URGENT CHAMBER APPLICATIONveritaszim.net/sites/veritas_d/files/Democratic... · Certificate of Urgency 3. 1 sr Applicant's Founding Affidavit 4. 2nd Applicant's Supporting Affidavit

• IN THE HIGH COURT OF ZIMBABWE HELD AT HARARE

In the matter between:-

DEMOCRATIC ASSEMBLY FOR RESTORATION & EMPOWERMENT (DARE) STENDRICK ZVORW ADZA COMBINED HARARE RESIDENCE ASSOCIATION NATIONAL ELECTORAL REFORM AGENDA (NERA)

AND

NEWBERT SAUNYAMA THE COMMISSIONER GENERAL OF POLICE THE MINISTER OF HOME AFFAIRS THE A TIORNEY GENERAL OF ZIMBABWE

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1q APPLICANT 2Nn APPLICANT 3RD APPLICANT 4TH APPLICANT

1ST RESPONDENT 2Nn RESPONDENT 3RD RESPONDENT 4TH RESPONDENT

URGENT CHAMBER APPLICATION FOR A DECLARATORY ORDER

Prepared by: TEND AI BITI LAW Applicants' Legal Practitioners HMB CHAMBERS 28 Rowland Square Milton Park HARARE [TB/om/Dare]

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IN THE HIGH COURT OF ZIMBABWE HELD AT HARARE


DEMOCRATIC ASSEMBLY FOR RESTORATION & EMPOWERMENT (DARE) STENDRICK ZVORW ADZA COMBINED HARARE RESIDENCE ASSOCIATION NATIONAL ELECTORAL REFORM AGENDA (NERA)

AND

NEWBERT SAUNYAMA THE COMMISSIONER GENERAL OF POLICE THE MINISTER OF HOME AFFAIRS THE ATTORNEY GENERAL OF ZIMBABWE

INDEX

ITEM DESCRIPTION 1. Urgent Chamber Application

2. Certificate of Urgency

3. 1 sr Applicant's Founding Affidavit

4. 2nd Applicant's Supporting Affidavit

5. 3'" Applicant's Supporting Affidavit

6. 4th Applicant's Supporting Affidavit

4. Annexure 'A' Letter dated 29th of August 2016

5. Provisional Order

DATED AT HARARE ON THIS znd DAY OF SEPTEMBER 2016.

TO: THE REGISTRAR High Court of Zimbabwe HARARE

And To: NEWBERT SAUNYAMA 1 sr Respondent PGHQ Cnr Chinamano/7tl' Street

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l 5T APPLICANT zND APPLICANT 3RD APPLICANT 4TH APPLICANT

1ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT

PAGE{S} 1 - 2

3 - 5

6- 7

8- 21

22- 23

24- 27

28- 29

30- 32

TENDAI BITT LAW Applicants' Legal Practitioners

HMB CHA11BERS 28 Rowland Square

Milton Park HARARE [TB/om/Darel

I

.. And To:

And To:

And To:

HARARE

THE COMMISSIONER-GENERAL OF POLICE 2ll'1 Respondent

PGHQ Cnr Chinamano/Th Street

HARARE

MINISTER OF HOME AFFAIRS 3'J Respondent

PGHQ Cnr Chinam<mo/Th Street

HARARE

Civil Division of the Attorney General's Office 4rh Respondent znd Floor, Block A

New Government Complex

HARARE



DEMOCRATIC ASSEMBLY FOR RESTORATION & EMPOWERMENT (DARE) STENDRICK ZVORWADZA COMBINED HARARE RESIDENCE ASSOCIATION NATIONAL ELECTORAL REFORM AGENDA (NERA)

AND

NEWBERT SAUNYAMA THE COMMISSIONER GENERAL OF POLICE THE MINISTER OF HOME AFFAIRS THE ATTORNEY GENERAL OF ZIMBABWE

URGENT CHAMBER APPLICATION

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l 5T APPLICANT zNo APPLICANT 3RD APPLICANT 4TH APPLICANT

1ST RESPONDENT zNo RESPONDENT 3Ro RESPONDENT 4TH RESPONDENT

PLEASE TAKE NOTICE THAT Applicants hereby make an urgent chamber application seeking an order to set aside SI lOlA of 2016 on the following grounds:-

a. That the same is in breach and ultra vires the provisions of Section 134 of the Constitution of Zimbabwe and Section 2 7 of the Public Order Security Act;

b. That in any event S.I lOlA of 2016 is in breach of the provisions of Section 68 of the Constitution of Zimbabwe;

c. That in any event S.I lOlA of 2016 is in breach of the fundamental rights of the Applicants in particular the rights provided Sections 58, 59, 61, 66, and 67 of the Constitution of Zitnbabwe.

FURTHER TAKE NOTICE THAT the accompanying affidavits and documents are tendered in support of the application. .

