FULL TEXT: High Court Ruling That MDC Leadership Is Illegitimate

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ELIAS MASHAVIRA versus MOVEMENT FOR DEMOCRATIC CHANGE (MDC) and NELSON CHAMISA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS TOGARASEYI MWONZORA and MORGAN KOMICHI

HIGH COURT OF ZIMBABWE MUSHORE J HARARE, 14th March & 8th May 2019

Opposed motion

  1. A. Mutungura, for the applicant K. Kachambwa, for the 1st, 2nd, 3rd, 5th & 6th respondents

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MUSHORE J: Applicant is a member of the Movement for Democratic Change [hereinafter MDCor the party) having joined the party in 2000. He is also currently the Organising Secretary for the Gokwe Sesame District of the party. The respondents were cited by the applicant as follows. The first Respondent is the Movement for Democratic Change Party. The second respondent is Nelson Chamisa, who is cited in his capacity as the President of the party. The third respondent is Elias Mudzuri who is cited in his capacity as Deputy President of the party. The 4respondent is Thokozani Khupe, who is cited in her capacity as the Acting President of the party. The fifth respondent is Douglas Togaraseyi Mwonzora who is cited in his capacity as the Secretary General of the party. The 6th Respondent is Morgan Komichi who is cited in his capacity as the Acting Chairman of the MDC.

This is an application for declaratory relief declaring (a) the second and third respondents appointments as deputy Presidents of the MDC unconstitutional and this null and

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void and; (b) declaring that the second respondent is not the Acting President/President of the party; and (c) declaring all appointments, reassignments and actions done by the second respondent as the Acting President/President of the party null and void. The applicant is also desirous of obtaining an order compelling the party to hold an ExtraOrdinary Congress.

It is a common cause that the late President of the party, Dr Morgan Richard Tsvangirai appointed the second and third respondents as Deputy Presidents in 2016. It is also common cause that Dr Morgan Richard Tsvangirai passed away on the 14th February 2018. It is not in dispute that thereafter on the 15th February 2018, a day after the late Presidents passing, at a meeting of the Executive Committee and the National Council, the second respondent (who described himself in the minutes as being the Acting President), was by a resolution of the meeting appointed as the President of the party. It is also common cause that the fourth respondent was elected Deputy President at a National Congress which was held in 2014.

However, it is the manner by which the second respondent ascended to his position of President, that has driven the applicant to make the present application challenging that present status quo of the leadership within the party, combined with a challenge to the manner by which the second and third respondents rose to their Deputy Presidential posts sometime in 2016, without being elected into office.

The applicant has described his concerns as follows in his founding papers. According to him, the late President, Dr Tsvangirai did not have any powers conferred to him in terms of the MDC Constitution to appoint two deputy Presidents as he did in 2016. He alleges that the late President acted ultra vires the constitution. Thus according to the applicant, any such appointments, by choice, were unconstitutional, and thus void for unconstitutionality. He produced the booklet version of the Constitution of the Party with his papers and referred to various provisions in the Partys Constitution in support of his contentions.

Insofar as the fourth respondent is concerned, it is applicants case that according to the Partys Constitution, she is the only person who is eligible to be the Acting President by virtue of her being elected Deputy President at a Congress in 2014; and by virtue of her has continued to hold that position up until the date of Dr Tsvangirais demise.

Regarding the second respondent becoming President of the party, the applicant is alleging that the assumption by the second respondent to the position of President of the Party, was in defiance of the provisions of the Constitution of the Party. He alleges that that rise to the position of President by the second respondent is void for unconstitutionality. Using the

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applicants own words he describes the events leading to the second respondent assuming the Presidency of the Party as being a “wellchoreographed move to usurp the throne. Applicant casts doubt on what he describes as being second respondent‘s ascendancy to the title of President of the partywhich he states was done in breach of the Constitution. The applicant alleges that on the 15th February 2018, the second respondent purported to call a meeting of the National Executive Committee and the National Council at which resolutions were made to ordainthe second respondent as President of the party. He attached minutes of the meeting convened by the second respondent at which he states that neither house made such a resolution and that both houses, and I quote pretended to accept the second respondent as the President of the party.

The applicant also stated that prior to launching the present application he took legal advice after reading a legal opinion on the issue of the legality of the Presidency. The legal advice he received encouraged him to file the present application. He also stated that he learned from such legal advice, that the meeting which took place on the 15th February 2018, a day after the death of Dr Tsvangirai, did not have constitutional powers to ordain either an acting or substantive President. The applicant also complained that he had not been invited to the meeting of the 15th February 2018 in circumstances where he should have been invited in his capacity of a delegate to that Congress. The applicant also pointed out that the meeting of the 15th February 2018 was just an Ordinary Congress and that it is a meeting of an ExtraOrdinary Congress in which such party business pertaining to leadership should be discussed and not just an Ordinary Congress as was the case in the present matter.

The applicant stated that the hastily convened meeting by the second respondent of the partys Standing Committee; the National Executive Committee and the National Council on the 15th February 2018 was void for unconstitutionality because the second respondent had no such powers to convene such a meeting.

The application is opposed. 6th Respondent raised three points in limine which I will deal with after I have expanded on the 6th Respondents opposing argument on the merits.

