|Mutambara, Ncube case: Judgment reserved|
|Thursday, 17 November 2011 00:00|
Postponing the ruling, Justice Kamocha said he needed time to consider issues raised by both the counsels for the applicants and the respondents.
The postponement of the judgment means that the provisional order granted by Bulawayo senior High Court judge Justice Nicholas Ndou on 16 February this year, barring Prof Mutambara from exercising any function vested in the president of MDC, remains in force.
It was Adv de Bourbon's contention that if they were not happy with this, they could have sought leave to appeal against the granting of the provisional order.
He noted that in January, two major national meetings of the MDC including the congress were held and that Prof Mutambara chaired the meetings.
He further noted that after the congress, 13 members of MDC commenced proceedings in the High Court in Harare seeking an order declaring the congress null and void and seeking that Prof Ncube calls another congress within six months of the judgment.
They are arguing that because of time limits, there was a possibility that some districts within MDC did not receive the notice of the congress on time and that in one or two provinces the nomination was a fraud.
"All the matters being raised in that application are being challenged and we call upon this court to decide whether there is prima facie case in the case before it. None of the critical facts before the court are in dispute but there are disputes in facts in the case filed in Harare and that is for the Harare Court to determine," he submitted.
Adv de Bourbon said the balance of convenience favours allowing the political dispensation prevailing to continue allowing all parties in the Global Political Agreement to fully participate.
Mr Alec Muchadehama, of Mbidzo, Muchadehama and Makoni Legal Practitioners, who represented Prof Mutambara said they were opposed to the confirmation of the provisional order and wanted it discharged with costs.
It is his contention that the matter is not urgent and therefore the provisional order should not have been granted in the first place.
"The respondent is being interdicted from doing certain things pending the finalisation of the case filed in Harare but these things are not spelt out on paper. There is nothing before this court, for example, that shows that he interfered with the structures or organs of the party.
"The respondent denies doing anything to harm the interests of MDC. The issues before this court have nothing to do with the party but they are contestations of a power struggle within the leadership of MDC."
Mr Muchadehama said there was no need to hamstring Prof Mutambara's political career pending the outcome of the case filed in Harare.
"He is also the Deputy Prime Minister. Who knows at the rate at which applicants are going, next they will seek to bar him from executing the functions of the office of the Deputy Prime Minister, later seek to prevent him from attending political gatherings or addressing political meetings as a citizen or member of a political party, next they might seek to bar him from freely expressing himself etc."
Mr Muchadehama said that the applicants had no clear right to claim to solely represent the MDC and said their legitimacy was being challenged in the case filed in the High Court in Harare.
"This is one such remedy. Going to court is more of harassing respondent and more of a publicity stunt than seeking genuine remedies."