Chamisa on Tshabangu’s relationship with CCC

CHAMISA ADMITS IN AN AFFIDAVIT IN COURT THAT TSHABANGU IS CCC’S INTERIM SECRETARY GENERAL WITH AUTHORITY TO ACT FOR CCC

In a major development since Sengezo Tshabangu was first dragged to court by CCC MPs and Councillors whom he recalled as ‘CCC’s interim secretary general’, under the claim that he was an imposter, and not the interim CCC secretary general with the authority to recall them, on Monday Nelson Chamisa finally filed his first ever affidavit – in the CCC matters that have been raging in the courts since October 2023 – at the Bulawayo High Court; responding to Tshabangu in which he made a dramatic U-turn by not disputing Tshabangu’s status as interim CCC secretary general with the authority and power to act for CCC.

This is a dramatic U-turn because, prior to this affidavit, Chamisa had publicly and repeatedly said that he does not know Tshabangu, whom he has called an imposter with no authority or power to act for CCC.

Below is Chamisa’s complete affidavit that makes astonishing submissions that effectively end all pending CCC cases challenging Tshabangu’s position and his authority in CCC, interspersed with Thabangu’s complete founding affidavit to which Chamisa’s affidavit responds:

Chamisa’s Paras 1 to 4:
I,
the undersigned
NELSON CHAMISA
do hereby take oath and swear to state that;

1. I am the Respondent in this matter. The facts I depose to herein are to the best of my knowledge, information, and belief true and correct. Where I do not have personal knowledge of certain facts, I have made efforts to verify the same. Where I make averments as to legal propositions I do so on the advice of my lawyers believing the same to be sound at law.
2. I have read and understood the founding affidavit of Sengezo Tshabangu. I wish to state at the outset that I am an unwilling participant in this litigation. I have now been forced to put forward my defence because relief, including an order of costs, is sought personally against me. I absolutely have nothing to with this matter and none of my conduct is in issue.
3. To the founding affidavit I respond, where necessary, as follows:

Ad Para 1 – 4

4. No issues save to state that the Respondent’s address for service is as appears on the face of the Notice of Opposition.”

Tshabangu’s Founding Affidavit Paras 1 to 4 to which Chamisa is responding, above
“1. The Applicant, a political party, has been in peaceful and undisturbed control, occupation and possession of its offices situated at Stand 41 Fort Street, Between 2nd & 3rd Avenue in Bulawayo.

2. On or around the 30th of January 2024, the Respondent through his agents, assignees, proxies and/or employees forcibly took control, occupation and possession of the Applicant’s premises and proceeded to paint the whole offices and precast wall. The Applicant’s offices were, before the unlawful conduct, painted in yellow and black, and Respondent through his agents, assignees, proxies and/or employees after forcibly took control and possession of the Applicant’s offices situated at Stand 41 Fort Street, between 2nd & 3rd Avenue in Bulawayo, painted them in blue and black with the Respondent’s portrait or picture.
3. The Applicant is using the premises as its Bulawayo Provincial offices wherein all provincial party documents are kept, party meetings, activities, programmes are conducted and the Respondent’s conduct through his agents, assignees, proxies and/or employees of forcibly taking control and possession of the Applicant’s premises and painting the whole offices and precast hall is unlawful, prejudicial to the Applicant and amounts to an act of spoliation.

4.Applicant accordingly, seeks an urgent relief restoring possession, control and occupation of its premises, and ordering Respondent through his agents, assignees, proxies and/or employees to immediately vacate, and forth cease interference with Applicant’s control, occupation and possession of the Applicant’s premises and/or painting and or conducting or effecting any structural developments or improvements at the Applicant’s premises situated at Stand 41 Fort Street, Between 2nd & 3rd Avenue in Bulawayo.”

