News update – 3pm:

The 22 women arrested in Pumula today have been released without being charged. As lawyers from Zimbabwe Lawyers for Human Rights were unavailable to attend to the matter, WOZA National Coordinator, Jenni Williams, and Magodonga Mahlangu attended the police station and met with the Officer in Charge, Assistant Inspector Chimani. He advised that the members had already been released and apologised for arresting them, saying that the officers concerned did not realise that they were WOZA members.

WOZA would like to acknowledge the professionalism of Assistant Inspector Chimani but call on him and other police officers to stop the arbitrary arrest of Zimbabweans.

***

At 11 am today, 22 women in a private home were arrested in Pumula, a suburb of Bulawayo.  They are currently being held at Pumula Police Station. Most of the arrested are members of WOZA who were discussing the constitutional reform process. As lawyers were unable to respond, WOZA National Coordinator, Jenni Williams called the Officer in Charge at Pumula, Assistant Inspector Chimani, and asked him why the members had been arrested. He professed no knowledge of the situation.

The meeting was a private meeting of members exempt under all public order laws. Please call Inspector Chimani on + 263 9 422907 or 422898 and ask him to stop harassing WOZA members. Also advise him that there is an ongoing constitutional reform process countrywide and that they should participate and allow others to participate freely.

Jenni Williams and Magodonga Mahlangu remain in custody in Bulawayo Central Police Station tonight following their arrest earlier in the day. The seven other members that had been arrested before the demonstration had started have all been released without charge. It appears that they were not beaten during their brief detention. They were released one by one throughout the afternoon after the intervention of the lawyer.

Three members have received medical treatment for the beatings they received from riot police outside Mhlahlandlela. One woman has a broken finger, the other two bruising. All were beaten with baton sticks.

It is unclear what Williams and Mahlangu are being charged with as the lawyer has still been denied access by the Officer-in-Charge of the Law and Order Section in Bulawayo Central, Detective Chief Inspector Ntini.

Food has been allowed in this evening however and the pair appears to be in good spirits, although apparently Mahlangu was beaten outside Mhlahlandlela along with the rest of the group.

The order for the group to be beaten apparently came from Chief Inspector Mabhari, a senior uniformed police officer based at Bulawayo Central Police Station. He was also the officer that arrested Jenni Williams.

WOZA members that were monitoring the demonstration report that as the group marched through the streets, some of the comments from passers-by included a police officer commenting to another, “now that’s a proper demo” and a man remarking to another, “these women are doing a noble thing.”

Please continue to call Bulawayo Central Police Station on +263 9 72515, 61706, 63061 or 68078 to demand that Williams and Mahlangu not be mistreated in custody and to be released speedily.

Leaders of Women and Men of Zimbabwe Arise (WOZA/MOZA) today met with the co-Ministers of Home Affairs, Kembo Mohadi and Giles Mutsekwa. The meeting was requested through the Zimbabwe Republic Police (ZRP). The human rights defenders were accompanied by Dzimbabwe Chimbga from Zimbabwe Lawyers for Human Rights (ZLHR).

The two hour meeting was attended by the Permanent Secretary of Home Affairs, Mr. Melusi Machiya and three other unnamed officials. Surprisingly, Registrar General, Tobaiwa Mudede was also in attendance.

The ministers advised that they had called the meeting after receiving numerous reports from law enforcement agencies regarding the activities of WOZA. Minister Mutsekwa opened by advising that the motive of the meeting was to “bring WOZA and the ZRP to equal terms, restore harmony and to remove discord and suspicion”. The minister went on to mention that the power sharing government is negatively regarded locally and internationally as an oppressive government as a result of WOZA’s negative publications and that this is affecting their ability to attract investors.

Minister Mohadi admitted that the police had been accused of being partisan in the past which had led to the sharing of the Home Affairs ministry. He stressed that Zimbabweans should obey their laws fully or if they do not like the Public Order and Security Act (POSA), which is on their statute books, they should lobby parliament for amendments. He went on to say that when the ministers had come into office they had announced to Zimbabweans that the time for squabbles is over and that they should desist from any activities that could jeopardise the inclusive government and that WOZA should have taken their cue from that. He also insisted that WOZA should put their trust the police as they are supposed to keep order. .

