Nelson Chamisa’s supposed victory in the Supreme Court Tuesday is nothing but a pyrrhic victory, which will come to haunt him in the coming weeks (See Chamisa, Khupe Latest).
Legal opinion is of the belief that Chamisa will rue the application made on his behalf by Morgan Komichi, as this might result in a long-drawn court battle which can stretch beyond the elections, ultimately resulting in a decision on who the real MDC-T is.
“The Supreme Court ruled that the controversial judgement of Justice Francis Bere be set aside, meaning the fight over the name of the MDC-T will now go to full trial at the High Court,” said one legal expert who requested anonymity.
“At law matters can be dealt with by application – where the courts resolve issues based on the papers submitted to them or by trial – where oral evidence is called and there is examination and cross-examination of witnesses. The court is saying this matter needs a trial.”
By sending the matter back to the High Court, the superior court has deemed there should be a full trial on the matter. The SC has ordered, by consent, that it is urgent but that since there are disputes in material facts, it cannot be resolved on the papers and must therefore be resolved by way of a trial.
Witnesses will be called by either side to back their case. They will be cross examined. Thereafter the court will make a decision as to who the real MDC-T is.
“So in effect, the dispute in the courts is still on-going,” said the legal guru.
“Chamisa’s camp’s so-called victory is in being allowed to use the name MDC-T. but the tragedy is while this has been ruled to be urgent, the trial itself could drag and the decision could take time. Meanwhile, the election date may be declared anytime soon. A strategic decision has to be made on a without prejudice basis. One side here has nothing to lose.”
According to Alex Magaisa, a UK-based legal expert, President Dr. Khupe has a case at law, “had that not been the case the Supreme Court would have dismissed the matter.
“Instead, the Supreme court ruled that the matter be decided at the High court by way of trial,” Magaisa said.
“President Dr. Thokozani Khupe did not approach the courts in the first place, it was Morgan Komichi on behalf of Chamisa who applied for an interdict barring Dr. Khupe from using the name and symbol of the MDC. This means that Khupe never wanted the courts to decide on the legal dispute; instead the faction led by Chamisa invited the courts into the legitimacy issue.”
Magaisa said by having the matter put to trial, it is going “to expose Chamisa on the illegal and clandestine amendments made on the 2014 MDC constitution and he will not succeed in covering up this lie”.
“The legal battle which we never invited is ongoing and it does not look good for Chamisa and his camp at this juncture.
“The real tragedy that Chamisa hatched with his appeal against Justice Bere’s judgement is that the court processes are likely to go on and on ad infinitum because the losing party can appeal back to the Supreme all the way to the Constitutional Court.
“This means elections may be held before the dispute is resolved. If Chamisa had not appealed it would have left the ConCourt with sole responsibility to determine the dispute in the application case submitted by Khupe against her expulsion from Parliament,” he said.
So in essence, Chamisa’s camp may have celebrated too soon!