DATED AT HARARE ON THIS 2"d DAY OF SEPTEMBER 2016. I

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I

TENDAI BITI LAW Applicants' Legal Practitioners

HMB CHAJv1BERS 28 Rowland Square

Milton Park HARARE [TB/om/Darel

TO: THE REGISTRAR High Court of Zimbabwe HARARE

And To:

And To:

And To:

And To:

NEWBERT SAUNYAMA 1" Respondent PGHQ Cnr Chinamano/Th Street HARARE

THE COMMISSIONER-GENERAL OF POLICE 2nd Respondent

PGHQ Cnr Chinamano/Th Street HARARE

MINISTER OF HOME AFFAIRS 3fl1 Respondent PGHQ Cnr Chinamano/Th Street HARARE

Civil Division of the Attorney General's Office 4rh Respondent znd Floor, Block A New Government Complex HARARE

IN THE HIGH COURT OF ZIMBAB\VE HELD AT HARARE


DEMOCRATIC ASSEMBLY FOR RESTORATION AND EMPOWERMENT (DARE) STERNDRICK ZVORWADZA COMBINED HARARE RESIDENCE ASSOCIATION NATIONAL ELECTORAL REFORM AGENDA (NERA)

AND

NEWBERT SAUNYAMA N.O. THE COMMISSIONER GENERAL OF POLICE THE MINISTER OF HOME AFFAIRS THE ATTORNEY GENERAL OF ZIMBABWE

CERTIFICATE OF URGENCY

1, DZIMBABWE CHIMB\WA do hereby declare that:-

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l~n APPLICANT zNn APPLICANT 3 HD APPLICANT 41 H APPLICANT

ls1 RESPONDENT zNn RESPONDENT 3nn RESPONDENT 4TH RESPONDENT

1. I am a Legal Practitioner and officer of this Honourable Court practicing law

as the human rights defender with the Zimbabwe Lawyers for Human Rights in

Harare.

2. I confirm that I have read the Applicant's founding papers in this matter.

3. As a lawyer for the Zimbahwe Lawyers for Human Rights, I confirm that I am

fully aware of the facts pertaining to this matter having been involved in many

other previous matters involving demonstrations and processions and, in

addition, I confirm that I have read the affidavits of the Applicants in this

matter.

4. I confirm that this matter is urgent for two reasons.

1

---------------------------------5. Firstly, the issues raised in this matter involve a serious fundamental breach an

infraction on rights of the Applicants and indeed citizens of Zimbabwe as set

out and defined in the Constitution of Zimbabwe.

6. These rights include the right to freedom of movement from association,

freedom to participate in demonstrations to petition the government and

freedom to participate in political activities.

7. The rights are deep, set out in Section 58, 59, 61, 62, 66(2) and 6 7 of the

Constitution of Zimbabwe.

8. The net effect of the SI lOlA of 2016, is literally to amend the Constitution or

to suspend the operations of the enjoyment of those rights for the period of

two weeks.

9. Where a violation of constitutional rights occurs, it is my respectful contention

that the matter becomes urgent and immediate for there is nothing superior

and sacrosanct as the protection of fundamental rights.

10. Besides and in any event, the Applicants in casu, all intended to march on the

2nd of September 2016 and have all proposed marches and processions in the

following week.

11. The regulations are of such a sweeping nature that even other organisations

that under ordinary circumstances would not have to give notification in terms

of the Public Order Security Act are affected to the extent that SI 10 lA of

2016, has the literally effect of protecting the central business district, wherein

all government departments and ministers are housed from access by those

wishing to present petitions in terms of Section 59 of the Constitution of

Zimbabwe.

12. I therefore regard in my opinion and experience this matter to be extremely

urgent.

2

Thus Declared and signed at Harare on this znd day of Septen1ber)Ol6 .

. /

DZIMBABWE CHI~1BWA

-DZl~BAB~; ~~~~~~~~HTS LAW)

LLB (HONS) UZ,LLM ( . . ME . NOTR~ DA ARY PUBLIC &

CONcVJ:~~~~~O~~RT OF OATHS ZIMBABWE

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AND


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1s1 APPLICANT 2ND APPLICANT 3nn APPLICANT 4TH APPLICANT

1ST RESPONDENT 2"T() RESPONDENT 3nn RESPONDENT 4TH RESPONDENT

rt APPLICANT'S SUPPORTING AFFIDAVIT

I, GILBERT DZIKITI do hereby make oath and state that:,

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1. I am the President of the 1st Applicant in this matter. As such I am

duly specifically authorised to make this affidavit on its behalf. The

facts I depose hereto are fully within my knowledge and to the best of

my belief true and correct.

2. I confirm t~at I have read the affidavit of the 2nd Applicant in this

matter Sterndrick Zvorwadza.

3. I incorporate herein as if specifically traversed the contents of her

affidavit.

4. For us as DARE, we intended to participate 1n peaceful and

constitutional demonstrations demanding electoral reforms on Friday

2nd of September 2016. The publication of SI lOlA of 2016 thus

prevented us from carrying out this process.

1

5. We also intend to hold a further protest next week on Friday. We are

unable to do this because of Statutory lnstrun1ent lOlA of 2016.

6. We consider the SI lOlA, a serious infringe1nent of our constitutional

rights as defined in Section 59, Section 58 (1), Section 61, Section 66,

and Section 67 (2) of the Constitution.

7. We therefore pray that the regulations be set aside and ask that this

court issues a disposition in terms of the provisional order sought.

Thus Sworn and Signed at Harare on this znd day of September 2016.

Before me:~

GILBERT DZIKITI

COMMISSIONER OF OATHS ~·---CH-IE_D_Z_A_SH_O_N~IW~A~,--~

LEGAL PRACTITIONH\ COMMISSIONER OF OATHS ;

2



DEMOCRATIC ASSEMBLY FOR RESTORATION AND EMPOWERMENT (DARE) STENDRICK ZVORWADZA COMBINED HARARE RESIDENCE ASSOCIATION NATIONAL ELECTORAL REFORM AGENDA (NERA)

AND


HC /2016

1 <rr APPLICANT 2ND APPLICANT 3Rn APPLICANT 4TH APPLICANT

. lsiRESPQNDENT . No .... '- -.. 2 RESPONDENT ... I

, 3RD RESPONDEI'fr ., 4TH RESPONDENT

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znd APPLICANT'S FOUNDING AFFIDAVIT. , '·~ , ~

I, STANRICK ZVORWADZA do hereby make oath and state that:~

1. I am the 2nd Applicant in this matter. The facts I depose hereto are

fully within my knowledge and to the best of my belief true and

correct. Where I make averments of law I do so on the basis of advice

from counsel which advice I fully accept.

A. THE PARTIES

1. The pr Applicant 1n this matter is the Den1ocratic Assembly for

Restoration and Empowerment (DARE), being a political party duly

registered political party according to the laws of Zimbabwe with

capacity to sue and be sued. It is represented herein by its President

Mr Gilbert Dzikiti and as will be evident from below, has a direct

interest in the order that is sought in casu.

1

As the Second Applicant, I an1 a human rights activist in this country

and also the chairperson National Vendors Union an active lobby

group for vendors across the country.

3. In this capacity, National Vendors Union, we regularly organ1se

marches including handing over petitions to various governn1ent

departments situate in the Central Business District of Harare.

4. The 3rd Respondent is the combined Harare Residence Association,

being a common law univesitas whose key functions is to represent the

Residence of Harare on local authority issues.

5. The 4'h Applicant is National Electoral Reforn1 Agenda (NERA) being

a univesitas at law, being an association of 18 political parties 1n

Zimbabwe whose mandate is to address the challenge and issue of

electoral reform in Zin1babwe.

6. The address of service of the Applicants is care of the undersigned legal

practitioners of record.

7. The 1'' Respondent 1s Newbert Saunyama, who is the Chief

superintendent officer commanding police Harare Central District.

He is sued as such and in his personal capacity for the role he has

personally played in the enactment of the Statutory Instrument which

is the subject and cause of action in this matter. He has committed

certain constitutional breaches that demand that he bares personal

responsibility.

8. The 1 '' Respondent 1s the Regulatory Authority for Harare Central

District as defined in tern1s of Section 4 of the Public Order Security

Act [Chapter 11: 17].

2

9. The Regulating Authority in terms of POSA, has the power to regulate

public detnonstrations and processions as defined in the Act.

10. The 3rd Respondent is the Comn1issioner~General of Police, duly

appointed as such in tern1s of Section 221 of the Constitution of

Zhnbabwe. He is responsible for running the Zimbe1bwc Police has

defined in Section 219 of the Constitution of Zitnbabwe.

11. The 4rh Respondent is the Minister of Hon1e Affairs, duly appointed as

such by the President in tern1s of Section 2 20 of the Constitution of

Zimbabwe to run the affairs of the police and to administer the Police

Act.

12. The 5rh Respondent ts the Attorney General of Zimbabwe duly

appointed by the President in terms of Section 114 of the Constitution

of Zimbabwe. He is cited as such in this matter as an adviser and

attorney to the government but more importantly as the drafter and

craftsman of the statutory instruments that is primarily being

challenged in casu.

BACKGROUND

13. Since May 20.16, the citizens of Zin1babwe have organised themselves in

peaceful marches and protests as permitted and provided by Section 59

of Constitution of Zimbabwe, raising various issues with the

authorities.

14. On n1y part, I have led peaceful demonstrations, in compliance with

the law, wherein I have raised matters such as the right of vendors to

sell their wares in local authorities, the right of citizens to access their

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15.

16.

17.

cash fron1 banks, the ren1oval of police traffic (roadblocks) from rhe

streets of Zin1babwe an1ongst other things.