6th Respondent stated that the booklet Constitution which the applicant had produced as evidence, did not accurately reflect what the 6th respondent calls the true constitution. However, 6th respondent did not attach the version of the true constitutionwhich he was making reference to; save by referring the court to examine another court record in the case of Patson Murimoga and Anor v Morgan Richard Tsvangirai & Ors HC 7453/16. I noted that even though 6th respondent paid homage to another version of the Constitution, 6th

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respondent still relied on the booklet Constitution which was the applicants version of the Constitution when he made his legal submissions. It seems he then forgot to point out the differences between the applicants version and his version of the Constitution for the remainder of his submissions.

6th respondent submitted that the late President had powers conferred on him by virtue of Article 9 to appoint the Deputy Presidents (as he did in 2016) and that as such Article 9 validated the legitimacy of the appointments of second and third respondents as Deputy Presidents by Dr Tsvangirai. 6th respondent then went on to state that the late President‘s actions in appointing second and third respondents as Deputy Presidents were as a result of the National Council has delegated its authority to the late Dr Tsvangirai to appoint those deputies with its approval, in terms of Article 18 of the MDC Constitution. 6th Respondent pointed to the mention of Deputy President(s) in the plural in Article 6.4.4.1 (a) as being evidence that the constitution allowed for more than one Deputy President to the party

With respect to the appointment of the second respondent as President of the party, the 6th Respondent justified the appointment of the second respondent by stating that the second respondent was the the preferred choiceof all three Deputy Presidents and that the appointment was unanimous. He also added that the applicant accepted that appointment by the applicant having continued to be an active member of the party.

In reply to the notice of opposition, apart from challenging the averments made by the 6th respondent, the applicant raised two points in limine pertaining to the automatic bar which he submitted was in place against all of the respondents and which he alleged prevented all of the respondents from proceeding to present their respective arguments on the merits.

I will now deal with the applicants points in limine. APPLICANTS POINTS IN LIMINE (i) Whether 1st, 3rd, 4th and 5th respondents were barred for failing to file opposing affidavits. 1st, 3rd, 4th and 5th respondents did not file individual opposing affidavits at all. The 1st, 2nd, 3rd, and 5th respondentsnames, however, appeared on the 6th respondent‘s affidavit which was entitled:

1st, 2nd, 3rd, 5th and 6th RespondentsNotice of OppositionIt is trite that a party cannot make averments under oath on behalf of a party for facts which he cannot swear positively to; and for which he has not been granted the authority to make such representations. The 6th respondent presented his affidavit in an improper form.

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The rules do not allow a party to act in a representative capacity to other respondents without the veracity of the authority to make averments on behalf of those respondents being shown and approved to be in order by the Court. At the very least, there must be an averment in the affidavit as to how the respondent purports to act in such representative capacity. O 32 r233 of the High Court Rules, 1971, which reads as follows:

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. SE 233. Notice of opposition and opposing affidavits (1) The respondent shall be entitled, within the time given in the court application in accordance with rule 232, to file a notice of opposition in Form No. 29A, together with one or more opposing affidavits.

(2) As soon as possible after filing a notice of opposition and opposing affidavit in terms of subrule (1), the respondent shall serve copies of them upon the applicant and, as soon as possible thereafter, shall file with the registrar proof of such service in accordance with rule 42B.

(3) A respondent who has failed to file a notice of opposition and opposing affidavit in terms of subrule (1) shall be barred

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When looking in the body of the 6th respondents opposing affidavit and its substance, it becomes clear that in his submissions he does not introduce himself as purporting to represent the 2nd, 3rd and 5th respondents although the heading of the affidavit represents the 6th respondent to be deposing evidence on behalf of the 2nd, 3rd and 5th respondents. It is trite that hearsay evidence is not permitted in affidavits. In the present matter, it was necessary for the 3rd, and 5th respondentsto file their own affidavits wherein they could depose to statements of fact which are within their knowledge. The fact that 3rd and 5th respondents did not file opposing affidavits means that they are barred for their failure to comply with 0 32 r 233 referred to above. 3rd and 5th respondents are therefore not before the court.

Although he made no mention of his authority to represent the 3rd and 5th respondents, 6th respondent submitted that he is deposing evidence on behalf of himself and the 1st respondent (MDC). Thus, in essence, the only party whom 6th respondent actually purports by his own submissions to represent; is the 1st respondent; that being the MDC. This is what he said when he introduced himself in his opposing affidavit:

I, Morgan Komichi, the National Chairman of the Movement for Democratic Change (MDC) the abovementioned first respondent by whom I am fully authorised to depose to this affidavit in my capacity as National Chairman do hereby make oath and state....

He did not show proof of such authority having been given to him by the MDC. Even in the Partys Constitution itself, there is no such authority conferred to the National Chairperson at any time to enter into legal proceedings or defend legal proceedings on behalf

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of the first respondent. In fact, the 6th respondent did nothing to assure the court that he has instructions from anybody for that matter. Thus with noone to speak on its behalf, the 1st respondent which is a juristic personality lacks representation. Accordingly, the 1st respondent is also barred for failure to file an opposing affidavit.

4th respondent has not opposed the application and also barred.

2nd respondent filed a short affidavit in support of the 6th respondents affidavit. The only notices of opposition remaining are those of the 2nd and 6th respondents with the 2nd having been filed in support of the 6th respondents affidavit.

The court thus only recognises the 2nd 6th respondents as being the litigating opposition to the present application.

