democratic assembly for restoration & empowerment...

IN THE HIGH COURT OF ZIMBABWEHELD AT HARARE

In the matter between:-

DEMOCRATIC ASSEMBLY FOR RESTORATION & EMPOWERMENT (DARE)STENDR1CK ZVORWADZACOMBINED HARARE RESIDENCE ASSOCIATION NATIONAL ELECTORAL REFORM AGENDA (NERA)

AND

NEWBERT SAUNYAMA N.OTHE COMMISSIONER GENERAL OF POLICETHE MINISTER OF HOME AFFAIRSTHE ATTORNEY GENERAL OF ZIMBABWE

HC8940/2016

1ST APPLICANT2ND APPLICANT 3RD APPLICANT 4TH APPLICANT

IST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT

APPLICANTS’ HEADS OFARGUMENTS

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Prepared by: TENDAI B1TI LAWApplicants’ Legal Practitioners HMB CHAMBERS 28 Rowland Square Milton ParkHARARE 1TB/om/Darel

1ST APPLICANT 2ND APPLICANT 3RD APPLICANT 4TH APPLICANT

IST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT

IN THE HIGH COURT OF ZIMBABWE HC8940/2016HELD AT HARARE

In the matter between:-

DEMOCRATIC ASSEMBLY FOR RESTORATION & EMPOWERMENT (DARE)STENDRICK ZVORWADZACOMBINED HARARE RESIDENCE ASSOCIATIONNATIONAL ELECTORAL REFORM AGENDA (NERA)

AND

NEWBERT SAUNYAMA N.OTHE COMMISSIONER GENERAL OF POLICETHE MINISTER OF HOME AFFAIRSTHE ATTORNEY GENERAL OF ZIMBABWE

APPLICANTS’ HEADS OFARGUMENTS

GENERAL

1. In this matter, the Applicants have instituted legal proceedings in respect of which they seek to set aside Statutory Instrument 101A of 2016 passed by the 1st Respondent in terms of Section 27 of the Public Order and Security Act (POSA). They also seek to set aside, Section 27 of the Public Order and Security Act itself.

2. Pursuant to a case management meeting on the 5th of September 2016 the court directed that the parties must specifically three issue viz:

(a) The issue of urgency;Page 1 of 34

Applicants’ Heads of Arguments in the matter betweenDARE & Others v. Newbert Saunyama N.O & Others

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(b) The issue of the legality of Section 27 of POSA;(c) The legality of S.I 101A of 2016.

3. This address will be loyal to the court’s directive but in the cognisant of the fact that what is being sought at this interim level is an interim interdict.

4. The requirements of an interim interdict, were defined by Innes JA in the famous case of Setlogolo v Setlogolo2 3 4 5 6. The requirements which deal with what the Applicants have to show in this Honourable Court at this stage are the following:

(a) A right which though prima facie establishes is open to some doubt;(b) A well granted of apprehension of irreparable injuries; and(c) The absence of an ordinary remedy. See also Bozimo Trade &

Development Company Limited v Merchant Bank of Zimbabwe Limited & Others 2000 (1) ZLR 1 (Li); Telecel (Pvt) Ltd vPotraz & Others ZW-HHC 447/ HC397/2016; Charuma Blasting & Earthmore Service (Pvt) Ltd v Njainja & Others 2000 (1) ZLR 85 (SC); Eriksen Motors (Welkom) Limited v Protea Motors Warrenton & Another 1973 (3) SA 685 (A.D)

CANONS OF THE CONSTITUTION

5. This case is about power. That is whether the State, can, without respect to the Constitution of Zimbabwe, exercises its power in such a way as to proscribe fundamental rights of the Applicant.

21914 AD 221 at 2273Page 2 of 34

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6. The Constitution of Zimbabwe amongst its administrative obligations of defining the distribution of power is largely about controlling a power.

7. In this regard, there are four principles doctrines that are key in controlling power in the same. These are:-(a) the principle of the rule of law;(b) the doctrine of the supremacy of the Constitution;(c) the doctrine of separation of powers; and(d) the doctrine of illegality

8. However in light of recent attacks made by the President of Zimbabwe, on the judiciary in matters connected with the ban, it is important to stress another principle. This is the principle of the independentof the judicial. This principle will be dealt with as follows:-

Independence of the judiciary

9. The independence of the judiciary is one of the cornerstones of any constitutional democracy such as Zimbabwe.

10. Section 164 of Zimbabwean Constitution reads as follows:-

“(1) The courts are independent and are subject only to this Constitution and the law, which they must apply impartially, expeditiously and without fear, favour or prejudice.

