Amalgamated Rural Teachers Union of Zimbabwe & Anor v ZANU PF & Anor (HC 263 of 2018; HMA 36 of 2018) [2018] ZWMSVHC 36 (28 June 2018)

AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE

and

OBERT MASARAURE

versus

ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT]

and

MINISTER OF PRIMARY AND SECONDARY EDUCATION

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE, 25 & 28 June 2018

Urgent chamber application

Mr D. Coltart, for the applicants

Mr N. Mushangwe, for the first respondent

Mr T. Undenge, for the second respondent

MAFUSIRE J

[1] The first respondent is the ruling party in Zimbabwe. The second respondent is a minister of government in charge of primary and secondary education. He is a member of the first respondent. The matter before me was an urgent chamber application by the applicants for an interdict against the respondents. The first applicant is a trade union of primary and secondary school teachers in rural Zimbabwe. It is duly registered. It has corporate personality, capable of suing and being sued in its own name. The second applicant is a teacher. He is the current president of the first applicant. The interdict was sought to restrain the respondents from certain activities that the applicants considered harmful to themselves and the school children under their care. These activities included:

• coercing school children to attend and participate in political rallies or other activities of the first respondent;

• causing the closure of schools to accommodate the first respondent’s political activities;

• compelling teachers to attend the first respondent’s political rallies;

• compelling teachers to wear the first respondent’s party regalia, and to prepare performances for school children to deliver at its rallies;

• compelling teachers to make contributions in cash or kind towards the first respondent’s rallies;

• commandeering school premises, school buses, furniture, or other property for first respondent’s political rallies;

[2] The chief architect of that abuse was said to be the first respondent, the second respondent being a willing agent.

[3] The core of the applicants’ evidence was a report by the Zimbabwe Human Rights Commission, a body established in terms of s 242 of the Constitution with wide-ranging functions that include the promotion of awareness; respect; protection; attainment and observance of human rights at all levels of society, and the protection of the public against the abuse of power and any maladministration by the State; public institutions and their officers. The report was compiled at the instance of the applicants. They had complained to that body about the desecration of the rights of school children and school teachers as aforesaid. The report covered the period from July 2017. It is not clear when it was actually published. Its major findings were the following infringements:

• A breach of the children’s right to education as enshrined in s 75 and s 81[1][e] of the Constitution. It was said that children periodically missed school after being forced to attend the first respondent’s rallies to provide entertainment through, among other things, participating in provocative dances. Children were said to be exposed to hate speeches and inflammatory language.

• A breach of the right to freedom of assembly and association as enshrined in s 58 of the Constitution and article 8 of the African Charter on the Rights and Welfare of the Child. It was said the children’s attendance at the first respondent’s rallies was secured without their parents’ consent or knowledge; that they were being forced to wear the first respondent’s regalia, and that not only were their teachers forced to attend those rallies as well but also that they had to compose praise poems for recital by the children and to make financial contributions towards the costs of holding such rallies.

• School vehicles like buses and lorries being commandeered to ferry communities to the first respondent’s rallies; school equipment, utensils and furniture such as tables, chairs and sofas being requisitioned for those rallies.

[4] That was the skeleton of the applicants’ case. The flesh comprised sample findings. Below are some of them:

• Teachers’ forced contributions to the costs of the rallies ranged from $1 to $10. Failure invited threats of harm or expulsion from certain districts.

• At one rally held in Gweru in the Midlands Province, school children from grades 4 to 7 walked 11 [eleven] kilometres to the venue and 11 kilometres back. Teachers took turns to walk and catch rides: one batch walking with the children to the venue whilst the other batch using public transport at their own cost, and swapping roles for the return trip.

• On 9 September 2017 there was a Youth Interface Rally for the first respondent that was held in Bindura, Mashonaland Central Province. A directive was issued by a District Administrator in the then Ministry of Rural Development, Promotion and Preservation of National Culture and Heritage which was addressed to primary and secondary schools in Guruve. It read:

“APPEAL FOR CONTRIBUTIONS TOWARDS MASH CENTRAL PRESIDENTIAL YOUTH INTERFACE

The office of the District Administrator together with ZANU (PF) Youth League is appealing for your contributions towards the Presidential Youth Interface rally on a date to be announced soon.

