Category Archives: Legal documents

Urgent application to Supreme Court in matter of Williams and Mahlangu – for constitutional challenge to be heard and trial to be halted pending appeal

CASE NO. cns S.C. 53/09
REF. CASE NO. MC

IN THE SUPREME COURT OF ZIMBABWE
HELD AT HARARE

In the matter between:
JENNIFER WILLIAMS 1ST APPLICANT
And
MAGODONGA MAHLANGU 2ND APPLICANT
And
PHATHEKILE MSIPA N.O 1ST RESPONDENT
And
THE MINISTER OF JUSTICE 2ND RESPONDENT
And
THE ATTORNEY GENERAL, OF
ZIMBABWE 3rd RESPONDENT

URGENT CHAMBER APPLICATION
FOR THE URGENT HEARING OF CONSTITUTIONAL APPLICATION AND FOR INTERIM INTERLOCUTORY RELIEF PENDING THE DETERMINATION OF THE SAID APPLICATION.

TAKE NOTICE that Application is hereby made for the urgent set down of the Constitutional application filed contemporaneously with this application and filed under case number CONST SC …………/09 and for interim relief pending the determination of the said application as per the draft order attached hereto on the grounds that:
1. The applicants are involved in criminal proceedings in the Magistrate’s court sitting at Bulawayo. The proceedings are being held in terms of section 37 (1) (a) (i) of the Criminal Law (Codification and Reform) Act.
2. Applicants have in those proceedings taken issue with the section under which they are being charged and in particular the constitutionality of same on the basis of provisions of section 20, 21, and 22 of the Constitution.
3. Applicants have made an application for referral in terms of section 24 (2) of the Constitution in relation to the impugned legislation. That application has been refused without the issues raised having been dealt with.
4. Applicant’s consider that the refusal to refer the matter is wrongful and have approached this court in terms of section 24 (1) as more fully set out in the decision in Martin v Attorney General & Another 1993 (1) ZLR 153 (S). The court has been requested to hold that the refusal to refer the matter was wrongful and it has also been invited to deal with the issues as if they had been referred.
5. The constitutional application is being filed contemporaneously with this application. Notwithstanding the filing of the application and in particular notwithstanding the applicants’ stated intentions that they would file the application, 1st and 3rd respondents have indicated that they still want to proceed with the criminal proceedings. There is a distinct possibility that this court will strike down the impugned legislation in which event the applicants would have been forced to go through void proceedings to their possible detriment as their liberties will continue to be compromised pursuant to void proceedings.
6. In the circumstances it would serve the interests of justice for the Constitutional application to be dealt with on an urgent basis so that the rights of the parties are settled once and for all without any possible prejudice to any of the parties.
7. The matter is urgent because:
7.1 The criminal proceedings are due to commence on the 18th of March 2009 and are so continuing notwithstanding the application that has been filed before this honourable court.
7.2 The complaint of the applicants is that the process under which the proceedings are proceeding is void. There is in the very least merit in the submissions that have been made and it is equitable that the Supreme Court urgently deals with the issues before any conviction results from a process that is highly likely void.
7.3 Should the criminal proceedings commence, then that alone stands as a violation of the rights of the applicants and will cause further irremediable prejudice as liberties will continue to be infringed pursuant to invalid proceedings.
8. It is on the foregoing grounds that the applicants prays that the constitutional application be urgently set down and that pending the determination of the said application, the respondents be interdicted from commencing the trial or otherwise continuing with it in any way.
The Affidavit of JENNIFER WILLIAMS annexed hereto and accompanying Annexures are used in support thereof.
DATED at HARARE THIS 10th DAY OF March 2009.
_________________________
KOSSAM NCUBE & PARTNERS
Applicant’s Legal Practitioners
C/o Zimbabwe Lawyers for Human Rights
6th Floor Beverly Court
Nelson Mandela Avenue/ Cnr 4th Street
HARARE (Mr Nyamurundira)

To: THE REGISTRAR
Supreme Court of Zimbabwe
HARARE
And
To: PHATHEKILE MSIPA
1ST Respondent
Bulawayo Magistrate’s Court
BULAWAYO
And to: THE ATTORNEY GENERAL
Civil Division of The Attorney General’s Office
2ND Respondent
Harare

CASE NO. cns S.C. 53/09
REF. CASE NO. MC

IN THE SUPREME COURT OF ZIMBABWE
HELD AT HARARE
In the matter between:
JENNIFER WILLIAMS 1ST APPLICANT
And
MAGODONGA MAHLANGU 2ND APPLICANT
And
PHATHEKILE MSIPA N.O 1ST RESPONDENT
And
THE MINISTER OF JUSTICE 2ND RESPONDENT
And
THE ATTORNEY GENERAL, OF
ZIMBABWE 3rd RESPONDENT

CERTIFICATE OF URGENCY

I HARRISON NKOMO certify that;
1 I am a registered legal practitioner practising as such in the firm of Mtetwa & Nyambirai.
2 I have settled the papers in this matter and certify that the matter is urgent for the following reasons;
2.1 Applicants have filed a Constitutional application before this honourable court
2.2 The application arises from criminal proceedings in the Magistrate’s court in which the applicants are arraigned as accused persons
2.3 The grounds upon which the application have been made are meritorious more particularly in that;
2.4 The refusal to refer the constitutional issues that had been raised was wrongful as the issues are clearly not frivolous neither are they vexatious
3 Notwithstanding the above, the criminal proceedings have not been discontinued with the effect that applicants have to go through proceedings that could in less than a month be declared to be void. No justification has been proffered for this haste.
4 It is for those reasons that I certify that this matter is urgent and ought to jump the queue.
DATED AT HARARE THIS 10th DAY OF MARCH 2009
……………………………………………….
HARRISON NKOMO

CASE NO. cns S.C. 53/09
REF. CASE NO. MC

IN THE SUPREME COURT OF ZIMBABWE
HELD AT HARARE
In the matter between:
JENNIFER WILLIAMS 1ST APPLICANT And
MAGODONGA MAHLANGU 2ND APPLICANT
And
PHATHEKILE MSIPA N.O 1ST RESPONDENT
And
THE MINISTER OF JUSTICE 2ND RESPONDENT
And
THE ATTORNEY GENERAL, OF
ZIMBABWE 3rd RESPONDENT

ADDRESS FOR SERVICE

BE PLEASED to take notice that the Applicants’ Legal Practitioners in this matter are Kossam Ncube and Partners. Applicants’ address for service is care of its Legal Practitioners.
DATED at HARARE THIS 10th DAY OF MARCH 2009.
_________________________
KOSSAM NCUBE & PARTNERS
Applicant’s Legal Practitioners
To: THE REGISTRAR
Supreme Court of Zimbabwe
HARARE
And
To: PHATHEKILE MSIPA
1ST Respondent
Bulawayo Magistrate’s Court
BULAWAYO
And to: THE ATTORNEY GENERAL
Civil Division of The Attorney General’s Office
2ND Respondent
Harare

CASE NO. cns S.C. 53/09
REF. CASE NO. MC

IN THE SUPREME COURT OF ZIMBABWE
HELD AT HARARE
In the matter between:
JENNIFER WILLIAMS 1ST APPLICANT
And
MAGODONGA MAHLANGU 2ND APPLICANT
And
PHATHEKILE MSIPA N.O 1ST RESPONDENT
And
THE MINISTER OF JUSTICE 2ND RESPONDENT
And
THE ATTORNEY GENERAL, OF
ZIMBABWE 3rd RESPONDENT

APPLICANT’S FOUNDING AFFIDAVIT

I, the undersigned JENNIFER WILLIAMS, do hereby make oath to state that:
THE PARTIES

1. I am an adult female Zimbabwean and the first applicant in this matter. I am a founder member of the Women of Zimbabwe Arise (WOZA), an organisation which has the protection of women and their rights as its objective. I depose to the facts hereunder in my personal capacity and the facts so deposed to are within my personal knowledge and are true and correct. My address for service is care of my legal practitioners of record.
2. I am also 1st applicant in the main matter in which we seek that section 37 (1) (a) (i) of the Criminal Law (Codification and Reform) Act (Cap9;23) be declared void, alternatively that our prosecution thereunder be declared as void.
3. Second applicant is Magondonga Mahlangu, an adult female Zimbabwean who is the co-ordinator of (WOZA). I have her authority to depose to this affidavit on her behalf as more fully appears from her supporting affidavit attached hereto. We are jointly represented and for that reason share an address for service. She is also second applicant in the main matter referred to above.
4. The 1st Respondent Phathekile Msipa is cited herein in his official capacity as a Magistrate, and in particular in relation to the criminal proceedings that are being held in the Magistrate’s Court sitting at Bulawayo in which we are involved. His address for service is care of Bulawayo Magistrate’s Court, his seat.
5. The second respondent is the Minister of Justice cited herein in his official capacity as the authority to whom the administration of the Act forming the subject of the main proceedings has been assigned. He is cited as a party who has an interest in this matter.
6. The 2nd Respondent is the Attorney General, who is the public official charged with the duty to prosecute accused persons in criminal trials and who is the prosecutor in the main proceedings referred to above. The Attorney General is cited herein in that official capacity and is also cited in terms of section 24 (6) of the Constitution of Zimbabwe as the relief sought in the main matter necessarily involves the striking down of legislation. His address for service is care of New Government Complex, 5th Floor, Samora Machel Harare.

