Court name
Bulawayo High Court
Case number
HC 293 of 2003

Movement for Democratic Change v Muzeze and Anor (HC 293 of 2003) [2003] ZWBHC 25 (13 February 2003);

Law report citations
Media neutral citation
[2003] ZWBHC 25

                                                                                    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 Tshumafor the applicant

S Mazibisafor 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:

 

                                   

                                                                                    HB 25/03                   

Provided that the regulating authority may, in his discretion, permit shorter notice to be given.

  1. For the avoidance of doubt, it is declared that the purpose of the notice required by subsection (1) is –

 

  1. to afford the regulating authority a reasonable opportunity of anticipating or preventing any public disorder or a breach of the peace; and
  2. to facilitate co-operation between the Police Force and the organiser of the gathering concerned; and
  3. 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

 

                                                                                                            HB 25/03

 

            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:

 

  1. there is a likelihood of the disruption of law and order if the meeting goes ahead; and
  2. 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

 

 

 

                                                                                    HB 25/03

 

 

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

                                                                                                                        HB 25/03

 

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 Tshumahas 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:

 

  1. 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.

 

 

                                                HB 25/03       

  1. 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

                                                                                                            HB 25/03

 

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

 

                                                                                                            HB 25/03

 

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