Dr Khupe's insistence on adherence to constitutionalism, if her reading of their constitution is correct, must be hailed by all fair minded persons, and spare her the condemnation. The dispute must simply be put to adjudication in a proper forum.
There is sufficient persuasion in the argument that the applicant may not be properly before the court.
Is this case urgent?
The issue of urgency has been long settled in our jurisdiction. As correctly noted by Advocate Nkomo, in the case of Gwarada v Johnson & Orso.
"Urgency arises when an event occurs which requires contemporaneous resolution, the absence of which would cause extreme prejudice to the applicant. The existence of circumstances which may, in their very nature, be prejudicial to the applicant is not the only factor that a court has to take into account, time being of the essence in the sense that the applicant must exhibit urgency in the manner in which he has reacted to the event or the threats, whatever it may be."
I entirely agree with this characterization of an urgent chamber application. The circumstances must demonstrate that the case cannot wait and that the urgency as not been self created. See Kuvarega vs The Registrar General & Another and a host of other similarly decided cases.
The view that I take is that we can only talk of urgency in this case if the legitimacy to the leadership of the MDC has been confirmed in favour of any one of the competing factions. If that has not been done the issue of urgency remains illusory.
In any event, I think it is not compelling enough for anyone to argue that the emergence of the two factions in the MDC has been an overnight development. The court will take judiciary notice of the fact that simmering conflict became public knowledge from the time the late MDC leader appointed two male vice Presidents despite the existence of Dr Khupe who had been elected the Deputy President of the MDC at the party's congress in 2006, 2011 and 2014 (as stated and uncontroverted in the opposing affidavit).
It cannot be the position that the appointment of Mr Nelson Chamisa as substantive President of the MDC by the MDC National Council triggered urgency. It can also not be said with a convincing tongue that the decision by Dr Khupe not to associate herself with those she believes are assaulting the party's Constitution brought about the filing of this urgent application.
The long and short of it is that there is absolutely no urgency in this matter as the applicant has not been confirmed by an impartial body to be the rightful heir to the MDC throne and its locus standi in even bringing this application is therefore questionable. Like I have said the applicant and the respondents are in equal standing until a proper determination as regards their status in MDC is made by an independent and competent body.
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