THE SIGNIFICANCE OF JUSTICE BERE'S RULING IN THE BATTLE FOR CONTROL OF THE MDC-T

This blogpost is limited to ten (10) questions about the High Court ruling by Justice Francis Bere in the case of Movement for Democratic Change vs. Thokozani Khupe and Two Others HB 111/18. Parts of the post are statements of fact, whilst others are opinions regarding the import of the judgment.

1      Who approached the courts and why?

The Nelson Chamisa led MDC-T approached the High Court in Bulawayo on an urgent basis. They wanted an order prohibiting Dr. Thokozani Khupe, Obert Gutu and Abednico Bhebhe from passing off as the MDC-T and using its name and logo. This would have reinforced the Chamisa formation’s claim to legitimacy as the bona fide movement carrying the tradition and legacy of Morgan Tsvangirai.  To them, this was meant to enforce disciplinary edicts which rendered Dr. Khupe and others expelled members of the party. The conduct to be prohibited was calibrated as follows:

a)    unauthorized use or exploitation of the registered trademarks of the applicant being its name "Movement for Democratic Change" or its derivatives - "MDC or MDC-T and the applicant's political logo;

b)    passing themselves or any organization or entity they belong to as the applicant.

2      What was the response from Dr. Khupe, Gutu and Bhebhe? 

They submitted five points, focusing on the procedural and substantive weaknesses of the application. They argued that;

 i)       The Chamisa led MDC-T could not enforce a right yet to be conferred. In other words, until a court determines which faction is legitimate, none could monopolize party trademarks;
ii)       The application did not meet the legal requirements for urgency;

iii)     Since the proceedings related to an alleged infringement of a trademark, the requirements of Section 72 of the Trade Marks Act must be met;

iv)     The interim order sought was bad at law since it was identical to the final order;

v)       The filing of an answering affidavit in urgent process was improper.

3      What was the court’s finding?

The court upheld the points raised by Dr. Khupe and others. It ruled that the Chamisa led MDC-T could not enforce legitimacy yet to be conferred by a court of law or other competent body. The application lacked urgency and the court also remarked that the application should have complied with the requirements of the Trade Marks Act. The final order was identical to the interim order, and the court frowned upon the filing of the answering affidavit to account for such errors as the failure to attach the party constitution to the founding affidavit.

4      What were the court’s reasons for finding that this matter was not urgent?

The legal requirement for urgency is two-fold: urgency of the subject matter and urgency in approaching the court. The first consideration is whether the case cannot wait in observance of ordinary rules of court. It must require swift decision-making, the absence of which would result in extreme prejudice. The second consideration is the conduct of the litigant. The person approaching the court must act with sufficient speed to justify the request for an urgent hearing. Urgency must not be the result of an applicant’s delay in approaching the court; it should arise from the cause.

In this case, the court found that exclusive trademark usage was an extension of legitimate party leadership. Put differently, the person who is declared the rightful heir to Morgan Tsvangirai has the right to sue for use of the party’s trademarks. Since that is yet to be determined, the matter was ruled to be lacking in urgency. The court took judicial notice of the fact that the real source of conflict was the appointment of two male vice presidents in July 2016;

The court will take judiciary notice [sic] of the fact that simmering conflict became public knowledge from the time the late MDC leader appointed two male Vice Presidents despite the existence of Dr Khupe who had been elected the Deputy President of the MDC at the party’s congress in 2006, 2011 and 2014 (as stated and uncontroverted in the opposing affidavit.)

Such a matter which has been festering since 2016 is a bad case for urgent process unless it can be shown that there are changed circumstances justifying urgent hearing. These were not demonstrated.  

5      Does this mean Dr. Khupe is now the legitimate leader of the MDC-T?

It does not. It means the MDC-T has, at law, two factional leaders who are at par unless a court or other competent body reaches a different finding:

Until legitimacy to the leadership of the MDC is confirmed through a court process or come other competent means, like arbitration, none of the MDC factions can claim to be the lawful authority of the movement.

