DEMOCRATIC ASSEMBLY FOR RESTORATION & EMPOWERMENT (DARE) & ORS v SAUNYAMA NO & ORS

HIGH COURT, HARARE

[Urgent Chamber Application HH 554-16]

September 5, 7 and 23, 2016

CHIGUMBA J

Constitutional law – Constitution of Zimbabwe, 2013 – Declaration of Rights – Section 59 – Right to demonstrate and to present petitions – Public Order and Security Act [Chapter 11:17] – Section 27 – Power of regulating authorities to impose temporary prohibition of holding of public demonstrations within particular police districts – Whether provision providing for such power is constitutional.

Constitutional law – Constitution of Zimbabwe, 2013 – Declaration of Rights – Section 86 – Limitation of rights and freedoms – Public Order and Security Act – Section 27 – Whether section provides a permissible limitation on the right to demonstrate and to present petitions.

Acting in terms of s 27 of the Public Order and Security Act [Chapter 11:17], the police authorities issued a notice proclaiming their intention to ban processions and public demonstrations in the Central Business District of Harare, for a period of one month. By a subsequent notice in the Government Gazette, the ban was brought into effect. The applicants approached the High Court, challenging the validity of the ban. They argued that s 27 of the Public Order and Security Act contravened s 59 of the Constitution of Zimbabwe, 2013 and was therefore invalid.

Held, that while s 27 of the Public Order and Security Act is a prima facie infringement of the right to demonstrate and to present petitions, it is nevertheless constitutional as a justifiable limitation of those rights under s 86 of the Constitution. It is fair, reasonable, justifiable and necessary in a democratic society.

Cases cited:

AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2007 (1) SA 343 (CC), referred to

Administrator, Transvaal, and Others v Traub and Others 1989 (4) SA 731 (A), referred to

Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC), referred to

Attorney-General v Wilts United Dairies Limited (1921) 37 TLR 884, referred to

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC), referred to

Bozimo Trade and Development Co (Pvt) Ltd v First Merchant Bank of Zimbabwe Ltd & Ors 2000 (1) ZLR 1 (H), referred to

BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs 2004 (5) SA 124 (W), referred to

Charuma Blasting & Earthmoving Services (Pvt) Ltd v Njainjai & Ors 2000 (1) ZLR 85 (S), referred to

Chester v Bateson [1920] 1 KB 829, referred to

Church of the Province of Central Africa v Diocesan Trustees, Diocese of Harare 2010 (1) ZLR 346 (H), referred to

Commercial Farmers Union v Minister of Lands & Ors 2000 (2) ZLR 469 (S), referred to

De Lange v Smuts NO and Others 1998 (3) SA 785 (CC), referred to

Development Bank of Southern Africa Ltd v Van Rensburg and Others NNO 2002 (5) SA 425 (SCA), referred to

Eriksen Motors (Welkom) Ltd v Protea Motors Warrenton and Another 1973 (3) SA 685 (A), referred to

Executive Council, Western Cape Legislature and Others v President of the Republic of South Africa and Others 1995 (4) SA 877 (CC), referred to

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC), referred to

Fowler (John) & Co (Leeds) v Duncan [1941] Ch 450, referred to

Gumbo v Norton-Selous Rural Council 1992 (2) ZLR 403 (S), referred to

Holland & Ors v Minister of the Public Service, Labour and Social Welfare 1997 (1) ZLR 186 (S), referred to

Janse van Rensburg NO and Another v Minister of Trade and Industry and Another NNO 2001 (1) SA 29 (CC), referred to

Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188 (H), referred to

Madzivanzira & Ors v Dexprint Investments (Pvt) Ltd & Anor 2002 (2) ZLR 316 (H), referred to

Mafu & Ors v Solusi University HB 53-07 (unreported), referred to

Marumahoko v Chairman of the Public Service Commission & Anor 1991 (1) ZLR 27 (H), referred to

Masasi v Posts and Telecommunications Corporation 1991 (2) ZLR 73 (H), referred to

Matatiele Municipality and Others v President of the RSA and Others 2006 (5) SA 47 (CC), referred to

Mayor Logistics (Pvt) Ltd v Zimbabwe Revenue Authority 2014 (2) ZLR 78 (CC), referred to

McGown v Health Professions Council 1994 (1) ZLR 86 (H), referred to

MEC for Agriculture, Conservation, Environment and Land Affairs v Sasol Oil (Pty) Ltd and Another 2006 (5) SA 483 (SCA), referred to

Minister of Correctional Services v Kwakwa and Another 2002 (1) SACR 705 (SCA); 2002 (4) SA 455 (SCA); [2002] 2 All SA 242, referred to

Minister of Home Affairs and Others v Watchenuka and Another 2004 (4) SA 326 (SCA), referred to

National Gambling Board v Premier, KwaZulu-Natal 2002 (2) SA 715 (CC), referred to

New Clicks South Africa (Pty) Ltd v Tshabalala-Msimang and Another NNO; Pharmaceutical Society of South Africa and Others v Tshabalala-Msimang and Another NNO 2005 (2) SA 530 (CC), referred to

Ngxuza and Others v Permanent Secretary, Department of Welfare, Eastern Cape, and Another 2001 (2) SA 609 (E), referred to

Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC), referred to

Premier, Mpumalanga and Another v Executive Committee, Association State-Aided Schools, Eastern Transvaal 1999 (2) SA 91 (CC), referred to

R v Halliday, Ex parte Zadig [1917] UKHL 1; [1916] 1 KB 738; [1917] AC 260, referred to

Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission 1982 (3) SA 654 (A), referred to

Sasol Oil (Pty) Ltd and Another v Metcalfe NO 2004 (5) SA 161 (W), referred to

Setlogelo v Setlogelo 1914 AD 221, referred to

Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S), referred to

Telecel (Pvt) Ltd v Postal & Telecommunications Regulatory Authority of Zimbabwe & Ors 2015 (1) ZLR 651 (H), referred to

Williams v Kroutz Investments Pvt Ltd & Ors HB 25-06 (unreported), referred to

Legislation considered:

Administrative Justice Act [Chapter 10:13]

Constitution of Zimbabwe, 2013, ss 2, 51, 58, 59, 61, 66, 67, 68, 86, 92, 134, 165, 175 (6), 332, Chapter 4, Fifth Schedule para 9

Interpretation Act [Chapter 1:01], ss 3, 15A

Police Act [Chapter 11:10]

Public Order and Security Act [Chapter 11:17], s 12, 27, 27B

Constitutional Court Rules, 2016 (SI 61 of 2016), rr 15 (4), 21 (1)

High Court Rules, 1971 (RGN 1047 of 1971), O 32

Public Order and Security (Temporary Prohibition of Public Demonstrations in the Central Business District of the Harare Central Police District) Order, 2016 (SI 101A of 2016)

Books cited:

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