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:

Dicey AV An Introduction to the Study of the Law of the Constitution (Oxford University Press, 1982)

Law J Oxford Dictionary of Law (7th edn, Oxford University Press, 2009)

T Biti with D Chimbga, for applicant

H Magadure with F Chingwere, for respondents

CHIGUMBA J:

This matter came before me via the urgent chamber book, on Saturday 3 September 2016. I directed that the parties appear before me on Monday 5 September 2016 in chambers, for a case management conference. The number of people who attended the case management conference were too many to fit into chambers so it was decided that the matter would be heard in a small court room in order to accommodate these numbers. The parties were directed to file heads of argument on the urgency of the matter, and on the two issues for determination on the merits. The respondents were directed to ensure that their opposing papers adequately supported the legal position taken, that the law and the Constitution of Zimbabwe, 2013 ("the Constitution") had been complied with, both substantively and procedurally. This is an application which announces itself to be an "urgent chamber application for a declaratory order".

The relief that is being sought is as follows:

Interim relief

1. That, forthwith, the operation of 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) ("the SI 101A of 2016") be and is hereby suspended.

2. That the second respondent shall process and deal with all notifications for public gatherings and processions or meetings in the manner lawfully proscribed in s 12 of the Public Order and Security Act [Chapter 11:17] ("the POSA").

3. That the second and third respondents be and are hereby interdicted from unlawfully interfering with the rights of citizens to exercise their right defined by s 59 of the Constitution read together with s 12 of the POSA.

Terms of final order sought

It is ordered or declared that:

1. The SI 101A of 2016 is ultra vires the provisions of s 134 of the Constitution and s 27 of the POSA and is therefore set aside.

2. The SI 101A of 2016 is a breach of applicant's fundamental rights as protected by ss 59, 61, 66, 68, 67 (2) and 92 of the Constitution.

3. Section 27 of the POSA is a violation of the applicant's rights as protected by ss 58, 59, 61, 66 (2) and 67 (2) of the Constitution.

4. The first respondent shall personally pay the costs of this application in so far as they relate to the legality of the SI 101A of 2016.

5. The third and the fourth respondents each paying the other to be absolved, shall pay the costs relating to the legality of s 27 of the POSA.

The order sought by the applicants is for the suspension of, provisionally, and the eventual setting aside of the SI 101A of 2016 on three grounds:

(a) That it is in breach of s 134 of the Constitution and s 27 of the POSA.

(b) That it is in breach of the provisions of s 68 of the Constitution.

(c) That it is in breach of the fundamental rights of the applicants as provided for in ss 58, 59, 61, 66, and 67 of the Constitution.

Mr Stanrick Zvorwadza ("Zvorwadza") deposed to the founding affidavit in support of this application. He averred that the first applicant, Democratic Assembly for Restoration and Empowerment ("DARE") is a duly registered political party in accordance with the laws of Zimbabwe, and that it has a direct interest in the order sought. Zvorwadza is a human rights activist and the Chairperson of the National Vendors Union, an active lobby group for vendors across the country. The union regularly organises marches and hands over petitions to various government departments situated within the Central Business District ("the CBD"). The third applicant is the Harare Residents Association, a common law universitas whose key function is to represent the residents of Harare on a regular basis. The fourth applicant National Electoral Reform Agenda (NERA) is an association of 18 political parties in Zimbabwe whose mandate is to address the challenge and issue of electoral reform in Zimbabwe.

The first respondent Mr Newbert Saunyama is the Chief Superintendent Officer commanding police in the Harare CBD. He is being sued in his personal capacity for his role in the enactment of the SI 101A of 2016, that the applicants seek to impugn. The first respondent is cited in his capacity as the Regulatory Authority for Harare CBD as defined in s 4 of the POSA. The Regulatory Authority has the power to regulate public demonstrations and processions as defined in the POSA. The second respondent is duly appointed in terms of s 221 of the Constitution as the Commissioner General of Police. The third respondent is the Minister of Home Affairs, duly appointed in terms of s 220 of the Constitution to administer the Police Act [Chapter 11:10]. The fourth respondent is the Attorney General of Zimbabwe, duly appointed in terms of s 114 of the Constitution.

The background to this matter is that various marches and protests have been held since May 2016 by ordinary Zimbabwean citizens, pursuant to their right to do so enshrined in s 59 of the Constitution. Zvorwadza averred that he has personally led peaceful demonstrations where matters such as the rights of vendors to sell their wares were ventilated, and issues such as the right of citizens to access cash from banks, the removal of roadblocks from the streets have been canvassed. He has presented petitions to Parliament, the Ministry of Finance, the Reserve Bank of Zimbabwe, and the Zimbabwe Electoral Commission. The marches and demonstrations were conducted peacefully except in those instances where the police initiated violent attacks on the citizens. The applicants intend to hold a public demonstration on Thursday 8 September 2016 against police brutality and, in pursuit of their goal, intend to issue a notice to the second respondent in terms of s 12 of the POSA. The preparations for the march are at an advanced stage. T-shirts and banners have already been printed for the event. On Thursday 1 September 2016, the SI 101A of 2016 was published. It was issued by the first respondent in terms of s 27 (1) of the POSA, and it seeks to proscribe against any public processions for a period of two weeks from Friday 2 September 2016 to Friday 16 September 2016 in the Harare CBD. The Harare CBD is defined as the areas which are bounded by Rekai Tangwena Avenue, Coventry Road, Rotten Row, and the National Railways of Zimbabwe up to Mukuvisi River, Enterprise Road, Churchill Hill Road, Swam Drive, Cork Road, Sandringham Drive, Dramond Chaplin Street and Bishop Gaul Avenue.

Zvorwadza averred that the SI is too wide and sweeping because it is a blanket denial of the right to petition the government for permission to hold any event in Harare's CBD. The SI violates the right to demonstrate and petition (s 59 of the Constitution), the right to freedom of assembly and association (s 58 of the Constitution), the right to freedom of expression (s 51 of the Constitution), and the right to exercise political rights (s 67 of the Constitution). He averred further, that the SI having been made in terms of s 27 (1) of the POSA, it follows that this section is unconstitutional because it empowers the Regulating Authority to prohibit the holding of public demonstrations within certain districts for a period not exceeding one month. On that basis, Zvorwadza contended that the SI is a nullity because it was enacted in breach of the Constitution and of the POSA. The application to suspend the SI is urgent because the applicants intend to hold a demonstration and would like their notice of intention to do so to be duly processed.

