The Nelson Chamisa-led MDC-T camp has approached the Supreme Court with more evidence to buttress its argument that the High Court erred when it handed down a verdict in favour of a rival group led by Thokozani Khupe to use the party’s name and symbols.
The Chamisa-led MDC-T filed its heads of argument at the apex court on Thursday through its lawyer Thabani Mpofu and in the application cited Khupe, Obert Gutu and Abednico Bhebhe, as respondents.
Chamisa and Khupe were embroiled in a nasty leadership wrangle that surfaced when the party’s founding president, Morgan Tsvangirai died in February.
In its submissions, the Chamisa-led MDC argues the High Court made pronouncements on issues that were not before it.
“There can be no doubt that in thus proceeding and in making these findings on issues which were not before it, the court below (High Court) fundamentally misdirected itself. The role of the court is to hear the argument that has been presented and make findings only on the issues raised and debated by the parties. The rule is most salutary, is well established and is non-derogable,” Mpofu said.
The party further said it is now seeking an order to overturn the ruling, which it argues was granted in error adding the effects of the High Court’s finding on the challenged issues are too ghastly to contemplate.
“The effect of the finding is to create factions within the MDC. It creates factions which exist for the first time in the judgment of the court. It creates factions where respondents were expelled. It creates factions in a manner that creates an illusory dispute. It creates factions in a manner that completely destabilises the MDC and renders its process unworkable. The prejudice caused is stark,” Mpofu said.
“The finding misses the point that there is (the) real MDC in existence. It is incorrect to say that until the parties have gone to court, no one can claim to be the MDC. There is no need for anyone to go to court before the MDC can exist.”
Mpofu said the MDC party exists whether Khupe, Gutu and Bhebhe, were happy or unhappy.
“It exists whether they go to court or they do not. Their inaction in not challenging their expulsion cannot redound to their benefit. The benefit accorded to them has no basis,” he said.
Mpofu further said once the MDC expelled the trio, it did not need to go to court to confirm the validity of its actions, adding it was for the trio to challenge their expulsions.
“The judgment, however, saddles the MDC with an obligation that it cannot at law bear . . . after the death of the founding president of the MDC, the respondents behaved in a most objectionable and unpleasant manner. For that reason, first respondent (Khupe) was suspended by the highest decision-making body outside congress. She did not protest the suspension neither did she challenge it before the courts,” he said.
“Following upon the suspension, the highest decision making body outside congress invited her to attend a disciplinary hearing. She absented herself. First respondent was duly expelled from the MDC. The same axe fell on the second and third respondents (Gutu and Bhebhe). These expulsions were not challenged.”
The matter is pending.