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(2) The independence, impartiality and effectiveness of the courts are central to the rule of law and democratic governance, and therefore -

(a)Neither the State nor any institution or agency of the government at any level, and no other person, may interfere with the functioning of the courts;

(b)The State, thought legislative and other measures, must assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness and to ensure that they comply with the principle set out in Section 165.”

11. It follows from this that the wanton attacks on the judiciary is unconstitutional and unacceptable. The importance of the functional and institutional independence of the courts find expression in the provision that other organ of the State must take measures to “assist and protect” the courts to ensure their “independence, impartiality, dignity, accessibility and effectiveness”.

12. The courts are so powerful and independent that all actions including presidential actions are subordinated to the courts and there is no room for prerogative powers outside the scope of judicial review. See President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC),PharmaceuticalManufacturers Association of South Africa: In re Ex PartePresident of the Republic of South Africa 2000 (2) SA 674 (CC)




13. Judicial independence is sacrosanct and cannot and should not be tempered with.

14. To the extent that the attack on the judiciary at the present moment in time has been made by the President, it is important to make reference to Section 90 of the Constitution of Zimbabwe which defines the duties of the President. It reads as follows:-

“(1) The President must uphold, defend, obey and respect thisConstitution as the supreme law of the nation and must ensure that this Constitution and all the other laws are faithfully observed.

(2) The President must -

(a) Promote unity and peace in the nation for the benefit and wellbeing of all the people of Zimbabwe;

(b) Recognise and respect the ideals and values of the liberation struggle;

(c)Ensure protection of the fundamental human rights and freedoms and the rule of law; and

(d) Respect the diversity of the people and communities of Zimbabwe. ”

15. It is now important to underscore the other cannons of the law which are critical in the present application.

16. The canons that are at the core of the instant matter and will now be dealt with seriatim, as follows:-


Case Numbers HC8940/20165th September 2016


The rule of law

17. This application, is about the rule of law. The rule of law is a concept that deals with power, its use, abuse but more importantly its regulation. The principle of the rule of law, is a foundational principle of our Constitution.

18. The rule of law is inextricably linked and connected to the principle of legality. Legality donates that any action and exercise of power must be legal and must be within the full confines of the law. Arbitrariness, is thus tangential to the concept of the rule of law and legality.

19. A. V. Dicy, “An introduction to the study of law of the Constitution”, developed the concept of the rule of law to denote the same a basic concept to protect individual rights by requiring the government to act in accordance with preannounce, clear and general rules that are enforced by impartial courts in accordance with fairness. See for instance Commercial Farmers Union v Minister of Lands and Agriculture and Resettlement in Zimbabwe 2001 (2) SA 925 (ZS).

20. This Honourable Court, in its interpretation of this case as in any other case, is also obliged to follow and uphold the principles of the rule of law. Section 165 of the Constitution defines the principles guiding judiciary. It reads as follows:-

“165: In exercising judicial authority, members of the judiciary must be guided by the following principles -




(a) Justice must be done at all, irrespective of status;(b) Justice must not be delayed, and to that end members of the

judiciary must perform their judicial duties efficiently and with reasonable promptness;

(c)The role of the courts is paramount in safeguarding human rights and freedoms and the rule of law”

21. The Oxford Dictionary of Law, 7th Edition 2009, defines the word ‘paramount’ in the following terms:-

“Superior; having or donating a better right or title.”

22. If something is paramount then it is capital, cardinal, leading, commanding, predominant or preeminent.

23. However, it is not just the courts alone which have the duty of upholding and protecting the rule of law.

24. The notion of the rule of law, has been debated in a number of decisions. See Bernstein v Bester 1996 (2) SA 751 (CC) para [105]} Matatiele Municipality v President of the RSA 2006 (5) SA 47 (CC) para [100] were the following was stated:-

“Fundamental to the rule of law is the notion that government acts in a rational rather than an arbitrary manner, and Our Constitution accordingly requires that all legislation be rationally related to a legitimate government purpose. If not, it is inconsistent with the rule of law and invalid” ; De Lange v




Smuts 1998 (3) SA 785 (CC) para [31].: “As this case demonstrates, far from the foundational values of the rule of law and of accountable government existing in discreet categories, they overlap and reinforce each other. Openness of government promotes both the rationality that the rule of law requires, and the accountability that multi-party democracy demands. In our constitutional order, the legitimacy of laws made by Parliament comes not from awe, but from openness. ”

25. Put differently, the concept of the rule of law, is concerned with the exercise of public power. This case, concerns the abuse of public power by a political party and by State institutions. This is why the submission was made at the beginning that this case is all about the rule of law.

