Jobert Mudzumwe and Others v Movement for Democratic Change and Professor Welshman Ncube N.O.

### Preamble
1
HH 232-2012
HC 612/11
JOBERT MUDZUMWE AND OTHERS
versus
---------


==============================JOBERT MUDZUMWE AND OTHERS
versus
MOVEMENT FOR DEMOCRATIC CHANGE
and
PROFESSOR WELSHMAN NCUBE N.O.

HIGH COURT OF ZIMBABWE
PATEL J

Opposed Application

HARARE, 2 February and 12 June 2012

T. Mpofu, for the applicants
A.P. de Bourbon, for the respondents

PATEL J: This matter emanates from the 3rd National Congress of the Movement for Democratic Change (the MDC) which was held in January 2011. The Congress was convened in December 2010 by Prof. Welshman Ncube, the 2nd respondent, who was at that time the Secretary General of the MDC.

The applicants contend that the Congress was convened and conducted in violation of the MDC Constitution in three different respects, to wit, the failure to send notices convening the Congress to all provinces and districts, defects in the process of nominations for elections at the Congress, and the unprocedural conduct of elections at the Congress in the absence of the National Chairman. They aver that the 2nd respondent has usurped various functions and powers vested in other officials and organs of the MDC for his own political interests. They seek an order declaring the 3rd National Congress and all of its outcomes null and void, as well as an order directing the 2nd respondent to reconvene the Congress.

The respondents contend that all of the applicants ceased to be members of the MDC immediately before the Congress and, therefore, they have no locus standi in judicio in this matter. On the merits, they aver that notices convening the Congress were duly sent and delivered one month before the Congress and that the procedures governing nominations for elections to the National
 Council were substantially complied with. As regards the elections held at the Congress, they were duly conducted by the National Organising Secretary because the National Chairman, the 1st applicant, had deliberately absented himself from the Congress. In any event, no elections actually took place at the Congress, as all the appointees to the National Council were declared to have been elected having been unopposed.

At the hearing of the matter, counsel for the respondents did not pursue the challenge to the applicants’ locus standi. Consequently, notwithstanding the voluminous papers filed of record, the principal issue for determination herein is whether the convening of the Congress and its results were invalid on the three grounds raised by the applicants. The other salient issues canvassed at the hearing pertain to the assessment of facts in motion proceedings and the interpretation of domestic constitutions.

It is trite that in motion proceedings the applicant must make out his case on the founding affidavit. Questions of fact that are contested are generally decided on the respondent’s averments taken with facts that are common cause. If a material dispute of facts is or should have been anticipated, the application must ordinarily be dismissed. It is common cause that this is the approach to be adopted in the present matter.

Interpretation of Domestic Constitutions

As was succinctly declared by the Privy Council in the oft-cited case of *MacFoy v United Africa Co Ltd* [1961] 3 All ER 1169 (PC) at 1172, if an act is void then it is in law a nullity, it is automatically null and void without more ado, and every proceeding which is founded on it is also incurably bad. Adv. Mpofu urges the Court to follow this time-honoured principle in the interpretation and application of the MDC Constitution. He submits that this instrument constitutes a binding contract between the members of the MDC. It must be strictly complied with and substantial compliance is not enough.

The decision of the Supreme Court in *Dynamos Football Club (Pvt) Ltd & Another v Zimbabwe Football Association & Others* 2006 (1) ZLR 346 (S), is highly instructive in this context. It was held *per* Malaba JA, at 351:

“When a constitution says that rules of a club can only be amended or new rules made at an annual general meeting, they cannot be changed or new rules added at an extraordinary or special general meeting. Where the rules demand that the alterations or additions be effected at an annual general meeting of a specified composition of members, and upon written notice of a prescribed number of days having been given, the changes or additions which are not made in accordance with the prescribed procedures and without the preconditions having been met are null and void.”

