To Acting President
MOVEMENT FOR DEMOCRATIC CHANGE (MDC)
NUMBER 44 NELSON MANDELA AVENUE
HARARE
24 November 2020
From
Berias Brian Trust Mari
Secretary for Welfare South Africa
[email protected]
O834480396
Re : Article 6.2.6 Notice of Convening of Extra Ordinary Congress
1) I hope I find you well and in high spirit.
2) I hereby confirm that I am a member of MDC from its inception.
3) I was elected MDC SOUTH AFRICA PROVINCIAL EXECUTIVE member at Bethelehem Provincial Assembly of South Africa in 2014 and again re elected Provincial Executive member with the portfolio of Secretary for Welfare on the Provincial Assembly of South Africa as held in Bloemfontein in 2019. These assemblies were held in terms of article 6.9.1.3 of MDC constitution. Which read as follows:
“6.9.1.3 The Provincial Executive Committee shall be elected at a Provincial Assembly meeting held once every five years provided that elections shall take place at least two months prior to each Congress”
For both Assemblies I was elected at a constitutional meeting which is held every 5years.
4) South Africa assembly is a Provincial organ of MDC which exist in terms of article
6.8.1 and it has equal rights as any other provinces of MDC.
5) In terms of article 6.2.1(d) all members of Provincial assemblies are members of Congress. This means I BERIAS BRIAN TUST MARI the Secretary for Welfare as elected at a provincial Assembly, am a delegate of Congress or Extra Ordinary Congress should any occurs.
6) I am fully aware of the existence of a Supreme Court ruling SC56/2020 which I take notice of the following from the said ruling:
(i) The SC ruling gave an order on paragraph 2 which read as follows
“2.The judgment of the court a quo be and is hereby confirmed, save for the deletion of paragraphs 4 and 5 of the operative order” . Effectively this order confirms the other operative orders of the High Court save for deletion of directing MDC as a person to hold an Extra ordinary Congress or convening Extra Ordinary Congress. This removes the duty of any organ of the party to seat and deliberate or come up with any form of resolution on the convening of the Extra Ordinary Congress as MDC.
(ii) The SC ruling further gave an order on paragraph 3 which is directed you acting only in the capacity of Acting President who is exercising functions of president stated in article 9.1.2.1. That is to convene an Extra Ordinary Congress of MDC in order to elect a president of MDC in terms of article 9.21.1 of MDC. Effectively this order directed a single person who is acting as President of the party to individually convene an Extra Ordinary Congress. The said article 9.1.2.1 gives powers only to President and those powers are not shared or abrogated to any person or organ of the party.
7) I am also aware of an application to extend the time frames that were initially given by the Supreme Court on 30 March. I know you were granted an extension of time to convene an Extra Ordinary Congress.
8) From the Court ruling that extended the time frame and news circulating, I am told you intend to hold the Extra Ordinary Congress on 20 December 2020. This prompted me to approach your office with the following concerns.
A) The MDC constitution makes an article 6.2.2 congress different to an Extra ordinary Congress of article 9.21.1 on the following things that you or any one cannot change.
a) Congress of 6.2.2 is held once every five years and by 6.2.3(g) that time frame cannot be changed by any organ of the party or anyone. Where as
b) Extra Ordinary Congress can be held at any time , in accordance with the provisions of the constitution and in this case the Extra Ordinary congress was called in terms of article 9.21.1 . That is to elect a replacement of deceased president.
c) The 6.2.2 Congress has functions listed in article 6.2.3 where as an Extra Ordinary Congress is convened with functions raised on the notice of convening. In this case it is to elect a president after the demise of Dr MR Tsvangirai.
d) The 6.2.2 Congress is convened by way of notice written by Secretary General to Provinces and Districts two Months before date of Congress as per article 6.2.4.1 and a further notice is given to the public through a newspaper notice as per article 6.2.4.2 where as
e) Notice of convening an Extra Ordinary Congress is given direct to each individual person who is a delegate of
Congress as per article 6.2.6 “A notice convening an Extra-Ordinary Congress shall be sent to all members entitled to attend and to each branch by the National Council at least one month befo)re the date of the meeting.” It is clear from this that a notice of convening an Extra Ordinary Congress is send to individuals who attend Extra Ordinary congress as listed by article 6.2.1 and only the branch is the only organ given notice of Extra Ordinary Congress yet no member of Branch executive is part of Congress delegates.
