GOWORA
JA: The
appellant is a clergyman of the Prophetic Healing and Deliverance
Ministries, commonly known as the PHD Ministries. The respondent is
the Zimbabwe Gender Commission (“the Commission”), an independent
commission provided for in accordance with section 245 of the
Constitution and established as a body corporate in terms of section
2 of the Zimbabwe Gender Commission Act [Chapter
10:31]
(the “Act”). Its functions are set out in section 246 of the
Constitution as being:
“(a)
to monitor issues concerning gender equality to ensure gender
equality as provided in this Constitution;
(b)
to investigate possible violations of rights relating to gender;
(c)
to receive and consider complaints from the public and to take such
action in regard to the complaints as it considers appropriate;
(d)
to conduct research into issues relating to gender and social
justice, and to recommend changes to laws and practices which lead to
discrimination based on gender;
(e)
to advise public and private institutions on steps to be taken to
ensure gender equality;
(f)
to recommend affirmative action programmes to achieve gender
equality;
(g)
to recommend prosecution for criminal violations of rights relating
to gender;
(h)
to secure appropriate redress where rights relating to gender have
been violated; and
(i)
to do everything necessary to promote gender equality.”
On
23 August 2019, the Commission issued General Notice 1444 of 2019
which it published in the Government Gazette. The General Notice
authorized the respondent to conduct an investigation into complaints
of sexual abuse generally made against the appellant.
In
response, on 3 September 2019, the appellant filed an application
with the High Court for a review of the decision by the respondent to
launch the investigation pursuant to the General Notice.
He
followed this up with an urgent chamber application in which he
sought by way of interim relief an interdict against the conduct of
the investigation by the respondent.
On
22 October 2019, the High Court dismissed the urgent chamber
application with costs. This appeal is against that judgment.
PROCEEDINGS
IN THE COURT A
QUO
In
seeking relief before the High Court, the appellant attached a draft
order in which he sought the following:
“TERMS
OF THE FINAL ORDER SOUGHT
That
you show cause to this Honourable Court, if any, why a final order
should not be made in the following terms;
1.
General Notice No.1444 of 2019 published in the Gazette of 23 August
2019 be hereby declared null and void and of no force and effect.
2.
That the intended investigations of the applicant for sexual abuse by
the Respondent in terms of General Notice No.1444 of 2019 published
in the Gazette of 23 August 2019 be and are hereby permanently
stayed.
3.
Costs will be costs in the cause.
TERMS
OF THE INTERIM RELIEF GRANTED
1.
Pending the determination of this matter on the return day, the
intended investigations of the Applicant for sexual abuse by the
Respondent in terms of General Notice No. 1444 of 2019 published in
the Gazette of 23 August 2019 be and are hereby stayed.”
In
his application for an interdict, the appellant averred that he had
sought the review of the decision to cause an investigation against
him on allegations of sexual abuse arising from complaints laid
against him.
He
contended that, in the review, he sought to challenge the
jurisdiction of the Commission in respect of the General Notice as
well as the intended investigation into the alleged complaints of
sexual abuse.
He
averred that the contemplated investigations were imminent and that,
by his reckoning, were due to commence at the earliest by 12
September 2019 by which date his application for review would not
have been determined and, that, the mere pendency of the application
would not stop the Commission from proceeding with the investigation
of the alleged complaints of sexual abuse.
He
contended that he had good prospects of succeeding on the review and
that his rights from the review process would be rendered nugatory if
the investigations were not halted pending the review.
His
stance was that neither the Constitution nor the Act afforded the
Commission the authority to conduct the contemplated investigation.
To that extent, any investigation by the Commission constituted an
illegality.
He
contended further that what the Commission intended from the
published notice was outside its statutory mandate and as a result,
the appellant was entitled to the protection of the law which he was
seeking from the court. Thus, it was only right that the court issue
an interdict against the Commission.
Over
and above the averments referred to in the afore-going, the appellant
contended that, even if the Commission had the authority to conduct
an investigation, the methodology it had employed violated his
constitutional rights and legal principles and rules governing
evidence such as that which the Commission wished to gather. The
methods adopted would lead to a compromised result which would cause
him to suffer irreversible harm.
