The High Court judgment on MDC: Just loud thunder

Guest Column: Tapiwa Shumba

This is an opinion clarifying the court order in the High Court Judgment on Advocate Nelson Chamisa’s Presidency.

•  Nowhere in the judgment is there a reinstatement/appointment of Thokozani Khupe as the deputy president and/or acting president. The court order has five distinct parts and none of them mention Thokozani Khupe or fourth respondent.
•  The Judgment does not install anyone as the acting president because even if it wanted to, the court was mindful of the fact that madam Khupe’s term would have expired on February 15 because the acting capacity is for one year. It could not otherwise say, failing to hold an extra-ordinary congress is unconstitutional, but Khupe’s stay beyond a year is constitutional. From February 15, her own actions would have been null and void.
•  The judgment does not say Chamisa is barred from leading the MDC. It only declares what he has done and his appointment as null and void. He will not be in contempt of court if he goes and addresses a rally or chairs any meeting of the MDC because he has not been barred. In any case, before his appointment as deputy or president, he was a national executive committee and national council member.
•  In the MDC, there are no appointments made by the president or acting president. The party constitution clearly shows that all the appointments were made by the national council. The MDC constitution clearly states — “6.4.2.1 Without prejudice to the generality of its powers, the national council shall: — 6.4.2 1 (k) elect, reappoint and reassign party secretaries defined in clause 6.4.4.2 of this constitution save those that are directly elected at congress. (l) fill any vacancy, by way of an election, in the national council caused through resignation, death or any other cause, provided that any vacancy in respect of elected provincial representatives to the executive defined in Article 6.4.3.2 shall be filled at an election of the provincial council.”
•  The upcoming MDC congress was not convened by Chamisa, but by the national council. See “6.2.4.1. A notice convening the congress shall be sent to all provinces and districts by the secretary-general on the direction of the national council at least 2 (two) months before the date of the congress.” It is not the acting president or the president who convenes an MDC congress or extra-ordinary congress. Any MDC congress is convened by the national council.
• The judgment does not stop the MDC from holding its congress as planned. It simply states what should have happened and what should happen, but does not bar the MDC from curing the failure to have the extra-ordinary congress.
• There is no difference between an extra-ordinary congress and a congress under the MDC constitution, except for the fact that congress is held once every five years but if you want to do another, in between, you call it an extra-ordinary congress and outline its agenda. The MDC constitution clearly states – “6.2.2 The congress shall meet once every five years, provided that an extra-ordinary congress may be convened, at any time, in accordance with the provisions of this constitution.”
•  The court did not direct Khupe to convene an extra-ordinary congress (any such suggestion is mischievous). The court clearly directs the first respondent (the MDC) to convene an extra-ordinary congress, which it does among other means under — “6.2.5. An extra-ordinary congress may be called: (a) By a simple majority vote of the national council or two thirds vote of the national executive which vote shall be conducted by a secret ballot.”
•  The court does not order the party to return to 2014 structures. That is just a lie. All decisions made by the national council and the party, except for those the court declared null and void, remain valid. These include all appointments and re/assignments made by the national council, including expulsions and resignations accepted. Only two things were declared null and void by the court — the appointment of Chamisa and Mudzuri as deputy presidents and the appointment of Chamisa as acting/president by the national council. The court does not order the first respondent (the MDC) to revert to any date in the past.
•  The court does not say the extra-ordinary congress must be held in a month. It says after a month because of — “6.2.6. A notice convening an extra-ordinary congress shall be sent to all members entitled to attend and to each branch by the national council, at least one month before the date of the meeting.” Of course, that in itself is a misdirection and undue interference by the court because the MDC congress has the power to condone and ratify short notice periods — “6.2.3 The functions and Powers of congress shall be: (f) To review, ratify, modify, alter or rescind any decision taken by any organ or official of the party. (g) To condone any reasonable non-compliance with the time limits provided for in this constitution, save for the time limits defined in Article 6.2.2.” (6.2.2 is the timeline for when congress must be held). This is just a misreading of the MDC constitution by the court.  The judgment does not say the MDC must close shop until it holds an Extra-ordinary congress. It simply says, in terms of your constitution, you were supposed to have an extra-ordinary congress within a year.

Now go and do it. Presumably, the court makes this order because there is nothing on court record that tells the court that the MDC has already called such a congress.

Remember, although the judgment was delivered in May, this is a matter decided on applicants’ heads of argument filed on November 19, 2018 and respondents’ heads filed in January 2019 — before the MDC had convened the congress. On this point, we must understand that the court decides on court papers before it, and not from newspapers.

