In
an ex
parte
application filed under case number HC2259/15 I granted the following
provisional order -
“TERMS
OF THE FINAL ORDER SOUGHT
That
you show cause to this Honourable Court why a final order should not
be made in the following terms:-
1.
The provisional relief granted by this court on the 16th
day of March 2015, by the Honourable Mr ...
In
an ex
parte
application filed under case number HC2259/15 I granted the following
provisional order -
“TERMS
OF THE FINAL ORDER SOUGHT
That
you show cause to this Honourable Court why a final order should not
be made in the following terms:-
1.
The provisional relief granted by this court on the 16th
day of March 2015, by the Honourable Mr Justice MUSAKWA sitting at
Harare be and is hereby confirmed as final.
2.
It is hereby declared that the possession, publication, or
re-publication of applicants' confidential communications as
between their directors and third parties, and their confidential
information, violates applicants' right to protection of their
privacy.
3.
The respondents be and are hereby permanently interdicted from
releasing and/ or causing to be released, personally and thorough
agents, information gleaned from the
source
documents referred to in the interim relief granted.
4.
The respondents be and are hereby ordered to delete all private
communications and information owned by and pertaining to the
applicants.
5.
The documents and information seized in terms of paragraph 4 of the
interim relief granted be released to the applicants forthwith.
6.
The respondents, jointly and severally, the one paying for the other
to be absolved be and are hereby ordered to pay applicants' costs
of suit on a legal practitioner and own client scale including the
costs incurred in retaining an instructing counsel where applicable.
INTERIM
RELIEF GRANTED
Pending
the return day:
It
is hereby ordered that:
1.
The respondents be and are hereby jointly ordered to immediately
delete and expunge the two articles entitled 'Steward Bank seeks to
settle $2.1 million Chiyangwa loan 'and 'updated: debt distressed
Zimbabwe moves to reschedule domestic debt' published on 2nd
March 2015 and 26th
February, respectively, from the online publication 'The Source'
hosted on http://source.co.zw in their entirety, or, alternatively,
any information contained in them relating to the applicants, their
directors, consultant, customers, or counter parties.
2.
The respondents be and are herby jointly interdicted from publishing
or re-publishing, personally or through the agency of other persons,
and through the online publication,'The Source' hosted on
http://source.co.zw the names of the applicants' customers and
details of their loan or credit agreements with applicants.
3.
The respondents be and are herby jointly interdicted from publishing
or republishing contents of e-mail and internal memoranda or
correspondence of a private nature relating to the applicants'
business or that of its customers, consultants, or other
counter-parties.
4.
An Anton Pillar Order
be and is hereby issued authorizing the applicants, their legal
practitioners and technology experts with the assistance of the
Sheriff of this Honourable Court or his lawful deputy, or the police,
as may be necessary, to search the premises and computer systems of
the respondents for any information belonging to the applicants that
may be in the possession of the respondents without their consent,
and to seize and place such information in the custody of the
Registrar of this Honourable Court pending the return day.”
When
the matter was set down for hearing, the Registrar erroneously
notified the present applicants. Nonetheless, they were not served
with the application itself. It turned out that they attended at the
High Court after the matter had been disposed of and after the other
parties had already left.
They
sought audience notwithstanding that I was now functus
officio.
The
present application seeks the following relief -
“TERMS
OF THE FINAL ORDER SOUGHT
1.
The procedure adopted by the Respondents in HC2259/15 is in violation
of the applicant's Constitutional rights.
2.
The Provisional Order that have (sic) granted in HC2259/15 be and is
hereby set aside and replaced with the finding of the Constitutional
Court of Zimbabwe.
3.
The 1st
and 2nd
Respondents shall (sic) the costs of suit on an attorney-client scale
including the cost of instructing counsel if Applicant chose to
appoint one, the one paying and the other to be absolved.
INTERIM
RELIEF SOUGHT
Pending
the final determination of this present case:
1.
The case of Steward Bank Limited and Another v The Source + Three
Others HC2259/15 be and is hereby referred to the Constitutional
Court of Zimbabwe for a determination on the constitutionality of the
proceedings and the order issued in HC2259/15.
2.
The execution of the Order granted by Justice Musekwa (sic) in
HC2259/15 be and is hereby stayed, pending the determination of the
relevant constitutional questions at the Constitutional Court.
3.