NATURE OF THE APPLICATION
6. The instant application is one for the urgent hearing of a constitutional application and for interim relief pending the determination of the constitutional application. I must at the outset point out that this application has been made contemporaneously with the constitutional application. The facts upon which the application is based are set out hereunder.

MATERIAL BACKGROUND FACTS
5 Contemporaneously with this application, an application has been filed in this court in terms of section 24 (1) of the constitution of Zimbabwe. The application stems from the criminal proceedings in which we are accused persons. I incorporate the material averments in that application herein as if fully deposed hereto.
6 The application proceeds from a refusal by 1st respondent in the criminal proceedings to refer, to this honourable court questions on whether section 37 (1) (a) (i) of the Criminal Law (Codification and Reform) Act (Cap9;23) contravenes sections 20, 21 and 22 of the Constitution of Zimbabwe, is liable to be struck off and as such prosecution thereunder constitutes an infringement of section 18 (1) and 13 (1) of the Constitution of Zimbabwe.
7 Notwithstanding the making of the constitutional application, the criminal proceedings have not been stayed or postponed in order to allow the Supreme Court to deal definitively with the issues being raised after which the criminal proceedings could then continue if such is the holding of the court. It stands to reason and is indeed consistent with the requirements of justice and due process that the proceedings in the Magistrate’s court be stayed pending a substantive determination by this court. The proceedings are set to continue on the 18th March 2009.
8 The current state of affairs means that our rights are on the brink of being negated. We have raised issue with the constitutionality of the process by which we are being tried. I am advised that in terms of the law any legislation that is at variance with the constitution is void without further ado. I am however advised that it is only this court that can make such a holding. I however, have the absolute right to challenge the constitutionality of any law and have the like right to have that matter determined without it at the same time compromising my rights. This I have now done and I should certainly reap the benefits of sheltering under the protective provisions of the law.

THE QUESTION OF URGENCY
9. This matter is urgent because:

10.1 We have already filed an application before this court in which we seek a substantive determination on the issues. Such a determination is final and definitive.
10.2 The 1st and 3rd respondents have however, not taken measures to give way to the determination of the matter but have instead indicated that the criminal proceedings will continue or commence as the case may be notwithstanding the constitutional application that has been filed which has the possible effect of invalidating the entire criminal proceedings.
10.3 There is a very real likelihood that the Supreme Court will find in favour of us and do so after our rights would have been negated by the criminal proceedings. I point out that there is no justification for this haste by respondents especially in view of this distinct possibility that the haste would result in our rights being compromised.
10.4 There is no other avenue that applicants could conceivably take, as the position by respondents is not appealable. Further, it is only this court that is seized with the constitutional application and has the mandate to protect its processes.
10. I respectfully submit that we have made out a case for the urgent hearing of the application under the circumstances.

INTERIM RELIEF
11. I also submit that we have shown at the very least, reasonable prospects of success of the application especially in view of the averments in the founding affidavit that have been incorporated herein, a prima facie right in respect of the subject matter of the application, threatened and actual breach and prejudice, the absence of a remedy whether factual or legal under any other law.
12. In any event, I submit that we have shown that it is just and equitable that interim relief be granted pending the determination of the constitutional application which is itself neither frivolous nor vexatious and in fact raises constitutional issues of a national importance.
13. I further contend that there can be no doubt that the balance of convenience favours the grant of the order sought. It is us that will be affected if the criminal proceedings go ahead but respondents will not be affected by their stay.
14. I submit that under the circumstances our interests and indeed the interests of justice would be served if the constitutional application were heard on an urgent basis and that pending it’s hearing the criminal proceedings are stayed.
15. In the context of the above, I would humbly urge the honourable court to require respondents to file their opposition in the substantive application within at most five days of the grant of this application. We would then be required to file our heads of argument within three days of the filing of the opposing papers which will ensure that the constitutional application is at any rate disposed of in less than two weeks.
16. I however, point out that the time limits are just suggestions and we are entirely in the court’s hands on how to proceed. I wish to indicate however, that we would not have any problems complying with any stringent time limits so long a the effect is to make us go through a definitive process that does not raise further constitutional issues in relation to our constitutionally protected rights
17. I accordingly pray for an order n terms of the draft.

THUS SWORN TO AND DATED at HARARE THIS 10th DAY OF MARCH 2009.

_______________
JENNIFER WILLIAMS

BEFORE ME:
_____________________
COMMISIONER OF OATHS

CASE NO. chs S.C 53/09
REF CASE NO. MC

IN THE SUPREME COURT OF ZIMBABWE
HELD AT HARARE
In the matter between:
JENIFFER WILLIAMS 1ST APPLICANT
And
MAGODONGA MAHLANGU 2ND APPLICANT
And
PATHEKILE MSIPA N.O 1ST RESPONDENT
And
THE MINISTER OF JUSTICE 2ND RESPONDENT
And
THE ATTORNEY GENERAL, OF ZIMBABWE 3RD RESPONDENT

THE SECOND APPLICANTS’ SUPPORTING AND VERIFYING AFFIDAVIT

I the undersigned MAGODONGA MAHLANGU, do hereby make oath to state that;
1. I am second applicant in this matter and depose to this supporting and verifying in that capacity. The facts hereunder stated are within my personal knowledge and are true and correct.
2. I have read the founding affidavit of Jennifer Williams and associate myself with it. I specifically adopt its contents as if they had been fully deposed hereto.
3. I further confirm Jennifer William’s authority to depose to the founding affidavit on my behalf.
4. I accordingly pray for and order in term of the draft

THUS SWORN TO AND DATE at HARARE THIS 10th DAY OF MARCH 2009-04-27
Signed MAGODONGA MAHLANGU
BEFORE ME: COMMISSIONER OF OATHS

CASE NO. cns S.C. 53/09
REF. CASE NO. MC

IN THE SUPREME COURT OF ZIMBABWE
HELD AT HARARE
In the matter between:
JENNIFER WILLIAMS 1ST APPLICANT
And
MAGODONGA MAHLANGU 2ND APPLICANT
And
PHATHEKILE MSIPA N.O 1ST RESPONDENT
And
THE MINISTER OF JUSTICE 2ND RESPONDENT
And
THE ATTORNEY GENERAL, OF
ZIMBABWE 3rd RESPONDENT

DRAFT ORDER

HARARE the day of 2009.
BEFORE the honourable Justice in Chambers
Mr. For the applicants
Mrs. For the respondents

WHEREUPON after reading papers filed of record and hearing Counsel,

IT IS ORDERED:
1. THAT the respondent shall file their notice of opposition and opposing affidavits in the matter under case SC……………/09 within 5 days of this order, if so advised. Applicants shall then file their heads of Argument within 3 days of the filing on the opposing papers.
2. THAT the Registrar of this court shall set down the application in case number CONST SC………/09 on the cause list for Thursday the……….. of …………………………………….2009.
3. Pending the determination of the constitutional application, the following interim relief is granted:
3.1 The 1st and 3rd respondents shall not do, allow to be done or cause to be done anything the effect of which is to commence or continue with the criminal proceedings which are the subject of the constitutional application filed before this honourable court.
4. The costs of this application shall be in the cause.