With that introduction, they asked the WOZA delegation to respond. National Coordinator, Jenni Williams related that at first WOZA had notified police of their intention to hold peaceful demonstrations. Police interpreted ‘notify’ as ‘apply’ and that had lead to police trying to refuse our right to assembly. At one stage they had threatened that they would shoot to kill if members went into the streets. Williams also mentioned that police do not comply with POSA regulations as regards how to disperse a gathering, be it lawful or unlawful, but use excessive force. Williams also advised that WOZA does not need to notify police as it falls under POSA exemption schedules as a non-political organization. In this regard, WOZA has successfully defended its right to assembly in seven trials.

At this point a legal argument began which continued for over 30 minutes with the ministry interpreting the exceptions to suit their demand that WOZA must notify before their demonstrations. Despite clarity that a ‘gathering’ included a procession or a demonstration, and therefore exemptions applied, the ministers were adamant that exemptions do not apply to a demonstration. This matter remained unresolved and Minister Mutsekwa insisted that the legal matter be argued between the Attorney General and Mr. Chimbga.

In closing the meeting, Minister Mutsekwa lectured on the “need for peace and tranquillity in the country and we have to correct the wrong impression that we are a lawless country.” “We ask you to start to obey the country’s laws so that investors start coming in and we can all benefit. There is a bigger picture than your issues. We are going to call a press conference about our meeting with you.”

With those comments they then declared that if WOZA notify police before any demonstrations, both ministers would not be found wanting in personally disciplining any police excesses. Implicit in this statement is the threat that if WOZA continues to exercise their constitutional rights to freedom of expression and assembly and their exemption under the Public Order and Security Act, they will continue to allow the police to ignore clear instructions for dispersing a procession covered under law.

WOZA’s legal opinion remains as follows: the Public Order and Security Act currently provides the law for the maintenance of public order and security in Zimbabwe. Under Section 2 of the Act, a public gathering is defined as a “public meeting or a public demonstration”. Sections 23, 24 and 25 outline the procedure to be followed by a convener who intends to organize public demonstrations as defined under the Act. At the end of the Act appears a schedule of gatherings to which sections 23, 24, 25. Of particular relevance to this situation is paragraph (i) of the schedule which excludes “any club, association or organization which is not of a political nature and at which the discussions and matters dealt with are not of a political nature’ from having to give any notification.

WOZA therefore clearly falls within the provisions of section (i) of the schedule and is not obliged to give notice whenever it has its peaceful processions on issues which are non-political in nature.

WOZA values the opportunity to directly engage with the co-ministers and acknowledges the time they spent discussing with us. We will continue to stand firm on our right to enjoy fully our freedom of expression and assembly without hindrance. And in so doing, know that we are obeying the letter of the constitutional provisions and the unfortunate Public Order and Security Act. Peaceful protest is not the only means by which WOZA members choose to engage with their leaders about issues that affect them in their daily lives. In a country where democratic space remains limited, however, we the ordinary people of Zimbabwe will continue to grab any space possible to get our voices heard.

“This year, the International Day of Peace takes on special meaning. This is the year we also mark the sixtieth anniversary of the adoption of the Universal Declaration of Human Rights. We know that human rights are essential to peace… There is so much to unite around on this International Day of Peace. I call on world leaders and peoples around the world to join forces against conflict, poverty and hunger, and for all human rights for all.” United Nations Secretary General, Ban Ki Moon

 

21 September is the International Day of Peace OUR THEME: ACTIONS SPEAK LOUDER THAN WORDS
We want ACTION; we want a new GOVERNMENT that will deliver food, electricity and water NOW. Mothers of the Nation, ARISE and demand a liveable peace for yourselves and your children.

—————————————————————————————————————–

WOZA has consulted members on their views about the ‘Deal‘, which we shall hereafter refer to as the ‘document’, because at the moment it is just a document – full of promise but for the moment words without meaning. As we commemorate International Day of Peace, we await news of the implementation of the power-sharing agreement signed by ZANU PF and the two MDC formations. According to article 25 of the document, it was supposed to enter into force immediately after it was signed. We expected parliament to have been called and a new government to already be working to address our urgent needs – but nothing has happened to date despite the fact that it was signed on 15 September, the first United Nations International Day of Democracy.

There have been conflicting opinions and media reports on how and when a new government will be formed. There is still an air of uncertainty about how it will work. There are delays in resolving these issues, and the provisions of the agreement will not be legally binding until they have been translated into constitutional amendments or changes in existing legislation.

