This
is an application for leave to execute pending appeal. On 28 July
2018 I granted an interim interdict in the following terms:
“Pending
the final determination of this present case and/or the conclusion of
the 2018 election cycle, including any run-off election, whichever
comes first, it is hereby ordered:
(a)
The first respondent is interdicted and restrained from asking,
encouraging or forcing children at schools to attend or to
participate in political rallies or activities or causing the closure
of schools for any of its political rallies or activities.
(b)
The first respondent is interdicted and restrained from compelling
teachers to attend political rallies, wear party regalia, prepare
performances for children to deliver at rallies or make contributions
towards rallies whether in cash or kind.
(c)
The first respondent is interdicted and restrained from using school
property including school premises, buses, furniture, classrooms or
any other property that belongs to the school, the Government or
School Development Associations for any political rally or any other
political purpose.
(d)
The second respondent and/or any employees of his Ministry are
interdicted and restrained from assisting the first respondent to do
any of the restrained activities above or allowing the first
respondent to use schools for political purposes.”
The
first respondent is the ruling party in Zimbabwe. The second
respondent is a minister of Government in charge of primary and
secondary education. He is a member of the first respondent. The
first applicant is a trade union of primary and secondary school
teachers in rural Zimbabwe. The second applicant is a teacher. He is
the current president of the first applicant.
The
first respondent appealed against the interdict in its entirety. It
is pending that appeal that the applicants have sought leave to
execute.
Just
as in the original application, the second respondent does not oppose
the application and he seeks to abide by the decision of the court.
On the other hand, the first respondent does oppose it vigorously.
An
application for leave to execute is available because, by operation
of the law, an appeal automatically suspends the decision appealed
against and so it cannot be carried into execution. But if despite
the appeal the successful party wants to execute the judgment in the
interim, he has to seek the leave of the court that granted the
judgment.
The
application is premised on the principle that the court has an
inherent power to control its own process. The overriding principle
is the need to achieve real and substantial justice: see Santam
Insurance Company Ltd v Paget [2]
1981
ZLR 132…,.
In such an application, the court is guided by the following factors,
which it considers cumulatively:
(i)
The preponderance of equities: that is to say, the potentiality of
irreparable harm and prejudice to the applicant if leave to execute
is granted, or the potentiality of irreparable harm and prejudice to
the respondent, on appeal, if leave to execute is refused.
(ii)
The prospects of success of the appeal: that is to say, whether the
appeal is frivolous or vexatious or has been noted, not with the
genuine intention of correcting a perceived wrong, but merely in
order to buy time;
(iii)
If the competing interests are equal, then the balance of hardship to
either party;
See
Zaduck v Zaduck [2] 1965 RLR 635 [GD]; 1966 [1] SA 550 [SR]; Graham v
Graham 1950 [1] SA 655 [T]; South Cape Corporation v Engineering
Management Services 1977 [3] SA 534 [A]; Fox & Carney (Pvt) Ltd v
Carthew–Gabriel [2] 1977 [4] SA 970 [R]; Arches [Pvt] Ltd v Guthrie
Holdings [Pvt] Ltd 1989 [1] ZLR 152 [H]; ZDECO [Pvt] Ltd v Commercial
Carriers College [1980] [Pvt] Ltd 1991 [2] ZLR 61 [H]; Econet [Pvt]
Ltd v Telecel Zimbabwe [Pvt] Ltd 1998 [1] ZLR 149 [H];
Invariably,
the decision whether or not to grant an application for leave to
execute turns on the relative strength or weakness of the appeal.
This necessarily entails ploughing substantially the same field as
done at the original hearing. It also entails the court peeking into
an appeal that is pending before the superior court, and, in some
way, pronouncing a verdict on it. That is one of the shortcomings of
this type of application.
Counsel
for the first respondent argues that this, in fact, amounts to a
usurpation of the functions of the superior court. That seems true,
but to a very limited extent.
In
an application for leave to execute it is necessary to weigh the
relative strength or weakness of an appeal to guard against frivolous
and vexatious appeals that are noted purely to buy time and not for
any genuine intention to correct a wrong by the lower court. Each
case depends on its own facts. Some factors relevant to the
determination of this type of application may assume greater or
lesser importance in some cases than do others in other cases.
