Jurisdiction re: Approach iro Academic or Moot Proceedings and the Doctrine of Justiciability

CC20-19 : THOKOZANI KHUPE and MOVEMENT FOR DEMOCRATIC CHANGE – TSVANGIRAI (MDC-T) vs PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY and MORGEN KOMICHI
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAKONI JCC

This is a court application brought in terms of section 167(2)(d) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”). The section provides that only the Constitutional Court (“the Court”) may determine whether Parliament or the President has failed to fulfil a constitutional obligation.

The applicants seek an order declaring the first respondent to have failed to fulfil its constitutional obligation to protect the tenure of seat of a Member of Parliament, allegedly as required by sections 119(1) and 129(1)(k) of the Constitution.

Section 119(1) of the Constitution provides that Parliament must protect the Constitution and promote democratic governance in Zimbabwe. Section 129(1)(k) of the Constitution provides as follows:

“129 Tenure of seat of Member of Parliament

(1) The seat of a Member of Parliament becomes vacant -

(a) – (j)…,.

(k) If the Member has ceased to belong to the political party of which he or she was a member when elected to Parliament and the political party concerned, by written notice to the Speaker or the President of the Senate, as the case may be, has declared that the Member has ceased to belong to it;…,.”

The applicants seek a further declaratory order to the effect that the first applicant is still a Member of Parliament. They also seek an order declaring the letter written by the third respondent to invoke the operation of the provisions of section 129(1)(k) of the Constitution to be invalid.

The Court holds that the question of whether or not Parliament failed to fulfil its constitutional obligation with regard to the circumstances in which the seat occupied by the first applicant became vacant has been rendered moot by the occurrence of events subsequent to the making of the court application. The matter no longer presents a live dispute between the parties requiring the Constitutional Court to exercise its jurisdiction to hear and determine it in accordance with the principle of justiciability.

It is common cause that in terms of section 143(1) of the Constitution the life of the Parliament concerning the vacancy of the seat in respect to which it is alleged it failed in its constitutional obligation came to an end at midnight on 29 July 2018. That was the day before the first polling day in the general election held on 30 July 2018. The seat of Parliament, the right of occupation of which the first applicant sought to vindicate, became irrefutably vacant and lost to her when Parliament, which had been elected for a five-year term, stood dissolved in terms of section 143(1) of the Constitution at midnight on 29 July 2018. The matter has thus been overtaken by events.

A declaratory order is, by its nature, a discretionary remedy. The discretion to grant a declaratory order must be judiciously exercised, taking into account the fact that the Court does not decide matters which are purely academic or abstract. There are no exceptional circumstances, the consideration of which could have caused the Court to exercise its discretion, in the interests of justice, to hear and determine the matter despite it being moot.

The application must be dismissed with no order as to costs. The reasons for the decision now follow.

FACTUAL BACKGROUND

The second applicant is a political party. The first applicant asserts that in 2006 she was elected as the second applicant's Deputy President at the latter's congress. She further averred that she was re-elected to the same position at subsequent congresses, including the one held in 2014. On the authority of the outcome of the congress held in 2014, the first applicant claims the right to be the President of the political party following the death, in February 2018, of Mr Morgan Tsvangirai, who was the President. The first applicant claims the ascendancy to the office of the President of the MDC-T, pending the holding of a congress to elect a new President in terms of the political party's constitution.

It is the first applicant's case that in the general election held on 30 July 2013 she was elected a Member of the National Assembly to represent the Bulawayo Metropolitan Province on the second applicant's ticket in terms of section 124(1)(b) of the Constitution.

On 10 April 2018, the third respondent sent a written notice to the second respondent. The written notice made the declaration that the first applicant had ceased to be a member of the Movement for Democratic Change-Tsvangirai (“the MDC-T”). The written notice also declared that the first applicant had been relieved of the right to represent the MDC-T in the National Assembly in terms of section 129(1)(k) of the Constitution. The written notice declared that the second applicant's National Council had resolved to expel the first applicant from the MDC-T. It was also said that the first applicant had been informed of the decision expelling her from the political party concerned on 23 March 2018.

Acting on the written notice, the second respondent announced to Members of the National Assembly, on 12 April 2018, that a Proportional Representation vacancy had arisen in the Party list seat for the Bulawayo Metropolitan Province.

Aggrieved by the loss of her seat, the first applicant approached the Constitutional Court alleging that the first respondent had failed to fulfil a constitutional obligation to protect the tenure of the seat of a Member. She averred that she was recalled from the political party concerned illegally, hence the creation of a vacancy in her seat was invalid.

The first applicant averred that she wrote a letter to the second respondent on 12 March 2018, notifying him that there were factional conflicts in the MDC-T. On the strength of that letter, she contended that the second respondent ought not to have acted on the basis of the written notice sent to him by the third respondent. The first applicant took the view that in acting on the basis of the written notice the first respondent, represented by the second respondent, acted irrationally, thereby failing to fulfil its constitutional obligation.

It was further contended by the first applicant that section 119(1), as read with section 129(1)(k), of the Constitution imposes an obligation on the second respondent not to announce a vacancy other than that strictly occurring in terms of the Constitution. The first applicant further averred that the aforesaid provisions impose a further obligation on the first respondent to submit every dispute that impacts on the tenure of the seat of a Member of Parliament to the courts for determination before the provisions of section 129(1)(k) of the Constitution take effect.

The contention was that section 129(1)(k) of the Constitution does not have an automatic effect.

It was further averred that once the first respondent is put on notice, by any of its Members, about a potential dispute in a political party to which a Member belongs, it has a constitutional obligation to either put into motion a process akin to interpleader proceedings and require a court of law to resolve the dispute or to refer the parties to a court.

The suggestion was that the procedure referred to was a requirement of section 129(1)(k) of the Constitution.

The first and second respondents, on the other hand, contended that the first applicant's case did not establish a breach of the Constitution. The contention was that the first respondent had no constitutional obligation arising from the provisions of section 119(1), as read with section 129(1)(k), of the Constitution, notwithstanding the interpretation of these provisions by the first applicant aimed at laying the ground for approaching the Constitutional Court in terms of section 167(2)(d) of the Constitution. The argument was that Parliament would have discharged its obligation of protecting the Constitution and promoting democratic governance when it acted in terms of section 129(1)(k) of the Constitution. The section is a self-contained provision laying down a specific procedure for creating a vacancy in a seat of Parliament.

The contention by the respondents was that the attempt to invoke the jurisdiction of the Constitutional Court, by reference to matters provided for under section 167(2)(a) of the Constitution, was a deliberate strategy designed to avoid the consequences of the failure by the first applicant to use the appropriate remedy for the protection of her rights of membership of the political party concerned. A challenge to the legality of the decision to expel the first applicant from the MDC-T in the courts and its result would have been the only remedy by which the operation of the provisions of section 129(1)(k) of the Constitution, on the first applicant's seat, could have been averted or reversed during the life of Parliament. The argument was that there was no basis for approaching the Constitutional Court in terms of section 167(2)(d) of the Constitution because the facts which constituted the cause of action did not reveal breach by Parliament of its constitutional obligation within the meaning of section 119(1), as read with section 129(1)(k) of the Constitution.

The first and second respondents further argued that the first applicant ought to have approached the courts for relief when she became aware of her expulsion rather than argue that it was the second respondent who had the duty to refer the dispute to the courts.

According to the respondents, the correct interpretation of section 129(1)(k) of the Constitution is that a seat of Parliament becomes vacant by operation of law once the procedures required by section 129(1)(k) are complied with and the things required to be done are done in the manner prescribed and brought to the notice of the official designated to receive the written notice. They contended that the obligation that the first applicant alleged Parliament breached is alien to the provisions of section 119(1), as read with section 129(1)(k) of the Constitution.

The third respondent argued that the Court cannot read into section 129(1)(k) of the Constitution obligations which do not flow from it and find that the first respondent failed to fulfil them.

Pursuant to the 30 July 2018 general election, new Members of Parliament have been elected. In view of the relief sought by the first applicant, the determination of the matter turns on the question of whether or not the controversy is still live. If the dispute is no longer live, the question is whether the applicants have made out a case for the Constitutional Court to exercise its discretion to hear a moot case.

WHETHER OR NOT THE MATTER IS MOOT

A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic by reason of changed circumstances the Court's jurisdiction ceases and the case becomes moot. It is an established principle of law that not every constitutional point raised by a litigant can be heard by the courts. The constitutional limits on the exercise of judicial power, combined with notions of the limited nature of judicial power, have evolved into a broad doctrine known as “justiciability”. (See STERN, GRESSMAN & SHAPIRO, Supreme Court Practice 6ed, The Bureau of National Affairs, Inc, Washington, 1950)…,.).

Justiciability deals with the boundaries of law and adjudication. Its concern is with the question of which issues are susceptible to becoming the subject of legal norms or adjudication by a court of law. Justiciability is not a legal concept with a fixed content or one that is susceptible to precise scientific verification. Its utilisation is the result of many subtle pressures.

Poe v Ullman 367 U.S. 497 (1961)…,.

In Flast v Cohen 392 U.S. 83 (1968) the Supreme Court of the United States of America held as follows…,:

“Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the 'case and controversy' doctrine. Justiciability is itself a concept of uncertain meaning and scope. Its reach is illustrated by the various grounds upon which questions sought to be adjudicated in federal courts have been held not to be justiciable. Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action.”…,.

The question of mootness is an important issue that the Court must take into account when faced with a dispute between parties. It is incumbent upon the Court to determine whether an application before it still presents a live dispute as between the parties. The question of mootness of a dispute has featured repeatedly in this and other jurisdictions. The position of the law is that a court hearing a matter will not readily accept an invitation to adjudicate on issues which are of “such a nature that the decision sought will have no practical effect or result.”

The principles relating to mootness were referred to in Koko v Eskom Holdings Soc Limited (J200/18) [2018] ZALCJHB 76…, as follows:

“The doctrine of mootness is well developed in the American constitutional law jurisprudence. A case becomes moot if a party seeks to obtain judgment on a pretended controversy, when, in reality, there is none…, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical effect upon an existing controversy. Courts exist to resolve controversies and not abstract issues. As I see it, for a court to intervene and assist the warring parties, there must be controversy between the parties. The dictionary meaning of the term controversy is a dispute, argument, or debate, especially one concerning a matter about which there is a strong disagreement. Further, the controversy must be a live one. Put differently, it must exist between the warring parties. A case would be moot if the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court, for some other reason, cannot operate to grant any actual relief, and the court is without power to grant a decision. It is moot if it no longer presents an existing or live controversy or the prejudice or threat of prejudice which, to an applicant, no longer exists.”

In National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs 2000 (2) SA 1 (CC), footnote 18 to para 21 records the following:

“A case is moot and therefore not justiciable if it no longer presents an existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law. Such was the case in J T Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others [1996] ZACC 23; 1997 (3) SA 514 (CC) (1996 (12) BCLR 1599), where DIDCOTT J said the following at para [17]:

'(T)here can hardly be a clearer instance of issues that are wholly academic, of issues exciting no interest but an historical one, than those on which our ruling is wanted have now become.'”

The question for determination, in relation to the justiciability of the issues raised and the relief sought in the court application, is whether the dissolution of Parliament by operation of section 143(1) of the Constitution has rendered the issues raised by the court application moot.

