From
Berias B T Mari
Email [email protected]
0834480396
To:
Mr Komichi
MOVEMENT FOR DEMOCRATIC CHANGE
44 NELSON MANDELA AVENUE HARARE
13 DECEMBER 2020
Dear Mr Komichi
Re: Notice of EOC By Senator Komichi Circulating.
I greet you Sir.
On 27 November 2020 I Berias Brian Trust Mari wrote a letter to the Acting President of MDC requesting to get a formal invitation to the SC sanctioned Extra -Ordinary Congress in terms of article 6.2.6. I have not received a response from her.
What I found out today 13 December 2020 on twitter is a thing that purports to be a notice of EOC which is said to have been inserted by you. I have no idea if it is a notice you gave yourself or someone did it maliciously.
What ever the case, I feel obliged as an interested part, to raise concern on that particular notice. Should it be proven that you did not produce that notice, all the objection below may fall out.
A) SUPREME COURT RULING
- A case between Elias Mashavira v MDC was heard and a judgement was given on 30 March 2020.
- It must be repeated here that the record shows clearly the name of the party that was before the court was Movement for Democratic Change (MDC) without any other letter after that.
- A constitution of the said party was also lodged and article 1 of the said party had the following details
ARTICLE 1
NAME, SYMBOL AND HEADQUARTERS OF THE PARTY
1.1 The name of the political Party shall be the Movement for Democratic Change (hereinafter referred to as “MDC” or where appropriate “Party”).
1.2 The Party’s symbol is an open palm with its borders in black on a white background encircled by the
Party’s slogan “Chinja maitiro” “Guqula Izenzo” written in black. The Party’s logo is a black circle incorporating the Zimbabwe bird in grey on an orange background which represents a wheel on which is also embedded the Party’s flag in black, red, yellow and green blocks arranged in bands.
1.3 The Party’s flag is rectangular. It is one and half times longer than it is wide. It is a horizontal multi-colour, comprising from top to bottom equal bands of green, yellow, red and black. At the centre of the flag is the Party symbol in its original colours with the words “MDC” written in white on the black band of the flag.
1.4 The Party is headquartered at Harvest House, No.44 Nelson Mandela Avenue, Harare and shall have offices at such other places as may be determined from time to time by the National Council.
It is important to note the identity details of the party that was before Court. It was never MDC Tsvangirai as you state on the said notice. It is evident that the notice you gave talks of another political party beside the one in court case SC56/2020. The name and symbol on your notice do not match the MDC cited in court.
4)The party whose Constitution was lodged has a legal status stated in article 2 of its constitution.
ARTICLE 2
LEGAL STATUS
2.1.The MDC shall be a body corporate with perpetual succession, capable of Suing and being sued and acquiring and disposing of property in its own name.
2.2 The MDC shall have the power to do everything necessary or conducive to the furtherance of its aims, values and objectives.
Take note Mr Komichi MDC can sue or be sued in her own name according to her constitution. It cannot be sued or sue in the name of Tsvangirai or
MOVEMENT FOR DEMOCRATIC CHANGE TSVANGIRAI or any other name
preferred by anyone. In your notice you conflate a party which is not known to me as one cited in case SC56/2020. That is illegal and criminal.
- For your own information right in the SC judgement on page 35. The Judge state it clearly that the party that convened a congress in June 2019 was the party
before the courts 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. Please read that part. Very
clear. If you go to the notices given by the then Secretary General of MDC in 2019 to convene the 6.2.2 Congress you will see that the Congress was for MDC without a Tsvangirai both in person and on notices. This is the party that is in SC56/2020.
- I must now remind you of what the court says which you seem to miss out. Page
40
- “In terms of Article 9.21.1 of the Party constitution, the Deputy President assumes the role of Acting President upon the death of the President, pending the holding of an Extra-Ordinary Congress to elect a new President. Such Congress must be held no later than one year from the death of the former President. The power to convene an Extra-Ordinary Congress is ordinarily vested in the President by dint of Article 9.1.2.1. It follows that, by assuming the role of Acting President, the Deputy President is ipso jure equally empowered to convene any such Congress. By the same token, the National Chairperson, who is enjoined by Article 9.3.1(a) to perform the duties of the President’s Office in the event that both the President and the Deputy President are unable to perform their functions, must also be vested with the power to convene an Extra-Ordinary Congress.” It must be noted by
you that the power to convene an EOC is in the president as per 9.1.2.1 of MDC Constitution.One has to first assume the role of president, either by Acting or elected. Without assuming the role of president one cannot use article 9.1.2.1 of MDC to convene an Extra Ordinary Congress for MDC. Looking at the whole notice of yours, Mr Komichi, no where does it say you are writing the notice as Acting President of MDC or exercising powers in article 9.1.2.1 of MDC constitution.
