ConCourt Rejects Case Withdrawal

𝘐𝘯 𝘵𝘩𝘦 𝘤𝘢𝘴𝘦 𝘰𝘧 𝘧𝘰𝘳𝘮𝘦𝘳 𝘚𝘰𝘶𝘵𝘩 𝘈𝘧𝘳𝘪𝘤𝘢𝘯 𝘗𝘳𝘦𝘴𝘪𝘥𝘦𝘯𝘵 𝘑𝘢𝘤𝘰𝘣 𝘡𝘶𝘮𝘢, 𝘮𝘶𝘭𝘵𝘪𝘱𝘭𝘦 𝘢𝘵𝘵𝘦𝘮𝘱𝘵𝘴 𝘵𝘰 𝘳𝘦𝘴𝘤𝘪𝘯𝘥 𝘰𝘳 𝘢𝘱𝘱𝘦𝘢𝘭 𝘰𝘳𝘥𝘦𝘳𝘴, 𝘴𝘶𝘤𝘩 𝘢𝘴 𝘪𝘯 2021 𝘳𝘦𝘨𝘢𝘳𝘥𝘪𝘯𝘨 𝘩𝘪𝘴 15 𝘮𝘰𝘯𝘵𝘩𝘴 𝘤𝘰𝘯𝘵𝘦𝘮𝘱𝘵 𝘰𝘧 𝘤𝘰𝘶𝘳𝘵 𝘴𝘦𝘯𝘵𝘦𝘯𝘤𝘦, 𝘸𝘦𝘳𝘦 𝘥𝘪𝘴𝘮𝘪𝘴𝘴𝘦𝘥 𝘣𝘺 𝘵𝘩𝘦 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯𝘢𝘭 𝘊𝘰𝘶𝘳𝘵 𝘳𝘢𝘵𝘩𝘦𝘳 𝘵𝘩𝘢𝘯 𝘴𝘪𝘮𝘱𝘭𝘺 𝘸𝘪𝘵𝘩𝘥𝘳𝘢𝘸𝘯.

THE Zimbabwean Constitutional Court (ConCourt) has swiftly rejected local pressure group Ibhetshu LikaZulu and its secretary-general Mbuso Fuzwayo’s arbitrary withdrawal of their apex court application to stop President Emmerson Mnangagwa’s term extension bid and a battery of contentious constitutional amendments changing the country’s political, electoral and governance systems. A Harare senior constitutional lawyer told The NewsHawks: “I have just checked the 𝐢𝐞𝐜𝐦𝐬 𝐬𝐲𝐬𝐭𝐞𝐦 looking for a different case and then i realised that Case N0. CCZ10/26 (Ibhetshu LikaZulu & Mbuso Fuzwayo vs President Emmerson Mnangagwa, Zanu PF, Ziyambi Ziyambi, Jacob Mudenda & Virginia Mabiza) withdrawal has been rejected. It was rejected on account of the legal costs issue. But ask other lawyers, they will explain to you how the system works.”

A Zimbabwean constitutional lawyer based in Johannesburg, South Africa, explained to The NewsHawks in detail how things work on such cases: “Withdrawing a Constitutional Court case is not always a simple, absolute right, particularly when it involves important constitutional issues and matters of public interest or when significant proceedings have already occurred like in this case because the court had already granted the applicants direct access after a serious consideration of the initial application for permission to file. While an applicant may request to withdraw a case, the court retains discretion to proceed, particularly regarding legal cost implications or to prevent abuse of process, as seen in different various matters, including the Jacob Zuma litigation cases in South Africa.

Once a matter is before ConCourt, the court may deny a withdrawal if it strongly believes a judgment is necessary for legal certainty or if the case has already proceeded too far. So, the important issues at stake here in this case include costs, judicial discretion, procedural rules and abuse of court process.” The lawyer further explained: “Firstly, simply withdrawing does not necessarily escape liability for costs. The court may still order the applicant to pay the legal costs of other parties, as shown in recent rulings regarding Zuma’s applications.

The same applies in this case. “Secondly, the court may continue to hear a case even if the original applicant wishes to withdraw, especially if the matter concerns public interest or serious legal questions. Thirdly, procedural rules. The process requires formal procedures, such as filing a notice of withdrawal, which may require permission of the court or Chief Justice. Fourthly, there is abuse of court process. If a withdrawal is seen as a tactical maneuvre, which it is in this case, the court may impose conditions or reject it. In the case of former president Zuma, multiple attempts to rescind or appeal orders, for instance regarding his contempt of court sentence, were dismissed by the ConCourt rather than simply withdrawn.

Fifthly, put differently, withdrawing a case from the ConCourt is not always ‘at will’ or ‘automatic’, particularly if the case raises important constitutional issues.
While a party can request withdrawal, the court controls its docket and may refuse to stop proceedings if it believes it is in the public interest to decide the matter. In short, while an applicant can ask to withdraw a case, it is not always a simple, guaranteed, or unilateral action in constitutional matters. It’s up to the court to decide.”