Alex T. Magaisa
There has been plenty of legal drama concerning opposition political formations in the wake of the Supreme Court judgment delivered on 31 March 2020. A legal maze is growing, leaving citizens and other observers perplexed and disoriented especially as there appear to be contradictions between judges concerning similar issues. The only parallel is the ever-growing labyrinth of currency decrees issued by the Reserve Bank of Zimbabwe.
To make things simpler, the BSR will keep a running diary of these legal cases as judgments are delivered. I have already examined and explained the meaning of the Supreme Court judgment which can be accessed on this link. This note summarises three judgments by three different judges of the High Court. Since all the judgments involve the MDC formations, I have found it more convenient to classify them by the judges who presided over the cases, although I suspect I may have to change this classification in the near future.
The Justice Munangati-Manongwa Judgment
MDC Alliance v Minister of Justice, Legal and Parliamentary Affairs and the Minister of Finance and Economic Development (HC-2199-20)
This was a case brought by the MDC Alliance against the Minister of Justice, Legal and Parliamentary Affairs and the Minister of Finance and Economic Development concerning the disbursement of funds under the Political Parties (Finance) Act (Cap 2.11). The MDC Alliance sought an interdict to stop the Ministers from disbursing these political funds to any person other than itself.
Under the Political Parties (Finance) Act, political parties that meet a specific threshold in parliamentary representation are entitled to funding from the State. The allocation of funds is based on the number of seats held by the party. Before the current furore, the two recipients which qualified for and have received state funding were ZANU PF and the MDC Alliance.
After the Speaker of Parliament and the Senate President controversially opened the door for a rival formation, the MDC-T led by Thokozani Khupe, to recall MDC Alliance MPs under section 129(1)(k) of the Constitution, the MDC Alliance feared the government would also divert its funding. This prompted the MDC Alliance to seek the protection of its vested rights by applying for an interdict.
On 7 May 2020, Justice Munangati-Manongwa ruled in favour of the MDC Alliance and issued the interdict. However, a significant aspect of this ruling is that the judge recognised the MDC Alliance not only as a political party but also as a legal person with the capacity to sue or to be sued. In other words, the MDC Alliance was recognised at law as a legal person. It was also a recognition that the MDC Alliance had a legitimate claim over the MPs that were elected under its ticket.
Another judge, Justice Chitapi, alludes to an appeal that has been noted to the Supreme Court against Justice Munangati-Manongwa’s judgment. Thokozani Khupe and her team have also applied to be joined in the proceedings, claiming that the money claimed by the MDC Alliance under the Political Parties (Finance) Act belongs to her party. So there will be more legal drama and citizens can expect more twists and in this particular lane of the maze.
The Justice Chitapi Judgment
MDC Alliance and Others v Douglas Mwonzora and Others (HC-2308-20)
This was a case brought by the MDC Alliance and two of its members. They were seeking to stop Douglas Mwonzora, Thokozani Khupe and their party from recalling MPs representing the MDC Alliance in Parliament. This application was also prompted by the recall of 4 MDC Alliance MPs which was announced by the Speaker of Parliament on 5 May 2020.
This matter was not decided on the merits but preliminary points. The legal term used for these preliminary issues is “points in limine”. A person who is sued can object to the lawsuit on at least two types of defences: preliminary defences, where the person raises procedural defects in the lawsuit or on the merits, where the person raises substantive objections, arguing that the application lacks merit.
Sometimes a good case is dismissed simply because there are serious procedural defects which the defence capitalises on. Ordinary people get surprised when someone they think should be found liable is discharged by the court. The defence lawyer would have succesfully raised preliminary objections, usually technical legal issues which fly over the heads of most people.
When a case is dismissed on a preliminary point, the court doesn’t have to deal with the merits. This is what happened in this case. It was decided on a preliminary point, and the court did not have to deal with the merits.
While the respondents raised several preliminary objections, the one that made the difference was that the argument that the MDC Alliance did not have the legal capacity to sue. It was argued that the MDC Alliance had not shown that it was a legal person. The technical term of this is locus standi (which translates to legal standing to bring a case in court). Most people might be befuddled by the concept of legal personality so a brief explanation is useful.
Principle of legal personality
The notion of legal personality is a legal construct or an invention of the law. It attests to the power of human imagination, which can be used for good or for worse. In this case, human imagination was used to confer legal personality on things that ordinarily are not persons, the most famous example being the limited liability company, an invention that revolutionised the business world in the 19th century. Being human does not necessarily equate to having a legal personality. For centuries, women were regarded as perpetual minors. Slaves were regarded as property. In short, women and slaves did not have legal personality, although of course they were human. These are examples of human imagination being used in a very bad way.
Today, a minor child has no legal personality and he has to be represented by his guardian. A company that has gone into liquidation is represented by a liquidator. It cannot act on its own. In this case, Mwonzora and other respondents were arguing that the MDC Alliance does not have legal personality and therefore, could not sue them.