(ii) Whether the 2nd and 6th Respondents are barred by their failure to file Heads of

Argument timeously? When the parties appeared before me, the applicants legal practitioner moved that the 2nd and 6th respondents be barred from proceeding to argue the merits of the matter, due to their failure to file their Heads of argument within the dies induce stated in the Rules of this Court as per 0 32 rule 238 (2) (b) which reads as follows:

(2a) Heads of Argument referred to in subrule (2) shall be filed by the respondents legal practitioner not more than ten days after heads of argument of the applicant or excipients, as the case may be, were delivered to the respondent in terms of subrule (1):

Provided that, (i) no period during which the court is on vacation shall be counted as part of the ten-day period; (ii) The respondents heads of argument shall be filed at least five days before the hearing. (2b) Where heads of argument that are required to be filed in terms of subrule (2) are not filed within the period specified in subrule ( 2a ), the respondent concerned shall be barred and the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll. (2c) A legal practitioner shall not be precluded from making a submission …”

The applicant filed his heads with the Court on the 19th November 2018, and the respondents’ heads were filed on the 19th January 2019. The reckoning of days would have been interrupted by the High Court Christmas vacation. The third court term ended on the 3rd December 2018, which is the date that the respondent’s Heads were due. The first court term in 2019 commenced on the 14th of January 2019. Respondents filed their Heads during the court vacation on the 10th January 2019. Thus effectively and in terms of the proviso under 0 32 r 238 (2) (i) the delay in filing the respondent’s heads was one day. Even though the delay was

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for but a day, the 2nd and 6th respondents were automatically barred from appearing to argue the matter.

At the commencement of the hearing in this matter, 2nd and 6th respondents legal practitioner made an oral application for condonation and for the upliftment of the automatic bar imposed on them for the late filing of Heads of Argument. I was drawn to the comments which were made by MAKARAU J [as she was then] (when I was researching this opinion) in Chimpondah & Anor v Muvami 2007 (2) ZLR 326, which I found to be of immeasurable assistance to me. In her dicta she outlined the factors which are taken into account when a court is dealing with such an application. At page 327GH she said:

An application for condonation such as the one before me is, therefore, an application for excusing the negligence of the offending party and the degree of such negligence of the offending party then becomes a factor together with other factors that will ensure that at the end of the day justice as between the parties prevailed. The factors generally are taken into account by the court, when considering an application for condonation, are well established. Importantly but not exclusively, the court takes into account such factors as the length of the delay, the merits of the application and any prejudice to the interests of justice generally. At page 328EF she continued;

... I used the discretion vested in me to allow the late filing of the heads of argument because of the need for the parties to have a final judgment on the matter in view of the spate of litigation that they have already been involved in over the same matter. Further, in my view, the point raised by the respondent in his defence is an interesting and important legal point…

It is my further view that, when considering an application for condonation for the late observance of a rule of procedure before a default judgment is given in the matter, the court should lean towards granting rather than refusing such application. I am not, however, suggesting that prior to judgment, condonation should be granted for the mere asking. The applicant still has to satisfy the court that there is good cause to excuse the negligence and grant the indulgence

Also, see Lewis Cox & Co (Pty) Ltd v Twentydales Service Station (Pty) Ltd 1956 R&N 338(SR); Ehlers v Standard Chartered Bank Ltd 2000 (1) ZLR 136 (H).

In the present matter, the Heads were but one day late. I am persuaded that this is a case where the indulgence should be granted bearing in mind the issues which need to be ventilated and resolved in the interests of the public and in the interests of justice. It is in my view desirable that I apply my inherent jurisdiction in terms of r4C of the High Court Rules, 1971 to grant the application for the upliftment of the bar, bearing in mind that the period of one days delay brought to me assume that the delay was not an intentional disregard to defend; but was rather a lack of diligence by the legal practitioner representing 2nd and 6th respondents; for which I felt the respondents ought not to be penalised.

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See Grain Marketing Board v Muchero SC 59/07 and also Service Motor Supplies (1956) (Pty) Ltd v Fouche and Anor 1960 (3) SA at page 675H.

Further, I find it necessary to allow 2nd and 6th respondents to defend their cases, in order that there be a convenient determination of the issues in the matter.

See: Nicojeros v Clement 1947 (4) SA 301 THE 2ND AND 6TH RESPONDENTSPOINTS IN LIMINE

(i) Whether or not the applicant had the requisite locus standi to bring this application? It was the 2nd and 6th respondentscontention that the applicant was not a bona fide member of the 1st respondent because

He had neither filed nor shown proof that he made a solemn declaration which according to the respondents was necessary proof of acceptance as a member

in the first respondent and (b) Because he had not filed an affidavit from the Secretary-General of the

Province in support of his contention that he is a member of the first

respondent in terms of the first respondents Constitution. With due deference, this cannot be the case Applicant is clearly a member of the MDC. It is ludicrous to suggest otherwise given the fact that he has been allowed to function in the party as the Organising Secretary for the Gokwe District within the party for several years. In examining Article 5.1 of the partys Constitution which defines membership, I am satisfied that applicant is a bona fide member of the first respondent and that membership is granted upon acceptance of an application for membership. It is only after such acceptance that the member may be obliged to make a solemn declaration. Thus membership in the party is conditional upon acceptance into the party and occurs prior to making a sworn declaration. Thus neither a sworn declaration nor an affidavit from the Secretary-General is necessary for the applicant to enjoy being a member of the party. The applicant filed a copy of his membership card which is found on page 15 Annexure Band which I find to be satisfactory evidence of his valid membership in the Party. The relevant part of Article 5 which defines membership in the Party reads as follows:

Article 5 Membership 5.1. Individual membership

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An application to become an individual member of the Party shall be submitted to the Branch Executive Committee or in its absence, to a Ward Executive Committee. On a membership application form to be completed by the applicant.