Chamisa’s Opposing Affidavit Paras 4.1 to 4.4: Ad Para 5 – 9.5
“4.1. I deny all the allegations of fact and conclusions of law made in this application in their entirety. I did not despoil any person of any premises or offices anywhere in Zimbabwe and I have certainly not done so in Bulawayo. I have set of offices which are located in Harare. I am presently not with any movement, grouping political party. I did not direct, require, or encourage anyone to take over the premises which are referred to by the deponent to the founding affidavit as attributed to me. I resigned as the leader of the Applicant and since that resignation I have not physically been to Bulawayo. I completely have nothing to do with the Applicant.

4.2 If there is anyone in occupation the deponent to the founding affidavit knows who they are and that its not me. The Applicant must sue those people, if ever they exist, and instead of harassing me.

4.3 I submit that this application is a revolting abuse of Court process to grandstand and seek relevance by the deponent to the founding affidavit through dragging my name into this charade. The claims that I have despoiled the Applicant because some premises which I have no connection to have been painted blue and my face has been painted on the wall of the premises is completely bizarre. My image and name have been appropriated by many people who have no connection to me. In fact, the irony of the application is that since I resigned as the leader of the Citizens Coalition for Change, the Applicant and the deponent to the founding affidavit have continued to use my face on their preferred logo. I wish to reiterate that I have no special association with any colour, any political organisation or any movement.

4.4 The present application is a nuisance and a frivolity in the highest degree which seeks to drag the Court into the deponent’s tired and base political schemes. It is an egregious violation which has been concocted by the deponent to the founding affidavit and other similar minded persons. I believe that for this reason, the deponent to the founding affidavit must be made to pay my costs of suit de bonis propriis on the scale of legal practitioner and client.

WHEREFORE, I pray that the application be dismissed with my costs of suit being paid on the scale of legal practitioner and client by Sengezo Tshabangu.

SWORN TO AND DATED AT HARARE THIS THIS 28TH DAYOF FEBRUARY 2024

Signed: –
NELSON CHAMISA

Before Me: –

COMMISSIONER OF OATHS
ADVOCATE THABANI MPOFU
THE CHAMBERS, HARARE
NOTARY PUBLIC & COMMISSIONER OF OATHS”

Tshabangu’s Paras 5 to 10 to which Chamisa is responding, above
“5. Applicant further seeks an order that in the event of the Respondent through his agents, assignees, proxies and/or employees failing and/or refusing to restore Applicant’s possession, control and occupation of its premises, the Sheriff of the High Court of Zimbabwe or his Lawful Deputy or Assistant be ordered, authorised, empowered and directed to evict the Respondent, his assignees, agents, proxies, employees and all those claiming occupation, control and possession through him from Applicant’s premises situated at Stand 41 Fort Street, Between 2nd & 3rd Avenue in Bulawayo, and restore Applicant to possession, control and possession of its premises situated at Stand 41 Fort Street, Between 2nd & 3rd Avenue in Bulawayo.

6. The facts and issues giving rise to this urgent chamber application are as follows:-

6.1. The Applicant is a common law universitas and a political party recognised and operating in terms of the laws of Zimbabwe. It has its Bulawayo provincial offices situated at Number 41 Fort Street, Between 2nd & 3rd Avenue in Bulawayo. The offices were painted in the Applicant’s corporate colours, that is, yellow and black. I attach hereto and mark as “ST2” some photographs showing the colour of the office and its corporate colours.

6.2. At all material times the Applicant has thus been in peaceful and undisturbed possession, occupation and control of its Bulawayo provincial offices situated at Number 41 Fort Street, Between 2nd & 3rd Avenue in Bulawayo. Applicant’s important party documents are kept in that office, it conducts its meetings, activities and programmes of the party from that office. The offices are thus the epicentre in as far as the administration and management of its meetings, activities and programmes for Bulawayo province is concerned.

6.3 The Respondent has been the President of the Applicant up until the 24th of January 2024 when the Respondent authored a much publicised statement resigning from the Applicant. The Statement authored by the Respondent resigning from the Applicant is attached hereto marked:

“ST3”. I saw the Statement, the following day, the 25th of January 2024 through the social media, and I subsequently confirmed this position after seeing the Respondent on various media platforms being interviewed.