You are aware that His Excellency the President Cde R G Mugabe is on a nationwide tour meeting the youths and from Gweru on 1 September his next destination will be Bindura here in Mashonaland Central. We are requesting for your contributions to buy food and ferry 12000 party supporters to Bindura.

The committee agreed that every civil servant should contribute $1-00 towards this memorable event.

The deadline for the contributions is 6 September 2017.

For any further information contact Mr Machobeni on 0782003702 or the undersigned on 0773022151.”

• During elections, teachers are treated as illiterate voters in need of assistance in the casting of the ballot.

• At All Souls Mission School in Mutoko in Mashonaland Central Province the school head forced teachers to create a political party cell and declare the names of such of their children and relatives as had reached the voting age.

• On 1 June 2018 the first respondent held a rally at Chegutu in Mashonaland West Province. It was a Friday, a school day. Many schools in the surrounding areas were closed in order to facilitate the attendance of school children. A journalist present at the rally took pictures of children clad in the first respondent’s party regalia carrying placards with political messages, and of a school bus that had been used to ferry supporters. He filed a supporting affidavit.

• Another political rally was held by the first respondent on 9 June 2018 at a primary school called Chinzanga in Mashonaland East Province.

• Yet another rally was held by the first respondent on Friday, 15 June 2018 in Masvingo. All provincial and district sporting activities scheduled for that day were postponed indefinitely. A screenshot of the “WhatsApp” message dispatched by the Provincial Education Director for the province to members of the first applicant two days before the rally read:

“Afternoon colleagues. Be advised that all provincial and district competitions set for Friday 15/06/18 have been postponed to a date tba since His Excellence the President of Zimbabwe will be visiting the province. Please note that your buses may be requested for the function. Thanks.”

[5] The applicants averred that they had a reasonable apprehension these violations were set to continue, especially as the country was heading for the general elections on 30 July 2018. The violations were said to be continuing despite the new dispensation obtaining in Zimbabwe. In this regard, I take judicial notice of the seismic changes in the top leadership of the first respondent, and of government in November 2017 when the then first secretary of the first respondent and sitting President of the Republic – Mr Robert Gabriel Mugabe – resigned after an uninterrupted thirty seven years in power since the country’s independence from Britain in 1980. He was replaced by one of the Vice-Presidents – Mr Emmerson Dambudzo Mnangagwa.

[6] The applicants further averred that the violations were continuing despite the recommendations by the Zimbabwe Human Rights Commission in its report. The key recommendation was that political parties in Zimbabwe should adopt a code of conduct the provisions of which should include the following:

• The prevention of misuse and manipulation of school children at political rallies and ensuring that their attendance is free, safe and well protected.

• Keeping school premises free of political meetings and other activities and desisting from the practice of coercing school children to participate in any political gatherings and demonstrations.

• Desisting from abusing school property such as buses and furniture in furtherance of private political interests unconnected to the schools, the teachers, the children and their parents.

[7] The applicants argued that their application was a classic case for an interdict. They said it met all the requirements for that sort of remedy. These requirements are:

• a prima facie right, even if it be open to some doubt;

• a well-grounded apprehension of irreparable harm if the relief is not granted;

• that the balance of convenience favours the granting of an interim interdict;

• that there is no other satisfactory remedy;

see Setlogelo v Setlogelo¹.

[8] The applicants said the matter was urgent. The respondents’ actions violated constitutional rights. The violations were on-going. With the elections drawing closer the violations were set to escalate and become intense. Children were being exposed to hate speech and inflammatory language. The need to act was now, not later. Accompanying the application was a certificate of urgency by a legal practitioner vouching for the urgency of the matter.

[9] The second respondent did not oppose the application. He promised to abide by the decision of the court. The first respondent did oppose. Its grounds were multiple. It first raised technical preliminary objections. It then answered the applicants’ case on the merits.

