BSR: What exactly did the Supreme Court order?
In the various discussions concerning the controversial judgment of the Supreme Court in the case of Mashavira v MDC and Others (2020) which was delivered on 31 March, the small print seems to have been overlooked and drowned in a flood of assumptions and interpretations. The "small print" in this instance refers to the court order, the portion that appears at the end of the judgment. This is the operative part of the judgment.
A closer examination of the terms of the order reveals that it does not say some of the things that have been attributed to it. Since this judgment is the basis upon which a lot of claims are being made and it was the authority upon which the Speaker and the President of the Senate relied when they announced vacancies in 4 parliamentary seats following a recall, it is important to critically examine the order.
For the examination to make sense, it is important to begin with a brief explanation of the legal position concerning court orders.
What is a court order?
A court order is the operative part of a judgment, which sets out the rights and duties of parties to legal proceedings. It commands a party or parties concerning what they are required to do or not to do. This command can be a duty to carry out a positive act or a prohibition not to do something. It can be a declaration validating particular acts or invalidating such acts.
Usually, the body of the judgment provides reasons for the court’s decision and the order specifies what must be done. It is that part that is enforced. In the case of Administrator, Cape and Another v Ntshwaqela and Others, a South African court described the relationship between the two parts as follows:
“It may be said that the order must undoubtedly be read as part of the entire judgment and not as a separate document, but the Court’s directions must be found in the order and not elsewhere”
Therefore, a court order is a command to a specific party involved in the dispute. It binds the party to comply in specific terms. There should be no room for more than one interpretation. If the party fails to comply, the winning party can use the lawful authorities, such as the Sheriff, to enforce the order or commit the defaulter for contempt. The corollary is that a party that is not named or given duty in the order has no direct obligation to comply.
The cardinal rule is that a court order must be enforceable. This means it must be clear and unambiguous. There must be no room for discretion on the party required to comply. There should be no uncertainty or room for doubt as to what is expected of the parties. An order that leaves room for discretion is not capable of enforcement without further litigation. In other words, for easy enforcement, a court order must be final.
If an order is vague or unclear as to the obligations or prohibitions it imposes, it would require further litigation to translate a right or obligation into an executable command. It is for this reason that when a court makes an order, it must apply great scrutiny to the terms of that order. This is also why lawyers take care to word the relief sought in court proceedings in specific and clear terms, making sure everyone who is required to comply is named.
In the South African precedent already cited, the court put is as follows:
“... the order with which a judgment concludes has a special function: it is the executive part of the judgment which defines what the Court requires to be done or not done, so that the defendant or respondent, or in some cases, the world may know it.”
An unclear or ambiguous order is not capable of being enforced.
Court orders are also fundamental for the protection of the authority, dignity, honour of the court. A court suffers embarrassment if its order is incapable of enforcement. In addition, clarity in a court order is consistent with the principle of the rule of law. Parties must know that they are bound by the order and they must know what they are expected to do and by when.
The Court Orders
Now, in view of this background, let us consider the terms of the Supreme Court order in the Mashavira case. It will become apparent that the Supreme Court order changed and has some fundamental differences from the High Court order in at least three key respects. To make it easier for the reader, I will set out the two court orders. To make it more intelligible, the first respondent was the MDC, the second respondent was Nelson Chamisa and the third respondent was Elias Mudzuri.
High Court Order
The appointment of the 2nd and 3rd respondents as Deputy Presidents of the Movement for Democratic Change party were unconstitutional therefore null and void.
The appointments of the 2nd respondent as Acting President and President of the Movement for Democratic Change party were unconstitutional and therefore null and void.
All appointments and/or reassignments and actions of the 2nd respondent in his purported capacities as Deputy/Acting or incumbent President were unconstitutional and therefore null and void.
The 1st respondent be and is hereby ordered to hold an Extraordinary Congress after the lapse of at least one month after the date of this Order.
The respondents are ordered to pay the applicant’s costs of suit, jointly and severally, the one paying the others to be absolved.
Supreme Court Order
The appeal be and is hereby dismissed with no order as to costs.
The judgment of the court a quo be and is hereby confirmed, save for the deletion of paragraphs 4 and 5 of the operative order.
The third respondent, in her capacity as the Acting President of the first appellant, be and is hereby ordered to convene an Extraordinary Congress, within a period of three months from the date of this order, in order to elect a new President.
In the event that the third respondent fails or is unable to comply with paragraph 3 above, the third appellant, in his capacity as the National Chairperson of the first appellant, be and is hereby ordered to convene the aforesaid Extra- Ordinary Congress, within a period of four months from the date of this order.
Since the Supreme Court confirmed the High Court order with variations, I have made it easier by combining the two orders consistent with the Supreme Court’s order. The Supreme Court order deleted paragraphs 4 and 5 of the High Court order and replaced them with paragraphs 3 and 4. The combined order would, therefore, look at follows:
The appointment of the Nelson Chamisa and Elias Mudzuri as Deputy Presidents of the Movement for Democratic Change party were unconstitutional therefore null and void.