Section 143(1) of the Constitution provides that:

“143 Duration and dissolution of Parliament

(1) Parliament is elected for a five-year term which runs from the date on which the President-elect is sworn in and assumes office in terms of section 94(1)(a), and Parliament stands dissolved at midnight on the day before the first polling day in the next general election called in terms of section 144.”

It is common cause that the life of the National Assembly in which the first applicant had a tenured seat ended at midnight on 29 July 2018. Thus, the relief sought by the first applicant, that she be declared a Member of Parliament, is no longer possible. It would be an invalid order. The question therefore is whether, in the circumstances, the Court can still make a determination on whether or not the first respondent failed to fulfil an alleged constitutional obligation to protect the tenure of the seat of its Member, as contended by the applicants.

The question is not just whether Parliament has the constitutional obligation of the nature contended for by the first applicant under section 119(1), as read with section 129(1)(k), of the Constitution. Such a question would have been posed and determined for the specific purpose of having the relief sought by the first applicant granted as protection and enforcement of the right she claimed she had in the occupation of the seat of Parliament.

A matter is not moot only at the commencement of proceedings. It may be considered moot at the time the decision on the matter is to be made.

The reason for determining the question whether the first applicant has shown that Parliament has a constitutional obligation under section 119(1), as read with section 129(1)(k) of the Constitution of the nature and scope alleged would be the grant of the relief sought. The decision would follow a finding of breach of the constitutional obligation in relation to the right of the first applicant to occupy the seat of Parliament. The dissolution of Parliament rendered it legally meaningless for the Court to grant the first applicant the specific relief she sought by way of the court application. It also became a futile exercise to embark on the consideration and determination of the question whether or not Parliament had a constitutional obligation under section 119(1), as read with section 129(1)(k), of the Constitution of the nature and scope contended for by the first applicant.

In Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342, the Supreme Court of Canada set out the stages of an inquiry into the question whether or not a matter is moot. At p4…, of the judgment it said:

“The doctrine of mootness is part of a general policy that a court may decline to decide a case which raises merely a hypothetical or abstract question. An appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. Such a live controversy must be present not only when the action or proceeding is commenced but also when the court is called upon to reach a decision. The general policy is enforced in moot cases unless the court exercises its discretion to depart from it. The approach with respect to mootness involves a two-step analysis. It is first necessary to determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic. If so, it is then necessary to decide if the court should exercise its discretion to hear the case. (In the interest of clarity, a case is moot if it does not present a concrete controversy even though a court may elect to address the moot issue).”…,.

The constitutional application before the Court is moot as there is no longer a concrete legal dispute between the parties. The purported live controversy is whether the first respondent has a constitutional obligation to subject every dispute that impacts on the tenure of a seat of a Member of Parliament in terms of section 129(1)(k) of the Constitution to the courts for determination. The question became an abstract question when the key relief sought by the first applicant, to be declared a Member of Parliament, was no longer within the power of the Court to grant by operation of law. The relief sought in terms of paragraph 3 of the applicants' draft order, that the third respondent's written notice to the second respondent be declared null and void, was no longer grantable.

In De Funis v Odegaard (1974) 416 US 312, a student was denied admission as a first year law student at the University of Washington Law School. He challenged the decision, contending that the procedures and criteria employed by the Law School Admission Committee discriminated against him on account of his race in violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution. The trial court granted a mandatory injunction commanding the Law School to admit the student. On appeal, the judgment was reversed by the Washington Supreme Court. The student then petitioned the United States Supreme Court for a writ of certiorari. The writ resulted in a stay of execution of the Washington Supreme Court's decision pending the final disposition of the case. By the time the substantive matter came before the Supreme Court, the student had registered for his final quarter in the law school. The Supreme Court held that it could not consider the substantive constitutional issues raised by the parties because the student would complete his law school studies regardless of the decision of the Court.

WOOLMAN & BISHOP, Constitutional Law of South Africa (2ed Juta & Co (Pty) Ltd, Cape Town, 2008) (Cheryl Loots…,.).

The Court cannot order occupation of a seat in a Parliament that has been dissolved in terms of the law at the end of its five-year term. A determination of the question of the existence or otherwise of the alleged constitutional obligation on the first respondent would be done in the abstract as its outcome would have no practical effect on the relief sought by the applicants. The determination of the matter would be an academic exercise. A decision in favour of the first applicant would not be carried into effect.

The refusal of courts to decide cases which have become moot because of cessation of a dispute between parties derives from the common law notion that the function of a court is limited to determining rights and obligations that are actually controverted in the particular case before the court.

In Mills v Green 159 U.S. 651 (1895)…, the Supreme Court of the United States of America held as follows:

“The defendant moved to dismiss the appeal, assigning as one ground of his motion - 'that there is now no actual controversy involving real and substantial rights between the parties to the record, and no subject matter upon which the judgment of this Court can operate.'

We are of opinion that the appeal must be dismissed upon this ground, without considering any other question appearing on the record or discussed by counsel. The duty of this Court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this Court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. And such a fact, when not appearing on the record, may be proved by extrinsic evidence. Lord v Veazie, 8 How. 251; California v San Pablo & Tulare Railroad, 149 U.S. 308.”…,.

WHETHER OR NOT THE COURT MAY HEAR THE MATTER DESPITE THE FINDING OF MOOTNESS

The mere fact that the matter is moot does not constitute an absolute bar to a court to hear a matter. Whilst a matter may be moot, as between the parties, that does not, without more, render it unjusticiable. The court retains a discretion to hear a moot case where it is in the interests of justice to do so. J T Publishing (Pty) Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC)…,.

Courts may be guided in the exercise of discretion by considering the underlying rationale of the mootness doctrine. The Supreme Court of Canada, in Borowski v Canada (Attorney General) [1989] 1 S.C.R. 342, outlined the policy considerations a court may take into account in deciding whether or not to exercise its discretion to hear a moot case. At p 5…., of the judgment it said:

“The first rationale for the policy, with respect to mootness, is that a court's competence to resolve legal disputes is rooted in the adversary system. A full adversarial context, in which both parties have a full stake in the outcome, is fundamental to our legal system. The second is based on the concern for judicial economy which requires that a court examine the circumstances of a case to determine if it is worthwhile to allocate scarce judicial resources to resolve the moot issue. The third underlying rationale of the mootness doctrine is the need for courts to be sensitive to the effectiveness or efficacy of judicial intervention and demonstrate a measure of awareness of the judiciary's role in our political framework. The Court, in exercising its discretion in an appeal which is moot, should consider the extent to which each of these three basic factors is present. The process is not mechanical. The principles may not all support the same conclusion and the presence of one or two of the factors may be overborne by the absence of the third, and vice versa.”

Courts in this jurisdiction do pay homage to the demands of the adversarial system of resolution of disputes. The adversarial system contemplates a situation in which both parties before a court have an interest in the outcome of the case. The system envisages a situation where the determination of the matters in dispute would have practical and tangible consequences for the contending parties. It would not be in the interests of justice for a court to determine a moot case where its decision has no practical effect on the parties.

In Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC), the Constitutional Court of South Africa had occasion to consider the factors which ought to be taken into account in determining whether it is in the interests of justice to hear a moot matter. It held as follows…,:

“This Court has a discretion to decide issues on appeal even if they no longer present existing or live controversies. That discretion must be exercised according to what the interests of justice require. A pre-requisite for the exercise of the discretion is that any order which this Court may make will have some practical effect either on the parties or on others. Other factors that may be relevant will include the nature and extent of the practical effect that any possible order might have, the importance of the issue, its complexity, and the fullness or otherwise of the argument advanced. This does not mean, however, that once this Court has determined one moot issue arising in an appeal it is obliged to determine all other moot issues.”

The argument advanced by counsel for the applicants, at the hearing of the court application, was that the principle of mootness does not apply if the judgment of the Court will have a practical effect. He asserted that the first applicant's seat was declared vacant by the first respondent prematurely, disabling her from completing her term as a Member of Parliament. The argument was that she lost financial benefits that would have accrued to her in her capacity as a Member of Parliament. On this basis, counsel for the applicants argued that if the court application succeeds the first applicant may sue for damages arising out of the second and third respondents' conduct.

It was the first applicant's argument that the Court should not avoid a moot case when it is clear that it concerns issues that are capable of repetition. Counsel for the applicants said that there was need for an authoritative interpretation by the Court of section 129(1)(k) of the Constitution, as numerous matters brought to the Court revolved around the disputed interpretation.

Counsel for the first and second respondents, on the other hand, was on strong ground when he argued that the exercise by a court of the discretion to hear a moot issue is dependent on the facts placed before it. There should be no new issues arising. He argued that the case of loss of financial benefits being asserted by the first applicant was not raised in the papers before the Court. It was an entirely new issue being raised in oral submissions. The factor of “fullness of argument” required to be considered in assessing whether or not it is in the interest of justice to hear a moot matter is absent.

A constitutional matter must be specifically pleaded and motivated in the founding affidavit. A party is not permitted to make his, her or its case through oral argument at the hearing of the constitutional application. It is an established principle of the law that the other party must not be left in any doubt as to the case which he, she or it has to meet.

In Prince v President of the Law Society of the Cape of Good Hope and Others 2001 (2) SA 388 (CC), the Constitutional Court of South Africa held as follows…,:

“Parties who challenge the constitutionality of a provision in a statute must raise the constitutionality of the provisions sought to be challenged at the time they institute legal proceedings. In addition, a party must place before the court information relevant to the determination of the constitutionality of the impugned provisions. Similarly, a party seeking to justify a limitation of a constitutional right must place before the court information relevant to the issue of justification. I would emphasise that all this information must be placed before the court of first instance. The placing of the relevant information is necessary to warn the other party of the case it will have to meet, so as (to) allow it the opportunity to present factual material and legal argument to meet that case. It is not sufficient for a party to raise the constitutionality of a statute only in the heads of argument, without laying a proper foundation for such a challenge in the papers or the pleadings. The other party must be left in no doubt as to the nature of the case it has to meet and the relief that is sought. Nor can parties hope to supplement and make their case on appeal.”…,.

As regards the need for the Court to make an authoritative interpretation of section 129(1)(k) of the Constitution, it is noted that in appropriate circumstances courts have exercised their discretion to decide seemingly moot cases where the result of refusing to decide the issues would create a situation “capable of repetition, yet evading review.” WOOLMAN & BISHOP, Constitutional Law of South Africa (2ed Juta & Co (Pty) Ltd, Cape Town, 2008)…,.

In Roe v Wade 410 U.S. 113 (1973) the Supreme Court of the United States of America exercised its discretion to hear a moot matter because it was potentially capable of repetition yet evading review. In that case, a pregnant woman's class action challenging the constitutionality of State anti-abortion statutes reached the Supreme Court of the United States of America only postpartum. In deciding to hear the case, it held as follows…,:

“The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. United States v Munsingwear, Inc., 340 U. S. 36 (1950); Golden v Zwickler, supra; SEC v Medical Committee for Human Rights, 404 U. S. 403 (1972). But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and, in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of non-mootness. It truly could be 'capable of repetition, yet evading review'. Southern Pacific Terminal Co. v ICC, 219 U.S. 498, 515 (1911). See Moore v Ogilvie 394 U. S. 814, 816 (1969); Carroll v Princess Anne 393 U.S. 175, 178-179 (1968); United States v W.T. Grant Co. 345 U.S. 629, 632-633 (1953).”…,.