[10] The first respondent’s first technical objection was that the application was fatally defective for want of compliance with the Rules of the High Court, particularly r 241[1]. This is the rule that prescribes that Form No 29B shall accompany chamber applications, unless the chamber application is one to be served on interested parties, in which case Form No 29 is to be used, but with appropriate modifications. These forms are set out in the Schedule of Forms at the back of the Rules.

[11] The dichotomy between Form 29B and Form 29 is a thoroughly weather beaten path: see Marick Trading [Pvt] Ltd v Old Mutual Life Assurance Company of Zimbabwe Ltd & Anor²; Zimbabwe Open University v Mazombwe³; Base Minerals Zimbabwe [Private] Limited & Anor v Chiroswa Minerals [Private] Limited & Ors⁴.

[12] Form 29B accompanies ordinary chamber applications. One of its important features is that the substantive grounds for the application should be stated on the face of the application in summary fashion. On the other hand, Form 29 should accompany chamber applications that require to be served. The grounds of the application need not be set out on the face of the application. An important aspect of this Form is that it sets out a plethora of procedural rights that, among other things, notify the respondent of the application; his right to oppose, and the consequences of a failure to file opposing papers timeously. The minimum period or dies induciae given the respondent to file any opposing papers is ten [10] days, failing which the matter proceeds on an uncontested basis. But in urgent cases appropriate modifications have to be done to the Form to cut short the dies induciae.

[13] In casu it was plain the applicants had used Form 29B. Thus no dies induciae were given on the face of the application. The first respondent’s point was that since the chamber application was one to be served, it had to be accompanied by Form 29, not 29B, with appropriate modifications. That not having being done, the argument concluded, the application was not only bad, but it was incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse: see McFoy v United Africa Co Ltd⁵.

[14] I did not agree with the first respondent. Raising this point was just a mandatory ritual: see Rufasha v Bindura University of Science Education & Ors⁶. The point was a ‘sterile dispute’ about forms: see Mazombwe, supra. The first respondent’s authorities, particularly Marick Trading and Mazombwe above, were inapposite. Where the courts have dismissed an application for want of form it is usually because the application would have been accompanied by neither Form 29B nor Form 29, but by something else completely alien to the Rules. This was not the case with the applicants’ application herein. Therefore, I condoned their use of Form 29B, or their failure to modify Form 29.

[15] Furthermore, and at any rate, in terms of r 229C, the use of one form instead of another, i.e. of Form 29B instead of Form 29, does not in itself constitute sufficient grounds for dismissing an application. It is necessary for a court or judge to conclude that an interested party has thereby suffered prejudice. In casu, Mr Mushangwe, for the first respondent, had no choice but to concede that the first respondent had suffered no discernible prejudice by the applicants’ use of Form 29B, instead of Form 29. Among other things, the first respondent had filed an elaborate notice of opposition and eloquently placed its case before the court.

[16] The first respondent’s second ground of objection was that the certificate of urgency was palpably defective in that it was bereft of essential averments and replete with typographical errors.

[17] A certificate of urgency is the sine quo non for an application being heard on an urgent basis: see General Transport & Engineering [Pvt] Ltd & Ors v Zimbabwe Banking Corporation [Pvt] Ltd⁷; Chidawu & Ors v Shah & Ors⁸; UZ – UCSF Collaborative Research Programme v Husaiwevhu and Ors⁹ and Odar Housing Development Consortium v Sensene Investments [Pvt] Ltd & Ors¹⁰. As an officer of the court, a legal practitioner, having carefully applied his mind to the matter, certifies it to be one of urgency. Even though the judge eventually dealing with the matter has to decide whether or not it is urgent, he is entitled, in the initial instance, to rely on the opinion of the legal practitioner.

[18] In the instant case, there was certainly an apparent lack of skill and precision in the drafting of the certificate of urgency. For example, in one portion it referred to a rally planned for “… tomorrow 15^th June 2018 …” when the certificate itself was only executed on 18 June 2018. In other portions the certificate confused applicants for respondents. In yet other portions whole words or phrases were missing. In this regard the first respondent picked on a sentence that read: “This is a matter of great importance as it directly [?] the rights of children as well as the freeness and fairness of the 2018 elections.” Plainly the word “… affects …” after “… directly…” was omitted.