As to the content of the document, we are waiting to see if they were serious when they wrote this sentence: “to build a democratic and just, inclusive society free of fear, violence, patronage, corruption and to ensure a better life for all Zimbabweans.

We note with interest the issues highlighted in the document – calls for an end to violence, respect for human rights and freedoms of expression and assembly, economic and social justice, security sector reform, constitutional reforms and national healing. Issues that WOZA members have been beaten and arrested for demanding.

We also await the day when there are fair and just courts to prosecute perpetrators when they are charged. See Article 18.5 (c) that the Government shall apply the laws of the country fully and impartially in bringing all perpetrators of politically motivated violence to book.

Whilst we welcome the constant references to gender equality, we recognise that these references are an attempt to silence our criticism that we were left out as women and their views were not represented at the negotiating table. We wait to see if they actually implement all the gender equality they talk about.

The only mention that Zimbabwe faces economic problems is contained in Paragraph 5, in which the parties commit themselves to “arresting the fall in living standards and reversing the decline of our economy”. During this crisis we have seen wealth owned by the Zimbabwean people looted and resources sold cheaply to others. We are concerned that the spirit of the document is phrased to allow the political leadership of ZANU to get off the hook. The wording gives too much importance to the ZANU PF propaganda and lies about the cause of economic decay being ‘western imperialists’ and their ‘sanctions’. The document is therefore based on a false picture. Much of the blame belongs to the ZANU PF ruling elite, they have looted our wealth and even today, they are stealing the food out of our mouths.

We are a traumatised nation urgently in need of national healing. The first step will be to see the perpetrators of violence being arrested and charged. We, mothers of the nation, lived through the Lancaster House ceasefire, which did not deliver the promises of the liberation war. There was no national healing programme. We lived through the massacres in Matabeleland and Midlands leading to the 1987 Unity Deal, which swallowed the opposition ZAPU and disgraced the ideal of one-man-one-vote. There was still no justice and national healing.

This time, we cannot allow Mugabe, Tsvangirai and Mutambara to get away without a full consultative programme of national healing and justice and delivering on the promises in the document. There is a saying – once bitten, twice shy – will this happen again?

We would like to renew our call to the uniformed forces to realise that there is no peace in the absence of justice. Respect the agreement and refrain from being used to perpetrate violence and to carry out injustices. We, your neighbours in our communities, know you for the things that you do, both good and bad. We will remember. Hear us loud and clear – your leaders may get ‘generous retirement packages’ but you will be left to face the justice of the law and the anger of the people. When you see us in the streets, we come in peace with love in our hearts and you have the choice to respond likewise and allow us to do our work as mothers of the nation. Good actions will also be remembered and rewarded. We will also be watching to see what actions the police will take when we conduct our demonstrations.

Mahatma Ghandi advises us: “You must not lose faith in humanity. Humanity is an ocean; if a few drops of the ocean are dirty, the ocean does not become dirty.”

WOZA is therefore confident that Zimbabweans, through a coordinated campaign by civic groups, churches and unions, will fully participate in a national healing programme. We will also fully participate in mobilising for a people-driven constitutional process and implementation. The agreement provides an opportunity for our demands in our People’s Charter to be addressed, so that the nation can enjoy social justice. WOZA members are fully committed to making the dream of a new Zimbabwe into a living reality.

The Agreement also promises:

“a shared determination to uphold, defend and sustain … national unity… a nation where all citizens respect and, therefore, enjoy equal protection of the law and have equal opportunity to compete and prosper in all spheres of life.”

“our shared commitment to re-orient our attitudes towards respect for the Constitution and all national laws, the rule of law, observance of Zimbabwe’s national institutions, symbols and national events.”

“the rights of all Zimbabweans regardless of political affiliation to benefit from and participate in all national programmes and events freely without let or hindrance.”

“accepting and acknowledging that the values of justice, fairness, openness, tolerance, equality, non-discrimination and respect of all persons without regard to race, class, gender, ethnicity, language, religion, political opinion, place of origin or birth are the bedrock of our democracy and good governance.”

“a society free of violence, fear, intimidation, hatred, patronage, corruption and founded on justice, fairness, openness, transparency, dignity and equality.”

“the historical obligation and need to reach a solution that will allow us to put Zimbabwe first and give the people a genuine chance of rebuilding and reconstructing their livelihoods.”