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(b) (C) (d)

On being accepted in the MDC, a new member shall make a solemn declaration to the Movement in the form of Annexure A”

The membership card which was produced by the applicant shows that the applicant has been a member of the first respondent since the year 2000. His membership remains valid.

Further, the applicant has been carrying out functions as an organising Secretary on behalf of the party. I hardly think that a non-member would hold such an important position, particularly given the fact that he represents the party in that position and that the position secures his seat to the Congress. The comments made by MALABA DCJ (then) in Loveness Mudzuri & Anor v Minister of Justice, Legal and Parliamentary Affairs N.O & 2 Ors CCZ12/2015 when he opined on the test for locus standi for a declaratur are instructive. In his judgment, MALABA DCJ [then] cited the dicta of CHIDYAUSIKU CJ in Mawarire v Mugabe N.O & Ors CCZ1/2013 who said:

“Certainly this Court does not expect to appear before it only those who are dripping with the blood of the actual infringement of their rights, or those who are shivering incoherently with the fear of the impending threat which has engulfed them. The Court will entertain even those who calmly perceive a looming infringement…”

At page 9 of the cyclostyled judgment MALABA DCJ described the above dicta by CHIDYAUSIKU CJ as being:

“The familiar rule of standing based upon the requirement of proof by the claimant of having been or of being a victim of infringement or threatened infringement of a fundamental right or freedom enshrined in Chapter 4 of the Constitution”

To that end, and in applying the above test, it is my view that the applicant has the requisite standing to bring the present application.

In any event, the 2nd and 6th respondent’s accept that the applicant is a member of the party when it suits them. In paragraph 5 of the 6th respondent’s opposing affidavit, he states

when referring to the applicant:

Page 44, opposing affidavit

“The applicant embraced the appointment as a supporter or member by campaigning for the 2nd respondent’s bid for the presidency”

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In simple speak, by contradicting himself, what 6th respondent is are saying is that applicant is not enough of a member to mount the present constitutional challenge, but he is to be regarded as a valid member when it suits a certain agenda. The 6th respondent cannot approbate and reprobate whenever it suits him and expect his sworn statement to be regarded as being reliable.

In any event, the applicant submits that he is exercising his Constitutional right in making the present application. S 67 (2) of the Constitution of Zimbabwe (Amendment Act) No. 20 reads as follows

67 Political rights (1) Every Zimbabwean citizen has the right

(a) to free, fair and regular elections for any elective public office established in terms of this Constitution or any other law; and

(b) to make political choices freely. (2) Subject to this Constitution, every Zimbabwean citizen has the right

(a) to form, to join and to participate in the activities of a political party or organisation of their choice; (b) to campaign freely and peacefully for a political party or cause; (c) to participate in peaceful political activity; and (d) to participate, individually or collectively, in gatherings or groups or in any other manner, in peaceful activities to influence, challenge or support

the policiesIn addition to this, the Applicants Constitutional right to administrative justice is protected in the Constitution of Zimbabwe in terms of section 68 which reads:

10ICE,

68 Right to administrative justice (1) Every person has a right to administrative conduct that is lawful, prompt, efficient,

reasonable, proportionate, impartial and both substantively and procedurally fair

It is in enforcing the Constitutionally protected rights that he has launched the present

application and the law entitles him to challenge what he views to have been an undemocratic

and unconstitutional series of appointments of the second and third respondents within the

Party.

Respondentsreferred me to the decision by MAKONI J (as she then was) in Patson Murimoga & Anor v Morgan Richard Tsvangirai N.O and 4 Others HC 7453/16 which file I have since retrieved from the High Court Registry and found the decision to be cited under HH635/17. The respondents allege that the issue of membership in the MDC has been laid to rest by a judge of this court and by referring to MAKONI Js determination in the Patson Murimoga ruling and they have suggested to me that the determination of the learned Judge bound me as res judicata on this point. I disagree. It is elementary law that this court is not

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estopped from coming to its own determination in a matter involving different facts and circumstances and different parties by a court of parallel jurisdiction. The considerations in this matter are far removed from the similarities suggested by the respondents.

My own conclusion with respect to the applicant who is a senior member within the party is that he is shown to be actively involved in the party business. And that fact taken together with the respondentsprevarication between accepting and rejecting applicant as being a member of the party distinguishes the facts in the present matter from the facts in the Patson Murimoga matter {inter alia}. To that end, my determination is confined to the issues contained within the record of this matter.

I must mention in passing that when I analysed some of the cases which were cited by the 6th respondents counsel in his heads of argument, I became somewhat concerned about the manner by which he repeatedly misquoted judicial dicta in order to rewrite the law to fit his clients narrative. Such an example of this was his referring me to the case of Mutare City v Mawayo 1995 (1) ZLR 258 (H); in support of his suggestion that this issue is res judicata; because of Patson Murimogas case where in fact the Mutare City case does not bear witness to the proposition which is being made by the respondents. I find the attempt to mislead the court to be beneath the level of professionalism expected by the court.

On the issue of locus standi, therefore, it is my view that the applicant does have the requisite locus standi in judicio to have brought the present proceedings.

(ii) Whether or not the applicant has failed to exhaust his domestic remedies.

