Application to the Supreme Court in the matter of Williams and Mahlangu

CASE NO 53/09. MC

IN THE SUPREME COURT OF ZIMBABWE
HELD AT HARARE
In the matter between:
JENIFFER WILLIAMS 1ST APPLICANT
And
MAGODONGA MAHLANGU 2ND APPLICANT
And
PATHEKILE MSIPA N.O 1ST RESPONDENT
And THE MINISTER OF JUSTICE 2ND RESPONDENT
And
THE ATTORNEY GENERAL, OF ZIMBABWE 3RD RESPONDENT

APPLICATION IN TERMS OF SECTION 24 (1) OF THE CONSTITUTION

TAKE NOTICE that applicants intend to make an application to the Supreme Court in terms of section 24 (1) of the Constitution, for an order in terms of the draft annexed hereto. The accompanying affidavits and documents are tendered in support of this application.

If you intend oppose this application you should file a Notice of Opposition together with one or more opposing affidavits, with the Registrar of this court within 10 days or within such a shorter period as a Judge of this Court may order. You will also have to serve a copy of the opposing papers with the applicants at the address specified below.

If you do not file the opposing papers, the matter will be dealt with as an unopposed application

DATE at HARARE THIS 10th DAY OF MARCH 2009
________________________
KOSSAM NCUBE & PARTNERS
Applicant’s Legal Practitioners
C/O Zimbabwe Lawyers for Human Rights
6th Floor Beverly Court
Nelson Mandela Avenue/Cnr 4th Street
HARARE (MR NAYMURUNDIRA)

To: THE REGISTRAR Supreme Court of Zimbabwe HARARE

And To: PHATHEKILE MSIPA 1st Respondent
Bulawayo Magistrate’s Court BULAWAYO

And to: THE ATTORNEY GENERAL, Civil Division of The Attorney General’s Office 2nd Respondent Harare

To: THE REGISTRAR Supreme Court of Zimbabwe HARARE

And To: PHATHEKILE MSIPA 1ST Respondent
Bulawayo Magistrate’s Court BULAWAYO

And to: THE ATTORNEY GENERAL
Civil Division of The Attorney General’s Office
2ND Respondent
Harare

CASE NO. cns S.C. 53/09
REF. CASE NO. MC

IN THE SUPREME COURT OF ZIMBABWE
HELD AT HARARE
In the matter between:
JENNIFER WILLIAMS 1ST APPLICANT
And
MAGODONGA MAHLANGU 2ND APPLICANT
And
PHATHEKILE MSIPA N.O 1ST RESPONDENT
And
THE MINISTER OF JUSTICE 2ND RESPONDENT
And
THE ATTORNEY GENERAL, OF
ZIMBABWE 3rd RESPONDENT

APPLICANT’S FOUNDING AFFIDAVIT

I, the undersigned JENNIFER WILLIAMS, do hereby make oath to state that:

THE PARTIES

1. I am an adult female Zimbabwean and the first applicant in this matter. I am a founder member of the Women of Zimbabwe Arise (WOZA), an organisation which has the protection of women and their rights as its objective. I depose to the facts hereunder in my personal capacity and the facts so deposed to are within my personal knowledge and are true and correct. My address for service is care of my legal practitioners of record.
2. Second applicant is Magondonga Mahlangu, an adult female Zimbabwean who is the co-ordinator of (WOZA). I have her authority to depose to this affidavit on her behalf as more fully appears from her supporting affidavit attached hereto. We are jointly represented and for that reason share an address for service.
3. The 1st Respondent Phathekile Msipa is cited herein in his official capacity as a Magistrate, and in particular in relation to the criminal proceedings that are being held in the Magistrate’s Court sitting at Bulawayo in which we are involved. His address for service is care of Bulawayo Magistrate’s Court, his normal seat.
4. The second respondent is the Minister of Justice cited herein in his official capacity as the authority to whom the administration of the Act forming the subject of the main proceedings has been assigned.
5. The 2nd Respondent is the Attorney General, who is the public official charged with the duty to prosecute accused persons in criminal trials and who is the prosecutor in the main proceedings referred to above. The Attorney General is cited herein in that official capacity and is also cited in terms of section 24 (6) of the Constitution of Zimbabwe as the relief sought in the main matter necessarily involves the striking down of legislation. His address for service is care of New Government Complex, 5th Floor, Samora Machel Harare.