B) Based on this I have noticed that today is 24 November 2020 and from information circulating in media I am informed that the said Extra Ordinary Congress is to be held on 20 December 2020. If that information is correct, which I am persuaded to believe since the Supreme Court extended the time frame to 31 December, it means notices of convening Extra Ordinary Congress should have been issued by now. The mandatory 30 days notice required have already lapsed and I Berias Brian Trust Mari who is Secretary for Welfare South Africa Province has not received my individual notice of invitation to attend the Extra Ordinary Congress.
C) As far as I know I am a paid up member and I have not done anything against the party constitution. However I have not received the notice to attend the Extra ordinary Congress.
D) There are issues that have come through social and main media about nominations or purported National Councils or Standing Committee resolutions on the convening of Extra Ordinary
Congress. I am also aware of antagonisms at National level and Parliament. I feel the matter of Extra Ordinary Congress was clearly stated by Supreme Court and only one person who act as President was mandated with the duty to convene Extra Ordinary Congress and the same Supreme Court as I have explained above clearly relieved MDC and its organs from convening of Extra Ordinary Congress. No kind of National resolutions or Provincial nominations or National Council directive can be legal.
E) The Notice of convening an Extra Ordinary Congress requirements put everything to rest. No province or National Council is mandated or invited as organs to this Extra Ordinary Congress. Only one individual was mandated to write notices to individuals who are delegates. That individual was given as a person Acting as president not as an organ or share the powers in 9.1.2.1 with anyone.
F) The Supreme Court has already identified the delegates of party as those that were led by Mr Nelson Chamisa. Without those same delegates going to convene an Extra Ordinary Congress then the whole Supreme Court ruling has no value. I refer you to comments by the judge in last paragraph of page 34 that extend to page 35 of judgement. It reads
“The evidence on record, as elaborated by submissions from counsel, suggests that the third respondent may have moved on to other political pastures. However, there is no clear evidence to the effect that she has unequivocally relinquished her political rights and interests in the Party. On the other hand, it seems relatively clear that the second appellant has become “the chosen leader” of the Party. The Court cannot but take judicial notice of the following political realities. Firstly, as appears from the voting results of the last general election held in July 2018, the second appellant was the only viable opposition contender for the presidency. He actually garnered 44.39% of the total valid votes cast in the presidential election, as compared with the winning candidate, the incumbent President of the country, who obtained 50.67% of the votes cast. In contrast, the next highest ranking candidate, being the third respondent, only secured a paltry 0.94% of the valid votes cast. Secondly, and equally significantly, he was unanimously elected as the President of the Party, i.e. The one that is presently before this Court, at its Congress convened in June 2019. These are the inescapable facts that loom large on the country’s political landscape.” The Acting president must take note that it was decided already as to which party that is before SC56/2020. Two indicators that the judge referred to as inescapable are that the said party convened their Congress in June 2019 and that there is evidence before it that you have moved on to other political pastures. You cannot then call members of your party to the Congress of a party that the court positively identified or exclude any of the members that were in June 2019 Congress and pretend to have convened EOC of MDC.
