Chamisa rivals in disarray after MDC's court appeal

 Chamisa rivals in disarray after MDC's court appeal
Published: 24 May 2019 (248 Views)
MDC leader Nelson Chamisa outsmarted his rivals yesterday by filing an appeal on the eve of the party's elective congress against a High Court ruling nullifying his presidency.

The Supreme Court appeal throws into disarray a bid by the youthful MDC president's foes to scuttle the congress, which opens today in Gweru.

Top Harare lawyer, Tonderai Bhatasara told the Daily News yesterday that the appeal suspends the judgment of the lower court.

"If you note an appeal, it suspends the judgment of the lower court. In this case, the noting of an appeal by the appellants will have the effect of suspending the judgment by Justice Mushore," he said.

He said the only way that enforcement can be revived is when the applicants in the High Court application file an application for leave to execute pending appeal.  

"The problem in this case, however, is that the judgment itself is difficult to enforce. It ordered the conducting of an extraordinary congress after 30 days; I don't think the 30 days have elapsed. So the applicants in the Supreme Court appeal are not yet in contempt. The order has got so many terms but the most critical one is the holding of an extraordinary congress, which is not yet ripe," he said.

Much to the MDC's relief, the High Court ruled yesterday afternoon that there was nothing urgent about the application filed on Wednesday by Maureen Tavengwa, seeking to bar Chamisa's party from conducting the elective congress. The MDC's Supreme Court appeal came after High Court Judge Edith Mushore ruled in favour of Gokwe Sesame district party member, Elias Mashavira.

Mashavira had successfully challenged Chamisa's presidency and called for an extraordinary congress as opposed to an elective congress. He further challenged, and successfully so, Chamisa and Elias Mudzuri's appointments as the party's vice presidents by the late former MDC leader Morgan Tsvangirai three years ago.

Following Tsvangirai's death in February last year after a long battle with cancer of the colon, Chamisa became the party's president after a nasty battle with one of the vice presidents, Thokozani Khupe, who later formed her own party. Mushore had ruled that Chamisa, whose MDC party was in the midst of preparing for today's congress, was an illegitimate leader.

She went further in her ruling to say all the decisions made by Chamisa since his elevation in 2016 were null and void.

Mushore's ruling had crippled the MDC congress, aided by Tavengwa's application on Wednesday.

In the application, Tavengwa, who was a secretary for Gokwe Sesame under the 2014 MDC structures, sought an interdict to stop an "illegitimate" congress. But in a move that scuttled the bid by Chamisa's rivals, MDC lawyers Thabani Mpofu, Sylvester Hashiti and Keith Kachambwa, yesterday filed a Supreme Court appeal, which effectively sets aside the High Court ruling.

In the application, Chamisa, Morgen Komichi and the MDC are the applicants, while Mashavira, Mudzuri, Khupe and Douglas Mwonzora are cited as respondents.

"The court a quo erred in coming to the conclusion that first appellant (MDC) was barred for failing to file an opposing affidavit and so erred in treating a valid affidavit deposed to by third appellant (Komichi) as pro non scripto (as though it had not been written) and in proceeding to determine the matter without hearing the first appellant.

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

They further said the court misdirected itself in concluding that the appointment of the deputy presidents within the MDC was not in accordance with the party constitution. "The question of 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.

"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," the court was told.

The lawyers also said Mushore had made an error by handing down a judgment at variance with the MDC constitution and not workable in fact and at law.

"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," they said.

The judgment being challenged came after High Court judge Hlekani Mwayera in 2017 dismissed a lawsuit challenging Chamisa and Mudzuri's appointment. Addressing the media yesterday, MDC spokesperson Jacob Mafume said the congress was proceeding as planned.

He said: "In any case, the congress is the platform for any member who has grievances to say it out and that is the organ that has the power to correct any anomaly. The MDC is a voluntary organisation so members use this congress platform to say whatever grievances they might have and that is what is happening in Gweru".

- dailynews

Tags: Chamisa,
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