The appointments of the Nelson Chamisa as Acting President, and President of the Movement for Democratic Change party were unconstitutional and therefore null and void.
All appointments and/or reassignments and actions of Nelson Chamisa in his purported capacities as Deputy/Acting or incumbent President were unconstitutional and therefore null and void.
Tokhozani Khupe, in her capacity as the Acting President of the first appellant, be and is hereby ordered to convene an Extraordinary Congress, within a period of three months from the date of this order, in order to elect a new President.
In the event that the Thokozani Khupe fails or is unable to comply with paragraph 4 above, the Morgen Komichi, in his capacity as the National Chairperson of the MDC, be and is hereby ordered to convene the aforesaid Extra-Ordinary Congress, within a period of four months from the date of this order.
No order as to costs
Now that we have the terms of the orders, let us examine the meanings of the terms, highlighting the key differences between them.
What was the party ordered to do?
The first difference between the two judgments concerns the identity of the persons who were ordered to do positive acts. Whereas the High Court order had a term which specifically required the party to do a positive act, the Supreme Court order does not impose such a duty on the party.
Paragraph 4 of the High Court order stated:
“The 1st respondent [the party] be and is hereby ordered to hold an Extraordinary Congress after the lapse of at least one month after the date of this Order.”
This term was specific in that it required the MDC to perform a positive act, namely to “hold an Extraordinary Congress”. This is important because it specifically bound the party to act. If the party fails to act, Mashavira could compel it to do so.
The Supreme Court order takes a different approach. It removed the term of the High Court order which compels the party to hold an Extraordinary Congress. It does not impose a specific duty of compliance on the party. To put it bluntly, there is no order on the MDC to hold an Extraordinary Congress. Instead, the Supreme Court shifted the order to the Acting President or alternatively, the National Chairperson.
In this regard, paragraph 4 of the Supreme Court order states:
“The third respondent, in her capacity as the Acting President of the first appellant, be and is hereby ordered to convene an Extraordinary Congress, within a period of three months from the date of this order, in order to elect a new President.”
Paragraph 5 places the same obligation on the National Chairperson if the Acting President fails or is unable to convene the Extraordinary Congress.
Does the difference matter?
It might be argued that there is no difference because the Acting President and the National Chairperson represent the party. But this overlooks the fact that the party is, at law, a separate legal person, with its own rights and responsibilities, capable of suing and being sued in its own name. Indeed, that is why Mashavira cited the party separately in the proceedings. The order should be to the party, but it is not. If someone wants a company to do something, they sue the company, not its CEO. When a court makes a ruling, the litigant expects the court to issue the primary order to the company, not the CEO or other officer.
The High Court recognised this and imposed the duty to hold the Extraordinary Congress on the party. The High Court order was specific, clear and binding on the party to do a positive act. The judge had applied her mind to the issue and recognised that the party, being a separate legal person must be ordered to act. It was specifically required to hold an Extraordinary Congress. The Supreme Court changed this by removing this term.
Why the Supreme Court removed that term is unclear. It may be that the judges reasoned that ordering the Acting President or the National Chairperson was good enough, but there is a reason why the party was sued in its own name. When people say the MDC was ordered to hold an Extraordinary Congress they are inventing a term that is not in the Supreme Court order. They are erroneously referring to a term that was in the High Court but which, for whatever reason, the Supreme Court removed.
There is a difference between a positive duty on the party to perform a particular act and a duty on two officers to cause something to be done. They might try to convene the Extraordinary Congress as ordered by the Supreme Court but no one else, not even the party, has an obligation to comply. Consider a situation which might seem extreme but is within the realms of possibility: For whatever reason, both Thokozani Khupe and Morgen Komichi have a change of heart and decide that they do not want to convene the Extraordinary Congress, Mashavira can only enforce the order against them, not the party.
More critically, there is no duty under the order for party members to comply with it. A court has no power to command people to give up their freedoms of association and assembly by requiring them to associate with people they do not want to be associated with. In short, no person is compelled to participate at the Extraordinary Congress.
Unsurprisingly, nearly two months after the judgment was handed down, they still haven't been able to summon a quorum for the Standing Committee, the smallest of the party organs by numbers. But this has stopped individuals from flexing newfound muscle. They have run amok with the axe in hand, targeting MPs, with no evidence whatsoever of formal collective decision-making processes being held or due process, despite claiming the moral high ground as champions of constitutionalism.
A clearer order would have kept the term in the High Court compelling the party to hold an Extraordinary Congress while adding new terms specifically compelling the Acting President and the National Chairperson to take positive steps to fulfil it. After all, there are other avenues apart from those two officers by which the party can hold an Extraordinary Congress.
Timing of Extraordinary Congress
The second difference is that the High Court order was ambiguous and vague concerning the timing of the Extraordinary Congress whereas the Supreme Court order is more specific on this issue.
The High Court ordered that the Extraordinary Congress be held “after the lapse of at least one month after the date of this Order.” There was no indication as to the time within which the Extraordinary Congress should be held. It left too much to the discretion of the party. To the extent that it afforded such broad discretion and indeterminacy, this term of the High Court order did not satisfy the requirements of certainty and specificity of a proper court order.