Zvorwadza made averments in support of the contention that the SI is subordinate legislation which may be made in terms of powers conferred by s 134 (a)-(f) of the Constitution. He contended that in POSA, Parliament did not delegate its powers of law-making to the second respondent. The third respondent, the Regulatory Authority, has no powers of issuing statutory instruments. He contended further, that the provisions for making a prohibition order set out by s 27 (3) of the POSA were not followed in that no notice was given or representations invited from interested parties. Further, s 27 of the POSA does not confer power on the Regulatory Authority to issue a statutory instrument. The Regulatory Authority merely has power to publish a notice in the Government Gazette. None of the respondents have power to make a statutory instrument in terms of the POSA. This makes the regulations null and void as they are ultra vires s 27 of the POSA, and inconsistent with s 134 (b) of the Constitution which stipulates that statutory instruments must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights.

Zvorwadza stated that the audi alteram partem rule was breached in multiple forms, the first being in terms of the Constitution which obliges the State and all public officers to act fairly and legitimately in their exercise of public power, in s 68 which makes it clear that every person has a right to administrative conduct which is lawful, prompt, efficient, reasonable, proportionate, impartial and both procedurally and substantively fair, and which confers every citizen whose rights or freedom has been adversely affected with the right to be given written reasons for the administrative conduct. Administrative action is defined in s 331 of the Constitution as any decision, act or omission of a public officer or person performing a function of a public nature, and a failure or a refusal of such a person to reach a decision or to perform such an act. Section 27 (2) of the POSA also protects the rights of interested parties to be heard. The applicant's common law legitimate expectation to be heard was violated.

It was contended that the regulations, the SI, breach the fundamental rights of the applicants because they are not justifiable in a democratic society which is based on openness, justice, human dignity, equality, and freedom. The regulations were charged with not being a limitation which is fair, reasonable, and necessary in a democratic society. The justification for the punitive order as to costs was set out as being aimed at preventing policemen and public officers in future from acting in total contempt of the Constitution. The first applicant's supporting affidavit was deposed to by Mr Gilbert Dzikiti. He stated that he is the President of the first applicant and that he is duly authorised to depose to the affidavit, and that he has full knowledge of the facts. He incorporated the contents of the founding affidavit of the second applicant Mr Zvorwadza. He averred that the first applicant DARE intended to participate in a peaceful demonstration to demand electoral reforms on Friday 2 September 2016 and were prevented from doing so by the publication of the SI. He confirmed that the second applicant intends to hold a further protest on Friday 9 September 2016. For that reason, the second applicant supported the interim relief sought. The third applicant's supporting affidavit was deposed to by Mr Simbarashe Moyo, who did so on the basis of being its Chairman, and of having knowledge of the facts.

Mr Douglas Mwonzora deposed to the supporting affidavit which was filed on behalf of the fourth applicant, in his capacity as its secretary. He incorporated the contents of the second applicant's affidavit. He averred that the fourth applicant gave the second respondent notice of intention to hold public procession on 12 August 2016, that it intended to hand over a petition to the Zimbabwe Electoral Commission on Friday 26 August 2016. On 15 August 2016, he was summoned by the Joint Operations Committee (JOC), and in the presence of the second respondent, was advised that a written response to his notification would be delivered. At 12 noon 25 August 2016, the second respondent advised that the march could not proceed. Members of the public were assaulted in the process of dispersing the crowd which had gathered to march on the authority of an order allowing them to march. He denied that the violent clashes were initiated by members of the public and accused the second respondent's officers of provoking and fuelling the violence. He confirmed that notice has been given of an intention to march on Friday 9 September 2016.

A notice of opposition was filed on behalf of the respondents on 5 September 2016. The opposing affidavit was deposed to by the second respondent, the Commissioner General of Police. Averments were made in respect of five preliminary points. Firstly, that this Court has no jurisdiction to determine the issues brought by the applicants because they have a remedy, a right to appeal provided in terms of s 27B of the POSA, which lies to the Magistrates' Court. Secondly that first, third, and fourth applicants have not attached any proof to show that they are authorised to depose to the affidavits which they deposed to on behalf of the applicant institutions. Thirdly that the matter is not urgent. That the relief sought is incompetent at law because it contravenes the presumption of validity of all laws with the Constitution until the contrary is shown and a competent court makes a declaration of invalidity. The final preliminary point is that the first respondent ought to have been cited in his official capacity because he made the SI in the course and scope of his duties.

Regarding the merits of the matter, it was averred that the marches organised by the applicants have been violent and have led to the destruction of property and the looting of shops. The demonstrations have not been peaceful, in direct contravention of the provisions of s 59 of the Constitution. The SI was issued out of consideration for the safety and security of the nation, and it is a fair and reasonable prohibition in terms of POSA. Memories of the recent trauma suffered by innocent by-standers are still fresh, damaged buildings have not yet been repaired, and those who were injured have still not recovered. Affected businesses in the CBD have no hope of being compensated. The applicants' right to demonstrate must be balanced against the rights of those citizens who lost their livelihood through looting and destruction, and those who were physically injured in the violent clashes. There is no guarantee that the proposed demonstrations on 9 September 2016 will be peaceful.

It was submitted that the two-week prohibition is actually inadequate to guarantee safety and security and to ward off the threat of terrorism. No right is absolute. Section 27 of the POSA is a derogation of a right which is permitted in terms of s 86 (3) of the Constitution. The SI was properly issued in terms of
s 134 (a)-(f) of the Constitution. Section 15A of the Interpretation Act [Chapter 1:01] allows the Regulating Authority to issue a prohibition order and to publish it as a notice or a statutory instrument. There is nothing irregular about the actions of the first respondent. The SI is intra vires the Constitution and POSA. Section 134 (b) of the Constitution does not supersede s 86 of the Constitution which allows permissible derogation. There is nothing irregular in the publication of the SI before it is submitted to Parliament. The SI can only be suspended after it has been declared to be null and void.

