The Movement for Democratic Change – Tsvangirayi and Others v Movement for Democratic Change Alliance and Others

The Movement for Democratic Change – Tsvangirai (MDC-T), a political party, together with Thokozani Khupe (2nd applicant, claiming to be Acting President/Vice-President of MDC-T) and Nomvula Mguni (3rd applicant, claiming to be Deputy Secretary General of MDC-T) brought an urgent chamber application. There was a leadership contest in MDC-T between Khupe and Douglas Mwonzora (2nd respondent). Khupe alleged that Mwonzora was automatically expelled from MDC-T on 3 January 2022 when he assumed leadership of another political party (Movement for Democratic Change Alliance). Mwonzora contended that Khupe was suspended on 12 January 2022 and her membership terminated on 28 January 2022, and that Mguni's membership was also terminated. On 21 January 2022, Mwonzora wrote to the Speaker of Parliament notifying him that Khupe and Mguni had ceased to belong to MDC-T and were being recalled from the National Assembly under section 129(1)(k) of the Constitution. On 26 January 2022, the Speaker wrote to Khupe and Mguni notifying them they had ceased to be members of the National Assembly and advised the President and the Zimbabwe Electoral Commission of the vacancies. On 4 February 2022, applicants filed this urgent application seeking to interdict respondents from submitting nomination papers or furnishing names to fill the vacancies pending the determination of a separate declaratory application (HC 202/22).

• Whether the interim relief sought was competent or was in fact a final relief disguised as an interim relief
• Whether the application was properly urgent
• Whether the 2nd applicant (Khupe) had authority to represent the 1st applicant (MDC-T) in the proceedings
• Whether the citation of parties was proper
• Whether applicants had disclosed material facts
• Whether there was an alternative remedy available
• Whether the relief sought improperly sought to interdict constitutional duties

1. The point in limine that the interim relief sought by the applicants is incompetent and bad at law in that they are seeking a final order disguised as an interim relief is upheld. 2. This application is not urgent and is struck off the roll of urgent matters with costs of suit as against 2nd and 3rd applicants.

1. Interim relief sought in an urgent application must operate pending the return date of the same matter, not pending the conclusion of a separate matter with its own procedures yet to be finalised. 2. Where an order does not provide for a return date and is granted pending the conclusion of other cases, it is a final order as regards those proceedings and must only be granted where a clear right has been established on a balance of probabilities, not merely on a prima facie case. 3. Relief that would achieve the applicant's ultimate goal once granted, with nothing to confirm on a return date, constitutes a final relief disguised as interim relief and is incompetent and bad at law. 4. An application seeking a final relief disguised as interim relief is not urgent and should be struck off the roll of urgent matters. 5. A draft order that is incompetent and a nullity cannot be amended under Rule 60(9) of the High Court Rules, 2021. 6. A person making a political party a party to litigation must have proper authority to do so; failure to demonstrate such authority (particularly when challenged and not traversed in an answering affidavit) means the party cannot be held liable for costs.

The court made several non-binding observations: 1. The court noted confusion and anomalies in the citation of parties (particularly regarding the 3rd respondent being described as both the Speaker of Parliament and the Chairperson of the Zimbabwe Electoral Commission), which were not addressed during the hearing. 2. The court remarked that it is not for the court to "start panel beating an incompetent draft order" and that applicants must properly draft their applications. 3. The court observed that respondents mischaracterized Khupe's position by stating she was "representing" MDC-T when in fact MDC-T was represented by its lawyers; Khupe's role was to make MDC-T a party to the suit (citing Bere v JSC and 6 Others SC 1/2022; Willoughby's Investments (Pvt) Ltd v Peruke Investments (Pvt) Ltd & Anor HH 178/14). 4. The court noted it was "incompetent to rely on a judgment that has been set aside by a superior court" in response to counsel's reliance on Timveous & Ors v Mwonzora Ors HH 370/20, which had been set aside by the Supreme Court. 5. Having found the application not urgent on the basis of the defective draft order, the court stated it was unnecessary to consider the remaining points in limine, but nevertheless addressed the authority issue for completeness as it had bearing on costs.

This judgment is significant in Zimbabwean civil procedure as it reinforces the strict distinction between interim and final relief in urgent applications. It emphasizes that interim relief must operate pending the return date of the same matter, not pending the conclusion of a separate matter before the courts. The case clarifies that Form 26A of the High Court Rules, 2021 must be strictly followed, and interim relief must be granted "pending the finalisation of this matter" not some other matter. The judgment prevents litigants from obtaining final relief on merely establishing a prima facie case by disguising it as interim relief. It also addresses the requirement for proper authority to make a party (particularly a political party) a litigant in proceedings, and the consequences of failing to file an answering affidavit to traverse serious factual allegations. The case applies and reinforces the Supreme Court's decision in Movement for Democratic Change & Ors v Timveous & Ors SC 9/22.