In
the present case, I have considered that I can decide the matter
without making a pronouncement on the prospects of success of the
appeal. Some other factors have assumed greater importance. I have
been informed that once the appeal was filed, the Supreme Court has
already set down the appeal for hearing on 27 July 2018. That is
eleven [11] days away, and just three [3] days before the general
election on 30 July 2018.
In
Engen Petroleum [Pvt] Ltd v Infrastructure Development Bank of
Zimbabwe
HH270-17
I declined an application for leave to execute pending appeal when it
was brought to my attention that the appeal had been set down for
hearing in the Supreme Court in just a month's time. I regarded it
would be more prudent, more expedient, more practical, and less
disruptive to allow the appeal to be heard without upsetting the
status quo. That would avoid a potentially embarrassing situation
where I would grant the application only for the Supreme Court to
overturn my judgment in a month's time - probably after the Sheriff
had attached and possibly removed assets.
However,
in the present case, the term “execution”
is hardly being used in the literal sense. It is hardly meant to
refer to the situation of the Sheriff going after the respondents
with some form of writ. What the applicants seek to achieve is
basically to ensure that my order of 28 June 2018 remains operative
despite the appeal.
The
applicants justify the granting of such an order on an urgent basis,
and with costs on a punitive scale, on the grounds that even after
the order was granted, the first respondent has, with impunity,
persisted with the prohibited conduct. The applicants have detailed
instances of the first respondent, through several functionaries,
including some of its aspiring Members of Parliament in several parts
of the country, ordering teachers and school children to attend its
campaign rallies. They have attached pictures of school children and
school buses draped in the first respondent's colours at the first
respondent's rallies. Some parents of school children have
submitted sworn statements confirming the forced attendance of their
children at the rallies.
Counsel
for the applicants has argued that the first respondent's conduct
is extremely disruptive of school life, particularly at this time of
the year when most schools are conducting mid-year examinations. She
says there is a real fear of physical injury being caused to the
children given that the first respondent's rallies not infrequently
turn violent. The damage is also psychological. Vulgar conduct,
inflammatory language, and other anti-social activities are all part
and parcel of the first respondent's rallies. Despite the first
respondent's appeal having been set down for hearing on an urgent
basis, the need to protect children remains ever urgent. The damage
being meted out to them is irreversible. This is against the
background that the second respondent, the custodian of Government
policies on children, has not only refrained from appealing against
the interdict, but also has, as he did in the original application,
undertaken to abide by the decision of the court.
The
first respondent does not dispute the urgency of the matter. However,
it stresses that the appeal, having been set down for hearing in the
next 11 days, there is no compelling reason for granting the order
sought. It is more expedient to leave everything to the Supreme Court
to give a final determination on the whole matter.
The
first respondent argues that the application is predicated on bald
allegations that have remained unsubstantiated. It denies being
involved in any of the wrongful activities chronicled by the
applicants. It has argued that the order sought severely prejudices
it. Among other things, the election campaign by all parties has
entered a decisive phase. The first respondent cannot be seen to be
switching the venues for its rallies - some of which comprise school
grounds. It denies using these premises, or the school buses and
other assets by force and says it pays for them or utilises them with
the consent of the relevant school authorities or parents' bodies.
Counsel
for the first respondent has drawn particular attention to paragraph
3 of the interim interdict. Unlike paragraphs 1 and 2 that make it
clear that what is prohibited is the conduct of the first respondent
in compelling
or coercing
school children and their teachers to attend rallies or to contribute
towards the cost of holding them, paragraph 3 is cast in very wide
terms. It is a blanket prohibition against the use of school property
regardless of whether the first respondent pays for it or not, or
regardless of whether it secures the consent of the relevant school
authorities. Such a prohibition is so harmful to the first
respondent's interests that it must remain suspended by the
pendance of the appeal.
Counsel
for the first respondent has a point.
Paragraph
3 of the interdict is couched in very wide terms. It clearly was
un-intended that the first respondent should be prohibited from using
the school premises and other assets where it has the agreement of
the relevant authorities.
Counsel
for the applicants agrees that this is not what the applicants
intended.
Both
parties have agreed that this particular concern can easily be
addressed by a simple amendment to paragraph 2[c] of the draft order
sought in the current application, by the addition of the words, “…,
without
the consent of the school development committees or associations…,”
so as to make it clear that what is being prohibited is the first
respondent's use of force. Of course, the first respondent does not
concede that the order sought is warranted.