26. In Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa 2000 (2) &4 674 (CC) the South African Constitutional Court stated as follows:-

“It is a requirement of the rule of law that the exercise of public power by the executive and other functionaries should not be arbitrary. Decision must be rationally related to the purpose for which the power was given, otherwise they are in effect arbitrary and inconsistent with the requirement. It follows that in order to pass constitutional scrutiny the exercise of public power by the executive and other functionaries must, at least, comply with this requirement. If it does not, it falls short of the standards demanded by our Constitution for such action.”


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27. In this very important judgment, the Constitutional went on to hold that the President Mbeki’s decision to bring an Act of Parliament into operation was not objectively rational and was therefore invalid. Put differently, the Court questioned the exercise of a Constitutional power by the President even thought such power was provided for in the law.

28. It is respectfully contended that the 1st Respondent’s actions of issuing the ban through S.I 101 A, is a fundamental breach of the rule of law. As will be pointed out below, the actions were primitive and without any legal authority at all.

Supremacy of the Constitution

29. This flows naturally from Section 2 of the Constitution, which provides as follows -

“(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them.”

30. Also the National Gambling Board v the Premier of KwaZulu-Natal 2002 (2) SA 715 (CC) para [23]: “It is true that in aconstitutional state all public power is derived from the Constitution.”




31. Section 2 of the Constitution, is verbalising, the foundation of the broad inclusive and open ended language, anchored around democracy in a constitutional state (Reichtstaat).

32. The supremacy of the Constitution itself, becomes an anchor and a value that needs to be decisively protected within the limits of the Constitution itself. In Executive Council of the Western Cape Legislator and Others v President of the Republic of South Africa and Others 1995 (4) SA 877 (cc), the South African Constitutional Court in one of its decisive decisions stated as follows:-

“Constitutional cases cannot be decided on the basis that Parliament or the President acted in good faith or on the basis that there was no objection to action taken at the time that it was carried out. It is of crucial importance at this early stage of the development of our new Constitutional order to establish respect for the principle of that the Constitution is supreme. The Constitution itself allows this Court to control the consequences of a declaration of invalidity if it should be necessary to do so. Our duty is to declare legislative and executive action which is inconsistent with the Constitution to be invalid, and then to deal with the consequences of the invalidity in accordance with the provisions of the Constitution. ”

33. Section 2 of the Constitution of Zimbabwe, makes this court, the superior watch dog in respect of any actions and any decisions by



5 th September 2016Prepared by Tendai Biti Law

any other board. Thus where the President acts unlawfully, the Constitution does not apologise for giving this court the powers of bringing the President to book.

34. See for instance Pharmaceutical Manufacturers of South Africa: In re Ex Parte President of the RSA 2000 (2) SA 674. See also President of the Republic of South Africa v South Africa Rugby Football Union 2000 (1) SA 1 (CC), Executive Council of the Western Cape Legislator and Others v President of the Republic of South Africa and Others 1993 (4) SA 877 (CC).

35. The Constitution binds the Respondents severally, each in its own capacity and province. It also binds the applicants;

36. Where any of the respondents have breached the Constitution, they must be held responsible for that breach and stopped from furthering or benefiting from it.

37. The point being made in casu is that the 1st Respondent proceeded to make delegation and subordinate legislation purportedly on the basis of Section 134 of the Constitution of Zimbabwe yet in fact, he has no such delegated powers from Public Order Security Act, or from any other source.

38. The 1st Respondent, a mere policeman thus abrogated himself the power of Parliament. In fact so bad, are the lst Respondent’s actions that he abrogated upon himself powers which even the Minister himself does not have.




Legality

39. It submitted that Zimbabwe is a constitutional State in which the exercise of public power is dependent on the principle of legality. It is further submitted that the constitutional task of this Court is to control the exercise of that public power in order that it conforms to the principle of legality:

See: Pharmaceutical Manufacturers Association of SA and Another; In re Ex parte President of the Republic of South Africa 2000 (2) SA 674 (CC) (2000 (3) BCLR 241) at para [45]; Ngxuza & Others v. Permanent Secretary, Department of Welfare, Eastern Cape, and Another 2001 (2) SA 609 [618E-G]: “The starting place to determine our assumptions is the Constitution (the Constitution of the Republic of South Africa Act 108 of 1996) and its definitive interpretation by the Constitutional Court. Ours is a constitutional State where the exercise of public power is dependent on the principle of legality. The constitutional task of the Courts is to control the exercise of public power so that it conforms to the principle of legality. ”

40. The principle of legality requires all State action to be authorised by the Constitution or law. Thus legality is premised on the foundational value that there must be lawful authorisation for the exercise of public power. This found expression in Eedsure Life Assurance Ltd v. Greater Johannesburg Transitional Metropolitan




Council1 where the Constitutional Court of South Africa stated that -

“It seems central to the conception of our constitutional order that the legislature and executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon the, by law. At least in this sense, then, the principle of legality is implied within the terms of the interim Constitution. Whether the principle of the rule of law has greater content than the principle of legality is not necessary for us to decide here. We need merely hold that fundamental to the interim Constitution is a principle of legality.”

