MUSHORE
J:
Applicant
is a member of the Movement for Democratic Change [hereinafter “MDC'
or
'the
party')
having joined the party in 2000. He is also currently the Organising
Secretary for the Gokwe Sesame District of the party.
The
respondents were cited by the applicant as follows;
(i)
The first Respondent is the Movement for Democratic Change Party.
(ii)
The second respondent is Nelson Chamisa, who is cited in his capacity
as the President of the party.
(iii)
The third respondent is Elias Mudzuri who is cited in his capacity as
Deputy President of the party.
(iv)
The fourth
respondent
is Thokozani Khupe, who is cited in her capacity as the Acting
President of the party.
(v)
The fifth respondent is Douglas Togaraseyi Mwonzora who is cited in
his capacity as the Secretary General of the party.
(vi)
The sixth Respondent is Morgan Komichi who is cited in his capacity
as the Acting Chairman of the MDC.
This
is an application for declaratory relief declaring;
(a)
the second and third respondents appointments as Deputy Presidents of
the MDC unconstitutional and thus null and void;
and
(b)
declaring that the second respondent is not the Acting
President/President of the party; and
(c)
declaring all appointments, reassignments and actions done by the
second respondent as the Acting President/President of the party null
and void.
The
applicant is also desirous of obtaining an order compelling the party
to hold an Extra–Ordinary
Congress.
It
is a common cause that the late President of the party, Dr Morgan
Richard Tsvangirai appointed the second and third respondents as
Deputy Presidents in 2016. It is also common cause that Dr Morgan
Richard Tsvangirai passed away on the 14th February 2018. It is not
in dispute that thereafter on the 15th February 2018, a day after the
late President's passing, at a meeting of the Executive Committee
and the National Council, the second respondent (who described
himself in the minutes as being the Acting President), was by a
resolution of the meeting appointed as the President of the party. It
is also common cause that the fourth respondent was elected Deputy
President at a National Congress which was held in 2014.
However,
it is the manner by which the second respondent ascended to his
position of President, that has driven the applicant to make the
present application challenging that present status
quo of
the leadership within the party, combined with a challenge to the
manner by which the second and third respondents rose to their Deputy
Presidential posts sometime in 2016, without being elected into
office.
The
applicant has described his concerns as follows in his founding
papers;
According
to him, the late President, Dr Tsvangirai did not have any powers
conferred to him in terms of the MDC Constitution to appoint two
Deputy Presidents as he did in 2016. He alleges that the late
President acted ultra
vires
the Constitution. Thus according to the applicant, any such
appointments, by choice, were unconstitutional, and thus void for
unconstitutionality. He produced the booklet version of the
Constitution of the Party with his papers and referred to various
provisions in the Party's Constitution in support of his
contentions.
Insofar
as the fourth respondent is concerned, it is applicant's case that
according to the Party's Constitution, she is the only person who
is eligible to be the Acting President by virtue of her being elected
Deputy President at a Congress in 2014; and by virtue of her has
continued
to hold that position up until the date of Dr Tsvangirai's
demise.
Regarding
the second respondent becoming President of the party, the applicant
is alleging that the assumption by the second respondent to the
position of President of the Party, was in defiance of the provisions
of the Constitution of the Party. He alleges that that rise to the
position of President by the second respondent is void for
unconstitutionality.
Using
the applicant's
own words he describes the events leading to the second respondent
assuming the Presidency of the Party as being a “well–choreographed
move to usurp the throne”.
Applicant
casts doubt on what he describes as being “second
respondent's ascendancy to the title of President of the party”
which
he states was done in breach of the Constitution.
The
applicant
alleges
that on the 15th February 2018, the second respondent purported to
call a meeting of the National Executive Committee and the National
Council at which resolutions were made 'to
ordain'
the
second respondent as President of the party. He attached minutes of
the meeting
convened
by the second respondent at which he states that neither house made
such a resolution and that both houses, and I quote “pretended
to accept the
second respondent as the
President
of the party.”
The
applicant also stated that prior to launching the present application
he took legal advice after reading a legal opinion on the issue of
the legality of the Presidency. The legal advice he received
encouraged him to file the present application. He also stated that
he learned from such legal advice, that the meeting which took place
on the 15th February 2018, a day after the death of Dr Tsvangirai,
did not have constitutional powers to ordain either an acting or
substantive President.
The
applicant
also
complained that he had not been invited to the meeting of the 15th
February 2018 in circumstances where he should have been invited in
his capacity of a delegate to that Congress. The applicant
also
pointed out that the meeting of the 15th February 2018 was just an
Ordinary Congress and that it is a meeting of an Extra–Ordinary
Congress in which such party business pertaining to leadership should
be discussed and not just an Ordinary Congress as was the case in the
present matter.
The
applicant stated that the hastily convened meeting by the second
respondent of the party's Standing Committee; the National
Executive Committee and the National Council on the 15th February
2018 was void for unconstitutionality
because
the second respondent had no such powers to convene such a meeting.
The
application is opposed.
6th
Respondent raised three points in
limine which
I will deal with after I have expanded on the 6th Respondent's
opposing argument on the merits.
6th
Respondent stated that the booklet Constitution which the applicant
had produced as evidence, did not accurately reflect what the 6th
respondent calls 'the
true Constitution”.
However, 6th respondent did not attach the version of the “true
Constitution”
which
he was making
reference
to; save by referring the court to examine another court record in
the case of Patson
Murimoga and Anor v Morgan Richard Tsvangirai &
Ors
HC7453/16.