The preliminary question for the judge was, therefore, whether the MDC Alliance had legal personality. Justice Chitapi took the view that representatives of the MDC Alliance had not demonstrated sufficient evidence to show that it was a legal person. “This essential allegation on the juristic nature of the [MDC Alliance] was not pleaded. It should have been pleaded. It cannot be implied or inferred”, wrote the judge. Justice Chitapi did not think that the MDC Alliance had done enough to “counter the [preliminary point] that it lacks the legal status of a legal persona.” The founding affidavit had not sufficiently averred that the MDC Alliance had the power to sue or be sued. This was a weakness in the papers, the implication being that if the MDC Alliance were to present cogent evidence of legal personality, the judge might accept it.
Did he say it's not a political party?
But did Justice Chitapi say the MDC alliance is not a political party? He accepted that the MDC Alliance had registered with the Zimbabwe Electoral Commission to participate in elections under the Electoral Act. However, he reasoned that the Electoral Act defines a political party as a political organisation but says nothing about it having a legal personality. In his interpretation, being a political organisation and being recognised as such by the rest of the world does not necessarily confer legal personality on the entity.
Therefore, while accepting that it was a political party for purposes of the Electoral Act, he did not think the MDC Alliance was a legal persona with the capacity to sue or be sued. He said he was not sure what juridical personality to accord to the MDC Alliance. The construction by Justice Chitapi is interesting but it also presents room for oddities. What kind of creature does the Electoral Law recognise as a political party, which can and is expected to do all things that legal persons do, but is not necessarily a legal person? It can contest in elections but cannot sue or be sued?
Shield and weapon
Justice Chitapi’s construction is both a shield and a weapon. It is a shield to those who are being sued by the MDC Alliance but a weapon against those who might wish to sue the MDC Alliance. Imagine a contractor who has a claim against the MDC Alliance but is told he cannot sue the party because it has no legal personality. The contractor would probably have to go after individual members of the organisation but that would be most convenient when the MDC Alliance held itself out as a person, was presented as such and was widely accepted as a person - this, after all, is the essence of estoppel.
This was apparent in another case at the Magistrates Court brought by Morgen Komichi and the MDC-T seeking to interdict the MDC Alliance from MRT House, the party headquarters. It has been reported as a “peace order” which came after the Khupe group stormed and seized the party headquarters the previous night, 4 June 2020. The legal improprieties of that move notwithstanding, the key point here is that in that lawsuit, the Khupe group cites the MDC Alliance as a party to the proceedings, meaning that they believe it is a legal person with the capacity to sue or be sued. But in the High Court, the same people had argued that the MDC Alliance was not a legal person, which point Justice Chitapi had accepted.
There is an apparent contradition here, that in one case, a party argues that an entity is not a legal person and in another, they sue it as a legal person. An entity cannot be a legal person only when it suits the litigant.
The judgment by Justice Chitapi stands in obvious conflict with the judgment of Justice Munangati-Manongwa who recognised the MDC Alliance as a legal person. Justice Chitapi was aware of this apparent conflict and made some comments about it. He said, “It is not apparent from the record as to the context in which the learned judge so stated and whether there was a challenge to the applicant’s capacity to sue. It is not within my power to review my sister’s judgment.” He stated that the judgment was not binding on him and in any event, there was an appeal to the Supreme Court.
I now turn to the third case.
The Justice Mafusire Judgment
Lillian Timvos and Another v Douglas Mwonzora and Others HC-2527-20
This is the latest case but by no means the last. This case was brought by two legislators who were recalled from Parliament, Tabitha Khumalo and Lillian Timveos. Both were elected to their seats as nominees of the MDC Alliance on the formula of proportional representation. Their application was to interdict (stop) Douglas Mwonzora, Thokozani Khupe and the MDC-T from replacing them with their nominees in the seats that were left vacant following their recall. They wanted them stopped until the courts have determined the legality of their recall in a separate action.
What Timveos and Khumalo were seeking is set out in paragraph 51 of the judgment. It was not to stop Mwonzora and Khupe from issuing the recall because they had already done it. It was not to stop the Speaker from accepting the recall notice because they had already done it and informed ZEC of the existence of vacancies. What they wanted was “to stop Mwonzora and Khpe from going back to the party called the MDC or MDC-T to select names for submission to ZEC to replace Timveos and Khumalo before this court has had the opportunity to determine their complaint against Mwonzora’s recall letters.”
Justice Mafusire granted Khumalo and Timveos the interdict.
As in the case handled by Justice Chitapi, the respondents, in this case, raised numerous preliminary objections to the application. However, unlike, in that case, none of the preliminary objections found favour with the judge. Justice Mafusire dealt with each preliminary objection and dismissed all of them.