. us Consequently through these peaceful protests, I have presented Vi:lf1° '

petitions to Parliatnent, the Ministry of Finance, the Reserve B<lnk of

Zimbabwe, the Zimbabwe Electoral Con1n1ission and other public

bodies on matters affecting Zimbabwe.

· ns I have also personally been involved in can1paigns and petitiO '.

d h 1 d f h . 1 . . t Ita 1 connecte wit t 1e is appearance o one uman ng 1ts actiVIS '

Dzamara, in March 2015.

In all these marches and protests, I and my colleagues have been d with peaceful and the only instances of violence have occurre

members of the police unleashing the same against us.

18. As I speak now, it is our intention to hold a public demonstration, on

Thursday 8'h of September 2016 against police brutality and in the

preparation of this, I intended to issue a notice to the Second

Respondent in terms of Section 12 of POSA [Chapter 11: 17].

19. Our preparations for our march next week are already advanced i:lnd in

the process we are in the process of printing t~shirts and banners to

facilitate this march.

20. Before we have had an opportunity to notify the Second Respondent of

our intention to demonstrate and the route which we intend to use to

present the petition to the Minister of Home Affairs, we were shocked

to receive in the evening of Thursday the rt of Septen1ber 2016, news

of the publication Statutory Instrument 10 lA of 2016, being the

Public Order and Security (Temporal Prohibition of public

4

Demonstrations in the Central Business District of Harare Central

Police District ()rder 20 16). Hereinafter referred to as S.I 10 1A of

2016.

21. The said statutory instrument, purportedly issued by the First

Respondent in terms of Section 2 7 (1) of POSA, seeks to proscribe, any

public processions for a period of two weeks fron1 Friday 2nd of

Septen1ber 2016 to Friday 16rh September 2016 in the Harare Central

Business District.

22. Harare Central Police District is defined to mean the areas bounded by

the Rekai Tangwena Avenue, Coventry Road, Rotten Row, the

National Railways of Zimbabwe up to the Mukuvisi River, Enterprise

Road, Church Hill Road, Swam Drive, Cork Road, Sandringham

Drive, Dramond Chaplin Street and Bishop Goal Avenue.

23. The net effect of this is that I and my fellow compatriots will not be

able to carry out our march next week or in the next two weeks. It also

means that churches and other bodies, who have nothing to do with

the politics or public issues are also not able to carry out protests or

marches or petitions.

24. SI lOlA of 2.016 is so sweeping and wide in its nature, that it denies

access to any Zimbabwean wishing to exercise his right to petition the

government approaching members of authorities that are in any event

all in Harare Central District.

25. The regulations are such a senous breach of the following

constitutional rights that are:~

(a) My right to demonstrate and petition as defined in Section 59;

5

(b)My right to freedom of assembly and association as defined in

Section 58;

(c) My right to freedom expression as defined in Section 51; and

(d)My right to political rights as protected by Section 67 of the

Constitution of Zin1babwe.

26. To the extent that regulations were purportedly n1ade in terms of

Section 27 (1) of POSA. I contend that this section which empowers

regulating authority to prohibit the holding of public demonstrations

within certain districts in respect of a period not exceeding one month,

is clearly unconstitutional and is not justifiable in a democratic society

based on openness, justice, human dignity, equality and freedom.

The cause of action

2 7. The instant application is one that seeks to set aside every nullity of S.l

lOlA of 2016 on the basis that its enactment procedurally was in

breach of the Constitution as well as the POSA itself and that in

substance, its enactment infringes on certain constitutional rights some

of which I have already mentioned above.

28. This application is also one to set aside as unconstitutional the

provisions of Section 2 7 of the Public Order Security Act.

29. To the extent that we intend to hold demonstrations as early as

Thursday the srh of September 2016 this application is brought as an

urgent application seeking to suspend of SI lOlA of 2016 immediately,

and to allow the Regulating Authority to deal with each of our

notifications on a case by case basis.

6

30. I now proceed, to provide more detail of our grounds of challenge and

I do so as follows;

(a) PROCEDURAL ISSUES

The regulations are ultra vires the Constitution and POSA; absence

of poJver to make the regulations

31. The SI 10 IA of 2016 is subordinate legislation. The Constitution, in

Section 134, allows Parliament to delegate its law making function.

32. Section 134, makes it clear that Parliament, may, in an Act of

Parliament, delegate power to make statutory instruments on certain

conditions that are defined in Section 134 (a) to (f).

33. I contend that in POSA, Parliament did not delegate its powers of law

making to the 2nd Respondent.

34. Indeed, neither did the yd Respondent nor the 2nd Respondent have

any powers of making delegated legislation or gazetting statutory

instruments as has been done in casu.

35. Put differently, the regulating authority, functionary under the office of

the 3rd Respondents the Commissioner of Police, has no power of

issuing the statutory instrument in casu.

36. In addition, Section 2 7 of POSA, which allows the regulating authority

to issue a prohibition, does not authorise the san1e to issue a statutory

instrument.

