PATEL
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 reassignments 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 respondents 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 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 Extra-Ordinary 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 bypassed 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 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 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 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 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 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.
Procedural
Issues
At
the initial hearing of this matter Mr Mpofu, lead counsel for the
appellants, complained that the appeal record was incomplete. The
appellants had therefore filed an application in the High Court, in
Case No. HC8183/79, for the rectification of the record. This was
because there were some essential documents that were missing, in
particular, Dr Tsvangirai's opposing affidavit in Murimoga &
Anor v Tsvangirai & Ors HC7453/16, and Annexure A1 which was
attached to that affidavit. Annexure A1, according to Mr Mpofu, was
the authentic Constitution of the Party. Given that these documents
were necessary for this appeal, there was need to conclude the
application for rectification before proceeding with the appeal.
Apart
from this procedural aspect, Mr Mpofu noted that the second and
fourth respondents (Messrs Mudzuri and Mwonzora) had not participated
in the proceedings a quo and were only cited herein because they had
been cited in those proceedings. He then withdrew the appeal against
both these respondents with a tender of costs on the ordinary scale.
As
regards the third respondent (Ms Khupe), she too did not actively
participate in the proceedings a quo and has resisted this appeal on
purely technical grounds. Consequently, the appeal against the third
respondent should also be withdrawn with a tender of costs on the
ordinary scale.
This
would leave the first respondent (Mr Mashavira) as the only opposing
party herein.
Messrs
Zimudzi and Kadoko, counsel for the second and fourth respondents
respectively, noted that their clients were only concerned with the
question of costs against them in the draft order. Accordingly, they
both accepted the withdrawal of the appeal in respect of their
clients and the tender of costs.
Mr
Mutungura, counsel for the first respondent, submitted that there was
no need for the record to be rectified. This was because the Court
itself had pre-empted this issue by having directed the production of
the supposedly missing documents. These were identical to those
contained in the record. He agreed with the Court that the record in
Case No. HC7354/16 be examined by all counsel to verify the correct
position.
Counsel
for the third respondent, Mr Madhuku, also agreed that all counsel
should examine the record at the High Court to verify the correctness
of the documents before the Court. However, he was opposed to the
withdrawal of the appeal against his client who had a clear interest
in the matter. In particular, she had an interest in defending the
judgment a quo and, therefore, a right to participate in these
proceedings. He submitted that once the matter was set down for
hearing, the appellants could not unilaterally withdraw the appeal
against the third respondent who was now entitled to pursue a
judgment in her favour.
In
reply, Mr Mpofu persisted with the argument that the third respondent
had no right to any judgment because she was not involved in the
proceedings a quo. In any event, he agreed with other counsel that
the record in the High Court be inspected to ascertain the
correctness of the documents availed by this Court.
Following
argument by counsel, the matter was stood down to the end of the roll
on the following day. The Court further directed all counsel present
to proceed to the Registrar of the High Court to verify the
authenticity of the questioned documents before the Court.
The
following day, Mr Hashiti for the appellants, advised the Court that
the record in Case No. HC7453/16 had been inspected. He confirmed
that the affidavit of Dr Tsvangirai and the Party constitution
attached thereto were the same as those before the Court. All other
counsel concurred and duly confirmed this position.
Ruling
on Withdrawal of Appeal
Having
considered submissions by counsel, the Court was of the view that
leave for the withdrawal of the appeal against the third respondent
should be refused.
Whilst
it was clear that she was not directly entitled to insist on a
judgment following withdrawal, it was however clear that she had a
direct and substantial interest in the outcome of these proceedings.
Case authority was agreed that this Court had a discretion whether or
not to grant leave for the withdrawal of any appeal. In the
particular circumstances of this appeal, therefore, the request for
leave to withdraw the appeal against the third respondent was
refused.
As
regards the second and fourth respondents, no issues arose. The
withdrawal of the appeal and tender of costs had been accepted by
them. In the result, the Court made the following order:
“(a)
The application for leave to withdraw the appeal against the second
and fourth respondents is granted with costs.
(b)
The application for leave to withdraw the appeal against the third
respondent is refused with no order as to costs.”
Preliminary
Objections
In
their heads of argument, the first and third respondents raised
certain preliminary objections in terms of Rule 51 of the Rules of
this Court.