Preliminary points

(a) At the hearing of the matter, the court dismissed four preliminary points and gave its reasons for so doing. One of those reasons was that the preliminary points were not likely to dispose of the matter and ought not to have been raised. The reasons for dismissing those points is clear, and will appear in the transcript of the record of proceedings. I hereby expressly incorporate the contents of the transcript of the record of proceedings in their entirety, as forming part of this judgment. The reasons for dismissing the four preliminary points are adequately canvassed in the reasons for judgment, which were delivered ex tempore in open court, and are binding. I do hereby expressly incorporate the entire contents of the reasons for judgment which were delivered ex tempore in open court. The fifth preliminary point, on the urgency of the matter, was partially upheld, and for that reason the submissions made are more fully set out below.

Urgency

The founding affidavit contains averments on the urgency of the matter, to the effect that the breach of fundamental rights enshrined in ss 59, 58, 61, 66 (2) and 67 (2) of the Constitution is tantamount to a clandestine amendment of the Constitution or an imposition of a state of emergency, which is justification and cause for urgent redress. It was submitted that the court must set a precedent of protecting and defending the Constitution, especially where breaches of fundamental rights interfere with the rights of citizens, such as the right to demonstrate. The first applicant has given notification of intention to hold a procession on Friday 10 September 2016. The certificate of Urgency was deposed to by Mr Dzimbabwe Chimbga, who averred that he has personal knowledge of the demonstrations and processions because he participated in all of them. He certified that the matter is urgent for two reasons. Firstly, because it raises issues of serious fundamental breach and infraction of the applicants' constitutional rights as set out in ss 58, 59, 61, 62, 66 (2) and 67 of the Constitution. The SI in effect amends the Constitution through the back door. He stated that the matter is urgent because the violation of constitutional rights should be ventilated quickly in order to ensure that the Constitution remains sacrosanct and fundamental rights are protected. The regulations are too wide, contrary to the rights enshrined in s 59 of the Constitution.

The respondents contended that this matter is not urgent for the reasons that, in respect of the challenge to s 27 of the POSA, it has been in existence since the advent of the new Constitution, and it is permissible derogation in terms of s 86 of the Constitution. The fact that the applicants waited until the SI was published to challenge the constitutionality of s 27 of the POSA means that the urgency which they lay claim to stemmed from a deliberate or careless abstention from action until doomsday arrived, and this is not the urgency contemplated by the rules. The respondents denied that any of the applicants notified them of their intention to demonstrate or march in terms of s 25 of POSA. It was submitted that the urgency is self-created, because all their notices on intention to demonstrate were submitted after the SI was published on 1 September 2016. Their notices are therefore invalid.

I was referred to a number of authorities on behalf of the applicants, in support of the contention that this matter ought to be heard on an urgent basis. It was submitted that a party bringing a matter on an urgent basis gains considerable advantage over other litigants in the queue and therefore must show the basis of preferential treatment - see Mayor Logistics (Pvt) Ltd v Zimbabwe Revenue Authority 2014 (2) ZLR 78 (CC) at 88D. In Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission 1982 (3) SA 654 (A) at 674H-675A it was submitted that:

"The procedure of a rule nisi is usually resorted to in matters of urgency and where the applicant seeks interim relief in order adequately to protect his immediate interests. It is a useful procedure and one to be encouraged rather than disparaged 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 Court by way of notice of motion or summons."

In Development Bank of Southern Africa Ltd v Van Rensburg and Others NNO 2002 (5) SA 425 (SCA) the court said that:

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

In Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188 (H), this Court has said the following, about the question of what constitutes urgency:

"Applications are frequently made for urgent relief. What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules."

It has also been held that:

"For a court to deal with a matter on an urgent basis, it must be satisfied of a number of important aspects. The court has laid down guidelines to be followed. If by its nature the circumstances are such that the matter cannot wait in the sense that if not dealt with immediately, irreparable prejudice will result, the court can be inclined to deal with it on an urgent basis. Further, it must be clear that the applicant did on his own part treat the matter as urgent. In other words, if the applicant does not act immediately and waits for doomsday to arrive, and does not give a reasonable explanation for that delay in taking action, he cannot expect to convince the court that the matter is indeed one that warrants to be dealt with on an urgent basis...". See Madzivanzira & Ors v Dexprint Investments (Pvt) Ltd & Anor 2002 (2) ZLR 316 (H); Church of the Province of Central Africa v Diocesan Trustees, Diocese of Harare 2010 (1) ZLR 346 (H); Williams v Kroutz Investments(Pvt) Ltd & Ors
HB 25-06 (unreported) and Mafu & Ors v Solusi University
HB 53-07 (unreported).

It was submitted on behalf of the applicants that the courts are the watchdog of the Constitution, and that, in terms of s 165 (1)(c) of the Constitution, the role of the courts is paramount in safeguarding human rights and freedoms and the rule of law. It was contended that this special role of the courts requires special treatment of cases and matters which concern the abuse and infringement of rights. The applicant in para 48 of its heads of argument, concedes that not every constitutional matter is urgent, and that, an application to assert a right which has already been taken away by law would not be considered urgent. This concession becomes important when the requirements of urgency are applied to the contention that the constitutional validity of s 27 of the POSA should be heard as a matter of urgency. From the terms of the interim relief sought, it is clear that the applicants are not seeking that this challenge be heard as a matter of urgency. It is therefore not clear why the applicants approached the court on an urgent basis and included an application for a declaration of constitutional invalidity in an application for a provisional order that the SI is ultra vires s 27 of the POSA.