In Tremblay v Daigle [1989] 2 S.C.R. 530, the Supreme Court of Canada exercised its discretion to decide an abortion case despite the fact that it had become moot. In this case, Tremblay relied on the constitutional right to life of a foetus to claim an injunction against his girlfriend to restrain her from having an abortion. The Court exercised its discretion to decide the case because it believed that it was important to remove the threat of such injunctive proceedings in the interest of other pregnant women. It held as follows…,:

“As we have indicated, the Court decided, in its discretion, to continue the hearing of this appeal although it was moot, in order to resolve the important legal issue raised so that the situation of women in the position in which Ms. Daigle found herself could be clarified. It would, however, be quite a different matter to explore further legal issues which need not be examined in order to achieve that objective. The jurisprudence of this Court indicates that unnecessary constitutional pronouncement should be avoided: Morgentaler (No.2), supra, at p. 51; Borowski, supra; John Deere Plow Co. v Wharton, [1915] A.C. 330 (P.C.), at p. 339; Winner v S.M.T. (Eastern) Ltd, [1951] S.C.R. 887, at p. 915.”…,.

Where a matter is of such a nature that it might keep arising in the Court or where there is need to resolve a serious legal question, the Court may exercise its discretion to hear the moot issue by reason of its significance, as it would, in such circumstances, be in the interests of justice to make a determination on the issue.

It is the applicants' case that an authoritative interpretation of section 129(1)(k) of the Constitution by the Court is of utmost importance, as similar questions to those raised by the first applicant have seized the Court's mind.

The applicants' argument does not find favour with the Court. It does not take into account the fact that the Court has already made a pronouncement on the interpretation of section 129(1)(k) of the Constitution. In Madzimure and Ors v The President of the Senate and Ors CC08-19…, the Court said:

“The purpose of section 129 of the Constitution is to provide for circumstances in which the tenure of seat of a Member of Parliament comes to an end. Section 129(1)(k) of the Constitution specifies one of the circumstances in which the tenure of seat of a Member of Parliament comes to an end and the seat becomes vacant. Tenure of seat of a Member of Parliament means the tenure of the right of a Member of Parliament to occupy the seat following an election. The provisions of section 129(1)(k) of the Constitution may be summarised as being that –

(a) The Member of Parliament should have been a member of a political party when he or she was elected to Parliament;

(b) The Member of Parliament should have ceased to belong to the political party, either by voluntary withdrawal of membership or by being expelled from the political party concerned; and

(c) The political party concerned should have given a written notice to the Speaker or the President of the Senate of the cessation of membership of it by the Member of Parliament. In the written notice, the political party concerned must declare that the Member of Parliament has ceased to belong to it….,.

The role of the Speaker or the President of the Senate, in the process leading to the creation of a vacancy in the seat of a Member of Parliament in terms of section 129(1)(k) of the Constitution, is facilitative. It is not judicial in nature.

The role the Speaker or the President of the Senate has to play in the process is to satisfy himself or herself that the document he or she has received is from a political party and that it contains a written notice declaring that the Member of Parliament who was a member of that political party when elected to Parliament has ceased to belong to the political party concerned. The Speaker or the President of the Senate has no power to prevent the occurrence of the creation of the vacancy in the seat of a Member of Parliament commanded by section 129(1)(k) of the Constitution as the consequence of the communication and receipt of the written notice.”

An authoritative interpretation of the relevant section has already been given by the Court. It is questionable, to say the least, that the present case can be said to fall into the category of cases where the Court may exercise its discretion to hear a moot case in order to settle an important legal question.

DISPOSITION

In the result, the application is dismissed with no order as to costs.

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati)
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the High Court setting aside the decision of the appellant, made on 8 February 2018, ordering the rewrite of an English language examination at Ordinary Level taken by candidates in November 2017.The appeal is mounted against part of the judgment, in particular, ...

This is an appeal against the judgment of the High Court setting aside the decision of the appellant, made on 8 February 2018, ordering the rewrite of an English language examination at Ordinary Level taken by candidates in November 2017.

The appeal is mounted against part of the judgment, in particular, paragraph 2 of the operative order of the court a quo.

Background

The appellant is the Zimbabwe School Examinations Council (ZIMSEC), a statutory body created in terms of the Zimbabwe School Examinations Council Act [Chapter 25:18]. It is responsible for conducting examinations for primary and secondary schools in Zimbabwe. It is also empowered, in terms of section 34 of its enabling Act, to annul examination results.

The respondents are the respective guardians of two school children who sat to write the Ordinary Level English Paper 1 and Paper 2 examinations conducted by the appellant in November 2017.

It is common cause that there was a leakage of English Paper 2 which led to widespread cheating by candidates who sat for the examination in that paper.

On 6 February 2018, the appellant took the decision to nullify the results of that examination. The appellant also directed a re-sit of that examination which was scheduled for 16 February 2018.

The respondents, being aggrieved by these decisions, filed an urgent chamber application in the High Court for an order setting them aside.

They averred that the decisions were arbitrary and would cause undue hardship to their respective daughters as well as other students who had written their examinations in earnest and without cheating. At the time of the application, the first respondent's daughter had travelled to Australia, while the second respondent's daughter was in Bindura but her examination centre was located in Goromonzi.

The court a quo identified the issues before it as follows:

(i) Whether or not the appellant's nullification of the English Paper 2 examination results ought to stand; and

(ii) Whether a rewrite of that examination was the appropriate remedy.

The court proceeded to uphold the appellant's decision to nullify the results of the Paper 2 examination. However, it set aside the appellant's decision calling for a re-write of the examination and substituted it with an order to the effect that the results of candidates be based on the results in Paper 1 only, as per the recommendations of the English Subject Manager dated 8 January 2018.

In arriving at its decision, the court a quo (which comprised two judges) reasoned that it could not uphold the results of the Paper 2 examination as this would amount to the court aiding and abetting cheating in examinations.

However, the appellant's decision to order a rewrite of the Paper 2 examination was taken without regard to the recommendations of the Subject Manager and was therefore arbitrary in nature. Additionally, that decision was made without taking into account the interests of those children who did not cheat in the examination. It was also possible that many innocent children did not have access to information pertaining to the scheduled re-write of the examination as the notice given by the appellant for the scheduled rewrite was grossly and unreasonably short.

The appellant impugns the judgment a quo on the following grounds, as summarised:

(a) The court granted relief that was not sought or justified on the papers without advance notice or warning to the appellant.

(b) The court substituted its own substantive decision without being possessed of the tools to make such a technical and far-reaching decision.

(c) The only relief that was affordable was an extension of time for re-taking the examination and the effect of the court's substantive decision was to negate the exercise of the appellant's statutory function.

(d) The issues in question were not resoluble on the basis of the Subject Manager's recommendations which had already been rejected by the authority vested with the mandate to consider them.

(e) The court granted final relief on an urgent basis in a matter that was hotly contested and where the parties were not availed sufficient time to advance their contentions....,.

Mootness of the Appeal

Apart from the foregoing grounds of appeal, there is a further aspect arising from a point in limine taken by counsel for the respondents relating to the mootness of the matter in light of developments after the judgment a quo was delivered.

In particular, it is submitted that all the affected students, including the respondents' daughters, have moved on since the events giving rise to this matter. Therefore, any judgment of this Court would not have any impact on their situation and no practical consequences would flow from granting the relief sought by the appellant.

The Court must deal with a controversy that is live and not one that is moot. The appellant “must not have a mere academic interest in the right or obligation in question but…, some tangible and justifiable advantage” in relation to that right or obligation (per CHIDYAUSIKU CJ in Ngulube v Zimbabwe Electricity Authority & Anor SC52–02).

The present matter is clearly academic.

Furthermore, so it is argued, the judgment a quo, although delivered by two judges of that court, has not set any precedent, as there are two subsequent decisions of the High Court that did not follow the impugned decision.

Counsel for the appellant insists that the appeal is not academic.

He submits that the judgment a quo sets a precedent for the appellant's actions in the future, especially because it is one that was delivered by two judges.

The implications of that judgment have practical consequences. If the appellant were to find widespread cheating in its examinations and decides to nullify the results of those examinations, it will be confronted by the judgment a quo. In the circumstances, the present appeal is necessary to vindicate the appellant's right to carry out its administrative functions in accordance with the law.

The question of mootness was fairly comprehensively canvassed in a recent judgment of the Constitutional Court in Khupe & Anor v Parliament of Zimbabwe & Ors CC20-19. As was aptly observed by MALABA CJ…,:

“A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic, by reason of changed circumstances, the Court's jurisdiction ceases and the case becomes moot….,.

The constitutional limits on the exercise of judicial power, combined with notions of the limited nature of judicial power, have evolved into a broad doctrine known as 'justiciability'.”

The position on mootness and justiciability is no different in other common law jurisdictions.

In the early American case of Mills v Green 159 US 651 (1895)…, the Federal Supreme Court held as follows:

“The duty of this Court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.

It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this Court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.”

With specific reference to justiciability, the same court, in Flast v Cohen 392 US 83 (1968)…, opined that:

“Justiciability is the term of art employed to give expression to this dual limitation placed upon Federal Courts by the 'case and controversy' doctrine.

Justiciability is itself a concept of uncertain meaning and scope. Its reach is illustrated by the various grounds upon which questions sought to be adjudicated in Federal Courts have been held not to be justiciable. Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and, when there is no standing to maintain the action.”

To similar effect, the Supreme Court of Canada, in Borowski v Canada (Attorney General) [1989] 1 SCR 342, outlined the two-stage inquiry into the question of mootness:

“An appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. Such a live controversy must be present not only when the action or proceeding is commenced but also when the court is called upon to reach a decision.

The general policy is enforced in moot cases unless the court exercises its discretion to depart from it.

The approach with respect to mootness involves a two-step analysis. It is first necessary to determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic. If so, it is then necessary to decide if the court should exercise its discretion to hear the case.”

The same position has been adopted in South Africa.

In National Coalition for Gay and Lesbian Equality & Ors v Minister of Home Affairs 2000 (2) SA 1 (CC)…, the Constitutional Court held that:

“A case is moot and therefore not justiciable if it no longer presents an existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law.”

Again, in Koko v Eskom Holdings SOC Ltd [2018] ZALCJHB 76…, it was emphasised that:

“Further, the controversy must be a live one. Put differently, it must exist between the warring parties.

A case would be moot if the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court for some other reason cannot operate to grant any actual relief, and the court is without power to grant a decision. It is moot if it no longer presents an existing or live controversy or the prejudice or threat of prejudice which, to an applicant, no longer exists.”

I have already adverted to the two-stage inquiry relating to the question of mootness. As was underscored in Khupe & Anor v Parliament of Zimbabwe & Ors CC20-19…, the mere fact that a matter is moot as between the parties concerned does not per se render it unjusticiable. The next step in the analysis is to decide whether or not the court should exercise its discretion to hear the case. In that respect, courts are guided by the rationale and policy considerations underlying the doctrine of mootness – Borowski v Canada (Attorney General) [1989] 1 SCR 342.