“7.1:c) shall give consideration to the setting up of a mechanism to properly advise on what measures might be necessary and practicable to achieve national healing, cohesion and unity in respect of victims of pre and post independence political conflicts.”

“12: undertake training programmes, workshops and meetings for the police and other enforcement agencies directed at the appreciation of the right of freedom of assembly and association and the proper interpretation, understanding and application of the provisions of security legislation.”

14: call upon traditional leaders not to engage in partisan political activities at national level as well as in their communities.”

16: In times of need, every Zimbabwean regardless of race, ethnicity, gender, political affiliation and religion is entitled to request and receive humanitarian and food assistance from the State.”

“18: Gravely concerned by the displacement of scores of people after the election of March 29, 2008 as a result of politically motivated violence…”

It is these words that made us choose our theme: ACTIONS SPEAK LOUDER THAN WORDS We want ACTION; we want a new GOVERNMENT that will deliver FOOD, ELECTRICITY and WATER NOW. Mothers of the Nation, ARISE and demand a liveable peace for yourselves and your children.

Woza Moya – WOZA

Magistrate Charity Maphosa denied bail to Jenni Williams and Magodonga Mahlangu today in Bulawayo Magistrate’s Court claiming that it would not be in the best interests of justice. The defence will lodge an urgent appeal to the High Court.

Maphosa stated in her ruling that there was not enough evidence to assert that Jenni Williams did not reside at her given address as claimed by the state but that there were pending cases against the two. As such, she maintained that they had not been honest when asked in court if they had any pending cases against them. All legal practitioners asked by WOZA however state categorically that if a case has been removed off remand, it is no longer pending. As such, neither Jenni Williams nor Magodonga Mahlangu have any pending cases against them.

Maphosa also stated in her ruling that as there were four cases with similar charges ‘pending’ against the two it was likely that they would commit similar offences again (even though the section of the Criminal Procedures and Evidence Act that she cited in her ruling only makes mention of violent crimes). She noted the political climate that is gripping the country and claimed that in such a climate ‘people are easily excitable’ and could be moved to violence if they saw such a demonstration. With this statement, the true reason for the denial of bail is clear. Once again ZANU PF has demonstrated that is determined to cling to power whatever the cost.

WOZA condemns the ruling of Magistrate Maphosa. We view it as further evidence that the judiciary has been politicised and that the power-sharing talks currently underway in Harare are a hollow sham. We call for the immediate release of Jenni Williams and Magodonga Mahlangu.

We remain committed to demanding social justice for all Zimbabweans regardless of the personal cost however and stand by the demands that led to Williams and Mahlangu being arrested. Zimbabweans are dying. They are being starved to death by a government that does not care for anything except power. We are in a national crisis and we need food aid now. We therefore appeal to our brothers and sisters in the SADC region to help break the political impasse so that Zimbabweans can get the food we so desperately need.

Useful telephone numbers:

Bulawayo Central Police Station: +263 9 72515/61706/63061/68078

Mlondolozi Prison: +263 9 64228

Bulawayo Attorney General’s Office: +263 9 77651/61603

Harare Attorney General’s Office: +263 4 781769/774586

Bulawayo Public Prosecutor: + 263 9 63173

This evening the two WOZA leaders, Jenni williams and Magodonga Mahlangu, were released from Mlondolozi Prison, after being granted bail by a High Court judge earlier in the day.  Both are in high spirits.

The release on bail does demonstrate that there are some vestiges of rationality within the Zimbabwean justice system in spite of widespread miscarriage of justice.  It is our wish that these pockets of respect for the rule of law will gradually expand to take over the whole system so that all citizens may enjoy the rights to which they are entitled. 

Meanwhile we welcome Jennni and Magondonga back to liberty and thank them for their courage and commitment and the sacrifice they have made for the benefitof us all.

Ends

WOZA’s lawyers have finally been given a hearing in their appeal to the High Court against Magistrate Charity Maphosa denying Jenni Williams and Magodonga Mahlangu bail. The matter will be heard before Judge Ndou at 2.30pm this afternoon, 5th November. Despite it being an urgent application, the High Court has taken over a week to give a hearing date.

In the meantime, worrying reports have been received from Mlondolozi that Jenni and Magodonga have been separated and that Magodonga has been put in the same cell as mental health patients. As well as serving as a remand prison, Mlondolozi also houses convicted prisoners and mental health patients that have committed crimes. The apparent cause of this separation is that prison authorities believe the pair to be homosexual because Jenni was observed massaging medicated gel into the injuries Magodonga received when she was beaten.

