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 EC35/13 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 p1 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 section 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 p227. 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 the urgent application with costs.
Messrs
Musendekwa–Mtisi, applicant's legal practitioners
Messrs
Venturas & Samukange, respondent's legal practitioners
