Gutu vows to fight Chamisa to the very end

The issue that has created these two factions in the MDC is of fundamental importance and it must be resolved urgently. I am not in any way suggesting that the urgent resolution requires an urgent chamber application. Given the serious factual disputes between the two factions (apparent in their papers) it is doubtful if this dispute can be resolved by way of an application. The detailed filed answering affidavit suggests to me that the parties might wish to consider action procedure as opposed to application procedure given its natural limitations. Whichever way the two factions choose, they must bear in mind that the solution to their conflict requires sober minds and not sharp tongues.

Is there similarity between the interim relief sought and the final relief desired?

Even if this matter had been properly placed before me for determination especially on the proper interpretation of the MDC constitution, the applicant was going to encounter serious challenges with the clear similarities in wording of both the interim remedy sought and the final remedy desired.

The issue of providing a remedy which is not a replica of the interim relief sought has been exhaustively dealt with in this court and I did not think it required the reopening of further

debate.

In dealing with this issue, Advocate Nkomo for the applicant sought to urge the court to adopt the relaxed approach commented upon in passing by my brother MATHONSI J in the recent case of Mabhena v Mbangani' where he made the following observation.

"… I must hasten to state that an application cannot be defeated merely on the basis of a defective draft order. The draft order is, after all, the wishful thinking of the applicant. It is for the judge or the court to grant the order and therefore he, she or it should be able to grant whatever order would have been proved in the application”.

It is true that at the end of it all it is the court that grants an appropriate order and that order for all intents and purposes becomes the court's order

Be that as it may, I do not believe that counsel is reading into the didactic remarks made by my learned brother to mean a passport to poor draughtsmanship on the part of legal practitioners or that the court must take over this function from the legal practitioners.

meán

The issue of provisional orders that are different from final remedies is a practice built on

rich precedent in this jurisdiction and it ought to be respected for it makes great sense in that the applicant must not be placed on perpetual leave once he/she gets the interim relief. An applicant who gets interim relief must feel compelled to obtain a final remedy/order. See the Econet Wireless (Pvt) Ltd v Trustco Mobile (Pvt) Ltd & Another , per GARWE JA.

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