40.1 In that same case, the Court stated that the principle of legality is a value-neutral procedural requirement along the lines of the common law ultra vires doctrine. Where it is not complied with, the resultant conduct is void.

URGENCY

41. It is respectfully submitted that under ordinary circumstances, a party bringing a matter on an urgency basis, gains considerable advantage over other therefore must show the basis of preferential treatment.7 8 9 10

42. It has to be pointed out that urgent applications, particularly those in respect of which a provisional order or a rule nisi is asked for, are fully embedded in Zimbabwean practice.

7 Fedsure Life Assurance Ltd v. Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC).8See for instance Mayor Logistics (Pvt) Ltd v ZRA 2014 (2) ZLR 78 (C) at 88D

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43. They are accepted as a means of procedure and as a normal way of litigation.

44. In Safcor Forwarding (Johannesburg) Pty Ltd v National Transport Commission4 Corbett J stated as follows

“The procedure of a rule nice is usually resorted to in matters of urgency and where the Applicant seeks interim relief in order adequately to protect his immediate interest. It is a useful procedure and one to be encouraged rather than discouraged in circumstances where the Applicant can show, prima facie, that his rights have been infringed and that he will suffer real loss or disadvantage if he is compelled to rely solely on the normal procedures for bringing disputes to the court by way of notice of motion or summons. The rule nisi procedure must be considered in conjunction with the provisions of Rule 6 (12).”

45. Equally in Development Bank of Southern Africa Ltd v Van Rensburg NNO 2002 (5) SA 425 (SCA), Nienaber J dealing with the rule nisi stated as follows

“An interim order is by its very nature both temporal and provisional; its purpose is to preserve the status quo pending the return day.”

46. In casu, it is respectively submitted that where, there is a serious breach of constitutional rights such as in this matter, then, that alone justifies urgency. 11 12

11 1982 (3) SA 675A at 67H-675APage 14 of 34

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47. It is respectively contended that if the courts are the watchdog of this Constitution and if as defined by Section 165 (1) (c) of the Constitution, the role of the courts is paramount in safeguarding human rights and freedoms and the rule of law, then that special role requires a special treatment of cases and matters concerning the abuse and an fraction on rights.

48. The submission being made is not that in every constitutional matter is urgent. There is a difference in respect of which, an Applicant is asserting a right which under ordinary circumstances had already been taken away by law and was assumed to be the correct position. So an application for instance to challenge corporal punishment which is part of our law even an application to challenge child marriages, would not have been considered as urgent.

49. Where existing rights are being taken away, that is a different kind of court application, that application becomes urgent and immediate.

50. Any assault on the specific rights given in the Constitution particularly easily ascertainable first generation rights, must on its own merit urgency.

51. In casu, the Respondents’ position is that because Section 27 in existence since the enactment of POSA the application is not urgent.

52. The Respondents miss the point completely. The causa of the urgency, is the harm that has been created by SI 101A of 2016. In this regard the Applicants, filed the instant application less than 24 hours after the publication of SI 101A of 2016.

53. The enactment of SI 101A of 2016 is a continuing infringement. A continuing infringement justifies immediate urgency. See the remarks of




Mafusire J in ZLHR v Minister of Transport1. In this case, JusticeMafusire stated as follows:'

“if the regulations were the kind of harm against which the law invented the remedy for an interdict, then it is continuing harm. For as long as it is a continuing harm the Applicant invoke the assistance of the court.”

54. Even if this was not a constitutional application, the Applicants have laid out the basis of the urgency. NERA for instance intends to hold a march on Friday, others intends to hold their marches on Thursday.

55. Although Justice Bere remarked that there was no standard formula to

determine whether or not an application is urgent. See Dodhill (Pvt)

Ltd & Another v. Minister of Lands and Rural Resettlement &

Another 2009 (1) ZLR 182(H), it is clear from a close perusal of the

cases that they are definitive principles that the courts will apply.