The overriding consideration is whether or not it is in the interests of justice to hear a moot case.

The factors to be taken into account in that regard were lucidly enunciated by the Constitutional Court of South Africa in Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC)…,:

“This Court has a discretion to decide issues on appeal even if they no longer present existing or live controversies. That discretion must be exercised according to what the interests of justice require.

A prerequisite for the exercise of the discretion is that any order which this Court may make will have some practical effect either on the parties or on others. Other factors that may be relevant will include the nature and extent of the practical effect that any possible order might have; the importance of the issue; its complexity; and the fullness or otherwise of the argument advanced.”…,.

An additional factor that may arise for consideration is whether the effect of declining to authoritatively adjudicate a moot issue would create a situation “capable of repetition, yet evading review.”

This was highlighted in two separate cases involving the constitutionality of anti-abortion laws in the United States of America and Canada.

In the celebrated landmark case of Roe v Wade 410 US 113 (1973)…, the Federal Supreme Court held that:

“Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and, in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of non-mootness. It truly could be 'capable of repetition, yet evading review'.”

Again, in Tremblay v Daigle [1989] 2 SCR 530…, the Supreme Court of Canada proceeded on the same basis:

“As we have indicated, the Court decided, in its discretion, to continue the hearing of this appeal, although it was moot, in order to resolve the important legal issue raised so that the situation of women in the position in which Ms. Daigle found herself could be clarified.”

In the final analysis, as I have already stated, the overriding criterion in exercising the court's discretion to hear and determine a moot question is whether or not it is in the interests of justice to do so. In the words of MALABA CJ in Khupe & Anor v Parliament of Zimbabwe & Ors CC20-19…,:

“Where a matter is of such a nature that it might keep arising in the Court or where there is need to resolve a serious legal question, the Court may exercise its discretion to hear the moot issue by reason of its significance, as it would, in such circumstances, be in the interests of justice to make a determination on the issue.”

In casu, it is common cause that pursuant to the judgment a quo all of the students, including the respondents' daughters, who were affected by the appellant's decisions, have in fact moved on to other academic pastures beyond the Ordinary Level stage. Indeed, the only relief that the appellant seeks on appeal is that the challenge to its decision to have the flawed examination retaken be set aside.

It is therefore not in dispute that any decision that this Court might render in this appeal will not entail any practical consequence vis-à-vis the students in question or their examination results as declared by the court a quo. In these circumstances, it cannot be gainsaid that the initial controversy between the parties herein is no longer live and has effectively been extinguished for all practical purposes. That particular controversy has become otiose and substantially moot.

Nevertheless, the question that still remains is whether or not this Court should exercise its discretion to entertain and determine the merits of this appeal despite its apparent mootness.

Having regard to the factors articulated in Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC), I am inclined to answer this question in the affirmative for the following reasons;

There is no doubt that any decision that this Court makes will inevitably have some practical effect on many other students who will, at some stage in the future, sit to write examinations conducted by the appellant. The matter is therefore not one that can be characterised as being entirely academic for all time. In the event that the appellant should, for some good reason, decide to exercise its administrative will to nullify the results of any given examination and require that it be taken afresh, the students that might be affected thereby as well as the appellant itself, will be governed and guided by the decision of this Court.

Thus, the extent of its practical effect would undoubtedly be of a long term and all-embracing nature.

Moreover, the importance and complexity of the issues raised in this appeal are manifestly self-evident.

Additionally, regarded from the different perspective alluded to in Roe v Wade 410 US 113 (1973), there can be no doubt that the refusal by this Court to decide those issues will inevitably create a situation “capable of repetition, yet evading review.”

It seems necessary in the present context to definitively demarcate the proper boundary between ostensibly lawful administrative action on the one hand and appropriate judicial intervention on the other.

Ultimately, I take the view that the Court should hear and decide the issues herein by virtue of their extensive and long term significance which dictates that those issues be determined in the interests of justice.

HB25-12 : GEORGE MPUKUTA vs MOTOR INSURANCE POOL and ZIMBABWE REVENUE AUTHORITY and INSURANCE AND PENSION COMMISSION and MINISTER OF FINANCE
Ruled By: NDOU J

The applicant seeks an order in the following terms:

“It is ordered:

(a) That the 1st respondent not an insurer in terms of the Insurance Act but an association of insurers with no capacity to issue statutory policies in terms of the Road Traffic [Chapter 13:11] or any other law.

(b) That the insurance being issued by the 2nd respondent for and on behalf of 1st respondent is a nullity and therefore void ab initio.

(c) That, alternatively to paragraph (a) and (b) above if the insurance being issued by the 2nd respondent, on behalf of the 1st respondent, be valid, the 1st and 2nd respondents be and are hereby ordered to issue cover notes and discs in terms of section 27(2) of the Road Traffic Act [Chapter 13:11].

(d) That, the 1st, 2nd, and 3rd respondents to pay costs of suit jointly and severally, the one paying the other to be absolved.”

Put in another way, the applicant seeks a declaration in terms of section 14 of the High Court Act [Chapter 7:06] (“section 14)” primarily on the fact that the 1st respondent is not an insurer.

The salient facts are the following;

The applicant is a Zimbabwean citizen who is permanently resident in Botswana. His family is ordinarily resident in Zimbabwe. As a result, he regularly drives to Zimbabwe to visit his family. Upon entry into Zimbabwe, he applies for a temporary import permit for his foreign-registered motor vehicle. He is also required, by the law, to obtain insurance in respect of his motor vehicle. That insurance, at the port of entry, is only obtainable from the second respondent who grants it on behalf of and in the name of the first respondent. The second respondent endorses a stamp in the name of the first respondent on the temporary import permit as proof that the applicant has obtained statutory insurance.

The applicant alleges that, upon renewal of a temporary import permit, the second respondent merely extends the date on the permit without extending the statutory insurance.

The applicant alleges that, as a director in Botswana, he is entitled to a re-imbursement of the expenses which he incurs when he travels. However, his company is refusing to refund him the money which he pays for insurance upon entry into Zimbabwe on the grounds that his purported entry into Zimbabwe is not insured “by a registered and licenced insurer.”

The applicant further cites a single incident when a Zimbabwe Republic Police officer asked for a disc, as defined by the Road Traffic Act, at a police road block. The applicant states that “it is this incident which stimulated” him to seek a legal opinion on the matters at hand. This culminated in the current application.

At the time of the filing of the application, the applicant was not an insurance policy holder and he is non-resident.

The applicant seeks, in essence, a declaratory relief regarding the validity of insurance policies issued in the name of the first respondent, and, alternatively, mandatory relief as regards the issuance of vehicle discs and cover notes by the first respondent.

The first respondent is a Motor Insurance Pool formed by Temporary Risk Pool Agreement between insurers and the Government of Zimbabwe represented by the responsible Minister of Road and Road Traffic. The rights and duties of the Motor Insurance Pool are clearly defined by the said agreement. This agreement has been in existence since January 1965. The relationship between the first and second respondents is governed by an Agency Agreement agreed and signed by the two parties in February 2010.

The respondents raised points in limine which I propose to deal with them in turn.

(a) Is the application incompetent for raising a purely moot cause

It is trite law that it is not the business of the courts to dispense legal advice or express opinions on abstract points. As stated by INNES CJ in Geldenhuys and Neethling v Beuthin 1918 AD…,:

[The courts] “exist for the settlement of concrete controversies and actual infringements of rights, not to pronounce upon abstract questions, or to advise upon differing contentions, however important.”

It is therefore a pre-requisite to the grant of declaratory relief that the applicant must have some “existing, future, or contingent right” that would be affected by the order of the court; Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S)…,.

In other words, “the condition precedent to the grant of a declaratory order 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;” Milani & Anor v South African Medical & Dental Council & Anor 1990 (1) SA 899 (T)…,.

The interest must relate to an existing, future, or contingent right. The court will not decide abstract, academic, or hypothetical questions unrelated to such interest.

This is the first stage in the determination by the court.

At the second stage of the enquiry, it is incumbent upon the court to decide whether or not the case in question is a proper one for the exercise of its discretion under section 14 of the High Court Act [Chapter 7:06].

In this regard, “some tangible and justifiable advantage in relation to the applicant's position with reference to an existing, future, or contingent legal right or obligation must appear to flow from the grant of the declaratory order;” Adbro Investment Co. Ltd v Minister of the Interior & Ors 1961 (3) SA 283 (T)…,.

A matter that does not present a live controversy, having practical consequences, is not justiciable – Radio Pretoria v Chairman, Independent Communications Authority of SA & Anor 2005 (1) SA 47 (SCA) and Mnondo Residents' Association v Moyo & Ors HH66-07.

In this case, the applicant is not an insured of the first respondent because he admits having allowed his policy to lapse three months before making this application. He is not being prosecuted for any real or imagined offence, and, in any event, he has not joined the authorities who might prosecute him. His papers disclose only a minor misunderstanding at a police road block, which was, in any event, resolved in his favor. He only professes to have a “right” against his Botswana employer, who is not party to these proceedings anyway. He has not proved that he is entitled to reimbursement of money expended on his vehicle insurance whilst visiting Zimbabwe. There is no policy document produced evincing such entitlement or rights.

In the final analysis, the applicant's case against the respondents relates to no more than a burning curiosity as to purely theoretical propositions.

The applicant himself states that he simply found himself 'wondering' about certain issues 'that came to mind' and that he sought legal advice in relation to them.

It shows that the applicant has really come to court just to test the correctness of the advice he received. There is no live dispute having any practical consequences as between the applicant and the respondents. This application presents the court with a moot cause. The applicant has not alleged that he made a claim or that there is any other reason to test the validity of the bygone policy. He simply has no relationship with any of the respondents now.

Assuming, in his favour, that he may buy further policies, the applicant's own papers show that any actual dispute that might arise in future, in relation to the issues he “wonders” about, would actually be between the applicant and some parties other than the respondents (i.e. the police or his employer in Botswana) anyway.

There is, therefore, no proper dispute between him and the respondents and any judgment the court gives would be no more than its opinion as to the correctness or otherwise of the applicant's views on the issues about which he professes to be “worried”. It would not be a determination of any concrete controversy or any infringement of rights.

On this point alone, I dismiss the application with costs on the ordinary scale.

Appealed
SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

This is an appeal against the entire judgment of the High Court, sitting at Harare, handed down on 8 May 2019, in which the following order was granted:

1. The appointment of the 2nd and 3rd respondents as Deputy Presidents of the Movement for Democratic Change party were unconstitutional therefore null and void.

2. The appointments of the 2nd respondent, as Acting President and President of the Movement for Democratic Change party, were unconstitutional and therefore null and void.

3. All appointments and/or re-assignments and 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 be and is hereby ordered to hold an Extra-Ordinary Congress after the lapse of at least one month after the date of this Order.

5. The respondents are ordered to pay the applicant's costs of suit, jointly and severally, the one paying the others to be absolved.

The Background

The first appellant is the Movement for Democratic Change, a political party which has capacity to sue and be sued in its own name (“the Party”).

The remaining protagonists are members of the Party who were cited as follows in the court a quo;

The second appellant is the President of the Party, while the third appellant is its National Chairman.

