BITI v CHIMBOZA NO & ORS 2011 (1) ZLR 408 (H)

Flynote

Statutes — Public Order and Security Act [Chapter 11:17] — power of police to control or prohibit meetings — police being of view that meeting could result in disorder — whether police obliged to consult convener — failure by police to do so — may be cured by evidence led at appeal to magistrates court

Headnote

The applicant, a senior official in a political party, notified the regulating authority in terms of s 25 of the Public Order and Security Act [Chapter 11:17] of his party's intention to hold a rally about a week later at a particular venue. The regulating authority responded by advising the applicant that the venue had already been booked by another organisation. The applicant then sent another notice advising the regulating authority of his party's intention to hold a rally at another venue on the same date. The regulating authority advised the applicant that the proximity and timing of the intended rally was clashing with a rally to be held by another party, which would be held on the same date, at a venue some 500 metres away. On neither occasion did the regulating authority invite the applicant for consultations, negotiations, amendment of the notice or any other issues as provided for under s 26(3) of the Act. Instead, the regulating authority issued a prohibition notice in terms of s 26(9). The applicant then filed an appeal with the magistrates court in terms of s 27B of the Act. The regulating authority gave evidence at the appeal hearing. On the basis of that evidence the magistrate dismissed the appeal and confirmed the notice of prohibition.

The applicant argued that the second respondent had failed to comply with the peremptory provisions of the Act. The resultant prohibition order was therefore a nullity and the magistrate therefore should have granted the appeal. The applicant argued that the Act did not give the regulating

authority any discretion, based on his experience or otherwise, to dispense with the laid down procedures. The relevant provisions were mandatory and not merely directory, to be dispensed with at the discretion of the regulating authority.

The respondents, whilst conceding that the regulating authority had not abided by the relevant provisions of the Act, argued that the nature of theperceived threat was within his operational competency and experience. It was his experience that the holding of rallies by different parties at adjacent venues invariably led to violent clashes between supporters of rival parties. In the circumstances, therefore, he was justified in dispensing with the holding of consultative meetings as the threat was capable of assessment without the input of third parties. In any event, he did not have sufficient manpower to neutralise the perceived threat. For these reasons, he had decided to issue the prohibition order.

Held, that the provisions of s 26(3) were couched in positive language and, on the face of it, would appear to be intended to be mandatory provisions to be complied with strictly by the regulating authority. In that case, the regulating authority erred in issuing a prohibition order in the absence of any credible information given on oath. He also erred in failing to invite, as he would be required to do, the convener and other stakeholders to a consultative meeting to discuss the threat and the options available. However, by calling for evidence on oath from the regulating authority and hearing the parties, the magistrate in essence cured the defects or omissions inherent in the manner in which the regulating authority had initially proceeded. Having done so and no doubt having found the information given on oath to have been credible, the magistrate confirmed the prohibition order.

Held, further, that prima facie the procedures specified in s 26(3) to be complied with by the regulating authority will only be set in motion if the regulating authority receives information of a threat of disruption of traffic or of public order. If no such information is received, then it can reasonably be argued that the regulating authority need not proceed as prescribed. Here, the regulating authority, without receiving any adverse information from a source other than himself, was of the opinion that, because of certain facts known to himself or drawn from his own operational experience, it would be imprudent to authorise the demonstration, meeting or public procession. In this situation, the consultation procedures cannot be triggered, because the legislature has not said that is what should be done. To fetter a regulatory authority's discretion in the manner suggested by the applicant would severely curtail the effective discharge by the police of their constitutional mandate — to maintain law and order in the country. In any event, it would not be prudent to require that a member of the police force be obliged to hold consultations in the manner prescribed to test the reasonableness or otherwise of any information known to him through operational experience or other sources privy to him or the force at large. Such information might well be sensitive or privileged the disclosure of which might well be detrimental to public order and security.