(i)
The first was that the first appellant, the Party, was not properly
before this Court in that, having been found to be not properly
before the court a quo, it remained barred and could not be an
appellant in casu.
(ii)
The second objection was that the appellants had failed to comply
with Rule 37(2) in that they did not serve the Notice of Appeal on
the second, third and fourth respondents.
(iii)
The third and final objection was that the appellants had failed to
file their heads of argument, as required by Rule 52, and
consequently this appeal must be regarded as having been abandoned
and deemed to be dismissed in terms of Rule 53.
At
the hearing of the appeal, Messrs Mutungura and Madhuku indicated
that the first and third respondents did not wish to persist with
their objections in limine. Instead, they wished to argue and deal
with the merits of the matter.
Mr
Mpofu retorted that the preliminary objections should be dismissed
with costs to be borne by the respondents. Costs have been incurred
by the appellants separately from the main appeal in filing their
submissions to resist the preliminary objections raised by the
respondents. The respondents have now retreated from their objections
because of those submissions. The points in limine should not have
been taken in the first place.
It
is not in dispute that the appellants did not file any heads of
argument when first called upon to do so by the Registrar. They did
not seek or obtain any condonation for that failure and only filed
their substantive heads of argument, following the directions of this
Court, after the hearing of the matter had already commenced. Given
this background, the Court is inclined to accept the submissions by
counsel for the respondents that their non-persistence with the
preliminary objections was proffered, not because the objections
lacked merit, but in the spirit of making progress and avoiding
purely procedural technicalities.
In
any event, the first point in limine taken by the respondents relates
indirectly to the first ground of appeal challenging the conclusion
of the court a quo that the first appellant was barred for failing to
file an opposing affidavit. All in all, I take the view that the
first and third respondents have quite properly withdrawn their
preliminary objections so as to enable this matter to proceed to its
substantive merits.
It
is accordingly ordered that those objections shall be regarded as
having been withdrawn, rather than dismissed, with each party bearing
its own costs.
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.
Status
of First Appellant A Quo
In
his opposing affidavit a quo the third appellant (Mr Komichi)
declares that he is “the National Chairman of the [first appellant]
by whom I am duly authorised to depose to this affidavit in my
capacity as National Chairman”.
The
court a quo found that the first appellant was barred for having
failed to file its own opposing affidavit and that the third
appellant, who purported to act on its behalf, had failed to
demonstrate his authority to do so.
Mr
Mpofu submits that Mr Komichi's affidavit clearly speaks to the
status and locus standi of the Party and that there was no need for
him to have been authorised for that purpose. The judgment a quo
materially affected the rights and interests of the Party to its
prejudice and it should therefore have been afforded the right to be
heard. In any event, the first respondent could not drag the Party to
court and then claim that it had no locus standi. Furthermore, even
if the Party were to be held to be in default a quo, it is entitled
to appeal against the judgment a quo given that it was final and
definitive in its effect vis a vis the Party.
Mr
Mutungura counters that no person claiming to act on behalf of
another can do so without authority. A body corporate being an
artificial person, cannot act by itself and any person claiming to
act on its behalf must be clothed with authority to do so. In the
instant case, Article 6.6.1(j) of the Party constitution allows its
National Executive Committee to institute and defend legal
proceedings against the Party. It was therefore necessary for that
Committee to appoint Mr Komichi to act on behalf of the Party.
Mr
Madhuku supports this position and further submits that the holding
of executive office did not entitle Mr Komichi to depose on behalf of
the Party. In any event, the Party was fully heard a quo through the
third appellant's averments and submissions.
I
note first and foremost that the cases relied upon by counsel for the
respondents, i.e. Crown & Anor v Energy Resources Africa
Construction SC3/17 and Madzivire & Ors v Zvirivadza & Anor
2006 (1) ZLR 514 (S), were both concerned with corporate bodies as
opposed to voluntary organisations.
In
the latter instance, particularly where a political party bedevilled
by a leadership wrangle is involved, it may be necessary to adopt a
less rigid approach to questions of locus standi and authority to
depose. The principal mischief that is to be guarded against is to
avoid the situation where the organisation in question is litigated
for by an unauthorised person without its specific sanction.