He
averred that the balance of convenience was in his favour and that,
if he was not granted the relief sought, he would suffer
unconscionable irreparable harm in that he would 'be put out of
pocket and suffer permanent impairment of his personal dignity which
no other process could remedy'. He did not have any other remedy
that he could employ to stop the process which he considered illegal.
He
opined that the Commission on the other hand would not suffer any
prejudice if its intended investigation were halted.
The
Commission opposed the application.
It
maintained that it had investigative functions in terms of the
Constitution and its enabling Act. It contended that under the
provisions of section 5 of the Act, an investigation is preceded by
the promulgation of a notice in the Government Gazette and the
publishing of such notice in one or more national newspapers
informing the public of its intention to investigate a systemic
barrier as provided in the Act.
The
Commission contended that the notice it issued was lawful and
provided for by law.
It
averred that it had received numerous complaints of alleged sexual
abuse from numerous quarters against the appellant which necessitated
the issuance of the notice to facilitate the conduct of
investigations into the said complaints.
It
denied suggestions by the appellant that it had neither the mandate
nor the authority to proceed as intended.
In
so far as the prospects of success were concerned, the Commission
argued that there were none.
It
pointed to the averment by the appellant that there were numerous
complaints against him, some of which were the subject of police
investigations. The Commission averred that an investigation under
section 5 of the Act can only be possible where complainants and
witnesses have come forward with allegations pointing to the
possibility of the existence of alleged violations.
DETERMINATION
BY THE COURT A
QUO
The
court a
quo
decided the application on the sole issue of whether or not the
applicant's rights were likely to be violated. It said the
following:
“I
do not see how the applicant's rights may be violated by the
investigation. He has a right to legal representation. The
investigation itself is not of a criminal nature, in the sense that
the respondent is not endowed with any power to impose any sanction
consequent to an investigation.”
The
court a
quo
concluded that the Commission, had, under section 7 of the Act, the
power to conduct an investigation and, where the investigation
reveals systemic barriers prejudicial to gender equality, etc, after
informing the Minister, make a report to Parliament on its findings.
The court a
quo
found that there was no immediate impact on the appellant from the
investigation as contemplated by the Commission.
THE
APPEAL
The
grounds of appeal are framed as follows:
“1.
The court a
quo
misdirected itself in totally misconstruing the application before it
as one for the setting aside of investigations and so erred when
consideration is given to the fact that the application was actually
meant to interdict the holding of unlawful investigations.
2.
The court further erred in concluding that protection against harm to
fama
cannot at law be sought through urgent interdictory relief and so
erred in arriving at a finding which is contrary to established and
well-regarded authority.
3.
Having found that respondent had instituted an investigation in terms
of section 5 of the Gender Commission Act [Chapter
10:31]
and having concluded that the issues it sought to investigate were
outside the remit of the powers contained in that provision, the
court a
quo
erred in not concluding that appellant had prospects of success in
the review application and was consequently due the remedy of an
interdict.
4.
A fortiori,
the court a
quo
erred in failing to appreciate that the principle of legality
requires that when challenged, the exercise of public power must be
justified on the basis upon which it has been specifically exercised
and that for that reason, the notice impugned not having been
properly given in terms of section 5 of the Act could not be held
valid on the basis of constitutional provisions.
5.
Having come to the conclusion that the process which had been
instituted by the respondent was pointless and abortive, the court a
quo
erred in not concluding that appellant's rights were imperilled by
having to be required to go through a sham and that he was
consequently entitled to protection since the balance of convenience
was in his favour.”
ARGUMENTS
ON APPEAL
Mr
Mpofu
commenced his argument by challenging the jurisdiction of the
Commission to conduct the investigation as set out in the General
Notice.
He
submitted that the General Notice had not been issued in terms of the
Act.
He
added that the court a
quo
had itself queried the necessity by the Commission to publish the
General Notice, which it said was inconsistent with the Act and,
suggested that the court a
quo
had implied that section 5 of the Act, was inappropriately relied
upon by the Commission.
Mr
Mpofu
argued that before the court
a
quo
the
appellant was called upon to establish a prima
facie
case.
