By Mary Taruvinga
MDC leader Nelson Chamisa’s lawyers seem to have made a fatal omission in the case in which he is challenging a High Court ruling that ruled him illegitimate early this year.
Chamisa took charge of the opposition party following the death of party founding leader Morgan Tsvangirai in a chaotic period with co-vice president Thokozani Khupe also claiming she had right to succeed the former Prime Minister.
In his appeal at the Supreme Court, Chamisa omitted adding a crucial affidavit by Tsvangirai confirming he had power to appoint vice presidents outside congress.
Chamisa, who is being backed by his former deputy Morgan Komichi in his chamber application, is seeking to rectify the appeal SC289/19, already certified by the parties in June this year.
According to court papers, Chamisa’s lawyer only realised that they did not include the affidavit in their submissions and now want it to be part of the record or risk losing out.
Respondents cited in the application are Elias Mashavira, Elias Mudzuri, Thokozani Khupe and Douglas Togarasei Mwonzora.
In an affidavit prepared by his lawyer Tafadzwa Chagonda, Chamisa said parties have failed to rectify the record without involving the court.
“Rectification is sought because the record has a patent omission. The parties having failed to agree on the issue, the intervention of this court has become imperative,” said Chagonda.
Chagonda said Chamisa and Komichi also admit to the error.
“I have read the affidavit of Tafadzwa Chagonda and confirm that it is the position of the applicants that the judgement of the High Court must be contested. It is also our position that the judgement of the High Court must be contested on the basis of all the facts that were before the court when it heard the matter. This particularly relates to the affidavit of the late Dr Morgan Richard Tsvangirai,” said Chamisa.
Chagonda said applicants (MDC, Chamisa and Komichi) also seek the necessary condonation bearing on their certification of the wrong record as well as the time it has taken to seek rectification of the record.
He went on to explain how this happened.
“On May 8 2019 the High Court rendered a judgement… the matter went against applicants and they immediately instructed me to retain counsel for purposes of noting and prosecuting an appeal. I retained the services of counsel.
“The Registrar of the High court as he was obliged to do, prepared a record of proceedings. I was called upon to inspect and certify that record which I did on the 19th of June 2019. Thereafter, the record was forwarded to the registrar of the Supreme court.
“When I inspected the record I had unfortunately not seen the omission. I certified the record arising out of that omission and error for which I am solely responsible. I sincerely and profusely apologise for overlooking this issue and which is also the subject of one of the grounds of appeal.”
He said he wrote to the Registrar of the High Court when the mistake was brought to his attention.
Chamisa said the letter makes it clear that the record prepared is incomplete and identifies the omission.
“I regret my error in certifying a record which had this omission and can only profusely apologise for its incidence. It is my error and not that of any of the applicants involved. I pray that none of them be saddled with the consequences of my reasonable mistake,” said Chagonda.
Chamisa suffered a major blow in May this years after High Court Judge, Edith Mushore ruled it was unlawful for Tsvangirai to hand pick his deputies.
Mushore said the party should only elect deputies at an extraordinary congress using 2014 structures.
The judgement followed an application by Gokwe district organising secretary, Mashavira challenging the 2016 decision by the late MDC-T leader decision to handpick Chamisa and Mudzuri as his deputies.
The two joined Khupe, who had already been voted for at the 2014 congress.
Following Tsvangirai’s death Khupe argued she was bona fide vice president and the only one who had been elected at congress hence had right to take over as leader.
In their Supreme Court appeal which is yet to be set down for hearing, Chamisa and Komichi said Mushore erred in delivering her judgement.
They argued that MDC-T constitution provides for the appointment of the two deputies outside a congress.
The respondents are yet to reply.