BY THE JUDGE

REGISTRAR.

Application to the Supreme Court in the matter of Williams and Mahlangu

CASE NO 53/09. MC

IN THE SUPREME COURT OF ZIMBABWE
HELD AT HARARE
In the matter between:
JENIFFER WILLIAMS 1ST APPLICANT
And
MAGODONGA MAHLANGU 2ND APPLICANT
And
PATHEKILE MSIPA N.O 1ST RESPONDENT
And THE MINISTER OF JUSTICE 2ND RESPONDENT
And
THE ATTORNEY GENERAL, OF ZIMBABWE 3RD RESPONDENT

APPLICATION IN TERMS OF SECTION 24 (1) OF THE CONSTITUTION

TAKE NOTICE that applicants intend to make an application to the Supreme Court in terms of section 24 (1) of the Constitution, for an order in terms of the draft annexed hereto. The accompanying affidavits and documents are tendered in support of this application.

If you intend oppose this application you should file a Notice of Opposition together with one or more opposing affidavits, with the Registrar of this court within 10 days or within such a shorter period as a Judge of this Court may order. You will also have to serve a copy of the opposing papers with the applicants at the address specified below.

If you do not file the opposing papers, the matter will be dealt with as an unopposed application

DATE at HARARE THIS 10th DAY OF MARCH 2009
________________________
KOSSAM NCUBE & PARTNERS
Applicant’s Legal Practitioners
C/O Zimbabwe Lawyers for Human Rights
6th Floor Beverly Court
Nelson Mandela Avenue/Cnr 4th Street
HARARE (MR NAYMURUNDIRA)

To: THE REGISTRAR Supreme Court of Zimbabwe HARARE

And To: PHATHEKILE MSIPA 1st Respondent
Bulawayo Magistrate’s Court BULAWAYO

And to: THE ATTORNEY GENERAL, Civil Division of The Attorney General’s Office 2nd Respondent Harare

To: THE REGISTRAR Supreme Court of Zimbabwe HARARE

And To: PHATHEKILE MSIPA 1ST Respondent
Bulawayo Magistrate’s Court BULAWAYO

And to: THE ATTORNEY GENERAL
Civil Division of The Attorney General’s Office
2ND Respondent
Harare

CASE NO. cns S.C. 53/09
REF. CASE NO. MC

IN THE SUPREME COURT OF ZIMBABWE
HELD AT HARARE
In the matter between:
JENNIFER WILLIAMS 1ST APPLICANT
And
MAGODONGA MAHLANGU 2ND APPLICANT
And
PHATHEKILE MSIPA N.O 1ST RESPONDENT
And
THE MINISTER OF JUSTICE 2ND RESPONDENT
And
THE ATTORNEY GENERAL, OF
ZIMBABWE 3rd RESPONDENT

APPLICANT’S FOUNDING AFFIDAVIT

I, the undersigned JENNIFER WILLIAMS, do hereby make oath to state that:

THE PARTIES

1. I am an adult female Zimbabwean and the first applicant in this matter. I am a founder member of the Women of Zimbabwe Arise (WOZA), an organisation which has the protection of women and their rights as its objective. I depose to the facts hereunder in my personal capacity and the facts so deposed to are within my personal knowledge and are true and correct. My address for service is care of my legal practitioners of record.
2. Second applicant is Magondonga Mahlangu, an adult female Zimbabwean who is the co-ordinator of (WOZA). I have her authority to depose to this affidavit on her behalf as more fully appears from her supporting affidavit attached hereto. We are jointly represented and for that reason share an address for service.
3. The 1st Respondent Phathekile Msipa is cited herein in his official capacity as a Magistrate, and in particular in relation to the criminal proceedings that are being held in the Magistrate’s Court sitting at Bulawayo in which we are involved. His address for service is care of Bulawayo Magistrate’s Court, his normal seat.
4. The second respondent is the Minister of Justice cited herein in his official capacity as the authority to whom the administration of the Act forming the subject of the main proceedings has been assigned.
5. The 2nd Respondent is the Attorney General, who is the public official charged with the duty to prosecute accused persons in criminal trials and who is the prosecutor in the main proceedings referred to above. The Attorney General is cited herein in that official capacity and is also cited in terms of section 24 (6) of the Constitution of Zimbabwe as the relief sought in the main matter necessarily involves the striking down of legislation. His address for service is care of New Government Complex, 5th Floor, Samora Machel Harare.

NATURE OF THE APPLICATION
6. This is an application made in terms of section 24 (1) of the Constitution of Zimbabwe. The basis upon which it is made is that the 1st respondent breached section 18 (1) by denying us the right of access to the Supreme Court as enshrined in section 24 (2) of the constitution. This application is being made in terms of the decision in Martin v Attorney General & Another 1993 (1) ZLR 153 (S) and I am advised that, that is the way to proceed under the circumstances of this matter.
7. In view of the above, applicant’s seek that the court deal with the issues that were wrongfully refused to be referred to it, as if same had been properly referred.

MATERIAL BACKGROUND FACTS
8 Sometime in October 2008 we were arrested upon allegations of having disturbed the peace, order and security of the public. In due course we were charged with contravening section 37 (1) (a) (i) of the Criminal Law (Codification and Reform) Act (cap 9:23). The charge appears from the charge sheet hereto annexed and marked “A”.
9 I must point out that our crime is said to be that we congregated at a Government Complex, sang, chanted slogans and carried placards. The placards that we carried are supposed to have been objectionable and consequently an exercise in criminality in that they indicated that we wanted teachers for our children and that we complained about the Government of National Unity amongst other complaints. These facts appear from the Outline of the State’s case hereto annexed and marked “B”.
10 After certain other applications made on our behalf an application which has necessitated these proceedings was made on the 5th March 2009. The application was made pursuant to section 24 (2) of the constitution of Zimbabwe. In that application, my legal representative invited the court to refer to this court the question of whether the section under which we are being charged is void for contravening sections 20 (being the provisions which secure the freedom of expression), section 21 (being provisions which secure the freedoms of assembly and association) and section 22 (being provisions which secure the freedom of movement).
11 In the event that the answers to the above questions were in the affirmative, whether our prosecution under the legislation in question is not a breach of our constitutional rights to the protection of the law enshrined under section 18 (1) of the constitution and the right to liberty enshrined in section 13 (1) of the constitution.
12 The referral application was heard by 1st respondent and was refused on the 9th march 2009. In his ruling, the Magistrate devoted much time to recounting the applications that had been made and failed to deal with any of the issues raised. He seems to have dealt with the matter on the basis that there had been prior applications and concluded that the application lacked any bonafides and was of a necessity frivolous and vexatious. I attach the relevant ruling hereto mark it “C”. Clearly the referral was refused on grounds other than that the request was frivolous and vexatious in its substance. The merits or otherwise of the application were totally ignored. I submit that it makes no difference that certain different applications had been made in the past. What was an issue was whether the points raised were meritorious.

THE ISSUES
13 I submit that the refusal to refer the matter was in the circumstances wrongful since the issues raised could not by any stretch of the imagination be deemed to be frivolous and vexations. I am advised that a matter is frivolous if it lacks seriousness, is inconsistent with 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. I am also advised and verily believe that a matter is vexatious if it is put forward for the purposes of causing annoyance to the opposing party in the full appreciation that it cannot succeed and is manifest abuse of court process.
14 I submit that there is nothing frivolous or vexatious about the application for referral for the reasons that I enumerate below. I must point out that what is comfortable unconstitutional and therefore objectionable about the Legislation in question is that it widely cast thus allowing the distinct possibility of abuse. Such abuse has presented itself in the present case. I point out however, the particular, respected in which the Act is unconstitutional which ultimately show that the application was neither frivolous nor vexations.
1. The provision in terms of which we are being charged makes a serious inroad into the freedom of expression to the extent that it allows the state to gag me in expressing legitimate concerns. It seeks to curtail my right or at least gives the court the right to curtail my right to complain in public. That the effect is so, is evidenced by the fact that I am being prosecuted for having indicated that I want teachers to teach my children. There is no legitimate interest, that this law, applied as it has been, serves. In demanding teachers or denouncing a political arrangement I could scarcely be said to be interfering with anyone’s rights. Further no such restriction could be reasonably justifiable in society which has attained our level of democracy. It is also clear that we had not been exercising our freedoms on any place reserved for the ordinary use of the public and even if we had been, there is no indication that we had impeded both human and vehicular traffic. The legislation in question has not attempted to exempt people who find themselves in our situation but has been content with a blanket and wide reach and is on that score unconstitutional.
2. Further, it is also clear that the provision gives the state the basis upon which it can interfere with my right to move together with other people with whom I have a common complaint. In other words, it takes away my right to engage in, and participate in a procession. It criminalises legitimate gatherings and seeks to interfere with my right to gather with those people with whom we have common problems, for the purposes of ensuring that our grievances are addressed. That the effect of the provision is the one I contend, is evidenced by the fact that I am being charged under it for taking part in a legitimate procession.
3. The provision is indeed relentless, it seeks to further curtail my right to move, its effect is that I cannot move if I have to exercise that right together with other people. There is no basis upon which my movement is restricted neither can such a restriction be reasonably justifiable in a democratic society.

