MTSHIYA J: This matter came before me as an urgent
chamber application. I then set it down and heard the parties' legal
practitioners on 26 August 2013. After hearing, the legal practitioners I
dismissed the application with costs.
On 13 September 2013 the applicant's legal practitioners,
Messrs Musendekwa and Mtisi, wrote to my clerk requesting
that I give reasons for my decision to dismiss the application. These are
they. In his urgent application filed on 21 August 2013, the applicant sought
the following relief:
“FINAL ORDER SOUGHT
1. The respondent be and is
hereby interdicted from uttering any hate language denouncing me and my
political party.
2. The respondent be and is
hereby ordered to stop forthwith engaging in any political activities in
Masvingo West Constituency.
3. The respondent shall pay
costs of suit on attorney-client scale.
INTERIM ORDER
1. That pending the
determination of the final order the respondent is interdicted from
(i)
Coercing his subjects from attending political meetings or rallies.
(ii)
Threatening his subjects with death or evictions for supporting applicant and
MDC-T.
SERVICE OF THE INTERIM ORDER
The applicant's legal practitioners be and are hereby given
leave to serve this provisional order on the respondent.”
The applicant herein was a candidate in the harmonized
elections conducted on 31 July 2013. He contested and lost the Masvingo
West National Assembly seat. He contested the seat on the ticket of the
Movement for Democratic Change (MDC-T) led by the former Prime Minister Morgan
Tsvangirai. In his founding affidavit, he states that he has since filed
a petition with the Electoral Court under case number EC 35/13 challenging the
results of the election on the basis of “multiple electoral malpractices and
irregularities which marred the election.”
The respondent, whom the applicant alleges to have
“continued to conduct meetings and/or rallies in the Masvingo West Constituency
denouncing him and his party MDC-T,” is a Traditional Chief in the
Constituency. The respondent is also the President of the Traditional Chiefs'
Council in Zimbabwe.
The applicant averred that after the elections the
respondent continued to conduct meetings for people to attend what he called
“Partisan Political Meetings.” These meetings, the applicant went further, were
in turn addressed by the ZANU PF winning candidate, Mr Ezra Chadzamura.
In para(s) 10-15 of his founding affidavit the applicant states
as follows:
“10. I am advised by my legal practitioners of record, and
such advice I accept that
the office of
the Chief is an apolitical office and Chiefs are primarily there to
promote unity
and social cohesion not to be an extension of any political party or
candidate.
11. In this context, the actions by the respondent to
force march villagers meetings
and denouncing me are
illegal and should be stopped as a matter of urgency.
12. Masvingo West Constituency is a relatively rural
community and conservative
where chiefs are held
in high esteem as vanguards of traditional norms and values
and the continued
meddling in political affairs of this constituency by the
respondent is thus an
evil political mechanism which is designed to exert undue
pressure on the
electorate against me and my political party, such that even in the
event that my election
petition is successful, it would not be conducive to hold a
fresh election anytime
soon because the electorate would not be conducive to
hold a fresh election
anytime soon because the electorate would still be in deep
slumber of
intimidation and threats by respondent.
13. I am also of the view that since I have filed an
Electoral Petition and amongst my
grounds is the
fact that the respondent has been intimidating people to vote for
ZANU PF, it is
in the best interests of justice to have respondent stopped since I
may be
prejudiced in the event of the Electoral Court nullifying the elections of
July 31st
2013 in Masvingo West Constituency and ordering a re-run.
14. A Chief as a social leader should not utter hate
language like “Down with
Takanayi Mureyi”
rather, he is supposed to unify people beyond their political
orientation. His
open support for ZANU PF as evidence by affidavits of the
concerned subjects
annexed hereto marked Annexure “B1, - B8” wherein he has
been intimidating and
jointly giving eviction and death threats to villagers with
ZANU PF winning
candidate for the Constituency is completely unacceptable,
unlawful and
unconstitutional.