It was further observed, at 356, that:

“The duty of a court of law is to determine whether what is claimed to have been done is in fact what was prescribed by the members of the Club in strict compliance with the procedure they laid down for validity to attach to those acts.”

Dealing specifically with notification of the meeting in question, it was held, at 360, as follows:

“There was failure to give proper notice of the meeting according to the rules. The facts show that the notice was given by the executive committee of ZIFA. The rule is that failure to give due notice to even one member of the Club who was entitled to attend and vote at the meeting renders it a mere nullity.”

In this regard, the Supreme Court followed the decision in *Baird v Wells* (1890) 44 Ch D 661 at 671, dealing with a similar failure to comply with a rule governing the amendment of a club constitution:

“If the election of the committee was to be confirmed and new rules were to be adopted proper and distinct notice should have been given to the members. No such notice was given and consequently the proceedings were not binding on the members who were not present.”


Adv. de Bourbon propounds a somewhat different approach. He submits that a domestic constitution falls to be interpreted like an ordinary contract and must be given business efficacy. The question of compliance is to be considered in the light of the object of the provision in question. Not every failure to comply with a procedural requirement would render the action taken a nullity. He refers in this regard to the dictum of Lord Penzance in Howard v Bodington (1877) 2 PD 203 at 211:

"... you must look to the subject matter, consider the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the Act ..." This approach to the interpretation of statutory provisions is aptly captured by the observations of Gubbay JA in Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S) at 301-303, as follows:

"The categorisation of an enactment as ‘peremptory’ or ‘directory’, with the consequent strict approach that if it be the former it must be obeyed or fulfilled exactly, while if it be the latter substantial obedience or fulfilment will suffice, no longer finds favour. As was pertinently observed by Van Den Heever J (as he then was) in Lion Match Co Ltd v Wessels 1946 OPD 376 at 380, the criterion is not the quality of the command but the intention of the legislator, which can only be derived from the words of the enactment, its general plan and objects. The same sentiment was expressed by Milne J in JEM Motors Ltd v Boutle & Anor 1961 (2) SA 320 (N) at 327 in fine-328B. This approach received the imprimatur of the South African Appellate Division in Maharaj & Ors v Rampersad 1964 (4) SA 638 (A) ..........."

In the Maharaj case, Van Winsen AJA concluded that the provision concerned was imperative and went on to enquire whether the failure to strictly comply with it was fatal. He expounded the following test, at 646C-E:

"The enquiry, I suggest, is not so much whether there has been ‘exact’, ‘adequate’ or ‘substantial’ compliance with this injunction but rather whether there has been compliance therewith. This inquiry postulates an application of the injunction to the facts and a resultant comparison between what the position is and what, according to the requirements of the injunction, it ought to be. It is quite conceivable that a court might hold that, even though the position as it is is not identical with what ought to be, the injunction has nevertheless been complied with. In deciding whether there has been a compliance with the injunction the object sought to be achieved by the injunction and the question of whether this object has been achieved are of importance.”

Although this test is formulated with specific reference to the construction of statutes, I think that it is equally apposite in the context of domestic instruments regulating the activities and administration of voluntary associations and organisations. In keeping with the principles enunciated in the cases, it is necessary to consider whether what was done is in fact what is prescribed in the governing rules, so as to achieve the object sought to be achieved by the rules. It seems to me that to command or compel slavish adherence to every jot and tittle of the rules may not necessarily and invariably secure the fulfilment of the intended objective. In many cases, it may even impede or frustrate that objective. In certain instances, however, strict or exact compliance with the prescribed procedures may be necessary, as in the *Dynamos* case, *supra*, where what is at stake is something as fundamental as the amendment of the rules of an association or the dissolution of the association itself. In any event, having regard to the circumstances of each case, a flexible approach may be called for in order to advance the objects that the members of the organisation have associated together to attain. In the final analysis, this purposive or teleological approach commends itself as being the most appropriate one to the interpretation of domestic constitutions generally.