56. For instance, in Kuvarega v. Registrar General & Another supra,

Justice Chatikobo stated as follows:'

“What constitutes urgency is not only the imminent arrival

of the day reckoning; a matter is urgent,, if at the time the

need to act arises, the matter cannot wait.” 13 14

132014 (2) ZLR 44Page 16 of 34

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57. Equally, Justice Gowora in Triple C Pigs & Another v. Commissioner

General - Zimbabwe Revenue Authority 2007 (1) ZLR 27 (H) at page 31A -

B stated as follows:-

“As courts, we therefore have to consider, in the exercise of

our discretion, whether or not a litigant wishing to have the

matter treated as urgent has shown the infringement or

violation of some legitimate interest, and whether or not the

infringement of such interest, if not redressed immediately,

would not be the cause of harm to the litigant which any

relief in the future would render a brutum fulmen. ”

58. The same point was made by, Justice Gilliespie in General Transport &

Engineering (Pvt) Ltd & Others v. Zimbank 1998 (2) ZLR 301 (H) at 302.

In Document Support Centre (Pvt) Ltd v. Mapovure 2006 (2) ZLR 232 (H)

at 243 E - F Justice Makarau

stated as follows:-

“I understand Chatikobo ] in the above remarks to be saying that

a matter is urgent if when the cause of action arises giving rise to

the need to act, the harm suffered or threatened must be redressed

or arrested there and then, for in waiting for the wheels of justice

to grind at their ordinary pace, the aggrieved party would havePage 17 of 34




irretrievably lost the right or legal interest that seeks to protect

and any approaches to court thereafter on that cause of action

will be academic and of no direct benefit to the applicant ”

59. The same point had in fact been made by Gilliespie J in General

Transport & Engineering (Pvt) Ltd & Others v. Zimbank 1998 (2) ZLR 301

(H) at 302.

60. It is also trite that, an urgent application, will be heard even in

commercial matters. This point is now trite. In the leading case of

Silver's Trucks (Pvt) Ltd & Another v. Director of Customs and

Excise 1999 (1) ZLR 490 (H), the Respondent, the Director of Customs

and Excise had attached Applicant’s goods. The

application was for the release of goods held by customs. Urgency was

pleaded on the basis that the Applicant could go into liquidation and that

sixty-seven (67) employees would lose their jobs. Smith J had no

hesitation in holding that:-

“Having regard to the proper or consequences to the

applicant and their employees if the application is not dealt

without further delay, I consider that the certificate of

urgency is justified”.




61. The same approach has been accepted in a number of decisions

including Uchena J’s judgment in African Tribune Newspapers (Pvt) Ltd

& Others v. Media Information Commission & Another 2004 (2) ZLR 7(HI

62. Applying the above to the instant matter, it is so obvious that the

Applicants’ fundamental rights are being infringed and affected. The

Applicants have acted with urgency and speed and therefore without a

doubt this matter is urgent. It is hard to imagine any other case which

can be more urgent that the instant matter.

THE CONSTITUTIONALITY OF SECTION 27 OF POSA

63. At this present moment in time, this court cannot declare whether

Section 27 is constitutional or not. This court is simply concerned with

whether or not the rule nisi or provisional order can be issued which

suspends SI 101A of 2016.

64. However, the court has to consider this point whether there is a prima

facie case illegality in respect of Section 27.

65. Section 27 (1) of the POSA reads as follows:-




“If a regulating authority for any area believes on reasonable grounds that the powers conferred by Section 26 will not be sufficient to prevent public disorder being occasioned by the holding of processions or public demonstrations or any class thereof in the area or any part thereof, he may issue an order prohibiting, for a specified period not exceeding one month, the holding of all public demonstrations or any class of public demonstrations in the area or part thereof concerned. ”

66. It is respectfully submitted that Section 27 (1) contains such a sweeping

wide power of the proscription of public processions and demonstrations

in an area for a substantial period not exceeding one month.

67. The net effect of such proscription is to infringe several rights in the

Constitution.

68. These include the following rights Section 58 Freedom of assembly and

association, Section 59 Freedom to demonstrate and petition, Section 61

Freedom of expression and freedom of the media, Section 66 Freedom

of movement and residence, Section 67 (2) The right to participate in

political rights including the right to campaign freely and peacefully

political for any political party or cause, the right to participate in

peaceful political activity and the right to participate individually or

collectively in gatherings orPage 20 of 34




groups or in any other manner in peaceful activities to influence

challenge or support the policies of the government or any political or

whatever cause.

69. Our law, and constitution, allows the suspension of the Bill of rights

only in a situation of a public emergency. This is so as a result of

Section 87 of the Constitution of Zimbabwe.

70. The net effect of Section 27 (2) in fact through a backdoor is to impose

a state of emergency. This is not proper this is unconstitutional.