The Supreme Court order is different in that it changes the timing for the Extraordinary Congress to “within a period of three months from the date of this order”. This is more determinate and specific. The Extraordinary Congress must be convened within 3 months from 31 March 2020. If that time lapses, and there is no extension, that is the end of the matter. In setting this reduced time limit, the Supreme Court varied significantly the MDC Constitution, which otherwise allows a longer period.
The only way out of this strict time-limit would be to apply for an extension of the period. With the current lockdown due to the COVID-19 pandemic and the ban on political gatherings, scenario-planners must see that the possibility of an extension may be granted to the two officers. This may buy time for a group which is struggling for traction.
Purpose of Extraordinary Congress
The third difference is that the High Court order was open-ended as to the purpose of the Extraordinary Congress. It simply ordered the party to hold an Extraordinary Congress. This left the purpose of the Extraordinary Congress indeterminate and vague. By contrast, the Supreme Court order is more specific. Paragraph 4 provides that the purpose of the Extraordinary Congress is “in order to elect a new President.” Therefore, there is no other business at the court-ordered Extraordinary Congress except to elect a new President. What happens afterwards is for the party to decide.
But this is where things get absurd. The logic of the Supreme Court judgment is that the party was being returned to the time when the late President Morgan Tsvangirai died. This means the Extraordinary Congress is supposed to elect a President to serve the remainder of his term. At the time of his death, Tsvangirai was left with about 18 months. So this Extraordinary Congress is only meant for this purpose. Thereafter, there will be another regular Congress to elect a new President and other executives.
In all this, it’s as if nothing ever happened between Tsvangirai’s death and the Supreme Court judgment, when the reality is that a lot had happened. A court that was desirous of resolving an irregularity ought to have taken cognisance of what had happened in an evolving organisation. Just as it varied the constitution by reducing the time-limit to 3 months, it could have made a specific order that required the party to everything at once, including electing other executives apart from the President.
Did the Court extend expired terms?
A legal and practical difficulty, in this case, was that the term of office of the organs and structures under the 2014 Congress had expired by operation of law. The party constitution prescribes a term of 5 years, after which the terms end. Those terms expired in November 2019. The Supreme Court was cognizant of this fact, but for some reason, its order was silent on the extension of terms. It stated, in the main judgment:
“The essence and objective of the corrective measures to be implemented by the Party is to restore the status quo ante that prevailed before the irregular and unlawful appointments to the Party presidency took place. This would necessitate having to extend the time limit prescribed in the Party constitution apropos the convening of an Extraordinary Congress to elect a new President following the demise of Dr Tsvangirai. It would also involve modifying the judgment a quo to conform with that purpose.”
“Apropos” is a Latin term meaning “concerning”.
Having stated this, the expectation was that the court would make it clear in the operative part (the order) that the terms of all party organs and structures which had expired would be extended. It did not do that. It did, however, make specific reference to the Acting President and the National Chairperson, ordering them to convene an Extraordinary Congress. The time-limit concerning the convening of the Extraordinary Congress was attended to but nothing was said of the expired terms of organs and structures. This is partly why the case was moot. It’s like ordering a former student who has already graduated to go back and complete the last semester of the term that’s long ended.
After the Supreme Court judgment, so many assumptions have been made as to its interpretation, with some officers even claiming their old roles under the 2014 Congress. This is important because it is under this claimed authority that drastic powers have been used, including the power to recall MPs. The court should have taken judicial notice of this expiration of terms by operation of law and made a specific order extending these terms of office.
Nullification and Voiding of acts
One of the terms ordered the nullification of all “appointments and/or reassignments and actions of the 2nd respondent in his purported capacities as Deputy/Acting or incumbent President”. This term causes serious problems both for the party and third parties that dealt with it between September 2016 when Chamisa and Mudzuri were appointed deputy presidents and the time of the judgment - 4 years worth of acts that the order purports to void. These third parties, including contractors, would have dealt with the party believing that the Chamisa had the authority to represent the party. A court cannot just decide that these acts are null and void.
It is also notable that the term voiding all acts done since 2016 applies only to Chamisa but not to Mudzuri although the courts held that both appointments were unlawful. This is a glaring omission because it means while acts by Chamisa are deemed null and void, acts by Mudzuri remain valid. This selective treatment of parties in the same position lacks innocence. If the omission by the High Court was an error, it’s unlikely that it was also an error at the Supreme Court. The Supreme Court ought to have noticed the glaring omission and fixed it, just as it tried to do with other terms. It points to something more systematic and targeted in the approach towards the parties.
In any event, the voiding of all acts was avoidable. What usually happens is that acts of an organisation done by a person who is later declared that he should have been disqualified are not rendered null and void by that fact. In other words, such acts survive the disqualification of the person who committed them, particularly where parties acted in good faith. As it is, if the Supreme Court order were followed to its logical conclusion, considering act by act, a huge number of things that were done in the last 4 years in the name of Chamisa would be rendered null and void, potentially prejudicing the party and third parties who have dealt with it. This is an absurdity that courts should ordinarily avoid.