9) The Acting president should note that the SC took notice of 6.2.2 congress time frame and exercised fully the provisions of article 6.2.3(g). This provision state it clearly that any other time frame in the constitution can be extended but the time frame of 6.2.2 Congress cannot be extended. That is clearly shown in the Judgement where the Court take notice that article 9.21.1 state clearly that a deceased president can only be replaced by way of EOC which must be held at least 12 months from date of his death. This became a constitutional time frame which had two effects. The first is that the deputy becomes acting President for that period of 12 months and only an Extra ordinary Congress can remove such acting president. The fact remains this is a time frame outside a 6.2.2 Congress and can be extended. The Court did exactly that. The court gave judgement in March 2020 which is over 5 years from 2014. No one could extend this time frame. Any person who was holding post as per 2014 election has no more constitutional mandate. The second effect is to extend date of EOC. This is a time frame outside Congress of 6.2.2 and it can be extended.
10) I also want the Acting President to realise that article 9.21 only direct that only a president can be replaced by way of EOC should he die or resign, where as all other office bearers are replaced at 6.2.2 Congress which happen once every 5 years. Realise that Provincial Assemblies are held every five years. District assemblies happen once every 5 years. No person or organ can change such time frames. Provincial assembly is not elected as a dependent of National members or who is the president or who acts as president of the party. The issue of who was to be president has since been resolved but has nothing to do with my membership to MDC or the lapse of 5 year term of South African Provincial Executive or any other Organ. As such a 6.2.2 Congress notice was issued by the then SG Douglas T Mwonzora in terms of article 6.4.1 to provinces and districts and a further notice of 6.2.4.2 was put in newspaper. As the judgement shows in page 35, MDC held its 6.2.2 Congress in June 2019. The court emphasises that it is an inescapable fact.
11) The Acting president should realise that the two constitutional provision of article 9.1.2.1 and 9.21.1 which the Court used to direct you to convene an EOC thereby directing you to provisions of 6.2.6. This provision direct that notices of EOC be given direct to individuals 30 days before date of EOC. It removes any form of nominations before the EOC because delegates are invited personally and are invited by Acting president who also exercise that power individually. That alone means no delegate goes to EOC standing for someone or carrying a resolution of anyone. The proceedings of EOC start at the venue. No organ of the party is invited to congress or directed to do any function of this EOC. This is both by Constitution and Court Order.
12) It must be noted by the Acting president that your period of Acting is based on article 9.21.1 which is a time frame of constitution that can be extended by article
6.2.3(g) and that time frame is only given to the Acting President only. Article 9.21 is very clear that all other office bearers cannot act beyond article 6.2.2
Congress. Again I repeat the events of 2019 Congress were by operation of
Constitution and not individuals. An executive was elected by Congress and no SC order ever changed that. The Court removed one person from the executive and noted that only an Extra ordinary Congress could remove an Acting President and not a 6.2.2 congress. However 2019 elected Deputy presidents and an entire Standing Committee. This is clearly an above board exercise.
13) The Acting President must realise that the court did not direct anyone to form alternative structures outside those that were led by Mr Nelson Chamisa at time of ruling. It is not within your choice to choose people you want to be in structures because the court ruled when structures are there. You cannot wish anyone away in the structures. Should you wish to contest the post of president of MDC you seek those people’s mandate.
14) Of importance is for you to explain why you did not give me an invitation to EOC. My post as Secretary of Welfare in South African province is not at the pleasure of president or any other person but mandate given by those who elected me. No one can wish me out of the EOC
15) Should you not respond in 7 days I will have to seek legal action against you and challenge the legitimacy of the EOC should it go ahead. I also would have interest in knowing those delegates who shall attend the EOC because it was already known you had your own party in 2018 election by the name MDC T. Whether that MDC T means MDC Tsvangirai or Thokozani it does not matter the point is SC ruled on MDC party and not MDC T. We have seen many Court cases of MDC T which must not be conflated with MDC which is a body Corporate. Should any other delegate reveal to me that he or she was also not invited to the congress, I may team up with such delegates to stand as one for the same cause. Should we also discover after counting the number of delegates who did not receive invitations as per article 6.2.6 that we constitute a huge number we shall approach the court to stop that EOC. It will be illegal
Looking forward to your response on my e mail address beriasmari@ yahoo.com which all party correspondences go to all the time.
Regards
Berias Brian Trust Mari