu said, “In terms of the rules of the court, if you file a notice of appeal, you then tender costs and that must be done when you file papers.
“In this case that wasn’t done as such rules of the court were violated and hence the court could not hear the matter.”
