Chief Court Reporter
The MDC-Alliance’s case to force Government to allocate it nearly $30 million under the Political Parties Finance Act, failed after the High Court struck it off on the grounds that it was improperly before the court because it does not legally exist.
Several court rulings made so far against the opposition party indicated that it was not the party that contested in the 2018 harmonised elections, but was simply an electoral alliance.
The alliance was made up of seven different opposition parties, with the MDC-T being the dominant party.
However, in a bid to have the money paid to it, the MDC-A suffered a huge setback after the High Court struck off the matter with costs on the basis that it has no legal capacity to sue, hence it was improperly before the court.
The issue for determination was whether an estoppel was applicable in the matter, after Professor Lovemore Madhuku arguing the case for the MDC-T raised a preliminary point that MDC-A was bound by the decision made by Justice Tawanda Chitapi on its legal personality.
Estoppel refers to a judicial device in common law legal systems which precludes a person from asserting something contrary to what is implied by a previous action or statement by that person or by a previous pertinent judicial determination.
It was on that basis that Justice Esther Muremba upheld the preliminary points raised by the MDC-T’s lawyer and struck off the matter with costs, without hearing arguments on their merit.
She ruled that by virtue of the judgment already made that MDC-A lacked legal capacity to sue, the party could not appear in court and claim that it has legal capacity to do so.
“The preliminary point is upheld, there is no applicant before the court,” said Justice Muremba.
“This finding disposes of the matter, it becomes unnecessary to deal with the rest of the preliminary points and the merits of the case. Since my decision is based on a preliminary point and not on the merits, the following order is made; the application is struck off with costs.”
Prof Madhuku raised the preliminary issues proving that the MDC-A was improperly before the court and was abusing the court process.
Although MDC-A appealed against the judgment, it has failed to prosecute the appeal resulting in the appeal being struck off, argued Prof Madhuku adding that the judgment binds the parties in that case.
In his counter submissions, Mr Alec Muchadehama, for the MDC-A, conceded that the judgment pronouncing the party’s legal personality was still in existence, but argued that the court was not bound by it.
He said Justice Chitapi’s judgment was of persuasive value and the court could make its independent decision based on the submissions before it.
However, Justice Muremba did not accept the argument noting that Mr Muchadehama completely missed the essence of the issue raised by the MDC-T.
The judge said the issue was not whether or not the court was bound by the decision already made, but the point taken was that MDC-A could not as a matter of law, assert a position contrary to the decision already made.
“It is bound by that decision. This is known as estoppel in legal parlance,” said Justice Muremba, adding that she had no doubt that the issue of estoppel had been satisfied because the same parties were before the court and the same issues on legal personality was decided in a final judgment.
In July last year, the Supreme Court ruled that neither MDC- A nor MDC-T could receive any of the political funding under the Political Parties Finance Act until a resolution on the ongoing legal battle over which formation is entitled to the money was settled.
MDC-A had successfully applied for an interim order before Justice Priscilla Munangati-Manongwa at the High Court in May last year, to block the MDC-T from receiving the funds.
Under the Political Parties Finance Act, all parties that poll more than five percent of the vote in a general election share the sum budgeted for political parties each year in proportion to their votes.