**Relevant Provisions of the MDC Constitution**

The Constitution of the MDC was adopted by its Inaugural Congress in January 2000 and subsequently amended at the 2nd National Congress in February 2006. The provisions germane to this matter are contained in Articles 5 and 6 of the Constitution. They are as follows.

Article 5.2.4: “A notice convening the Congress shall be sent to all Provinces and Districts by the Secretary General with the approval of the National Council at least one month before the date of the Congress.”

Article 6.13.3(c): “The Secretary General shall in not less than four days before the date of the Congress cause members of the National Executive Committee and each Province to be advised of the names of persons nominated by each Province for election to the National Council.”

Article 6.13.3(f): “The elections shall be conducted by the National Chairperson who shall be supported by the National Organising Secretary and the Deputy National Organising Secretary except where the election is for the position of National Chairperson in which case such election shall be conducted by the outgoing Deputy President assisted by the National Organising Secretary and the Deputy National Organising Secretary.”

Notices Convening the Congress

It is not in dispute that at the meeting of the National Council on 8 December 2010 it was resolved that the 3rd National Congress be held on 8 and 9 January 2011. The meeting further authorised the 2nd respondent to issue notices convening the Congress. It is also not in dispute that at the end of that meeting the 2nd respondent gave notices convening the upcoming Congress to all the Provincial Chairpersons and Provincial Secretaries with instructions to transmit the notices to the Districts. It is common cause that the Congress was then held on 8 and 9 January 2011. What is in issue is whether there was compliance with the requirements of Article 5.2.4 of the MDC Constitution.

Adv. Mpofu submits that delivery of the notices to the Provinces was in order, but that delivery of notices to the Districts through the Provinces was improper and inadequate. It should have been effected directly to the Districts and not by proxy. Additionally, it is implied in Article 5.2.4 that notices must not only have been sent but also received at least one month before the date of the Congress. In this instance, notices were not received within the stipulated period to enable the Provinces and Districts to prepare for the Congress.

Adv. de Bourbon counters that notices need only be given to the Provinces and Districts and not to any named official within those structures. Moreover, the notices must be sent by any means of communication, not necessarily in writing, and this does not involve any physical receipt. The giving of notices to all the Districts through the Provinces was in order as, in a pyramid system, notice to the Provinces also constitutes notice to the Districts within that structure. The fact that every single District sent delegates to the Congress shows that all the Districts, as opposed to their respective Chairpersons, did receive notice of the Congress.

On the pleadings, the applicants aver that they did not receive any notice of the Congress and that the 2nd respondent chose to dispense with the notices. The 2nd respondent avers in his opposing affidavit that he gave the requisite notices to all the Provinces and, through the Provinces, to the Districts. In their answering affidavits, the applicants merely restate their denial, based on conjecture and without further elaboration. In this respect, I agree with Adv. de Bourbon that the 2nd respondent’s contention that notice was duly given has not been effectively disputed in the answering affidavits. Equally significantly, as I have already noted, the applicant in motion proceedings must make out his case on the founding affidavit. Contentious issues of fact are generally decided on the respondent’s averments, taken together with facts that are common cause. In the premises, it seems to me that the 2nd respondent’s averments in this regard are to be preferred and must be upheld.

The procedure prescribed by Article 5.2.4 is relatively clear. Once the National Council has approved the date of the Congress, the Secretary General is required to send a notice convening the
 Congress to all Provinces and Districts at least one month before that date. Similarly, the interpretation of Article 5.2.4 should not present any major difficulties. In particular, the phrase “notice convening the Congress hall be sent” is to be ascribed its ordinary grammatical meaning. The verb “to send” ordinarily denotes a variety of actions, viz. to consign, convey, direct, dispatch, forward or transmit. Applying any one or more of these synonyms to the words under consideration, taken in their context, they must be construed to mean that the notices in question must be dispatched, forwarded or transmitted to the Provinces and Districts. I am unable to find any justification for extending the phrase, as is argued for the applicants, to encompass the actual receipt of notices by the Provinces and Districts. Apart from deviating from the ordinary grammatical meaning, any such construction would place upon the Secretary General the unenviable and intolerable burden of having to achieve what might be practically impossible to achieve on the ground. By the same token, I see no merit in the contention that notices must be sent to the Districts directly and not indirectly through the Provinces. What matters, at the end of the day, is that notices are in fact sent to the Districts through an appropriate and acceptable form of transmission. In this regard, I can see nothing objectionable in the dispatch of notices to the Districts through the Provincial structures, as happened in this case, in the usual manner of communication within a pyramidal hierarchy.