He
stated that the Commission did not have jurisdiction to issue the
General Notice.
He
highlighted to this court that once the judge a
quo
made a finding that the investigation sought to be conducted by the
respondent was not an section 5 process, it automatically followed
that the court ought to have granted the relief sought by the
appellant.
The
court engaged Mr Mpofu
to shed light on what he understood a General Notice to be.
To
his credit, counsel accepted that a General Notice is in the nature
of a statutory instrument and has the force of law.
The
court also enquired from counsel whether it was possible at law for a
court to grant an interdict the effect of which was to suspend the
operation of a law that has legal force and effect.
In
addition, the court directed Mr Mpofu,
premised
on the relief sought in the court a
quo
wherein the final order sought was the permanent stay of the
investigations and enquired of him whether the application for review
was not a superfluous process given that the final order sought by
the appellant was a permanent stay of the investigations. Once
granted by the court in terms of the final order prayed for, the
order would render the review application inconsequential.
Counsel
for the appellant contended otherwise.
Per
contra,
Ms
Damiso,
counsel for the respondent, submitted that owing to the exchange
between counsel for the appellant and the court the issue which arose
for determination was whether or not a law can be set aside through
an application for an interdict.
Ms
Damiso
contended that in view of the promulgation of the General Notice as a
law, anything done pursuant thereto must be presumed to be valid.
She
argued further that a court cannot interdict lawful conduct. For this
contention, she sought reliance on ZIMRA
v Packers International
SC28/16 and Mayor
Logistics v ZIMRA CCZ7/14,
which according to her submissions both underscored the principle
that a challenge to law cannot be made in terms of an interdict.
She
proceeded to argue that the Commission had acted within the ambit of
its powers as prescribed in terms of section 5 of the Act in that
systemic barrier to gender equality can emanate from the conduct of
one person. In this regard, she argued, the appellant being an
influential leader of a great movement, it is that stature and
influence that he seeks to protect.
Counsel
went on to argue that the Constitution, in section 246, gave the
Commission the mandate to carry out such investigations. She conceded
that the functions stated in section 246 of the Constitution are not
restated in the Act but that this did not take away the Commission's
authority to act in the manner that it did because the purpose of the
Act is not to restate what is in the Constitution but to augment the
contents thereof.
Ms
Damiso
submitted that section 246 paras (b) and (c) of the Constitution set
out the investigative functions of the Commission. She also referred
the court to section 2 of the Act which defines “systemic barriers”
and added that a reading of section 2 showed that the definition
therein was not exhaustive and, for that reason, the Commission took
the view that organised worship is a sphere of activity as
contemplated in the Act.
In
any event, Ms Damiso
argued, the Commission had decided not to proceed with the
investigations and decided to await the outcome of the review
application.
In
response, Mr
Mpofu
indicated
to the court that the authorities cited by counsel for the Commission
were irrelevant and distinguishable to the present matter.
He
argued that the General Notice was inconsistent with the Act and this
should have automatically translated to a prima
facie
case for the appellant enabling him to obtain relief from the court a
quo.
He
submitted that section 5 does not allow the Commission to exercise
the powers it purported to have exercised in terms of the General
Notice.
He
argued that there was no systemic barrier involved in
casu
that prejudiced gender equality or gender equity.
Also,
the Commission was said to have failed to indicate the section of
society that was to be investigated as envisaged by section 2(1) of
the Act.
In
closing his submissions counsel for the appellant stated that the
methodology employed by the Commission was inappropriate and not in
conformity with relevant provisions of the Act. Having said that he
prayed that the appeal be allowed and the decision of the court a
quo
be set aside.
ISSUE
FOR DETERMINATION
The
facts of the matter are not in dispute and the appeal falls for
determination on the basis of the ratio
decidendi
of the court a
quo.
Although
the appellant raised numerous grounds of appeal, there is only one
issue that arises for determination and is capable of disposing of
this whole appeal. The only issue is whether or not the court a
quo
was wrong in refusing the application for an interdict.
