The Bulawayo High Court has upheld the nomination and election of Sibangilizwe Nkomo as the president of ZAPU during its 2021 elective congress, dismissing a challenge by five former party members who questioned his eligibility.
In a landmark ruling delivered by Justice Bongani Ndlovu, the court found that Nkomo met the party’s membership requirements and that his election adhered to the ZAPU constitution.
The five plaintiffs, referred to as the “Mat South Five” – Mathew Sibanda, Echem Nkala, Gedion Dlamini, Earnest Ndlovu and Mildred Mkandla – had argued that Nkomo’s nomination violated party rules and sought to nullify the election.
Read: https://cite.org.zw/mat-south-5-express-frustration-over-court-delays-in-zapu-leadership-dispute/
The plaintiffs also contested Section 8:19 of ZAPU’s constitution, which requires members to seek approval from the National Executive Committee (NEC) before approaching the courts. They argued the clause infringed on their constitutional rights and sought reinstatement to the party after being expelled in November 2022.
The Mat South Five claimed Nkomo, who first joined ZAPU in 2010, had ceased to be a member in 2011 due to non-payment of membership subscriptions.
They alleged he only rejoined the party in 2019, making him ineligible to run for president as he had not maintained the required five consecutive years of membership.
The plaintiffs further criticised Nkomo’s leadership, asserting ZAPU was deteriorating under his stewardship.
However, ZAPU maintained Nkomo’s membership had not lapsed and he was eligible to contest for the presidency.
“…Nkomo was eligible to stand for nomination for president of ZAPU because he had been a member since 2010 and his membership was primarily with Mahetshe Branch of ZAPU in Matobo North,” said Justice Ndlovu, noting how ZAPU argued the plaintiffs should have exhausted domestic remedies before approaching the courts and that Section 8:19 is constitutional.
Justice Ndlovu outlined four primary issues addressed during the trial:
1. Whether or not Nkomo was a member of ZAPU for over five years at the time of his nomination in June 2021.
2. Whether or not Nkomo was eligible to stand for election as a candidate for
the presidency of ZAPU
3 Whether or not section 8:19 of the ZAPU’s constitution violates the Plaintiffs’
rights enshrined in Zimbabwe’s Constitution
4. Whether or not the Plaintiffs exhausted domestic remedies enshrined in section 8:19 of
the ZAPU’s Constitution before issuing summons.
On the first issue, the court ruled Nkomo had been a member of ZAPU since 2010 and that his membership had not lapsed due to non-payment of subscriptions.
Justice Ndlovu noted ZAPU’s constitution did not explicitly state that non-payment of fees resulted in automatic membership termination.
“The plaintiffs failed to provide evidence from the Mahetshe Branch register to support their claims,” Justice Ndlovu stated.
“Furthermore, members in arrears were allowed to regularise their standing on the eve of the 2021 congress, which reinforces the view that non-payment of subscriptions does not terminate membership.”
Regarding Nkomo’s eligibility, the court found the plaintiffs’ argument fell apart after determining his continuous membership.
Three of the five plaintiffs testified but Justice Ndlovu said “they were not consistent on this point.”
“According to (Sibanda), once a member fails to pay his subscription fees he automatically ceases to be a member of (ZAPU). He conceded that membership of (ZAPU) is branch- level based. He never checked the Mahetshe Branch register,” said the judge.
“(Mkandla) testified substantially in line with (Sibanda) adding that at some point she was the Provincial Secretary, Matabeleland South and used to process membership names. She does not recall seeing (Nkomo’s) name in the registers. It was her evidence that (Nkomo) was nominated by someone in Matobo North while according to her, Mahetshe is in Matobo South.”
The judge said it was later established that Mahetshe Branch falls under Matobo North.
Justice Ndlovu also noted Earnest Ndlovu was eloquent in his testimony and how when he was ZAPU’s Provincial Secretary in Matabeleland South, “he never saw (Nkomo).”
“He testified that one’s membership does not lapse due to failure by one to pay his membership subscriptions,” said the judge.
“He however suspected forgery surrounding (Nkomo’s) card owing to the poor management of the cards within the party at the time. Like the other two plaintiffs who testified earlier than him, he too conceded he did not check the Mahetshe Membership Register.”
Justice Ndlovu emphasised that concerns about Nkomo’s leadership should be addressed within party structures, not the courts.
“The nomination of Nkomo is a political matter better suited for congress debates, not courtroom deliberations,” he added.
On the constitutionality of Section 8:19, Justice Ndlovu upheld the clause, stating it did not bar members from taking legal action but required them to follow a specific procedure.
“Even if the procedure appears onerous, limitations of rights within democratic frameworks are not uncommon,” the judge explained.
While acknowledging the plaintiffs had attempted to engage the NEC without success, the court noted ZAPU’s leadership showed a lack of urgency in addressing grievances, forcing the plaintiffs to seek legal recourse.
The court dismissed the plaintiffs’ claims and upheld Nkomo’s election, but Justice Ndlovu opted not to impose costs on the plaintiffs, acknowledging frustrations they faced in exhausting internal remedies.
“The plaintiffs were compelled to approach the court due to the unresponsiveness of ZAPU’s leadership,” Justice Ndlovu remarked.
“However, courts remain reluctant to close their doors to those aggrieved.”