[19] However, in spite of the evidence of sloppy drafting, I did not consider the defects fatal. In The Sheriff of the High Court v Majoni & Ors¹¹ I said that silly and harmless typing errors should not impede the determination of the real dispute between the parties: see also Zimbabwe Lawyers for Human Rights v Minister of Transport & Ors¹². In the present case, the defects in the certificate of urgency that the first respondent complained of were inconsequential. I pardoned them.

[20] In substance, the certificate of urgency informed why the matter had to be heard on an urgent basis given that the perceived abuse of the rights of children and their teachers at the hands of the respondents was said to be on-going and disruptive of school life. Mr Coltart, for the applicants, explained the problems associated with preparing court documents in a hurry, particularly given that the certificate of urgency in question had been executed by a legal practitioner from another law firm.

[21] The first respondent’s third point in limine was that the matter was not urgent. It was argued that the mainstay of the applicants’ complaint was the report by the Zimbabwe Human Rights Commission the findings of which had been based on events almost a year old. Mr Mushangwe’s point was that the need to act had arisen when the perceived violations had occurred way back then. For support, he referred to the well-known and oft quoted case of Kuvarega v Registrar-General & Anor¹³, particularly the following seminal statement by CHATIKOBO J, at p 193 F -G:

“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 dead-line draws near is not the type of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timeous action if there has been any delay.”

[22] Mr Mushangwe argued that there was no explanation for the apparent delay by the applicants in bringing the urgent chamber application and that therefore there was no reason at all why it should be given priority ahead of all other matters pending before the courts. He submitted that the last of the incidents complained of had been more than 18 days old. Despite the founding affidavit having been commissioned on 14 June 2018, it was not until 19 June 2018 that the application had finally been filed. The application was no more than political grandstanding designed to attract media coverage.

[23] In Triple C Pigs & Anor v Commissioner-General – Zimbabwe Revenue Authority¹⁴ GOWORA J, as she then was, said that every litigant would want to have their matters heard urgently. The longer it takes to obtain relief, the more it seems that justice is delayed and thus denied. But the courts, in order to ensure the delivery of justice, endeavour to hear matters as soon as is reasonably practicable. In order to dispense justice fairly, a distinction is necessarily made between those matters that ought to be heard urgently and those to which some delay would not cause harm which would not be compensated by the relief that is eventually granted to such litigant.

[24] Mr Mushangwe’s argument that the application largely hinged on the report by the Zimbabwe Human Rights Commission, or that there had been an unexplained delay in bringing the matter to court conveniently glossed over the sorrowful lamentation by the applicants that the violations were continuing. The application was a compilation of disparate grievances by disparate teachers from the disparate districts of Zimbabwe on the manifold wrongful activities by the respondents. The abuses were said to be on-going. Thus each one of them gave rise to a cause of action. Practically, it would have taken time to put it all together. That was Mr Coltart’s explanation. It made sense.

[25] I considered that any breach of the rights accorded by the Constitution should not be allowed to subsist for any day longer. The courts would be failing in their constitutional duty if they were to remain unmoved in the face of reports of such flagrant abuse. They cannot carry on with ‘business as usual’. They should be so concerned as to set aside all other business in order to deal with the situation. That is the essence of an urgent chamber application. Therefore, I once again dismissed the argument that the matter was not urgent.

[26] The first respondent’s last point in limine was that the draft order was defective in that the interim relief sought was almost identical to the final order prayed for. The argument was that the applicants were seeking a final remedy on an urgent basis and that if the interim relief was granted there would be no need for a return day.

[27] Again the dichotomy between an interim relief and a final order in an urgent chamber application is a well-trodden path. It has been stated time and again that the object of an urgent chamber application is to get interim protection. Because of the urgency that may be manifest on the papers, the application is allowed to jump the queue of cases awaiting determination at the courts. But the issues are not interrogated to any great depth. As long as an applicant shows a prima facie right, even if this be open to some doubt; a well-grounded apprehension of an irreparable harm; that the balance of convenience favours the granting of an interim interdict; that there is no other satisfactory remedy; and that there are reasonable prospects of success in the merits of the main case, the applicant should be entitled to relief.