I
noted that even though 6th respondent paid homage to another version
of the Constitution, 6th respondent still relied on the booklet
Constitution which was the applicant's version of the Constitution
when he made his legal submissions. It seems he then forgot to point
out the differences
between
the applicant's version and his version of the Constitution for the
remainder
of
his submissions.
6th
respondent submitted that the late President had powers conferred on
him by virtue of Article 9 to appoint the Deputy Presidents (as he
did in 2016)
and
that as such Article 9 validated the legitimacy of the appointments
of second and third respondents as Deputy Presidents by Dr
Tsvangirai. 6th respondent then went on to state that the late
President's actions in appointing second and third respondents as
Deputy Presidents were as a result of the National Council has
delegated
its authority to the late Dr Tsvangirai to appoint those deputies
with its approval, in terms of Article 18 of the MDC Constitution.
6th Respondent pointed to the mention of Deputy President(s) in the
plural in Article 6.4.4.1(a) as being “evidence
that the Constitution allowed for more than one Deputy President to
the party.”
With
respect to the appointment of the second respondent as President of
the party, the 6th Respondent justified the appointment of the second
respondent by stating that the second respondent was “the
preferred choice”
of
all three Deputy Presidents and that the appointment was unanimous.
He
also added that the applicant accepted that appointment by the
applicant having continued to be an active member of the party.
In
reply
to
the notice of opposition, apart from challenging the averments made
by the 6th respondent, the applicant raised two points in
limine pertaining
to the automatic bar which he submitted was in place against all of
the respondents and which he alleged prevented all of the respondents
from proceeding to present their respective arguments on the merits.
I
will now deal with the applicant's points in
limine.
APPLICANT'S
POINTS IN LIMINE
(i)
Whether 1st, 3rd, 4th and 5th respondents were barred for failing to
file opposing affidavits.
1st,
3rd, 4th and 5th respondents did not file individual opposing
affidavits at all. The 1st, 2nd, 3rd, and 5th respondents'
names,
however, appeared on the 6th respondent's affidavit which was
entitled:
“1st,
2nd,
3rd, 5th and 6th Respondents'
Notice
of Opposition”.
It
is trite that a party cannot make averments under oath on behalf of a
party for facts which he cannot swear positively to; and for which he
has not been granted the authority to make such representations.
The
6th respondent presented his affidavit in an improper form.
The
Rules do not allow a party to act in a representative capacity to
other respondents without the veracity of the authority to make
averments on behalf of those respondents being shown and approved to
be in order by the Court. At the very least, there must be an
averment in the affidavit as to how the respondent purports to act in
such representative capacity.
Order
32 Rule 233 of the High Court Rules, 1971, which reads as follows:
“233.
Notice of opposition and opposing affidavits
(1)
The respondent shall be entitled, within the time given in the court
application in accordance with Rule 232, to file a notice of
opposition in Form No. 29A,
together with one or more opposing affidavits.
(2)
As soon as possible after filing a notice of opposition and opposing
affidavit in terms of subrule (1), the respondent shall serve copies
of them upon the applicant and, as soon as possible thereafter, shall
file with the Registrar proof of such service in accordance with Rule
42B.
(3)
A respondent who has failed to file a notice of opposition and
opposing affidavit in terms of subrule (1) shall be barred.”
When
looking in the body of the 6th respondent's opposing affidavit and
its substance, it becomes clear that in his submissions he does not
introduce himself as purporting to represent the 2nd, 3rd and 5th
respondents although the heading of the affidavit represents the 6th
respondent to be deposing evidence on behalf of the 2nd, 3rd and 5th
respondents.
It
is trite that hearsay evidence is not permitted in affidavits.
In
the present matter, it was necessary for the 3rd, and 5th
respondents'
to
file their own affidavits wherein they could depose to statements of
fact which are within their knowledge.
The
fact that 3rd and 5th respondents did not file opposing affidavits
means that they are barred for their failure to comply with Order 32
Rule 233 referred to above.
3rd
and 5th respondents are therefore not before the court.
Although
he made no mention of his authority to represent the 3rd and 5th
respondents, 6th respondent submitted that he is deposing evidence on
behalf of himself and the 1st respondent (MDC). Thus, in essence,
the
only party whom 6th respondent actually purports by his own
submissions to represent; is the 1st respondent; that being the MDC.
This
is what he said when he introduced himself in his opposing affidavit:
“I,
Morgan Komichi, the National Chairman of the Movement for Democratic
Change (MDC) the abovementioned first respondent by whom I am fully
authorised to depose to this affidavit in my capacity as National
Chairman do hereby make oath and state....”
He
did not show proof of such authority having been given to him by the
MDC. Even in the Party's Constitution itself, there is no such
authority conferred to the National Chairperson at any time to enter
into legal proceedings or defend legal proceedings on behalf of the
first respondent. In fact, the 6th respondent did nothing to assure
the court that he has instructions from anybody for that matter.
Thus
with no–one
to speak on its behalf, the 1st respondent which is a juristic
personality lacks representation. Accordingly, the 1st respondent is
also barred for failure to file an opposing affidavit.
4th
respondent has not opposed the application and also barred.
2nd
respondent filed a short affidavit in support of the 6th respondent's
affidavit. The only notices of opposition remaining are those of the
2nd and 6th respondent's with the 2nd having been filed in support
of the 6th respondent's affidavit.
The
court thus only recognises the 2nd
and 6th respondents as being the litigating opposition to the present
application.
(ii)
Whether the 2nd and 6th Respondents are barred by their failure to
file Heads of Argument timeously?