STATUS
OF THE GENERAL NOTICE
The
Commission is imbued with an investigative mandate, both in terms of
the Constitution and the enabling Act. It issued a General Notice,
and the appellant seeks to challenge the decision to publish the
Notice through the review that he has filed.
What
is a General Notice?
A
General Notice is a public notice published in the Government
Gazette. A General Notice is in the same category as a statutory
instrument. It is subsidiary legislation. It, therefore, has the
force and effect of law.
It
can also be viewed as a document that has legislative character, and
like any other law, it has legal force and effect.
It
is an essential element of due process and, therefore, once it is
issued it must be complied with unless set aside. As a consequence,
until and unless it has been set aside, anything done under or
pursuant to such general notice is lawful.
It
is not necessary in this appeal to determine whether or not the
Commission exceeded its powers in issuing the General Notice. Whether
or not the Notice is in accordance with the powers bestowed on the
Commission is for the court hearing the application for review to
decide.
WHETHER
THE COURT A
QUO
MISDIRECTED ITSELF IN REFUSING THE INTERDICT
What
was before the court a
quo
was an application for a temporary interdict and that is the issue
before the court on appeal.
In
determining the issue it would be prudent to start by looking at what
the appellant purported to do.
The
appellant applied for an interdict through which he sought to set
aside the General Notice.
The
premise of the interdict was that the intended investigation was
illegal from several bases, the first being the want of jurisdiction
to conduct an investigation and the alleged illegal exercise of that
jurisdiction by the Commission. It was the intention of the appellant
to subject the decision to issue the Notice to a review process.
It
is pertinent to point out that for every law that is gazetted there
is a presumption of validity and appropriate legal mechanisms have
been put in place in terms of the law where one intends to challenge
the validity of a legal instrument.
Until
it has been set aside, the General Notice has the force of law and
anything done under it is presumed to be lawful and valid.
An
application for an interdict is not and cannot by any stretch of the
imagination be considered as one of those mechanisms.
In
casu,
a case has not been made for the granting of the relief sought for
the following reasons:
The
appellant has not yet successfully impugned the legal status of the
General Notice. That can only be determined after the review is
decided.
Clearly,
in such circumstances, the legality of the notice itself is not in
issue. It still stands as law.
In
Mayor
Logistics (supra),
the court said:
“The
applicant seeks an order suspending the statutory obligation to pay
the amount of the tax it was assessed to be liable to pay to the
Fiscus pending the hearing and finalization of the appeal in the
Fiscal Appeal Court. It is in the heads of argument that the
applicant reveals that the relief sought is an interim interdict.
There is need to have regard to the substance and not the form of the
relief sought. The fact that the applicant calls the order sought, an
interim interdict does not make it one.
The
subject of the application is not the kind of subject matter an
interdict, as a remedy, was designed to deal with. An interdict is
ordinarily granted to prevent continuing or future conduct which is
harmful to a prima
facie
right, pending final determination of that right by a court of law.
Its object is to avoid a situation in which, by the time the right is
finally determined in favour of the applicant, it has been injured to
the extent that the harm cannot be repaired by the grant of the
right.
It
is axiomatic that the interdict is for the protection of an existing
right.
There
has to be proof of the existence of a prima
facie
right. It is also axiomatic that the prima
facie
right is protected from unlawful conduct which is about to infringe
it.
An
interdict cannot be granted against past invasions of a right nor can
there be an interdict against lawful conduct: Airfield
investments (Pvt) Ltd v Minister of Lands & Ors
2004 (1) ZLR 511 (S); Stauffer
Chemicals v Monsato Company
1988 (1) SA 895; Rudolph
& Anor v Commissioner for Inland Revenue & Ors
1994 (3) SA 771.”
The
view I take is that the lawfulness of the intended investigation is
established by the General Notice. It is a legislative instrument
with the force and effect of law.
As
noted above, a General Notice has the force and effect of law,
therefore, there is always a presumption of validity on that Notice
and the validity thereof cannot be questioned through an application
for an interdict. The appellant cannot seek to interdict lawful
conduct.
