News / National
Lawyers refuse to be associated with Didymus Mutasa
16 Jan 2015 at 08:29hrs | Views
IT never rains, but pours for beleaguered former Zanu-PF secretary for Administration Didymus Mutasa, who has been leading the charge to sue Zanu-PF so that he and other members of the Mujuru cabal are reinstated to their former positions in the party and Government as several lawyers refused to associate themselves with the application which legal experts said had no chance of success.
Laden with donor money, Mutasa and the cabal were yesterday frantically hunting for a willing lawyer to take up the case, but failed to find one.
The Mujuru cabal drafted its application with the help of former Attorney-General Sobusa Gula Ndebele and Mr Addington Chinake, a senior partner at Kantor and Immerman.
They came up with 39 grounds for the application, ranging from alleged defamation to claims of unprocedural adoption of amendments to the Zanu-PF Constitution and alleged unlawful removal from office.
The application makes allegations of defamation against various individuals, principally the First Lady Amai Grace Mugabe who exposed former VP Joice Mujuru's illegal dealings in gold, diamonds, high-level bribery and extortion, among other ills.
Ironically, the First Lady was not even a Zanu-PF official till her appointment as Women's League chairperson at the 6th National People's Congress in December.
The application seeks to have the Court order the reinstatement of the leadership of Zanu-PF — the Central Committee and the Politburo — and Government as at July 1, 2014.
Lawyers who saw the cabal's application described it as a rambling compendium that was more of a political dossier than a court application.
Though Mr Gula Ndebele and Mr Chinake were working closely with the Mujuru cabal to put together the application, they apparently did not have confidence in their product and sought to hide their authorship by shopping around for a law firm to use to instruct an advocate.
When a case involves an advocate, there have to be instructing lawyers.
Mr Gula Ndebele and Mr Chinake wanted a law firm to adopt the case and instruct the advocate whom they were also shopping around for.
They approached several advocates, among them Advocate Lewis Uriri whom they wanted to take the application to the High Court, and they also wanted Adv Uriri's wife, who runs her own law firm, to be the instructing attorney but the couple snubbed them.
They approached several other lawyers who also snubbed them on the basis that the application was long on politics and short on law.
From Adv Uriri, the cabal approached Adv Thabani Mpofu who also snubbed them on the basis of the politics of the case whose legal merits are hard to come by though political allegations abound.
After serial snubs, the Mujuru cabal was yesterday scrambling for plan C that is having either Mr Gula Ndebele or Mr Chinake, who both wanted to remain anonymous, handle the case.
Mr Gula Ndebele, in particular, came under heavy pressure to take the case as the cabal wanted to file the papers by end of day yesterday.
There were reports that Mr Stanford Moyo and one Retired Colonel Matemachani were busy lobbying for the case in judicial circles.
One of the lawyers who was approached to handle the case who refused to be identified confirmed the matter was now public knowledge among lawyers.
Describing how he refused to handle the case, the lawyer said: "We are a clinic and if a client comes saying he wants Ebola treatment, if we are not able we simply tell him that we do not have protective clothing or we do not treat Ebola at out our centre".
Adv Uriri said even if he had been approached he would not discuss clients applications.
"I would not discuss it with anyone because it would be covered by privilege," he said
Advocate Mpofu refused to comment.
Mr Stanford Moyo professed ignorance saying: "I am not aware of that application. Who are the lawyers? No one has consulted me in connection with that application. We deal with cases in a transparent and open manner. I would have no reason to deny that I am dealing with a particular case. I do not fear anyone when it comes to representing my clients."
A retired judge who is familiar with Mutasa's allegations but who did not want to be named for ethical reasons told the Herald that; "It is common cause firstly that Mr Mutasa lost a one man one vote election to the Zanu-PF Central Committe in his own home district in Makoni where the returning officer was reportedly his own son; and secondly that, as the then Zanu-PF secretary for administration, Mr Mutasa was the chief organiser and convener of the party's 6th National People's Congress which he is now challenging.
''As such, Mr Mutasa should sue himself by citing his name as the first respondent since he organised that Congress. Notably the Central Committee elections and the Congress were run on the basis of the unamended Zanu-PF constitution".
Since Mutasa announced his intention to approach the courts over the Zanu-PF Congress and its outcome, legal experts dismissed his chances of success saying political parties were private clubs.
Said leading lawyer and legislator Mr Jonathan Samukange: "There is a difference between suing and winning. Any person can sue, but it's not automatic that they will win. So, if Mutasa says he wants to sue it is his right, but he will not succeed.s
"There is no court that can direct operations of a political party, so the court will throw away his application because it's not merited and has no cause for action. Zanu-PF, just like a private person, has a right to make determinations of its own form."
Another lawyer Mr Musindo Hungwe said the resolutions made at the Zanu-PF congress were unassailable.
"If one wants to challenge the outcome he must ask three questions - the first one being whether or not any provisions of the Zanu-PF constitution were infringed upon," he said.
"The second one being whether or not all those resolutions passed at the congress could lawfully be passed in terms of the party's constitution.
"Finally, one should ask whether or not the congress was properly constituted in other words whether or not the delegates who attended the congress could lawfully attend and sit down and deliberate on Zanu-PF business.
"From my own analysis, the answer to all the inquiries is in the affirmative which could make resolutions passed at the congress unassailable and therefore binding on Zanu-PF as a party and the generality of its members."
Another lawyer Mr Terrence Hussein said Mutasa's decision to absent himself from the congress would complicate his case, adding that the constitutional amendments that were made at the congress were done above board.
Harare lawyer Mr Chris Mhike said Mutasa faced a number of legal challenges if he eventually decided to proceed with litigation.