The first respondent, who was the applicant a quo, is the Organising Secretary for the Gokwe Sesame District. The second respondent is the Deputy President, the third respondent is the Acting President and the fourth respondent is the Secretary General of the Party.

The facts relating to this matter are as follows;

On 15 July 2016, the second appellant and the second respondent were appointed Deputy Presidents of the Party by the founding President, the late Dr Morgan Richard Tsvangirai. At the time these appointments were made, the post of Deputy President was occupied by the third respondent, having been elected as such at the Party's Congress held in October 2014.

Following the death of Dr Tsvangirai, on 14 February 2018, a special National Council meeting was convened, on 15 February 2018, whereat the second appellant was confirmed as the Acting President of the Party.

On 24 September 2018, the first respondent launched an application in the High Court challenging the validity of the President's appointment of the second appellant and second respondent as Deputy Presidents of the Party. He averred that such appointments were made ultra vires the Party's constitution as they were not done via an election by Congress. The first respondent argued that the meeting of 15 February 2018 was a non-event as the National Council did not have powers to ordain an Acting President or a President of the Party. He further emphasised that Article 9.21.1 of the Party's constitution was clear that, upon the death of the President, the Deputy President assumed the role of Acting President. As such, he argued that the third respondent, as the duly elected Deputy President of the Party, became Acting President upon the death of Dr Tsvangirai, and was obliged to call for an Extraordinary Congress within a year.

The third appellant opposed the application and deposed to an affidavit on behalf of the first and second appellants as well as the second and fourth respondents. He took four preliminary objections to the application;

(i) Firstly, he contended that the first respondent did not have locus standi to represent the first appellant as he had not produced a solemn declaration reflecting proof of acceptance of his membership of the Party.

(ii) Secondly, he stated that the first respondent's delay in raising his complaints was inordinate and would cause prejudice as many developments had occurred since the appointments under challenge. Further, he claimed that the first respondent had waived his rights to challenge the appointments.

(iii) Thirdly, he argued that the first respondent ought to have exhausted internal remedies provided in the Party's constitution by noting an appeal to its Appeal's Tribunal.

(iv) Lastly, the third appellant contended that the order directing the first appellant to hold an Extra-Ordinary Congress was incompetent relief in an application for a declaratur.

Regarding the merits of the application, the third appellant disputed the validity of the Constitution relied on by the first respondent. He submitted that the “true Constitution” was attached to the late President's opposing affidavit in the case of Patson Murimoga & Anor v Morgan Richard Tsvangirai & Ors HC7453/16.

The third appellant also argued that the appointments by the late President were made in terms of Article 9 of the Constitution which gave the President power to appoint deputies to “officers of Congress” on the instructions of the National Executive and the National Council. It was submitted that the appointments were made on the instructions of the National Council and ratified by the same in terms of Article 18 of the Party's constitution.

The third appellant further submitted that the subsequent occupation, by the second appellant, of the office of Acting President, was valid as it was the result of unanimous assent and was based on the second appellant's valid election as Deputy President.

In his replying affidavit, the first respondent challenged the validity of the third appellant's opposing affidavit. He stated that, in the absence of a mandate from the other parties, the third appellant could not depose to solemn facts on their behalf.

Further, he contended that the third appellant had not shown that he was authorised to represent the Party.

Lastly, the first respondent took the position that the first appellant, together with the second, third, and fourth respondents, were barred for having failed to file their opposition to the application.

Determination of the Court A Quo

On the preliminary objections raised by the parties, the court a quo made the following rulings;

It held that the first appellant was barred for having failed to file an opposing affidavit, as the third appellant, who purported to act on its behalf had failed to show proof of his authority. The court also held that the second and fourth respondents were barred for having failed to file their own opposing papers, while the third respondent was barred for having failed to oppose the application.

In relation to the first respondent's locus standi to institute the proceedings, the court held that his membership card was sufficient proof of his membership of the Party.

Regarding the issue of exhaustion of internal remedies, the court a quo reflected that the relief sought by the first respondent would not be competently granted by the Party's appeals tribunal. The court reasoned that it was more probable that the appeal would not be heard in an impartial manner due to the composition of the Appeals Tribunal.

On the issue of waiver of the first respondent's right to challenge the appointments, the court found that the first respondent had timeously approached the court after he became aware of his rights through a legal opinion furnished to the Party.

On the merits of the application, the court held that the appointments of the second appellant and second respondent, as Deputy Presidents of the Party, having by-passed the electoral process, were ultra vires the Party's constitution.

The court reasoned that the Constitution clearly provided that a Deputy President could only hold office by virtue of an election by Congress. This position was fortified by the court's interpretation of several provisions of the Party's constitution. The court considered the provisions of Article 6.4.4, which relate to the composition of the National Standing Committee. In particular, Article 6.4.4.1 was clear that a member could only occupy the office of Deputy President pursuant to an election at Congress. The late President had acted contrary to this provision by “picking” the second appellant and the second respondent as Deputy Presidents. The court also had regard to Article 9 of the Constitution which provides for the functions of various office bearers, including Deputy Presidents. In particular, Article 9.14 stipulates that all office bearers hold office by virtue of winning an election in Congress in terms of Article 6.4.4. The court highlighted that the President's powers of appointment, in terms of Article 9.1.4, had to be exercised “where such is provided for in the Constitution.” Thus, the President could only appoint the Secretary for Elections in terms of Article 6.4.4(k). The court further indicated that Article 9 listed office bearers and the Deputy President in the singular. In light of this, the court reasoned that the mention of Deputy Presidents in the plural was a typographical error.

The court further considered the powers of the National Council, in terms of Article 18 of the Constitution, to cure an oversight or omission in the appointment of office bearers. The court held that the contention that the National Council had delegated to the late President the power to make the contested appointments was not supported by the evidence. The oversight or omission sought to be cured was not identified in the papers pertaining to the deliberations of the National Council in 2016. Accordingly, Article 18 could not aid the appellants' case. Neither the President nor the National Council could bypass the requirement of holding an election at a Congress to fill those offices that were already provided for under the Constitution.

Additionally, the court took the view that the Party was founded on constitutionalism and social democracy, as per Article 3.1. Thus, the imposition of Deputy Presidents, by the late President, and the imposition of the second appellant as Acting President, acting in concert with the National Council, at its meeting on 15 February 2018, was contrary to those founding values.

In light of these considerations, the court a quo held that the contested appointments were unconstitutional and granted the order aforementioned.

Consequently, the court applied the provisions of Article 9.2.1(b) of the Constitution, in terms of which the Deputy President becomes the Acting President, where the President is unable, for any reason, to perform his or her powers, functions, or administrative duties. The court accordingly concluded that at the time of the late Dr Tsvangirai's death, the third respondent was the Deputy President and ought to have assumed presidential duties, pending the holding of an Extra Ordinary Congress to elect a new President, in terms of Article 9.21.1 of the Constitution.

Grounds of Appeal

There are numerous grounds of appeal herein, some of which are repetitive or should have been conjoined. They are reproduced verbatim as follows:

1. The court a quo erred in coming to the conclusion that first appellant was barred for failing to file an opposing affidavit and so erred in treating a valid affidavit deposed to by the third appellant as pro non scripto, and, in proceeding to determine the matter without hearing the first appellant.

2. A fortiori, the court a quo erred in proceeding in a manner which is in violation of the first appellant's constitutionally-protected right to be heard before an independent and impartial court as envisaged by section 69(2) of the Constitution of Zimbabwe, 2013.

3. Having found that the Constitution relied upon by the appellants at least contemplated the appointment of Deputy Presidents, the court a quo misdirected itself in concluding, without hearing evidence on this material issue, that the reference to Deputy Presidents in that Constitution was a typographical error.

4. A fortiori, the court a quo erred in writing a Constitution for the first appellant and in irregularly bringing it under the authority of such a document.

5. The court a quo erred in not concluding that the appointment of Deputy Presidents in the first appellant was in accordance with the Constitution of that party, had been mandated by congress and the highest decision making organ outside congress, and was, for all purposes, valid as a unanimous decision of a voluntary association.

6. Having been addressed on the law governing voluntary organisations and its effect on the subject before it, the court a quo misdirected itself in not pronouncing itself on that issue and in not deciding a question which was material to the decision required of it.

7. The question of the proper Constitution for the first appellant having been previously resolved in terms of an extant judgment in a matter which involved the same parties and/or at least their privies, the court a quo erred in allowing that issue to be re-opened and in founding its judgment on a Constitution which is foreign to the first appellant.

8. The court a quo erred in treating, without a valid legal or factual basis, the domestic remedies set out under the first appellant's Constitution as ineffectual and in not requiring, in accordance with superior court authority, the exhaustion of those remedies ante the bringing of the matter to court.

9. The court a quo misdirected itself, such misdirection amounting to an error in law, in not finding that the first respondent's participation in the activities of the first appellant, under the leadership of the second appellant, and duration of same, estopped him from contending against the validity of his appointment to the prejudice of the first appellant.

10. The ordinary congress for the first appellant having become due, the court a quo erred in finagling upon that party an extra ordinary congress and so erred in creating a totally untenable position which is at variance with the first appellant's Constitution and is totally unworkable either in fact and/or in law.

11. The court a quo erred in intervening, without a valid legal or factual basis, in the workings of a voluntary association and in subordinating its statutes and unanimous assent to the whims of a dishonestly disgruntled individual....,.

Issues for Determination

Before commencing his submissions, Mr Mpofu indicated that he was abandoning the tenth ground of appeal which avers that the court a quo had “finagled” upon the Party an Extra-Ordinary Congress which was at variance with the Party's constitution.

In my view, he should also have been forthright in abandoning the related seventh ground of appeal which impugns the court a quo for having founded its judgment on a Constitution which was “foreign” to the first appellant. Clearly, this latter ground simply cannot be sustained given the position eventually accepted, and confirmed, by his co-counsel that the document availed by the Court, which was identical to that contained in the appeal record as well as that attached to Dr Tsvangirai's opposing affidavit in Case No. HC7453/16, is the only true and authentic Constitution of the Party for present purposes.

It is that very document which was also relied upon by the court a quo in formulating its judgment.

It follows that the seventh ground of appeal must also be jettisoned. It is accordingly ordered that both the seventh and the tenth grounds of appeal be struck out.

I now turn to the remaining nine grounds of appeal.

As I have already intimated, some of the grounds of appeal ought to be combined so as to rationalise their disposition. On that basis, I consider the following to be the salient issues for determination in casu:

(a) Whether the first appellant was correctly barred a quo, and, consequently, denied the right to be heard.

(b) Whether the first respondent should have exhausted the domestic remedies afforded by the Party constitution before instituting the application a quo.

(c) Whether the first respondent was estopped from challenging the validity of the second respondent's appointment as the leader of the Party.

(d) Whether the reference to Deputy Presidents (in the plural) in the Party constitution was a mere typographical error.

(e) Whether the appointment of the second appellant and the second respondent, as Deputy Presidents of the Party, and the subsequent appointment of the second appellant as its Acting President, were valid as being in accordance with the Party constitution.

(f) Whether there was any valid legal or factual basis for the court a quo to intervene in the workings of the Party as a voluntary organisation....,.

Singular or Plural Deputy Presidents

The court a quo, after scrutinising the Party constitution, determined that it only provided for the existence of a single Deputy President and that the references to Deputy Presidents in the plural were purely typographical errors.