Respondents are complaining about the applicants eligibility to file the present application in this Court; by submitting that if the applicant had a cause of complaint, then he is bound by the first respondents Constitution and that in terms of the partys Constitution, he is legally obliged to have followed the process for the exhaust domestic remedies. However, that having been suggested by the respondents; they were silent about the exact settlement procedures in the partys Constitution which they believed applicant ought to have followed. The applicant has essentially deprived the opportunity to make a specific reply to their suggestion when he deposed his replying affidavit because it was only through their heads of argument that they referred to Article 14 as being the domestic remedy which applicant ought to have pursued in order to get remedy for his complaint. Article 14 appears to outline an appeals process. This is what it says:

Article 14

THE APPEALS TRIBUNAL

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14.1 The party shall establish an Appeals Tribunal which shall have the function of

hearing and determining appeals on any matter which the member has a grievance under the Constitution of the party as well as on all matters in respect of which

jurisdiction is conferred by this Constitution. de 14.2 Any dispute over the interpretation of this Constitution may be referred to the

Appeals Tribunal for a hearingI find the suggestion made by the respondents that the applicant should have lodged an appeal to be absurd. It does not take a genius to recognise that because an internal complaint would have been presided over by the very persons whose offices applicant is challenging, it would in most likelihood be determined in a partial manner thus depriving the applicant of substantial justice. In other words, the Respondents would essentially be presiding over their own legitimacy. I also concur with the applicants submission that the membership composition of the appeals tribunal is made up of the very people in the very positions which applicant believes are null and void for want of compliance with the Partys Constitution and thus any assembled Appeals Tribunal actions or decisions could be voidable on that basis.

I also find the respondents reference to the decision in Kudakwashe Bhasiskiti v Robert G Mugabe N.O and Anor HH 609/15 as authority for the proposition that the applicant should be made his complaint in terms of Article 14, to be misplaced. Apart from being irrelevant to the present matter, the latter case is clearly distinguishable in that the applicant in that place was not suing for a declaration of rights; a remedy which is beyond the reach of a domestic Tribunal.

The High Court has the requisite jurisdiction, conferred to it by statute to grant a declaratur in terms of section 14 of the High Court Act which states: 14 High Court may determine future or contingent rights

The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination

Pursuing domestic remedies would not have achieved the desired result which motivated the applicant to pursue the present proceedings in this court. I, therefore, dismiss this point in limine by finding that applicant correctly filed the present application in this

Court.

(iii) Whether or not the applicant has waived his rights to the order sought?

Respondents submit that because the applicant is complaining about events which were initiated by Dr Tsvangirai in 2016he sat on his rights and is thus prevented from

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challenging the appointments by his silence all along. I disagree. Applicants rights to bring the present matter have not prescribed by law. The principle relied upon by the respondents of waiver by neglect in New York Mutual v Ingle is inapplicable to the present application. In that matter, INNES CJ stated that:

Neglect to enforce a right timeously may under certain circumstances have the same effect as a waiver of it, even though the period of prescription has not lapsed. Such cases come very near the line if estoppel As pointed out by the Privy Council in Lindsay Petroleum Co v Herd (LR 5 PC Appeals at page 240) where a man has by his conduct and neglect though perhaps not waiving the remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be assertedthen lapse of time becomes of great importance. When a person is entitled to a right knows that it is being infringed, and by his acquiescence leads the person infringing it to think that he has abandoned it, then he would under certain circumstances be debarred from asserting it

The applicants initial cause of complaint was with the 2nd respondents ascension to the Acting President/President at a meeting called by the 2nd Respondent a day after Dr Tsvangirais death on the 15th February 2018. The applicant became perturbed when that happened and also by the fact that as a member of Congress he was not invited to that Congress when he ought to have been invited to have a say in the matter. From his submissions, I have been able to glean that he was concerned from the speed of which matter developed. However, it appears that applicant came to realise his rights after he had read a legal opinion, which had been rendered by senior counsel on the instructions of the party at the time when a dispute arose between the three Deputy Presidents. The applicant does not say when exactly he came into possession of the legal opinion and learned of his rights, but it appears from his submissions that it was after the 15th February 2018 and before the 24th September 2018 when he filed the present matter. From that opinion, that applicant learned that he could possibly challenge the constitutionality or otherwise of 2nd respondents appointment as Acting President/President of the party. He also learned from the opinion that the prior actions of the late President in 2016, in appointing second and third respondents as Deputy Presidents could have been unconstitutional. It cannot be inferred therefore, that he was aware and acquiesced by conduct to the actions by the late actions of Dr Tsvangirais of appointing two Vice Presidents in 2016. According to his submissions, he became aware of all the legalities sometime in 2018. He engaged the services of a legal practitioner and filed the present application on the 24h September 2018 with a view of an order compelling the respondents to call an ExtraOrdinary Congress within the year provided for in the

was away

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Constitution from the death of Dr Tsvangirai which is by the 14th February 2019. It cannot be said that applicant sat on his rights was in fact in my view applicant acted within a reasonable time of becoming aware that he could possibly challenge the constitutionality of the 2nd Respondents ascendancy to Presidency of the 15th February 2018. DECLARATUR

This is an application for declaratory and contingent relief.