The judge made some critical remarks concerning the abuse of the parliamentary recall procedure. He stated in paragraph 44, “An election is a communal process involving, among other stakeholders, the electorate, the political parties and the contesting candidates. Members of Parliament represent the people who voted for them and the party on whose ticket they are elected or appointed. When an election is successfully challenged, or when a Member of Parliament is evicted, such developments untangle a multiplicity of interests. They necessarily upset the political equilibrium. They arouse a great deal of public interest. The goings-on in a political party affect the general public … So-called recalls cannot be made capriciously by a political party, much less, whimsically by an individual or a faction within the party. Members of the public are greater stakeholders in the internal affairs of a political party occupying space in local and national government institutions like Parliament”.
This statement is apposite in light of the rampant abuse of the recall procedure in this and previous instances. More often than not, the recalls have nothing to do with the interests or views of the people who voted the affected MPs into power. The recall procedure is a weapon in the hands of political elites against fellow elites. The judge was aware that the law grants the power of recall to the political party, not the people who voted MPs into office, but this was a rebuke of the now common misuse of the recall procedure to settle political scores between political elites in their power struggles. The judge was of the view that when a political party is “in turmoil, is functionality in disarray, and its identity unclear” the court has a right to interfere and restrain it pending resolution of the major dispute.
This case is important in that it effectively puts some brakes on the Khupe/Mwonzora train. However, because this is an interdict, they are only temporary brakes.
There are two significant observations made by Justice Mafusire which are relevant to the question of the status of the MDC Alliance. The first is made in paragraph 60 of the judgment where he observes that Timveos and Khumalo lost their seats “on the basis of a process of dubious legality”. This casts significant doubt on the legality of how Mwonzora issued the recall letter to the Speaker and the Senate President. Critics have charged that despite claims of championing constitutionalism, it was a one-man decision and there is no evidence that due process was observed.
Political paternity of MPs
The second is the judge's view on the political paternity of the MPs which he firmly attributes to the MDC Aliiance, which differs fundamentally from the position accepted by the Speaker and the Senate President. It is appropriate to quote the judge's comments in full,
“It is common cause they [Timveos and Khumalo] were in Parliament on the ticket of a political formation called the MDC Alliance. For two years they have participated in the business of Parliament as members of the MDC A. ZEC registered the MDC-A as a political party. Indeed, it is a political party for the purposes of the Constitution and of the Electoral Act. Parliament recognises it as a political party. The applicants have produced documents showing that they were nominated by the MDC-A political party on the proportional representation ... The executive arm of the Government recognises the MDC-A as a political party. The applicants have produced a copy of a Government Gazette of 28 February 2020 showing the MDC-A qualifies as a political party for Government funding under the Political Parties (Finance) Act, Cap 2.11)” (added emphasis)
In this way, Justice Mafusire took a common-sensical view of the prevailing situation, one with which supporters of the MDC- Alliance agree. He described the view that the MDC Alliance was just an election cooperation agreement as “a self-serving gloss”.
Is the MDC-Alliance a political party?
To determine whether Timveos and Khumalo were entitled to relief, Justice Mafusire said “I simply have to rely on the official position of Parliament; of ZEC and of the Government … Whether the MDC-A is a political party is largely a question of fact. De facto it is. All the rest of the arguments, including what the effect of the Supreme Court judgment has had on the MDC-A is a matter of interpretation … The respondents [Khupe and Mwonzora] have not shown in what manner the applicants ceased being members of the MDC-A, the party that sent them to Parliament on proportional representation”. (added emphasis)
This leaves no doubt as to the view of Justice Mafusire concerning this dispute. He lifts the metaphorical veil of legalese to see the political realities behind the disputation. He sees the abuse of the parliamentary recall power which privileges the interests of political elites ahead of voters. He sees the political paternity of the MPs as has been recognised before, during and after the 2018 elections. The rightful party to whom these MPs belong, in his view, is the MDC Alliance. He unequivocally sees the MDC Alliance is a political party.
To be fair, Justice Chitapi did not deny the fact that the MDC Alliance is a political party, as has been widely suggested. His point of departure was that the papers presented to him had not demonstrated its legal status as an entity that had the power to sue. But ironically, the people who told him that it was not a legal person, went on to recognise it as such when they sued it at the magistrates court.
So we might call this Chapter 1, to which more will be added, with more twists and turns to create a most confusing legal labyrinth. So far, the political party status of the MDC Alliance is recognised by the three judges, although Justice Mafusire’s judgment is the most emphatic. The major point of difference is that while Justice Munangati Manongwa recognised it as having legal personality, Justice Chitapi did not think enough material had been placed before him to make that conclusion. Justice Mafusire acknowledged the problems arising from these apparent contradictions at the High Court and it is appropriate to conclude with his words,
“Obviously, it is undesirable that there should be conflicting decisions by judges from the same court over the same issue. It brings uncertainty in the law, causes confusion and adversely affects the integrity of the courts.” He suggested it would be best if all matters were consolidated and dealt with by a single judge but if this fails, it is left to the Supreme Court, as the higher authority, to “lay down the law authoritatively”.
And so all these disputes will become tributaries which will one day feed into the Supreme Court for a final resolution.