There are at least three clauses in the Constitution that indicate the possibility of more than one Deputy President;

(a) The first is Article 6.4.4.1 which relates to the composition of the National Standing Committee. Article 6.4.4.1(b) explicitly refers to “the Deputy Presidents” as office bearers of that Committee. The same applies to the composition of the National Executive Committee.

(b) In terms of Article 6.5.3(a), this Committee comprises, inter alios, “President and Deputy Presidents”.

(c) The third, more obliquely relevant provision, is Article 9.1.4 which empowers the President to “appoint deputies to offices of Congress.”

Mr Mpofu submits that the court a quo clearly erred in this respect. It could not, without hearing or receiving evidence from the draftsman or the rectification of the relevant provisions, come to the conclusion that the references to Deputy Presidents were nothing more than typographical errors. This was not simply a question of interpretation and the court was duty bound to enforce the Constitution as it is in the absence of clear evidence or rectification.

Mr Madhuku relies on other provisions of the Party constitution, viz. Articles 9.2, 9.3.1(a), 9.21.1 and 10.16.1(a), which support the view that only one Deputy President of the Party is envisaged. These are all substantive provisions and they all provide for the exercise of powers and functions by a single Deputy President. To interpret the Constitution to provide for more than one Deputy President would lead to absurdity and impracticability as to which Deputy President should perform which particular function. Additionally, the Constitution only provides for the election of one Deputy President. There is no need for any evidence to prove that the references to Deputy Presidents were clearly typographical errors.

It is, in essence, a question of interpretation, and, therefore, a question of law rather than fact.

A closer consideration of the provisions relied upon by Mr Madhuku demonstrates that he is absolutely correct.

Article 9.2.1 delineates the duties of “the Deputy President”, including acting on behalf of the President in his absence and carrying out such functions as may be assigned to him by the National Council. Article 9.3.1(a) spells out the duty of the National Chairman to perform the duties of the President's office in the event that “both the President and the Deputy President” are unable to perform the functions of that office. Article 9.21.1 is a crucial provision…,. It stipulates that, in the event of the death or resignation of the President, “the Deputy President” assumes the role of “Acting President”. It clearly does not contemplate the confusing and conflicting possibility of several Deputy Presidents assuming the pivotal and singular role of Acting President. Lastly, there is Article 10.16 which provides for the establishment of an Advocacy Committee. Article 10.16.1(a) assigns the specific function of chairing that Committee to “the Deputy President.”

In light of the aforestated provisions, it is reasonably clear that the Party constitution, read holistically, postulates the appointment and tenure in office of only one Deputy President at any given time. I acknowledge that it might be somewhat churlish to totally disregard the two provisions alluded to earlier which appear to suggest the existence of more than one Deputy President. In the final analysis, however, I take the view that these two provisions, but only to the extent that they refer to more than one Deputy President, are patently incongruous and incompatible with the overall structure and tenor of the Party constitution. Taken literally, they would lead to the glaring absurdities that I have already adverted to, stultifying the effective and fluid operation of the Party as a viable political organisation.

To conclude on this aspect, I am satisfied that the third and fourth grounds of appeal cannot be upheld and must accordingly be dismissed.

Validity of Appointments to Presidency

The essential crux of this appeal is whether or not the appointment of the second appellant as Deputy President and then as Acting President was in conformity with the Party constitution.

The second appellant and the second respondent were appointed as Deputy Presidents on 15 July 2016 by the President, Dr Tsvangirai. Thereafter, at the special National Council meeting held on 15 February 2018, the second appellant was confirmed as the Acting President of the Party.

In my view, the entire appeal hinges on the critical question as to the validity of these appointments under the Party constitution.

As regards the first appointment, the opposing affidavit of Dr Tsvangirai, in Case No. HC7453/16, sets out his perspective on the matter. According to that affidavit, both the National Executive Committee and the National Council, at their meetings held on 14 July 2016, directed that he should exercise his prerogative in appointing additional Deputy Presidents. He proceeded to do so the following day. Subsequently, on 3 August 2016, the National Council, with an overwhelming majority, endorsed the appointment of the second appellant and the second respondent to the positions of Deputy Presidents.

Mr Mpofu supports this position by placing reliance on Article 9.1.2(f) as read with Article 18 of the Party constitution. He submits that any omission in the Constitution relating to the appointment or election of office bearers is to be resolved by the National Council in terms of Article 18. In casu, the decision of the National Council reflected the unanimous position of the Party, and, once that decision was ratified, by unanimous assent, it became the decision of the Party itself.

Mr Mpofu buttresses his argument by reference to Articles 6.4.4.1(b) and 6.5.3(a), which refer to “Deputy Presidents”, as well as Article 9.1.4, in terms of which the President is allowed to “appoint deputies to officers of Congress”. Thus, the President can appoint additional Deputy Presidents on his own prerogative following a recommendation from the National Council.

By virtue of Articles 6.4.1 and 6.4.2.1(a), the National Council is “the Party's main policy implementing organ” and has the power to “implement the decisions and resolutions of the Congress”. The powers of the National Council, under Article 6.4.2.1, are not exhaustive “but without prejudice to the generality of its powers.” It operates as the highest decision making body outside Congress and is effectively Congress outside Congress. It can make key decisions in relation to structural omissions in the Constitution, which decisions can then be ratified through unanimous assent by Congress.

Mr Mutungura submits that the President and the National Council cannot authorise the appointment of any one or more Deputy Presidents. He, she, or they must be elected by the Congress. As regards Article 9.1.4, this provision only allows the President to appoint deputies to officers of Congress and other office bearers where this is provided for in the Constitution, for instance, in terms of Article 6.4.4.1(k), which allows the President to appoint the Secretary for Elections.

Mr Madhuku endorses the position that Article 9.1.4 must be confined to appointments in respect of which the Constitution specifically so provides, as in the case of the Secretary for Elections. He further submits that the powers of the Deputy President, under Article 9.2, are critical and it would be strange that the President would have the power to appoint the Deputy President. He or she is a possible or potential President and his or her appointment should not be totally dependent on the President. With reference to Article 18, this provision relates to omissions and oversights and not to the filling of the position of Deputy President where that position is already occupied by virtue of an election.

It is necessary, in the first instance, to place the relevant provisions of the Party constitution in their proper perspective.

Article 6 sets out the organs of the Party and elaborates their respective functions, powers, and duties. Article 6.1 enumerates the upper echelons of the Party hierarchy in order of precedence, namely, the Congress, the National Conference, the National Council, the National Executive Committee, and the National Standing Committee. Article 9 is titled “Office Bearers, National Council & Their Election Procedures”. However, although all the office bearers and their respective functions are particularised, I am unable to discern any specific provision, whether in Article 9 or elsewhere in the Constitution, that is germane to the election procedures applicable to the appointment of office bearers of the Party.

Having outlined this broad framework, I turn to consider the salient provisions regulating the powers of the President and the National Council vis-à-vis the appointment of office bearers.

Article 6.4.2.1 spells out the powers of the National Council which, as I have already indicated, are “without prejudice to the generality of its powers” as being “the Party's main policy implementing organ.” By virtue of Article 6.4.2.1(k), it is empowered “to fill any vacancy, by way of an election, in the National Council caused through resignation, death, or any other cause.”…,. According to Article 6.4.3(a), the National Council comprises, inter alios, “all members of the National Standing Committee” which, in terms of Article 6.4.4.1, is composed of “the following office bearers elected by Congress”…,. including the President and the Deputy President.

My reading of these provisions is that the National Council is vested with the power to fill any vacancy within its ranks, arising from any cause whatsoever – but, only by way of an election. However, it is not clear precisely how any such election is to be conducted. In any event, that process of filling any vacancy by election, presumably through a meeting of the National Council itself, only extends and applies to members other than those office bearers who comprise the National Standing Committee, including the President and the Deputy President, who must be elected by Congress and not by any other Party organ.

Turning to the powers of appointment specifically vested in the President, these are to be found in Article 9.1.4 as read with Articles 6.4.4.1(k) and 6.5.2(b).

In terms of Article 9.1.4, the President “shall appoint deputies to officers of Congress…, and other office bearers where such is provided for in this Constitution.”….,.

`The first point to note about the latter provision is that it appears to be designed to enable the President to appoint deputies to officers of Congress, other than himself, given that his deputy is already an officer of Congress. Secondly, and more significantly, his power to appoint deputies to officers of Congress and other office bearers is explicitly confined to those instances where this is specifically provided for in the Constitution. One such instance is stipulated in Article 6.4.4.1(k) with respect to the Secretary for Elections “who shall be appointed by the President.” Another instance is that referred to in Article 6.5.2(c) which provides that the National Executive Committee shall be composed of, inter alios, “the twenty members appointed by the President, provided that the President may appoint up to twenty-five members with the approval of two thirds majority of the National Council.” Apart from these two situations, there may well be other instances where the President is expressly authorized to make appointments in terms of the Constitution.

What is critical in all of these cases is that the President's power to so appoint must be specifically conferred by the Constitution.

The next question to consider is the scope of the power, if any, exercisable by the President, acting in conjunction with the National Council, to make appointments within the Party hierarchy.

The provision that is assiduously relied upon by the appellants in this regard is Article 18. It is necessary to set it out in full:

“In any place [sic] where the requirements of this Constitution cannot be satisfied because of an omission or oversight in draughtsmanship, or because a body provided for has not been established, or an officer provided for in this Constitution has not been elected or appointed, or because of a procedural problem; the National Council shall have the power to make such arrangements which, in their opinion, satisfy the spirit of this Constitution and shall seek approval for such arrangements at the next Congress.”…,.

Also to be considered in tandem with this provision is Article 9.1.2(f) relative to the duties of the President:

“It shall be the duty of the President:…,;

(f) To perform such other functions and duties and exercise such powers as may be assigned to him or her in terms of this Constitution by the National Council.”…,.

As I read these provisions, there are two principal obstacles that the appellants cannot surmount in their endeavour to apply them to the appointment of two additional Deputy Presidents by Dr Tsvangirai;

(i) First and foremost, in light of my earlier conclusion that the Party constitution only contemplates a single Deputy President, and, given that the third respondent was already in occupation of that office, it cannot be said that an officer provided for in the Constitution had not been elected or appointed. In short, there was no casus omissus or lacuna in the Constitution that needed to be cured or rectified.

(ii) Secondly, whatever arrangements that the National Council might conceive or devise to obviate the omission or oversight in draughtsmanship, if any, and whatever power that the Council may assign to the President for that purpose, both the exercise of such power and such arrangements must satisfy the spirit of the Constitution, albeit, in the opinion of the Council.

As I have already emphasized, Article 6.4.4.1 makes it unquestionably clear that the incumbent of the office of Deputy President must be elected by Congress. Furthermore, as was aptly observed by the court a quo, Article 3.1 of the Constitution enshrines the “core values” of the MDC as “a Social Democratic Party" with “humble and obedient leadership and accountability.”

To my mind, the appointment of supernumerary functionaries, by executive dictat, and in violation of the prescribed elective process, simply cannot be countenanced as having satisfied the social democratic spirit of the Party constitution. It follows that the appointment of the second appellant and the second respondent, as additional Deputy Presidents, were patently unconstitutional and quite correctly nullified by the court a quo.