Having found that where existing rights are being taken away the application is different and it is urgent and immediate, I would therefore find, further, that the application for a declaration that s 27 of the POSA is unconstitutional is not properly made before us and may not be brought together with an application for a provisional order where interim relief is sought on an urgent basis. Section 175 of the Constitution which provides the powers of the courts in constitutional matters is clear. The Constitutional Court Rules, 2016 (SI 61 of 2016) ("the Rules") are equally clear, if regard is had to them for purposes of guidance on the proper procedure to be adopted in matters where declarations of constitutional invalidity are sought. Rule 15 (4) of the Rules provides that if an application is considered urgent, directions may be given as to waiver of prescribed time limits and method of service. Otherwise applications shall be by way of court application brought in terms of certain prescribed forms. (my emphasis)

In my view, which I have previously expressed, in order for a matter to be deemed urgent, the following criteria, which have been established in terms of case-law, must be met. A matter will be deemed urgent if:

(a) The matter cannot wait at the time when the need to act arises.

(b) Irreparable prejudice will result, if the matter is not dealt with straight away without delay.

(c) There is prima facie evidence that the applicant treated the matter as urgent.

(d) Applicant gives a sensible, rational and realistic explanation for any delay in taking action.

(e) There is no satisfactory alternative remedy.

I find merit in the submissions made on behalf of the respondents that s 27 of the POSA has been in existence for a while and that no irreparable prejudice will result if the matter is not dealt with straight away. There is no evidence that the applicants treated this matter as urgent, and in my view, the applicants have a suitable alternative remedy. Rule 21 (1) of the Rules provides for direct access to the Constitutional Court without leave, for matters which are within the exclusive jurisdiction of the Constitutional Court. The declaration of constitutional invalidity of s 27 of the POSA is within this Court's jurisdiction for determination. I find that such an application can wait. It should join the queue. It does not deserve to be heard ahead of other litigants. It was not treated as urgent. The applicants concede that it is not urgent.

The preliminary point raised that this matter is not urgent is accordingly partially upheld in relation to all aspects of this application that pertain to the petition that s 27 of the POSA be declared to be ultra vires the Constitution. That application does not merit being heard ahead of other litigants. The applicants sat on their laurels and waited for doomsday to arrive. The Constitution came into force in 2013. To argue that the inconsistency of s 27 of the POSA should be determined as a matter of urgency now, is not persuasive. No reasonable explanation has been given as to why the applicants waited until now to bring this application. The additional reasons why this aspect of the application was referred to the ordinary court roll and to the O 32 procedure provided by the High Court Rules, 1971 (RGN 1047 of 1971) appears more fully in the ex tempore judgment delivered in open court, which now forms part of this judgment.

It is my considered view that the question of whether the constitutional validity of the SI can be heard as a matter of urgency can be determined in favour of the applicants. After hearing submissions by both counsel for the respondents and counsel for the applicants I explored the arguments for and against a finding of urgency. I accept that this matter cannot wait. I accept that the need to act arose on 1 September when the SI was published. It is common cause that the applicants acted when the need to act arose. They did not wait for doomsday to arrive. There was no delay in taking action. I accept that irreparable prejudice will result if the matter is not dealt with straight away without delay. I get into muddy waters however, when I consider, as part of the requirements of urgency, whether the applicants have any other satisfactory alternative remedies. Before making a definite finding of urgency, I will explore the aspect of suitable, meaning satisfactory, alternative remedies.

The applicants want this Court to determine as a matter of urgency, the question of whether the SI is in breach of the Constitution and of s 27 of the POSA. Section 176 of the Constitution imbues the Constitutional Court, Supreme Court and High Court with inherent powers to protect and regulate their own process and to develop the common law or the customary law, taking into account the interests of justice and the provisions of this Constitution. Section 171 of the Constitution, confers on the High Court, original jurisdiction over all civil and criminal matters throughout Zimbabwe. In s 171 (1)(a), the High Court's constitutional jurisdiction or ability to deal with constitutional matters, is subject to those matters which are within the exclusive jurisdiction of the Constitutional Court. Section 167 tells us what the general jurisdiction of the Constitutional Court is. It is the highest court in all constitutional matters, and its decisions on those matters binds other courts.

The Constitutional Court decides only constitutional matters and issues connected with decisions on constitutional matters, in particular references and applications under s 138 (b) and para 9 (2) of the Fifth Schedule to the Constitution which makes provision for reports of the Parliamentary Legal Committee on statutory instruments. The Parliamentary Legal Committee may table a report before the Senate or the National Assembly that a provision of a statutory instrument contravenes the Constitution or its enabling Act. If either of these two houses resolves that the provision does contravene the Constitution then the Clerk of Parliament must report the resolution to the authority which enacted the instrument. The authority must, within 21 days after being so notified either:

(a) apply to the Constitutional Court for a declaration that the statutory instrument is in accordance with the Constitution; or

(b) repeal the statutory instrument.

Paragraph 9 goes on to provide as follows:

"(3) Where an authority responsible for enacting a statutory instrument applies to the Constitutional Court for a declaration in terms of subparagraph (2)(a), the statutory instrument is suspended pending the Court's decision.

(4) If, after considering a report of the Parliamentary Legal Committee that a provision of a statutory instrument is ultra vires the enabling Act of Parliament, the Senate or the National Assembly resolves that the provision is ultra vires –

(a) the provision thereupon ceases to have effect; and

(b) the Clerk of Parliament must publish a notice in the Gazette without delay, giving public notice of the resolution and of its effect."

The Constitutional Court makes the final decision on whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter. Section 167 (5) of the Constitution provides that Rules of the Constitutional Court must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court –

(a) to bring a constitutional matter directly to the Constitutional Court;

(b)-(c) ... (my emphasis)

Rule 21 (1) of the Rules (matters within the exclusive jurisdiction of the Court - applications for direct access) provides that the following matters shall not require the leave of the Court:

21. (1) (a) - (f) ...

(g) challenges to the validity of a declaration of a State of Public Emergency or an extension of a State of Public Emergency.

Such an application shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed.

Section 165 of the Constitution defines the principles which guide the judiciary. It reads as follows:

"165 Principles guiding judiciary

(1) In exercising judicial authority, members of the judiciary must be guided by the following principles –

(a) justice must be done to 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.