6      If the ruling places Chamisa and Dr. Khupe on equal footing, why is it being celebrated by the Dr. Khupe camp as a victory?

That is probably because this court application backfired spectacularly. Dr.Kupe was sued as an expelled member of the party, but emerged a fellow factional leader at par with the widely popular Nelson Chamisa. The purported disciplinary proceedings were treated as a nullity. Though Chamisa’s popularity has been touted as the true indicator of legitimacy, this was rejected by the court:

“Issues of legitimacy in the MDC cannot be resolved on the altar of popularity or lack of it. Those who desire to get the legitimacy to the leadership of the MDC must demonstrate an insatiable appetite for constitutionalism. The framers of the MDC Constitution had in mind to have the party’s affairs regulated by that constitution. There should never be any room for the subversion of that constitution by any of the factions or member [sic] of that party. Were that to happen, it would be a serious violation of the rule of law.”

This is a dismissal of populism as an indicator of democratic practice. It points to equality under the law as the axiom undergirding the rule of law. It also corroborates Dr. Khupe’s claim that you can have all the people but remain in pursuit of the wrong ideal. The Chamisa-led MDC-T has fallen back on the reality that this does not dent Chamisa’s public appeal. This is probably true, and also the reason why they should have focused their energy in the court of public opinion.

The other reason why this judgment is a feather in Dr. Khupe’s cap is its consideration of whether she violated her party constitution by dissociating herself from the Chamisa-led MDC-T:

Throughout her papers filed in this case, and even in both the electronic and print media Dr Khupe has made it clear that the MDC faction led by Mr Nelson Chamisa has subverted the MDC Constitution and that she and the other respondents regard him and his sympathizes [sic] as rebels to the MDC and that their acts as far as she is concerned are null and void. If this is her attitude and conviction can she be condemned for refusing to associate with the applicant’s faction. Is this not one of the situations that Lord Denning had in mind in the celebrated case of Macfoy v United Africa Co.Ltd where the learned Judged remarked as follows:

“If an act is void, then it is in law a nullity, it is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado. Although it is sometimes convenient to have the court declare it to be so. And every proceeding founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

Dr Khupe’s insistence on adherence to constitutionalism, if her reading of their constitution is correct, must be hailed by all fair minded persons, and spare her the condemnation.

This is glowing praise, albeit cautious and conditional. After expelling her, the Chamisa group inadvertently brought Dr.Khupe back into the party leadship. Through the decision to sue her, they secured judicial affirmation of Dr.Khupe as a fellow faction leader together with tacit approval of her vaunted fight in defence of constitutionalism.  

7      What does it mean for her recall from parliament and her Constitutional Court application?

This remains unclear. The Speaker of Parliament could not have acted differently since there was no judgment recognizing the existence of two factions within the MDC-T at the time of her recall. Further, the existence of rival factions in a political party cannot, in itself, preclude the Speaker of Parliament from the lawful obligation to expel a member upon receipt of a letter of dismissal from their party. The Constitutional Court has previously suggested that factional members must get an order from court to prevent dismissal rather expect the Speaker of Parliament to ignore the provisions of law. On the other hand, the High Court judgment means the letter which triggered the expulsion of Dr.Khupe was not from her party but merely from a rival faction of her party. This changed circumstance means her expulsion from parliament is now subject to revision. This cannot be said with sufficient certainty though, since the Constitutional Court is not bound by decisions of lower courts.  This means there are two likely outcomes; either the court will find that the Speaker was only acting in terms of the law and cannot be faulted, in which case he will be duty bound to also expel Chamisa in terms of the letter sent by Dr. Khupe; or the court will reverse the expulsion of Dr. Khupe from parliament, in which case the letter from Dr. Khupe will also have to be ignored/withdrawn.