"The success or otherwise of his claim if he does proceed with litigation would depend on a number of factors including, first, whether or not the court acknowledges jurisdiction over the matter, secondly if jurisdiction is accepted, the weight and veracity of arguments presented by the aggrieved parties," he said.
"Thirdly, the justification proffered by the litigant as to why he opted for court process instead of internal remedies."
Laden with donor money, Mutasa and the cabal were yesterday frantically hunting for a willing lawyer to take up the case, but failed to find one.
The Mujuru cabal drafted its application with the help of former Attorney-General Sobusa Gula Ndebele and Mr Addington Chinake, a senior partner at Kantor and Immerman.
They came up with 39 grounds for the application, ranging from alleged defamation to claims of unprocedural adoption of amendments to the Zanu-PF Constitution and alleged unlawful removal from office.
The application makes allegations of defamation against various individuals, principally the First Lady Amai Grace Mugabe who exposed former VP Joice Mujuru's illegal dealings in gold, diamonds, high-level bribery and extortion, among other ills.
Ironically, the First Lady was not even a Zanu-PF official till her appointment as Women's League chairperson at the 6th National People's Congress in December.
The application seeks to have the Court order the reinstatement of the leadership of Zanu-PF — the Central Committee and the Politburo — and Government as at July 1, 2014.
Lawyers who saw the cabal's application described it as a rambling compendium that was more of a political dossier than a court application.
Though Mr Gula Ndebele and Mr Chinake were working closely with the Mujuru cabal to put together the application, they apparently did not have confidence in their product and sought to hide their authorship by shopping around for a law firm to use to instruct an advocate.
When a case involves an advocate, there have to be instructing lawyers.
Mr Gula Ndebele and Mr Chinake wanted a law firm to adopt the case and instruct the advocate whom they were also shopping around for.
They approached several advocates, among them Advocate Lewis Uriri whom they wanted to take the application to the High Court, and they also wanted Adv Uriri's wife, who runs her own law firm, to be the instructing attorney but the couple snubbed them.
They approached several other lawyers who also snubbed them on the basis that the application was long on politics and short on law.
From Adv Uriri, the cabal approached Adv Thabani Mpofu who also snubbed them on the basis of the politics of the case whose legal merits are hard to come by though political allegations abound.
After serial snubs, the Mujuru cabal was yesterday scrambling for plan C that is having either Mr Gula Ndebele or Mr Chinake, who both wanted to remain anonymous, handle the case.
Mr Gula Ndebele, in particular, came under heavy pressure to take the case as the cabal wanted to file the papers by end of day yesterday.
There were reports that Mr Stanford Moyo and one Retired Colonel Matemachani were busy lobbying for the case in judicial circles.
One of the lawyers who was approached to handle the case who refused to be identified confirmed the matter was now public knowledge among lawyers.
Adv Uriri said even if he had been approached he would not discuss clients applications.
"I would not discuss it with anyone because it would be covered by privilege," he said
Advocate Mpofu refused to comment.
Mr Stanford Moyo professed ignorance saying: "I am not aware of that application. Who are the lawyers? No one has consulted me in connection with that application. We deal with cases in a transparent and open manner. I would have no reason to deny that I am dealing with a particular case. I do not fear anyone when it comes to representing my clients."
A retired judge who is familiar with Mutasa's allegations but who did not want to be named for ethical reasons told the Herald that; "It is common cause firstly that Mr Mutasa lost a one man one vote election to the Zanu-PF Central Committe in his own home district in Makoni where the returning officer was reportedly his own son; and secondly that, as the then Zanu-PF secretary for administration, Mr Mutasa was the chief organiser and convener of the party's 6th National People's Congress which he is now challenging.
''As such, Mr Mutasa should sue himself by citing his name as the first respondent since he organised that Congress. Notably the Central Committee elections and the Congress were run on the basis of the unamended Zanu-PF constitution".
Since Mutasa announced his intention to approach the courts over the Zanu-PF Congress and its outcome, legal experts dismissed his chances of success saying political parties were private clubs.
Said leading lawyer and legislator Mr Jonathan Samukange: "There is a difference between suing and winning. Any person can sue, but it's not automatic that they will win. So, if Mutasa says he wants to sue it is his right, but he will not succeed.s
"There is no court that can direct operations of a political party, so the court will throw away his application because it's not merited and has no cause for action. Zanu-PF, just like a private person, has a right to make determinations of its own form."
Another lawyer Mr Musindo Hungwe said the resolutions made at the Zanu-PF congress were unassailable.
"If one wants to challenge the outcome he must ask three questions - the first one being whether or not any provisions of the Zanu-PF constitution were infringed upon," he said.
"The second one being whether or not all those resolutions passed at the congress could lawfully be passed in terms of the party's constitution.
"Finally, one should ask whether or not the congress was properly constituted in other words whether or not the delegates who attended the congress could lawfully attend and sit down and deliberate on Zanu-PF business.
"From my own analysis, the answer to all the inquiries is in the affirmative which could make resolutions passed at the congress unassailable and therefore binding on Zanu-PF as a party and the generality of its members."
Another lawyer Mr Terrence Hussein said Mutasa's decision to absent himself from the congress would complicate his case, adding that the constitutional amendments that were made at the congress were done above board.
Harare lawyer Mr Chris Mhike said Mutasa faced a number of legal challenges if he eventually decided to proceed with litigation.
"The success or otherwise of his claim if he does proceed with litigation would depend on a number of factors including, first, whether or not the court acknowledges jurisdiction over the matter, secondly if jurisdiction is accepted, the weight and veracity of arguments presented by the aggrieved parties," he said.
"Thirdly, the justification proffered by the litigant as to why he opted for court process instead of internal remedies."
Source - The Herald