When
the parties appeared before me, the applicant's legal practitioner
moved that the 2nd and 6th respondents be barred from proceeding to
argue the merits of the matter, due to their failure to file their
Heads of Argument within the dies
induce
stated
in the Rules of this Court as per
Order
32 Rule 238(2)(b) which reads as follows:
“(2a)
Heads of Argument referred to in subrule (2) shall be filed by the
respondent's legal practitioner not more than ten days after heads
of argument of the applicant or excipients, as the case may be, were
delivered to the respondent in terms of subrule (1):
Provided
that;
(i)
no period during which the court is on vacation shall be counted as
part of the ten-day
period;
(ii) The respondent's heads of argument shall be filed at least
five days before the hearing.
(2b)
Where heads of argument that are required to be filed in terms of
subrule (2) are not filed within the period specified in subrule
(2a), the respondent concerned shall be barred and the court or judge
may deal with the matter on the merits or direct that it be set down
for hearing on the unopposed roll.
(2c)
A legal practitioner shall not be precluded from making a submission
…”
The
applicant filed his heads with the Court on the 19th November 2018,
and the respondents' heads were filed on the 19th January 2019. The
reckoning of days would have been interrupted by the High Court
Christmas vacation. The third Court term ended on the 3rd December
2018, which is the date that the respondent's Heads were due. The
first Court term in 2019 commenced on the 14th of January 2019.
Respondents filed their Heads during the court vacation on the 10th
January 2019. Thus effectively and in terms of the proviso under
Order 32 Rule 238(2)(i) the delay in filing the respondent's heads
was one day.
Even
though the delay was for but a day, the 2nd and 6th respondents were
automatically barred from appearing to argue the matter.
At
the commencement of the hearing in this matter, 2nd and 6th
respondent's legal practitioner made an oral application for
condonation and for the upliftment of the automatic bar imposed on
them for the late filing of Heads of Argument.
I
was drawn to the comments which were made by MAKARAU J [as she was
then] (when I was researching this opinion) in Chimpondah
&
Anor
v
Muvami
2007
(2) ZLR 326, which I found to be of immeasurable assistance to me. In
her dicta
she
outlined the factors which are taken into account when a court is
dealing with such an application. At page 327G–H
she said:
“An
application for condonation such as the one before me is, therefore,
an
application for excusing the negligence of the offending party and
the degree of such negligence of the offending party then becomes a
factor together with other factors that will ensure that at the end
of the day justice as between the parties prevailed.
The
factors generally are taken into account by the court, when
considering an application for condonation, are well established.
Importantly but not exclusively, the court takes into account such
factors as the length of the delay, the merits of the application and
any prejudice to the interests of justice generally.”
At
page 328E–F
she continued;
“...
I used the discretion vested in me to allow the late filing of the
heads of argument because of the need for the parties to have a final
judgment on the matter in view of the spate of litigation that they
have already been involved in over the same matter. Further, in my
view, the point raised by the respondent in his defence is an
interesting and important legal point…
It
is my further view that, when considering an application for
condonation for the late observance of a rule of procedure before a
default judgment is given in the matter, the court should lean
towards granting rather than refusing such application. I am not,
however, suggesting that prior to judgment, condonation should be
granted for the mere asking. The applicant still has to satisfy the
court that there is good cause to excuse the negligence and grant the
indulgence.
Also,
see Lewis
Cox
& Co
(Pty) Ltd v Twentydales Service Station (Pty) Ltd 1956
R&N 338 (SR);
Ehlers v Standard Chartered Bank Ltd 2000
(1) ZLR 136 (H).”
In
the present matter, the Heads were but one day late.
I
am persuaded that this is a case where the indulgence should be
granted bearing in mind the issues which need to be ventilated and
resolved in the interests of the public and in the interests of
justice. It is in my view desirable that I apply my inherent
jurisdiction in terms of Rule 4C of the High Court Rules, 1971 to
grant the application for the upliftment of the bar, bearing in mind
that the period of one day's delay brought to me assume that the
delay was not an intentional disregard to defend; but was rather a
lack of diligence by the legal practitioner representing 2nd and 6th
respondents; for which I felt the respondents ought not to be
penalised.
See
Grain
Marketing Board v Muchero SC59/07
and also Service
Motor Supplies (1956) (Pty) Ltd v Fouche and Anor 1960
(3) SA at page 675H.
Further,
I find it necessary to allow 2nd and 6th respondents to defend their
cases, in order that there be a convenient determination of the
issues in the matter.
See:
Nicojeros v Clement 1947
(4) SA 301.
THE
2ND AND 6TH RESPONDENTS' POINTS IN LIMINE
(i)
Whether or not the applicant had the requisite locus
standi to
bring this application?
(a)
It was the 2nd and 6th respondents'
contention
that the applicant was not a bona
fide member
of the 1st respondent because he
had neither filed nor shown proof that he made a solemn declaration
which according to the respondents was necessary proof of acceptance
as a member in
the first respondent;
and
(b)
Because he had not filed an affidavit from the Secretary-General
of
the Province
in support of his contention that he is a member of the first
respondent
in terms of the first respondent's Constitution.
With
due deference, this cannot be the case.
Applicant
is clearly a member of the MDC. It is ludicrous to suggest otherwise
given the fact that he has been allowed to function in the party as
the Organising Secretary for the Gokwe District within the party for
several years. In examining Article 5.1 of the party's Constitution
which defines membership, I am satisfied that applicant is a
bona fide member
of the first respondent and that membership is granted upon
acceptance of an application for membership. It is only after such
acceptance that the member may be obliged to make a solemn
declaration. Thus membership in the party is conditional upon
acceptance into the party
and
occurs prior to making a sworn declaration. Thus neither a sworn
declaration nor an affidavit from the Secretary-General
is
necessary
for the applicant to enjoy being a member of the party. The applicant
filed
a copy of his membership card which is found on page 15 Annexure 'B'
and
which I find to be satisfactory evidence of his valid membership in
the Party.
