Main points 29 page Judgment No SC 22/10 Constitutional Application 53/09
(1) JENNIFER WILLIAMS (2) MAGODONGA MAHLANGU v (1) PHATHEKILE MSIPA N.O (2) THE MINISTER OF JUSTICE (3) THE ATTORNEY GENERAL
SUPREME COURT OF ZIMBABWE CHIDYAUSIKU CJ, MALABA DCJ, CHEDA JA, ZIYAMBI JA, GARWE JA HARARE JUNE 4 2009 & NOVEMBER, 26, 2010.
L. Uriri with T Mpofu for the Applicants
F. Chimburu, for the Respondents
The court must be able to intervene not only against the direct dictates of the lower court but also against its effects.
In this case it means that the Court has power to restrain the magistrate and the third respondent from relying on the decision of the former refusing the request for referral of the constitutional questions and commencing the trial of the applicants pending final determination of the main application because to commence the trial would tend to negate or render nugatory the judgment of the court on the main application when it is given.
(a) that the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear or if not clear, is prima facie established though open to some doubt.
(b) That , if the right is only prima facie established, there is a well grounded apprehension or irreparable harm to the applicant..
(c) That the balance of convenience favours the granting of interim relief.
(d) That the applicant has no other satisfactory remedy.
It is the nature of harm which has to be considered and not its magnitude. It is clear that commencing the trial of the applicants before the determination of the main application would itself constitute a violation of the fundamental right to the protection of the law.
The balance of inconvenience test involves the determination of the question which of the parties is likely to suffer greater harm as a result of the granting or refusing of the interlocutory relief taking into account public interest.
The only restriction of the obligation imposed on the judicial officer is the discretion given to him or her to refuse a request for a referral when in his opinion the raising of the question is “merely frivolous or vexatious”
In the context of s24(2) the word ” frivolous” connotes , in its ordinary and natural meaning, the raising of a question marked by a lack of seriousness; one inconsistent with the logic and good sense, and clearly so groundless and devoid of merit that a prudent person could not possibly expect to obtain relief from it. The word “vexatious”, in contra-distinction, is used in the sense of the question being put forward for the purpose of causing annoyance to the opposing party in the full appreciation that it cannot succeed.
The question related to matters that needed serious consideration.
S37 (1) (a) (1) of the Act was not applicable to the conduct of the applicants as constituted by the facts on which they were charged.
Section 13(2) of the constitution authorizes deprivation of an accused person of personal liberty where there is a reasonable suspicion of him having committed a criminal offence.
The Magistrate was required under s13 (2) (e) of the Constitution to take into account the essential elements of the offence and the conduct which, if proved at the trial, would constitute the offence charged.
It is clear that the statute is not intended to be used to punish acts for the commission of which the fundamental human rights to freedom of assembly and freedom of expression are protected under the Constitution.
The peaceful nature of an assembly of people is a fundamental element of the democratic principle of the freedom of assembly as well as the pre-condition for its enjoyment.
The statute is intended to be used to punish conduct which constitutes abuse of the fundamental rights to freedom of assembly and freedom of expression through behaviour or words which are inimical to public welfare. Whilst it does not prescribe advocacy of ideas it does prescribe advocacy of violent action.
A judicial officer faced with the question whether or not to remand an accused person on a charge of contravening s37(1)(a)(1) of the Act must in the analysis of the facts on which the charge is based, bear in mind the national commitment to the principle that the coming together of people in a democratic society to petition for redress of grievances and express views or opinions or discuss political an governmental issues of the day consonant with the peace, security or order of the public, is an indispensable means for the maintenance of the system of representative and accountable government established by the Constitution.
The examination of the conduct for which the applicants were charged with the contravention of s37 (1) (a) (1) of the Act, shows that they were simply exercising their fundamental rights to freedom of assembly and freedom of expression.
Had the magistrate acted in accordance with the requirements of s13 (2) (e) of the Constitution and examined the conduct of the applicants in the light of the offence with which they were charged, he would have found that the applicants had not gathered for the sinister purpose of bringing about serious disturbance of peace, security or order of the public or any section of the public. In singing, dancing, chanting slogans and waving placards with messages that did not incite violence; the applicants used legitimate means of expressing views or opinions on the political and governmental issues of the day.
The applicants were entitled to express disapproval of the political agreement signed by the three main political parties in the country on 15 September 2008.They were also entitled to do what they did to draw the attention of the Government to the grievances arising from shortages of teachers for their children in school at the time. They had a right to communicate their grievances to the people they considered had the right to receive the information.
There was no allegation in the outline of the facts relied upon by the public prosecutor when he applied for their remand, that the conduct of the applicants involved in its nature any direct and obvious danger to the peace, security or order of the public or any section of the public.
In fact the applicants do not seem to have been arrested for what actually took place at the gathering. What appears to have prompted their arrest was the protect they raised against what they considered was an unwarranted interference by the police with the exercise of their fundamental rights when the later ordered the crowd to disperse.
It does not, of course follow that police should always break up a peaceful assembly even where it has not been authorised. They have discretion under s29 (2) of the Public Order and Security Act [Cap.11:17].
Once that had happened they should have taken into account whether the assembly violated the rights and freedom of others or whether it constituted a direct and obvious danger to the peace.
It is clear, therefore, that what the applicants together with the other members of the gathering did was germane to the purpose for which the fundamental rights to freedom of assembly and freedom of expression are guaranteed under the Constitution. They did all they did in a peaceful gathering whilst preserving their willingness to act in conformity with the law.