International Law and right to peaceful assembly

71. The right to peaceful assembly, is a fundamental right provided for in

international law. Article 11 of the European Convention on Human

Rights adopted on 3 September 1953 protects the right to peaceful

assembly with the caveat that state parties may impose certain limitation

on the exercise of this right. However such restrictions must be;

(a) Prescribed by law;

(b) Necessary in a democratic society and; and




(c) In the interest of national security of public safety.

72. Article 20 of the Universal Declaration of Human Rights also confirms

the right of everyone to freedom of peaceful assembly and association.

73. The African Charter on Human and People’s Rights in articles 10, 11

and 12 provide for the right to freedom of association, freedom of

assembly and freedom of movement.

Limitation of rights

74. In casu, there is no question that the debate is not about the existence of

the rights defined above.

75. The debate is also not about whether Section 27 does not infringe that

right.

76. Surely to proscribe such rights for a month clearly is placing the same in

the ream of unconstitutionality.

77. The simple issue at hand, is whether or not, Section 27(1) of POSA can

be served by the limitation of rights and freedoms clausePage 22 of 34




contained in Section 86 of the Constitution. This provides that

fundamental rights and freedom set out in the Bill of Rights may be

limited only in term of a law of general application and to the extent that

the limitation is fair, reasonable, necessary and justifiable in a

democratic society based on openness, justice, human dignity, equality

and freedom.

78. Thus if the court finds that there is an infraction of the Bill of Rights,

then the second inquiry is to proceed Section 86 (2).

79. To expand on Section 86 (2) of the Constitution, it is submitted that it is

for the Respondents to justify that a particular law which the court

would found that infringes a right is a legitimate. The burden of

justification is one that follows on the respondents. See Nyambirai v

NSSA & Another 1995 (2) ZLR 1 (S), State v Makwenyane 1995 (3)

SA 391 (CC) para 1-2, National Coalitions for Gays and Lesbians

Equality v Minister of Justice 1999 (1) SA 6.

80. It is also important to underscore the point that in the second stage of the

inquiry the court’s department from the generous broad interpretation to

that of a strict approach.

81. Furthermore, in disposing of this particular application a court will not

be able to make a decision whether the limitation is reasonable,Page 23 of 34




necessary, justifiable in an open democratic society based on human

dignity equality and freedom without evidence and data. See for an

instance Cameroon J in State v Mieka 1998 (8) BCLR 1038. Failure to

provide the relevant data and statistics justifying the limitation is fatal.

See for instance Philips v Director of Public Prosecutions 2003 (3) SA

43, Moiese v Greater Jameston Transitional Local Council 2001 (4)

SA 491 (CC).

82. In casu, the Respondents have provided no evidence why which will

justify a ban for a month or any shorter period. The reason is simple that

evidence does not exist.

83. The people of Zimbabwe and indeed the Applicants are peaceful. All the

marches and protests that have so far happened as is evident from their

papers have been peaceful. The only instances of violence have arisen

out of the conduct of the police itself which is in sighted its people.

84. It is also common cause as is evident from their papers that other

marches that have taken place for instance the so called one million

march, are all instances where marches has taken place without violence

in Zimbabwe.




85. A comparative examination in other jurisdictions shows that whilst it is

legitimate proper to proscribe public demonstrations, there is no

justification for the imposition of a curfew or a provision of prohibition

order as envisaged in Section 27.

86. The Applicants will present an analysis of public gathering laws in

Canada, France, Italy, Portugal, Spain, Sweden, United Kingdom,

United States, Malawi, Zambia, Ghana and Republic of South Africa

which all show that there is none of those countries do you find a

provision similar to Section 27.

87. In some jurisdictions, a provision similar to Section 27 exist but only for

a few days and in any event the order is not issued by a policeman but

by court or a chief secretary to cabinet.

88. Zimbabwe’s Section 27 is without precedent. In other words it is not

found in constitutional regimes.

89. In the circumstances, it is argued that for the purposes of this application

and for the purposes of issuance of a provisional order, we have shown

that there is a strong prima facie case that Section 27 is unconstitutional.




LEGALITY OF SI 101 OF 2016Breach of Section 134 of the Constitution of Zimbabwe

90. Section 134 of the Constitution makes it clear that Parliament, may in Act of Parliament, delegate power to make subordinate legislation on certain conditions that are defined in Section 134(a)-(f).

91. Nowhere in the Public Order Security Act is a power given to the regulating authority nor to the Commissioner of Police nor the Minister of making regulations.

92. Thus, in casu, the 1st Respondent has abrogated upon himself powers that he did not have. In short the 1st Respondent has acted absolutely illegally and unconstitutionally.

93. It is not just the 1st Respondent that is guilty in this matter. The regulations were crafted by the 4th Respondent the Attorney General of Zimbabwe.

