Issues of legitimacy in the MDC cannot be resolved on the altar of popularity or lack of it. Those who desire to get the legitimacy to the leadership of the MDC must demonstrate an insatiable appetite for constitutionalism. The framers of the MDC constitution had in mind to have the party's affairs regulated by that constitution. There should never be any room for the subversion of that constitution by any of the factions or any member of that party. Were that to happen, it would be a serious violation of the rule of law.
Sadly, none of the factions seem to be eager to bring this MDC leadership crisis for adjudication before an impartial body. The issue that has haunted the MDC is not about which constitution is applicable – incidentally the applicant in this case placed before me for consideration the constitutional application filed by the 1st respondent with a view to demonstrating that the parties are agreed on which constitution is applicable. I was requested to consider further submissions in this regard. I did not consider it necessary because the really borne of contention between the parties is not centered on which constitution is applicable, but on how the constitution has to be interpreted since the parties are not in agreement on interpretation.
This brings me to another allied point. Has this court been requested to intervene in determining this issue of legitimacy in this application, sadly no. I am being asked to determine the narrow issue of the alleged infringement of a trade mark. That is not the issue that is haunting the MDC as a political organisation. As correctly observed by Professor Madhuku this application has been prematurely brought. I entirely agree.
The issue of a trade mark is a peripheral one that should resolve itself once the substantive issue of legitimacy to the MDC leadership is resolved. Whichever faction is determined to be the legitimate leader to the MDC throne will automatically lay claim to the party's trade mark. For these reasons I will not waste time delving into the implications of section 72 of the Trade Marks Act (Chapter 26:04). Suffice it to say that there is persuasion in the argument that any application for a trade mark recognition must fully comply with the peremptory requirements of the Trade Marks Act (Chapter 26:04).
Let me deal with this other fundamental issue that has been thrown into this application. Has Dr Khupe violated the MDC Constitution by choosing not to have anything to do with the leadership of Mr Nelson Chamisa whom she regards as having violated the MDC Constitution? Throughout her papers filed in this case, and even in both the electronic and print media Dr Khupe has made it clear that the MDC faction led by Mr Nelson Chamisa has subverted the MDC Constitution and that she and the other respondents regard him and his sympathizes as rebels to the MDC and that their acts as far as she is concerned are null and void. If this is her attitude and conviction can she be condemned for refusing to associate with the applicant's faction. Is this not one of the situations that LORD DENNING had in mind in the celebrated case of Macfoy v United Africa Co. Ltď where the learned Judge remarked as follows:
"If an act is void, then it is in law a nullity, it is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado. Although it is sometimes convenient to have the court declare it to be so. And every proceeding founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse."
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