15. I am advised that I cannot argue the matter in these papers but can only set out the basis of my arguments as I have done. The points of law will be explored by my representatives in their Heads of Argument.
16. As the 1st respondent did not refer this matter under these clear circumstances, I submit that such refusal to refer breached my right of access to this court and thus negated my right to the protection of the law.
17. In the circumstances, I submit that the court is now at large to place itself in the position that it would have been in had the referral been made. I thus humbly pray that the honourable court deal with the constitutionality of the impugned provisions.

THE RELIEF SOUGHT

18. In view of the above, I submit that a case has been made for a declaration to the effect that the refusal to refer the constitutional issues raised in terms of section 24 (2) of the Constitution to the Supreme Court for its determination is wrongful and is consequently a breach of the section 18 (1) of the Constitution.
19. That under the circumstances, the court should now deal with the issues raised and declare section 37 (1) (a) (i) of the Code unconstitutional and as such void in that it involves the state in the infringement of our right to expression.
20. Further that the impugned provision is void in that it is inconsistent with the guarantee in favour of assembly and association.
21. Finally that the provision is inconsistent with the freedom of movement and is on that basis void.

ALTERNATIVE RELIEF
20. In the event that the court finds the legislation in question is not void, I submit that a case has been made for the suggestion that our prosecution is under the circumstances of this matter a violation of the above rights, more specifically on the grounds above stated.
21. I would in those circumstances pray that the court grant relief in the alternative.
22. In the circumstances, I submit that a case has been made for the relief sought and thus pray for an order in terms of the draft attached hereto.

THUS SWORN TO AND DATED at HARARE THIS 10th DAY OF MARCH 2009.

_______________
JENNIFER WILLIAMS

BEFORE ME: COMMISIONER OF OATHS

CASE NO. chs S.C 53/09
REF CASE NO. MC

IN THE SUPREME COURT OF ZIMBABWE
HELD AT HARARE
In the matter between:
JENIFFER WILLIAMS 1ST APPLICANT
And
MAGODONGA MAHLANGU 2ND APPLICANT
And
PATHEKILE MSIPA N.O 1ST RESPONDENT
And
THE MINISTER OF JUSTICE 2ND RESPONDENT
And
THE ATTORNEY GENERAL, OF ZIMBABWE 3RD RESPONDENT

THE SECOND APPLICANTS’ SUPPORTING AND VERIFYING AFFIDAVIT

I the undersigned MAGODONGA MAHLANGU, do hereby make oath to state that;
1. I am second applicant in this matter and depose to this supporting and verifying in that capacity. The facts hereunder stated are within my personal knowledge and are true and correct.
2. I have read the founding affidavit of Jennifer Williams and associate myself with it. I specifically adopt its contents as if they had been fully deposed hereto.
3. I further confirm Jennifer William’s authority to depose to the founding affidavit on my behalf.
4. I accordingly pray for and order in term of the draft

THUS SWORN TO AND DATE at HARARE THIS 10th DAY OF MARCH 2009-04-27
Signed MAGODONGA MAHLANGU
BEFORE ME: COMMISSIONER OF OATHS

CHARGE SHEET
BULAWAYO CENTRAL 311/10/08

BULAWAYO

BULAWAYO PROVINCE
1. JENNIFER WILLIAMS 46 YRS
2. MAGODONGA MAHLANGU 36 YRS

C/S 37 (I) (a) (i) OF THE CRIMINAL LAW CODIFICATION AND REPORT ACT CHAPTER 9:23

“Acting together with one or more other persons with him/her in any place realizing that there is real risk or possibility of disturbing peace, security or order of the public”

In that on the 16th day of October 2008, the accused persons MAGODONGA MAHLANGU and JENNIFER WILLIAMS one or more of them unlawfully and acting together with one or more other persons with them gathered at Mhlahlandlela government complex singing, chatting slogans and carrying placards realizing that there is real risk or possibility of disturbing peace, security and order of the public.

STATE OUTLINE
BULAWAYO CENTRAL
311/10/08
C/S 37 (I) (a) (i) OF THE CRIMINAL LAW CODIFICATION AND REPORT ACT CHAPTER 9:23
16/10/08 11:15 ARRESTED MHLANHLANDLELA COMPLEX, BYO

1. JENNIFER WILLIAMS 46 YRS
RES: 10 KENT RD, HILLSIDE, BYO
BUS: UNEMPLOYED
2. MAGODONGA MAHLANGU 36 YRS
RES: 1404 NEW MAGWEGWE, BYO
BUS: UNEMPLOYED

POLICE CELLS
THE STATE
01. The accused persons in this matter is Jennifer Williams and Magodonga Mahlangu who belong to a certain organization call Women Of Zimbabwe Arise (WOZA)
02. The complainant in this matter is the state.
03. On the 16th day of October 2008 and at around 1100hrs, the two aforesaid accused persons led a group of about 200 women and proceeded to Mhlahlandlela complex singing, chatting slogans and carrying placards with various messages. Some of the placards were written “ideal lenu selibulele ilizwe, umangoye selala eziko, sifuna amatitsha esikolo.” (Translation inserted by WOZA – your deal has killed the country/ the cat is basking on the stove – implying no food to cook / We want teachers in the schools)
04. When this group arrived at Mhlahlandlela, they were addressed by Jennifer Williams and Magodonga Mahlangu. The group was then ordered to disperse by police but the two above accused persons refused to comply to the orders leading to their arrest.
05. The accused person had no right whatsoever to act in the manner they did.

09 MARCH 2009 Ruling MAGISTRATE PHATHEKILE MSIPA N.O (handwritten)

The applicants are the founder and coordinator of Women of Zimbabwe Arise (WOZA). They were arrested on 16 October 2008 and 19 June 2004 upon allegations of having committed both jointly acts likely to interfere with ordinary comfort, convenience, peace or quiet of the public and also on allegation acting together in any place realising that there’s a real risk or possibility of the disturbing peace, security or order of the public.

On 22 January 2009, counsel for the applicants challenged the right of the state to prosecute the applicants. He did so, on the ground that the facts with the particular sections do not disclose any offence and further he stated that there would be previous prejudice if the accused are prosecuted. It is apparent that their conduct is protected by law. The state responded by opposing the application and stated in its argument that the charges should stand as they are; that both charges disclose an offence in this application the court dismissed the application and reasons were availed to both counsel.

On the 27th January2009 the applicants through their lawyer approached the court seeking a postponement due to the fact that he had other commitments and needed sufficient time to go through the ruling that had been made on the 22nd January 2009.

Once again the state was opposed to the postponement and reiterated by indicting the court that witnesses were in attendance and the defence’s request to postpone the matter was meant to delay the trial.

The court ruled that the trial should proceed and the appellants filed a notice of appeal against refusal to grant a postponement on the 28 January 2009. The order was granted on the 13 February by the High Court that matter should be postponed to 26 February. On the 25th February 2009 counsel filed yet another notice of appeal again the ruling that had been made by the court on the 22 January 2009.

On the 26 February 2009 the matter could be heard because the court did not have the High Court’s order and hence the matter was postponed to the 05/03/09.

On the 05 March 2009 where the matter was supposed to proceed to trial counsel for the applicants indicated to the court that he was requesting the applicants’ matter be referred to the Supreme Court for its decision in terms of S.24 (2) of the Constitution of Zimbabwe.

In the three application the applicants made in this occur referred above, the matter could not commence to trial. Despite the fact that the matter had been set down for trial on the 22 January 2009 by consent. In essence on one was caught by surprise. The witnesses attended the accused persons and the defence attended, the state was ready for trial but defence counsel sought to a postponement as highlighted above by making an application to quash the charge/indictment on the basis that the facts did not disclose a charge.

Subsequently on two other occasions, despite the presence of the witnesses and the preparedness of the state counsel the defence asked for another postponement and the trial was further delayed.

Before this court for determination is a fourth application made on the 5th March 2009 which date was again a trial date.

Section 24 of the Constitution of Zimbabwe has been interpreted clearly by the Supreme Court in the case of Martin vs A.G and Aruss 1993 (i) ZLR at 153 Supreme Court as right to approach the Supreme Court for relief. In that case the Supreme Court laid down the test to be used by the court before which the application is made in terms of that section.
Gubbay C.J as he then was and the other 4 judges of the Supreme Court held “…………the test of whether a request for referral under S24 (2) of the Constitution is frivolous/vexatious is whether or not it would constitute on abuse of the process of the Supreme Court and had to be determined by applying conscientious and objective thought to the question.”

The bona fides of the application can be commended probably by conscientiously and objectively looking at the circumstances preceding this application. The issue of the constitutionality or otherwise of the charges the accused are facing is only being raise now after three other application brought by the defence to present the trial of this matter on three other dates.

It is my objective view that matters brought before this court must be tried on trial date if all witness are present, the court is properly constituted, the defence is present and was aware of the final date and if the accused are in a healthy state making it proper for a comprehensible proceeding. A postponement must e refused save for compelling reasons.

From the attitude of the defence, it would appear from the circumstances and the charge and the facts of the case, the accused are playing for time and are deliberately frustrating the course of justice by preventing the commencement of the trial. The various application made before have not been without merit save for one postponement that they were granted by the High Court from these circumstances. I am convinced that this application is without bona fides and is clearly an abuse of the process of the Supreme Court. My conclusion therefore is that this request for referral under S24 of the Constitution is therefore frivolous and vexatious and must be denied and I order that the matter must proceed to trial.

CASE NO. cns S.C. 53/09
REF. CASE NO. MC

IN THE SUPREME COURT OF ZIMBABWE
HELD AT HARARE
In the matter between:
JENNIFER WILLIAMS 1ST APPLICANT
And
MAGODONGA MAHLANGU 2ND APPLICANT
And
PHATHEKILE MSIPA N.O 1ST RESPONDENT
And
THE MINISTER OF JUSTICE 2ND RESPONDENT
And
THE ATTORNEY GENERAL, OF
ZIMBABWE 3rd RESPONDENT

DRAFT ORDER

HARARE the day of 2009.
BEFORE the honourable Justice in Chambers
Mr. For the applicants
Mrs. For the respondents

WHEREUPON after reading papers filed of record and hearing Counsel,

IT IS DECLARED THAT:

1. The refusal by 1st respondent to refer the Constitutional issues raised by applicants to the Supreme court in terms of section 24 (2) of the Constitution of Zimbabwe was wrongful and as such a breach of applicants right to approach the supreme Court.

IT IS CONSEQUENTLY ORDERED THAT:

2. The court should now deal with the issues raised by the application for referral.

IT IS THUS DECLARED THAT:

3. Section 37 (1) (a) (i) of the Criminal Law (Codification and Reform) Act is inconsistent with sections 20, 21 and 22 of the Constitution of Zimbabwe and is void. Accordingly, it is struck off.
4. Respondents shall jointly and severally the one paying the other to be absolved pay costs of this application.

ALTERNATIVELY:

5. That the prosecution of applicants under the circumstances of this matter constitutes an infringement of section 18 (1) of the constitution in that it is inconsistent with sections 20, 21 and 22 of the Constitution of Zimbabwe.
6. Respondents shall jointly and severally the one paying the other to be absolved pay costs of this application.
BY THE JUDGE

REGISTRAR

Ruling of Magistrate Msipa on constitutional application in the matter of the State vs Williams and Mahlangu

The applicants are the founder and coordinator of Women of Zimbabwe Arise (WOZA). They were arrested on 16 October 2008 and 19 June 2004 upon allegations of having committed both jointly acts likely to interfere with ordinary comfort, convenience, peace or quiet of the public and also on allegation acting together in any place realising that there’s a real risk or possibility of the disturbing peace, security or order of the public.

On 22 January 2009, counsel for the applicants challenged the right of the state to prosecute the applicants. He did so, on the ground that the facts with the particular sections do not disclose any offence and further he stated that there would be previous prejudice if the accused are prosecuted. It is apparent that their conduct is protected by law. The state responded by opposing the application and stated in its argument that the charges should stand as they are; that both charges disclose an offence in this application the court dismissed the application and reasons were availed to both counsel.

On the 27th January2009 the applicants through their lawyer approached the court seeking a postponement due to the fact that he had other commitments and needed sufficient time to go through the ruling that had been made on the 22nd January 2009.

Once again the state was opposed to the postponement and reiterated by indicting the court that witnesses were in attendance and the defence’s request to postpone the matter was meant to delay the trial.

The court ruled that the trial should proceed and the appellants filed a notice of appeal against refusal to grant a postponement on the 28 January 2009. The order was granted on the 13 February by the High Court that matter should be postponed to 26 February. On the 25th February 2009 counsel filed yet another notice of appeal again the ruling that had been made by the court on the 22 January 2009.

On the 26 February 2009 the matter could be heard because the court did not have the High Court’s order and hence the matter was postponed to the 05/03/09.

On the 05 March 2009 where the matter was supposed to proceed to trial counsel for the applicants indicated to the court that he was requesting the applicants’ matter be referred to the Supreme Court for its decision in terms of S.24 (2) of the Constitution of Zimbabwe.

In the three application the applicants made in this occur referred above, the matter could not commence to trial. Despite the fact that the matter had been set down for trial on the 22 January 2009 by consent. In essence on one was caught by surprise. The witnesses attended the accused persons and the defence attended, the state was ready for trial but defence counsel sought to a postponement as highlighted above by making an application to quash the charge/indictment on the basis that the facts did not disclose a charge.

Subsequently on two other occasions, despite the presence of the witnesses and the preparedness of the state counsel the defence asked for another postponement and the trial was further delayed.

Before this court for determination is a fourth application made on the 5th March 2009 which date was again a trial date.

Section 24 of the Constitution of Zimbabwe has been interpreted clearly by the Supreme Court in the case of Martin vs A.G and Aruss 1993 (i) ZLR at 153 Supreme Court as right to approach the Supreme Court for relief. In that case the Supreme Court laid down the test to be used by the court before which the application is made in terms of that section.

Gubbay C.J as he then was and the other 4 judges of the Supreme Court held “…………the test of whether a request for referral under S24 (2) of the Constitution is frivolous/vexatious is whether or not it would constitute on abuse of the process of the Supreme Court and had to be determined by applying conscientious and objective thought to the question.”

The bona fides of the application can be commended probably by conscientiously and objectively looking at the circumstances preceding this application. The issue of the constitutionality or otherwise of the charges the accused are facing is only being raise now after three other application brought by the defence to present the trial of this matter on three other dates.

It is my objective view that matters brought before this court must be tried on trial date if all witness are present, the court is properly constituted, the defence is present and was aware of the final date and if the accused are in a healthy state making it proper for a comprehensible proceeding. A postponement must e refused save for compelling reasons.

From the attitude of the defence, it would appear from the circumstances and the charge and the facts of the case, the accused are playing for time and are deliberately frustrating the course of justice by preventing the commencement of the trial. The various application made before have not been without merit save for one postponement that they were granted by the High Court from these circumstances. I am convinced that this application is without bona fides and is clearly an abuse of the process of the Supreme Court. My conclusion therefore is that this request for referral under S24 of the Constitution is therefore frivolous and vexatious and must be denied and I order that the matter must proceed to trial.

