Unpacking Adv Mpofu’s position on Supreme Court ruling

WHEN reading through Advocate Thabani Mpofu’s piece (commenting on the Supreme Court’s decision to uphold the decision of the High Court nullifying Nelson Chamisa’s leadership of the MDC), the first thing I immediately noticed is that the title is a misnomer.

He titled it,“The Legal Position”, but went on to address what he thinks are dishonest and incompetent opinions.

Reading through it, it’s quite clear that this is not the legal position, because the legal position is the one that was handed down by the Supreme Court. We can go on and argue on the appropriateness or correctness of that decision, but it still stands.

As lawyers, ours is only an interpretation of the law. No matter how close or accurate that interpretation can be to the reading of the law, it remains merely an opinion.

It can be a superior or inferior opinion, but the court is the only institution that has the authority to hand down the legal position.

So his is an opinion and, if contrary to the court ruling, it ceases to state the real legal position. This seems a trivial fact but I would expect an attorney of his calibre to appreciate the importance of that distinction.

Everyone is entitled to an opinion, but legal opinions cannot simply be based on whim and feeling, they must also correspond with accurate legal principles.

Mpofu uses the example of Zorewa and Fisheries Company, and that was not an appropriate example to begin with because he is not correct to suggest that the judgment confirming Zorewa’s promotion has no effect because of his death. This is because that promotion comes with a number of legal and financial implications. It could have an impact on his tax obligations, pension benefits, credit, contractual or other obligations. All in all, it means a material change in Zorewa’s personal estate!

Mpofu should know that death does not mean a person ceases to exist; those benefits, including the car, would simply go into his deceased estate, which, for the purposes I just mentioned, would still operate as though he were still alive.

Perhaps this was the crucial point because this tells me his reasoning failed to appreciate that the hypothetical example of Zorewa and the MDC case are both challenges based on a right to administrative justice.

The basis being that the impugned action, if not taken lawfully, reasonably or procedurally fair, can restrict individuals’ rights to administrative justice. So on that basis, a court challenge is always made with retrospective effect, except in cases where the adverse impact is anticipated and has not taken place yet.

The point of the challenge is not about the appropriateness of the action, but it is to hold the decision-makers accountable on those measures according to the Constitution of Zimbabwe. The court has the competence to deliberate on those issues and make a ruling to either confirm, alter, refer back or strike down the decisions if found to be unconstitutional.

In parenthesis, it is odd to me that the Supreme Court declared the National Council’s conduct unconstitutional, yet it does not refer to the Constitution of Zimbabwe or any legislation. The Administrative Justice Act is the law that deals with challenges to administrative action, but even where it was found not to be administrative action, it would still not escape scrutiny under Section 68 of the Constitution, which guarantees that right.

The basis for challenges of this nature is to encourage a culture of accountability and it does not seem fit that the court would not take the opportunity to reinforce this culture using the supreme law of the land.

Mpofu’s misapprehension is that the developments at the Gweru Congress cure the unconstitutionality of elevating Nelson Chamisa to party president, or that mootness makes that conduct valid.

The court clearly states that the elevation was unconstitutional and that is the issue the court sought to correct, notwithstanding the fact that the court accepts the reality of the Gweru developments. Mpofu mentions that Chamisa did not convene the meeting as though it has relevance, but whether or not he did had no bearing on the matter and was inconsequential to their inquiry as the court states.

The court even concedes that the original controversy is now moot. However, it goes on to state that this is not the final conclusion, and for reasons owing to the stature of the party, it had to make a definitive ruling. By doing so, the court achieves two things.

First, it declares categorically that the decision to elevate Chamisa was unconstitutional, and the second is that such action would be invalid if it arises again in the same manner. This is to prevent bloody hands from benefiting from their own wrongdoing by making unconstitutional actions and then appear to cleanse them through new intervening processes. Voluntary associations have the freedom to determine their own processes and structures, but it is not a carte blanche freedom for all purposes.

Once their members become members of the legislature, they are just as subject to the same requirements of administrative justice.

While courts may be reluctant to deal with their internal matters, because, let’s face it, it is just politics, if those associations by their own volition decide to adopt governing rules, they must abide by them.

This is truer for voluntary associations that are political parties whose members represent a constituency, which makes it a matter of public interest.

Unlawful decisions, by their definition, cannot then be ratified and if any of the members seek to challenge them, they are permitted to do so. Finally, it is not a question of the correctness or appropriateness of the court’s decision but about authority. This piece, like Advocate Mpofu’s, is merely an opinion and must be understood as such, but the law is what was handed down by the Supreme Court and is binding on all.

However, even legal opinions must be qualified by sound legal principles in accordance with current decisions and not simply emotional pleas. Mpofu’s language is so sensationalised and inflammatory that it is degraded further from being a qualified legal opinion to more of an incensed rant. And to sign-off (his opinion) saying, “THIS IS THE LAW” in bold, I mean, what is this? Julius Caesar’s Rome? His dog may very well understand the composition of the MDC party, but I do hope for his sake it ends there and it is not also a source of legal opinions.