The intention underlying Article 5.2.4 is also fairly obvious. It is to allow all the Provinces and Districts to prepare for the Congress and to enable their delegates to attend and participate at the Congress. It seems to me that these objects are clear and straightforward and that they should not be obfuscated by technicalities. In the instant case, it would appear that these objects were generally achieved in that over 4000 delegates representing all the Provinces and Districts actually attended the
Congress. Those who did not attend, including the applicants, deliberately chose to boycott the Congress. In any event, virtually all of the applicants were members of the National Council and were present at the meeting where the dates of the Congress were fixed. They were fully aware of that date from the outset, while few of the applicants who were not on the National Council admit to having participated in the nomination processes preceding the Congress and having been aware of the Congress dates. All in all, I am satisfied that the purpose and objects of the injunction contained in Article 5.2.4 were fully realised. It follows, in my view, that the provision was not violated in any way and was duly complied with.

Nominations for Election to the National Council

Article 6.13.3(c) enjoins the Secretary General to cause members of the National Executive Committee and each Province to be advised of the names of persons nominated by each Province for election to the National Council. He is required to do so in not less than four days before the date of the Congress. Both counsel appear to be in agreement that the reference to National Executive Committee in this provision is a misnomer, as no such organ is established under the MDC Constitution, and should properly be a reference to the National Council. Be that as it may, what is in issue in this matter is whether or not the Provinces were duly advised of the nominees for election to the National Council.

The 1st applicant contends that the 2nd respondent convened the Congress without receiving nominations from all the Provinces. He further states that Article 6.13.3(c) could not have been complied with as the National Council only met on 7 January 2011, a day before the Congress opened on 8 January 2011. The 2nd respondent avers that he complied with Article 6.13.3(c) by his letter of 3 January 2011 and that all the Provinces were already aware of the nomination process. Only Masvingo Province failed to submit its nominations and this was because it had been influenced by the applicants not to do so.

The 2nd respondent’s letter of 3 January 2011 is addressed to all members of the National Executive and all Provincial Chairpersons. It states as follows:

“In terms of Article 6.13.3(c) of the Party Constitution I hereby formally advise you of the outcome of the nomination exercise in preparation for Congress. Find attached hereto the nominations made by each Province. Please note that Masvingo did not make its nominations even though it held a Provincial Council meeting on 30th December 2010. Instead of doing nominations they chose to write a petition to my office, which I will table at the meeting of the National Council scheduled for 7th January 2010 [sic] for the National Council to make a determination.”

The 1st applicant’s averments as to non-compliance with Article 6.13.3(c) are made in paragraphs 5 and 5.2 of his founding affidavit. The 2nd respondent’s averments disputing this, by virtue of the above letter, are contained in paragraph 10.1 of his opposing affidavit. In his answering affidavit at paragraph 24 the 1st applicant complains about chaotic, disorderly and flawed nominations, but does not deny having received the letter, nor does he dispute its contents. In fact, none of the applicants deny having received the letter. On the papers, therefore, the 2nd respondent’s position as to having complied with Article 6.13.3(c) through his letter must be sustained.