(2) Members of the judiciary, individually and collectively, must respect and honour their judicial office as a public trust and must strive to enhance their independence in order to maintain public confidence in the judicial system.

(3) When making a judicial decision, a member of the judiciary must make it freely and without interference or undue influence.

(4) Members of the judiciary must not –

(a) engage in any political activities;

(b) hold office in or be members of any political organisation;

(c) solicit funds for or contribute towards any political organisation; or

(d) attend political meetings.

(5) Members of the judiciary must not solicit or accept any gift, bequest, loan or favour that may influence their judicial conduct or give the appearance of judicial impropriety.

(6) Members of the judiciary must give their judicial duties precedence over all other activities, and must not engage in any activities which interfere with or compromise their judicial duties.

(7) Members of the judiciary must take reasonable steps to maintain and enhance their professional knowledge, skills and personal qualities, and in particular must keep themselves abreast of developments in domestic and international law."

The role of the courts is paramount in safeguarding human rights and freedoms and the rule of law. Section 2 of the Constitution provides that, the Constitution is the supreme law of Zimbabwe and that, any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency. The obligations imposed by our 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. The role of the Judiciary is to interpret the law, and in doing so, to give precedence to safeguarding human rights and freedoms and the rule of law. The role of the legislature is to make the laws which the judiciary interprets. The role of the executive is to implement the law. Each arm has its role to play. The three arms are separate, but equal. All public power derives from the Constitution. The Constitution imposes obligations on all three arms. None of the three arms is superior to the Constitution.

It is my considered view that the application for a declaration that s 27 of the POSA is unconstitutional does not warrant being heard on an urgent basis. The requirements of urgency have not been met. The applicants did not treat the matter as urgent. The applicants conceded that this application ought to be treated as an ordinary application. It is therefore removed from the urgent chamber roll and referred to the ordinary roll for court applications. I find that the application for an interim order suspending the operation of the SI is properly before this Court. It is not a matter which is within the exclusive jurisdiction of the Constitutional Court. The applicants' submissions that the SI seeks to impose a State of Public Emergency through the back door and that it seeks to clandestinely amend the Constitution do not bring this issue within the exclusive jurisdiction of the Constitutional Court.

The applicants may therefore not approach the Constitutional Court directly in terms of r 21 of the Rules which provides for direct access to the Constitutional Court, without leave, for those matters which are within the exclusive jurisdiction of the Constitutional Court. Although the Rules provide for approach to it on a certificate of urgency, in my view, direct access is not a viable alternative remedy, which is suitable, and adequate. I considered the efficacy and suitability of another remedy provided in terms of the law. Some of the applicants are political parties with members of Parliament who sit in both the National Assembly and in the Senate. They have the option of causing the Parliamentary Legal Committee to table a report in either House of Parliament that the SI is ultra vires the Constitution. Once a resolution is passed in either house, that the SI is inconsistent with the Constitution, it will immediately cease to have effect pending publication of its status in a Government Gazette after a review by the Constitutional Court.

I rejected this alternative remedy because it is unsuitable, given the time within which the applicants intend to exercise their rights. I find therefore that the question of whether the SI is inconsistent with the Constitution ought to be heard ahead of other litigants. It ought to jump the queue. The requirements of urgency have been met. The matter cannot wait. The applicants acted when the need to act arose. I find that irreparable prejudice will result, if the matter is not dealt with straight away without delay. The alleged violation of the applicants' rights is ongoing, for each day that they are subjected to the provisions of the SI that they seek to impugn. There is prima facie evidence that the applicants treated the matter as urgent. Finally, in our considered view, there is no satisfactory alternative remedy.

The issue that falls for determination on the merits then becomes whether the SI is ultra vires the provisions of s 134 of the Constitution and s 27 of the POSA, whether it contravenes s 68 of the Constitution, and if so, what the appropriate remedy is in the circumstances. I do not propose to deal with the submissions made on behalf of the applicants and the respondents at the hearing of the matter, because they are captured in the transcript of the record of proceedings. I will set out the submissions made on behalf of the parties regarding the law which the court ought to be persuaded by in determining this question. I must commend counsel for the applicants Mr Tendai Biti, for the extensive heads of argument which were of great assistance to the court, and counsel for the respondents Mr T Thabana, Mr H Magadure for their heads of argument which assisted the court to clarify the issues within the limited period of time that they were given.

It was submitted on behalf of the applicants that they came to court to seek an interim interdict whose requirements are now trite:

(a) A right which though prima facie is open to some doubt.

(b) A well-grounded apprehension of irreparable injury.

(c) The absence of an ordinary remedy - see Setlogelo v Setlogelo 1914
AD 221 at 227; Bozimo Trade and Development Co (Pvt) Ltd v First Merchant Bank of Zimbabwe Ltd & Ors 2000 (1) ZLR 1 (H); Telecel (Pvt) Ltd v Postal & Telecommunications Regulatory Authority of Zimbabwe & Ors 2015 (1) ZLR 651 (H); Charuma Blasting & Earthmoving Services (Pvt) Ltd v Njainjai & Ors 2000 (1) ZLR 85 (S); Eriksen Motors (Welkom) Ltd v Protea Motors Warrenton and Another 1973 (3) SA 685 (A).

The applicants contended that the requirements of an interim interdict had been met on their papers which were filed of record. They contended that they had a well-grounded fear that their constitutional rights to freedom of association, expression, assembly and political association, their rights to demonstrate and present petitions would be irreparably harmed if they were not allowed to proceed in terms of the notices which they had served on the respondents. The applicants submitted that they had no other ordinary remedies at their disposal, because they did not wish to appeal against the issue or publication of the SI as provided for, to the Magistrates' Court. They wanted judicial review of whether their right to administrative justice had been violated by the respondents in the manner and procedure adopted when the SI was gazetted.

