Counsel for the respondent went further to
argue that apart from other remedies available to the applicant, such as
reporting to the police; the Traditional Leaders Act [Chapter 27:17] had
provisions that dealt with acts of misconduct perpetrated by person's in the
position of the respondent.
He
therefore prayed for the dismissal of the application ...
Counsel for the respondent went further to
argue that apart from other remedies available to the applicant, such as
reporting to the police; the Traditional Leaders Act [Chapter 27:17] had
provisions that dealt with acts of misconduct perpetrated by person's in the
position of the respondent.
He
therefore prayed for the dismissal of the application with costs....,.
I
find merit in the submission that if the allegations are indeed true, the
applicant has other remedies available to him. This, the applicant
accepts. In paragraph 24 of his founding affidavit he states:
“Further,
applicant has no other remedy under the circumstances considering that the
police are also failing to rein over him and granting of an interdict against
the respondent is the only available remedy.”
There
is no clear evidence that the matter was ever placed before the police for
their investigation/action. All nine supporting affidavits filed herein
are silent on whether or not any police reports were made. It is only the
applicant who makes reference to police reports. In paragraph 20 of his
founding affidavit he states as follows:-
“20.
This matter is of great urgency in that despite the parted (sic) illegality of the respondent's conducts, efforts to
report to the police have been made with the police only making empty promises
to stop and control the Chief but it appears the respondent has totally lost
respect to the laws and the Constitution of Zimbabwe because he had engaged a
high gear calling and frog matching his subjects to ZANU PF meeting where I am
denounced through hate speech.”
The
above averment does not in any way say the police have refused to act.
Furthermore,
there is no indication that the other traditional leaders have been called upon
to rein in one of their own as provided for in section 7 of the Traditional
Leaders Act [Chapter 27:17]. Section 7 of the Traditional Leaders Act
[Chapter 27:17] provides for the investigation of any acts of dishonesty and
misconduct on the part any Chief such as the respondent.
Section
7 of the Traditional Leaders Act [Chapter 27:17] provides, in part, as follows:
“(1)
Where -
(a)
A chief has been found guilty of any offence involving dishonesty; or
(b)
After an investigation in terms of subsection (7), a chief has been found
guilty of an act of misconduct in relation to the customs and traditions
observed in his area; or
(c)
A chief has been charged with any offence involving dishonesty; or
(d)
An investigation in terms of subsection (7) into alleged misconduct on the part
of a chief has been or is about to be instituted;
The
Minister may suspend the chief from his duties.”
The
allegations against the respondent, if true, admit of nothing else other than a
full report upon investigations. Such report should be placed before the
authorities vested with the power to protect citizens such as the
applicant. The applicant has every right to approach this court on an
urgent basis where threats against his life are made by any person regardless of
their status. However, in doing so, the applicant must first prove that
the other remedies have been denied him.
That
is not the case in casu….,.
The
law is clear on when the remedy of an interdict, such as prayed for in casu, can be granted. In Charuma
Blasting and Earthmoving Services (Private) Limited v
Njainjai & Ors 2000 (1) ZLR 85 (5)
SANDURA J said:-
“What
an applicant for an interdict should establish in order to succeed has been set
out in many previous cases.
In
Setlogelo v Setlogelo 1914 AD
221, INNES JA (as he then was) said the following at 227:
“The
requisites for the right to claim an interdict are well known; a clear right,
injury actually committed or reasonable apprehended, and the absence of similar
protection by any other ordinary remedy.”
Subsequently,
in Eriksen Motors (Welkom) Ltd v
Proten Motors, Warrenton & Anor
1973 (3) SA 685 (A) HOLMES JA, dealing with the issue of temporary interdicts,
said the following….,:
“The
granting of an interim interdict pending an action is an extraordinary remedy
within the discretion of the court. Where the right which it is sought to
protect is not clear, the court's approach in the matter of an interim
interdict was lucidly laid down by INNES JA in Setlogelo v
Setlogelo 1914 AD 221 at p 227. In
general, the requisites are:
(a)
A right which, 'though prima facie established, is open to some doubt';
(b)
A well-grounded apprehension of irreparable injury;
(c)
The absence of ordinary remedy.
In
exercising its discretion, the court weighs, inter alia, the prejudice to the
applicant if the interdict is withheld against the prejudice to the respondent
if it is granted. This is sometimes called the balance of convenience.
The
foregoing considerations are not individually decisive but are interrelated;
for example, the stronger the applicant's prospects of success the less his
need to rely on prejudice to himself. Conversely, the more the element of
'some doubt', the greater the need for the other factors to favour him….,.
Viewed in that light, the reference to a right which 'though prima facie
established is open to some doubt' is apt, flexible and practical, and needs no
further elaboration.”
The
above paragraphs set out the factors, and indeed the law, to be taken into
account before an interdict is granted.
Whereas
I do not dispute the applicant's clear right to protection, I do believe, as I
have already demonstrated, that similar protection, other than an interdict, is
still available to the applicant. In that light, I accept that the
circumstances of this case do not therefore justify a measure that will
effectively interfere with the respondent's exercise of his Constitutional
duties.
The
founding affidavit and the supporting affidavits are clear testimony that, in
the main, the applicant is relying on what he has been told – namely that the
respondent and the winning candidate for the Constituency have denounced him at
victory rallies. He does not tell us what he himself has heard. Nowhere
does he say he himself has heard the threats or seen the respondent coercing
his people to the said rallies.
Furthermore,
given the import of paragraphs 12-15 of his founding affidavit, one is
persuaded to link the application to the applicant's petition already before
the court. The paragraphs referred to seem to solicit support for the said
petition.
For
the foregoing reasons, I dismissed the urgent application with costs.