Why the Zimbabwe Supreme Court could not endorse Chamisa as leader of MDC

Mr Mpofu points to the averments contained in the first respondent’s founding affidavit a quo which indicate that the third respondent purported to hold her own Congress in April 2018 and is now leading her own party. The third appellant’s opposing affidavit a quo also avers that the third respondent is no longer a member of the Party having decided to form her new party. These are undisputed averments and allegations of fact. The third respondent cannot possibly seek any relief from this Court. The judgment a quo has been overtaken by lawful election processes conducted by the Party at its Congress held in June 2019. The present matter is therefore clearly moot.

The principles governing mootness are relatively well established. The first is that a court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy between the parties. Thus, if the dispute becomes academic by reason of changed circumstances, the case becomes moot and the jurisdiction of the court is no longer sustainable – Khupe & Anor v Parliament of Zimbabwe & Ors CCZ 20/19, at p. 7. To put it differently, the controversy must be existing or live and not purely hypothetical – Koko v Eskom Holdings Soc Limited [2018] ZALCJHB 76, at para 21; National Coalition for Gay and Lesbian Equality & Ors v Minister of Home Affairs 2000 (2) SA 1 (CC), at para 21 (footnote 18).

The second principle is that mootness does not constitute an absolute bar to the justiciability of the matter. The court retains its discretion to hear a moot case where it is in the interests of justice to do so – Khupe’s case, supra, at p.13; J.T. Publishing (Pty) Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC), at 525A-B. This may arise where the court’s determination will have some practical effect, either on the parties concerned or on others, and the nature and extent of such practical effect, or because of the importance or complexity of the issues involved – Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC), at para 11. In short, the court may exercise its discretion to hear a moot issue by reason of its significance, practical or otherwise, and the need for an authoritative determination on that issue in the interests of justice.

It thus becomes necessary in casu to answer to interlinking questions: has the present matter been overtaken by events and thereby rendered moot; and, if so, should this Court nevertheless render its definitive determination in the matter in the interests of justice. It is at this juncture that I am confronted by what I perceive to be the ineluctable exigencies of realpolitik.

The evidence on record, as elaborated by submissions from counsel, suggests that the third respondent may have moved on to other political pastures. However, there is no clear evidence to the effect that she has unequivocally relinquished her political rights and interests in the Party. On the other hand, it seems relatively clear that the second appellant has become “the chosen leader” of the Party. The Court cannot but take judicial notice of the following political realities. Firstly, as appears from the voting results of the last general election held in July 2018, the second appellant was the only viable opposition contender for the presidency. He actually garnered 44.39% of the total valid votes cast in the presidential election, as compared with the winning candidate, the incumbent President of the country, who obtained 50.67% of the votes cast. In contrast, the next highest ranking candidate, being the third respondent, only secured a paltry 0.94% of the valid votes cast. Secondly, and equally significantly, he was unanimously elected as the President of the Party, i.e. the one that is presently before this Court, at its Congress convened in June 2019. These are the inescapable facts that loom large on the country’s political landscape.

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