[28] In Kuvarega above, CHATIKOBO J said:

“The practice of seeking interim relief which is exactly the same as the substantive relief sued for, and which has the same effect, defeats the whole object of interim protection. In effect a litigant who seeks relief in this manner obtains final relief without proving his case. That is so because interim relief is normally granted on the mere showing of a prima facie case. If the interim relief is identical to the main relief and has the same substantive effect, it means that the applicant is granted the main relief on proof merely of a prima facie case. This, to my mind, is undesirable where, as here, the applicant will have no interest in the outcome of the case on the return day.”

see also Women & Law in Southern Africa & Ors v Mandaza & Ors¹⁵

[29] In casu, it is true that the interim relief sought in the original draft order was almost identical to the final order sought on the return day. In essence this relief was the interdict to restrain the respondents from continuing with the activities complained of. But my view is that the principle or requirement that the interim relief in an urgent chamber application should not be the same as the final relief to be sought on the return day is not cast in stone. Every case depends on its own facts. In appropriate situations it may be that the relief sought in the interim may be all that an applicant was concerned with yesterday, today and tomorrow. He may want it today on an urgent basis. That does not stop him from wanting it again on a permanent basis on the return day. If it is granted today on an interim basis, all he may want on the return day is its confirmation. All he shows in the interim, among other things, is an actual or perceived infringement of a prima facie right, even if that right be open to some doubt. On the return day he must prove, on a balance of probabilities, an actual or perceived infringement of a clear right. It is not altogether uncommon for the court to grant interim relief, only to discharge it on the return day. Thus, I found the first respondent’s objection a moot point and lacking in merit.

[30] All in all, I considered that none of the first respondent’s technical objections aforesaid, individually or collectively, could block the determination of the matter on the merits seeing that the applicants’ complaint was a breach of fundamental rights and freedoms enshrined in the Constitution. Section 85 of the Constitution says the fact that a person has contravened a law does not debar them from approaching a court for relief. It also says the rules of every court must ensure that they fully facilitate the right of every person to approach the court; that formalities relating to the proceedings are kept to a minimum, and that the court, whilst observing the rules of natural justice, is not unreasonably restricted by procedural technicalities. The Constitution is of course, the supreme law of Zimbabwe [s 2]. Any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

[31] On the grounds above, I dismissed all the first respondent’s points in limine and directed argument on the merits. In summary, the mainstay of the first respondent’s argument on the merits was:

• The events complained of, even if true, were ‘a thing of the past’. The first respondent and Zimbabwe are now in a new dispensation under President Mnangagwa. The violations were probably rife under the then President Mugabe. Not anymore.

• The report by the Zimbabwe Human Rights Commission was one-sided. It contained none of the first respondent’s views. As such it lacked balance.

• The applicants had conflated the functions of the first respondent with those of the second respondent. It is not the policy of the first respondent to require children and teachers to attend its rallies. The first respondent has a large support base and it does not need school children and teachers to bolster numbers. But for the second respondent, the new schools curricula require the preservation of traditional culture. This is done through the compulsory teaching of visual performing arts and mass displays, components of which involve children showcasing traditional dances like “jerusarema”, “mbende”, “muchongoyo”, and the like, at mass gatherings such as rallies.

• Some parents sometimes take their children to the first respondent’s rallies out of necessity if there is no one at home to leave them with.

• The event at Chinzanga School in Mashonaland East Province on 9 July 2018 was not a rally but an occasion for the President to donate computers and therefore one which the school children had to attend.

• There was no evidence placed before the court by the applicants to show that the first respondent had not paid for the buses and lorries used in ferrying communities to its political gatherings or that the equipment; furniture and other property used at such gatherings had not been donated willingly by the owners or the school/parents associations.

[32] In his submissions, Mr Mushangwe stressed that the first respondent was not at all involved in the perverse conduct complained of, that if it was the second respondent doing it, then it was unfair to include the first respondent in the interdict.

