BULAWAYO DIALOGUE INSTITUTE v MATYATYA NO & ORS 2003 (2) ZLR 79 (H)

Flynote

Practice and procedure — application — urgent — application made either ex parte or at very short notice — necessity for applicant to act with the utmost good faith and lay all relevant facts before the court

Practice and procedure — interdict — application for — final prohibitory interdict — what applicant must establish

Statutes — Public Order and Security Act [Chapter 11:17] — ss 24, 25 & 26 — power of police to control or prohibit public gatherings

Headnote

The applicant wished to hold a public meeting and notified the police of its intention to do so, adding a request to "grant the authority". The response of the police, which was received two days before the meeting was to be held, stated that the "application was not approved". The applicant sought an urgent ex parte interdict to prevent the police from interfering with the meeting. In its papers, the applicant did not disclose that a meeting had been held with the police, at which the police's reasons for objecting to the meeting were given.

Held, that in an urgent ex parte application, utmost good faith must be shown by the applicant to lay all relevant facts before the court, so that the court may have full knowledge of all the circumstances of the case before making its order. In view of the very short notice at which the application was brought, the applicant should have mentioned the fact that discussions had been held with the police.

Held, further, the applicant did not seem to appreciate the powers of the police under the Public Order and Security Act [Chapter 11:17]. These were, once they had been notified of a public meeting, either to control the meeting, under s 25, or prohibit it, under s 26.

Held, further, that in order to succeed in obtaining a final prohibitory interdict the applicant must establish (a) a clear right; (b) an injury actually committed or reasonably apprehended and (c) the absence of similar protection by any other ordinary remedy. The applicant had not claimed that the police did the wrong thing, acted in the wrong manner or acted on the wrong grounds. The applicant seemed to have based the application on the premise that the police did not have the powers that the Act actually gives them.

Held, further, that if the applicant's case was premised on judicial review ofthe police's administrative actions, a proper legal foundation must be laid for the relief sought.