I now turn to the appointment of the second appellant as the Acting President of the Party on 15 February 2018.

As already stated, this appointment was effectuated at a special meeting of the National Council. The meeting was convened through the normal channels before the death of Dr Tsvangirai on 14 February 2018. According to Mr Mpofu, the meeting was neither convened nor chaired by the second appellant. It was chaired by the third appellant, as the National Chairman, in accordance with Article 9.3.1(h) of the Constitution. The meeting was not orchestrated or controlled by the second appellant. Mr Mpofu further submits that, in the situation where the President dies, the National Council can determine which Deputy President should become the Acting President. The meeting was convened before the death of Dr Tsvangirai and the question of who should be the Acting President was already a contentious issue. The agenda of the meeting had not been altered and the question of cohesion within the Party was relevant.

A perusal of the minutes of the special meeting shows that the meeting was indeed opened by the third appellant who, at that time, was the Deputy National Chairman. However, the minutes also reveal that the second appellant was listed as “Acting President Chairing” and delivered a report as “the Acting President.” In any event, the National Council unanimously re-affirmed and appointed the second appellant as the current incumbent Acting President of the Party for the next twelve months.

To my mind, the questions as to who convened or chaired the special meeting and for what specific objective are not of any particular relevance for present purposes. The critical issue in casu is whether or not the second appellant was validly appointed or re-affirmed as the Acting President of the Party.

The answer to that question can only be in the negative for the following reasons;

(a) Firstly, as I have already determined, the second appellant was not constitutionally appointed as an additional Deputy President. Consequently, he could not at any stage validly assume the mantle of Acting President.

(b) Secondly, and equally significantly, immediately following the death of Dr Tsvangirai, Article 9.21.1 of the Constitution came into play. It provides that:

“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 Extra-Ordinary Congress to be [sic] held no later than a year from the death or resignation of the former President.”

The import of this provision is clear and unambiguous.

Its effect, in casu, is that upon the demise of Dr Tsvangirai, on 14 February 2018, the third respondent, as the only lawfully elected Deputy President, became the Acting President of the Party pending the holding of an Extra-Ordinary Congress to elect a new President. No other Party member, of whatever rank or position, could validly step in to assume the office of Acting President. Only the third respondent could lawfully wear that laurel.

It follows from the foregoing that the second appellant was not lawfully “appointed” or “reaffirmed” as the Acting President of the Party.

The conclusion of the court a quo in this respect was eminently unimpeachable. It also follows that the fourth ground of appeal is devoid of merit and must be dismissed

Intervention in Workings of First Appellant

The gravamen of the sixth and eleventh grounds of appeal is that the court a quo erred in ignoring the law governing voluntary organisations and thereby erred in intervening, without a valid legal or factual basis, in the workings of a voluntary association.

Mr Mpofu's position in this regard is that, unless there are exceptional circumstances, the courts should not interfere in the affairs of voluntary organizations - especially political parties.

I cannot but agree with the proposition that the courts should ordinarily be astute not to trample upon the consensually crafted articles of governance adopted by voluntary organisations. In other words, they should be loathe to intervene in the workings and affairs of a voluntary association.

Nevertheless, as is quite correctly accepted by Mr Mpofu, such interference may be warranted and justified in exceptional circumstances.

Such circumstances were clearly identified by the learned judge a quo. She aptly noted that the ethos of the Party was predicated on the foundation of social democracy. She then proceeded to observe that the anointing of additional Deputy Presidents, in 2016, by the late President and the subsequent imposition of the second appellant as the Acting President, on 15 February 2018, contradicted the democratic intention behind the selection of leadership within the Party. To use her own words:

“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 an election. Succession by choice is not intra vires the first respondent's Constitution.”

I can do no better than to echo the above sentiments and I fully endorse the exercise of the court a quo's discretion in interfering with the parlous affairs of the Party in the circumstances before the court.

I am amply satisfied that the sixth and eleventh grounds of appeal are entirely un-meritorious and therefore cannot be upheld.

Mootness of the Matter

This matter was heard a quo on 14 March 2019 and judgment therein was handed down on 8 May 2019. Soon thereafter, in June 2019, the Party convened a Congress at which elections were held and officials were elected to lead the Party. More significantly, the second appellant was elected as the President of the Party.

The question that then arises is whether or not this matter has been overtaken by events and thereby rendered moot.

Mr Mutungura accepts that the third respondent may have moved on. He contends, however, that she is still part and parcel of the Party. Furthermore, it was not MDC-T but MDC-A that elected the second appellant as its President. Therefore, the issues in casu are not moot.

Mr Madhuku denies that the third appellant has moved on. There are now two groups calling themselves MDC-T and there is therefore a leadership wrangle that must be resolved. In any case, what happened on 15 February 2018 was a blatant illegality and the failure to comply with the Party constitution is fatal. It is therefore necessary for the Party to have a properly convened Extra-Ordinary Congress to appoint a new President. Mr Madhuku further submits that this Court must act on the basis of the facts before it and cannot rely on questions of practicability or possible political outcomes. The law must be fully complied with and the Court does not have sufficient material before it to find mootness or otherwise.

Mr Mpofu points to the averments contained in the first respondent's founding affidavit a quo which indicate that the third respondent purported to hold her own Congress in April 2018 and is now leading her own party. The third appellant's opposing affidavit a quo also avers that the third respondent is no longer a member of the Party having decided to form her new party. These are undisputed averments and allegations of fact. The third respondent cannot possibly seek any relief from this Court. The judgment a quo has been overtaken by lawful election processes conducted by the Party at its Congress held in June 2019. The present matter is therefore clearly moot.

The principles governing mootness are relatively well established;

(a) The first is that a court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy between the parties. Thus, if the dispute becomes academic by reason of changed circumstances, the case becomes moot and the jurisdiction of the court is no longer sustainable – Khupe & Anor v Parliament of Zimbabwe & Ors CC20-19…,.

To put it differently, the controversy must be existing or live and not purely hypothetical – Koko v Eskom Holdings Soc Limited [2018] ZALCJHB 76…,; National Coalition for Gay and Lesbian Equality & Ors v Minister of Home Affairs 2000 (2) SA 1 (CC)…,.

(b) The second principle is that mootness does not constitute an absolute bar to the justiciability of the matter. The court retains its discretion to hear a moot case where it is in the interests of justice to do so – Khupe & Anor v Parliament of Zimbabwe & Ors CC20-19…,; J.T. Publishing (Pty) Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC)…,.

This may arise where the court's determination will have some practical effect, either on the parties concerned or on others, and the nature and extent of such practical effect, or because of the importance or complexity of the issues involved – Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC)…,.

In short, the court may exercise its discretion to hear a moot issue by reason of its significance, practical or otherwise, and the need for an authoritative determination on that issue in the interests of justice.

It thus becomes necessary, in casu, to answer two inter-linking questions: has the present matter been overtaken by events and thereby rendered moot?; and, if so, should this Court nevertheless render its definitive determination in the matter in the interests of justice?

It is at this juncture that I am confronted by what I perceive to be the ineluctable exigencies of realpolitik.

The evidence on record, as elaborated by submissions from counsel, suggests that the third respondent may have moved on to other political pastures. However, there is no clear evidence to the effect that she has unequivocally relinquished her political rights and interests in the Party.

On the other hand, it seems relatively clear that the second appellant has become “the chosen leader” of the Party.

The Court cannot but take judicial notice of the following political realities;

(i) Firstly, as appears from the voting results of the last general election, held in July 2018, the second appellant was the only viable opposition contender for the Presidency. He actually garnered 44.39% of the total valid votes cast in the presidential election, as compared with the winning candidate, the incumbent President of the country, who obtained 50.67% of the votes cast.

In contrast, the next highest ranking candidate, being the third respondent, only secured a paltry 0.94% of the valid votes cast.

(ii) Secondly, and equally significantly, he was unanimously elected as the President of the Party, i.e. the one that is presently before this Court, at its Congress convened in June 2019.

These are the inescapable facts that loom large on the country's political landscape. What this factual conspectus brings to the fore is the concept of de facto and effective control as expounded in the renowned case of Madzimbamuto v Lardner-Burke N.O. & Anor N.O.; Baron v Ayre N.O. & Ors N.N.O. 1968 (2) SA 284 (RAD).

This case revolved around the legitimacy of the Rhodesian Government and its enactments after it had usurped Governmental authority following the infamous Unilateral Declaration of Independence on 11 November 1965. BEADLE CJ took the position that the status of the Government was that of a fully de facto Government as one that was in effective control of the territory and that this control seemed likely to continue. However, it was not yet so firmly established as to justify a finding that its status was that of a de jure Government. QUENET JP took a firmer position and held that the Government was not only the country's de facto Government but had also acquired internal de jure status. MACDONALD JA echoed that position and took the view that the Government was the Government “for the time being” within the state of Rhodesia and therefore a de facto Government within the meaning of English Constitutional Law. Consequently, insofar as a Municipal Court is concerned, a de facto Government is a de jure Government in the sense that it is the only law-making and law-enforcing Government functioning “for the time being” within the State. JARVIS AJA also found that the Government had effective control of the territory and that this control seemed likely to continue. The only judge to take a firm dissenting position was FIELDSEND AJA. He held that, while the authorities were factually in control of all executive and legislative powers in Rhodesia, they had not usurped the judicial function. Accordingly, they were neither a de facto nor a de jure Government. However, necessity provided a basis for the acceptance as valid of certain acts of the authorities. This was so provided that the administrative or legislative act in question was directed to and reasonably required for the ordinary orderly running of the country, that the rights of citizens under the lawful 1961 Constitution were not defeated, and that there was no public policy consideration which precluded the court from upholding the act.

The judgment of the Appellate Division was taken on appeal to the Privy Council in Madzimbamuto v Lardner-Burke & Anor [1969] 1 AC 645.

LORD REED, writing for the majority, opined that the conceptions of International Law, as to de facto and de jure status, were inappropriate where a court sitting in a particular territory had to decide on the validity or otherwise of a new regime which had gained control of that territory. Accordingly, the usurping Government in control of Southern Rhodesia could not, for any purpose, be regarded as a lawful Government. As regards necessity and the need to preserve law and order within the territory controlled by the usurper, no such principle could override the legal right of the United Kingdom to make such laws as it deemed proper for territories under the Queen's sovereignty. Thus, no purported law made by any person or body in Southern Rhodesia, no matter how necessary such law might be for preserving law and order or otherwise, could have any legal effect whatsoever. Consequently, the emergency regulations, made by the Officer administering the Government in Rhodesia, were void and of no effect.

The determination of the Appellate Division was therefore erroneous and the order under which the appellant's husband was detained was invalid.

LORD PEARCE delivered a dissenting judgment affirming the views of FIELDSEND AJA, based on the principle of necessity or implied mandate from the lawful sovereign. The court a quo was enjoined to accord recognition to certain of the acts, orders, and legislation of the illegal regime because chaos would result if provisions made by the illegal regime for the lawful needs of the territory were to be disregarded. A reasonable margin of common sense was to be applied to the factual situation existing in Southern Rhodesia and it was not necessary to treat all the acts or legislation of the illegal regime as invalid for any purpose at all. Accordingly, the doctrine of necessity or implied mandate applied and the appeal should be dismissed.