[33] Sloppy drafting aside, the application was well supported by very strong evidence of abuse by the respondents in the form of sworn statements by eye witnesses; pictures; media reports; documents; correspondence, and the like. Undoubtedly, the first respondent’s defence was wool over eyes.

[34] I was satisfied that the respondents were guilty of the blatant abuse of the rights and freedoms of the school children; their schools and their teachers as set out in the application. Among others the respondents’ conduct infringed on a number of the rights of children as set out in the Constitution, such as the following:

• the right to education [s 75 and s 81(1)(f)];

• the right not to be compelled to take part in any political activity [s 81(1)(h)];

• the right not to perform work or provide services that are inappropriate for the children’s ages [s 19(3)(b)(i)];

• the right not to perform work or provide services that place at risk the children’s well-being, education, physical or mental health or spiritual, moral or social development [s 19(3)(b)(ii)];

[35] The respondents’ conduct infringed on the rights of the applicants’ members as set out in the Constitution, such as the following:

• the right to freedom of assembly and association, and the right not to assemble or associate with others [s 58(1)];

• the right not to be compelled to belong to an association or to attend a meeting or gathering [s 58(1)];

• [in relation to school premises and assets under their occupation, custody or control] the right to hold, occupy and use property, and the right not to be compulsorily deprived of same [s 71(2) and (3)].

[36] Evidence placed before me was that the Chinzanga Primary School event was a political rally by the first respondent at which school children had been forced to attend. The evidence also showed that it was rampant practice by the first respondent, either directly, or through the agency of officials of the second respondent’s ministry or other government agencies, to commandeer school premises, buses and other vehicles, and to requisition other school assets such as desks, chairs and sofas for use at its rallies. The argument that the first respondent might have paid for them was puerile. The first respondent is free to hire these from private hire companies and leave school assets alone.

[37] The High Court is the upper guardian of all minor children in Zimbabwe. No one tramples on their rights and freedoms and expects the court to look the other way. It will not. A report that grade 4 to 7 children walked 11 kilometres to and 11 kilometres from a rally should invoke outrage in any right thinking member of society. Section 81[2] of the Constitution says a child’s best interests are paramount in every matter concerning the child.

[38] Some events at political rallies are plainly inimical to the safety, social development and moral well-being of children. There was evidence that violence often flared up at first respondent’s rallies. People would get injured. Children are impressionable. The deponent to the first respondent’s affidavit admitted an incident where abusive language was uttered at a rally attended by children, but said the incident was now only relevant for historical purposes because the first respondent, under the new dispensation, is now, as it were, a new creature. I did not agree. Evidence placed before me showed that the first respondent was still the same old creature and still perpetrating the same old abuses.

[39] I found the report by the Zimbabwe Human Rights Commission most credible. It was balanced. Among other things, it made comparisons of rallies by the first respondent and those by one of the main opposition political party. No children were being compelled to attend rallies of opposition political parties. I also found that before it published its report, the Commission had invited the first respondent to comment, but that nobody did.

[40] I was satisfied the application met all the requirements for an interim interdict. It was on that basis that at the end of the hearing I granted the relief sought in the draft order as follows:

“Pending the final determination of this present case and/or the conclusion of the 2018 election cycle, including any run-off election, whichever comes first, it is hereby ordered:

i/ The first respondent is interdicted and restrained from asking, encouraging or forcing children at schools to attend or to participate in political rallies or activities or causing the closure of schools for any of its political rallies or activities.

ii/ The first respondent is interdicted and restrained from compelling teachers to attend political rallies, wear party regalia, prepare performances for children to deliver at rallies or make contributions towards rallies whether in cash or kind.

iii/ The first respondent is interdicted and restrained from using school property including school premises, buses, furniture, classrooms or any other property that belongs to the school, the Government or School Development Associations for any political rally or any other political purpose.

iv/ The second respondent and/or any employees of his Ministry are interdicted and restrained from assisting the first respondent to do any of the restrained activities above or allowing the first respondent to use schools for political purposes.”

16 July 2018

Mtetwa & Nyambirai, legal practitioners for the applicants

Mushangwe & Company, legal practitioners for the first respondent

Civil Division of the Attorney-General’s Office, legal practitioners for the second respondents