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

Lord Pearce delivered a dissenting judgment affirming the views of Fieldsend AJA, based on the principle of necessity or implied mandate from the lawful sovereign. The court a quo was enjoined to accord recognition to certain of the acts, orders and legislation of the illegal regime because chaos would result if provisions made by the illegal regime for the lawful needs of the territory were to be disregarded. A reasonable margin of common sense was to be applied to the factual situation existing in Southern Rhodesia and it was not necessary to treat all the acts or legislation of the illegal regime as invalid for any purpose at all. Accordingly, the doctrine of necessity or implied mandate applied and the appeal should be dismissed.

In the event, the Privy Council, by a majority of four to one, reversed the decision of the Appellate Division. Consequently, the Queen was to be advised to declare that the determination of the court a quo, with regard to the validity of the Emergency Powers Regulations made in Southern Rhodesia since 11 November 1965, was erroneous and that such regulations had no legal validity, force or effect.

I fully appreciate that the principles enunciated by the Appellate Division and the Privy Council in the Madzimbamuto case derive from conceptions applicable to sovereignty and legitimacy in the realms of constitutional law and international law. Nevertheless, I take the view that these principles are equally relevant and germane to the factual situation in casu. Their application will assist the Court in evaluating the mootness or otherwise of the present matter and in determining the position that the Court should adopt in the event that the matter is found to be moot.

As I have already intimated, the Court is constrained to take judicial notice of the prevailing political realities within the Party that is presently before us. There can be no doubt that the second appellant and his lieutenants are in de facto and effective control of the Party. There is nothing to suggest that the situation will not continue for some time or that the second appellant is likely to be eclipsed and supplanted as the leader of the Party in the foreseeable future. While the Court cannot with any accuracy predict the future political path of the Party, we certainly cannot totally disregard the political realities on the ground.

In the premises, I am inclined to agree with the appellants that the present matter has indeed been rendered moot and academic. That, however, is not the end of the matter. The question that then arises is whether or not the Court should nevertheless proceed to deliver its definitive pronouncement pursuant to my earlier determination of the substantive merits of this appeal.

It is common cause that the Party is the main opposition political entity in this country, having secured 88 out of 270 seats in the National Assembly and 25 out of 60 seats in the Senate, at the last general election held in July 2018. It is not inconceivable, given the vagaries and vicissitudes of political fortune, that it might someday be electorally elevated to become the ruling party in Zimbabwe. As I have noted earlier, Article 3 of the Party constitution enshrines its status as “a Social Democratic Party whose core values shall be solidarity, justice, equality, liberty, freedom, transparency, humble and obedient leadership and accountability”. These core values of the Party, if they are not to be reduced to merely hollow rhetoric, necessarily implicate the principles of good governance and adherence to the leadership requirements embodied in the constitution.

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