Finally it was stated as a point in limine that the interim relief and the final relief sought in this application are substantially the same and that it was not allowed at law to do so.
I propose to deal with the points in limine in greater detail.
Is the MDC, as the applicant properly before the court?
As already highlighted the MDC, as a political organisation is currently torn apart by the two factions which have adopted two diametrically opposed positions with regard to the interpretation of their party's constitution. Each of the factions alleges that it is in power because the party constitution as perceived by it supports the actions that it has taken. Dr Thokozani Khupe alleges (and I must say in passing that she appears to be on very firm ground) that by operation of the party's constitution she is the legitimate Acting party President and that she is the one driving the MDC processes for the time being until a substantive leader is appointed in terms of the party's constitution.
Mr Nelson Chamisa, on the other hand, alleges that he is in power because he has been so mandated by the MDC National Council. It could be argued that this is equally a compelling argument. I take not firm position on the arguments raised for reasons that I will explain later.
But in their opposition to the urgent application Dr Khupe makes the following enlightening observations:
"21. The point is this, in the absence of a determination of who between the Movement for Democratic Change that I am leading and the group represented by the deponent to the founding affidavit is the lawful Movement for Democratic Change, this application cannot be determined (sic).
“22. This application is a back-door attempt to hoodwink the court into declaring the group represented by the deponent to the founding affidavit to be the lawful Movement for Democratic Change. That cannot be because that issue requires separate and specific proceedings that have to resolve the complex issue."
Nothing in my view could be further from the truth. There is a constitutional crisis in the MDC party and that constitutional crisis must be urgently resolved. That resolution is the only one that can confer legitimacy to one of the competing parties to the leadership of the MDC.
Until legitimacy to the leadership of the MDCzis confirmed through a court process or some other competent means, like arbitration, none of the MDC factions can claim to be the lawful authority of the movement. This is my simple sense of dispute resolution. If parties are in disagreement it makes sense to put that dispute before an impartial body to give guidance or lasting resolution to the conflict.
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