No. SC. 79/05
Appeal No. 71/05
THE OFFICER IN CHARGE, LAW AND
ORDER SECTION, ZRP BULAWAYO CENTRAL
THE COMMISSIONER OF POLICE, ZRP HARARE
THE ATTORNEY-GENERAL OF ZIMBABWE
COURT OF ZIMBABWE
JA, MALABA JA & BERE AJA
NOVEMBER 28, 2005.
Sibanda, for the appellant
Ndove, for the respondents
JA: After hearing the appellants counsel, we dismissed this
appeal with costs and indicated that the reasons would follow.
These are they.
appellant was a duly elected Member of Parliament for the Makokoba
Constituency in Bulawayo at the time of the incident that
led to this
appeal. She represented the Movement for Democratic Change, an
opposition political party in Zimbabwe.
January 2005 new constituency boundaries were announced in
preparation for the general elections that were to take place in
23 January 2005 the appellant called for a meeting of her
constituents at her restaurant, which is along Leopold Takawira
Avenue in Bulawayo. More than eighty people from various wards of
her constituency attended the meeting. Members of the Zimbabwe
Republic Police arrived, broke up the meeting and arrested the
appellant was charged with contravening s 24(6) of the Public
Order and Security Act [Chapter 11:17] (the Act)
(also known as POSA) - holding a public meeting without
notifying the authority concerned. She was then
placed on remand by
the magistrate's court and at the time of the hearing of this appeal
she was still on remand in respect of that
appellant, being of the view that the meeting she had called was a
private one and did not fall under the type of meetings or
prohibited by s 24 of the Act, approached the High Court seeking
a declaration in the following terms:
1. That it is hereby declared
that section 24 of the Public Order and Security Act
[Chapter 11:17], as read with section 2 thereof,
does not oblige the organiser or convenor of a meeting to notify the
concerned, if such meeting or gathering be a
private meeting or gathering.
the avoidance of doubt, the organiser of such meeting as is referred
to in (a), above, shall not be held to have contravened
of POSA, as read with section 2 thereof, where the meeting or
gathering concerned is not a public meeting or
respondents pay the costs of this application jointly and severally,
the one paying to absolve the others.
appellant also sought the following interim relief:
confirmation or the discharge of the order, that this order shall
operate as a temporary order
1. Restraining the second
respondent, through his officers, from disrupting, breaking up or in
any way interfering with the holding
of any private meeting held by
the applicant, whether such meeting be held in a private place or
the second respondent, through his officers, from causing the arrest
of the applicant for holding such meetings.
High Court declined to grant the declarator and ordered the
appellant to pay the costs.
appellant appealed against this refusal by the High Court to grant
the declarator sought.
find the appellants position to be difficult and confused, unless
there is an error in the typed judgment of the High Court.
judgment the Judge of the High Court stated:
Mr Sibanda urged me not
to dismiss the application but instead to decline to make the
the end of his judgment the High Court Judge stated:
I decline to grant the declarator
sought, with the applicant paying the costs of the application.
is not clear why the appellant, having asked the court to decline to
grant the declarator
and the court having done exactly that, now appeals to this Court
against that order.
now to the merits, s 24 of the Act reads as follows:
24. (1) Subject to
subsection (5) the organiser of a public gathering 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:
main issue raised by the appellant is whether the meeting that she
called was a public or a private meeting.
appellant is currently on remand. The main issue to be determined
at her trial is clearly whether her gathering was a public
one or a
private one. If it was not a public meeting, as she submits, she
will be acquitted. If the gathering was a private one
as opposed to
a public one, that is a defence that is still available to her, which
could lead to an acquittal if proved. If it
was not, the trial
court will make an appropriate finding.
issue is therefore one to be determined by the trial court, after
hearing evidence. It is neither for the High Court to take
itself to determine, nor for this Court to do so on appeal. It is a
question of interpretation, and depends mainly on the evidence
will be led at the trial. Until then, this Court is not in a
position to interfere. This is a court of appeal. The appellant
can only come on appeal against the determination of the magistrate's
court once the matter has been determined in a manner that
considers to be incorrect.
find that the High Court was correct in declining to grant the
as the application to it had no merit. In any event, there is no
point in issuing a declarator
concerning private meetings because that is common cause. To do so
would be simply to repeat to the police what they already know.
police, in their request for remand, said the appellant organised a
public, not a private, gathering.
appeal to this Court has no merit either and that is why we ordered
it dismissed with costs.
JA: I agree.
AJA: I agree.
Sibanda & Associates,
appellant's legal practitioners
Hara & Partners,
respondents' legal practitioners