Urgent
Chamber Application
ZHOU
J:
This
is an urgent chamber application for an interim order interdicting
the first respondent from publishing a voters' roll with the
photograph of the applicant. The final relief sought is for section
9(c) of the Electoral (Voter Registration) Regulations, 2017, which
are contained in Statutory Instrument 85 of 2017 to be declared ultra
vires section 57 of the Constitution of Zimbabwe.
The
application is opposed by the third to thirteenth respondents. The
first and second respondents elected to abide by the decision of this
court. The first defendant filed an affidavit solely for the purpose
of placing certain pertinent information on record.
The
third to thirteenth respondents were joined as parties to this
application by an order which was granted pursuant to their
application for joinder.
The
facts upon which the application is founded can be summarized as
follows.
The
applicant is a registered voter. In her private life she is active on
the social media platform commonly referred to as “Facebook” on
which she uses a name which is not her official name. She has
publicly proclaimed her political inclinations on that platform. She
has adduced evidence of the abuse to which she has been subjected on
that social media platform for expressing her opinions. Some of the
abuses constitute a threat upon her person. She uses her correct
photograph on Facebook, and contends that the publication of her
photograph in a voters' roll to be given to members of the public
and political actors such as the third to thirteenth respondents
would violate her right to privacy which is protected under section
57 of the Constitution of Zimbabwe.
Mr
Chinyoka
for
the applicant submitted that the applicant has no difficulty with a
voters roll with her photograph being availed to the polling officers
at the polling stations for the purposes of identifying the voters.
Her complaint is that the publication to members of the public of a
voters' roll containing her photograph apart from being an invasion
of her privacy constitutes a threat upon her security as her
photograph can be readily linked to her correct name and residential
address.
The
first respondent states that stakeholders and other interested
persons have been furnished with copies of the voters' roll the
electronic version of which is searchable and analyzable as required
by law. In the affidavit filed on behalf of the first respondent
certain disclosures were made regarding how attempts have been made
to hack the electronic voter's roll. Notwithstanding the
encryption of on the voters' roll to prevent its editing, the first
respondent expresses the concern that security features can be
by-passed by those intent on hacking.
The
third to thirteenth respondents oppose the application on the ground
that the publication of the applicant's photograph in the voters'
roll is authorized by law because section 9(c) of the Electoral
(Voter Registration) Regulations provides for the compilation of a
voters roll with each voter's photograph. The third to thirteenth
respondents argued that the personal details contained in the voters
roll would still expose a voter to the risks which the applicant is
concerned about even if the photograph was to be left out.
The
applicant objected to the locus
standi of
the ninth respondent on the ground that it is not a juristic persona.
Mr
Chinyoka
for
the applicant submitted that the ninth respondent is a coalition of
political parties each with a distinct personality. He pointed to the
fact that the eleventh respondent which is said to be a partner in
the alliance constituting the ninth respondent applied to be joined
and has defended the matter separately.
In
the application for joinder the ninth respondent presented itself as
a juristic person with the capacity to sue and be sued in its own
name. The dispute of fact pertaining to its juristic status is not
one that can be determined on the papers. In any event, if the
concern is about the payment of costs in the event that the applicant
succeeded that is relief which falls for determination on the return
date. Nothing prevents the applicant from inviting the court to
consider awarding costs against those who deposed to the affidavit on
behalf of the ninth respondent should it turn out to be a
non-existent entity at law.
Regarding
the fourth respondent, the name of one Evan Mawarire appears in the
papers. However, one Kuzivakwashe Agnes Ngodza deposed to an
affidavit on behalf of the fourth respondent. Although she states
that the authority to do that is in terms of a power of attorney no
such power of attorney is attached to the affidavit. I find that the
fourth respondent is not properly before the court and his name must
be struck out from the papers. Any costs occasioned by the purported
involvement of the fourth respondent must be paid by the deponent to
the affidavit, Kuzivakwashe Agness Ngodza.
What
must be determined in the present case is whether the applicant has
established the requirements for the interdict which is being sought.
What
is being sought in the present case is an interim interdict. An
interim interdict, which is also referred to as an interlocutory or a
temporary interdict or an interdict pendente
lite
is one that is sought pending the outcome of proceedings between the
parties, Cilliers et
al,
Herbstein & van Winsen
The Civil Practice of the High Courts of South Africa 5
ed, Vol. 2,
p.
1455. Its primary purpose is normally to preserve or restore the
status
quo pending
the final determination of the rights of the parties. It does not
impact upon or entail the final determination of such rights, see
Radurum
(Pty) Ltd v
Weider Gym Athlone (Pty) Ltd 1997
(1) SA 646 (C). In the case of Winkelbauer
& Winkelbauer v
Minister of Economic Affairs 1995
(2) SA 570 (T) at 574 BOTHA
J
said:
“The
purpose of interim relief pendent
lite is
to obviate an injustice to a party who prima
facie has
been (or believes on reasonable grounds that he is about to be)
wronged, but who needs time to obtain redress through the due process
of law.”
The
requirements for an interim interdict to be granted are settled. An
applicant for a temporary interdict will succeed if he or she
establishes the following:
(a)
That the right which forms the subject matter of the main action and
that the applicant seeks to protect is clearly or prima
facie established,
even though open to some doubt;
(b)
Where the right is only prima
facie established,
that there is a well-grounded apprehension of irreparable harm to the
applicant if the interim relief is not granted and she or he
ultimately succeeds in establishing the right. This requirement is
not necessary where a clear right is established;
(c)
The balance of convenience favours the granting of interim relief;
and
(d)
The applicant has no other satisfactory remedy.