15. My right to seek an order from the Honourable
Court to bar the chief from
intimidating villagers
and giving an advantage to one political party at the
expense of another is
well established since I am a Politician, I was a candidate in
this particular
constituency and I have a direct interest in this matter as I am
awaiting ruling on my
Electoral Petition and my supporters have been the prime
targets of the
respondent.”
Indeed in support of his case, the applicant produced a number of affidavits
from villagers in the Masvingo West Constituency. In some of the
affidavits the villagers recount their experiences mainly before the harmonised
elections referred to above. Given the alleged conduct of the respondent,
the applicant sought the relief indicated at p 1 herein (re interdict against
the respondent).
Mr Mtisi for the applicant correctly argued that the new constitution
did not allow the respondent to conduct himself in the manner he was alleged to
be doing. He said, notwithstanding the fact that some of the affidavits
from the villages dealt with experiences prior to the elections, there was
still ample evidence showing that the respondent had, after the elections,
continued to conduct himself in the manner alleged in this application.
He did not agree that granting the application was tantamount to supporting the
applicant's petition already before the Electoral Court. He therefore
urged the court to grant the relief sought.
There were no opposition papers filed but Mr Samukange, for the
respondent, submitted that the respondent denied the allegations of threats and
intimidation directed against the applicant and other villagers. He said
the relief sought was meant to support the applicant's petition already before
the Electoral Court in that if the order prayed for in casu were
granted, that would be confirmation of the applicant's allegations.
Mr Samukange argued that the effect of the relief sought would also
interfere with the respondent's role as a Traditional Chief. He said the
respondent, as a chief, had to address his people from time to time. He
agreed that the Constitution did not allow the respondent to engage in politics
but the allegations in casu were not admitted and therefore the
respondent should be allowed access to his people as provided for in the
Traditional Leaders Act [Cap 27:17] (the Act).
Mr Samukange went further to argue that apart from
other remedies available to the applicant, such as reporting to the police, the
Act 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.
Due to the nature of the allegations in this application, I
did not find it difficult to accept the urgency of the matter. The
respondent's legal practitioners did not raise issue with urgency. I
therefore proceeded to look at the merits of the matter.
There is no issue regarding the Constitutional provision which disables the
respondent from engaging in politics. Section 281(2) of the Constitution
of Zimbabwe Amendment (No. 20) Act 2013 (the Constitution) provides as follows:
“(2) Traditional leaders must not-
(a) be members of any political party or in any way participate in partisan
politics;
(b) act in a partisan manner
(c) further the interests of any political party or cause; or
(d) violate the fundamental rights and freedoms of any persons.”
Section 282 (1) of the Constitution then spells out the functions of
traditional leaders, such as the respondent, as follows:
“Functions of traditional leaders
(1) Traditional
leaders have the following functions within their areas of jurisdiction-
(a) to promote and uphold the cultural
values of their commodities and, in particular, to promote sound family values;
(b) to take measures to preserve the culture,
traditions, history and heritage of their communities, including sacred
shrines;
(c) to facilitate development;
(d) in accordance with an Act of Parliament, to
administer Communal Land and to protect the environment;
(e) to resolve disputes amongst people in
their communities in accordance with customary law; and
(f) to exercise any other functions
conferred or imposed on them by an Act of Parliament.”
I want to believe that, in the main, the execution of the above functions
necessitate the holding of public meetings – which meetings, of course, should
not be for the purposes of
“(a) furthering the interests of any party or cause;
and
(b) violating the fundamental rights and
freedoms of any person.”
The allegations in casu suggest that the respondent proceeded to do
(a) and (b) above. As already indicated, that was denied. It is
clearly illegal to conduct oneself as alleged. However, 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 para 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 para 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 s
7 of the Act. The said section provides for the investigation of any acts
of dishonesty and misconduct on the part any chief such as the
respondent.
The section 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 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 (I) 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 at
691C-G:
“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 paras 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 he urgent
application with costs.
Messrs Musendekwa – Mtisi,
applicant's legal practitioners
Messrs
Venturas & Samukange, respondent's legal
practitioners