WILLIAMS & ANOR v MSIPHA NO & ORS 2010 (2) ZLR 552 (H)

Flynote

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights — s 13 — protection of right to liberty — deprivation of liberty on reasonable suspicion of having committed an offence — need for State to show that conduct alleged would constitute offence charged — only then can question be determined of whether facts give rise to reasonable suspicion

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights — s 24(2) — application to refer alleged breach of constitutional right to Supreme Court — only grounds on which such application may be refused — need to form opinion that application "frivolous" or "vexatious" — such an extraordinary remedy to be used only in clear and exceptional cases

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights — s 24(2) — application to refer alleged breach of constitutional right to Supreme Court — Supreme Court's powers under subsection — court having power to make any order appropriate to secure or enforce impugned right-power includes grant of interlocutory relief or any other order which would prevent substantial prejudice and injustice pending resolution by the court of the constitutional issue — court's power to control its own process — includes power to prevent of execution of a judgment pending hearing of an application

Criminal law — offences under Criminal Law Code — s 37(1) (a) (i) — acting with intent to disturb the peace, security or order of the public — what provision is aiming at — provision not intended' to prevent public gatherings

Criminal procedure — remand — requirements for — need for court to be satisfied that facts alleged constitute offence charged — need for court to have reasonable suspicion that accused committed offence

Words and phrases — "frivolous" — "vexatious"

Headnote

The applicants were officers of an organization, the objective of which was the promotion of the rights of women in Zimbabwe. Together with about 300 other women, they went to an open ground outside a building complex in Bulawayo where they assembled. The building complex housed offices used by civil servants from various Government departments. The applicants and their associates sang, danced, chanted slogans and waved placards in the direction of the offices. The crowd remained calm and peaceful during and after addresses by the applicants. At the end of the addresses, the police ordered the crowd to disperse. The applicants protested what they said was an unwarranted interference by the police with a legitimate exercise of the rights to freedom of assembly and freedom of expression. The rest of the people who had assembled dispersed as the applicants were arrested and taken to a local police station, where they were charged with the offence of contravening s 37(1)(a)(i) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. This penalizes any person who acts together with one or more other persons present with him or her in any place or at any meeting with the intention or realising that there is a real risk or possibility of forcibly disturbing the peace, security or order of the public or any section of the public.

When they were later brought before a magistrate for remand pending trial, the applicants challenged the legality of their prosecution and remand on the ground that the facts on which the charge was based would not, if proved at the trial, constitute the offence with which they were charged and thus could not give rise to a reasonable suspicion in the mind of a police officer or a judicial officer, acting carefully, that they had committed the offence. They contended that, as that was the only ground on which the State was authorized by law to deprive them of personal liberty for the purpose of ensuring their appearance at the trial, the prosecution and remand constituted an arbitrary deprivation of personal liberty in contravention of s 13(1) and a violation of the right to the protection of the law guaranteed under s 18(1) of the Constitution. The magistrate nonetheless remanded the appellants. At a subsequent hearing, an application was made for the matter to be referred to the H Supreme Court in terms of s 24(2) of the Constitution. The magistrate refused to do so, essentially on the grounds that he considered that the applicants were playing for time.

The applicants alleged that the magistrate failed to comply with the requirements of s 24(2) of the Constitution, resulting in an arbitrary refusal of access to the Supreme Court in violation of the fundamental right of the applicants to the protection of the law. The applicants also applied for an interim order restraining the magistrate and the third respondent (the Attorney-General) from commencing the trial, pending determination of the matter by the Supreme Court. They argued that the facts alleged did not constitute a contravention of the section under which they were charged. The respondents argued that the Supreme Court had no jurisdiction in constitutional cases involving allegations of a contravention of fundamental rights and freedoms to grant interlocutory relief by way of interim orders.

Held, that under s 24(4) of the Constitution, the Supreme Court has the jurisdiction make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of the fundamental human rights and freedoms guaranteed under Chapter III. A wide discretionary power is given to the Supreme Court as to the remedies it can employ to achieve the objectives for which the power conferred on it under s 24(4) was intended to be exercised. The only condition restricting the choice of a particular remedy is that consideration must be given to the question whether the remedy is appropriate for the purpose of the enforcement or securing the enforcement of the fundamental human right or freedom found to have been violated or likely to be violated in relation to the applicant. The discretionary power is broad enough to permit the granting of interlocutory relief by way of an interim order restraining conduct which would otherwise have the effect of rendering the enforcement or securing the enforcement of the fundamental human right or freedom ineffectual. Here, the application for an interdict alleged that to start the trial pending resolution of the main application would constitute a violation of the applicants' fundamental right to the protection of the law guaranteed under s 18(1) of the Constitution. The court is empowered also to make any order that would preserve matters between parties to the main application in a state that would, as far as is possible, prevent substantial prejudice and injustice pending resolution by it of the dispute in the main application so as to enable it to render a meaningful and effective judgment. The court must be able to intervene, not only against the direct dictates of the judgment of the lower court, but also against its effects.