The essence of the injunction embodied in Article 6.13.3(c) is for the Secretary General to communicate the names of persons nominated by each Province for election to the National Council at least four days before the date of the Congress. It is quite clear that Article 6.13.3(c) is concerned not with the nomination process per se but rather with the end result of that process. The primary purpose of this provision, in my view, is to ensure that all persons attending the Congress are duly notified and aware of the candidates nominated for election to the National Council. Its secondary purpose is to enable unsuccessful candidates to invoke Article 6.13.3(d) so as to nominate themselves, with the endorsement of ten members, not later than two days before the date of the Congress. The applicants chose not to invoke this option, but elected instead to boycott the Congress. On the strength of the 2nd respondent’s letter of 3 January 2011, addressed to the recipients stipulated in Article 6.13.3(c), coupled with his oral notifications to that effect, it must be accepted that the 2nd respondent duly complied with both the requirements and objects of the provision. It follows that the applicants have failed to substantiate the alleged breach of Article 6.13.3(c).

Conduct of Elections at the Congress

In terms of Article 6.13.3(f) of the MDC Constitution, elections at any Congress for positions on the National Council “shall be conducted” by the National Chairperson supported by the National Organising Secretary and the Deputy National Organising Secretary. It is common cause that at the Congress in casu the Acting National Chairperson at that time, the 1st applicant, was not present and that the elections were conducted by the National Organising Secretary. It is also common cause that all the appointees to the National Council were elected unopposed.

Adv. Mpofu submits that the fact that the appointees were unopposed does not mean that no elections were conducted and does not detract from the National Chairperson’s critical role and function of declaring the successful candidates. There was an electoral process and Article 6.13.3(f) is couched in peremptory terms. If there were no elections, the 2nd respondent’s position as President elected at the Congress becomes untenable.

Adv. de Bourbon submits that the word “elections” must be construed in the narrow sense of elections by ballot. If a nominee or candidate is unopposed, there is no election to conduct. He further submits that where the National Chairperson is absent, elections can be conducted by the National Organising Secretary, who is implicitly authorised to do so by Article 6.13.3(f). Moreover, the 1st applicant cannot by deliberately boycotting the Congress frustrate its entire process.

It is not disputed that the 1st applicant walked out of the National Council meeting on 7 January 2011. Consequently, it was agreed that the meeting would proceed with the then President in the chair. It was also clear that the 1st applicant would not attend the Congress. It was therefore resolved that the National Organising Secretary would perform all the functions vested in the National Chairperson at the Congress, including the chairing of the Congress and the conduct of elections.

In determining the question at hand, it is necessary to consider other pertinent provisions of the MDC Constitution, in particular, Article 6.13.3(h):

“All the elections for members of the National Council shall be conducted on the basis of Provincial block voting and where necessary the vote of each Province shall be determined by secret ballot and the winning candidate shall be by a simple majority of the Provinces. The outcome of each Province’s vote shall be by a simple majority of delegates present and voting in that Province. In the event of a tied vote in any election in any province, the election shall be held again until there is a winner. In the event of a tied vote among the Provinces present and voting, the tie shall be broken by having that position voted for through a system in terms of which delegates shall vote in their individual capacities by secret ballot and the candidate receiving the highest number of votes shall be declared the winner.”

Also relevant is Article 15.1 dealing with oversights and omissions. It provides that:

“In any place where the requirements of this Constitution cannot be satisfied because of an omission or oversight in draughtsmanship, or because a body provided for has not been established, or an officer provided for in this Constitution has not been elected or appointed, or because of a procedural problem; the National Council shall have the power to make such arrangements which, in their opinion, satisfy the spirit of this Constitution and shall seek approval for such arrangements at the next Congress.”
 The language of Article 6.13.3(h) provides a very strong basis for the argument that the elections referred to in Article 6.13.3(f) involve active contestation as between competing candidates. In other words, delegates at a Congress are required to vote as between two or more nominees for the posts in question. Having regard to the ordinary meaning of the verb “to elect” as being “to choose”, to conduct an election would be to preside over a process in which the electors make their choice from amongst one or more candidates. It then follows that where a nominee or candidate is elected unopposed there would be no election to conduct or preside over. If this is correct, it must be concluded that no elections actually took place at the Congress *in casu* because those nominated were appointed unopposed to their respective posts, thereby making it unnecessary for the National Chairperson or the National Organising Secretary or anyone else to preside over the conduct of the elections envisaged in Articles 6.13.3(f) and 6.13.3(h).