But,
beyond its concern on the wording of paragraph 3 of the interdict as
aforesaid, the first respondent really has no good reason to resist
the order being sought in the present application. No reasonable
person can genuinely have any serious objections to such a
progressive order that merely seeks to protect a vulnerable section
of society such as school children. Even the first respondent itself
is not saying that such an order is a bad thing. It is simply saying
it is not doing the acts complained of.
To
my question; what prejudice the first respondent will suffer if the
order is granted, counsel for the first respondent retorts by a
counter question: what prejudice do the applicants themselves suffer
if the status quo
remains
until the appeal is determined in a mere 11 days' time?
In
my judgment in the original application, I made a positive finding
that the respondents were guilty of flagrant abuse of the rights and
freedoms of the school children; their schools and their teachers as
was set out in that application. I found that the respondents'
conduct infringed on a number of the children's rights as set out
in the Constitution, such as the following:
(i)
The right to education [section 75 and section 81(1)(f)];
(ii)
The right not to be compelled to take part in any political activity
[section 81(1)(h)];
(iii)
The right not to perform work or provide services that are
inappropriate for the children's ages [section 19(3)(b)(i)];
(iv)
The right not to perform work or provide services that place at risk
the children's well-being, education, physical or mental health or
spiritual, moral or social development [section 19(3)(b)(ii)];
I
also found that the respondents' conduct infringed on the rights of
the applicants' members as set out in the Constitution, such as the
following:
(i)
The right to freedom of assembly and association and the right not to
assemble or associate with others [section 58(1)];
(ii)
The right not to be compelled to belong to an association or to
attend a meeting or gathering [section 58(1)];
(iii)
[In relation to school premises and assets under their occupation,
custody or control] the right to hold, occupy and use property, and
the right not to be compulsorily deprived of same [section 71(2) and
(3)].
On
such findings I held that any breach of the rights accorded by the
Constitution should not be allowed to subsist for any day longer. It
is when such allegations are made that the court, as the upper
guardian of all minor children, should be moved to set aside all its
other non-urgent business to attend to the urgent matter.
In
casu,
I have considered that the preponderance of equities favours the
granting of the application. If it were an application for leave to
execute an ordinary judgment sounding in money, as was the case in
Engen
Petroleum [Pvt] Ltd v Infrastructure Development Bank of Zimbabwe
HH270-17,
referred
to above, then it would probably have been more expedient to leave
everything for the Supreme Court which is set to determine the appeal
in the next eleven days. But this is not an application for leave to
execute an ordinary judgment sounding in money. Engen
Petroleum [Pvt] Ltd v Infrastructure Development Bank of Zimbabwe
HH270-17
is
distinguishable.
Both
parties agree that campaigning for votes in the forthcoming election
on 30 July 2018 has entered the home stretch. Political parties are
leaving no stone un-turned. There is heightened political activity.
More rallies have been lined up. It is probably now, more than ever,
that school children and their teachers, in particular, require
greater protection from some excesses by political parties.
Examinations should not be disrupted. Every day counts. Eleven days
is such a long time, especially given that one of the applicant's
fears is that of physical violence.
The
first respondent's concerns are more to do with what it considers
to be negative publicity generated by the interdict. But it is up to
it to desist from the conduct complained of. At any rate, that kind
of prejudice is incomparable to that being suffered by the school
children. The evidence placed before me shows that the first
respondent has continued with the prohibited conduct - even after the
granting of the interdict.
In
the premises, the application for leave to execute is hereby granted
in the following terms:
1.
The application for leave to execute the judgment of this court,
granted on 28 June 2018 in Case No. HC263/18, pending the appeal
against that judgment noted by the first respondent under SC513/18,
is hereby granted.
2.
Thus, the respondents, their employees, members and/or agents are,
notwithstanding the appeal, interdicted and restrained from:
(a)
Asking, encouraging or forcing children at schools to attend or
participate in political rallies or activities or causing the closure
of schools for any of its political rallies or activities;
(b)
Compelling teachers to attend political rallies, wear party regalia,
prepare performances for children to deliver at rallies, or to make
contributions towards rallies whether in cash or kind;
(c)
Using school property including school premises, buses, furniture,
classrooms or any other property that belongs to the schools for any
political rally or any other political purpose without the consent of
the relevant school authorities.
3.
The first respondent shall pay the applicants costs for this
application.