6.4. I must hasten to state that following the Respondent’s resignation as the head of the political party, the expectation and in terms of the principles of good governance they ought to be a smooth hand-over takeover process. The engagement and the modalities of such a process were still being undertaken with the Respondent following his resignation. I must state that I had travelled to Harare on Sunday, the 28th of January 2023.

6.5. The purpose of my journey was to attend to various legal matters involving the Applicant and myself that had been set down at the Harare High Court including case numbers HCH197/24, HCH654/24 and HCH147/24 during the week beginning on the 29th of January 2024. I was also scheduled to meet with the Respondent on either the 29th or 30th of January 2024 following his resignation from the Applicant. Part of the agenda of my meeting with the Respondent was to discuss the consequences of his resignation, and the need for a hand over take-over of all the party assets, documents and any other relevant issues regarding the party. Unfortunate we could not meet with the Respondent on the 29th or 30th of January 2024 due to pressing commitments on both of us.

6.6. To my surprise, on the 30th of January 2024, around 11:30 am I saw a tweet in CITE X Handle reporting that Applicant’s Bulawayo provincial offices situated at Number 41 Fort Street, Between 2nd & 3rd Avenue in Bulawayo were being repainted with colour blue. I attach hereto and mark as “ST4” a copy of the print out of the tweet. Thereafter several online publications reported about the repainting of the offices. Attached hereto marked “ST5” are print out of online publications reporting on the forcibly take-over of the offices and its painting. This was significant because following Respondent’s resignation from Applicant, they were undertones of him intending to launch a new political party with the colour blue. I immediately made a phone a call to Applicant’s Bulawayo provincial leadership and sought clarity on the issue.

6.7 They indeed confirmed that a group of unknown people of about 25 to 30 people comprising of both male and females had besieged Applicant’s Bulawayo provincial offices situated at Number 41 Fort Street, Between 2nd & 3rd Avenue in Bulawayo claiming to have been sent by and furthering the interests of the Respondent, forcibly took occupation, control and possession of the Applicant’s offices situated at Number 41 Fort Street, Between 2nd & 3rd Avenue in Bulawayo.

6.8 The Applicant’s offices were painted in their yellow and black corporate colours. The unknown people who made it clear that they were sent by the Respondent, after forcibly taking control, possession and occupation of the Applicant’s offices, then painted the Applicant’s offices and precast wall blue and black. and inscribed or inserted the Respondent’s nortrait

6.9. It then became clear to me that the Respondent had resorted to self- help and his conduct through his agents, assignees, proxies and/or employees was an act of spoliation. Applicant then resolved to seek legal advice. On the 31st of January 2024, I and Applicant had two court hearings, one under HCH147/24 and the other under HCH654/24 before Justice Kwenda in Harare. I attended both hearings, and after the hearings I then consulted with Applicant’s legal practitioners. It is then that Applicant was advised to approach this Honourable Court on an urgent basis for a spoliation order. Unfortunately, the matter under HCH654/24, before Kwenda J, which was an urgent court application was then rolled over to the following day, the 1st of February 2024 to allow the parties to file the necessary papers. Judgment was then to be delivered on the 2nd of February 2024 around 17:00 hours. I attach and mark as “ST7” a copy of the court order under HCH654/24 for easy reference by this Honourable Court.

6.10. It is then that following the consultations of the 31st of January 2024, and after the finalisation of case number HCH654/24 on the 2nd of February 2024 that Applicant then gave instructions to its legal practitioners to start drafting this urgent chamber application.

6.11. On the 3rd of February 2024, I then travelled to Bulawayo from Harare. On arrival in Bulawayo I immediately proceeded to the offices. Indeed I found that the offices had been painted in blue and black colour as already described above. On seeking to enter the offices, I was denied entry and access by a group of young people who told me they were acting for and in the interests of the Respondent. Despite advising them that the Respondent had resigned from being a member of the Applicant, they denied me entry and access to the office, and at times issuing threats of violence against me and shouting obscenities.