The applicant cited the case of Family Benefit Friendly Society v Commissioner of Inland Revenue and Another 1995 (4) SA 120 (T) as authority for the proposition that in order for an applicant to be granted a declaratur the applicant must show that:

(a) He is an interested person; (b) There is a right or obligation which becomes the object of the enquiry

He is not approaching the court or what amounts to a legal opinion upon an

abstract or academic matter;

There must be interested parties upon which the declaration will be binding; (e) Considerations of public favour the issuance of the declaration. In Johnson v AFC 1995 (1) ZLR 65, GUBBAY CJ had this to say about when a declaratur can

be granted;

The condition precedent to the grant of a declaratory order under section 14 of the High Court Act is that the applicant must be an interested person in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing future or contingent rightAlso: Munn Publishing (Private) Limited v ZBC 1994 (1) ZLR 337 (S) at page 338 [Headnote] that the existence of any other remedy does not render the grant of a declaratory order incompetent; s 343 to 344; and also Eagles Landing Body Corporate v Molewa NO and Others 2003 (1) SA 412

That the applicant has a direct and substantial interest in the stewardship of the party he belongs to and the legality and constitutionality of it is beyond doubt. Not only has he been a card-carrying member of the Party since 2000, but he has also campaigned on behalf of the party and is actively involved as an Organising Secretary in the Sesame District and is a member of the National Congress. His interests are protected by his rights as enshrined in the Constitution of Zimbabwe and are thus sacrosanct. It can also be said that the rights of a number of individuals are affected by the subject matter of the dispute in that the Party carries a large membership.

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WHETHER OR NOT THE APPOINTMENT OF THE SECOND AND THIRD RESPONDENTS AS DEPUTY PRESIDENTS WAS LAWFUL.

The Partys Constitution prescribes the circumstances where a Deputy President is appointed as an office bearer by Congress in terms of Article 6.4.4.1 which reads:

6.4.4. The National Standing Committee 6.4.4.1 The National Standing Committee shall comprise of the following office bearers elected by Congress; (a) The President; (b) The Deputy Presidents

The National Chairperson; The Deputy National Chairperson The Secretary-General; etc.

It is selfevident that it is only by being elected into office at a Congress that a member of the party becomes the Deputy President and then occupies that office as such.

2nd and 3rd Respondentsclaim to being Deputy Presidents is based upon the late President picking them to be Deputy Presidents. They were not elected into those positions at a Congress.

The applicant claims that the legitimate Deputy President in the party who still carries the title of Deputy President is the fourth respondent, by virtue of her democratic election at Congress in 2014. That claim is aligned to the provision in Article 6.4.4.1 of the Partys Constitution. It is that simple.

The 6th respondent has referred me to the late Dr Tsvangirai‘s affidavit and the averments therein as pertain to the selection and appointment of second and third respondents as the Deputy Presidents in the Patson Murimoga case in trying to establish that the appointments were constitutional. This is what the late President said in justifying his actions in appointing second and third respondents

Page 114 of that record (HC7453/16) 1st respondents opposing affidavit 7. It appears to me that Applicants (Murimoga) bone of contention is that the appointment of 2nd and 3rd respondents (Chamisa and Mudzuri) as Deputy Presidents in the 5th Respondent was ultra vires the 5th Respondents Constitution and is therefore void. I disagree.

Whilst on this issue of the legality of the appointment, I also want to refer this Honourable courts attention to Article 18 of the Constitution which deals with oversights and omissions and in particular given to the National Council by this article.

16 HH 30219 HC 8697/18

nd

  1. 11.

I am therefore satisfied beyond any doubt that the appointment of the 2nd respondents to the position of Deputy Presidents of the 5th Respondents was done in accordance with the letter and the spirit of the 5th Respondent. The National Council which is the highest decision-making body of the 51 Respondent directed that I should make the appointment which I proceeded to do. After making the appointments, the National Council overwhelmingly endorsed the appointments. No single member of the National Executive and the National Council of the 5Respondent challenged the appointments

In the present matter this is what the 6th respondent says in trying to justify the legitimacy of the appointments of the second and third respondents;

Page 48, record 6th respondents opposing affidavit 16 ....... The late Morgan Richard Tsvangirai explained how the appointments

were made and I associate myself fully with his explanation. For the avoidance of any doubt, this Honourable Courts attention to the powers of the President outlined in Article 9 of the Constitution. In there, the President is empowered to appoint Deputies to Officers of Congress on the instructions or guidance of the National Executive in the National Council. With regards, the appointments of the second and third respondents, both the national executive and the national council at their meetings of the 14th July 2016, directed that the late Morgan Tsvangirai should exercise his prerogative in appointing Deputy Presidents of the party which he proceeded to do the following day. The meetings of the National Executive and the National Council were duly constituted and resolutions that were made were proper and therefore binding. No member of the National Council or National Executive raised any issues with regards to the validity of the two meetings and therefore resolutions that were made therefrom. As if this was not sufficient, on the 30 August 2016, the National Council met again and with an overwhelming majority, endorsed the appointment of the 2 and 3 respondents to the positions of Deputy Presidents. I also draw this Honourable Courts attention to the Constitution attached by the Applicant. Therein, it will be noticed that the National Standing Committee is composed of amongst other positions the Deputy Presidents of the Party. It is clear therefore that the 1st respondents Constitution provides for the position of more than one Deputy President and it is clear that the late Morgan Richard Tsvangirai was empowered to make those appointments in accordance with the Constitution. 17. Whilst on this issue of the legality of the appointment of the second and third respondents I also want to refer this Honourable Court to Article 18 of the 1st Respondents Constitution dealing with oversights and omissions and in particular the powers are given to the National Council by this Article. With regards to the appointments in question, the National Council clearly delegated its authority to the then President Morgan Tsvangirai who with the approval of the National Council appointed 2nd and 3rd respondents. There can be no question therefore that the appointment of the 2 and 3 respondents as deputy Presidents was legal and well within the powers of the 1% respondents Constitution