In the event, the Privy Council, by a majority of four to one, reversed the decision of the Appellate Division. Consequently, the Queen was to be advised to declare that the determination of the court a quo, with regard to the validity of the Emergency Powers Regulations made in Southern Rhodesia since 11 November 1965, was erroneous and that such regulations had no legal validity, force, or effect.

I fully appreciate that the principles enunciated by the Appellate Division and the Privy Council in Madzimbamuto v Lardner-Burke N.O. & Anor N.O.; Baron v Ayre N.O. & Ors N.N.O. 1968 (2) SA 284 (RAD) derive from conceptions applicable to sovereignty and legitimacy in the realms of Constitutional Law and International Law. Nevertheless, I take the view that these principles are equally relevant and germane to the factual situation in casu. Their application will assist the Court in evaluating the mootness or otherwise of the present matter and in determining the position that the Court should adopt in the event that the matter is found to be moot.

As I have already intimated, the Court is constrained to take judicial notice of the prevailing political realities within the Party that is presently before us. There can be no doubt that the second appellant and his lieutenants are in de facto and effective control of the Party. There is nothing to suggest that the situation will not continue for some time or that the second appellant is likely to be eclipsed and supplanted as the leader of the Party in the foreseeable future. While the Court cannot, with any accuracy, predict the future political path of the Party, we certainly cannot totally disregard the political realities on the ground. In the premises, I am inclined to agree with the appellants that the present matter has indeed been rendered moot and academic.

That, however, is not the end of the matter.

The question that then arises is whether or not the Court should nevertheless proceed to deliver its definitive pronouncement pursuant to my earlier determination of the substantive merits of this appeal.

It is common cause that the Party is the main opposition political entity in this country, having secured 88 out of 270 seats in the National Assembly and 25 out of 60 seats in the Senate, at the last general election held in July 2018. It is not inconceivable, given the vagaries and vicissitudes of political fortune, that it might someday be electorally elevated to become the ruling party in Zimbabwe. As I have noted earlier, Article 3 of the Party constitution enshrines its status as “a Social Democratic Party whose core values shall be solidarity, justice, equality, liberty, freedom, transparency, humble and obedient leadership and accountability.” These core values of the Party, if they are not to be reduced to merely hollow rhetoric, necessarily implicate the principles of good governance and adherence to the leadership requirements embodied in the Constitution.

The analysis of the relevant provisions of the Constitution that I have articulated in addressing the grounds of appeal makes it abundantly clear that the second appellant's ascent to the helm of the Party was fundamentally flawed by gross Constitutional irregularities. To perpetuate that situation, without appropriate correction, would not only undermine the ethos and dictates of the Constitution but would also infringe the rights of all the Party's members to a constitutionally elected leadership. It would further operate to violate the founding values enunciated in section 3(1) of the National Constitution, to wit, the rule of law and its concomitant doctrine of legality as well as the principles of good governance.

In the final analysis, I take the view that the corrective intervention of this Court, in the affairs of the Party, is a matter of significant public importance, not only in relation to the Party and its members but also as regards the governance of political parties generally. It is necessary that the Court should deliver its definitive pronouncement on the legitimacy of the second appellant's ascent to the presidency of the Party. It is further necessary to ensure that the leadership of the Party is constitutionally and lawfully ensconced.

The imbroglio that the Party's leadership has become entangled in may well be water under the bridge. But, it is a bridge that, for the sake of the Party's stature and credibility, needs to be correctly and systematically constructed. In short, notwithstanding the political mootness of this matter, it is imperative that there should be an authoritative determination of this appeal in the interests of justice.

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O.
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

THE LAW ON MOOTNESSA matter is moot if the dispute becomes academic by reason of changed circumstances, thus making the jurisdiction of the court unsustainable.The issue was comprehensively dealt with by the Constitutional Court in Thokozani Khupe Anor v Parliament of Zimbabwe Ors CC20-19…, where it ...

THE LAW ON MOOTNESS

A matter is moot if the dispute becomes academic by reason of changed circumstances, thus making the jurisdiction of the court unsustainable.

The issue was comprehensively dealt with by the Constitutional Court in Thokozani Khupe & Anor v Parliament of Zimbabwe & Ors CC20-19…, where it held as follows:

“A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic, by reason of changed circumstances, the Court's jurisdiction ceases and the case becomes moot…,.

The question of mootness is an important issue that the Court must take into account when faced with a dispute between parties. It is incumbent upon the Court to determine whether an application before it still presents a live dispute as between the parties.

The question of mootness of a dispute has featured repeatedly in this and other jurisdictions.

The position of the law is that a court hearing a matter will not readily accept an invitation to adjudicate on issues which are of 'such a nature that the decision sought will have no practical effect or result.'”

The above principle was followed in MDC & Ors v Mashavira & Ors SC56-20…, where it was stated:

“…,. A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy between the parties….,. [I]f the dispute becomes academic by reason of changed circumstances, the case becomes moot and the jurisdiction of the court is no longer sustainable.”

In ZIMSEC v Mukomeka and Anor SC10-20…, PATEL JA, at pp6-7, set out a two–stage approach in determining whether or not an appeal is moot. The learned Judge cited the Supreme Court of Canada, in Borowski v Canada (Attorney General) [1989] 1 SCR 342, where it was held that:

“It is first necessary to determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic. If so, it is then necessary to decide if the court should exercise its discretion to hear the case.”

In respect of the second stage of an inquiry on mootness, PATEL JA held, at p7, that:

“The next step in the analysis is to decide whether or not the court should exercise its discretion to hear the case. In that respect, courts are guided by the rationale and policy considerations underlying the doctrine of mootness: Borowski's case, supra.

The overriding consideration is whether or not it is in the interests of justice to hear a moot case. The factors to be taken into account in that regard were lucidly enunciated by the Constitutional Court of South Africa in Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) at para 11:

'…,. Discretion must be exercised according to what the interests of justice require.

A pre-requisite for the exercise of the discretion is that any order which this Court may make will have some practical effect either on the parties or on others. Other factors that may be relevant will include the nature and extent of the practical effect that any possible order might have, the importance of the issue, its complexity, and the fullness or otherwise of the argument advanced.'”…,.

The doctrine is well developed in American law. A case is moot if it:

“…, seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has actually been asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical effect upon a then existing controversy.”

See Ex Parte Steel 162 Fed. 694, 701 (N.D.Ala. 1908).

Furthermore, a case is moot:

“If the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court, for some other reason cannot operate to grant any actual relief…, and the court is without power to grant a decision.”

See Diamond, Sidney A. “Federal Jurisdiction to Decide Moot Cases” University of Pennsylvania Law Review Vol. 94…,.

Barron and Dienes Barron J (eds) Barron J and Dienes T (eds) Constitutional Law (West St Paul, Min 1995) put it succinctly when they observed that "a case or controversy requires present flesh and blood dispute that the courts can resolve."

In South African Jurisprudence, mootness is when a matter “no longer presents an existing or live controversy”: see National Coalition for Gay and Lesbian Equality & Ors v Minister of Home Affairs 2000 (2) SA 1 (CC)…,.

Section 16(2)(a)(i) of the South African Supreme Court Act provides as follows:

“(i) When, at the hearing of an appeal, the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.”

It can be gathered from the above authorities that mootness essentially restricts the court's jurisdiction to hear or determine a matter, particularly if giving the judgment in that matter will produce no tangible result but merely an opinion. It is based on the notion that judicial resources ought to be utilised efficiently and not dedicated to advisory opinions.

However, the fact that a matter is moot is not an absolute bar for the court to decide an appeal where the interests of justice so require.

An analysis of decisions in which Zimbabwean Courts proceeded to determine matters despite the fact that they had become moot exposes the application of the foregoing principles.

In the case of Stevenson v Minister of Local Government & Ors 2002 (1) ZLR 498 (S)…, the court heard a matter that was moot for the purpose of determining the party liable to pay costs. SANDURA JA held as follows:

“In the circumstances, the learned judge in the court a quo should have dealt with the issues raised in the appellant's application.

However, it is pertinent to note that after the appeal in this matter had been noted, mayoral and council elections for Harare were held in March 2002. It follows, therefore, that the reason for the appellant's application has now fallen away.

Nevertheless, a determination of the issues raised in the application is essential for the purpose of determining which party should pay the costs of the application in the court a quo….,.”…,.

See also Francis Bere v Judicial Service Commission & Ors SC01-22.

The South African courts have attempted to outline factors to be considered when a court wishes to break through the veil of mootness to decide an appeal that is moot for justice's sake. In VINPRO NPC v The President of the Republic of South Africa & Ors (741/2021) [2021] ZAWHCHC 149 the court opined as follows:

“[50] Moreover, this Court has proffered further factors that ought to be considered when determining whether it is in the interests of justice to hear a moot matter. These include -

(a) Whether any order which it may make will have some practical effect either on the parties or on others;

(b) The nature and extent of the practical effect that any possible order might have;

(c) The importance of the issue;

(d) The complexity of the issue;

(e) The fullness or otherwise of the arguments advanced; and

(f) Resolving the disputes between different courts.”

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Zimbabwe

Jurisdiction re: Approach iro Academic or Moot Proceedings and the Doctrine of Justiciability

CC20-19 : THOKOZANI KHUPE and MOVEMENT FOR DEMOCRATIC CHANGE – TSVANGIRAI (MDC-T) vs PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY and MORGEN KOMICHI
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAKONI JCC

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati)
Ruled By: PATEL JA, BHUNU JA and BERE JA

HB25-12 : GEORGE MPUKUTA vs MOTOR INSURANCE POOL and ZIMBABWE REVENUE AUTHORITY and INSURANCE AND PENSION COMMISSION and MINISTER OF FINANCE
Ruled By: NDOU J

Appealed
SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O.
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

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Law Portal Zimbabwe

Jurisdiction re: Approach iro Academic or Moot Proceedings and the Doctrine of Justiciability

CC20-19 : THOKOZANI KHUPE and MOVEMENT FOR DEMOCRATIC CHANGE – TSVANGIRAI (MDC-T) vs PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY and MORGEN KOMICHI Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAKONI JCC

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati) Ruled By: PATEL JA, BHUNU JA and BERE JA

HB25-12 : GEORGE MPUKUTA vs MOTOR INSURANCE POOL and ZIMBABWE REVENUE AUTHORITY and INSURANCE AND PENSION COMMISSION and MINISTER OF FINANCE Ruled By: NDOU J

Appealed SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA Ruled By: GARWE JA, PATEL JA and GUVAVA JA

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O. Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

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Law Portal
Zimbabwe

CC20-19 : THOKOZANI KHUPE and MOVEMENT FOR DEMOCRATIC CHANGE – TSVANGIRAI (MDC-T) vs PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY and MORGEN KOMICHI
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAKONI JCC

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati)
Ruled By: PATEL JA, BHUNU JA and BERE JA

HB25-12 : GEORGE MPUKUTA vs MOTOR INSURANCE POOL and ZIMBABWE REVENUE AUTHORITY and INSURANCE AND PENSION COMMISSION and MINISTER OF FINANCE
Ruled By: NDOU J

Appealed
SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O.
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA