8
Judgment No. HB 25/2003
Case No. HC 293/2003
MOVEMENT FOR DEMOCRATIC CHANGE
Versus
CHIEF SUPERINTENDENT C W MUZEZE
And
ASSISTANT COMMISSIONER SIBANDA
IN THE HIGH COURT OF ZIMBABWE
CHEDA J
BULAWAYO 14 FEBRUARY 2003
J Tshuma for the applicant
S Mazibisa for the respondents
Urgent Chamber Application
CHEDA J: This is an urgent application filed on 13 February 2003 for the
following relief.
“That the 1st and 2nd respondents be directed to allow the applicant to hold its public gathering at White City Stadium on 15 February 2003 and to provide security for the peaceful staging of the gathering.”
The background of the matter is that applicant is Movement for Democratic
Change, a duly registered political party in terms of the laws of Zimbabwe. On 6
February 2003 a Mr A Mdlongwa who is the Provincial Chairman of applicant wrote
a letter to 1st respondent who is the regulating authority of Bulawayo Province
notifying him of his party’s intention to hold a public meeting also known as a
political rally and referred to as a Star rally. This notification was in terms of section
24 of the Public Order and Security Act [Chapter 11:17]. Section 24 (1) reads:
“(1) Subject to subsection (5), the organiser of a public meeting shall give at least four clear days’ written notice of the holding of the gathering to the regulating authority for the area in which the gathering is to be held:
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Provided that the regulating authority may, in his discretion, permit shorter notice to be given.
For the avoidance of doubt, it is declared that the purpose of the notice required by subsection (1) is –
to afford the regulating authority a reasonable opportunity of anticipating or preventing any public disorder or a breach of the peace; and
to facilitate co-operation between the Police Force and the organiser of the gathering concerned; and
to ensure that the gathering concerned does not unduly interfere with the rights of others or lead to an obstruction of traffic, a breach of the peace or public disorder.
First respondent responded to this notification on the same day i.e. 6 February
2003 and that letter reads:
“6 February 2003
THE CHAIRMAN (BYO PROVINCE)
MOVEMENT FOR DEMOCRATIC CHANGE
Attention: Mr A Mdlongwa
This office acknowledges receipt of your notice dated 6 February 2003 to hold a star rally/meeting on 15 February 2003 at White City Stadium.
Only skeleton manpower has been left at stations, the rest have already been deployed to cover the International World Cup Cricket which will run up to 15th March 2003.
In the light of the above, this office is unable to sanction your meeting as enough manpower is unavailable to cover your event.
Any inconveniences caused are sincerely regretted.
C.W. MUZEZE (Chief Superintendent)
Officer Commanding
BULWAYO WEST PROVINCE
Cc Officer Commanding Bulawayo Province
Cc C. P. O.
Cc P.D.I.O. West
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In its application the Provincial Chairman deposed to an affidavit wherein he
stated that, applicant organised a political rally to be held on 15 February and 1st
respondent refused them permission to hold this rally on the basis that they do not
have sufficient police manpower to man the meeting. This matter was placed before
me as an urgent matter and upon perusal of the papers I could not see its
urgency. I then invited Mr Tshuma to address me on the question of
urgency. His submissions are that, the matter is urgent because the rally has been set
for 15 February 2003, members of the public have been notified through
advertisements in the newspapers and this has entailed the hiring of tents and a public
address system. Most importantly, that in the event of a cancellation, the people who
have already been notified of this rally will have to be informed through the print
media which on its own is impossible at short notice.
He further argued that it was improper for 1st respondent to refuse applicant
permission wily-nilly. He stated the legal requirements which respondents should
prove on a balance of probabilities are that:
there is a likelihood of the disruption of law and order if the meeting goes ahead; and
that they do not have the capacity to deal with that situation should it arise.
He further argued that the reason that they have a skeleton staff as the rest
has been deployed to cover the International World Cup Cricket is flimsy.
After hearing his address on the urgency, I ordered that both respondents be
served so as to deal with the bona fide or otherwise of their reason for refusal. In
order for a matter to be heard on an urgent basis it is essential that applicant show that
it has a prima facie case and after hearing Mr Tshuma’s submission I was of the view
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that the matter was indeed urgent.
At the next hearing in the afternoon Mr Mazibisa for both respondents
appeared and his arguments are, that indeed respondent were approached by way of
notification by applicant and they were advised that they (respondents) did not have
adequate police manpower to handle such a rally in view of their other commitments
in the Cricket World Cup being staged in Harare and Bulawayo. He further argued
that after applicant was notified by police’s inability to handle this rally Messrs Albert
Mdlongwa and Victor Moyo (the Provincial Secretary General and ward 16
Councillor) respectively held a meeting with 1st respondent wherein full reasons as to
their inability were given and in addition to that respondent gave them statistics of
their manpower in the Bulawayo Province. It is therefore his further argument that as
of 12 February 2003 applicant were aware of the reasons of respondents’ inability.
Incidentally, it is on the same date that applicant filed an urgent chamber application
with this court.
Mr Mazibisa further argued that in terms of section 24 of Public Order and
Security Act applicant as the aggrieved party should have appealed to the Minister.