WE

17 HH 30219 HC 8697/18

From the above excerpts of evidence in the Murimoga case and in the present matter, the respondents in this matters justification for pleading the legality of 2nd and 3d respondents as Deputy Presidents as being intra vires the Constitution is exactly the same. And for the purpose of simplification, what the respondents are saying is that:

(a) The late President appointed the second and third respondents to be

Deputy President in terms of Article 9 of the MDC Constitution. (b) Dr Tsvangirai made those two appointments whilst acting on the

recommendation of the National Council (c) The National Council had the power to suggest to Dr Tsvangirai that the

2nd and 3rd respondent be appointed as Deputy Presidents and to delegate authority to the late President because they were conferred that power by

Article 18 of the Constitution. It is my view that the 6th respondent is misguided.

Article 6.4.4 is the applicable Article when dealing with the circumstances resulting in a member being placed in the Office of Deputy President in the Party. And that is by an election of Congress.

Article 9 as a whole which is headed OFFICE BEARERS, NATIONAL COUNCIL & THEIR ELECTION PROCEDURES deals with the duties and functions of each Office Bearer from the President to the Chairperson of the Women’s Assembly. All of these office bearers hold those offices by virtue of winning an election in Congress in terms of Article 6.4.4. It is only in the case of The Secretary of Elections (see Article 6.4.4.1 (k) who is the exception in that he/she is the only office bearer who the President has the power to appoint.

Article 9 provides for only one Deputy President. As I have already stated, Article 9 lists the Office Bearers and the deputy president is listed in the singular and not in the plural. In Article 6.4.4 the Deputy President is listed in the plural. BUT in terms of Article 6.4.4, the Deputy President (s) would have to have been elected by popular vote. Thus because the office of a Deputy President derives from an election taking place; it should be obvious that mention of Deputy Presidents in the plural is a typographical error. As I stated earlier, it would be nonsensical to arrive at a conclusion that the President or even the National Council had any power or authority to bypass the requirement of holding an election and just appoint Deputy Presidents at whim. The hasty appointments were done ultra vires the 1st respondent’s Constitution.

18 HH 30219 HC 8697/18

The 6th respondent suggested that the National Council resorted to using its powers of delegation to the late President, to cure an Oversight or omission and appoint the 2nd and 3rd Respondent to be Deputy Presidents. In both the Murimoga case and the present matter, the identification or itemization of the oversight or omission sought to be cured is not identified by the respondents. There is no evidence attached in both records pertaining to the deliberations of the National Council in 2016 wherein a problem in draughtsmanship was detected and recorded or recommended to be cured. Or indeed explaining why it was necessary to overcome an issue in the existing structures by appointing two illegitimate Deputy President when the office of Deputy President was not yet vacated. The powers to appoint Deputies to office bearers mentioned in Article 9.1.4 does not stretch to the power to bypass electoral processes and fill in office bearers who have already been provided for by the Constitution. The wording used is:

9.1.4 The President shall appoint deputies to officers of Congress from a pool of National Executive members elected from Provinces and other office bearers where such is provided for in this Constitution

The operative part is where such is provided for in this Constitution.

The Constitution itself provides that a Deputy President is elected thus the act of appointing second and third respondents without an election was ultra vires 9.1.4 and ultra vires the Constitution.

The National Council could never have legitimately delegated illegality. ACTING PRESIDENT.

Article 9 outlines the circumstances wherein a Deputy President then acts as an Acting President. It reads:

9.2. It shall be the duty of the Deputy President:

(a) To assist the President in the exercise of his or her powers, functions and administrative duties as provided for in this Constitution. (b) To act on behalf of the President whenever the President is absent from

Zimbabwe or is for any reason unable to perform his or her powers,

functions, or administrative duties, and (c) To perform such functions relating to the function of standing committees

and other general matters as may be assigned to him or her by the National Council

(d)

This means that the duly elected Deputy President would take over in circumstances that the President was unable to perform his functions. At the time of Dr Tsvangirais death,

Wa

19

HH 30219 HC 8697/18

the constitutional deputy President was the 4th respondent. It fell on her to assume the

Presidential duties at that time. NEWLY APPOINTED PRESIDENT

After the late Presidents demise, the Acting President per 9.2. (b) should have assumed the Presidential duties and called for an ExtraOrdinary Congress to be held no later than a year from the death or resignation of the former President. Plainly speaking, therefore, it should have been the duty to call the Extraordinary Congress for such an election would have been that of the 4h Respondent. The Constitution is specific about this requirement:

9.21 Death or Resignation of Office Bearers 9.21.1 In the event of the death or resignation of the President; the Deputy President assumes the role of Acting President, pending the holding of an ExtraOrdinary Congress that shall be held to elect a new President which ExtraOrdinary Congress to be held no later than a year from the death or resignation of the former President

Any action other than that is ultra vires the Constitution. Thus the events which took place on the 15th February 2018 wherein 2nd respondent purports to have been appointedand not elected were ultra vires the Constitution.

