News / Local
Welshman Ncube, Mutambara leadership struggle case:
17 Nov 2011 at 04:13hrs | Views
Judgment reserved
BULAWAYO High Court judge Justice Lawrence Kamocha yesterday reserved judgment in the case in which MDC wants the confirmation of a provisional order barring Professor Arthur Mutambara from presenting himself as president of MDC.
The applicants sought an amendment barring Prof Mutambara from continuing as a Global Political Agreement principal.
Postponing the ruling, Justice Kamocha said he needed time to consider issues raised by both the counsels for the applicants and the respondents.
MDC is the first applicant, while its secretary general Mrs Priscilla Misihairabwi-Mushonga is the second applicant.
Prof Mutambara, who is opposing the granting of the final order, is the only respondent.
The postponement of the judgment means that the provisional order granted by Bulawayo senior High Court judge Justice Nicholas Ndou on 16 February this year, barring Prof Mutambara from exercising any function vested in the president of MDC, remains in force.
Prof Mutambara is also interdicted from interfering with the structures and organs of the party and he should not purport to be the president of MDC.
Making submissions in support of the confirmation of the provisional order, Senior Counsel Advocate Adrian de Bourbon instructed by Mr Josephat Tshuma, noted that Prof Mutambara argued that the application did not comply with the Rules of the High Court in terms of formatting.
It was Adv de Bourbon's contention that if they were not happy with this, they could have sought leave to appeal against the granting of the provisional order.
He argued that there was no dispute as to the requirements of such an interdict, adding that all that his clients are expected to do is to show that there is a prima facie case.
"This court is not called upon to determine the case which is pending in the High Court in Harare, but my clients want the court to preserve the prevailing situation until the Harare case is finalised," submitted Adv de Bourbon.
He noted that in January, two major national meetings of the MDC including the congress were held and that Prof Mutambara chaired the meetings.
"In his (Prof Mutambara) opposing affidavit he states that the congress was not a congress and I think he is not being truthful as he is the one who gave the opening address," said Adv de Bourbon.
"It is common cause that he did not put his name forward to retain the presidency of the party at the congress when he knew that his term of office had ended. Prof Welshman Ncube put his name forward and was duly elected president of MDC."
He further noted that after the congress, 13 members of MDC commenced proceedings in the High Court in Harare seeking an order declaring the congress null and void and seeking that Prof Ncube calls another congress within six months of the judgment.
The 13 applicants are Joubert Mudzumwe, Constantine Chipadza, Morgan Changamire, Godfrey Gumbo, Tsitsi Dangarembga, Rosemary White, Mike Chikilwa, Charles Manyozo, Shepherd Adam, Peter Kafumu, Suman Tabu, Tapiwa Rukobo and Sani Chakanduka.
They are arguing that because of time limits, there was a possibility that some districts within MDC did not receive the notice of the congress on time and that in one or two provinces the nomination was a fraud.
The applicants state that according to the MDC constitution, the national chairperson has to chair meetings.
Adv de Bourbon notes that Mudzumwe, who is the first applicant in the Harare case, walked out of the congress.
"All the matters being raised in that application are being challenged and we call upon this court to decide whether there is prima facie case in the case before it. None of the critical facts before the court are in dispute but there are disputes in facts in the case filed in Harare and that is for the Harare Court to determine," he submitted.
He said he doubted the Harare Court would set aside the proceedings of the congress.
Adv de Bourbon said the balance of convenience favours allowing the political dispensation prevailing to continue allowing all parties in the Global Political Agreement to fully participate.
He argued that the issue of principals which his client wanted to include in the final order was not new as it is mentioned in the provisional order.
Adv de Bourbon noted that the term principal has become a term of art with regards to party presidents adding that Prof Mutambara does not head any of the three political parties in the GPA.
Mr Alec Muchadehama, of Mbidzo, Muchadehama and Makoni Legal Practitioners, who represented Prof Mutambara said they were opposed to the confirmation of the provisional order and wanted it discharged with costs.
It is his contention that the matter is not urgent and therefore the provisional order should not have been granted in the first place.
He said the fact that the applicants approached the High Court in February and are only seeking to confirm the order now shows that there is no urgency in the matter.
"We urge the court to look at the facts that led to the granting of the provisional order to see if there was a basis," said Mr Muchadehama.
"The respondent is being interdicted from doing certain things pending the finalisation of the case filed in Harare but these things are not spelt out on paper. There is nothing before this court, for example, that shows that he interfered with the structures or organs of the party.
"The respondent denies doing anything to harm the interests of MDC. The issues before this court have nothing to do with the party but they are contestations of a power struggle within the leadership of MDC."
Mr Muchadehama said there was no need to hamstring Prof Mutambara's political career pending the outcome of the case filed in Harare.
He noted that no provisional order was granted barring him from being a GPA principal, adding that it would be incompetent for the applicants to simply seek this in the final order.
"It must be noted that the respondent has continued to act as a principal after the interim relief was granted," he said.
"He is also the Deputy Prime Minister. Who knows at the rate at which applicants are going, next they will seek to bar him from executing the functions of the office of the Deputy Prime Minister, later seek to prevent him from attending political gatherings or addressing political meetings as a citizen or member of a political party, next they might seek to bar him from freely expressing himself etc."
Mr Muchadehama said that the applicants had no clear right to claim to solely represent the MDC and said their legitimacy was being challenged in the case filed in the High Court in Harare.
"Instead of seeking to gag respondent, applicants must concentrate on doing their political activities and convincing their supporters, if any, that they are their true representatives," he said.
"This is one such remedy. Going to court is more of harassing respondent and more of a publicity stunt than seeking genuine remedies."
