The Supreme Court has struck off the roll appeals by Sengezo Tshabangu and the Speaker of Parliament, who were challenging a High Court ruling blocking the recall of legislators from the Citizens Coalition for Coalition (CCC) faction led by Welshman Ncube.
This follows a realisation that there was no court order on the ruling from the lower court.
A bench comprising Justices Chinembiri Bhunu, Felistas Chatukuta and Lavender Makoni struck the appeals off the roll, ruling that the matter should be heard afresh.
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"Having considered submissions by counsel, the court issues the following order.
"The matter on Sc24/25 and SC 26/25 be and are hereby struck off the roll (appeal by the Speaker of the National Assembly and the appeal by Tshabangu).
"In the exercise of this court's review powers... it is ordered that the proceedings in the High Court be and is hereby set aside.
"The matter is hereby remitted to the court a quo (High Court) for hearing de novo before a different judge," Bhunu.
When court sat on Thursday a lawyer representing CCC, Method Ndlovu challenged the court's jurisdiction, arguing that the case was supposed to be heard by the Supreme Court.
The hearing, however, took a twist after it emerged that there was no written court order from the High Court formalising its ruling.
"Once there is no order, then there is no appeal. You cannot make an appeal on an order which does not exist. The court cannot panel beat a judgement from the court a quo to make it fit the record," said Ndlovu.
Lewis Uriri, representing Tshabangu, agreed that there was no judgment from the High Court.
He then said without that court order the Supreme Court had powers to set aside the judgment of the High Court.
"The prayer that we seek is that the appeal succeeds and the judgment of the High Court is set aside and remitted back to the High Court.
"There is no operative part of the judgement as such we do not have an appeal. So may the court remit back the matter to the High Court de novo with a different judge," he said.
The court ruled in Uriri's favour.
Commenting on the development, Uriri said. "In essence, the High Court wrote an essay."
"Because we have an issue, which is not a speaking judgment, those proceedings have been set aside, and the matter has been returned to the High Court for a fresh hearing before a different judge."
Ndlovu begged to differ, "The two appeals were not properly before the court because they were appealing against an order which did not exist. The Supreme Court stated that the High Court's judgment did not provide a disposition or an operative part. The appeals were struck off the roll, with each party bearing its own costs. The matter was remitted to the High Court to be heard by a different judge. The dispute remains very live. Justice Wamambo had declared the reshuffling of the Committee on Standing Rules and Orders unlawful, and that matter will now be heard afresh. No one won."
Last year, CCC leaders, including the interim party leader, Welshman Ncube and his deputy, Lynette Karenyi Kore, Sesel Zvidzai and Edwin Mushoriwa, filed an application citing their party as the first applicant.
Tshabangu had dismissed the leaders from their parliamentary roles and appointed his selections in their place.
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As a result, they sued Tshabangu and Mlotshwa, seeking a court declaration that Tshabangu's decisions to oust them from the Standing Rules and Orders Committee (SROC) were unlawful and exceeded his constitutional authority.
They also challenged Mlotshwa's appointment as the CCC chief whip, claiming that such a position is not recognised under Section 151 (2) of the Constitution.
They also said the reshuffling of various CCC members across different parliamentary committees to which they were originally assigned.
They sought an order to prevent the Speaker from announcing these changes in the National Assembly.
Their challenge was upheld by High Court judge Justice Neville Wamambo, prompting Tshabangu to approach the Supreme Court.