NOTICE TO CALL AN EXTRAORDINARY CONGRESS

The 1st respondents Constitution provides that a notice of at least one month is required to be sent to all members entitled to attend an ExtraOrdinary Congress per Article 6.2.6 of the Constitution. The earliest possible date for such an ExtraOrdinary Congress taking place for the election of a new President would have been a month after Dr Tsvangirais death which at the earliest would have been from the 15th March 2018 onward. Thus the business which was conducted at the meeting which took place on the 15th February 2018 at which the second respondent holds himself to be an appointed President was ultra vires the Constitution. CONSTITUTIONALISM

This present matter is important insofar as Constitutionalism is concerned. The point of reference which I have found to be necessary to understand the ethos of the party comes from the language contained in the MDC Constitution which guides me to understand that the foundation of this movement was predicated on the foundation of social democracy. Article 3 reads:

“3.1 The MDC shall be a Social Democratic Party whose core values shall be

solidarity, justice, equality, liberty, freedom, transparency, humble and

obedient leadership and accountability.” Under Article 4

20 HH 30219 HC 8697/18

64.1

The MDC considers democracy as a core value, to the extent that, its policies

be determined by its membership, and further, its leadership shall be accountable to the people as defined by this Constitution

The leadership of the party has the corresponding duty to:

Under Article 9 EFEMER

ES 9.1.2(d) To promote the principles of democratic discourse, participation and

equality of all members of the party

was

The social democracy theme underpins the entire MDC Constitution. Thus the imposition or anointing of Deputy Presidents as was the case in 2016 by the late President and the delegation and imposition of a candidate by the National Council and the imposition by second respondent acting in concert with the purported Council meeting of the 15th February 2918, to be appointed President are contradictory of the democratic intention behind the selection of leadership within the first respondent. Those actions were acts of disenfranchisement, not only of the applicant, who was not invited to participate, but potentially the first respondent’s membership who have been deprived of an election. Succession by choice is not intra vires the first respondents Constitution. Surely the 2nd and 4th respondents as Officers of this Court would have appreciated the unconstitutionality of all of the actions which led 2nd and 3rd Respondents to become Deputy Presidents.

Section 67 (3) of the Constitution of Zimbabwe, protects the right to vote freely and to participate in the activities of the party of their choice. It reads;

67 Political rights (3) Subject to this Constitution, every Zimbabwean citizen who is of or over eighteen years of age has the right

(a) to vote in all elections and referendums to which this Constitution or any other law applies, and to do so in secret; and (b) to stand for election for public office and, if elected, to hold such office”

The applicant has established that he has a real and substantial interest in the remedy of a declaratur. The applicant has also demonstrated that the appointment of the second and third respondents in 2016 and the appointment of the second respondent to be the leader of the party were ultra vires the Constitution and void ab initio. Any subsequent actions which were taken (and which hereinafter could be taken) by the second and third respondents whilst holding themselves out to be Deputy, Acting President and President are consequently void ab initio

In the result I, therefore, order as follows:

21 HH 30219 HC 8697/18

  1. 1. The appointment of 2nd and 3rd Respondents as Deputy Presidents of the

Movement of Democratic Change Party was unconstitutional and therefore null and void. 2. The appointments of 2nd Respondent as Acting President, and President of the

Movement for Democratic Change party was unconstitutional and therefore null and void.

  1. 3. All appointments and or/reassignments and all actions of the 2nd Respondent in his purported capacities as Deputy/Acting or incumbent President were unconstitutional, and therefore null and void. 4. The 1st respondent is and is hereby ordered to hold an Extra-Ordinary Congress after the elapse of at least one month after the date of this Order. 5. The Respondents are ordered to pay the applicants costs of suit, jointly and severally, the one paying the other to be absolved.

T5 May 2019.

Mutunga & Partners, applicant’s legal practitioners Atherstone & Cook, 1st, 2nd, 3rd, 5th, 6th, respondent’s legal practitioners

Constitution of ZimbabweElias MudzuriE THigh Court of Zimbabwe

The Constitution of Zimbabwe is the supreme law of the Republic of Zimbabwe. Zimbabwe's latest constitution was voted for and approved in a referendum of 16 March 2013. Before the current constitution, Zimbabwe used a constitution negotiated at the 1979 Lancaster House Agreement as Zimbabwe... Read More About Constitution of Zimbabwe

Elias Mudzuri is a Zimbabwean engineer, politician and member of parliament for Warren Park. He is a former mayor of Harare, and was the minister of energy in the Government of National Unity. He is a member of the MDC-T led by Morgan Tsvangirai for... Read More About Elias Mudzuri

E T is a DJ at Star FM where he co-hosts the Breakfast Club with Nikki from 6 am to 9 am. Read More About E T

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1 Comment

  1. jmoyo Reply

    It seems that the High Court has a phalanx of legitimacy issues to address. So it would appear that both ZANU PF and MDC have illegitimate leadership. All parties must go back to pre – Mugabe and Pre-Tsvangirai Structures. If the pro-ZANU Court’s decisions are anything to go by it means that the same courts have a gargantuan task to sanitize the whole political system because by this ruling the implication is that we don’t have a legitimate leader in both of the biggest political parties. The solution: Let sleeping dogs lie and attend to real issues affecting real people. This political gimmick by a supposedly ‘free’ court is a disparaging and clear political gimmick by a ruling party appointee under instruction – That being said “What ends are going to be achieved by such a biased utterance?” NOTHING, DOLOLO!

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