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Dr Khuphe versus Advocate Chamisa case, a close analysis

by Njabulo
03 Apr 2020 at 23:01hrs | Views
Although Dr Khuphe won the above case, it is somewhat not a sweet victory by any measure.  Thus because in its ruling, the court instructed MDC T to hold an extra-ordinary Congress to vote for a substantive President of MDC T within a period of three months. If that is not done within that specified period,  there will be an extension of that period by one month.

Commonsense can dictate that Chamisa will win overwhelmingly, just like he did in their last Congress which Dr Khuphe boycotted. Furthermore, the previous General elections results proved that Chamisa is the one that the people want as the MDC T leader. Dr Khuphe's results where not even a half of what Advocate Chamisa got.

To further exacerbate her problems,  she even lost her own seat in her own Constituency . True, Dr Khuphe had been robbed of her position of being the President of MDC -T as is embodied in the MDC -T Constitution. MDC T was supposed to automatically allow her to assume the position of being the interim President. However, the truth remains that she cannot beat Adocate Chamisa for that post if votes are cast for that post. That is if Advocate Chamisa consents to participate in that extra-ordinary Congress. What complicates this matter is that MDC Alliance was not cited as a respondent too in the court case papers. That therefore means that MDC Alliance remained unscathed by the outcome of the court ruling. The matter is therefore for MDC T political party versus Advocate Chamisa. But not Advocate Chamisa in her capacity as the President of MDC Alliance. The case is for Advocate Chamisa, as the President of MDC T not MDC Alliance.

MDC Alliance cannot lose its position in Parliament in terms of the votes which they got in the previous general elections. That means Advocate Chamisa still remains the President of MDC Alliance although he has been stripped of the authority to be the main signatory of MDC T. Dr Khuphe is now the main signatory. That means she is now the interim President of MDC T (until the votes are done in the extra-ordinary Congress)not MDC Alliance. Advocate Chamisa can choose not to participate in the aforementioned extra-ordinary Congress and still enjoy the liberty of being the President of his new party MDC Alliance. Dr Khuphe did not file papers for challenging the use of the name MDC Alliance as a trademark by Advocate Chamisa. That is that MDC Alliance is passing off as MDC T. And that has had a detrimental effect on MDC T, hence MDC T lost the previous election due to that.  And if she does file such a case,  that could mean nullifying the whole results of the previous general elections for MDC Alliance.

The challenge would be on that Advocate Chamisa uses a trademark name which is confusingly similar to that of the principal(MDC T). Again the court will have to determine whether that fact was material to the outcome of the previous elections. Dr Khuphe will have to submit that or argue that the reasonable voters of normal fortitude were confused by the similarities of the logo or tradename that was used by MDC Alliance. But if the court deems it that the voters did not confuse the MDC T logo or name with that of MDC Alliance, then there will be no case for Advocate Chamisa. But if Dr Khuphe could demonstrate with evidence and also witnesses that indeed voters confused the principal's logo or name with that of Advocate Chamisa, then MDC Alliance could lose those votes and they could all be given to MDC T.

That way MDC Alliance would then be prohibited from making any further use of that name and any monies solicited or money gained from the sell of products with that logo belonging to MDC Alliance, would then be forfeited by MDC T. Further, MDC Alliance party could be made to pay some money to MDC T as compensation. So, with this legal reasoning, in my view, at this stage her victory does not amount to anything good. lt could only amount to a change in the political menu of MDC T, if Advocate Chamisa consents to participate in the exra-ordinary Congress . And more so if Advocate Chamisa agrees to join MDC T or merge MDC Alliance with MDC T. As the state of affairs stand, right now they are two different entities trading differently, with different trading names recognised by the government's elections department.

The only thing tying Advocate Chamisa to MDC T is that he is the signatory of it and its President on paper. Advocate Chamisa is only the President of MDC T who only exist on the documents in order to receive money and sign documents of that party. While on the other had he is a substantive President of MDC Alliance which is a registered political party, which participated on its own during the previous general elections. This is my own analysis without bias or prejudice. I am apolitical.

By Njabulo. libertyatliberty at gmail dot com.

Source - Njabulo
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