NDOU J: The
applicants seek a provisional order in the following terms:
“Terms of the final order sought
That you show cause to this honourable court why a final
order should not be made in the following terms:
1.
The
decision of the respondent to remove the applicants from the list of persons
who are part of the Outreach Teams of the constitution-making process without
giving the applicants a hearing and without giving reasons, be and is hereby
declared to be unfair, and in contravention of section 3(1)(a) of the
Administrative Justice Act [Chapter 10:28].
2.
The
respondent be and is hereby directed to include the applicants as part of the
Outreach Teams in the constitution-making process without loss of benefits.
3.
The
respondents be and are hereby ordered to pay the costs of suit on an attorney
and client scale if it oppose [sic]
confirmation of the provisional order.
Interim Relief Granted
Pending the finalization of the matter, applicants be and are
hereby granted the following relief:
1.
The
respondent be and is hereby ordered and directed to take all reasonable steps
to forthwith include the applicants as part of the individuals in respondent's
Outreach Teams on constitution making with full benefits including payment of
allowances.
2.
The
respondent must further forthwith communicate in writing to the applicants'
legal practitioners of record the inclusion of the applicants in the Outreach
Teams for the constitution-making process.”
The salient facts of this matter are the following. The respondent (“Copac”) is a parliamentary
body set up in terms of the Constitution of Zimbabwe (as amended by the
Constitution of Zimbabwe Amendment Number 19 of 2008) to spearhead the drafting
of a new Constitution. The applicants
are members of a civic organization known as Ibhetshu likaZulu (“Ibhetshu”)
which is based in Bulawayo and is a pressure group advocating for “equitable
development of all parts of the county.”
When Copac commenced the process of
setting up structures to facilitate the making of a new constitution, it
selected individuals across the country to be part of the Outreach Teams that
will gather people's views and input on the content of the new
constitution. The applicants were
initially part of the people selected to be part of the outreach team.
They underwent training to achieve
this objective between 10 and 14 January 2010.
The training was conducted by Copac for all delegates from all over the
country. At the end of the training
Copac caused the applicants and all the delegates to sign Codes of Conduct
binding themselves as members of Copac's outreach teams. The applicants, like all other members of the
outreach teams, were accredited and issued with accreditation cards. All the outreach teams' members were detailed
in the media. A copy of the Chronicle
newspaper of 9 January 2010 was filed of record to evince this. On 11 June 2010 Copac published another list
of members of its outreach teams. The
applicants' names did not appear on this latter list resulting in this
application. Copac's explanation for
this state of affairs is that it does not nominate members to the outreach
teams. The political parties and civic
organizations do the nomination. Whilst
it is beyond dispute that the applicants are members of Ibhetshu, they are also
active members of ZAPU political party.
The applicants have not disputed this fact by averments in answering
affidavits. Copac set out a framework
which was to be strictly adhered to by the political parties and civic
organizations in selecting individuals for the outreach teams. The framework that had to be followed was as
follows:
(a)
Political
parties were to provide thirty percent (30%) of the total membership of
outreach teams.
(b)
The
remaining seventy percent (70%) was to be drawn from the civic society.
(c)
The
political parties were to nominate and submit to Copac, the names of candidates
from their perspective political parties and also the names of those selected
from the civic society. In other words,
all names of selected individuals for the outreach programme were submitted by
the political parties, be it from the political parties themselves or from the
civic organizations.
(d)
A
person who is an active member of a political party cannot be selected under
the slot given to civic organizations.
The rationale for this provision is to ensure that political parties do
not gain unjust advantage over political parties by selecting their members in
the slot given to political parties and also have some of its members selected
under civic society. Not only would this
be prejudicial to other political parties but it would prejudice the civic
organizations.
In casu, the applicants' names were submitted
to Copac by the Movement for Democratic Change (“MDC-M”). It is submission by MDC-M that resulted in
the applicants' inclusion in the abovementioned training programmes and
accreditation. Copac later received
communication from the MDC-M that it had discovered that applicants enjoyed
active dual membership of ZAPU and Ibhetshu a fact they were not aware of at
time when their names were submitted to Copac.
Applicants have not disputed Copac's assertion to that effect. The criteria was agreed upon by political
parties. In fact the applicants are said to be
prominent members of ZAPU with 1st applicant being the provincial
chairperson of ZAPU's Youth Wing in Bulawayo Province. In terms of the above criteria, applicants
could not be allowed to proceed to participate in the outreach programme, as
this would give undue advantage to ZAPU over other political parties. ZAPU was allowed to nominate five (5) people
just like other political parties of its size.
By allowing applicants to participate it would have meant that ZAPU
would be represented by eight (8) people, i.e. three (3) more than other
political parties of its size. It was on
this ground that applicants' names were dropped from the latter list of members
of the outreach programme. The
applicants were not expressly informed of the decision to remove them from the
progamme neither did the applicants demand the reasons for their removal from
Copac.
It seems to me that they were so much affected by the removal
that they approached this court directly without first asking Copac for reasons. They did not confront Copac or MDC-M about
their removal.
The crucial preliminary issue to be determined before I deal
with the merits of the application is the definition of this application. Is this an application for review of the
decision of Copac to remove the applicant from the outreach programme or a
declaratur? [Section 14 of High Court of
Zimbabwe Act (Chapter 7:06)] (“the Act”).