He also submitted that it is common knowledge that political rallies at White City
Stadium have often resulted in violence.
Mr Tshuma in reply argued that in relation to the provisions of section 24 of
Public Order and Security Act the court’s jurisdiction is not ousted by those
provisions. I agree with Mr Tshuma because the court has an inherent jurisdiction to
preside over all judicial or quasi-judicial bodies as it were, depending on the
circumstances of each case. The notification was made on 6 February 2003 and the
rally was due to be held on 15 February 2003, which is a period of one week, that
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period would not, with all respect have allowed applicant to note an appeal to the
Minister as required, in any case the use of the word may as opposed to shall speaks
volumes of the discretion on the part of the applicant. (my emphasis) It would not
have been possible for applicant to appeal to the Minister and achieve its purpose in
the circumstances.
Mr Tshuma has argued that there are basically two requirements. As pointed
out above, respondent has two requirements which it must show to the court. I
therefore propose to deal with them as follows:
Is there a likelihood of the disruption of law and order if the meeting is held.
In deciding this question, it is important to approach it objectively and in my
view it is pertinent to take into account the outcome of previous rallies at this
venue. In addition to that, one has to be live to the animosity which exist
between ZANU (PF) and MDC which on many occasions has resulted in
unnecessary violence in these rallies nation wide. It is common knowledge
that as of now there are two rival political parties in the country namely
ZANU(PF) and applicant. It is also common knowledge that lives have been
lost at these rallies as a result of members of those parties fighting each other.
The likelihood of violence should not just be a mere likelihood it must be a
real likelihood and to properly assess it, one can not ignore the tension
presently existing in the country. It is for that reason that the police are to be
notified whenever a public meeting, notably of a political nature is to be held.
The courts have a duty therefore to see to it that law and order is maintained
on the land.
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That they do not have the capacity to deal with that, should the situation arise.
The police, as Mr Tshuma, correctly pointed out, should protect members of
the public in the exercise of their constitutional rights e.g. demonstrations in
expressing their disgruntlement or association for a common good even if it is
against the Executive. This right is, internationally recognised and has to be
protected by these courts.
Respondent provided figures of their manpower and the deployment plan to
applicant. This was to demonstrate that they do not have adequate capacity to
deal with a violent situation should that arise.
The respondents argued that there is no urgency in the matter as they state
applicant were aware of their stand. Applicant indeed have gone out of their way to
advertise and book the venue for the rally, they, however, did so with the full
knowledge that respondents were not going to provide adequate security. Surely,
where a party is aware that the holding of a function is dependent on the co-operation
of the other party, but, proceeds to make all the necessary and expensive plans
without assurance of that co-operation can not be heard to cry foul when his plans on
good grounds shown are scuttled. What applicant has done is to arm twist respondent
despite the fact that it was advised against holding the rally and statistics given that
they were not able to provide security. It is common knowledge that the hosting of
the World Cricket Cup by all host countries has necessitated the visit by the
International Cricket Council security officers who have had to satisfy themselves that
adequate security measures of a particular country are up to their standard. For that
reason, it was reasonable for respondents to make adequate preparations in order to
avoid a let up. Those security arrangements have to be weighed against the needs and
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necessity for applicant to hold a star rally. According to their papers, the star rally is a
“report back”. It is not clear what is to be reported back. It would have been
necessary in my view to disclose in general terms so as to enable me to determine the
importance of the rally vis-à-vis the justification of the respondent’s refusal to
sanction this rally on the basis of having deployed their police force at various places
for the cricket match.
As it is, respondents argue that in the event of a break down of law and order
they will not be in a position to contain the situation. If this happens, the duty which
section 24(2) seeks to impose on the Regulating Authority will be defeated.
Mr Tshuma has argued that it is the people’s right to attend gatherings such as
political rallies. I can not agree with him more. However, it is important to note that
in a city like Bulawayo with the number of people, who are likely to attend the
rally vis-à-vis those who will not attend is small. In our quest to protect their
constitutional rights of the people sight should not be lost of the fact that there is a
real likelihood of irreparable harm occurring should violence break out. Respondents
have produced evidence to show that they have previously sanctioned political rallies
and/or meetings before and the latest having been on 1 February 2003 at Tshabalala
Hall. In view of that it is their argument that their refusal to sanction is therefore bona
fide.
Respondents have in my view proved on a balance of probabilities that their
refusal to sanction this rally is bona fide in that there is indeed an international cricket
tournament taking place in the country which has taken up a large number of their
police officers to protect international players and as such should a violent situation
obtain at White City Stadium, bearing in mind, the previous skirmishes at such
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rallies, they will be ill equipped to contain the situation.
In my view the court will be failing in its duty to protect members of the
public if it allows such a rally to proceed when the police have already proved on a
balance of probabilities that they are not ready to do so. The balance of convenience
favours the respondents.
I find that it is improper to ask the respondents to do what is clearly a physical
impossibility and I accordingly dismiss this application with costs.
Webb, Low & Barry, applicant’s legal practitioners
Cheda & Partners, respondent’s legal practitioners