Witness statements and charge sheet for Jennifer Williams and 10 others 19.06.04

STATEMENT 1

BULAWAYO CENTRAL C.R 1018/06/04
RIMAU KAMWAZA N.R 63-915017 T 63
AGE : 31YRS.

States:-
1. I reside at house number 1,6th Avenue Rose Camp and I am currently attached to Police
Reaction Group , which is based at Drill Hall , Bulawayo .I am stationed at Njube police station.
2. I know the accuseds persons , numbering eleven only in connection with this case.
3. On Saturday 19th June 2004 at around 1320 hours I was on patrol duty in uniform in town in the company of Sergeants Charinya and Ngandu . At that we came across a group of the accused persons toy-toying and singing at the corner of 8th Avenue and fife street .The accused were moving towards the northen direction and the group was so disorderly that some were on the pavement and others were on the road.
4. We saw that the actions of the accused persons was disturbing the smooth flow of both traffic and pedestrians and also causing much confusion to the general public. People were being disturbed of their normal activities as they gave way to the accused persons.
5. We stopped our vehicle and ordered the accused persons to stop and we then arrested them . I could not hear what the accuseds were saying in their singing since the vehicle was moving.
6. After having arrested the accuseds we took them to Donnington Police station .

Signed ….RIMAU KAMWAZA
Recorded on 21 / 06/04
TIME : 0930 Hrs
At :C.I.D LAW AND ORDER BYO
BY :D.A.INSP SAMAKANDE

STATEMENT 2

BULAWAYO CENTRAL C.R 1018 /06/04
CHARINYA CHARINYA N.R 12-047041 J 12
RES : No.2 Provost Building Rose Camp Byo
BUS :Z.R.P Hillside

1. I am a male aldult aged 32years residing at the mentioned address. I am employed by the Zimbabwe Republic Police and stationed at Hillside police station . Presently I am attached to Police Reaction Group based at Drill Hall.
2. I know the accused persons only in connection with this case.
3. On the 19th June 2004 I was on duty and in Uniform in the company of Sergeants Rimau And Ngandu. At around 1320 hours we saw the accused persons singing and toy-toying at the corner of 8th Avenue and Fife street . I did not get what they were singing .The group was so disorderly as some were blocking the pavement preventing other people from walking and others were on the side of the road disturbing the smooth movement of traffic .They were moving in the northen direction.
4. We saw that the actions of the accused persons was disturbing the smooth flow of both traffic and pedestrians and also causing confusion to the general public. People were being disturbed of their normal activities as they gave way to the accused persons.
5. We then stopped them and arrested them . I did not hear what they were saying in their singing .We then took them to Donnington Police Station.

Signed: CHARINYA .CHARINYA
Recorded on 21/06/04
Time 0956 Hours
At : C.I.D Law &Order Byo
By : D.A.Insp Samakande

CHARGES:

BULAWAYO CENTRAL 1018/06/04 4196-4206/04

BULAWAYO
TREDGOLD

SEE ATTACHED SCHEDULE

C/S 3(2)(g) of this misc : offence act chapt 09:15:
ENCUMBERS OR OBSTRUCTS THE FREE PASSAGE ALONG ANY STREET ,ROAD ,THOROUGHFARE ,SIDEWALK OR PAVEMENT.

In that on the 19th June 2004 and at the corner of Fife Street and 3th Avenue the accuseds as listed on the schedule to the charge sheet ,one or more of them unlawfully marched in the street , singing and running in a mob along the pavements thereby obstructing the free passage along any street , road ,sidewalks or pavements……

ALT: C/S 7(c) OF THE MISC OFFENCES ACT CHAPT 09:15:
EMPLOY ANY MEANS LIKELY MATERIALLY TO INTERFERE WITH THE ORDINARY COMFORT ,CONVINIENT ,PEACE OR QUIET OF THE PUBLIC:

In that on the 19th June 2004 and at the corner of Fife street and 8th avenue Bulawayo the accuseds as listed on the (charge sheet) schedule to the charge sheet ,one or more of them unlawfully marched in the streets, singing and running in a mob likely materially to interfere with the ordinary comfort ,convenient ,peace or quiet of the public or which are likely adversely to affect the safety of the public or is likely to lead to a breach of the peace or create a nuisance or obstruction…………………….

Charge Sheet, State Outline and Witness Statement against Jennifer Williams and Magodonga Mahlangu 17.10.08

Bulawayo Province CHARGE SHEET – Bulawayo Central 311/10/08
1. JENNIFER WILLIAMS 46 YEARS
2. MAGODONGA MAHLANGU 36 YEARS

C/S 37 (1) (a) (i) of the Criminal Law Codification and Reform Act Chapter 9:23
“Acting together with one or more other persons with him/her in any place realizing that there is a real risk or possibility of disturbing peace, security or order of the public”

In that on the 16th day of October, 2008, the accused persons MAGODONGA MAHLANGU and JENNIFER WILLIAMS one or more of them unlawfully and acting together with one or more other persons with them gathered at Mhlanhlandlela government complex singing, chanting slogans and carrying placards realizing that there is a real risk or possibility of disturbing peace, security and order of the public.

STATE OUTLINE
Bulawayo Central 311/10/08
C/S 37 (I) (a) (i) of the Criminal Law Codifaction and Reform Act Chapter 9:23

16/10/06 – 1115HRS – MHLANHLANDLELA COMPLEX, BYO
JENNIFER WILLIAMS 46 years and MAGODONGA MAHLANGU 36 years

THE STATE
The accused persons in this matter is Jennifer Williams and Magodonga Mahlangu who belong to a certain organization called “Women of Zimbabwe Arise” (WOZA).

The complainant in this matter is the state.
On the 16th day of October, 2008 and at around 1115hrs, the two aforesaid accused persons led a group of about 300 women and proceeded to Mhlanhlandlela complex singing, chanting slogans and carrying placards with various messages. Some of the placards were written ‘ideal lenu selibulele ilizwe, umangoye uselala eziko; sifuna amatisha esikolo”. (Translation: Your deal has destroyed the country/ the cat is using the stove as its bed (implying there is no cooking)/ We want teachers in the school)

When this group arrived at Mhlanhlandlela, they were addressed by Jennifer Williams and Magodonga Mahlangu. The group was then ordered to disperse by police but the two above accused persons refused to comply to the orders leading to their arrest.

The accused persons had no right whatsoever to act in the manner they did.

WITNESS STATEMENT

BULAWAYO CENTRAL IR: 11129/08
STATEMENT

SIBANDA F. 064876R
RES: ZRP ROSS CAMP
WITNESS QUARTERS
BULAWAYO

1. I am a male adult aged 23 years serving in the Zimbabwe Republic Police stationed at Nkulumane Police station but currently attached to Bulawayo Provincial Reaction Group.
2. On the 16th October 2008 at about 1130hrs, I was at PRG base together with my collegues when I was summoned by OIC Byo Central to proceed at Mhlanhlandlela Complex where an unlawful demonstration was taking place.
3. On arrival I found a group of about 300 women some sitting down and some standing holding placards being addressed by Jennifer Williams and Magodonga Mahlangu.
4. The gathering was ordered to disperse by OIC Central and some complied but Jennifer Williams and Magodonga Mahlangu refused to disperse and they were arrested.
5. The placards had different messages written in Ndebele some had the following message:
a. Ideal lenu seli

Request for remand for Jennifer Williams and 13 others – May 2008

REQUEST FOR REMAND

Station: HARARE CENTRAL Prosecutor’s Ref: .R: 1696/05/2008
Section: C.I.D LAW AND ORDER HARARE. DR 06/06/08 C.R.B. No: 3884-97/2008
Investigating Officer: 037428G D/ASS INSP. NYONI Prison No.
(Note: In the case of joint accused, all are to be included on same Request for Remand Form)

Section A
Accused: (full names, N.R/R.C., etc.) JENNIFFER WILLIAMS  Age: 46 yrs
(2) MAGODONGA MAHLANGU  Age:35 yrs
(3) TRACY LEIGH DOIG Age: 33 yrs