It was submitted on behalf of the applicants that this case was about whether the State can exercise its power to proscribe fundamental rights enshrined in the Constitution, in a manner which does not respect the Constitution. The applicants contended that there are four principles or doctrines that are key to regulating administrative obligations which are the key to controlling power. These are: the principle of the rule of law; the doctrine of the supremacy of the Constitution; the doctrine of separation of powers; and the doctrine of illegality. The rule of law concept was developed by AV Dicey in An Introduction to the Study of the Law of the Constitution (Oxford University Press, 1982). It is a concept that promotes the protection of individual rights by requiring the government to act in accordance with clear and general rules that are enforced by impartial courts in accordance with fairness - see Commercial Farmers Union v Minister of Lands & Ors 2000 (2) ZLR 469 (S). The court is obliged to uphold and to follow the principles of the rule of law, and in doing so, must be guided by the principles which guide the judiciary which are set out in s 165 of the Constitution, in particular s 165 (1)(c), which stipulates that the role of the courts is paramount in safeguarding human rights and freedoms and the rule of law.

The word "paramount" is defined by J Law in his Oxford Dictionary of Law (7th edn, Oxford University Press, 2009) as "superior, having or donating a better right or title". In Matatiele Municipality and Others v President of the RSA and Others 2006 (5) SA 47 (CC) at para [100], it is stated that:

"[101] As this case demonstrates, far from the fundamental 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 nationality 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."

See Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) para [105]; 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); De Lange v Smuts NO and Others 1998 (3) SA 785 (CC).

On the concept of the supremacy of the Constitution, the applicants referred the court to s 2 of the Constitution, which stipulates that:

"2 Supremacy of Constitution

(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."

The court was also referred to the case of National Gambling Board v Premier, KwaZulu-Natal 2002 (2) SA 715 (CC) para [23], in which the Constitutional Court said that:

"It is true that in a constitutional State all public power is derived from the Constitution."

And to the case of Executive Council, Western Cape Legislature and Others v President of the Republic of South Africa and Others 1995 (4) SA 877 (CC) at para [100] where the court said the following:

"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 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." (my emphasis)

In Ngxuza and Others v Permanent Secretary, Department of Welfare, Eastern Cape, and Another 2001 (2) SA 609 (E) it was said at 618E-G that:

"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."

See Pharmaceutical Manufacturers Association of South Africa (supra) at para [45].

The principle of legality demands that all state action be authorised by the Constitution or by the law. It is premised on the founding value that there must be lawful authorisation for the exercise of public power. In Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) at para [58] the Constitutional Court of South Africa said that:

"[58] 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 them 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."

The principle of legality is a procedural requirement which is similar to the common law intra vires principle. Where it is not complied with, the resultant conduct is void.

It was then submitted on behalf of the applicants that it is clear that Parliament may, through an Act of Parliament, delegate power to make subordinate legislation in certain conditions which are set out in s 134 (a)-(f) of the Constitution, which provides as follows:

"134 Subsidiary legislation

Parliament may, in an Act of Parliament, delegate power to make statutory instruments within the scope of and for the purposes laid out in that Act, but –

(a) Parliament's primary law-making power must not be delegated;

(b) statutory instruments must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights;

(c) statutory instruments must be consistent with the Act of Parliament under which they are made;

(d) the Act must specify the limits of the power, the nature and scope of the statutory instrument that may be made, and the principles and standards applicable to the statutory instrument;

(e) statutory instruments do not have the force of law unless they have been published in the Gazette; and

(f) statutory instruments must be laid before the National Assembly in accordance with its Standing Orders and submitted to the Parliamentary Legal Committee for scrutiny."

It is submitted on behalf of the applicant that the POSA does not give power to the Regulating Authority or to the Commissioner of Police or to the Minister of Home Affairs to make regulations. The first respondent abrogated to himself power which he does not have. This was illegal and unconstitutional. The fourth respondent, the Attorney General, is guilty of drafting the SI. The empowering legislation which guided the respondents has not been referred to. A statutory instrument is law, which is defined in s 3 of the Interpretation Act as follows:

"3 Definitions

...'statutory instrument' means any proclamation, rule, regulation, by-law, order, notice or other instrument having the force of law made by the President or any other person or body under any enactment..."

Once a statutory instrument is enacted it is on par with an act of Parliament - see Masasi v Posts and Telecommunications Corporation 1991 (2) ZLR 73 (H); Gumbo v Norton-Selous Rural Council 1992 (2) ZLR 403 (S).

It was submitted further that s 27 of the POSA authorises the Regulating Authority to publish a notice in the Gazette or in a newspaper circulating within the area. It does not confer the power to make subordinate legislation on any of the respondents. When they purported to Gazette the SI, they abrogated a power to themselves which they do not have. This amounted to the acting outside the provisions of s 27 of the POSA, and of s 134 of the Constitution, rendering the SI null and void, for being ultra vires. For examples of cases where subsidiary legislation was set aside because it was made outside the powers that exist in the enabling legislation - see Minister of Correctional Services v Kwakwa and Another 2002 (4) SA 455 (SCA); Minister of Home Affairs and Others v Watchenuka and Another 2004 (4) SA 326 (SCA);
Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC); AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2007 (1) SA 343 (CC); 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); BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs 2004 (5) SA 124 (W); MEC for Agriculture, Conservation, Environment and Land Affairs v Sasol Oil (Pty) Ltd 2006 (5) SA 483 (SCA); Sasol Oil (Pty) Ltd and Another v Metcalfe NO 2004 (5) SA 161 (W).

"48. Our Constitutional democracy is founded on, among other values, the 'supremacy of the Constitution and the rule of law'. The very text 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 the 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 of the control of public power".

The English authorities which support this proposition are: Attorney-General v Wilts United Dairies Limited (1921) 37 TLR 884; Chester v Bateson [1920] 1 KB 829; R v Halliday, Ex parte Zadig [1917] AC 260; Fowler (John) & Co (Leeds) v Duncan [1941] Ch 450.

On the merits of the issues for determination, whether the SI is ultra vires the provisions of s 134 of the Constitution and s 27 of the POSA, and whether it is in breach of s 68 of the Constitution, it was submitted on behalf of the applicants that the Constitution, in s 332, defines administrative conduct as "...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". It follows that the issue of the SI, and the decision by the respondents to adopt that method, qualifies to be classified as administrative conduct. Administrative conduct is regulated by s 68 of the Constitution as follows:

"68 Right to administrative justice

(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 writing 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 (2); and

(c) promote an efficient administration."