8      What does it mean for the MDC Alliance and registration for elections?

It does not change the configuration of the MDC Alliance. It means one faction of the MDC-T leads the MDC Alliance whilst the other is abstaining. It is synonymous to the 2005 Senate Elections in which one MDC faction participated whilst the other boycotted. Concordantly, it cannot change the registration dynamics. Multiple candidates have contested under the banner of MDC-T and ZANU PF within the same constituencies in previous elections, notably in 2008 and 2013. If the matter remains unresolved, then it will be up to the factions to decide how they will distinguish themselves from their rivals in the same way that the MDC-T adopted its distinctive suffix.

9      What of the argument that the court delved into factional issues when it had only been invited to deal with the matter of the party name and logo?

This is cannot be true. The Chamisa led MDC-T sought an order in respect of intellectual property, but did so based on a claim of exclusive rights in that property. Dr. Khupe and others pointed to this unresolved question of who has exclusive rights to this intellectual property. The point was raised by the respondents and upheld by the court. It was not introduced of the court’s own initiative. This argument also ignores the other grounds on which this application failed, including the failure to meet the requirements of urgency as well as the requirements of the Trade Marks Act.

10  What of the response to the judgment by the Chamisa led MDC-T?

It is another missed opportunity. Justice Bere cautioned against the allure of diatribe in the resolution of this dispute:

 Whichever way the two factions choose, they must bear in mind that the solution to their conflict requires sober minds and not sharp tongues.

Regrettably, the Chamisa led MDC-T seems to have chosen the latter; opting to besmirch the court and accuse it of rendering a “political, controversial” decision which is emblematic of “the creeping of politics into law.” This is problematic for several reasons. The MDC-T is highly litigious. Sooner or later, they will be back in the courts. Broadsides against the judiciary do not make courts more amenable to finding in one’s favour. It is short sighted and alienates a critical democratic institution. Nelson Chamisa is a legal practitioner and one would presume he is aware of value in positive rapport with judicial officers. It is not clear why he would endorse a party position attacking the same courts this party voluntarily entrusted with its urgent application. Whilst observers, or even associates, can pass sharp criticism, the party itself should have remained measured and respectful.  

This is also our first glimpse into the leadership style of Nelson Chamisa in the face of an adverse court finding. In the case of Executive Council of the Western Cape Legislature v. President of the Republic of South Africa, the Constitutional Court of South Africa rendered its first decision against Nelson Mandela, striking down presidential proclamations for election districts in the Western Cape. This was President Mandela’s response:

When I issued those proclamations I did so on legal advice. I now accept that that legal advice was incorrect and I as president of the country must be the first to show respect for the [C]onstitution as interpreted by the Constitutional Court.

This was an important moment for South Africa, when President Mandela used his leadership to foster, rather than undermine, constitutional checks and balances. It would have been commendable if Chamisa’s MDC-T had similarly used this opportunity to show their respect for democratic institutions in general and the judiciary in particular. They could have simply stated that, as the party of excellence, they will respect the court’s finding whilst reserving their right to appeal. This would have registered their disagreement with the ruling whilst leaving the dignity of the court unsullied.

It is also helpful to add some context. Justice Francis Bere is the same judge who, whilst opening a High Court circuit in Masvingo, proclaimed that the police practice of demanding spot fines was illegal. He is the same judge who confirmed the order against Saviour Kasukuwere for the reinstatement of Hamutendi Kombayi and ten other opposition councillors. He famously criticized then Police Commissioner General Augustine Chihuri for violating the rights of police convicts through an unconstitutional retraining exercise. He granted the order against the police’s demand to go through my own mobile phone whilst representing a fellow legal practitioner in 2011. The losing parties in those proceedings never claimed to have suffered the fate of “politics creeping into law.” 

An entity with aspirations to hold the levers of government must comport itself with an ability to handle courtroom defeat with grace. ZANU PF has already failed in this regard; and the biggest opposition movement must not join them in a race to the bottom. Even those who rose to power by questionable means must uphold the integrity of democratic institutions, including those bodies which may not lend credence to their purported assumption of party leadership.