Arrested (date) 28th MAY 2008 Time: 1200hrs
ACCUSED 4 TO 14. SEE ANNEXTURE

Section B
Offence(s) – CONTRAVENING SECTION 37 (1) (c) (ii) OF THE CRIMINAL LAW (CODIFICATION AND REFORM) ACT CHAPTER 9:23 “participating in a gathering with intent to promote Public Violence, breaches of peace of bigotry”

Allegation(s) – On (date) 28TH MAY 2008 at (place) CORNER JULIUS NYERERE AND NKWAME NKHRUMA AVENUE, HARARE the accused (state what the accused did) ACTED IN COMMON PURPOSE AND PARITICIPATED IN AN UNLAWFUL GATHERING DRIVING VEHICLE REGISTRATION NUMBER AAQ 7338, A NISSAN PATROL AROUND THE CITY CENTRE HOLDING, DISPLAYING AND DISTRIBUTING BANNERS AND PLACARDS PLUS FLYERS WITH INSCRIPTIONS SUCH AS: “Robert Mugabe you have become known to us for violence”, From 2 April 2008 the Government organized a retribution campaign to target those who allegedly voted for the opposition”, “Over 40 people have been shot dead in cold blood”, “Women Directors of NGOs are on Government hit list”, etc. INFORMATION WHICH IS CALCULATED AT PROMOTING PUBLIC VIOLENCE, BREACHES OF PEACE OR BIGOTRY.

Evidence (state facts linking accused to the commission of crime/offence, e.g. accused was found in possession of stolen , radio, etc)
1. VEHICLE REGISTRATION NUMBER AAQ 7338, A NISSAN PATROL WHICH ACCUSED WERE USING WAS RECOVERED.
2. ACCUSED FOUND IN POSSESSION OF BANNERS, PLACARDS AND FLYERS

Value of property stolen/potential prejudice (Frauds, etc.) $……… Value of property recovered $…N/A

Bail – not opposed/opposed/on Police bail: Yes/No (If yes $…………………………………………………………
Reasons for apposing bail are:
1. Accused has known record/previous conviction (state)
2. Accused has pending cases at court (quote Station, C.R/CRB No.) BYO CENTRAL CR 1018/6/04 CRBs 4196-4206/04 and BYO CENTRAL CR 180/6/07 CRBs 310-2/07
3. Accused is likely to abscond (give reasons e.g. has no family, no house, etc)
4. Accused is likely to interfere with evidence/witnesses (give reasons why you say so) THERE ARE OTHER OUTSTANDING ACCUSED WHO EVADED THE POLICE DURING THE ARREST AND ARE STILL AT LARGE WHO NEED TO BE FOLLOWED UP.
5. Accused is likely to commit other offences (give reasons): THEY HAVE THE POSSIBILITY OF COMMITTING OTHER/SIMILAR OFFENCES AS THEY HAVE OUTSTANDING COURT CASES.
6. Any other reason(s): THE ACCUSED ARE HIGHLY MOBILE AND CAN MOVE FROM ONE CITY/TOWN AND CAN BE HARBOURED ELSEWHERE BY THEIR ORGANISATIONAL COLLEAGUES STREWN AROUND THE COUNTRY, RAISING DIFFICULTIES OF LOCATION THEM IF GRANTED BAIL.

Section D
Date investigation should be completed 12 June 2008 possible number of witnesses SIX (06)
Date: 29/05/2008 Signature: …………………..(Rank) D/ASS/INSP.(No.) 037428 G
Checked: Officer/Member-In-Charge

Section E
Officer/Member-In-Charge
Z.R Police

A N N E X T U R E
ACCUSED PERSONS

4. NOLWANDLE SIMUNYE Age: 25 yrs

5. CELINE MADUKANI Age: 34 yrs

6. MELBA NHAVHAYA Age:58 yrs

7. ALICE KASINAMUNDA  Age: 42 yrs

8 . CLARA MANJENGWA  Age: 30 yrs

9 . VERONICA CHISHAMBWA Age: 52 yrs

10. REJOICE CHAUKE Age: 38 yrs

11. LILIAN NTEFULA Age: 27 yrs

12. TARISAI ZHEKE Age: 24 yrs

13. VERINA MUCHEGU Age: 46 yrs

14. MANDLENKOSI MOYO Age: 32 yrs

Request for remand for Jennifer Williams – May 2008

REQUEST FOR REMAND
Station: C.I.D. LAW AND ORDER HARARE Prosecutor’s Ref: C.R: 1695/05/2008
Section: C.I.D LAW AND ORDER HARARE. DR 08/5/08 C.R.B. No: 3883/2008
Investigating Officer: Mirimbo A. 043465T Prison No.
(Note: In the case of joint accused, all are to be included on same Request for Remand Form)

Section A
Accused: (full names, N.R/R.C., etc.) JENNIFFER WILLIAMS      Age: 46 yrs

Arrested (date) 28th MAY 2008 Time: 1200hrs

Section B
Offence(s) – COUNT 1. C/S 31(a) (1) of the Criminal Law (Codification & Reform) Act Chapter 9.23 “publishing or communicating false statements prejudicial to the state”
COUNT 2. C/S 30 of the Criminal Law (Codification & Reform) Act Chapter 9:23 “causing disaffection among police force or defence forces

Allegation(s) – On (date) 28TH MAY 2008 at (place) CORNER JULIUS NYERERE AND NKWAME NKHRUMA AVENUE, HARARE the accused (state what the accused did) – SEE ANNEXTURE-

Evidence (state facts linking accused to the commission of crime/offence, e.g. accused was found in possession of stolen , radio, etc)
1. THE ACCUSED PERSON ON BEING ARRESTED WAS FOUND IN POSSESSION OF THE REMINDER OF THE WOZA MOYA NEWSLETTER/FLYERS IN HER CUSTODY.
2. ACCUSED HAD BANNERS/PLACARDS AND IN THE COMPANY OF OTHERS WHO CAN TESTIFY THAT THE FLYERS (WOZA MOYA) BELONG TO THE ACCUSED PERSON.

3. VEHICLE REGISTRATION NUMBER AAQ 7338, A NISSAN PATROL WHICH ACCUSED WERE USINGWAS RECOVERED.
4. ACCUSED FOUND IN POSSESSION OF BANNERS, PLACARDS AND FLYERS
Value of property stolen/potential prejudice (Frauds, etc.) $………N/A…..Value of property recovered $…N/A

Bail – not opposed/opposed/on Police bail: Yes/No (If yes $ OPPOSED
Reasons for apposing bail are:
1. Accused has known record/previous conviction (state) YET TO BE CHECKED

2. Accused has pending cases at court (quote Station, C.R/CRB No.) BYO CENTRAL CR 1018/6/07 CRs 1018/06/04 AND CRB 310-2/07

3. Accused is likely to abscond (give reasons e.g. has no family, no house, etc) ACCUSED HAS VEHICLES, MEANS OF MOVING FROM ONE POINT TO ANOTHER WHILST EVADING POLICE AND ALSO TRAVEL DOCUMENTS TO LEAVE OR FLEE THE COUNTRY.

4. Accused is likely to interfere with evidence/witnesses (give reasons why you say so) WHEN THE ACCUSED WAS ARRESTED, SOME OF THER MEMBERS OF WOZA MANAGED TO ESCAPE WHILST IN POSSESSION OF THE COPIES OF THE WOZA MOY NEWSLETTER, EFFORTS TO LOCATE AND RECOVER THESE ARE UNDERWAY IF RELEASED, SHE IS LIKELY TO INTERFERE WITH PROCESS.

5. Accused is likely to commit other offences (give reasons): ACCUSED IS VERY ACTIVE LEADER OF THE WOZA, WITH THE APPROACHING PERIOD OF THE RUN OFF (ELECTIONS) SHE IS LIKELY TO KEEP ON DISTRIBUTING THE STATEMENTS AND THUS COMMIT THE SAME OFFENCES AS WELL AS OTHERS.

6. Any other reason(s): THE ACCUSED PERSON IS VERY INFLUENCIAL, SHE HAS GOT MANY SYMPATHISERS ALL OVER THE COUNTRY WHO HAVE GO SOME SAFE HOUSES. IF ACCUSED IS RELEASED, SHE IS LIKELY TO GO INTO HIDING AND IN THE SAME PROCESS EVADE POLICE.