The
relevant part of Article 5 which defines membership in the Party
reads as follows:
“Article
5 Membership
5.1.
Individual membership
An
application to become an individual member of the Party shall be
submitted to the Branch Executive Committee or in its absence, to a
Ward Executive Committee. On a membership application form to be
completed by the applicant.
(b)…,.
(c)…,.
(d)…,.
(e)
On being accepted in the MDC, a new member shall make a solemn
declaration to the Movement in the form of Annexure A.”
The
membership card which was produced by the applicant shows that the
applicant has been a member of the first respondent since the year
2000. His membership remains valid.
Further,
the applicant has been carrying out functions as an Organising
Secretary on behalf of the party.
I
hardly think that a non-member would hold such an important position,
particularly given the fact that he represents the party in that
position and that the position secures his seat to the Congress.
The
comments made by MALABA DCJ (then) in Loveness
Mudzuri &
Anor
v
Minister
of Justice, Legal and Parliamentary Affairs N.O &
2 Ors
CCZ12/2015
when he opined on the test for locus
standi for
a
declaratur are
instructive. In his judgment, MALABA DCJ [then] cited the dicta
of
CHIDYAUSIKU CJ in Mawarire
v
Mugabe
N.O & Ors CCZ1/2013
who said:
“Certainly
this Court does not expect to appear before it only those who are
dripping with the blood of the actual infringement of their rights,
or those who are shivering incoherently with the fear of the
impending threat which has engulfed them. The Court will entertain
even those who calmly perceive a looming infringement…”
At
page 9 of the cyclostyled judgment MALABA DCJ described the above
dicta
by
CHIDYAUSIKU CJ as being:
“The
familiar rule of standing based upon the requirement of proof by the
claimant of having been or of being a victim of infringement or
threatened infringement of a fundamental right or freedom enshrined
in Chapter 4 of the Constitution.”
To
that end, and in applying the above test, it is my view that the
applicant has the requisite standing to bring the present
application.
In
any event, the 2nd and 6th respondent's accept that the applicant
is a member of the party when it suits them. In paragraph 5 of the
6th respondent's opposing affidavit, he states when referring to
the applicant, page 44, opposing affidavit:
“The
applicant embraced the appointment as a supporter or member by
campaigning for the 2nd respondent's bid for the presidency.”
In
simple speak, by contradicting himself, what 6th respondent is are
saying is that applicant is not enough of a member to mount the
present Constitutional challenge, but he is to be regarded as a valid
member when it suits a certain agenda. The 6th respondent cannot
approbate and reprobate whenever it suits him and expect his sworn
statement to be regarded as being reliable.
In
any event, the applicant submits that he is exercising his
Constitutional right in making the present application. Section 67(2)
of the Constitution of Zimbabwe (Amendment
Act) No. 20 reads as follows;
“67
Political rights
(1)
Every Zimbabwean citizen has the right -
(a)
to free, fair and regular elections for any elective public office
established in terms of this Constitution or any other law; and
(b)
to make political choices freely.
(2)
Subject to this Constitution, every Zimbabwean citizen has the right
-
(a)
to form, to join and to participate in the activities of a political
party
or
organisation of their choice;
(b)
to campaign freely and peacefully for a political party or cause;
(c)
to participate in peaceful political activity; and
(d)
to participate, individually or collectively, in gatherings or groups
or in any other manner, in peaceful activities to influence,
challenge or support the policies.”
In
addition to this, the Applicant's Constitutional right to
administrative justice is protected in the Constitution of Zimbabwe
in terms of section 68 which reads:
“68
Right to Administrative Justice
(1)
Every person has a right to administrative conduct that is lawful,
prompt, efficient, reasonable, proportionate, impartial and both
substantively and procedurally fair.”
It
is in enforcing the
Constitutionally
protected rights that he has launched the present application
and the law entitles him to challenge what he views to have been an
undemocratic and unconstitutional series of appointments of the
second and third respondents within the Party.
Respondents'
referred
me to the decision by MAKONI J (as she then was) in Patson
Murimoga &
Anor
v Morgan Richard Tsvangirai N.O and 4 Others
HC7453/16 which file I have since retrieved from the High Court
Registry and found the decision to be cited under HH635/17.
The
respondents allege that the issue of membership in the MDC has been
laid to rest by a judge of this court and by referring to MAKONI J's
determination in the Patson
Murimoga ruling
and they have suggested to me that the determination of the learned
Judge bound me as res
judicata on
this point.
I
disagree.
It
is elementary law that this court is not estopped
from coming to its own determination in a matter involving different
facts and circumstances and different parties by a court of parallel
jurisdiction. The considerations in this matter are far removed from
the similarities suggested by the respondents.
My
own conclusion with respect to the applicant who is a senior member
within the party is that he is shown to be actively involved in the
party business. And that fact taken together with the respondents'
prevarication
between accepting and rejecting applicant as being a member of the
party distinguishes the facts in the present matter from the facts in
the Patson
Murimoga matter
{inter
alia}. To
that end, my determination is confined to the issues contained within
the record of this matter.
