Thokozani Khupe and Movement for Democratic Change-T v Douglas Togaraseyi Mwonzora N.O and Others

The first applicant, Dr. Thokozani Khupe, claimed to be the Acting President of the Movement for Democratic Change-T (MDC-T) and brought an urgent application seeking to interdict the disbursement of ZWL$149,850,000.00 due to the MDC-T under the Political Parties Finance Act. On 21 January 2022, the first applicant publicly declared a split in the MDC-T party, claiming there were now two MDC-T formations - one led by herself and one led by the first respondent, Douglas Mwonzora. She wrote to the Speaker of Parliament on 24 January 2022 confirming this split. On 12 January 2022, the first applicant had been suspended from the MDC-T party by the first respondent as President. On 28 January 2022, the National Council of the MDC-T passed a resolution that the first applicant had effectively left the party. On 25 January 2022, the second respondent (Minister of Justice) published a notice in the Government Gazette allocating the funds to the MDC Alliance. By the time of the hearing on 3 February 2022, it was confirmed that the funds had already been disbursed on 2 February 2022 to an account controlled by the first respondent. The applicants then sought to amend their draft order accordingly.

• Whether the first applicant had authority to bring the application on behalf of the second applicant (MDC-T)
• Whether the correct parties had been cited in the application
• Whether the matter had become moot due to the disbursement of funds before the court's determination
• Whether the wrong application form was used in contravention of Rule 59(1) of the High Court Rules, 2021
• Whether the court should exercise its discretion to hear a moot matter in the interests of justice

The application was dismissed with costs.

The binding legal principles established are: (1) A person purporting to act on behalf of a political party or any juristic entity must demonstrate through proper documentary evidence (such as a resolution) that they have authority to bring proceedings on behalf of that entity; (2) A matter becomes moot when events occur before determination which overtake the dispute and terminate the controversy between the parties, rendering any order sought meaningless or unenforceable; (3) Courts retain discretion to hear moot matters only where it is in the interests of justice to do so, and the onus is on the applicant to establish exceptional circumstances justifying such hearing; (4) Where funds have been lawfully disbursed by a statutory authority in accordance with legislation and no challenge has been mounted against the lawfulness of that disbursement, an application to interdict such disbursement becomes academic and the court will decline jurisdiction.

The court made several obiter observations: (1) The court noted that legal practitioners should not take a casual approach to compliance with court rules, and that flagrant disregard of the rules is frowned upon by the courts; (2) The court observed metaphorically that "the horse has bolted from the stable" to illustrate that the matter had become moot; (3) The court noted that the first applicant was "blowing hot and cold" by adopting contradictory positions - claiming to be Acting President by automatic succession while also claiming there had been a split, and seeking both the total amount and alternatively 50% of the funds; (4) The court observed that in terms of the law, the funding of political parties is disbursed to the party which has the minimum percentage of votes required, and if there is any subsequent split, the law does not provide for a sharing of such funds; (5) The court noted that the applicants ought to have withdrawn the application once they realized the funds had been disbursed and there was no active litigation challenging the disbursement.

This case is significant in Zimbabwean law (and provides comparative guidance for South African law) on several procedural and substantive principles: (1) It reinforces the requirement that persons bringing applications on behalf of juristic entities or political formations must establish their authority through proper resolutions; (2) It applies the doctrine of mootness, confirming that courts will generally decline jurisdiction where events have overtaken the dispute and rendered it academic, unless exceptional circumstances exist and it is in the interests of justice to hear the matter; (3) It demonstrates the court's approach to intra-party political disputes and the disbursement of public funding to political parties under political finance legislation; (4) It emphasizes the importance of compliance with court rules regarding the proper forms to be used in applications. The case also illustrates judicial reluctance to intervene in political party internal disputes where the legal position of the applicant is unclear or contradictory.