6.12. I realised that the Applicant had been despoiled. I then instructed Applicant’s legal practitioners to speedily finalise and file this urgent chamber application. I accordingly aver that the Applicant has treated this matter with urgency in the circumstances

7. I must reiterate that prior to the Respondent through his agents, assignees, proxies and/or employees’ unlawful actions of forcibly taking control, occupation and possession of the Applicant’s premises and painting the whole offices and precast wall the Applicant was in peaceful and undisturbed control, possession and occupation of its premises situated at Number 41 Fort Street, Between 2nd & 3rd Avenue in Bulawayo.
8. The Respondent through his agents, assignees, proxies and/or employees’ literally taken the law into his hands, taken over and invaded Applicant’s premises situated at Number 41 Fort Street, Between 2nd & 3rd Avenue in Bulawayo. The premises are used as Applicant’s Bulawayo provincial offices were Applicant’s important documents are kept, party activities, meetings and programmes are conducted. Applicant cannot access the premises anymore as the Respondent through his agents, assignees, proxies and/or employees are in unlawful occupation, control an d possession of the same. Applicant’s operations had been brought to an abrupt stand still. The irreparable harm is apparent and continuing as a result of the Respondent through his agents, assignees, proxies and/or employees’
9. Applicant is therefore approaching this court on an urgent basis for an order seeking restoration of its peaceful and undisturbed control, possession and occupation of to its premises and to order Respondent through his agents, assignees, proxies and/or employees to immediately vacate, and cease interference with Applicant’s control, occupation and possession of the Applicant’s premises and/or painting and or conducting or effecting any structural developments or improvements at the Applicant’s premises situated at Number 41 Fort Street, Between 2nd & 3rd Avenue in Bulawayo.on the basis that:-.

9.1 The Applicant is a political party and a universitas, which has been in peaceful and undisturbed control, occupation and possession of its offices situated at Number 41 Fort Street, Between 2nd & 3rd Avenue in Bulawayo.

9.2 The Respondent through his agents, assignees, proxies and/or employees has forcibly taken control, occupation and possession of the Applicant’s premises and proceeded to paint the whole offices and precast wall without the Applicant’s consent and permission.

9.3. The Applicant is using the premises as its Bulawayo Provincial offices wherein all provincial party documents are kept, party meetings, activities, programmes are conducted and the Respondent’s conduct through his agents, assignees, proxies and/or employees of forcibly taking control, occupation and possession of the Applicant’s premises and painting the whole offices and precast wall is unlawful, prejudicial to the Applicant and amounts to an act of spoliation.

9.4. There is thus no appropriate and effective remedy to restore Applicant to its premises and interdict Respondent through his agents, assignees, proxies and/or employees to immediately vacate, and cease interference with Applicant’s control, occupation and possession of the Applicant’s premises and/or painting and or conducting or effecting any structural developments or improvements at the Applicant’s premises situated at Number 41 Fort Street, Between 2nd & 3rd Avenue in Bulawayo.

9.5. The balance of equities favours the granting of a spoliation order in favour of the Applicant. The Respondent will not suffer any prejudice or inconvenience if the Applicant is restored its peaceful and undisturbed possession and occupation of its premises and the Respondent through his agents, assignees, proxies and/or employees is ordered to immediately vacate, and cease interference with Applicant’s control, occupation and possession of the Applicant’s premises and/or painting and or conducting or effecting any structural developments or improvements situated at Number 41 Fort Street, Between 2nd & 3rd Avenue in Bulawayo.

10. In the premises, Applicant avers that it has made a good case for the relief sought and accordingly prays for an order in terms of the draft order attached.

SWORN TO AT BULAWAYO THIS DAY OF FEBRUARY 2024.