7

37. Section 27 (3) of POSA n1akes it clear that the regulating authority for

the area in respect of which an order has been n1ade under subsection

1 shall ensure that the order and any amendment is published in the

gazette.

38. What this means is that the regulating authority only has powers of

issuing a notice in the gazette but not of legislating by coming up with a

statutory instrument.

39. In simple terms, the point being made is that a statutory instrument is

subordinate legislation.

40. The regulating authority does not have powers of making any

regulation in terms of the act.

41. Indeed not even the Commissioner of Police nor the Minister himself,

the 4rh Respondent has such authority.

42. The regulations are therefore clearly null and void as they have been

made ultra vires Section 134 of the Constitution of Zimbabwe as well as

Section 2 7 of POSA.

43. The l'r Respondent ought to have known this in his personal capacity

and it is for this reason that we will at the return day of any provisional

order issued by this court ask for costs on a punitive scale to be paid by

him in his personal capacity.

(b) The regulations are ultra vires tl1e Constitution: failure to coznply

~vitb Section 134 (b) and (f) of the Constitution of Zin1babH7C.

8

44. Assuming without conceding the point, that the regulating authority

could n1ake regulations, any regulations made must comply with the

Constitution of Zin1babwe.

45. Section 134 (b) of the Constitution makes it clear that statutory

instrun1ents n1ust not infringe or limit any of the right and freedon1s

set out in the Declaration of Rights.

46. It is respectfully contented that SI lOlA, infringes on fundan1ental

constitutional rights which I have already set out above.

4 7. To be more specific, it infringes on sections 59 and 58, 61, 66 AND 6 7

of the Constitution.

48. In addition, Section 134 (f) requires that statutory instrument must be

laid before the National Assembly in accordance with its Standing

Orders and submitted to the Parliamentary Legal Committee for

scrutiny.

49. If Parlian1ent' s oversight role is to ensure legality, it is respectfully

submitted that the regulations ought to be presented before the

National As~embly before publication. Either way, the regulations, in

casu, have not been placed before the National Assen1bly and therefore

they are ultra vires in that regard.

SUBSTANTIVE CHALLENGES

(c) Breach of the audi alteram partem in its multiple forms:

Constitutional breach

9

50. The znci Respondent 1s a public officer. The State and all public

officers in Zin1babwe are obliged to act fairly and legitimately in the

exercise of public power in Zimbabwe. ln short, all public power is

subject to the control of the Constitution.

51. Section 68 of the Constitution makes it clear that every person has a

right to administrative conduct that is lawful, prompt, efficient,

reasonable, proportionate, impartial and both substantively and

procedurally fair.

52. Section 68 (2) also makes it clear that any person whose right, freedom,

interest or legitimate expectation has been adversely affected by

administrative conduct has the right to be given promptly and in

writing the reasons for the conduct.

53. The Constitution itself, in Section 331 its definition seti defines

administrative action to include any decision act or on1mission of a

public officer or person performing a function of a public nature, and a

failure or refusal of such a person to reach such decision or to perform

such an act.

54. Clearly, the actions of the 2nd Respondent constitute an administrative

act which is bound by compliance with Section 68.

55. We contend that before the notice was published, the znd Respondent

had an obligation to hear us as interested parties. The Respondents

knows the parties that are relevant which include the social movements

including the vendors unions, the hashtag (#) movements consisting of

#thisfiag, #tajamuka, occupy Africa, and a few others.

10

56. The 2nd Respondent knows the political parties including those under

NERA which have also been demonstrating and petition in the last few

weeks.

57. It would have been very easy for rr Respondent to hear us before he

issued the prohibition order.

58. The right to be heard is also codified and protected by Section 27 of

the POSA. Section 2 7 (2) of POSA obliges the Regulating Authority to

cause a notice of the proposed order to be published in the gazette and

in any newspaper circulating in the area concerned and to be given to

any person whom the Regulating Authority believes is likely to organise

a procession or demonstration that will be permitted by the proposed

order and to afford all interested persons reasonable, opportunity to

make representations in the matter before he has published the same.

59. The lsr Respondent made his Regulations without compliance with the

mandatory provisions of Section 27 (2) of POSA. To this extent

therefore, the regulations are ultra vires Section 2 7 (2) of POSA.

60. Moreover, at common law, I and my colleague Applicants had a

legitimate expectation that would be heard before the regulations were

passed. The Respondents therefore breached our con1mon law right to

be heard and took away our legitimate expectation to be heard.

Breach of fundatnental rights

61. The regulations are a breach of the Applicants' fundamental rights and

are in any event, not justifiable in a democratic society based on

openness, justice human dignity and equality and freedom_.

11

62. Indeed I contend that the regulations do not constitute a limitation

that is fair, reasonable, necessary and justifiable in a den1ocratic society

based on openness, justice human dignity equality and freedon1.

