High Court judge Justice Bharat Patel yesterday dismissed an application by former MDC chairperson Joubert Mudzumwe seeking to nullify last year’s election of Industry and Commerce minister Welshman Ncube as party leader.
The ruling has once again thrown Deputy Prime Minister Arthur Mutambara’s future as a principal in the inclusive government into the balance.
Ncube replaced Mutambara as MDC leader at the party’s January 2011 congress, but the robotics professor refused to step down as DPM.
Justice Patel’s ruling also has a bearing on House of Assembly Deputy Speaker Nomalanga Khumalo and four other legislators aligned to Mutambara’s faction as they now risk losing their seats.
They had claimed Ncube’s election was unprocedural and sought the intervention of the High Court to reverse it. But the judge ruled that the MDC congress was held in line with the constitution of the party and the election of Ncube was above board.
“Having regard to all the foregoing, I am satisfied that the applicants have failed to establish any contravention of the provisions of the MDC constitution that rely upon the declaratur (declaration) that they seek,” Justice Patel ruled.
“As regards to costs, I see no justification for the punitive award of costs claimed by the respondents, which claim was in any case properly abandoned by the counsel at the hearing of this matter.
“In the result, the application is dismissed with costs on the ordinary scale,” read part of the ruling.
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Mudzumwe, now the national chairman of the Mutambara faction, was the applicant in the matter while the MDC party and Ncube were first and second respondents respectively.
Mudzumwe had argued that the congress that elected Ncube violated the MDC constitution because provinces and districts were not notified on time. He also said nomination of candidates for elections at the congress was flawed.
Ncube, Mudzumwe further argued, “usurped various powers vested in him” as secretary-general of the party for his own political gain.
However, Justice Patel ruled that a notice was given according to the MDC constitution and the secretary-general was the one legally mandated to call for the congress according to Article 5 (2) (4) of the party’s constitution.
He said Mudzumwe’s decision not to attend could not be used to nullify all the proceedings of the congress. He said there was an omission in the MDC constitution on what would happen if the chairperson boycotts the congress.
Representing Mudzumwe, Advocate Thabani Mpofu said the delivery of notices to districts through the provinces was improper, but Ncube’s lawyer Advocate Adrian de Bourbon said they were sent and the fact that all districts forwarded representatives showed that they had received the notices.
“In that regard, I can see nothing objectionable in the dispatch of notices to the districts through the provincial structures as happened in this case, in the usual manner of the communication hierarchy,” ruled Justice Patel.
MDC spokesperson Kurauone Chihwayi welcomed the ruling, saying it was a victory for the people of Zimbabwe.
“It should embarrass those who sympathise with Mutambara, including President Robert Mugabe and Prime Minister Morgan Tsvangirai who keep on recognising him as a principal in the inclusive government yet he is not a leader of any party,” Chihwayi said. Morgan Changamire, the spokesman for the Mutambara faction, said they would appeal to the Surpreme Court.
“We feel violations of the party constitution were made before, during and after the congress,” Changamire said. Other legislators that had deserted Ncube and now risk losing their seats include Maxwell Dube (Tsholotsho North), Zinti Mnkandla (Gwanda North) and Dalumuzi Khumalo (Lupane senator).
Mutambara has another pending appeal at the Supreme Court in which he is challenging Ncube’s High Court victory in barring him from “masquerading as MDC leader”.
Mugabe and Tsvangirai have refused to recognise Ncube as a principal on the basis that the matter was sub judice, that is, before the courts pending a ruling.