IN THE HIGH COURT OF ZIMBABWE                                                        CASE NO. HC

HELD AT BULAWAYO                                                                            EX REF: HC 37/10

EX REF: S.C53/09

EX REF CRB 2857-8/08

In the matter between:

JENNIFER WILLIAMS 1^ST APPLICANT

and

MAGODONGA MAHLANGU 2^ND APPLICANT

and

THE STATE RESPONDENT

I the undersigned Jennifer Williams do hereby make oath and state as follows.

1. I am the Applicant herein and my address of service is c/o my legal practitioners of record.

1. The 2^nd Applicant is Magodonga Mahlangu of the same address of service.

1. The Respondent is the state as represented by the Attorney – General’s office whose address of service is 3^rd Floor, Tredgold Building Fort Street, L. Takawira Ave, Bulawayo.

1. The brief history of this matter is as follows

The 2^nd Applicant and I have been appearing in the magistrate’s court facing a charge of contravening section 37 (i) (a) (1) of the criminal law (Codification and Reform) Act – participating in conduct likely to promote public violence, breaches of peace or bigotry in that on the 16^th of October 2009 we together with others allegedly gathered at Mhlahlandlela Government complex singing and chanting slogans realizing there was a real risk or possibility of forcibly disturbing the peace, security and order of the public.

1. We then made an application in the magistrates court for referral of the matter to the Supreme Court on the grounds that the aforesaid section of the Criminal Law Code violates sections 20, 21 and 22 of the Constitution. Such application was dismissed by the court a quo.

1. We then made a direct application to the Supreme Court in terms of section 24 (1) of the constitution where we were alleging that the refusal by the magistrate to refer the matter to the Supreme Court violated section 18 (1) of the constitution by denying us the right to approach the Supreme Court as enshrined in section 24 (2) of the constitution.

1. Such application was filed in the Supreme Court on the 10^th of March 2009. The matter was argued in the Supreme Court on the 4^th of June 2009 and The Honourable Chief Justice Chidyausiku undertook to hand down judgement on the application by the 7^th of July 2009 which was going to be our next remand date in the magistrates court.

1. As at the 7^th of July 2009 no judgement had been handed down by the Supreme Court. We continued appearing several times on remand in the magistrate court and the State through the Chief Law Officer Mrs Cheda kept saying we should be given long remands with the hope that on the next remand date the Supreme Court would have made its ruling on our application. All that was to no avail as the Supreme Court has not even up to now made its ruling. Repeated efforts to pursue the ruling through the Supreme Court registrar proved futile as she kept advising that the Supreme Court is yet to make its ruling.

1. The Registrar upon enquiry from us, had to write a letter marked Annexure A which confirmed that indeed the Supreme Court was still seized with the matter and trial in the magistrates court could not proceed. That was after the State had insisted on proceeding to trial despite the fact that the Supreme Court had not made its ruling on the application.

1. On our appearance in court on the 1^st of December 2009 our legal practitioners of record then made an application for refusal of further remand on the grounds that there was no need for us to be continuously remanded since the trial, as more fully appears in Annexure A, could not take off until the Supreme Court had made its ruling on our application. As such considering that the Supreme Court up to that time had not made its ruling on the matter and there was no indication as to when such ruling would be handed down it would be extremely prejudicial and more so needless for us to keep coming to court indefinitely while we await the Supreme Court ruling which would be handed down on some unknown date.

1. Moreover we argued that the state was not going to lose anything by our removal from remand as we could be summoned for trial should our application fail in the Supreme Court.

1. The State prosecutor opposed the application arguing inter-alia that he had been informed by the Director of Public Prosecutors that the Supreme Court had advised that the ruling would be delivered by end of December 2009.

1. The Court a quo delivered its ruling on our application for refusal of further remand on the 21^st of December 2009 a copy of which is hereto attached marked Annexure B. The magistrate in dismissing the Application ruled that we are the ones who caused the delay in the finalization of this matter by filing the Constitutional application in the Supreme Court and secondly that at any rate according to the State the Supreme Court was likely to deliver its ruling by end of December 2009.