Mr Muchadehama prayed for the discharge of the provisional order arguing that applicants did not establish that they are entitled to any of the final orders sought.
BULAWAYO High Court judge Justice Lawrence Kamocha yesterday reserved judgment in the case in which MDC wants the confirmation of a provisional order barring Professor Arthur Mutambara from presenting himself as president of MDC.
The applicants sought an amendment barring Prof Mutambara from continuing as a Global Political Agreement principal.
Postponing the ruling, Justice Kamocha said he needed time to consider issues raised by both the counsels for the applicants and the respondents.
MDC is the first applicant, while its secretary general Mrs Priscilla Misihairabwi-Mushonga is the second applicant.
Prof Mutambara, who is opposing the granting of the final order, is the only respondent.
The postponement of the judgment means that the provisional order granted by Bulawayo senior High Court judge Justice Nicholas Ndou on 16 February this year, barring Prof Mutambara from exercising any function vested in the president of MDC, remains in force.
Prof Mutambara is also interdicted from interfering with the structures and organs of the party and he should not purport to be the president of MDC.
Making submissions in support of the confirmation of the provisional order, Senior Counsel Advocate Adrian de Bourbon instructed by Mr Josephat Tshuma, noted that Prof Mutambara argued that the application did not comply with the Rules of the High Court in terms of formatting.
It was Adv de Bourbon's contention that if they were not happy with this, they could have sought leave to appeal against the granting of the provisional order.
He argued that there was no dispute as to the requirements of such an interdict, adding that all that his clients are expected to do is to show that there is a prima facie case.
"This court is not called upon to determine the case which is pending in the High Court in Harare, but my clients want the court to preserve the prevailing situation until the Harare case is finalised," submitted Adv de Bourbon.
He noted that in January, two major national meetings of the MDC including the congress were held and that Prof Mutambara chaired the meetings.
"In his (Prof Mutambara) opposing affidavit he states that the congress was not a congress and I think he is not being truthful as he is the one who gave the opening address," said Adv de Bourbon.
"It is common cause that he did not put his name forward to retain the presidency of the party at the congress when he knew that his term of office had ended. Prof Welshman Ncube put his name forward and was duly elected president of MDC."
He further noted that after the congress, 13 members of MDC commenced proceedings in the High Court in Harare seeking an order declaring the congress null and void and seeking that Prof Ncube calls another congress within six months of the judgment.
The 13 applicants are Joubert Mudzumwe, Constantine Chipadza, Morgan Changamire, Godfrey Gumbo, Tsitsi Dangarembga, Rosemary White, Mike Chikilwa, Charles Manyozo, Shepherd Adam, Peter Kafumu, Suman Tabu, Tapiwa Rukobo and Sani Chakanduka.
They are arguing that because of time limits, there was a possibility that some districts within MDC did not receive the notice of the congress on time and that in one or two provinces the nomination was a fraud.
The applicants state that according to the MDC constitution, the national chairperson has to chair meetings.
"All the matters being raised in that application are being challenged and we call upon this court to decide whether there is prima facie case in the case before it. None of the critical facts before the court are in dispute but there are disputes in facts in the case filed in Harare and that is for the Harare Court to determine," he submitted.
He said he doubted the Harare Court would set aside the proceedings of the congress.
Adv de Bourbon said the balance of convenience favours allowing the political dispensation prevailing to continue allowing all parties in the Global Political Agreement to fully participate.
He argued that the issue of principals which his client wanted to include in the final order was not new as it is mentioned in the provisional order.
Adv de Bourbon noted that the term principal has become a term of art with regards to party presidents adding that Prof Mutambara does not head any of the three political parties in the GPA.
Mr Alec Muchadehama, of Mbidzo, Muchadehama and Makoni Legal Practitioners, who represented Prof Mutambara said they were opposed to the confirmation of the provisional order and wanted it discharged with costs.
It is his contention that the matter is not urgent and therefore the provisional order should not have been granted in the first place.
He said the fact that the applicants approached the High Court in February and are only seeking to confirm the order now shows that there is no urgency in the matter.
"We urge the court to look at the facts that led to the granting of the provisional order to see if there was a basis," said Mr Muchadehama.
"The respondent is being interdicted from doing certain things pending the finalisation of the case filed in Harare but these things are not spelt out on paper. There is nothing before this court, for example, that shows that he interfered with the structures or organs of the party.
"The respondent denies doing anything to harm the interests of MDC. The issues before this court have nothing to do with the party but they are contestations of a power struggle within the leadership of MDC."
Mr Muchadehama said there was no need to hamstring Prof Mutambara's political career pending the outcome of the case filed in Harare.
He noted that no provisional order was granted barring him from being a GPA principal, adding that it would be incompetent for the applicants to simply seek this in the final order.
"It must be noted that the respondent has continued to act as a principal after the interim relief was granted," he said.
"He is also the Deputy Prime Minister. Who knows at the rate at which applicants are going, next they will seek to bar him from executing the functions of the office of the Deputy Prime Minister, later seek to prevent him from attending political gatherings or addressing political meetings as a citizen or member of a political party, next they might seek to bar him from freely expressing himself etc."
Mr Muchadehama said that the applicants had no clear right to claim to solely represent the MDC and said their legitimacy was being challenged in the case filed in the High Court in Harare.
"Instead of seeking to gag respondent, applicants must concentrate on doing their political activities and convincing their supporters, if any, that they are their true representatives," he said.
"This is one such remedy. Going to court is more of harassing respondent and more of a publicity stunt than seeking genuine remedies."
Mr Muchadehama prayed for the discharge of the provisional order arguing that applicants did not establish that they are entitled to any of the final orders sought.
Source - TH