It was submitted that the respondents erred in purporting to issue regulations without respecting the rights of the applicant to be heard, which is a violation of s 68 of the Constitution, and of the right to be heard. The audi alteram partem rule, is embodied in an Act of Parliament, which is borne out of the provisions of s 68 (3) of the Constitution. The Administrative Justice Act [Chapter 10:13] announces itself to be:

"AN ACT to provide for the right to administrative action and decisions that are lawful, reasonable and procedurally fair; to provide for the entitlement to written reasons for administrative action or decisions; to provide for relief by a competent court against administrative action or decisions contrary to the provisions of this Act; and to provide for matters connected with or incidental to the foregoing." (my emphasis)

This Act has been on our statute books since 3 September 2004. Due process, or the right to be heard is fundamental to the administration of justice. This has been recognised in many decisions - see Janse van Rensburg NO and Another v Minister of Trade and Industry and Another NNO 2001 (1) SA 29 (CC); Administrator, Transvaal, and Others v Traub and Others 1989 (4) SA 731 (A); Premier, Mpumalanga and Another v Executive Committee, Association State-Aided Schools, Eastern Transvaal 1999 (2) SA 91 (CC). Our own courts have upheld the right to be heard as follows: Holland & Ors v Minister of the Public Service Labour and Social Welfare 1997 (1) ZLR 186 (S); Marumahoko v Chairman of the Public Service Commission & Anor 1991 (1) ZLR 27 (H); Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S); McGown v Health Professions Council 1994 (1)
ZLR 86 (H).

Did the respondents respect the audi alteram partem rule and give the applicants a chance to be heard before they published the SI in the Gazette of 2 September 2016? If they did not, is there any evidence in the papers which are filed of record as to the justification for such failure? Did the respondents give written reasons to the applicants as to why their right to be heard, and to be given reasons for this administrative conduct, was not respected? In answer to these questions, it was submitted on behalf of the respondents, in their heads of argument and through oral submissions, that on 1 September 2016, the first respondent, in his capacity as the officer commanding Harare District, published a statutory instrument in terms of s 27 (1) of the POSA prohibiting the holding of all public demonstrations in the Harare CBD for a period of two weeks from 2 September 2016 to
16 September 2016.

Section 27 of the POSA provides as follows:

"27 Temporary prohibition of holding processions or public demonstrations within particular police districts

(1) 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, 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.

(2) Whenever it is practicable to do so, before acting in terms of subsection (1), a regulating authority shall –

(a) cause notice of the proposed order to be published in the Gazette and in a newspaper circulating in the area concerned and to be given to any person whom the regulating authority believes is likely to organise a procession or public demonstration that will be prohibited by the proposed order; and

(b) afford all interested persons a reasonable opportunity to make representations in the matter.

(3) The regulating authority for the area in respect of which an order has been made under subsection (1) shall ensure that the order and any amendment or revocation thereof is published –

(a) in the Gazette; and

(b) in a newspaper circulating in the area; and

(c) in such other manner as, in his opinion, will ensure that the order or its amendment or revocation, as the case may be, is brought to the attention of persons affected by it.

(4) ...

(5) Any person who organises or assists in organising or takes part in or attends any procession or public demonstration held in contravention of an order under subsection (1) shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment." (my emphasis)

Section 86 of the Constitution provides as follows:

"86 Limitation of rights and freedoms

(1) The fundamental rights and freedoms set out in this Chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons.

(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms 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, taking into account all relevant factors..."

The respondents submitted that s 27 (1) of the POSA meets the requirements of s 86 (2) of the Constitution, that it is a law of general application which is a permissible derogation from the fundamental rights and freedoms set out in Chapter 4 of the Constitution. I am in full agreement with this interpretation. I am also in agreement with the proposition that the rights and freedoms set out in Chapter 4 of the Constitution must be exercised reasonably, and with due regard to the rights and freedoms of other persons, such as those who may be injured or have their property damaged, to allude to the circumstances of this case. The question of whether s 27 is a limitation which is fair, reasonable, justifiable and necessary in a democratic society is not before us. Put differently, what is before us is not whether s 27 of POSA qualifies as permissible derogation in terms of s 86 (2) of the Constitution. Put differently, the issue that arises before us for determination is simply whether the provisions of s 27 were followed. The question that arises before us is whether the respondents have complied with s 68 of the Constitution, and with the provisions of the Administrative Justice Act. (my emphasis)

The respondents are charged with the failure to give interested parties an opportunity to be heard, with failure to provide written reasons before issuing the notice, with failure to issue the notice in the manner prescribed by s 27 of the POSA, with issuing the notice as a statutory instrument when they have no power to do so. I find the respondents wanting on all these charges, primarily because the officer commanding Harare District, the first respondent, did not see fit to take the court into his confidence as to why he chose to issue the prohibition as a final order and not as a notice of intention to prohibit and why he did not hear interested parties or to provide them with reasons for the administrative decision that he took. A simple sworn statement from him would have served to inform the court of the basis of his decision and allowed the court to review the reasonableness of the decision. A sworn statement by the second respondent was inadequate because he is not the officer commanding Harare District and he is not the one who published the warning in a particular manner.

For the avoidance of doubt, this is the procedure step by step which is set out in s 27 of POSA. In order to comply with the provisions of s 27 of the POSA the Regulating Authority (read second respondent, through first respondent who is in command of the relevant district) must:

1. Formulate reasonable grounds on which a belief is held that the powers conferred upon them in s 26 will not be enough to prevent public disorder.

(a) There must be evidence, of the grounds on which this belief is held, in order for the reasonableness of the belief to pass muster when the decision is reviewed.

(b) There must be evidence of public disorder in that district.

2. Publish a notice of intention to issue an order to prohibit the holding of public processions and demonstrations in that district for a period not exceeding one month.