Applicants in this matter be furnished with the details of HC2259/ by
the 1st
and 2nd
Respondents to enable Applicants to prosecute their Constitutional
Court challenge more fairly.”
The
certificate of urgency prepared by Peter Matsanura claims that the
proceedings under HC2259/15 were conducted secretively and do not
conform with the principles of natural justice. He also opines that
the present application raises important Constitutional questions
that merit a hearing before the High Court as well as the
Constitutional Court.
The
founding affidavit claims that this is an application for referral of
the proceedings in HC2259/15 to the Constitutional Court.
The
deponent then further avers that although they have no information
regarding the proceedings in HC2259/15 the applicants are
apprehensive that this will result in the violation of their
fundamental rights. It is also claimed that the applicants' legal
practitioners were denied audience. Whilst claiming not to know the
nature of the order granted against the applicants the deponent to
the founding affidavit then claims that the order that was granted is
unconstitutional in the following respects -
1.
Violation of the applicants' rights to freedom of expression and
freedom of the media;
2.
Violation of the applicants' right to be heard before harsh
punishment is meted on them; and
3.
Violation of the applicants' rights to privacy since their
work-related equipment and work spaces do not contain information
that relates only and exclusively to the respondents in the present
case.
In
opposing the relief sought, the respondents have attacked the
speculative nature of the certificate of urgency. It is contended
that the matter lacks urgency. The applicants should have secured the
application as well as the order that was granted. It would then have
been apparent that there were alternative remedies available to the
applicants….,.
The
Request For Referral
Without
even considering whether the request is merited, one has to consider
whether it is competent to make such an order. A referral to the
Constitutional Court is provided in section 175 of the Constitution
which states that -
“If
a Constitutional matter arises in any proceedings before a court, the
person presiding over that court may and, if so requested by any
party to the proceedings, must refer the matter to the Constitutional
Court unless he or she considers the request is merely frivolous or
vexatious.”
Counsel
for the respondents submitted that there is no matter before me for
referral to the Constitutional Court. This is because a provisional
order has already been granted. The applicants can only make such a
request on the return date.
On
the other hand, counsel for the applicants submitted that the court
is still seized with such a matter and can make such a referral. He
further submitted that the court retains the right to regulate its
own process.
It
is self-evident that at the time of hearing the present application I
was not presiding over proceedings in HC2259/15.
One
only has to look at the words; “If a constitutional matter arises
in any proceedings before a court, the
person presiding over that court
may, and, if so requested by any party to the proceedings…,.”
The
relief that was granted in HC2259/15 awaits confirmation or discharge
on the return date. The applicants may exercise their right to
request a referral on that occasion. Alternatively, the applicants
are not precluded from making a direct application to the
Constitutional Court….,.
Material
Non-Disclosure
Counsel
for the respondents submitted that the applicants lied that they are
not aware of the order that was granted. He made reference to the
founding affidavit in which an attempt is made to paraphrase the
order in paragraph 23 thereof. He further submitted that the concerns
raised were objectively considered when the provisional order was
granted. He also queried why it is thought the order metes out harsh
punishment.
Counsel
for the applicants maintained that the applicants were not aware of
the contents of the order. He contended that the applicants were
served with a notice of set down although they were not heard.
It
is noted that in the applicants' answering affidavit it is averred
that the applicants sought to have access to the record through the
relevant Judge's clerk and this was denied. Correspondence was
addressed to the Registrar and not responded to.
It
should be well known that court records are under the custody of the
Registrar. There is no indication that the Registrar was approached
and declined to grant access to the record. I did observe that as at
the date of hearing this application the preparation of the order was
being finalised. That notwithstanding, a party desirous of accessing
court records can even bring this to the attention of the Judge
President.
The
applicants get the benefit of the doubt on this issue. This is so
when there is no proof that they had been served with the order.
Certificate
of Urgency
The
impression given is that secretive proceedings were conducted by the
court.
A
legal practitioner who is requested to certify an application as
urgent should verify the averments made by the applicant. The
averments made by Peter Matsanura are speculative as they are a mere
rehash of the averments made in the founding affidavit. Any legal
practitioner should be aware that a chamber application can even be
determined without hearing the parties. It looks like Peter Matsanura
refrained from verifying what actually transpired and this must be
deprecated….,.
Where
a decision is made in default a party may seek rescission. Where a
matter is heard ex
parte
an interested party may anticipate the return date.