1. With the greatest respect the court a quo erred in its ruling. It appeared to accuse us of causing the delay of the trial by approaching the Supreme Court. It did not seem to take cognizance of the fact that approaching the Supreme Court on a constitutional issue is a right enshrined at law and protected by section 24(1) and (2) of the Constitution. We were within our rights to approach the Supreme Court and cannot be penalized for that. The court a quo’s decision in condemning us for approaching the Supreme Court was a serious and grave misdirection on its part with the result that the eventual decision premised on that ground was grossly unreasonable and irregular.

1. Aggrieved by the court a quo’s ruling we then filed an application for review whereby we were challenging its decision as being anter-alia grossly unreasonable and irregular. The application was filed under cover of case no. H.C 37/10 which proceedings I beg leave to incorporate herein by reference.

1. The said application is as such pending before this Honourable Court and since it has only recently been filed determination on it is definitely not going to be any time soon.

1. We were remanded by the court a quo to the 24^th of February 2010. It is fairly obvious that by then the aforesaid application for review would not have been disposed of and as such it would mean we would have to be remanded to some other date. On that next date it might be the same story as it is common cause that court matters take fairly long to be heard. Since it is fairly obvious that by the 24^th of February 2010 the review application would not have been disposed of it therefore becomes necessary to have proceeded by way of an urgent chamber application as opposed to an ordinary court application. If we had launched this application as an ordinary one chances are extremely high that by the 24^th of February 2010 it would not even have been allocated a hearing date. This would therefore render the relief sought academic since we would have to continue on remand until the application is heard at a later date in future.

1. This would occasion immense prejudice to us as we would have to continue on the remand system indefinitely until our review application is determined by this court.

1. Our free movement is curtailed as we would have to be continuously appearing in court without any indication as to when our matter would ever be finalized.

1. Worse still as at this point the Supreme Court still has not delivered its ruling on our constitutional application despite the State’s assurances in the court a quo that such ruling would be delivered by end of December 2009. We are as such back to the same scenario where we not only have to wait indefinitely for the Supreme Court to deliver its ruling on our constitutional application but also where we have to wait for this court indefinitely to adjudicate on our review application.

1. We are as such faced with a unenviable situation whereby we might have to wait for a very long time before any determination and ruling is ever made on either applications. Worse still we are apprehensive the Respondent might insist on commencing our trial despite the pending applications as it has attempted to do so previously.

1. The state I must reiterate suffers no prejudice if we are to be removed from remand since it can always, and I must say has the capacity to summon us for trial should our constitutional application be thrown out by the Supreme Court. Conversely we suffer the extreme prejudice and inconvenience of having to be continuously appearing in the magistrates court on remand for an indefinite period.

We thus seek an order removing us from remand pending determination on our application for review and restraining the Respondent from initiating our prosecution.

Wherefore I pray for an order in terms of the attached Draft.

SWORN TO AND SIGNED AT BULAWAYO THIS DAY OF JANUARY 2010

……………………………………….

JENNIFER WILLIAMS

………………………………………

COMMISIONER OF OATHS

IN THE HIGH COURT OF ZIMBABWE                                              CASE NO. HC

HELD AT BULAWAYO                                                                   EX REF: HC 37/10

EX REF: S.C53/09

EX REF CRB 2857-8/08

In the matter between:

JENNIFER WILLIAMS 1^ST APPLICANT

and

MAGODONGA MAHLANGU 2^ND APPLICANT

and

THE STATE RESPONDENT

I the undersigned Magodonga Mahlangu do hereby make oath and state as follows.

1. I am the 2^ndApplicant herein and my address of service is c/o my legal practitioners of record.

1. The other parties are as cited in the Founding Affidavit.

1. I have read and understood the 1^st Applicant’s Founding Affidavit and I confirm the contents therefore and identify myself with the same.

Wherefore I also pray for an order in terms of the attached Draft.

SWORN TO AND SIGNED AT BULAWAYO THIS DAY OF JANUARY 2010

……………………………………….

MAGODONGA MAHLANGU

………………………………………

COMMISIONER OF OATHS

IN THE HIGH COURT OF ZIMBABWE                                               CASE NO. HC

HELD AT BULAWAYO                                                                   EX REF: HC 37/10

EX REF: S.C53/09

EX REF CRB 2857-8/08

In the matter between:

JENNIFER WILLIAMS 1^ST APPLICANT

and

MAGODONGA MAHLANGU 2^ND APPLICANT

and

THE STATE RESPONDENT

I, JOB SIBANDA a Legal Practitioner of this Honourable Court practicing under Messrs Job Sibanda and Associates do hereby certify that I have read the Applicant’s Founding Affidavit and confirm that the matter is urgent for the following reasons:

1) The Applicants filed a review application in this Honourable Court wherein they were challenging the Court a quo’s decision dismissing their application for refusal of further remand.

