Mashudu Netsianda, Senior Court Reporter
THE High Court yesterday dismissed an application by the MDC-T faction led by Advocate Nelson Chamisa, which had taken its rivals to court in a fight over ownership of the party name, trademark, signs and symbols.
The bitter wrangle involves a group led by Adv Chamisa and his rival Dr Thokozani Khupe.
Bulawayo High Court judge Justice Francis Bere ruled that there is a constitutional crisis in the MDC-T and there was no urgency in the matter because Adv Chamisa had not been confirmed by an impartial body to be the rightful heir to the MDC-T throne.
“There is a constitutional crisis in the MDC-T which must be urgently resolved first to determine the legitimacy to one of the competing parties to the leadership of the party. That resolution is the only one that must confer legitimacy to one of the competing parties to the leadership of the MDC-T,” he said.
Justice Bere said until legitimacy to the leadership is confirmed through a court process or arbitration, none of the MDC-T factions can claim to be the lawful authority of the party.
“It therefore makes sense to put that dispute before an impartial body to give guidance or lasting solution to the conflict. Issues of legitimacy in the MDC-T cannot be resolved on the basis of popularity or lack of it,” he said.
The judge said those who desire to get legitimacy to the leadership of the MDC-T must demonstrate “an insatiable appetite for constitutionalism.”
“There should be no room for the subversion of that constitution by any of the factions or any member of the party, and whenever that happens, it would be a serious violation of the rule of law. The issue of a trade mark is a peripheral one that should resolve itself once the substantive issue of the legitimacy to the MDC-T leadership is resolved,” he said.
“Whichever faction is determined to be the legitimate claimant to the MDC-T throne will automatically lay claim to the party’s trademark.
“The applicants and their locus standi in even bringing this application, is therefore questionable. The applicants and the respondents are in equal standing until a proper determination as regard to their status in the MDC-T is made by an independent competent body,” said the judge.
Justice Bere said the issue that has created the two MDC-T factions must be resolved urgently.
“This case cannot go beyond preliminary points by the respondents. I uphold the points in limine. Accordingly, the application is dismissed with costs on that basis,” ruled Justice Bere.
Adv Chamisa’s camp, through its lawyers Atherstone and Cook Legal Practitioners, last week filed an urgent chamber application citing Dr Khupe together with her two allies Mr Abednigo Bhebhe and Mr Obert Gutu as respondents.
The Adv Chamisa led MDC-T last month fired Dr Khupe as the party’s co-deputy president together with Mr Bhebhe and Mr 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.
Dr Khupe was last Saturday elected substantive president of her camp at an extraordinary congress at Stanley Square in Bulawayo’s Makokoba suburb.
The MDC-T split into two factions, one led by Adv Chamisa and the other by Dr Khupe as a result of power struggles that followed the death of its founding president Mr Morgan Tsvangirai on February 14.
Adv Chamisa was elevated by MDC-T’s organs to be the party’s leader while Dr Khupe remained with another faction where she declared herself acting president with the backing of other senior party members who included Mr Bhebhe and Mr Gutu.
In his founding affidavit, MDC-T acting chairperson Mr Morgen Komichi said the respondents were infringing on their registered trademark in pursuit of their political agenda by continuing to unlawfully exploit party symbols and signs despite their expulsion.
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.
They sought an order interdicting the respondents from “unlawfully exploiting and abusing its registered MDC-T trademark, symbols and signs.”
Adv Chamisa’s group argued that they were the rightful owners of the trademark, which the respondents are unlawfully exploiting, including the open palms symbol.
They accused their rivals of creating their own political structures in the name of the MDC-T, including making use of the party’s registered trademark and their derivative marks, symbols and colours.
Mr Komichi said Dr Khupe portrayed herself as the leader of the MDC-T and the party’s presidential candidate in the forthcoming harmonised elections.
Dr Khupe’s camp through its lawyer Professor Lovemore Madhuku insisted that she was the president of the MDC-T.
Prof Madhuku argued that the application was not proper before the court.
He said Dr Khupe became acting president of MDC-T by operation of law in terms of Article 9.21.1 of the party constitution, upon the death of Mr Tsvangirai.
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 elections.
She argued that any possible confusion arising from the use of party names and symbols would be resolved in accordance with the provisions of the Electoral Act.
Since Mr Tsvangirai’s death, the opposition party has been a rocked by an acrimonious wrangle to succeed him.
The latest developments in the opposition party mark the third split of the original MDC, formed in 1999.