As
is reasoned by Herbstein and Van Winsen: The Civil Practice of the
Superior Courts in South Africa (3rd ed.) at p. 304:
“Any
person who can swear positively to the facts will be sufficient and
no special authority to him or her by the Plaintiff is necessary for
the affidavit to be effective.”
The
difficulty in casu, however, is that Mr Komichi's opposing
affidavit is somewhat laconic and lacking in particularity as to the
specific mechanism by which he was authorised by the Party to depose
to his affidavit.
It
is not evident whether this was by resolution of the National
Executive Committee or by some other committee or functionary within
the Party. Nor does Mr Komichi affirm that he can swear positively to
the facts deposed to in his affidavit. Be that as it may, I do not
think that it is necessary for present purposes to determine this
particular aspect of the appeal. As is conceded by Mr Mpofu, the
second and third appellants were represented and heard through the
same counsel that represented the first appellant. Given this
context, his belated prayer that the matter be remitted to the court
a quo to hear the first appellant would entail nothing less than an
exercise in judicial futility.
I
agree with Mr Madhuku that the first appellant was adequately
represented in the proceedings a quo and, despite having been
non-suited, was afforded the right to be heard.
Insofar
as concerns the present appeal, there can be no doubt that the first
appellant has had more than ample opportunity to be very ably
represented and fully heard in the proceedings before us. All in all,
I take the view that the first ground of appeal is entirely otiose
and need not detain this Court any further.
Exhaustion
of Domestic Remedies and Estoppel
The
general rule is that an aggrieved member of any voluntary
organisation must first exhaust internal or domestic remedies before
approaching the courts. The adequacy of such domestic remedies is a
question of fact that must be established by evidence.
Mr
Mpofu submits that no material was placed before the court a quo to
enable it to reject the availability or adequacy of domestic
remedies. The Party constitution sets out effectual structures for
internal complaints to be addressed through the Appeals Tribunal
under Article 14. The composition of the Tribunal is clearly
objective and impartial and there can be no question of any
predetermined hearing or decision.
As
regards the question of estoppel, Mr Mpofu contends, quite correctly,
that quiescence usually amounts to acquiescence.
Many
developments have taken place within the Party since the second
appellant was appointed as Deputy President and later as Acting
President and, more recently, as the Party President. The first
respondent allowed this position to continue and only reacted to
challenge that position several years later.
In
terms of Article 14.3 of the Party constitution, the Appeals Tribunal
consists of the Tribunal President, who must be at least forty years
of age and a trained and qualified lawyer of at least seven years
experience, together with eight other individual members of the
Party. Additionally, all the members are elected by Congress for five
years and no member of the National Council is eligible for
appointment as a member of the Tribunal.
Having
regard to these provisions, I have no doubt that the experience and
credentials of the Tribunal's membership are impressive, no doubt
minimising the possibility of bias or predisposition. Nevertheless, I
am inclined to agree with the sentiments and findings of the court a
quo rejecting the viability of the domestic grievance procedure for
the situation in casu.
Although
the individual members of the Tribunal might well have been persons
other than the respondents a quo, the factual reality on the ground
was that the second and third appellants herein were effectively in
charge of the Party leadership and hierarchy. Following the special
meeting of the National Council held on 15 February 2018, at which
meeting the first appellant was reaffirmed without demurrer as the
Acting President, there can be no doubt that he was the apparently
unopposed and chosen leader of the Party. Given this scenario, there
is little to indicate that the court a quo misdirected itself in
holding that the first respondent could not and would not have found
any comfort in pursuing the internal remedy theoretically availed
under Article 14 of the Party constitution. There was no point in
invoking domestic remedies that had been both politically and
practically undermined. See Moyo v Forestry Commission 1996 (1) ZLR
173 (H) at 192; Cargo Carriers (Pvt) Ltd v Zambezi & Ors 1996 (1)
ZLR 613 (S) at 618.
In
short, there is nothing to show that the court a quo improperly
exercised its discretion in the particular context of this case.
As
regards the estoppel argument, I am again disinclined to interfere
with the findings and decision of the court a quo.