2) They are due to appear for further remand in the magistrates court on the 24^th of February 2010.

3) The review application has only recently been filed on the 10^th of January 2010 and it is common cause that by the time of their next appearance in the magistrates court the review application would not have been disposed of let alone even set down.

4) This would then mean they mean would have to be further remanded to some other date and thereby their continuance on remand is perpetuated rendering the filing of the review application of academic relevance.

5) It is thus essential that this matter be dealt with urgently as going by way of an ordinary court application would mean that by their next remand date the application would not have been heard

6) There is also a reasonable apprehension that the Respondent might insist on proceeding with the trial despite the fact that there is a pending constitutional application in the Supreme Court. as it has attempted to do so previously.

In the premises I certify that this matter warrants the urgent attention of this Honourable Court.

DATED AT BULAWAYO ON THIS DAY OF JANUARY 2010

…………………………………….

LEGAL PRACTITIONER

IN THE HIGH COURT OF ZIMBABWE                                               CASE NO. HC

HELD AT BULAWAYO                                                                   EX REF: HC 37/10

EX REF: S.C53/09

EX REF CRB 2857-8/08

In the matter between:

JENNIFER WILLIAMS 1^ST APPLICANT

and

MAGODONGA MAHLANGU 2^ND APPLICANT

and

THE STATE RESPONDENT ______________________________________________________________________

TAKE NOTICE THAT on the day of 2010 the Honourable Mr Justice sitting at the High Court in BULAWAYO issued a provisional order as shown overleaf.

The annexed, affidavits and documents were used in support of the application of this provisional order.

If you intend to oppose the confirmation of this provisional order, you will have to file a Notice of Opposition in Form No. 29B, together with one or more opposing affidavits, with the Registrar of the High Court at BULAWAYO within ten days after the date on which this provisional order and annextures were served upon you.

You will also have to serve a copy of the Notice of Opposition and affidavit (s) on the Applicant at the address for service specified in the application.

If you do not file an opposing affidavit within the period specified above, this matter will be set down for hearing in the High Court at Bulawayo without further notice to you and will be dealt with as an unopposed application for confirmation of the Provisional Order.

If you wish to have the Provisional Order changed or set aside sooner than the Rules of Court normally allowed and can show good cause for this, you should approach the Applicant or Applicant’s Legal Practitioners to agree in consultation with the Registrar, on a suitable hearing date.

If this cannot be agreed or there is great urgency, you may make a chamber application on Notice to the Applicant for directions from a Judge as to when the matter can be argued.

TERMS OF THE FINAL ORDER SOUGHT

1. That the Respondent be and is hereby interdicted from summoning, causing or attempting to cause the Applicants to be placed on remand in respect of case NO. CRB 2857-8/08 until the proceedings in case NO. HC 37/10 are finalized.

1. The Respondent be and is hereby restrained from instituting or attempting to institute the prosecution of the Applicants in the magistrates court in CRB No. 2857-8/08 until the proceedings in Supreme Court Case No. S.C 53/09 are finalized.

1. The Respondent to pay the costs of this application only if it opposes it.

INTERIM RELIEF GRANTED

1. Pending finalization of the review application under case no. HC 37/10 the Applicants be and are hereby removed from remand in the magistrates court CRB NO. 2857-8/08

SERVICE OF THE PROVISIONAL ORDER

To be served upon the Respondent by the Applican’t Legal Practitioners.

UPDATE Friday 9August 2013 – Magodonga appeared in Court but the state prosecutor requested remand pending alteration of charges. The Defence lawyer Nontokozo Tachiona then successfully argued for the state to proceed by way of summons. The court 1 Magistrate refused remand and ordered the state to re summons when they had their case in order.

6 August 2013 – MAGODONGA MAHLANGU, a leader of Women of Zimbabwe Arise (WOZA) was arrested on 6 august 2013 in Bulawayo. She has been charged the Criminal law (codification and reform) Act [chapter 9:23] Act 23/2004 Section 186 entitled ‘Unfinalised Crimes: Threats, Incitement, Conspiracy and Attempt’. The person accusing her of the threat MDC T Ward Chairwoman for Matshobana, Gladys Dube, made the allegation that Magodonga Mahlangu threatened her.