•  The MDC national council (who is the 1st respondent in the judgment) has already convened a congress that can address the extra-ordinary congress. This makes the prayer for a congress to be moot because it has been overtaken by events. For example, the congress can choose to: “6.2.3 The functions and powers of congress shall be: (i) To dissolve the party in terms of this constitution.”
•  One option is for the national chairperson Sen Thabitha Khumalo to convene national council because of: “ 9.3 National Chairperson 9.3.1 It shall be the duty of the national chairperson to: (a) Perform the duties of the president’s office in the event that both the president and deputy president are unable to perform the functions of the president’s office”. Without the reinstatement or installation of anyone by the court, the court order means there is no president or deputy president. Where the court refers to Khupe, it is very careful to use past tenses. For example, “it fell on her to assume presidential duties at that time (not now).”
•  National council could postpone congress from May 24 to around June 15; giving the month’s notice of an extra-ordinary congress. However, that is still unnecessary under the MDC constitution. It is undue interference by the court for it to order that an extra-ordinary congress be held by such a date. Under the MDC constitution, congress has the power to ratify or condone the none-holding of an Extra-ordinary congress. Congress has the power to ratify non-compliance with time limits. The only thing congress cannot do is to condone the none-holding of the five-year congress. Therefore, the court cannot rush to pre-empt the MDC congress before it is held by essentially jumping the gun.
• If convened, the extra-ordinary congress will do what congress would have done. Do not forget that the 2014 congress was an extra-ordinary congress because it was held before five years. The idea that if it is called an extra-ordinary congress it has to be something different from a congress is patently wrong.
• The other option is for the national council to accept that the two months notice given for the congress is in fact enough for an extra-ordinary congress because, in any case notice for extra-ordinary congress is one month. Better still, this is actually an extra-ordinary congress.

The MDC constitution does not say the Extra-ordinary congress notice must state that it is extra-ordinary and not congress. The timing is enough to determine whether it is extra-ordinary or not. The constitution itself refers to the extra-ordinary congress as just congress, in some instances.

•  This is a very soft Judgement and can easily be addressed, from both a legal perspective and politically. Legally, there is an option to appeal it. However, better still, just to seek to vary it because of the patent errors and omissions the court itself will admit. Politically, the Judgement leaves everything in the hands of the MDC. The MDC could therefore simply proceed and conduct its business as usual.
•  Curiously – The case cited 6 Respondents: The MDC, Adv Chamisa, Sen Mwonzora, Madam Khupe, Sen Mudzuri and Sen Komichi. Only Senator Komichi and Adv Chamisa responded. Madam Khupe, Sen Mudzuri and Sen Mwonzora may choose not to respond in their personal capacities if they feel the case favours their personal ambitions. It is their personal right. However, for Sen Mwonzora in particular, as the MDC Secretary General, no matter his personal feelings, to fold his arms whilst the MDC party is being sued raises serious questions for any credible organisation. Under 9.5 Secretary-General – 9.5.1 The Secretary-General shall: (b) primarily be responsible for the efficient organisation and administration of the party; (e) Be the custodian of all important party documents, lists, papers and records”). That the MDC party was sued and did not even file responding papers in the matter is a problem.
•  Why the court delved in this academic exercise is one of the reasons why it should be criticised. A normal court generally does make an unenforceable order. The court orders the MDC as a party to convene an extra-ordinary congress, which means the national council of the MDC must convene the congress. The problem is on enforcement. How does the Court enforce its own Order? If the national council of the MDC does not sit and/or convene the congress what will the Court do? Nothing? Well, it can convene it itself, but who will attend? What if the national council Convenes the Extra-ordinary congress and tells MDC Members not to attend? Surely, it cannot hold all the national council or congress members in contempt of court. The Court can declare something as null and void but making an order of specific performance that it cannot enforce is pointless.
• In the end, this Judgement is about removing a person who, in essence, is no longer President because campaign for congress elections started way before the judgement. It was about removing a person who is no longer but will still be re-elected in a few days’ time. It was about convening a congress that had already been convened before the Judgement. Thus, circumstances have altered so much so that this judgment has become moot. It is a Moot Judgement. – It is a brutum fulmen – “An empty noise; an empty threat. A judgment void upon its face which is in legal effect no judgment at all, and by which no rights are divested, and from which none can be obtained, and neither binds nor bars anyone.”
• Dr Tapiwa Shumba is a Senior Law Lecturer, Advocate of the High Court of South Africa and Associate Editor of the Speculum Juris Law Journal. He writes in his personal capacity