While I must confess that this argument is very appealing, I am not entirely persuaded to accede to it. It seems to me that in an organisational context, even where an election or appointment takes place without contestation, the electors or delegates present are called upon to make a passive choice in accepting the unopposed candidate, *viz.* by not challenging or objecting to the nomination of that candidate. By the same token, the person who presides over or conducts the election is enjoined to make a formal pronouncement, officially declaring the appointment of the candidate to the post in question. This formal act is not purely academic or otiose inasmuch as it operates to invest the successful candidate with the substantive functions, powers and duties of the office to which he is appointed. In short, what transpired at the Congress *in casu* was an electoral process. I am therefore inclined to conclude that the proceedings under consideration, notwithstanding the absence of any opposition to the candidates nominated, constituted elections in the formal sense, requiring the active involvement of a designated official to preside over the conduct of those elections.

The argument for implied powers vested in the National Organising Secretary to conduct elections is not totally without merit, particularly in light of the broad power entrusted in him by Article 6.8.1(h) to be “the master of ceremonies” at all of the MDC party’s national functions, including any Congress. However, Article 6.13.3(f) explicitly refers to him as supporting or assisting the National Chairperson or Deputy President. Consequently, I do not think that this supportive role can be translated, without further ado, into the principal functions exercisable under Article 6.13.3(f) simply by dint of the essentially ceremonial power conferred by Article 6.8.1(h).

What is more critical in this regard is the action that was taken by the National Council at its meeting of 7 January 2011. Once it became clear that the 1st applicant had no intention of attending Congress, the National Council resolved that, in the event of his boycotting the Congress, all the functions vested in him and required to be performed by him at the Congress would be performed by the National Organising Secretary. In my view, the National Council was fully empowered to do so by virtue of the provisions of Article 15.1 of the MDC Constitution. There was “an omission or oversight” in the Constitution as to what should happen in the event that the National Chairperson failed or neglected for any reason to attend Congress. Moreover, it had become apparent that there would be “a procedural problem” caused by his non-attendance at the Congress. The National Council then proceeded to make such arrangements as, in its opinion, satisfied the spirit of the Constitution. It follows that the resolution authorising the National Organising Secretary to perform the functions of the Acting National Chairperson at the Congress, including the conduct of elections under Article 6.13.3, was perfectly competent under the aegis of Article 15.1. It further follows that there was no violation of Article 6.13.3(f) in the conduct of elections at the Congress.

This conclusion is fortified by the trite principle that a person cannot rely on his own wrongful conduct to found a cause of action. In the instant case, having deliberately absented himself from the Congress, the 1st applicant cannot then rely on his absence to argue that all of the proceedings at the Congress were a nullity because he was not present in person to chair those proceedings. To allow him to do so would enable him to benefit from his own deliberate abstention to the extreme prejudice of the entire MDC party membership. Indeed, such an approach would render unmanageable the convening and conduct of all political party conferences. It would also allow party leaders to circumvent and frustrate the electoral process and remain in office indefinitely through the simple stratagem of non-attendance.

Disposition

Having regard to all of the foregoing, I am satisfied that the applicants have failed to establish any contravention of the provisions of the MDC Constitution that they rely upon for the declaratur that they seek. As regards costs, I see no justification for the punitive award of costs claimed by the respondents, which claim was in any case properly abandoned by counsel at the hearing of this matter.

In the result, the application is dismissed with costs on the ordinary scale.

Mbidzo Muchadehama & Makoni, applicants’ legal practitioners
Gill Godlonton & Gerrans, respondents’ legal practitioners
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