The
court in Mayor
Logistics (supra)
at page 11 of the cyclostyled judgment went on to say:
“There
is no basis on which the interim order sought may be granted except
the possibility relied on by the applicant that the existing
legislation would be held unconstitutional. Any court faced with an
application challenging the constitutionality of a statutory
provision is required to proceed on the presumption that the
legislation is constitutionally valid until the contrary is clearly
established.
The
principle of presumption of constitutional validity of legislation
pending determination of the main application is an important
limitation to the exercise of judicial power: Zimbabwe
Township Developers (Pvt) Ltd v Lou's Shoes (Pvt) Ltd
1983 (2) ZLR 376 (S) at 382B-D.
By
observing the principle, due respect is accorded to the legislative
branch of Government consistent with the fundamental principle of
separation of powers.”
It
is correct that the court a
quo
did not determine the matter on the basis that lawful conduct cannot
be interdicted.
This
is an issue of law that the court can raise mero
motu.
The
court did raise the issue with counsel.
In
my view, once the concession is made that the notice is a law, there
is no issue. The contemplated investigation having been preceded by
the promulgation of the notice cannot by any stretch of the
imagination be referred to as a violation of the appellant's
rights.
The
court a
quo
disposed of the matter based on the principle enunciated in Masedza
& Ors v Magistrate Rusape & Anor
1998
(1) ZLR 36. I am not convinced that the authority is of any
assistance in the determination of this appeal.
What
is at issue is a prayer for an interdict pending the determination of
a review. There were no proceedings that were sought to be stayed. In
as much as the court, a
quo
made its determination based on the principle in Masedza
it misdirected itself. The authority was not applicable to the
dispute before the court.
DISPOSITION
In
my view, the concession that the General Notice has the force of law
is dispositive of the appeal.
A
General Notice is a legal instrument that has the force and effect of
law. And like any other law, there is a presumption of validity upon
it until it has been validly set aside through the appropriate legal
procedures. Therefore, a litigant cannot through an application for
an interdict seek to police lawful conduct given that the validity of
the General Notice has not yet been determined by a court. As far as
the law is concerned the Notice is law. It, therefore, stands to
reason that an interdict cannot lie against lawful conduct.
In
the premises, the appeal is devoid of merit and is dismissed with
costs.
UCHENA
JA: I
agree
PATEL
JA: I
have read the lead judgment of my learned sister GOWORA JA and
consider it necessary to briefly analyse and address the nature of
the relief sought by the appellant in the proceedings a
quo.
As
regards this aspect, GOWORA JA quite correctly observes that in the
review application the principal relief sought is that the decision
of the Commission in issuing the General Notice be set aside. Again,
the provisional order sought in the urgent chamber application simply
prays for the intended investigation of the appellant by the
Commission in terms of the General Notice to be stayed. It is only in
the final order sought that the appellant prays that the General
Notice be declared null and void and of no force or effect.
Consequently,
my learned sister concludes that the appellant cannot seek to police
lawful conduct through an interdict, given that the validity of the
General Notice, which is presumed to be valid until it is set aside,
has yet to be determined.
In
keeping with the case authorities cited and relied upon by GOWORA JA,
I fully agree that an interdict cannot ordinarily be granted against
conduct that is prima
facie
lawful.
Regrettably
for the appellant, he has tactically miscalculated the nature of the
relief that he sought in the urgent chamber application before the
court a
quo.
He has also failed to correlate and align the draft order in the
chamber application with the relief sought in the application for
review pending before the High Court.
In
the final analysis, the applicant has failed to take into account the
formidable hurdle presented by the rule that an interdict cannot in
principle be granted against conduct that is prima
facie
lawful and carried out in terms of an extant statutory instrument
that is presumed to be valid until it is duly set aside by a
competent court that is properly seized with the question of its
validity.
In
any case, as a matter of procedural correctness, the validity of the
impugned General Notice could not properly have been an issue before
the court a
quo
until the return day had arrived.
By
the same token, it cannot be properly ventilated before and
determined by this Court on appeal against the judgment a
quo.
For
these essentially technical reasons, I would agree with GOWORA JA
that the present appeal should not be allowed.
Rubaya
& Chatambudza,
appellant's legal practitioners
The
Zimbabwe Gender Commission,
legal practitioners for the respondent