Held, further, that once the Supreme Court is seized with a matter, it has inherent jurisdiction to control its process. That jurisdiction includes the power to control the process of the court, including the prevention of execution of a judgment pending the hearing of an application. It thus has the power to restrain the magistrate and the Attorney-General from relying on the magistrate's decision to refuse to refer the constitutional questions and from commencing the trial of the applicants pending final determination of the main application, because to commence the trial would tend to negate or render nugatory the judgment of the court on the main application when it was given. Applying the normal tests for when an interdict may be granted, this was a suitable case for granting interlocutory relief to the applicants.

Held, further, that the right to an effective judicial protection of a fundamental human right or freedom requires that the judicial officer should act in accordance with the requirements prescribed by the Constitution for the protection of the particular right or freedom. When an application is made under s 24(2) to refer a constitutional question to the Supreme Court, the only restriction on the obligation to refer the question imposed on the judicial officer is the discretion given to refuse a request for a referral when in his opinion the raising of the question is "merely frivolous or vexatious". The formation of such an opinion is the pre-condition for the refusal of the referral. Although the formation of the opinion denotes a subjective state of mind, it presupposes compliance with a process in which objective procedural and substantive standards are observed and met. The opinion which the person presiding in the lower court is required to form is a particular opinion in the sense that he is expected to form it by reference to specific criteria. The judicial officer is required to have knowledge of the ordinary and natural meaning of the words "frivolous or vexatious", which constitutes the standard which he must conscientiously and objectively apply to the facts on which the question as to the contravention of the fundamental human right or freedom is raised. The word "frivolous" in its ordinary and natural meaning connotes an action or legal proceeding characterized by lack of seriousness, as in the case of one which is manifestly insufficient. The request would have to be found, on the facts, to have been obviously lacking in seriousness, unsustainable, manifestly groundless or utterly hopeless and without foundation in the facts on which it was purportedly based. The word "vexatious" means that the question is being put forward for the purpose of causing annoyance to the opposing party, in the full appreciation that it cannot succeed; it is not raised bona fide and a referral would be to permit the opponent to be vexed under a form of legal process that was baseless. Accordingly, refusal of a referral of a question as to the contravention of a fundamental human right or freedom to the Supreme Court, which under s 24(4)) of the Constitution is the court with original jurisdiction to determine the matter, is an extraordinary remedy intended to be used in clear and exceptional cases. Here, the magistrate proceeded on the assumption that the charge was valid and did not consider whether the application was frivolous or vexatious. The magistrate thus failed to comply with the requirements of s 24(2) of the Constitution.

Held, further, that under s 13(2)(e) of the Constitution, an accused person may be deprived of personal liberty where there is reasonable suspicion of him having committed a criminal offence. The judicial officer must, therefore, make a finding that the facts on which the charge laid against the accused person is based provide ground for a reasonable suspicion of him having committed the offence with which he is charged. Where the accused challenges the legality of the charge on the ground that the offence itself was not committed, the onus is on the State to first show that, if proved at the trial, the facts on which the charge is based would constitute the offence with which the accused person is charged. Only then would the question arise whether the facts provide grounds for a reasonable suspicion that the accused committed the offence, as required by s 13(2)(e) of the Constitution. The magistrate was required to take into account the essential elements of the offence and the conduct which, if proved at the trial, would constitute the offence charged. He was required to apply the knowledge of the statute to the conduct actually committed by the applicants and decide whether it constituted the proscribed conduct.

Held, further, that s 37(1)(a)(i) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] proscribes acts which have, as their direct and obvious consequence, serious disturbance of the peace, security or order of the public or any section of the public prevailing immediately before the occurrence of the conduct. Examples would be acts of violence committed by people assembled together or a speech in which the speaker incites his audience to violence. The conduct does not in itself constitute the offence. It becomes an offence if it is intended to produce the consequence of forcible disturbance of the peace, security or order of the public or any section of the public or when it is realised as a real possibility that forcible disturbance of the peace, security or order of the public or any section of the public would result from it. The primary object of the section is the preservation of the peace, security or order of the public. The statute is not intended to be used to punish acts which are an exercise of the fundamental human rights to freedom of assembly and freedom of expression which are protected under the Constitution. When properly construed, the statute presupposes that there are acts which can be committed by people gathered together at any place or at any meeting consonant with the maintenance of the peace, security or order of the public or any section of the public. As the exercise of the fundamental rights to freedom of assembly and freedom of expression, given by ss 20(1) and 21(1) of the Constitution, presupposes the existence of an organized society in which the existence of peace, security or order of the public is the quintessence of the security of these liberties, they cannot be held to include in their exercise the right to virtually destroy that which is essential for their enjoyment. The statute is intended to be used to punish conduct which constitutes abuse of the fundamental rights to freedom of assembly and freedom of expression through behaviour or words which are inimical to public welfare. Whilst it does not proscribe advocacy of ideas, it does proscribe advocacy of violent action. The applicants were simply exercising their fundamental rights to freedom of assembly and freedom of expression. Their conduct, if proved at the trial, could not constitute the offence they were charged with. What the applicants did was germane to the purpose for which the fundamental rights to freedom of assembly and freedom of expression are guaranteed under the Constitution. They did all they did in a peaceful gathering, whilst preserving their willingness to act in conformity with the law. The acts they committed were acts to which the statute would not apply as the conduct was wholly protected by the Constitution.