I
must mention in passing that when I analysed some of the cases which
were cited by the 6th respondent's counsel in his heads of
argument, I became somewhat concerned about the manner by which he
repeatedly misquoted judicial dicta
in
order to rewrite the law to fit his client's narrative. Such an
example of this was his referring me to the case of Mutare
City v
Mawayo
1995
(1) ZLR 258 (H); in support of his suggestion that this issue is
res judicata; because
of Patson
Murimoga's
case where in fact the Mutare City case does not bear witness to the
proposition which is being made by the respondents. I find the
attempt to mislead the court to be beneath the level of
professionalism expected by the court.
On
the issue of locus
standi, therefore,
it is my view that the applicant does have the requisite locus
standi in judicio to
have brought the present proceedings.
(ii)
Whether or not the applicant has failed to exhaust his domestic
remedies.
Respondents
are complaining about the applicant's eligibility
to
file the present application in this Court; by submitting that if the
applicant had a cause of complaint, then he is bound by the first
respondent's Constitution and that in terms of the party's
Constitution, he is legally obliged to have followed the process for
the exhaust domestic remedies.
However,
that having been suggested by the respondents they were silent about
the exact settlement procedures in the party's Constitution which
they believed applicant ought to have followed. The applicant
has
essentially deprived
the
opportunity to make a specific reply to their suggestion when he
deposed his replying affidavit
because
it was only through
their
heads of argument that they referred to Article 14 as being the
domestic remedy which applicant ought to have pursued in order to get
remedy for his complaint.
Article
14 appears to outline an appeals process. This is what it
says:
“Article
14
THE
APPEALS TRIBUNAL
14.1
The party shall establish an Appeals Tribunal which shall have the
function of hearing and determining appeals on any matter which the
member has a grievance under the Constitution of the party as well as
on all matters in respect of which jurisdiction is conferred by this
Constitution.
14.2
Any dispute over the interpretation of this Constitution may be
referred to the Appeals
Tribunal for a hearing.”
I
find the suggestion made by the respondents that the applicant should
have lodged an appeal to be absurd. It does not take a genius to
recognise that because an internal complaint would have been presided
over by the very persons whose offices applicant is challenging, it
would in most likelihood be determined in a partial manner thus
depriving the applicant of
substantial
justice.
In
other words, the Respondent's would essentially be presiding over
their own legitimacy.
I
also concur with the applicant's submission that the membership
composition of the Appeals Tribunal is made up of the very people in
the very positions which applicant believes are null and void for
want of compliance with the Party's Constitution and thus any
assembled Appeals Tribunal actions or decisions could be voidable on
that basis.
I
also find the respondent's reference to the decision in Kudakwashe
Bhasiskiti v Robert G Mugabe N.O and Anor HH609/15
as authority for the proposition that the applicant should be made
his
complaint in terms of Article 14, to be misplaced.
Apart
from being irrelevant to the present matter, the latter case is
clearly distinguishable in that the applicant in that place was not
suing for a declaration of rights; a remedy which is beyond the reach
of a
domestic
Tribunal.
The
High Court has the requisite jurisdiction, conferred to it by statute
to grant a declaratur
in
terms of section 14 of the High Court Act which states:
“14
High Court may determine future or contingent rights
The
High Court may, in its discretion, at the instance of any interested
person, inquire into and determine any existing, future or contingent
right or obligation, notwithstanding that such person cannot claim
any relief consequential upon such determination.”
Pursuing
domestic remedies would not have achieved the desired result which
motivated the applicant to pursue the present proceedings in this
court.
I,
therefore,
dismiss
this point in
limine by
finding that applicant correctly filed the present application in
this Court.
(iii)
Whether or not the applicant has waived his rights to the order
sought
Respondents
submit that because the applicant is complaining about “events
which were initiated by Dr Tsvangirai in 2016”
he
sat on his rights and is thus prevented from challenging the
appointments by his silence all along.
I
disagree.
Applicant's
rights to bring the present matter have not prescribed by law. The
principle relied upon by the respondents of waiver by neglect in New
York
Mutual v Ingle is
inapplicable to the present application. In that matter, INNES CJ
stated that:
“Neglect
to enforce a right timeously may under certain circumstances have the
same effect as a waiver of it, even though the period of prescription
has not lapsed. Such cases come very near the line if estoppel.
As
pointed out by the Privy Council in
Lindsay Petroleum Co v Herd (LR 5 PC Appeals at page 240) where
a man has by his conduct and neglect 'though
perhaps not waiving the remedy, yet put the other party in a
situation in which it would not be reasonable to place him if the
remedy were afterwards to be asserted'
then
lapse of time becomes of great importance.
When
a person is entitled to a right knows that it is being infringed, and
by his acquiescence leads the person infringing it to think that he
has abandoned it, then he would under certain circumstances be
debarred from asserting it.”
The
applicant's initial cause of complaint was with the 2nd
respondent's “ascension
to the Acting President/President” at
a meeting called by the 2nd Respondent a day after Dr Tsvangirai's
death on the 15th February 2018.
The
applicant
became
perturbed when that happened and also by the fact that as a member of
Congress he was not invited to that Congress
when
he ought to have been invited to have a say in the matter.
From
his submissions, I have been able to glean that he was concerned from
the speed of which matter developed.
However,
it appears that applicant came to realise his rights after he had
read a legal opinion, which had been rendered by senior counsel on
the instructions of the party at the time when a dispute arose
between the three Deputy Presidents. The applicant
does
not say when exactly he came into possession of the legal opinion and
learned of his rights, but it appears from his submissions that it
was after the 15th February 2018 and before the 24th September 2018
when he filed the present matter.
From
that opinion, that applicant learned that he could possibly challenge
the constitutionality or otherwise of 2nd respondent's appointment
as Acting President/President of the party. He also learned from the
opinion that the prior actions of the late President in 2016, in
appointing second and third respondents as Deputy Presidents could
have been unconstitutional.