63. As indicated above, the regulations infringe our rights defined 1n

Section 58 (1), 59 Section 61, Section 66 (2) and Section 6 7(2) of the

Constitution of Zimbabwe.

64. They are such a material encroachment of these rights and therefore

not justifiable.

Constitutionality of Section 2 7

65. On the same note, it is respectfully contended that Section 2 7 (1),

which purports to empower a regulating authority power to prevent

public disorder through the issuance of a prohibition order 1s

unconstitutional and unjustified in an open and democratic society.

66. The section breaches Section 59, Section 58 (1), Section 61, Section 66

(2) and Section 67 (2) of the Constitution of Zimbabwe.

The order sought

6 7. The order sought in casu is a sin1ple one. It is a declaration to set aside

nullifying Statutory Instrument 10 1A of 2016 at the first level. At the

second level, it is an order to declare unconstitutional Section 2 7 of

POSA.

68. In the interim, we seek an order suspending the operation of SI lOlA

of 2016 and setting aside the two weeks prohibition as an interim

measure.

12

69. We also seek specifically, a punitive order of costs against the l'r

Respondent to prevent policeman and officers in its position fro111

acting in total contempt and disregard of the Constitution of

Zin1babwe.

The urgency of this matter.

70. This application is urgent for the simple and good reason that our

fundan1ental rights defined in Section 59, Section 58, Section 61,

Section 66 (2), and Section 67(2) of the Constitution are being

breached.

71. The regulations, amount to a backdoor amendment of the

Constitution or an imposition of the state of emergency.

72. They therefore cause an immediate threat to our fundamental rights

and this is justification and cause for urgent redress in its own right.

73. This court must set a precedent of protecting and defending the

Constitution, particularly where there is a fundamental breach.

7 4. Secondly, this application is urgent in that it is interfering with our

rights to demonstrate and to petition in the next two weeks.

7 5. As indicated above, I was going to give a notification today of an

intended march next week. I am unable to do so.

7 6. I am aware for instance NERA, has indeed already given a notification

of a procession to be held Friday, the 10rh of September 2016.

13

77. Without the order sought 1n casu, the rights of Applicants will be

infringed.

78. In the circumstances, I therefore pray for an order in terms of the draft.

,Thus S"rorn and Signed at Harare on this znd day of September 2016.

Before me:,

STENDRICK ZVORW ADZA

COMMISSIONER OF OATHS

CHIEDZA SHONIWA LEGAL pRACTITIONER

coMMISSIONER OF OATHS \

14

......... -----------------------------------IN THE HIGH COURT OF ZIMBABWE HELD AT HARARE

In the matter between:·

DEMOCRATIC ASSEMBLY FOR RESTORATION AND EMPOWERMENT (DARE) STERNDRICK ZVORWADZA COMBINED HARARE RESIDENTS ASSOCIATION NATIONAL ELECTORAL REFORM AGENDA (NERA)

AND

NEWBERT SAUNYAMA N.O. THE COMMISSIONER GENERAL OF POLICE THE MINISTER OF HOME AFFAIRS THE ATIORNEY GENERAL OF ZIMBABWE

HC /2016

1sT APPLICANT 2ND APPLICANT 3Rn APPLICANT 4TH APPLICANT

1ST RESPONDENT 2ND RESPONDENT

. _3RD RESPONDENT 4m-RESPONDENT

3rd APPLICANT'S SUPPORTING AFFIDAVIT · ...

I, SIMBARASHE MOYO, do hereby make oath and state that:, l'_/'.

/

1. I am the Chairman of the Combined Harare Residents Association the

3rd Applicant herein.

2. The facts I depose hereto are fully within my knowledge and to the best

of my belief true and correct.

3. I am duly an:d specifically authorised to make this affidavit on behalf of

the Combined Harare Residents Association.

4. As the Combined Harare Residents Association, we are not a political

organisation.

5. We therefore find it unacceptable and ridiculous that we are barred

from handing over petitions to the Minister of Local Government and

1

other government officials who are all located in the central business

district in respect of our legitimate demands and concerns.

6. The regulations enacted by the 2nd Respondent are sweeping and wide

and have no basis in a democratic society.

7. In the circumstances whilst incorporating herein as if specifically

traversed, the contents of the 2nJ Applicant's affidavit, I pray for an

order in tern1s of the draft.

Thus Sworn and Signed at Harare on this 2nd day of September 2016 .

. ; SIMBARASHE MOYO

Before me:~


CHIEDZA SHONIW.l\ I LEGAL PRACTITiONEP. \

COMMISSIONER OF OATHS .