Ms Mahlangu was charged by police and allowed to be out of custody till 7 august where she attended Central police station and was taken to Tredgold Court. On 7 August, 2013, the matter could not be heard as police officers were instructed to locate witnesses and record statements from them and bring the matter back on Friday 9th August 2013.

During the meeting with the area prosecutor, Lawyer Godfrey Nyoni, representing Mahlangu advised the meeting participants that the distribution of a fake flyer attacking Tsvangirai must have bearing on the case. Mr Nyoni showed the area prosecutor and police officers the flyer and recounted events that lead to phone calls between Magodonga Mahlangu and Gladys Dube. These events began on Election Day 31st July 2013. A flyer was distributed around the Bulawayo suburbs of Matshobana and Mpopoma. WOZA Members called their leadership to report this. WOZA national coordinator Jenni Williams then called both MDC lead by Tsvangirai and the MDC to advise them that WOZA had not authored the flyer which was being distributed in an attempt discredit WOZA’s impartial position and cause problems between the MDC T and WOZA. (See the flyer at http://wozazim.org/?p=1443)

It transpires that Gladys Dube and other MDC T members including Ntombizodwa Ncube took exception to the flyer and went to three WOZA member’s houses to threaten them with retribution and beating. This development was then reported to Magodonga who then called both Gladys Dube and Ntombizodwa Ncube pointing out to them that the flyer was not authored by us. However, Gladys Dube continued to threaten a local member Christine Ndlovu who had reported the incident to Mahlangu.

At a meeting on 1st August 2013, Christine Ndlovu reported that Gladys called her a ‘sell out’ for reporting to WOZA leaders that she and Ntombizodwa had threatened her. Taking this threat seriously, and in the presence of WOZA National coordinator, Jenni Williams and 15 other members, Magodonga called Gladys Dube, putting the call on speaker phone. Magodonga asked her to please stop threatening Christine, but Gladys shouted insults incessantly and finally said she was going immediately to Christine Ndlovu house to deal with her. Magodonga then after replied; if you do that and anything happens to Christine we will have to report the matter to the police. Gladys hung up the call.

However from the police reports Gladys Dube claims she was called ‘a sell out’ and that Magodonga told her ‘if Welshman loses, I will come there with CID and police’. In a normal society, responsible officials would clearly note that this story was flipped over or that someone simply misunderstood what was being said. However Zimbabwe is not a normal society so Gladys Dube made a report to the Zimbabwe Republic Police at Western Commonage police station who referred it to the Law and Order Department at Bulawayo Central Police station resulting in the arrest of Magodonga. It is also apparent from the statement of Gladys Dube that on Friday 2nd august she anticipated a MDC T election victory and therefore referred to her party as the ruling party.
WOZA members across Bulawayo have been threatened by members of the Movement for Democratic Change (Tsvangirai) with the words, “When we are the ruling part we will fix you WOZA people”. It is not therefore surprising that Gladys Dube, anticipating an MDC T win on Friday 2nd August 2013 went to the police to fix WOZA through Magodonga Mahlangu and referred to her party the MDC T party as the ruling party.

FOURTEEN members appeared yesterday morning, 26th August, before Magistrate Doris Shomwe in Harare Magistrate’s Court. They had been arrested near the Zambian Embassy in Harare on 28 May 2008, where they were to hand over a petition to the SADC chair calling for an end to post-election violence.

Magistrate Shomwe allowed the state’s application for the trial to be postponed to 15 October 2008 on grounds that the prosecutor, Zvekare, who was familiar with the case, had fallen ill and could not be in court.

Harrison Nkomo, the defence lawyer, had requested that the group be removed off remand on the grounds that the state was obviously not prepared as they had failed to deliver the court papers by 18th August as promised and the continued appearances in court were prejudicial to the accused. He also argued that the state had not provided any evidence that Zvekare was actually ill, what he was suffering from and how long he had been ill for.

The replacement prosecutor Kaka had the activists speechless with his antics. He insisted that the state was ready to proceed and could immediately hand over copies of the docket but when the defence followed him to his office following the hearing; it became apparent that the docket is not complete.

Just another day in a politicised court system. WOZA look forward to the day there will be a democratic transition in Zimbabwe that results in the judiciary and police being depoliticised so that long-harassed human rights defenders can access a just and fair legal system.