If the application is one for review, then section 27 of the Act and
Order 33 of the High Court Rules, 1971 is applicable. The applicants' position is that the
application is one for a declaration of rights and not review. Mr Mazibisa,
for the applicants, submitted that the application takes the form of a
declaratur and mandamus. It is trite
that an interdict and a mandamus are two sides of the same coin, unauthorized
action is presented by means of an interdict and compliance with a statutory
duty is enforced by means of mandamus – Continental
Landgoed (Edms) Bpk v Bethelrand
1977 (3) SA 168 (T) at 169G. There is no
difference in principle between the enforcement of a statutory prohibition by
way of an interdict and the enforcement of a statutory duty by way of a
mandamus. The mandamus is a legal remedy
which is aimed at compelling an administrative organ to perform a prescribed
statutory duty.
The procedure for a declaration of rights like review
proceedings, is either by way of summons and filing of pleadings in the usual
way if there is a dispute of fact, or in the form of a special case on
application if there is no dispute of fact.
When the facts are disputed the court has a discretion as to the future
course of the proceedings – Hattingh
v Ngake 1966 (1) SA 64 (O) and Adbro Investments Co Ltd v Minister of Interior 1956 (3) SA 345
(A). The applicants were wrong to use an
urgent chamber application for an application for a declaratory order. They equally cannot seek a review of Copac's
decision in an urgent chamber application.
This court has held that a declaratory order is merely one of a species of
relief available and that a party should not be able to get around the requirements
for review proceedings by instituting proceedings for a declaratory order – Kwete v Africa Community Publishing & Development Trust HH-216-98; Mutare City Council v Mudzime 1999(2) ZLR 140 (S); Marasha v Old Mutual Life Insurance Co Ltd 2000 (2) ZLR 197 (H) at 198 H to
199C and Mpofu & Anor v Parks and Wild Life Management Authority
HB-36-04.
The only issue left is whether the application is one for a
mandamus. The applicants are alleging
that Copac has failed to comply with statutory duties enshrined in
Administrative Justice Act [Chapter 10:38] i.e. their removal of the applicants
from the outreach programme was done in contravention of section 3(1)(a) as it
was done without giving the applicants a hearing and without giving
reasons. As alluded to above compliance
with a statutory duty is enforced by means of a mandamus. Mandamus is available to serve two purposes
i.e. (a) to compel the performance of a specific statutory duty; and (b) to
remedy the effects of unlawful action already taken. The mandamus will only be granted where the
public authority is under a clear duty to perform the act ordered. Where the public authority has a discretion
in the matter, the order will only extend to directing the authority to comply
with its duty of deciding the matter properly – Minister of Law and Order (Bophuthatswana) v Maubane 1981 (3) SA 453 (A); Moll
v Civil Commissioner of Paarl (1897)
14 SC 463 and Britten v Pope 1916 AD 150. Mandatory interdicts are by their very nature
urgent. In the circumstances I will hear
the merits of the application for the mandamus.
As alluded to above, Copac informed the applicants by mere
publication of fresh list of membership of the outreach programme without the
names of the applicants. Equally the
reasons for the removal were not given to the applicants. The applicants also did not bother to ask for
the same. The reasons were only in
answer or opposition to this application.
It seems beyond dispute that in the first place the placement of the
applicants was done in a similar fashion i.e. an advertisement in the same
media. The applicants were content with
the newspapers being the bearer of good news but not bad news. The applicants have not established in their
application the need for hearing before their removal from the programme. The relationship between the parties does not
require a hearing to terminate it.
Participation in the outreach programme is on a volunteer basis. The volunteer is not in some kind of
employment and he/she offers the national service for free. The volunteers receive US$25 each per day for
lunch meals and other expenses are paid for directly to service providers. This is not the kind of relationship that
warrants a hearing before termination.
As alluded to above, the applicants have now been informed why they were
removed i.e. in addition to being members of Ibhetshu, they were active or
prominent ZAPU politicians. They have
not disowned such ZAPU membership. In
the circumstances, they do not meet the set requirements for membership of the
outreach programme. They may have gone
into the programme by withholding their political involvement but it is now
common cause. Once it was discovered
they do not meet the set criteria their entry into the programme became a
nullity. The oversight of Copac cannot
grant them membership of the outreach programme if they do not meet the minimum
criteria. To allow such oversight of
Copac give right of membership would only result in political parties being
over represented i.e. beyond the 30%, supra. They were lucky to have got into the
programme in the first place and they cannot cry foul when their entry
deficiencies are discovered and they are accordingly removed from it. Ibhetshu should have submitted names of
individuals who do not enjoy such prominent membership of both the civic
organization and a political party. An
oversight or error by Copac cannot overrule the express provisions of the
constitution on the participation in the outreach programmes.
For the record, the
applicants can still participate in the constitution making process in other
forms. Every Zimbabwean is free to
participate in the constitution making process but not everyone will do so via
the volunteer outreach programme.
In light of the above, the application for mandamus has no
merit. I accordingly dismiss the
applications with costs.
Cheda & Partners, applicants' legal practitioners
Webb, Low & Barry,
respondent's legal practitioners