94. Unlike most regulations which make reference to the particular section of a legislation that empowers the same, the regulations fell dismally in identifying the empowering legislation.

95. A statutory instrument is law. The Interpretation Act [Chapter1:01] defines a statutory instrument as follows

“Statutory instrument means any proclamation, rule, regulation, bylaw, order notice or other instrument having the




force of law made by the President or any other person or board under any enactment. ”

96. An Act of Parliament includes any statutory instrument made and enforce under the act. This is so as a result of Section 2 of the Interpretation Act.

97. Furthermore, we know from cases such as Masasi v PTC? and Gumbo v Norton Selous Rural Council1 that a statutory instrument once enacted is on bar with an act of Parliament.

98. Thus, the minute that regulating authority chose to publishes an order in the form of an enactment, he made law when he had no power to make law.

99. He acted outside the Constitution of Zimbabwe.

100. Moreover, Section 27 of the Public Order Security Act itself makes it clear that he cannot make a law, he cannot make regulations, he can only issue a notice to be published in the gazette or in a newspaper circulating within the area.

101. Where subordinate legislation is made outside the powers that exist in the enabling legislation that subordinate legislation will be null and void.

102. The South African Supreme Court, and Constitutional Courts, have in many occasions declared subsidiary legislation, 15 16

15 1991 (2) ZLR 403 (H)16 1990 (2) ZLR 403 (S)

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ultra vires, where powers have been exceeded. Thus in Minister of Correctional Services v Kwakwa 2002 (4) SA 455 (SCA) the Supreme Court of Appeal held that the Commissioner of Correctional Services had acted beyond his powers in determining a new system of privileges for unsentenced prisoners.

103. Similarly in Minister of Home Affairs v Watchenuka & Another 2004 (4) SA 326, the court held that the Minister’s power to make Regulations relating to asylum did not include the power to prohibit an asylum seeker from taking up employment.

104. In Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) the court held Regulations were ultra vires empowering legislation which Regulations prevented competition amongst pharmaceutical companies. See also AA Investments (Pvt) Ltd v Micro Finance Regulatory Council 2007 (1) SA 343 (CC); New Clicks South Africa (Pty) Ltd v TshahalalaMsimang 2005 (2) SA 530, BP SA (Pty) Ltd v Mec Ace and Land Affairs 2004 (5) SA 124 (W) at 159/6; MEC Agriculture v Sasol Oil (Pvt) Ltd 2006 (5) SA 483 (SCA); Sasol Oil (Pty) Ltd & Another v Metcalfe NO 2004 (5) SA 165;

105. The Constitutional Court’s decision in Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 merits attention. For starters, it reinstated the aspect of the rule of law, codified by Section 2 of our Constitution which is in fact similar to our Constitution. It then proceeded to emphasise that the




exercise of public power must comply with the Constitution and therefore with the doctrine of legality. Paragraphs 48 and 49 of that judgment are useful. In those paragraphs Ngcobo J stated as follows:-

“48 - Our Constitutional democracy is founded on, among other values, the ‘supremacy of the Constitution and the rule of law’. The very text provision of the Constitution declares that the ‘Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid’. And to give effect to the supremacy of the Constitution, courts ‘must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency. This commitment to the supremacy of the Constitution and the rule of law means that the exercise of all public power is now subject to Constitutional control.

49 - The exercise of public power must therefore comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law. The doctrine of legality, which is an incident of the rule of law, is one of the Constitutional controls through which the exercise of public power is regulated by the Constitution. It entails that both the Legislature and the Executive ‘are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law. In this sense the Constitution entrenches the principle of legality and provides the foundation for the control of public power.”



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106. For the sack of completeness, it is submitted that the power of the courts, to determine the legality of delegated legislation is not unique in Zimbabwe or South African law. English law is replete with that and reference is made to cases such as Attorney General v Willts United Dairies Limited 1921 (37)TLR 884, Chester v Bestson 1921 KB 29\ R v Halidare, Ex Parte Zodic 1917 AC 260\ Four and Co (Leeds) v Darken 1941 CH450.

107. It also need to be stated that in general terms, where there is delegation of power by Parliament, there is a strict approach adopted by the courts in looking at the delegated legislation.See Executive Council\ Western Cape Legislature vPresident of the Republic of South Africa 1995 (4) SA 877 (CC); Justice Alliance of South Africa v President of Republic of South Africa 2011 (ZACC23).

Failure to respect the right to be heard

108. The decision taken by the 1st Respondent was clearly an administrative decision. An administrative decision is described in the definition section of the Constitution that is to say Section 332.