It
cannot be inferred therefore, that he was aware and acquiesced by
conduct to the actions by the late actions of Dr Tsvangirai's of
appointing two Vice Presidents in 2016.
According
to his submissions, he became aware of all the legalities sometime in
2018. He engaged the services of a legal practitioner and filed the
present application on the 24th September 2018 with a view of an
order compelling the respondents to call an Extra–Ordinary
Congress within the year provided for in the Constitution from the
death of Dr Tsvangirai which is by the 14th February 2019.
It
cannot be said that applicant sat on his rights was
in
fact in my view applicant acted within a reasonable time of becoming
aware that he could possibly challenge the constitutionality of the
2nd Respondent's ascendancy to Presidency of the 15th February
2018.
DECLARATUR
This
is an application for declaratory and contingent relief.
The
applicant cited the case of Family
Benefit Friendly Society v Commissioner of Inland Revenue and Another
1995
(4) SA 120 (T) as authority for the proposition that in order for an
applicant to be granted a declaratur
the
applicant must show that:
(a)
He is an interested person;
(b)
There is a right or obligation which becomes the object of the
enquiry;
(c)
He is not approaching the court on what amounts to a legal opinion
upon an abstract or academic matter;
(d)
There must be interested parties upon which the declaration will be
binding;
(e)
Considerations of public favour the issuance of the declaration.
In
Johnson
v AFC 1995
(1) ZLR 65, GUBBAY CJ had this to say about when a declaratur
can
be
granted;
“The
condition precedent to the grant of a declaratory order under section
14 of the High Court Act is that the applicant must be an 'interested
person in the sense of having a direct and substantial interest in
the subject matter of the suit which could be prejudicially affected
by the judgment of the court. The interest must concern an existing
future or contingent right'.
Also:
Munn
Publishing (Private) Limited v ZBC 1994
(1) ZLR 337 (S) at page 338 [Headnote] that the existence of any
other remedy does not render the grant of a declaratory order
incompetent; s 343 to 344; and also Eagles
Landing Body Corporate v Molewa NO and Others 2003
(1) SA 412.”
That
the applicant has a direct and substantial interest in the
stewardship of the party he belongs to and the legality and
constitutionality of it is beyond doubt. Not only has he been a
card-carrying
member
of the Party since 2000, but he has also
campaigned
on behalf of the party and is actively involved as an Organising
Secretary in the Sesame District and is a member of the National
Congress. His interests are protected by his rights as enshrined in
the Constitution of Zimbabwe and are thus sacrosanct. It can also be
said that the rights of a number of individuals are affected by the
subject matter of the dispute in that the Party carries a large
membership.
WHETHER
OR NOT THE APPOINTMENT OF THE SECOND AND THIRD RESPONDENTS AS DEPUTY
PRESIDENTS WAS LAWFUL
The
Party's Constitution prescribes the circumstances where a Deputy
President is appointed as an office bearer by Congress in terms of
Article 6.4.4.1 which reads:
“6.4.4.
The
National Standing Committee
6.4.4.1
The National Standing Committee shall comprise of the following
office bearers elected by Congress;
(a)
The President;
(b)
The Deputy Presidents;
(c)
The National Chairperson;
(d)
The Deputy National Chairperson;
(e)
The Secretary-General; etc.”
It
is self–evident
that it is only by being elected into office at a Congress that a
member of the party becomes the Deputy President and then occupies
that office as such.
2nd
and 3rd Respondents'
claim
to being Deputy Presidents is based upon the late President picking
them to be Deputy Presidents. They were not elected into those
positions at a Congress.
The
applicant claims that the legitimate Deputy President in the party
who still carries the title of Deputy President is the fourth
respondent, by virtue of her democratic election at Congress in 2014.
That claim is aligned to the provision in Article 6.4.4.1 of the
Party's Constitution.
It
is that simple.
The
6th respondent has referred me to the late Dr Tsvangirai's
affidavit and the averments therein as pertain to the selection and
appointment of second and third respondents as the Deputy Presidents
in the Patson
Murimoga case
in trying to establish that the appointments were constitutional.
This is what the late President said in justifying his actions in
appointing second and third respondents (page 114 of that record
(HC7453/16) 1st respondent's opposing affidavit);
“7.
It
appears to me that Applicant's (Murimoga) bone of contention is
that the appointment
of
2nd and 3rd respondents (Chamisa and Mudzuri) as Deputy Presidents in
the 5th Respondent was
ultra vires
the 5th Respondent's Constitution and is therefore void.
I
disagree.
Whilst
on this issue of the legality of the appointment, I also want to
refer this Honourable Court's attention to Article 18 of the
Constitution which deals with oversights and omissions and in
particular given to the National Council by this Article.
I
am therefore satisfied beyond any doubt that the appointment of the
2nd respondents to the position of Deputy Presidents of the 5th
Respondents was done in accordance with the letter and the spirit of
the 5th Respondent. The National Council which is the highest
decision-making
body
of the 5th Respondent directed that I should make the appointment
which I proceeded to do. After making the appointments, the National
Council overwhelmingly endorsed the appointments. No single member of
the National Executive and the National Council of the 5th
Respondent
challenged the appointments.”
In
the present matter this is what the 6th respondent says in trying to
justify the legitimacy of the appointments of the second and third
respondents (Page
48, record 6th respondent's opposing affidavit);
“16.......
The late Morgan Richard Tsvangirai explained how the appointments
were made and I associate myself fully with his explanation.