BY ME:
SENGEZO TSHABANGU

BEFORE ME:
COMMISSIONER OF OATHS
MARIYEYI MPALA”

COMMENT
It will be recalled that in the case before the High Court in Bulawayo, CCC and Tshabangu sued Chamisa directly for spoliation.

Tshabangu alleged in his founding affidavit that he is the interim secretary general. In the opposing affidavit Chamisa astonishingly says this is not in issue.

Further, Chamisa confirms resigning from the CCC, notably, without qualifying that he resigned from a CCC which does not know Tshabangu. This is very significant because it vindicates Justice Kwenda’s ruling that, based on the facts before the courts, there is in fact only one CCC which is under the grip of factionalism.

Crucially, in his opposing affidavit, Chamisa says the averment by Tshabangu, as shown above on paragraph 1 of his founding affidavit in his application for spoliation, that he’s interim secretary general of Triple C is not in issue. In other words, Chamisa admits or concedes that Tshabangu is indeed the interim secretary general of CCC.

Furthermore, it is notable that Tshabangu states in his founding affidavit to which Chamisa’s opposing affidavit responds, that he is authorised to depose to the founding affidavit by virtue of a resolution that he attaches.

And then, tellingly, Chamisa does not dispute this; he responds by saying under oath in respect of paragraphs 1 to 4 of Tshabangu’s founding affidavit that “these are not in issue”. In other words, Chamisa does not challenge anything said by Tshabangu under paragraphs, 1, 2, 3 and 4 of his founding affidavit.

This is big.

Chamisa had both an opportunity and a duty to speak and set the record straight under oath. And, oh boy, did he not speak.

Instead of using the opportunity to put on record his widely known version that he does not know Tshabangu who he has said does not belong to CCC, Chamisa does not deny that Tshabangu is a Triple CCC officer. He does not deny a Tshabangu’s authority.

Instead Chamisa says:

“I resigned as the leader of the Applicant (CCC to which Tshabangu is interim secretary general) and since that resignation I have not physically been to Bulawayo. I completely have nothing to do with the Applicant.”

Now, and this is very important, the applicant that Chamisa is referring to is CCC to which Tshabangu is the interim secretary general, a position that Chamisa does not deny in his affidavit and as such is by law admitted. All what Chamisa says is that he resigned from Tshabangu’s CCC.

It is notable and is legally significant that, in speaking in his affidavit, Chamisa does not deny that Tshabangu is CCC’s interim secretary general. It will be recalled that when the saga of the recalls of CCC MPs and Councillors started, Chamisa told anyone who wanted to hear that he did not know Tshabangu. It’s a matter of the public record that Chamisa has been consistent in the media in his claims that he does not know Tshabangu, and that Tshabangu is not a member of the CCC and has no authority in the party.

But in court and under oath in his first affidavit in the matter, Chamisa does not say he does not know Tshabangu, and he does not dispute that Tshabangus is CCC’s secretary general.

It is trite that the rules of court and the common law are clear that that which is alleged in pleadings and not denied in the opposing pleading is ipso facto admitted. Therefore, by operation of both the rules of court and the common law; Tshabangu’s assertions are admitted by Chamisa because he even does not deny Tshabangu’s authority to act for Triple C. Rather, he admits it by operation of law.

Again, it should be emphasised that Chamisa does not dispute the authority of the organ that passed the resolution to authorise Tshabangu to depose to the founding affidavit to act in the manner he did. Chamisa therefore admits both the existence of the organ and its power to do so. If Chamisa disagreed, the rules of court are clear that a point of substance must be specifically responded to, failing which it is taken to be admitted.

All told, and in short, Chamisa’s failure or deliberate choice to meet points of substance by saying, under oath, that Tshabangu’s position and authority are not in issue amounts to a clear and unambiguous admission.

In effect, Chamisa’s first affidavit in the Tshabangu saga puts paid to the dispute and resolves all pending litigation on the question of Tshabangu’s position in Triple C and his authority and power to act for CCC.

Case closed!