MATHONSI J: At the hearing of this urgent
application, I granted the provisional order in favour of the Applicant and
indicated that the reasons for doing so would follow. These are the reasons.
The Applicant is a registered trade union and the umbrella body of
several trade unions nationally which are affiliated to it. The Applicant has branches throughout the
country and its core business is championing the interests of its members.
On the 14th May 2010, in the normal conduct of its functions
as a trade union representing workers in Kwekwe, the Applicant notified the
police in the District of its intention to commemorate the well known Hwange
June 6 disaster in which mine workers perished in a mine in Hwange. The Applicant planned to commemorate the
disaster by undertaking a peaceful procession along one of the streets in
Kwekwe and observing a moment of silence.
The Applicant also requested a police escort to protect its members
during that activity. The ceremony was
originally planned for 5th June 2010.
The police responded by letter dated the 18th May 2010 signed
by Superintendent E.A. Chivandire on behalf of the first Respondent which reads
in part as follows:-
“RE: NOTIFICATION OF PROCESSION AND POLICE ESCORT -05
JUNE 2010.
(1)
The above subject matter is relevant.
(2)
I appreciate your notification of your intention to
carry out a commemoration of the Hwange Colliery 6th June 1972 Mine
Disaster.
(3)
Your intention to commemorate the day is very
noble. However such commemorations
should be done at the site that is at Hwange Colliery Company Kamandama Site.
(4)
The nation has taken precedence of all commemorations
like the Heroes' commemoration, Chimoio, Nyadzonya, Mukushi and Hwange annual
commemorations which are done on the site.
(5)
There is nothing wrong if you can travel to Hwange and
commemorate the day on the 6th June 2010 in Hwange together with the
Hwange Colliery Community.
(6)
I can not allow you to Commemorate the day in KWEKWE
and POLICE OFFICERS will be engaged in other operations taking place around the
District.
(7)
Be advised that the notification is NOT APPROVED” (The underlining
is mine)
Clearly therefore the police had assigned
themselves the responsibility not only to regulate the activities of the
Applicant but also to determine when and where the commemorations should take
place. Indeed they even abrogated a
ceremony that had been planned and pencilled for Kwekwe on 5th June
2010.
The Applicant again approached the first
Respondent on the 17th June 2010 notifying him of an intention to
commemorate the mine disaster on the 26th June 2010 by a procession
along a road in Kwekwe. The first
Respondent responded by letter dated 22 June 2010 which reads in the main as
follows:-
“RE: NOTIFICATION FOR A
PROCESSION AGAINST THE HWANGE 6 JUNE DISASTER.
(1)
Above matter is pertinent.
(2)
I appreciate and buy the idea of commemorating the
Hwange June 6 disaster.
(3)
However I cannot authorise the procession
because of the following reason:
(1)
The police officers we have are engaged in world cup
and constitution making process duties.
(4)
Be advised that your application is not approved.”
(Underlining is
mine.)
Again the tone of the first
Respondent's letter suggests that he had assumed the power to authorise and
approve the procession before it could take place. Having met this stumbling block the Applicant
shifted the commemoration date to the 3rd July 2010 and physically
approached the first Respondent to try and resolve the matter. Whereupon, Applicant was advised that it was
required to notify the police in terms of the Public Order and Security Act,
[Chapter 11:17] of its planned procession and its local chairperson was
threatened with unspecified reprisals if he went ahead with the procession and
advised that the police will certainly interfere with it to prevent it taking
place.
This forced the Applicant to
approach this court on an urgent basis seeking authority to go ahead with the
procession and an interdict against the Respondents barring them from
interfering with or stopping the commemoration activities
At the hearing of the matter Mr Makoni who appeared with the first Respondent,
after raising extraneous issues relating to service of the application,
submitted on the merits that the Applicant had not exhausted domestic
remedies. In his view, the Applicant
still had to negotiate with the regulating authority on the modalities of
holding the procession. If that effort
failed, according to Mr Makoni, the
Applicant could then approach the local magistrate. I find the submissions made by Mr Makoni to be devoid of any merit.
Zimbabwe is a democratic country and
the freedom of assembly and association is enshrined in Section 21 of the
Constitution. Persons are entitled to
assemble freely and associate with other persons particularly to form trade
unions and other associations for the furtherance of their interests.
Sections 23, 24, 25 and 26 of the
Public Order and Security Act, [Chapter 11:17] govern the holding of public
gatherings and set out the procedure to be followed by those intending to hold
such gatherings. However, those
provisions have no application whatsoever in the circumstances of this
case. This is by virtue of the
provisions of Section 26A of the Act which provides:
“Sections 23, 24, 25
and 26 shall not apply to gatherings of a class described in the schedule.”
The
schedule lists gatherings to which the sections do not apply to include:-
“Gatherings
held by a registered trade union for bona fide trade union
purposes for the conduct of business in accordance with the Labour Relations
Act [Chapter 28:01]”
It was not argued for the Respondent that the commemoration of the
Hwange Mine disaster by a properly registered trade union did not fall under
that exemption. Therefore by purporting
to regulate the conduct of the workers commemoration the first Respondent was
engaging in an exercise in extreme futility as he possessed no such power.
To the extent that the commemoration
was organised by the Applicant for bona fide trade union
purposes, which it was, Applicant was not required to follow the procedure set
out in sections 23, 24, 25, and 26 of the Act as it enjoyed an exemption. The first Respondent's conduct therefore
betrays a lamentable ignorance of the provisions of the Public Order and
Security Act, [Chapter 11:17] which he is sworn to uphold. In the process he has interfered with the
rights of the Applicant protected by Part VII of the Labour Act [Chapter 28:01]
and by section 21 of the Constitution.
Accordingly the order is granted in
terms of the draft order on pages 15 and 16 of the bound application.
Zimbabwe
Lawyers for Human Rights, applicant's legal practitioners
Civil Division, Attorney
General's Officer, respondent's legal
practitioners