Section D
Date investigation should be completed 16 June 2008 possible number of witnesses (8)
Date: 29/05/2008 Signature:…………………..(Rank) D/A/I………….(No.) 043465t
Checked: Officer/Member-In-Charge

Section E
Officer/Member-In-Charge
Z.R Police
…………………………………………………..

C.I.D. Law & Order Harare D.R. 08/05/2008 C.R.B. /08
Harare Central C.R. 1695/05/2008

ANNEXTURE OF ALLEGATIONS
Count One
C/S 31 (a) (i) of the CRIMINAL Law (Codification & Reform) Act 9:23 PUBLISHING OR COMMUNICATING FALSE STATEMENTS PREJUDICIAL TO THE STATE.
On the 28th May 2008 at the Corner of Kwame Nkhrumah Avenue and Julius Nyerere Way about 1200hrs, the accused person who is a leader of the Women of Zimbabwe Arise (WOZA) was arrested by police whilst carrying out a procession in which she was in possession of some flyers which she has been distributing in the street. In one of the WOZA Newsletter the message being communicated was “What is there to celebrate when Zimbabweans no longer have faith that their right to vote is respected? And we will ask them to face the fact that Mugabe as the leader of a so called ( liberation war party) has failed to deliver judicial justice. By refusing to release results timeously and unleashing violence on voters Mugabe has betrayed the one man vote ideal our heroes died for” statement s which are false and prejudicial to the State.

Count Two
C/S 30 of the Criminal Law (Codification & Reform) Act Chapter 9:23 “CAUSING DISAFFECTION AMONG POLICE FORCE or DEFENCE FORCES.
On being arrested as per count one above, the flyer which accused was in possession and distributing, the WOZA newsletter also on a paragraph numbered 5 was communicating the following statement/information “that the uniformed forces realise that there is no peace in the absence of justice. We ask them to respect that Zimbabweans have voted for change and refrain from being used to perpetrate violence and to carry out injustices. When change comes, and it will come, WOZA will demand in audit of the civil servants, including the uniformed forces. We, your neighbours in our communities, know you for the things that you do, both good and bad. We will remember. Hear us loud and clear – your leaders may get generous retirement packages but you will be left to face the justice of the law and the anger of the people. When you see us in the streets, we come in peace with love in our hearts and you have the choice to respond likewise and allow us to do our work as mothers of the nation. Good actions will also be remembered and rewarded.” This statement is likely to cause disaffection among the Police force or the Defence Force as it is likely to induce the members to withhold their services or to commit breaches of discipline whilst trying to confirm with accused’s statement.

Application for referral of matter to the Supreme Court

IN THE MAGISTRATE’S COURT CRB NO: 3101-2/07
FOR THE PROVINCE OF MATEBELELAND

In the matter between:
JENNIFER WILLIAMS 1st ACCUSED

and

MAGODONGA MAHLANGU 2nd ACCUSED

and

THE STATE RESPONDENT

1. The accused persons are facing a charge of allegedly contravening Section 37(1) (a) (i) of the Criminal Law (Codification and Reform) Act (Participating in Gathering with Intent to Promote Public Violence, Breaches of Peace or Bigotry) alternatively Section 46 thereof as read with Section 2(v) of the Third Schedule (Criminal Nuisance). It is being alleged that on the 6th of June 2007 the accused persons together with c group of about 25 other women assembled at the entrance of the Bulawayo Central Police Station and demanded the unconditional release of five of their WOZA members who had been arrested.

2. They are presently on remand on bail in the Magistrate’s Court in Bulawayo.

3. The application in casu is made in terms of Section 24(2) of the Constitution of Zimbabwe. The basis for the application is that the aforesaid sections under which, the accused persons are charged violate sections 20, 21, and 22 of the Constitution, which protect the right to freedom of expression, assembly and association as well as the right to freedom of movement respectively.

4. For starters, Section 37 (1) (a) (i) of the Code is couched in such wide and broad terms that make it extremely difficult if not impossible to comprehend the demarcation of the offence. The stated consequences for that matter do not even need to occur. It suffices for conviction that there was a real risk on possibility of those possible consequences eventuating.

5. In the result, all forma of gatherings are thereby placed at risk. The section unduly strikes that the heart of all gatherings. It presents a chilling effect on all gatherings so much so that all kinds of gatherings for whatever purpose can be said to fall within the ambit of the section. It is open to abuse and potentially prohibits all forms of public gatherings or processions.

6. In the circumstances, it thus violates the right to freedom of assembly and association, right to freedom of expression and right to freedom of movement.

7. Seeing as the offence is not only based on the occurrence of certain results, but is also premised on likelihood, in a similar case the Supreme Court in the matter of The State -v- Tsvangirai 2001(2) ZLR426 (5) condemned such wording in legislation.

8. Under Section 50(2) of the repealed Law and Order Maintenance Act (LOMA) an act of terrorism was defined as one likely to cause certain specified results.

9. The Supreme Court in ruling the Section to be unconstitutional remarked as follows:
“By defining an act of terrorism or sabotage widely and vaguely – in particular by defining it as an act that was “likely” to have certain results) and stating those results in extremely broad terms – the section would tend to inhibit persons from legitimately exercising their freedom of expression for fear of falling foul of the law) and would encourage arbitrary and erratic arrests and convictions.”

10. It is this submitted that Section 37(1)(a)(1) which is similarly worded to Section 50 (2) of the repealed LOMA also offends against the constitution.

11. The alternative charge similarly violates Section 20 on freedom of expression, section 21 on freedom of assembly and association and section 22 on freedom of movement.

12. There is no clear-cut definition of what acts are likely to constitute or create a criminal nuisance. It is again couched in such wide, vague, imprecise and all catching terms that make it difficult for people to determine when they can be said to have committed an offence and whey they would still be within the ambit of the law.

13. The offence is premised on likelihood. The results do not have to eventuate. It is a speculative offence that encourages arbitrariness in its enforcement.

14. In the case of Chavunduka and Amor- v- Minister of Home Affairs and Amor 2001 ZLR 552(8) the Supreme Court was faced with a similarly worded section of the repealed Law and Order Maintenance Act. The said Act in Section 50(2) prohibited the making of false statements likely to cause fear, alarm and despondency. The Supreme Court ruled the section to be unconstitutional and struck it down. It reasoned thus at page 553B.

“statutory vagueness cannot be allowed where freedom of expression is at issue; the law must be precise enough to enable a person to regulate his conduct. The provision was far too wide and vague. It forbade statements «likely” to cause fear, alarm and despondency, as opposed to actually causing it. ”

It went on to say at page 561B that:

“It is crucial, therefore, that the law must be accessible and formulated with sufficient precision to enable a person to regulate his conduct. He or she must know, with reasonable certainty, what the law is and what actions are in danger of breaching the law.”

It further stated on the same page in paragraph D that:

“a court must ensure that if human conduct is to be subjected to the authority of any criminal law, the terms of such law must not be vague; or otherwise there will be a denial of due process. ”

15. On the offence being founded on mere likelihood of occurrence of certain consequences the same court at page 562 B reasoned that :

“There is no requirement of proof of any consequences – of damage to the state or impact upon the public. What the lawmaker has provided for is a speculative offence. An offence has been created out of a conjectural likelihood of fear, alarm or despondency which may arise out of the publication of any statement. .. ”

16. The Supreme Court went on to rule that the section was too vague, being susceptible to too wide an interpretation. The aforesaid sections of the Criminal Code are similarly worded and thus fail to stand the constitutional test. They are manifestly ultra-vires the constitution and there is a very high possibility the Supreme Court may rule them to be unconstitutional.

17. This court is therefore urged to refer this matter to the Supreme Court for a determination on the constitutionality or otherwise of those sections under which the accused persons are charged.

DATED AT BULAWAYO THIS 18TH DAY JUNE 2007

JOB SIBANDA AND ASSOCIATES
ACCUSEDS’ COUNSEL
3RD FLOOR, FORESTRY COMMISSION BUILDING
FIFE STREET/L. TAKAWIRA AVENUE
BULAWAYO (Mr Sibanda/nm)

TO: THE CLERK OF COURT
Magistrate’s Court
BULAWAYO

AND TO: THE PUBLIC PROSCECUTOR
Court 2
Tredgold Building
BULAWAYO