2

IN THE HIGH COURT OF ZI~lBAB\VE HELD AT HARARE

In the matter be[\Yeen:-

DEMOCRATIC ASSE11BLY FOR RESTORATION AND EMPO\VERMENT (DARE) STERNDRICK ZVOR\VADZA CO.MBINED HARARE RESIDENCE ASSOCIATION NATIONAL ELECTORAL REFORM AGENDA (NERA)

AND

NE\VBERT SAUNYNviA N.O. THE COMMISSIONER GENERAL OF POLICE THE MINISTER OF HOME AFFAIRS THE ATTORNEY GENERAL OF ZIMBABWE

HC /2016

1'1 APPLICANT 21';1) APPLICANT 31m APPLICANT 4TH APPLICANT

1 '1 RESPONDENT 2Nn RESPONDENT

. 3m 1 RESPONDENT 41 H RESPONDENT ..

4TH APPLICANT'S SUPPORTING AFFIDAVIT '

I, DOUGLAS MWONZORA do hereby make oath and state that:~ ..•.

1. I am the legal secretary of the association of political parties known as

NERA the 4th Applicant herein.

2.

3. As such I an1 duly authorised to make this affidavit on its behalf and

the facts I depose hereto are fully within my knowledge and to the best

of my belief true and correct.

4. I incorporate herein as if specifically traversed, the contents of the 2nd

Applicant's affidavit.

5. l)n the 12rh of August 2016, NERA gave the 2nd Respondent

notification of e1 public procession to hand over a petition to the

Zimbabwe Election Con1n1ission 011 Friday 26rh of August 201 b.

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6. That notification, in compliance with POSA, defined a route that we

were going to use.

7. On the 15rh of August 2016, I was called by the 2nd Respondent who

was in the presence of other security officials who describes themselves

as JOC (The Joint Operations Comtnittee).

8. I was advised that the 2nd Respondent would write a response to us. At

12 noon on the 25th of August 2016, the 2nd Respondent advised us

that he was not prepared to allow our march to proceed. As a result,

we made an urgent chamber application, which was granted by this

court on the 26th of August 2016 allowing us to march.

9. Regrettably, the Zimbabwe Republic Police under the 2nd Respondent

did not allow us to march. They disobeyed the order and proceeded to

viciously dismantle the processed procession and in the process,

severely assaulted members of the public.

10. Purely as a result the 3rd Respondent's own illegality and in action and

in disobeying lawful orders, violent activities, perpetrated by Zim.babwe

Republic Police occurred on the 26th of August 2016 which have been

widely reported.

11. I wish to state that prior to the 26rh of August 2016, NERA and its

other political partners including the party in which I am a Secretary

General the Moven1ent for Democratic Change, had participated 1n

peaceful den1onstrations and marches across the country.

12. There has never been a cause or fear that there was lawlessness 1n

Harare justifying Statutory Instrument lOlA of 2016.

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13. On Monday 28rh of August 2016, I wrote a letter to the 2ncl Respondent

and advising that we were going to carry on with a march that the

police had unla'.vfully prevented, on Friday 2nc1 September 2016.

14. On Tuesday 29'h August 2016, the 2nd Respondent, summoned me to

his office and I vvent there. He advised that he was too busy to see me

and I left.

15. He did not indicate to me nor to my colleagues that I was with that he

intended to enact Statutory Instrument lOlA of 2016.

16. On Thursday 1 sr of September 2016, I went to see hitn in the tnorning

den1anding a response to our letter of the 29'h of August 2016. He

advised me to report in the afternoon.

17. At 3pm on the 1st of September 2016 the 1" Respondent provided me

with a letter dated the 3rd of August 2016 which read as follows:,

"notification of intention to hold a peaceful demonstration and present a

petition in terms of section 59 of the Constitution of Zimbabwe"

18. That letter made no reference to an intended prohibition. In addition,

that letter did not allude to any state of public disorder justifying a

prohibition.

19. Quite clearly, and as a matter of fact the prohibition is not being

authored by the 2nd Respondent. The 2nc! Respondent is sin1ply being

used by sotne other forces.

20. In addition, I confirn1 that on the 2nd of Septen1ber 2016, vve gave

notice to the 2nd Respondent of our intention to n1arch on Friday 9rh

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-----------------------------------September 20 16. I attach hereto m_arked Annexure "A" a self

explanatory copy of the this notification.

21. Our march on the 9rh of September 2016 will not be possible if SI

10 1A of 20 16 remains in force.

22. It is my respectful contention that SI 10 1A of 2016 1s clearly

unconstitutional and should be set aside.

23. In the circumstances I therefore pray for any order in terms of the

draft.

Thus Sworn and Signed at Harare on this znd day of September 2016.

Before me:~

>

DOUGLAS MWONZORA


CHIEDZA SHONIWA LEGAL PRACTITIONER


4

The Regulating Authority NERA

ZRP Harare Central District

Harare Central Police Station

Harare

02.09.16

Dear Sir

RE: Notification of intention to hold a peaceful demonstration and present a petition in terms of

section 59 of the constitution of Zimbabwe

We refer to our previous notification filed with your office dated for the 12th of August 2016. It is

common cause that through your letter dated 15th of August 2016, you sought to ban the peaceful

demonstration. You went on to deploy riot police to disperse the demonstrators. We then sought and

obtained a court order after a full argument between our lawyers and your lawyers before Hon Justice

Mwayera.

