Tuesday, 22 May 2018

WHAT NEXT? THE MEANING OF THE SUPREME COURT ORDER IN THE ON GOING BATTLE FOR CONTROL OF THE MDC-T



In this blogpost, I deal with ten questions in light of the Supreme Court order of 22 May 2018 in the case of Movement for Democratic Change vs. Thokozani Khupe and Two Others SC369/18,

1.    Why did Chamisa’s MDC-T appeal the High Court order?

Chamisa’s MDC-T challenged the ruling by Justice Bere on five grounds:

i)               They objected to the High Court’s pronouncements regarding legitimacy of the party leadership since they were not part of the original court application;
ii)        They disagreed with the finding that it was unclear whether the High Court application had been filed by the legitimate MDC-T;
iii)            They insisted that their application was urgent;
iv)            They argued that the application should not have been dismissed;
v)       They took exception to the preliminary points raised by Dr.Khupe and others which were upheld by the court.

2.    What did they ask from the Supreme Court?

They asked the Supreme Court to set the High Court order aside, dismiss the preliminary points by Dr. Khupe and others; and to send the case back to the High Court for determination by a different judge.

3.    What did the Supreme Court rule?

The Supreme Court issued an order by consent, which is when a court gives its authority to an agreement that is reached by the parties. In other words, Chamisa’s MDC-T agreed with Dr. Khupe and others to have this matter determined by the High Court, with some important alterations. It will no longer be an application, which is a case determined without the use of oral evidence. Such cases are usually resolved in a shorter space of time since they are determined based on papers filed. On the other hand, action procedure is more elaborate and allows for witness testimony and cross examination. The latter procedure is to be adopted for this matter. The other important alteration is that it is no longer a case about the party name, symbol, logo and trademarks, but about whether or not there are two MDC-T parties. It will only proceed to the question of intellectual property if it is found that there is only one MDC-T party. It has become, as Justice Bere alluded, a battle over legitimacy. 

4.    Did the court rule the matter to be urgent?

This matter is not entirely clear. Whilst agreeing that the matter is urgent, the parties also conceded that they needed to use oral evidence through action procedure. There is no urgent process for action proceedings. Though some people are convinced that the parties agreed to a different timeline, this does not appear from the order granted. In effect, they agreed that the matter, whilst urgent, cannot be resolved urgently. This makes the reference to urgency in the order purely academic. 

5.    So when is this case likely to be determined?

That is difficult to predict - but it will not be resolved swiftly. The Chamisa led MDC-T wanted a quick resolution through application procedure on an urgent basis, but have since agreed to proceeding  by way of action procedure. The Supreme Court order deems that the action procedure is already underway, but there will be more papers to be filed. These will be open to challenge, which would further delay the process of securing a trial date. The resolution of this matter just got more protracted. If the matter eventually gets to trial, then the rupture of the MDC-T will play out in full view of the public and before a court of record. This will provide spectacular political theater which ZANU PF will use to full advantage. 

6.    Is this case likely to be decided before the elections?

This is not likely – unless the lawyers from both sides work at breakneck speed to file their papers and also meet with the Registrar of the High Court to convince him/her to grant them an earlier date for hearing. Even if they summon this monumental willpower and secure a trial date before elections, they would still need to have a manageable number of witnesses whose testimony would be so short and cross examination so terse that the case is concluded before the elections. But even if that is achieved, it would also require a judge who is equally committed to rendering a decision prior to elections. The degree of inter-institutional effort required for swift resolution of this dispute is so high as to render such an outcome as highly improbable. Even the claim of different timelines for filing papers would not escape these considerations. The worst case scenario would be Chamisa's parliamentary candidates being vulnerable to recall after winning the next elections due to an adverse ruling by the court. 

7.    How different is this outcome from the judgement by Justice Bere?

They are substantially similar. Justice Bere ruled that the issue of legitimacy of MDC-T party leadership is the central matter which will determine who can use the party’s intellectual property. This is the first issue which the parties agreed to be determined in the High Court. Justice Bere also said the matter of legitimacy could not be determined through application procedure. The parties have agreed to proceed in terms of action procedure. In other words, the Chamisa led MDC-T is complying with the ruling they succeeded in overturning.  

8.    So who gets to use the MDC-T name, logo, symbol and trademarks in the interim?

Anybody can use the party trademarks since the courts are yet to make a finding regarding the legitimate leader of the MDC-T. Further, the courts may decide that there are in fact two MDC-T parties, in which case the rights to the intellectual property could be shared. It is only if the court decides that there is one MDC-T party that a claim for exclusive rights can be made. The two outfits could contest in the election under the same name and they would have to decide how they create a distinction which guides their voters in the same way that the MDC adopted its distinctive suffix "T."

9.    So who won in the Supreme Court?

Technically, they both did. The Chamisa led MDC-T wanted the High Court order set aside yet Dr. Khupe sought compliance with the ruling. The order was set aside, but its contents were upheld. The Chamisa led MDC-T will have its second bite at the cherry, but not in the way they had originally formulated their case. The case is now guided by the findings of Justice Bere to the extent that it will adopt action procedure and deal with the central question of legitimacy of party leadership. The Supreme Court did not legitimize any of the two protagonists and so they are in the same position they were when the High Court order was issued. They remain evenly poised.

10. What of the original argument that the court should not have dealt with issues of legitimacy?

The Chamisa led MDC-T has conceded that the High Court must first deal with the question of whether there are two MDC-T parties. They have amended their papers via the appeal process. They previously sought to hide behind the matter of intellectual property. Now the matter of leadership, which they argued should not have been dealt with, will be the first issue before the courts. The risk which Morgan Tsvangirayi avoided in 2005 and Nelson Chamisa sought to obviate by placing intellectual property in the foreground, will be the central matter for determination. It is quite ironic that, after insisting on their belief in the court of public opinion, the Chamisa led MDC-T is now locked in a mid to long term battle in the courts of law, the same courts they indicted for biased political considerations. For reasons that remain elusive, the mantra of popular legitimacy has been overtaken by the juristocratic preference for governance by courts.

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