The
learned judge found that the first respondent came to realise his
right to challenge the Party leadership after he had read a legal
opinion rendered by senior counsel, on the instructions of the Party,
when a dispute arose between the three Deputy Presidents.
Based
on this finding, I agree with the learned judge that it cannot
necessarily be inferred that the first respondent was aware of and
acquiesced by his conduct to the appointment of two additional Deputy
Presidents in 2016. He only became aware of the relevant
Constitutional legalities in 2018 and acted within a reasonable time
to mount the application a quo in September 2018.
In
the premises, I take the view that the eighth and ninth grounds of
appeal are devoid of merit and legally unsustainable. They are
accordingly dismissed.
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. 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. In terms of
Article 6.5.3(a), this Committee comprises, inter alios, “President
and Deputy Presidents”. 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 which I shall revert to later. 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” (my emphasis).
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” (my emphasis), 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” (my emphasis).
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
authorised 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.” (My emphasis)
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.” (My emphasis)
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 emphasised, 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 reaffirmed 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 reaffirmed 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 organisations, 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 loath 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 unmeritorious 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
CCZ20/19, at p. 7.
To
put it differently, the controversy must be existing or live and not
purely hypothetical – Koko v Eskom Holdings Soc Limited [2018]
ZALCJHB 76, at para 21; National Coalition for Gay and Lesbian
Equality & Ors v Minister of Home Affairs 2000 (2) SA 1 (CC), at
para 21 (footnote 18).
(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's case, supra, at p.13; J.T. Publishing
(Pty) Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC), at
525A-B.
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), at para 11.
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 to interlinking 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 the Madzimbamuto case 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.
Disposition
The
essence and objective of the corrective measures to be implemented by
the Party is to restore the status quo ante that prevailed before the
irregular and unlawful appointments to the Party presidency took
place. This would necessitate having to extend the time limit
prescribed in the Party constitution apropos the convening of an
ExtraOrdinary Congress to elect a new President following the demise
of Dr Tsvangirai. It would also involve modifying the judgment a quo
to conform with that purpose.
In
terms of Article 9.21.1 of the Party constitution, the Deputy
President assumes the role of Acting President upon the death of the
President, pending the holding of an Extra-Ordinary Congress to elect
a new President. Such Congress must be held no later than one year
from the death of the former President. The power to convene an
ExtraOrdinary Congress is ordinarily vested in the President by dint
of Article 9.1.2.1. It follows that, by assuming the role of Acting
President, the Deputy President is ipso jure equally empowered to
convene any such Congress.
By
the same token, the National Chairperson, who is enjoined by Article
9.3.1(a) to perform the duties of the President's Office in the
event that both the President and the Deputy President are unable to
perform their functions, must also be vested with the power to
convene an Extra-Ordinary Congress.
As
regards costs, there can be no doubt that this matter is of great
public importance. Moreover, it was necessary that the issues raised
herein be fully ventilated and satisfactorily resolved in the
interests of all the parties affected. In these circumstances, it
seems to me that the Court's discretion on costs should be
exercised so as to depart from the general rule that costs should
follow the cause.
I
accordingly deem it just and proper that there should be no order as
to costs in respect of this appeal as well as the proceedings a quo.
It
is accordingly ordered as follows:
1.
The appeal be and is hereby dismissed with no order as to costs.
2.
The judgment of the court a quo be and is hereby confirmed, save for
the deletion of paragraphs 4 and 5 of the operative order.
3.
The third respondent, in her capacity as the Acting President of the
first appellant, be and is hereby ordered to convene an
Extra-Ordinary Congress, within a period of three months from the
date of this order, in order to elect a new President.
4.
In the event that the third respondent fails or is unable to comply
with paragraph 3 above, the third appellant, in his capacity as the
National Chairperson of the first appellant, be and is hereby ordered
to convene the aforesaid ExtraOrdinary Congress, within a period of
four months from the date of this order.
GARWE
JA: I agree
GUVAVA
JA: I agree
Atherstone
& Cooke, appellants' legal practitioners
Mutungura
& Partners, 1st respondent's legal practitioners
Zimudzi
& Associates, 2nd respondent's legal practitioners
Lovemore
Madhuku Lawyers, 3rd respondent's legal practitioners
Mwonzora
& Associates, 4th respondent's legal practitioners