3. The notice of intention may be published when it is reasonably practicable to do so.

(a) There must be evidence of the reasons why it was not practicable to publish the notice of intention to issue the prohibition order. Such a decision is subject to scrutiny and judicial review. The officer commanding the relevant district, and the Commissioner General of Police must discharge the onus of showing the reasons why they exercised their discretion in such a manner. The decision is subject to scrutiny for reasonableness.

4. Afford all interested parties in that district an opportunity to make representations.

5. Give written reasons to all interested parties who made representations in that district, as to why the Regulating Authority has decided to proceed and issue the prohibition order.

6. Issue the prohibition order by way of publication in a Gazette or widely circulating newspaper in that district.

7. Any amendments to the prohibition order must be communicated to all interested parties in that district.

8. It is a criminal offence to defy a prohibition order which has been issued, and communicated in the prescribed manner.

A quick glance at http://www.thesaurus.com coughed up the following definitions: The word "prohibit" is a verb which means "to forbid an action or an activity by authority or law, to prevent, to hinder". The word "order" is defined as "an authoritative directive or instruction, command, mandate, a command of a court or judge, a command or notice issued by a military commander to troops". The word "notice" is defined as an announcement or intimation of something impending, a warning". So, all that the first respondent had to do was to obtain evidence, preferably by way of sworn statements, that there had been public disorder in his district on specified dates and times which may or may not have resulted in physical injury and destruction of property. Having obtained this evidence, he had the discretion to formulate a belief, that it was not practicable to notify interested parties in his district of his intention to forbid, prevent and hinder any public demonstrations for a certain period, then go ahead and cause the directive to be published.

Alternatively, where there was no reason to believe that it was impracticable, the first respondent is obliged to collate evidence by way of sworn statements to guard against malicious or baseless allegations, that there had been public disturbances in his district. A notice (warning) of his intention to prohibit public demonstrations and processions for a specified period in the district should then be published in a widely circulating newspaper. Interested parties should be invited to make representations. Thereafter written reasons why the prohibition would be issued should be given to all the interested parties. The warning that all public demonstrations and processions were prohibited should then be published, with a specified period and within a specified area, on penalty of a fine or a year's imprisonment or both.

It is my view that nowhere in the words "prohibition", "order", and "notice", is it implied that a statutory instrument must be issued or published by the respondents. They have the power in terms of s 27 of the POSA, to issue an authoritative directive that serves as a warning to all interested parties in that district, that should they attempt to demonstrate or march in public, they will be prevented from doing so, or hindered during the specified period and within the specified area, failing which they will be charged with a criminal offence.

The applicants were denied the right to be heard, contrary to s 68 of the Constitution and to the Administrative Justice Act. No written reasons were given for the publication of the notice, with or without consulting all interested parties. No evidence was placed before the court, by the author of the notice, as to why the administrative decision to adopt that procedure was taken. The court has no basis on which it can assess the reasonableness of the procedure adopted, the reasonableness of the failure to consult or give written reasons, the reasonableness of the practicalities faced by the first respondent when he issued the prohibition in the manner that he did. On reviewing the administrative conduct by the first respondent in terms of s 68 (3)(b) of the Constitution we find that the applicants' right to lawful, prompt, efficient, reasonable, proportionate, impartial, administrative conduct was violated when the SI was purportedly issued.

The method adopted was not procedurally fair. The method adopted was not substantively fair because the first respondent purported to use his administrative authority, derived from s 27 of the POSA to issue the prohibition as a statutory instrument when he has no power or authority to do so. This brings the SI into direct conflict with s 134 of the Constitution. The SI is ultra vires s 27 of the POSA. It contravenes s 134 of the Constitution because the first respondent has no power to issue a statutory instrument. It contravenes the applicants' right to efficient administration as specified in s 68 (3)(c) of the Constitution. The first respondent's administrative conduct in purporting to issue the SI is unlawful, inefficient, unreasonable, disproportionate, partial, substantively and procedurally unfair, and ultimately unconstitutional. The SI is a nullity. It is void ab initio.

Having made these findings the final issue for determination is what power or discretion the court has at its disposal to mitigate the effect of these findings, if it is just and equitable to do so, and if it is in the interests of justice to do so. Both parties had agreed that the court was at liberty to exercise its discretion which is conferred upon it in terms of s 175 (6) of the Constitution, which provides that:

"(6) When deciding a constitutional matter within its jurisdiction a court may –

(a) declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency;

(b) make any order that is just and equitable, including an order limiting the retrospective effect of the declaration of invalidity and an order suspending conditionally or unconditionally the declaration of invalidity for any period to allow the competent authority to correct the defect."

During the course of the hearing the court took note of the fact that it was common cause between the parties that there had been violent and disorderly conduct in the Harare CBD. The only contentious issue was the cause of the disorderly conduct, with one side laying the blame at the door of the other. We find that it would not be in the interests of justice, or democracy, if the effect of the declaration of constitutional invalidity of the SI were not mitigated, lest chaos descends upon our beloved country. I find that it is just and equitable that there be a cooling off period, a grace period, whereafter the parties will be ordered to engage in the manner provided for by the Constitution, and by the POSA, and the Administrative Justice Act. In the result, it be and is hereby ordered that:

Terms of the interim relief granted

1. It is ordered and declared that the SI is invalid to the extent of its inconsistency with the Constitution as provided by ss 175 (6)(a) and 2 of the Constitution.

2. It is just and equitable as provided by s 175 (6)(b) that this declaration of constitutional invalidity be suspended for a period of seven working days to allow the competent authority to correct the defect. At the expiry of the seven working day grace period it is ordered that the second respondent shall process and deal with all notifications for public gatherings and processions or meetings in the manner lawfully proscribed in s 12 of the POSA.

3. At the expiry of the seven working day grace period given to the respondents to correct the defects in the order issued in terms of s 27 of the POSA, the second and third respondent shall be and are hereby interdicted from unlawfully interfering with the rights of citizens to exercise their right defined by s 59 of the Constitution read together with s 12 of the POSA.

4. The costs of this application shall remain in the cause.

Messrs Tendai Biti Law, applicants' legal practitioners

Civil Division of the Attorney General's Office, respondents' legal practitioners