Despite your having had knowledge of the court order you went on to disrupt the peaceful

demonstrations. Your officers went on to beat defenseless people including an elderly woman of 60 who

was severely beaten by your officers at Rotten Row Magistrate Court.

Because of the actions we were therefore not able to hold our peaceful demonstrations and present our

petition. It admits of debate that the police acted in contempt of court.

We therefore notify your good office, in terms of the law, that we have since rescheduled to hold our

peaceful demonstration and present our petition to the Zimbabwe Electoral Commission on Friday the

9th of September 2016 from 12:30 am to 15.30 pm. The route has not changed of the demonstration;

Demonstration shall be from freedom square (open space adjacent to Rotten Row court) down Robert

Mugabe Road, Fourth Street and down Jason Moyo Avenue up to the office of the Zimbabwe Electoral

Commission. This letter therefore supersedes the one delivered earlier today.

We would be grateful if we get your reply within the next 24 hours. We draw your attention to you

constitutional obligation to defend the Constitution and observe fundamental rights and freedoms.

Yours faithfully

D T Mwonzora

(Secretary for legal Affairs)

.. IN THE HIGH COURT OF ZIMBABWE HELD AT HARARE



AND


PROVISIONAL ORDER

TO THE RESPONDENTS

HC /2016

1ST APPLICANT 2Nn APPLICANT 3Rn APPLICANT 4TH APPLICANT

1ST RESPONDENT 2ND RESPONDENT 3Rn RESPONDENT 4TH RESPONDENT

TAKE NOTICE THAT on the ..................... day of ............... 2016 the Court sitting at Harare before the Honourable Justice .............. issued a Provisional Order as shown overleaf The annexed Chamber Application, Affidavits and documents were used in support of the Application for this Provisional Order.

If you intend to oppose the confirmation of this Provisional Order, you will have to file a Notice of Opposition in Form No. 29B, together with one of more opposing Affidavits, with the Registrar of High Court at Harare within ten (10) days after the date in which the Provisional Order and Annexures were served upon you. You also have to serve a copy of the Notice of Opposition and Affidavit(s) on the Applicant at the address for service in the Application.

If you do not file an opposing Affidavit within the period specified above, this matter will be set down for hearing in the High Court at Harare without further Notice to you and will be dealt with as an unopposed matter for confirmation of the Provisional Order.

If you wish to have the Provisional Order changed or set aside sooner that the Rules of Court normally allow and can show good cause for this, you should approach the

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Applicant's legal practitioners to agree in consultation with the Registrar on a suitable hearing date. If this cannot be agreed there is great urgency you may make a Chamber Application, a Notice to the Application, for directions for a judge as to when the matter can be argued

Date By the Judge

Terms of the Interim Relief Granted

1. That forthwith, the operation of Statutory Instrument lOlA of 2016 be and is hereby suspended.

2. That the 2nd Respondent shall process and deal with all notifications for public gatherings and processions or meetings in the manner lawfully proscribed in Section 12 of the Public Order Security Act [Chapter 11:17]

3. That the 2nd & Yd Respondents be and hereby interdicted from unlawfully interfering with the rights of citizens to exercise their right defined by Section 59 of the Constitution read together with Section 12 of the Public Order Security Act [Chapter 11:17]

Terms of the Final Order Sought

4. It is ordered or declared that:

(a) Statutory Instrument lOlA of 2016 is ultra vires the provisions of Section 134 and Section 27 of the Public Order Security Act (POSA) [Chapter 11:17] and is therefore set aside.

(b) Statutory Instrument lOlA of 2016 is a breach of the Applicants' fundamental rights as protected by Sections 68, 59, 61, 66 92) and 67 (2) of the Constitution of Zimbabwe.

(c) Section 27 of the Public Order Security Act is a violation of the Applicants' rights as protected by Sections 58, 59, 61, 66 (2) and 67 92) of the Constitution of Zimbabwe.

(d) The 1 sr Respondent shall personally pay the costs of this application in so far as they relate to the legal of Statutory Instrument lOlA of 2016.

(e) The yd and 4rh Respondents, each paying the other the other to be absolved, shall pay the costs relating to the legality of Section 2 7 of the Public Order Security Act [Chapter 11: 17]

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~~--------------------------· " -...

5. Service of the Order

That the Applicant's Legal Practitioners be and are hereby given leave to serve by way of delivery a copy of this Provisional Order on the Respondents.

DATE BY THE JUDGE

BY THE REGISTRAR

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Documents

URGENT CHAMBER APPLICATIONveritaszim.net/sites/veritas_d/files/Democratic... · Certificate of Urgency 3. 1 sr Applicant's Founding Affidavit 4. 2nd Applicant's Supporting Affidavit