109. In this section administrative conduct is defined as follows:-

“Includes any decision, or omission of a public officer or of a person performing a function of a public nature and a failure or refusal of such person to reach such a decision or to perform such an act. ”




110. Quite clearly therefore, the decision of the 2nd Respondent is administrative conduct.

111. Section 68 of the Constitution reads as follows:-

“(1) Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial, and both substantively and procedurally fair.

(2) any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writng the reasons for the conduct.(3) an Act of Parliament must give effect to these rights, and must -(a) provide for the review of administrative conduct by a court or, where appropriate, by an independent and impartial tribunal;(b) impose a duty on the State to give effect to the rights in subsections (1) and 92); and(c) promote an efficient administration.”

112. The Respondents greatly erred in issuing the regulations without respecting the right of the Applicants to be heard.

113. Section 68 is sacrosanct and ought to have been respected.

114. The right to be heard, is essentially the cornerstone of what the Americans in their jurisprudence describe as due process of the law




or simply fundamental justice. The bundle of rights are principles of procedural fairness viz:-(a) The right to have notice of the charge;(b) The right to be heard;(c) The right to an impartial hearing17

115. The right to be heard, commonly known as the audi alteram partem rule, is at the cornerstone of our administrative law. Procedural fairness, in the form of the audi partem rule, is concerned with granting individuals an opportunity to participate in the decisions which will affect them and crucially, a chance of influencing the outcome of these decisions. Without this right, there is no rule of law and fairness. See for instance Janse van Renshurg NO v Minister of Trade and Industry 2001 (1) SA (29 (CC); Administrator, Transvaal v Traub 1989 (4) SA 731 (A); Premier Mpumalanga v Executive Committee Association of State Schools 1999 (2) SA 91 (CC); Minister of Public Works v Kyalami Region Environment Association 2001 (3) SA 1151 (CC); Zondi v MEC for Traditional & Local Government Affairs 2005 (3) SA 589 (CC).

116. So in simple terms the point being made is that constitutionally, the Respondents had an obligation to hear the Applicants including the organisations that have been specifically been involved in marches

17See Holland and Others v Minister of Public Service Labour & Social Welfare 1997 (1) ZLR 186, Board of Regents of State Colleges vRoth (1972) 408 US 564, Marumahoko v Chairman Public Service Commissions and Another 1991 (1) ZLR 27 (HC), Taylor v Minister of Higher Education 1996 (2) ZLR 77 (S), Jenkins v Government of the Republic of South Africa 1996 (8) VCLE1059 (TK), Administration Transvaal & Others v Traub 1989 (4) SA 731 (A), Zenzile v Administration Transvaal 1991 (SA) 21 A, Administrator Natal v Sibiya 1992 (4) SA 534 (A), McGown v Health Professions Council 1994 (1) ZLR 86 (H), Metsola v Chairman, Public Service Commission 1989 (3) ZLR 147 (S), Gennic v Minister of Justice, Transkei 1993 (2) SA 276.

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and processions in the past few weeks who had a legitimate expectation to be heard.

117. These organisations include #tag tajamuka and #tags sisijikile, #tag occupy Africa, #tag enough is enough; #tag beat the boats campaign; #tag together another Zimbabwe is possible, #tag no to bond notes and #tag Mugabe must go.

118. The organisations also include the political parties under the umbrella of the 4th Applicant as well as the individual political parties who have been at the centre of these demonstrations.

119. The audi alteram paterm rule, ironically is incorporated in Section 27 of the Public Order Security Act. These make it clear that the Respondents were obliged to circulate the notice before publishing the same.

120. The wording of Section 27 (2) is clear that the obligation to publish was mandatory.

Breach of fundamental rights

121. Even assuming that the regulations where legitimate in terms of Section 134, then, they still had to comply with the other requirements of Section 134.

122. Section 134 is clear that no subordinate legislation shall infringe upon the Bill of Rights.

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123. In casu the regulations clearly infringes on Section 58, Section 59, Section 61, Section 62, Section 66 and Section 67 of the Constitution of Zimbabwe.

124. The breaches are self explanatory and will be dealt with separately in oral submissions.

125. The bottom line is that this is a blatant breach of the Applicants’ rights and it is prayed that the provisional order must be issued.

DATED AT HARARE ON THIS 5th DAY OF SEPTEMBER 2016.

TENDAIBITI LAWApplicants’ Legal Practitioners

HMB CHAMBERS 28 Rowland Square Milton Park

HARARE ITB/om/Darel

TO: THEREGISTRARHigh Court of Zimbabwe HARARE

And To: Civil Division of theAttorney General’s OfficeRespondents’ Legal Practitioners 2nd Floor* Block A New Government Complex HARARE




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