For
the avoidance of any doubt, this Honourable Court's attention to
the powers of the President outlined in Article 9 of the
Constitution. In there, the President is empowered to appoint
Deputies to Officers of Congress on the instructions or guidance of
the National Executive in the National Council. With regards, the
appointments of the second and third respondents, both the National
Executive and the National Council at their meetings of the 14th July
2016, directed that the late Morgan Tsvangirai should exercise his
prerogative in appointing Deputy Presidents of the party which he
proceeded to do the following day.
The
meetings of the National Executive and the National Council were duly
constituted and resolutions that were made were proper and therefore
binding. No member of the National Council or National Executive
raised any issues with regards to the validity of the two meetings
and therefore resolutions that were made therefrom.
As
if this was not sufficient, on the 30 August 2016, the National
Council met again and with an overwhelming majority, endorsed the
appointment of the 2nd and 3rd respondents to the positions of Deputy
Presidents.
I
also draw this Honourable Court's attention to the Constitution
attached by the Applicant. Therein, it will be noticed that the
National Standing Committee is composed of amongst other positions
the 'Deputy
Presidents' of the Party. It is clear therefore that the 1st
respondent's Constitution provides for the position of more than
one Deputy President and it is clear that the late Morgan Richard
Tsvangirai was empowered to make those
appointments
in accordance with the Constitution.
17.
Whilst
on this issue of the legality of the appointment of the second and
third respondents
I
also want to refer this Honourable Court to Article 18 of the 1st
Respondent's Constitution dealing with oversights and omissions and
in particular the powers are given
to
the National Council by this Article.
With
regards to the appointments in question, the National Council clearly
delegated its authority to the then President Morgan Tsvangirai who
with the approval of the National Council appointed 2nd and 3rd
respondents. There can be no question therefore that the appointment
of the 2nd and 3rd respondents as Deputy Presidents was legal and
well within the powers of the 1st
respondent's Constitution.”
From
the above excerpts of evidence in the Murimoga
case
and in the present matter, the respondents in this matter's
justification for pleading the legality of 2nd and 3d respondents as
Deputy Presidents as being intra
vires
the Constitution is exactly the same. And for the purpose of
simplification, what the respondents are saying is that:
(a)
The late President appointed the second and third respondents to be
Deputy President in terms of Article 9 of the MDC Constitution.
(b)
Dr Tsvangirai made those two appointments whilst acting on the
recommendation
of the National Council.
(c)
The National Council had the power to suggest to Dr Tsvangirai that
the 2nd
and 3rd respondents be appointed as Deputy Presidents and to delegate
authority to the late President because they were conferred that
power by Article 18 of the Constitution.
It
is my view that the 6th respondent is misguided.
Article
6.4.4 is the applicable Article when dealing with the circumstances
resulting in a member being placed in the Office of Deputy President
in the Party. And that is by an election
of
Congress.
Article
9 as a whole which is headed OFFICE BEARERS, NATIONAL COUNCIL &
THEIR ELECTION PROCEDURES deals with the duties and functions of each
Office Bearer from the President to the Chairperson of the Women's
Assembly.
All
of these office bearers hold those offices by virtue of winning an
election in Congress in terms of Article 6.4.4. It is only in the
case of The Secretary of Elections (see Article 6.4.4.1(k)) who is
the exception in that he/she is the only office bearer who the
President has the power to appoint.
Article
9 provides for only one Deputy President.
As
I have already stated, Article 9 lists the Office Bearers and the
Deputy President is listed in the singular and not in the plural. In
Article 6.4.4 the Deputy President is listed in the plural. BUT in
terms of Article 6.4.4, the Deputy President (s) would have to have
been elected by popular vote.
Thus
because the office of a Deputy President derives from an election
taking place; it should be obvious that mention of Deputy Presidents
in the plural is a typographical error.
As
I stated earlier, it would be nonsensical to arrive at a conclusion
that the President or even the National Council had any power or
authority to bypass the requirement of holding an election and just
appoint Deputy Presidents at whim. The hasty appointments were done
ultra vires
the 1st respondent's Constitution.
The
6th respondent suggested that the National Council resorted to using
its powers of delegation to the late President, to cure an oversight
or omission and appoint the 2nd and 3rd Respondent to be Deputy
Presidents.
In
both the Murimoga
case
and the present matter, the identification or itemization
of
the oversight or omission sought to be cured is not identified by the
respondents. There is no evidence attached in both records pertaining
to the deliberations of the National Council in 2016 wherein a
problem in draughtsmanship was detected and recorded
or
recommended to be cured. Or indeed explaining why it was necessary to
overcome an issue in the existing structures by appointing two
illegitimate Deputy Presidents when the office of Deputy President
was not yet vacated.
The
powers to appoint Deputies to office bearers mentioned in Article
9.1.4 does not stretch to the power to bypass electoral processes and
fill in office bearers who have already been provided for by the
Constitution. The wording used is:
“9.1.4
The President shall appoint deputies to officers of Congress from a
pool of National Executive members elected from Provinces and other
office bearers where
such is provided for in this Constitution.”
The
operative part is “where such is provided for in this
Constitution“.
The
Constitution itself provides that a Deputy President is elected thus
the act of appointing second and third respondents without an
election was ultra
vires
9.1.4 and ultra
vires
the Constitution.
The
National Council could never have legitimately delegated illegality.
ACTING
PRESIDENT
Article
9 outlines the circumstances wherein a Deputy President then acts as
an Acting President. It reads:
“9.2.
