Mashudu Netsianda, Senior Court Reporter
THE bitter fight over the ownership of the MDC-T party name and symbols pitting two rival camps, one led by the party’s president Advocate Nelson Chamisa and the other by the party’s expelled co-deputy president Dr Thokozani Khupe, has spilled into the courts.
The Adv Chamisa led MDC-T last month fired Dr Khupe together with her two allies Mr Abednigo Bhebhe and Mr Obert Gutu, following a national council meeting.
Prior to his dismissal, Mr Bhebhe was the party’s national organising secretary while Mr Gutu held the post of national party spokesperson.
MDC-T has been disintegrating following power struggles emanating from the death of its founding president Mr Morgan Tsvangirai on February 14 this year.
Adv Chamisa’s camp has, through its lawyers Atherstone and Cook Legal Practitioners, filed an urgent chamber application at the Bulawayo High Court citing Dr Khupe, Mr Bhebhe and Mr Gutu, as respondents.
Adv Chamisa’s group is seeking an order stopping the respondents from “unlawfully exploiting and abusing its registered MDC-T trademark, symbols and signs.”
In his founding affidavit, MDC-T acting chairperson Mr Morgen Komichi said: “This is an application for an order interdicting the respondents from unlawfully using the applicant’s name in the pursuit of their political agenda and infringing on registered trademarks. The respondents were dismissed as members and office bearers of the party on 23 March 2018”.
Mr Komichi said Dr Khupe and her allies were causing confusion and misleading MDC-T followers by continuing to use the party trademark, symbols and signs. “Notwithstanding the dismissal, which effectively terminated their membership, the respondents have, in common purpose, purported to present themselves as not only MDC-T members, but office bearers thereof and thereby causing a lot of confusion amongst party supporters,” he said.
“MDC-T is our name and is our own property. We have past experience on this issue, some tried to do it previously and you know what happened. We are going to approach the courts when the right time comes,” Mr Komichi said.
“The applicant (MDC-T) is the owner of the trademark which the respondents are unlawfully exploiting, including the open palms slogan. The respondents have now started creating their own political structures in the name of the applicant, including making use of the party’s registered trademark and their derivative marks, symbols and colours.”
Mr Komichi accused Dr Khupe of portraying herself as the leader of the MDC-T and the party’s presidential candidate in the forthcoming harmonised elections.
“It is also apparent that the first respondent (Dr Khupe) and all persons acting through her and on her behalf are making use of and exploiting a registered trademark which belongs to the MDC-T in violation of the Trademarks Act,” he said.
Mr Komichi said although Dr Khupe ceased to become an MDC-T member soon after her expulsion, she continued to use social media platforms misrepresenting herself as the acting president of the party. “The MDC-T contention is that the respondents’ actions are clearly unlawful. The applicant is a party that will contest in the 2018 harmonised elections and has been doing preparations for the past five years. If the respondents are aggrieved they should follow the due process of the law and not openly defy resolutions properly taken by organs of the party to which they belonged,” he said.
The respondents, through their lawyers TJ Mabhikwa and Partners yesterday filed a notice of opposition to the application.
Dr Khupe, in her opposing affidavit, insisted that she was the acting president of the MDC-T. “I became acting president of MDC-T by operation of law in terms of Article 9.21.1 of the party constitution upon the untimely death and sad passing on of our party leader, the late Morgan Tsvangirai on 14 February 2018. Before I became acting president, I was the deputy president of the party having been elected by the congress in 2006, 2011 and 2014 as provided for in Article 6.44 of the party constitution,” she said.
Dr Khupe said her rivals whom she accused of purportedly acting on behalf of MDC-T, chose to defy her and walked away claiming they were party members.
She also accused Adv Chamisa of imposing himself and seeking to consolidate his “coup d’état” efforts by refusing to follow the dictates of the party constitution.
Dr Khupe said her group was the genuine MDC-T and accused her rivals of being rebels bent on destroying the party and causing divisions ahead of the elections. She said the application by the Adv Chamisa-led group is a back-door attempt to hoodwink the court into declaring his camp as the lawful MDC-T.
Dr Khupe said the urgent chamber application by her rivals is incompetent, arguing that no application was filed by the applicants in terms of section 72 of the Trademarks Act.
She said any possible confusion arising from the use of party names and symbols will be resolved in accordance with the provisions of the Electoral Act.
“The court is urged to take judicial notice of the fact that since 2005, the electorate has lived with MDC and MDC-T and there can be no urgency founded on an alleged need to prevent confusion. At one point we have had an MDC-N, MDC-M and MDC-99. I therefore submit that there is no urgency in this matter,” argued Dr Khupe.
Mr Gutu and Mr Bhebhe, in their affidavits, concurred with Dr Khupe, saying she is the rightful, lawful, legitimate and constitutional acting president of the MDC-T until such a time that an extraordinary congress is held to elect a new substantive president of the party. Adv Chamisa recently severed ties with Dr Khupe and her faction after the expiry of a seven-day ultimatum that she had been given by the MDC-T national council.
The council, which is the MDC-T’s highest decision-making body in-between congresses, had ordered Dr Khupe to reach out and make peace with Adv Chamisa, whom it elected to lead the party following the death of Mr Tsvangirai. Since Mr Tsvangirai’s long illness and subsequent death, the opposition party has been a rocked by an acrimonious wrangle to succeed him.
Although Adv Chamisa was recently elected to lead MDC-T by the party’s national council, Dr Khupe and her allies have openly refused to recognise him as the party’s presidential candidate, insisting that constitutionally, she was the party leader until congress elects Mr Tsvangirai’s successor.
Dr Khupe has since formed new structures across the country with the epicentre of the political changes being Bulawayo.
The latest development in the opposition party mark the third split of the original MDC, formed in 1999.
The MDC initially split in 2005 with Professor Welshman Ncube walking away from the then Mr Tsvangirai-led party.
In 2014 the opposition party split again with Mr Tendai Biti at the front of the rebellion.
Both Mr Biti and Prof Ncube are now back in the MDC Alliance led by Adv Chamisa. — @mashnets