Mutambara loses case

in which he was challenging Professor Welshman Ncube for the post of MDC president.
The judgment delivered at the Bulawayo High Court yesterday by Justice Nicholas Mathonsi on behalf of Justice Lawrence Kamocha means that Prof Mutambara is no longer the party’s president and principal on behalf of the party.

After being granted a provisional order on 16 February with an interim relief pending the determination of the matter in the High Court, where Prof Mutambara was interdicted from purporting to be president of the MDC, exercising any function as president of the MDC and from interfering with party structures and organs, the party amended its application seeking further interdiction for Prof Mutambara not to act as both party president and principal pending finalisation of case number HC612/11 filed in Harare.

Responding to the court judgment yesterday, DPM Mutambara said the judgment would not affect his duties as the Deputy Prime Minister and a principal in the inclusive Government. He said immediately after the pronouncement of the judgment, he instructed his lawyers to file an appeal at the Supreme Court.

In its founding affidavit and making an amended application, the MDC party led by Mrs Priscilla Misihairabwi-Mushonga in her capacity as the secretary-general, sought ratification of the interim relief.

The party further sought that Prof Mutambara be interdicted from attending any meeting of whatever description of the principals in the inclusive Government of Zimbabwe or any regional or international body in the capacity of principal in the inclusive Government. It further sought that he be interdicted from performing or exercising any function or power vested in the president of the MDC or principal in the inclusive Government and that he be declared as not the president of MDC and pay costs of suit.

Justice Kamocha said basing on the final order sought, Prof Mutambara was no longer president of MDC.
He said the party was justified in launching the application in order to restrain Prof Mutambara from persisting with his behaviour.
He said the outcome of the congress remains valid until and unless it is set aside by the court of law.
Said Justice Kamocha, “Until and unless that happens the applicants have a clear right to leadership elected at the congress and for that leadership alone to run the affairs of the party.”

He said Prof Mutambara’s conduct was causing irreparable harm to the party he purports to still lead when he freely and voluntarily relinquished the presidency at the congress and persist to want to act as the principal of the party when he is no longer president.
Justice Kamocha said the balance of convenience clearly favoured the applicants (MDC) in the case.

“In light of the foregoing findings, this court holds the view that the applicants are entitled to the final order they seek in terms of the amended draft,” said Justice Kamocha.
He said Prof Mutambara had been untruthful and perjured himself when he made statements that the January congress was actually not the party’s third congress and said his conduct was difficult to follow and understand in light of the fact that he had attended the congress and addressed it.

By initially accepting the outcome of the congress and the leadership elected thereat, and later changing his stance after four weeks and beginning to allege that there was no lawful party congress at which new leadership could have been elected, Justice Kamocha said Prof Mutambara acted outside the party’s constitution by allocating himself powers which even the legitimate president of the party does not have in terms of the party’s constitution.

The constitution states that the president of the party does not have powers to dismiss party members.
“The court further finds that Prof Ncube immediately became the principal in the GPA upon his election as president of the party. The respondent ceased to be principal when he freely and voluntarily relinquished the presidency of the party on 8 January 2011,” said Justice Kamocha.

He said Prof Mutambara was not being truthful in claiming that he had never officially indicated that he was not contesting the MDC presidency claiming there were no opportunities for him to contest.
The judge said not only did Prof Mutambara withdraw from the presidential contest by advising the various provincial chairpersons of his withdrawal on 7 January, but also advised the then national working committee and later the national council of his official and formal withdrawal.

Justice Kamocha said the correct position is that the congress was legitimate and Prof Mutambara withdrew from the contest.
The court based its judgment on the following findings: that the gathering of 4 428 delegates on 8 and 9 January was the third congress of the MDC, that Prof Mutambara knew and believed that he was addressing the said delegates at the congress, he freely and voluntarily withdrew from the contest where a new leadership was elected, that he took active participation at the congress and fully accepted the outcome, that he perjured himself when he averred that what he had repeatedly termed the party’s congress in his address to the 4 428 delegates was in fact an ordinary party meeting and so the outcome of the congress remains valid until declared otherwise by a court of law.

When the party’s national standing committee met on 23 January, it resolved to reshuffle its cabinet members including the position of Deputy Prime Minister meaning Prof Mutambara was to assume a new office as Minister of Regional Integration and International Cooperation. However, Prof Mutambara requested permission to remain in the position of DPM until June to enable him to complete the programmes he was doing.

However, on 7 February Prof Mutambara then issued a press statement advising he was not prepared to be reassigned and went on to issue another press statement the following day saying he had dismissed the new party president Prof Ncube.

Yesterday, Prof Mutambara said he had instructed his lawyers to file an appeal at the Supreme Court today to challenge the High Court ruling.
“I do not agree with the judgment and I have instructed my lawyers to file an appeal,” he said.

“I will remain the Deputy Prime Minister so this judgment will not affect me in that way. It affects my position as the party president and that is what I will challenge.”