- The operation order that directed you to convene an EOC had this
to say.4” In the event that the third respondent fails or is unable to comply with paragraph 3 above, the third appellant, in his capacity as the National Chairperson of the first appellant, be and is hereby ordered to convene the aforesaid Extra-Ordinary Congress, within a period of four months from the date of this order”. It must be realised by you that the Court gave a condition that must first happen. That is to say Madam Khupe must fail or be unable to comply with order 3 of ruling then in
the capacity of Chairperson of MDC convene an EOC of MDC. The questions that then arise are
- Has Madam Khupe failed to comply with order 3 of SC 56/2020? If yes what are the circumstances.
- Is Madam Khupe unable to comply ? What are the circumstances.
- Are you the Chair person of MDC? If the Court ruled that the case was moot because of congress held to elect leadership in June 2019, does it come to your mind that a Chairperson of MDC is only elected at a 6.2.2 Congress? If you read article 9.21.2 of
MDC constitution you must realise this clear statement 9.21.2 In the
event of the death or resignation of the National Chairperson, the Deputy National
Chairperson shall respectively hold office until the next Congress. As you know Mr
Komichi, you were elected Deputy National Chairperson and Mr
Lovemore Moyo was elected the Chair for a period 5years in 2014. Along the course Mr Moyo resigned from the party and you were to hold that post until next Congress, which came to pass in 2019. The Court noted it and stated that it is an escapable fact. A new Chairperson was elected and the court noted that too on
page 32 Mootness of the Matter This matter was heard a quo on 14 March 2019 and judgment therein was handed down on 8 May 2019. Soon thereafter, in June 2019, the Party convened a Congress at which elections were held and officials were elected to lead the Party. More significantly, the second appellant was elected as the President of the Party. The question that then arises is whether or not this matter has been overtaken by events and thereby rendered moot. Point to note is
that a congress was convened and elections were held and officials were elected to lead the party. In short a Chairperson was elected on that Congress. The matter before the court was not about the election of Chairperson.
- It is now clear you are no longer deputy Chair of MDC, neither can Act as chairperson of MDC beyond the term of office of the person whom you stood for. Unlike the provision of article 9.21.1 where deputy president assumes role of President for a specified period of 1year from the date of death or resignation of president, the post of Chair one can act up to next Congress. The MDC constitution is clear on extending of time frames. You can extend the time of acting President who is acting in terms of 9.21.1 but you cannot extend the time frame of Acting Chair because no one can change congress dates.
- You lack the capacity of being Chairperson of MDC which the court directed as a requirement for you to convene EOC. The court never said you are the Chairperson of MDC nor did it extend a time frame that makes you a Chairperson as it did to the Deputy president who assumes role of president right from date of death. You have no capacity at all to be Chair at this moment.
- In your notice, you call yourself convener. It shows you do not realise the legal requirement that you need to be an acting President to have the power to convene an EOC and not Deputy National Chairperson of old Structure acting on the basis of an expired mandate of resigned National Chair.
B) YOUR NOTICE OF EOC
- This notice has a Logo MDC-T with a palm that has image of late Mr Morgan Tsvangirai. This does not match any description of the party MDC in Court. As I stated above, article 1 of MDC constitution lodged in Court has no name MDC T on it or image of Mr Tsvangirai on it. As is also stated in MDC constitution article 2 that everything has to be in MDC name. This makes the whole notice foreign to MDC and the SC ruling 56/2020.
- Thenotice has no date as to when it was given. It is imperative by article 6.2.6 of
MDC constitution that a notice is given at least one month before date of EOC
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 before the date of the meeting. Without a date of
issue one cannot tell when this notice was issued. If delegates from SA are to get this notice from any source today they have no constitutional period of one month to meet the dates.
3) By reading the notice
i) Salutation.
“TO: All Delegates and All branches”. It shows Mr Komichi is applying some other constitution to write this notice beside MDC constitution. Like it is shown in article 6.2.6 which I quoted in B(2) above. Notice to convene Extra-Ordinary Congress shall be sent to all members entitled to attend and to each branch. This wording clearly show notices are given to each individual and to each branch unlike notice of 6.2.2
congress which is in article 6.2.4.1. A notice convening the Congress shall be sent to all
Provinces and Districts by the Secretary General on the direction of the National Council at least 2 (two) months before the date of the Congress.6.2.4.2. In addition, the notice convening the Congress shall be published once in a Newspaper of national circulation, thirty days before the Congress. Key words that you must not miss in this whole process are:
- Congress v Extra Ordinary congress.
- “sent to all members entitled to attend” v “All delegates” as in your notice.( I hope you understand a delegate is someone representing someone or sent but a member is someone who stand and represent self because of membership and entitlement.) If you miss this division you end up mixing provision of 6.2.4 and
6.2.6. Article 6.2.6 notice requires “members entitled to attend” and not delegates. That is why we see foolish exercises of nominations being published. That you need to understand that no person go to EOC on behalf of anyone or representing anyone. The word delegate must tell you why notice 6.2.6 is important to be directed to each person entitled to attend.
