ZAPU president Sibangilizwe Nkomo can breath easier after the High Court threw out a challenge seeking the nullification of the nomination and election that ushered his presidency three years ago.
Mathew Sibanda, Echem Nkala, Gedeon Dlamini, Earnest Ndlovu and Mildred Mkandla had dragged Zapu, Nkomo and Dereck Kutsenga to the courts over the matter.
The applicants were former Zapu members who held various positions in the executive in Matabeleland South province.
Nkomo was nominated and subsequently elected to the presidency of Zapu at an elective congress in October 2021.
The applicants sought the striking off of a section in the Zapu constitution forbidding members from approaching the courts without the leave of the Zapu national executive committee.
They alleged that Nkomo did not qualify for nomination as he did not meet the criteria required for one to be elected president.
The applicants also submitted that Nkomo, joined the party in 2010 and ceased to be a member in 2011 when he did not renew his membership card due to failure to pay subscriptions.
They further submitted that Nkomo rejoined the party in 2019, adding that he did not meet the five-year membership threshold set by the national peoples committee for presidential candidates.
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The group claimed that section 8:19 of Zapu constitution is unconstitutional.
However, Zapu and Kutsenga argued that Nkomo is eligible to stand for nomination as a party member since 2010 in the Mahetshe branch in Matobo North.
They also argued that the applicants should have exhausted domestic remedies before approaching the courts.
Three of the five applicants testified before Bulawayo High Court judge Justice Bongani Ndlovu.
However, Justice Ndlovu ruled that the applicants were not consistent on the point that once a member fails to pay his subscription fee, he automatically ceases to be a party member.
The judge said despite their testimony, none of the applicants showed the court the clause in their constitution dealing with or supporting their assertion regarding the lapsing of membership on account of non-payment of subscriptions.
“Their failure to point to a clause and the fact of allowing members in arrears to pay up their arrears and put in order their standing on the eve of the congress served to buttress the evidence of one of the applicants where he said non-payment of subscriptions did not affect one’s membership of the party.
“Nkomo's membership did not lapse in 2011. He joined in 2010. Whatever he did about paying subscriptions between 2012 and 2019 is immaterial. He was a member for over five years and in good standing by June 2021 when he was nominated,” the judge said.
Justice Ndlovu said Zapu was a voluntary organisation with members glued together by its constitution.
“Section 8:19 provides for a process to be followed before one takes the party to court. It does not bar party members from taking the party to court but provides for a procedure to be followed. Even if it were to be taken that the laying down of that procedure is onerous and undemocratic on the face of it, limitation of a right is not uncommon in a democracy. It would be unconstitutional had it barred its members from taking the party to court. It does not,” Justice Ndlovu ruled.
“From the evidence on record, the applicants did not exhaust the domestic remedies provided for in Zapu’s Constitution. However, it is not that they did not try.
“The evidence on record exhibits a draught of zeal on the part of those in charge of the domestic mechanisms to seriously engage their disgruntled colleagues over their grievances.”
The judge said the fact that the matter was referred to trial at the pre-trial conference should have been an indicator to the parties to drop the issue saying courts are reluctant and slow to close their doors to anyone aggrieved.
