Charlton Hwende and Others v The Speaker of the National Assembly and Others; Lilian Timveos v The President of the Senate and Others

The applicants were Members of Parliament who were elected on the MDC-T ticket under the MDC Alliance electoral pact in 2018. On 3 April 2020, the MDC-T, through its Secretary General Douglas Togarasei Mwonzora, issued a declaration to Parliament stating that the applicants had ceased to be members of the MDC-T. This declaration was made in terms of section 129(1)(k) of the Constitution of Zimbabwe. The Speaker of the National Assembly and President of the Senate, upon receiving this declaration, announced that the applicants' seats had become vacant. The applicants argued that the declaration was unlawful because they were members of the MDC Alliance, not the MDC-T, and that the Speaker and President of Senate acted unlawfully by accepting the declaration without affording them a hearing. They sought orders setting aside their expulsion and the declaration made by the MDC-T.

• Whether the High Court had jurisdiction to hear the matter or whether it fell within the exclusive jurisdiction of the Constitutional Court
• Whether the Speaker of the National Assembly and President of the Senate were required to conduct a quasi-judicial inquiry before acting on a declaration under section 129(1)(k) of the Constitution
• Whether the applicants had properly framed their application as one for declaratory relief or whether it should have been brought as a review application
• Whether the MDC-T had authority to declare that the applicants had ceased to be members when the applicants contended they were members of the MDC Alliance
• Whether the omission to cite the MDC Alliance as a party was fatal to the application

The applications were dismissed with costs

The binding legal principles established are: (1) Under section 129(1)(k) of the Constitution of Zimbabwe, the Speaker of the National Assembly and President of the Senate have a facilitative, not judicial, role - they are not required to conduct any inquiry or afford a hearing before acting on a declaration from a political party that a member has ceased to belong to it; (2) A vacancy in a parliamentary seat is created by operation of law upon receipt of a proper declaration, not by any act of the Speaker or President of Senate; (3) The High Court has concurrent jurisdiction with the Constitutional Court over constitutional matters except those within the exclusive jurisdiction of the Constitutional Court under section 175(1) of the Constitution; (4) A challenge to a political party's internal decision to issue a declaration under section 129(1)(k) must be brought as a review application targeting the party's internal processes, not as an application for declaratory relief against parliamentary officials; (5) The origin of a section 129(1)(k) vacancy lies in the relationship between the political party and its member, not in any action by Parliament.

The court observed that the application was improperly conceived and there was an inconsistency between the description of the application as one for declaratory relief and paragraph 2 of the draft order which sought to set aside the declaration. The court noted that costs would ordinarily follow the result but declined to award costs on an attorney-client scale because the case was of national importance. The court also noted the concession properly made by Mr Biti regarding the lack of cause of action against Parliament, the Speaker, and President of Senate, observing that this disposed of paragraph 1 of the draft order and that paragraph 1 was not properly cast as it was merely consequential to paragraph 2.

This case reinforces the principles established in Madzimure regarding the operation of section 129(1)(k) of the Zimbabwean Constitution concerning the vacation of parliamentary seats. It clarifies that the Speaker of the National Assembly and President of the Senate play a purely facilitative, administrative role when receiving declarations from political parties about ceased membership - they have no quasi-judicial function and are not required to conduct hearings. The case also clarifies jurisdictional issues between the High Court and Constitutional Court under the Zimbabwean constitutional framework, confirming concurrent jurisdiction except in matters of exclusive Constitutional Court competence. Importantly, it emphasizes the procedural requirement that challenges to political party internal decisions (such as declarations of ceased membership) must be brought through proper review proceedings targeting the party's internal processes, not through declaratory relief applications against parliamentary officials.