DEMOCRATIC ASSEMBLY FOR RESTORATION AND EMPOWERMENT & ORS v SAUNYAMA & ORS (1) 2016 (2) ZLR 360 (H)

Flynote

Statutes: " Public Order and Security Act [Chapter 11:17] " power given to police to prohibit processions and gatherings " need for interested parties to be given notice of intention to prohibit processions " parties' constitutional rights violated when no notice given " no power under section given to any person to make regulations " statutory instrument issued by police invalid

Headnote

The applicants intended to hold public gatherings and processions against police brutality. They had given notice to the police of the date of the proposed demonstration. A week before the planned date, the first respondent (the Officer Commanding, Harare Police District) issued a statutory instrument, seeking to proscribe any public processions for a two week period. The notice was purportedly issued in terms of s 27 of the Public Order and Security Act (POSA). The applicants sought interim orders suspending the operation of the statutory instrument and interdicting the police from interfering with the processions. As final relief, they sought orders or declarations that the statutory instrument was ultra vires the POSA, and that the statutory instrument, as well as s 27 of the POSA, breached the applicants' fundamental rights protected by ss 59, 61, 66, 67, 68 and 92 of the Constitution. The application was sought on an urgent basis.

Held, that the application for a declaration that s 27 of POSA was unconstitutional was not urgent. The section had been on the statute book for over three years and the applicants would suffer no irreparable damage if the matter was not dealt with immediately. It was, however, appropriate to consider urgently the constitutional validity of the statutory instrument. The applicants' need to act arose when the instrument was

A published. The applicants did so and the issue was not one within the exclusive jurisdiction of the Constitutional Court.

Held, further, that the applicants had also established the basic requirements for the granting of an interim interdict.

Held, further, that s 27 of POSA did not give power to the first respondent or the Commissioner of Police or the Minister of Home Affairs to make regulations. The first respondent had abrogated to himself a power which he did not have. This was illegal and unconstitutional and the Attorney General was guilty of drafting the statutory instrument. The statutory instrument was therefore null and void for being ultra vires.

Held, further, that the constitutionality of s 27 of POSA was not before the court but the respondents had at any rate failed to follow the requirements of s 27 of POSA. They had failed to give the interested parties an opportunity to be heard, failed to provide written reasons before issuing the notice, failed to issue the notice in the manner prescribed and issued the notice as statutory instrument when they had no power to do so. The applicants' right to lawful, prompt, efficient, reasonable, proportional, impartial administrative conduct was violated when the statutory instrument was purportedly issued.

Held, further, that in terms of s 175 of the Constitution the court had the power to suspend conditionally or unconditionally a declaration of invalidity for any period to allow the competent authority to correct the defect. It was just and equitable to suspend the declaration of constitutional invalidity for seven working days to allow the competent authority to comply with the requirements of the Constitution and the POSA.