- “sent to all members entitled to and to each branch” v “sent to all Provinces and district”. Without noticing the wording of article 6.2.6 you are tempted to write a notice that combine delegates and branches on same notice. The wording “and to each branches” means you first sent to members then sent to each branch. Unlike the 6.2.4 notice that combine them into one notice the EOC requires each MEMBER and Each branch to be sent a notice.
- Do not under estimate the word “sent”. It shows there should be a correspondence between the convener and the part invited. I deliberately quoted 6.2.4.2 the to show that only 6.2.2 Congress requires an “additional” notice to be published as an extra. If this published notice is to be relied on by Mr Komichi, it lacks the constitutional requirement for an EOC. A notice of EOC must be sent and proof of act of sending should be proven. I still have not received my notice of invitation.
- In short your salutation has no legal basis and cannot address anyone or call for any Congress sanctioned by SC.
- Do not under estimate the word “sent”. It shows there should be a correspondence between the convener and the part invited. I deliberately quoted 6.2.4.2 the to show that only 6.2.2 Congress requires an “additional” notice to be published as an extra. If this published notice is to be relied on by Mr Komichi, it lacks the constitutional requirement for an EOC. A notice of EOC must be sent and proof of act of sending should be proven. I still have not received my notice of invitation.
- Now if you go to the body of the said notice. It talks of a Supreme Court
Judgement between Movement for Democratic Change v Elias Mashavira and the constitution of that party but suddenly changes to give notice of an Extra Ordinary congress of another party known as Movement for Democratic Change (Tsvangirai). How this party is enjoined to the said SC judgement is not known to us. Again like explained above MDC in SC lodged a constitution with article 1 that give its name and Symbols and its article state clearly in black and white that it can only sue or be sued in its “own” name not other people’s name. There is no way MDC could have been sued in the name of MDC T . It us absurd for you to abuse a SC ruling to call your own party’s EOC using a Supreme Court judgement. This is a commercial crime of corporate hijacking. I feel you need to be warned to note your actions. Let it be clear that MDC is a legal person outside her members. This MDC T you are conflating to MDC is not known to the SC or us members holding membership cards of MDC the party in SC ruling.
- When you signed the notice you forgot to realise the wording of SC ruling, “in his capacity as the National Chair of First Appellant” . Please Mr Komichi do not miss things. You are no longer Chairman of appellant by article 9.21.2 so you cannot have that capacity of being National Chair. The Court did not direct that you are the Chair. You miss the point that the case record is SC Appeal 289/2019 where it was lodged before June 2019 Congress. If it was the intention of SC to make you the National Chair of MDC it would have made a clear ruling on that and reasons behind. The court could not have done the impossible of extending your time of acting Chair beyond what 9.21.2 when article 6.2.3.(g) is loud and clear that no one can extend time frame of 6.2.2 congress. So cool down and stop addressing yourself as Chairperson of MDC. Its criminal in terms of Companies Act 403. Also realise the wording of Court when it says “in his capacity as Chairperson”. The court is not giving you the Chair or giving you the capacity but giving a possibility assumed by what is presented before it. What was presented before Court was you were the Chair. The Court judgement came when you are no longer the Chair so you lost the capacity.
- You deliberately avoided to state your capacity in MDC and reason why you regard yourself as convener. Something must give you power to convene such congress. Where do you derive the power to convene the EOC or to be the convener? The Court did not give you a personal power as a man from jungle in the name Komichi to just be a convener. The court made all effort to explain circumstances that must prevail before a National Chair is required to convene. What you then miss is the capacity to be or remain the Chairperson. Point black
you have nothing left as long as article 9.21.2 stands and as long as June 2019 congress stand.
C) MY concerns
I will just conclude and say this.
- I know you have since jumped the ship to join hands with Madam Khupe’s Party MDC T and have been recalling MPs for MDC A using this same tactic of referring to SC ruling. However MDC is not involved in MDC T or MDC A issues. It is expected that those affected by your actions as MDC A stand up. I as a member of MDC with rights and obligation stated in article 5 of its constitution will stand and challenge the abuse of MDC my party.
- I as a member of MDC stand up and challenge this abuse of the party MDC you have been doing.
- I feel you saw my previous letter to Madam Khupe and you are trying to cover the illegalities raised in that letter by this notice of yours.
- For record I file these letters for future actions.
- I shall send a copy of this to Party address, one to your WhatsApp, one to your Twitter inbox.
Hope to see you doing the right thing
Yours
Berias Brian Trust Mari
Member of MDC South Africa Provincial Executive.