It shall be the duty of the Deputy President:
(a)
To assist the President in the exercise of his or her powers,
functions, and administrative
duties
as provided for in this Constitution;
(b)
To act on behalf of the President whenever the President is absent
from Zimbabwe
or is for any reason unable to perform his or her powers, functions,
or administrative duties; and
(c)
To perform such functions relating to the function of standing
committees and
other general matters as may be assigned to him or her by the
National Council.
(d)…,.”
This
means that the duly elected Deputy President would take over in
circumstances that the President was unable to perform his functions.
At
the time of Dr Tsvangirai's
death, the
constitutional Deputy President was the 4th respondent. It fell on
her to assume the Presidential duties at that time.
NEWLY
APPOINTED PRESIDENT
After
the late President's demise, the Acting President per 9.2.(b)
should have assumed the Presidential duties and called for an
Extra–Ordinary
Congress to be held no later than a year from the death or
resignation of the former President.
Plainly
speaking, therefore,
it
should have been the duty to call the Extra–ordinary
Congress for such an election would have been that of the 4h
Respondent. The Constitution is specific about this requirement:
“9.21
Death or Resignation of Office Bearers
9.21.1
In the event of the death or resignation of the President; the Deputy
President assumes the role of Acting President, pending the holding
of an Extra–Ordinary
Congress
that
shall be held to elect a new President which Extra–Ordinary
Congress to be held no later than a year from the death or
resignation of the former President.”
Any
action other than that is
ultra vires
the Constitution.
Thus
the events which took place on the 15th February 2018 wherein 2nd
respondent purports to have been “appointed”
and
not elected were
ultra vires
the Constitution.
NOTICE
TO CALL AN EXTRA–ORDINARY CONGRESS
The
1st respondent's Constitution provides that a notice of at least
one month is required to be sent to all members entitled to attend an
Extra–Ordinary
Congress per
Article
6.2.6 of the Constitution.
The
earliest possible date for such an Extra–Ordinary
Congress taking place for the election of a new President would have
been a month after Dr Tsvangirai's
death which at the earliest would have been from the 15th March 2018
onward. Thus the business which was conducted at the meeting which
took place on the 15th February 2018 at which the second respondent
holds himself to be an appointed President was ultra
vires
the Constitution.
CONSTITUTIONALISM
This
present matter is important insofar as Constitutionalism is
concerned.
The
point of reference which I have found to be necessary to understand
the ethos of the party comes from the language contained in the MDC
Constitution which guides me to understand that the foundation of
this movement was predicated on the foundation of social democracy.
Article
3 reads:
“3.1
The MDC shall be a Social Democratic Party whose core values shall be
solidarity,
justice, equality, liberty, freedom, transparency, humble and
obedient leadership and accountability.”
Under
Article 4.64.1;
“The
MDC considers democracy as a core value, to the extent that, its
policies be
determined by its membership, and further, its leadership shall be
accountable to the people as defined by this Constitution.”
The
leadership of the party has the corresponding duty to, Under Article
9;
“9.1.2(d)
To promote the principles of democratic discourse, participation and
equality of all members of the party.”
The
social democracy theme underpins the entire MDC Constitution.
Thus
the imposition or anointing of Deputy Presidents as was the case in
2016 by the late President and the delegation and imposition of a
candidate by the National Council and the imposition by second
respondent acting in concert with the purported Council meeting of
the 15th February 2918, to be appointed President are contradictory
of the democratic intention behind the selection of leadership within
the first respondent.
Those
actions were acts of disenfranchisement, not only of the applicant,
who was not invited to participate, but potentially the first
respondent's
membership
who have been deprived of an election.
Succession
by choice is not intra vires the first respondent's Constitution.
Surely the 2nd and 4th respondents as Officers of this Court would
have appreciated the unconstitutionality of all of the actions which
led 2nd and 3rd Respondents to become Deputy Presidents.
Section
67(3) of the Constitution of Zimbabwe, protects the right to vote
freely and to participate in the activities of the party of their
choice. It reads;
“67
Political Rights
(3)
Subject to this Constitution, every Zimbabwean citizen who is of or
over eighteen years of age has the right -
(a)
to vote in all elections and referendums to which this Constitution
or any other law applies, and to do so in secret; and
(b)
to stand for election for public office and, if elected, to hold such
office.”
The
applicant has established that he has a real and substantial interest
in the remedy of a declaratur.
The applicant
has
also demonstrated that the appointment of the second and third
respondents in 2016 and the appointment of the second respondent to
be the leader of the party were
ultra vires
the Constitution and void
ab initio. Any
subsequent actions which were taken (and which hereinafter could be
taken) by the second and third respondents whilst holding themselves
out to be Deputy, Acting President and President are consequently
void
ab initio.
In
the result I, therefore, order as follows:
1.
The appointment of 2nd and 3rd Respondents as Deputy Presidents of
the Movement
of Democratic Change Party was
unconstitutional
and therefore null and
void.
2.
The appointments of 2nd Respondent as Acting President, and President
of the Movement for Democratic Change party was
unconstitutional
and therefore null and
void.
3.
All appointments and/or reassignments and all actions of the 2nd
Respondent in his purported
capacities
as Deputy/Acting or incumbent President were unconstitutional,
and therefore null and void.
4.
The 1st respondent be and is hereby ordered to hold an Extra-Ordinary
Congress after
the elapse of at least one month after the date of this Order.
5.
The Respondents are ordered to pay the applicants costs of suit,
jointly and severally,
the one paying the other to be absolved.
Mutunga
& Partners,
applicant's legal practitioners
Atherstone
&
Cook,
1st,
2nd, 3rd, 5th, 6th,
respondent's legal practitioners