The
principle that the existence of a right is a matter of substantive
law and whether that right is clearly or only prima
facie established
is a question of evidence is one that has been accepted in many cases
and requires no further discussion.
The
evidence which is adduced by the applicant must establish on a
balance of probabilities the existence of a right which is
protectable at law.
The
applicant seeks enforcement of the right to privacy. That right is
protected by the Constitution and by the common law. Section 57 of
the Constitution of Zimbabwe provides as follows:
“Every
person has the right to privacy, which includes the right not to have
–
(a)
their home, premises or property entered without their permission;
(b)
their person, home, premises or property searched;
(c)
their possessions seized;
(d)
the privacy of their communications infringed; or
(e)
their health condition disclosed.”
The
use of the word “includes” in the above provision means that the
ambit of the right extends beyond the instances explicitly stated in
paragraphs (a) to (e) of section 57.
In
relation to the common law, Iain Currie & Johan de Waal in The
Bill of Rights Handbook 5
ed.,
at p 316 state the following:
“The
interests underlying the entrenchment of a right to privacy in the
Bill of Rights have long been recognized by the common law as
important reasons for protecting privacy. The common law recognizes
the right to privacy as an independent personality right that the
courts consider to be part of the concept of 'dignitas'. At
common law, the breach of a person's privacy constitutes an
iniuria.
. .”
See
also Mandaza
v Daily News & Anor 2002
(2) ZLR 296 (H).
The
courts have held among other things, that the right to privacy is
invaded by the publication of a person's photograph as part of an
advertisement without the consent of the person, O'Keeffe
v Argus Printing and Publishing Co Ltd 1954
(3) SA 244 (C) at 247F-249 D.
There
is no reason why the publication of a person's photograph together
with disclosure of particulars such as the person's address,
identity particulars and so on to persons who have no legitimate
right to such information should be excused from the ambit of the
conduct which constitutes an invasion of the right to privacy. This
is particularly so where, as in
casu,
the publication exposes the person to injury, ridicule or other
illegitimate or unlawful conduct.
The
applicant has therefore proved a prima
facie right
to privacy which would be invaded by the publication of her
photograph.
The
term injury in the broad sense in which it is used in the context of
an interdict includes any prejudice which may be suffered by an
applicant as a consequence of the invasion of the right. The injury
is not confined to bodily harm or one that is capable of pecuniary
assessment or evaluation; see Minister
of Law and Order, Bophuthatswana v
Committee of the Church Summit of Bophuthatswana 1994
(3) SA 89 (B) at 98 H-I.
Injury
in the context of contravention of the declaration of rights arises
from the mere invasion of the right protected by the Constitution and
by the common law. Put in other words, the harm is constituted by the
mere violation of the right.
If
the publication of the applicant's photo takes place and the
impugned regulations are ultimately invalidated the applicant will
have no remedy to reverse the infraction which would have taken
place. This makes the harm irreversible. The applicant's
apprehension of the impending publication arises not just from the
mere fact that there are regulations which permit such publication
but from the pressure being put to bear upon the first respondent by
political and other actors to publish a voters' roll with her
photograph. Her fears are therefore properly founded.
In
considering whether or not the balance of convenience favours the
granting of the interdict the court must weigh the harm to the
applicant if the interim relief is not granted against the prejudice
to the respondents if it is granted.
In
this case the inclusion of the applicant's photograph in a voters'
roll is sanctioned by Regulations. Those are the impugned regulations
in respect of which a declaration of invalidity is being sought as
the final relief in the present application. If the interdict is not
granted and the applicant ultimately succeeds in having the
Regulations set aside her prejudice is irremediable. On the other
hand, the granting of the interdict does not irreparably prejudice
any of the respondents. The applicant's case, as outlined earlier
on, is not that there should be no photograph in a voters roll as
such, but that the voters' roll with a photograph must be one that
is given to the officials who conduct the voting to ensure the
correctness of the identity of the person voting. Her objection is to
the availing of her photograph to every other person. The
non-publication of a photograph to every person who cares to get
possession of the voters' roll is not a matter that can prejudice
the conduct of an election which is the respondents' legitimate
concern.
The
question of the absence of an alternative remedy must be understood
in the context of the remedy envisaged by law. For it to qualify as
an alternative remedy, it must:
(a)
be adequate, having regard to the circumstances of the matter;
(b)
be ordinary and reasonable;
(c)
be a legal remedy;
(d)
grant similar protection.
Herbstein
& van Winsen
The Civil Practice of the High Courts of South Africa 5
ed, pp 1467-1468.
I
did not understand the third to thirteenth respondents to have
postulated the availability of any remedy to the applicant which
would prevent the violation of her right to privacy if the interim
interdict being sought in this case is not granted. What is being
sought is to interdict the publication of the applicant's
photograph, relief which only these proceedings can provide.
In
the result, the provisional order is granted in terms of the draft
filed of record.
Gunje
Legal Practice,
applicant's legal practitioners
Nyika
Kanengoni & Partners,
first respondent's legal practitioners
Attorney-General's
Office,
second respondent's legal practitioners
Wintertons,
third to thirteenth respondents' legal practitioners