NATURE OF THE APPLICATION
6. This is an application made in terms of section 24 (1) of the Constitution of Zimbabwe. The basis upon which it is made is that the 1st respondent breached section 18 (1) by denying us the right of access to the Supreme Court as enshrined in section 24 (2) of the constitution. This application is being made in terms of the decision in Martin v Attorney General & Another 1993 (1) ZLR 153 (S) and I am advised that, that is the way to proceed under the circumstances of this matter.
7. In view of the above, applicant’s seek that the court deal with the issues that were wrongfully refused to be referred to it, as if same had been properly referred.

MATERIAL BACKGROUND FACTS
8 Sometime in October 2008 we were arrested upon allegations of having disturbed the peace, order and security of the public. In due course we were charged with contravening section 37 (1) (a) (i) of the Criminal Law (Codification and Reform) Act (cap 9:23). The charge appears from the charge sheet hereto annexed and marked “A”.
9 I must point out that our crime is said to be that we congregated at a Government Complex, sang, chanted slogans and carried placards. The placards that we carried are supposed to have been objectionable and consequently an exercise in criminality in that they indicated that we wanted teachers for our children and that we complained about the Government of National Unity amongst other complaints. These facts appear from the Outline of the State’s case hereto annexed and marked “B”.
10 After certain other applications made on our behalf an application which has necessitated these proceedings was made on the 5th March 2009. The application was made pursuant to section 24 (2) of the constitution of Zimbabwe. In that application, my legal representative invited the court to refer to this court the question of whether the section under which we are being charged is void for contravening sections 20 (being the provisions which secure the freedom of expression), section 21 (being provisions which secure the freedoms of assembly and association) and section 22 (being provisions which secure the freedom of movement).
11 In the event that the answers to the above questions were in the affirmative, whether our prosecution under the legislation in question is not a breach of our constitutional rights to the protection of the law enshrined under section 18 (1) of the constitution and the right to liberty enshrined in section 13 (1) of the constitution.
12 The referral application was heard by 1st respondent and was refused on the 9th march 2009. In his ruling, the Magistrate devoted much time to recounting the applications that had been made and failed to deal with any of the issues raised. He seems to have dealt with the matter on the basis that there had been prior applications and concluded that the application lacked any bonafides and was of a necessity frivolous and vexatious. I attach the relevant ruling hereto mark it “C”. Clearly the referral was refused on grounds other than that the request was frivolous and vexatious in its substance. The merits or otherwise of the application were totally ignored. I submit that it makes no difference that certain different applications had been made in the past. What was an issue was whether the points raised were meritorious.

THE ISSUES
13 I submit that the refusal to refer the matter was in the circumstances wrongful since the issues raised could not by any stretch of the imagination be deemed to be frivolous and vexations. I am advised that a matter is frivolous if it lacks seriousness, is inconsistent with logic and good sense and clearly so groundless and devoid of merit that a prudent person could not possibly expect to obtain relief from it. I am also advised and verily believe that a matter is vexatious if it is put forward for the purposes of causing annoyance to the opposing party in the full appreciation that it cannot succeed and is manifest abuse of court process.
14 I submit that there is nothing frivolous or vexatious about the application for referral for the reasons that I enumerate below. I must point out that what is comfortable unconstitutional and therefore objectionable about the Legislation in question is that it widely cast thus allowing the distinct possibility of abuse. Such abuse has presented itself in the present case. I point out however, the particular, respected in which the Act is unconstitutional which ultimately show that the application was neither frivolous nor vexations.
1. The provision in terms of which we are being charged makes a serious inroad into the freedom of expression to the extent that it allows the state to gag me in expressing legitimate concerns. It seeks to curtail my right or at least gives the court the right to curtail my right to complain in public. That the effect is so, is evidenced by the fact that I am being prosecuted for having indicated that I want teachers to teach my children. There is no legitimate interest, that this law, applied as it has been, serves. In demanding teachers or denouncing a political arrangement I could scarcely be said to be interfering with anyone’s rights. Further no such restriction could be reasonably justifiable in society which has attained our level of democracy. It is also clear that we had not been exercising our freedoms on any place reserved for the ordinary use of the public and even if we had been, there is no indication that we had impeded both human and vehicular traffic. The legislation in question has not attempted to exempt people who find themselves in our situation but has been content with a blanket and wide reach and is on that score unconstitutional.
2. Further, it is also clear that the provision gives the state the basis upon which it can interfere with my right to move together with other people with whom I have a common complaint. In other words, it takes away my right to engage in, and participate in a procession. It criminalises legitimate gatherings and seeks to interfere with my right to gather with those people with whom we have common problems, for the purposes of ensuring that our grievances are addressed. That the effect of the provision is the one I contend, is evidenced by the fact that I am being charged under it for taking part in a legitimate procession.
3. The provision is indeed relentless, it seeks to further curtail my right to move, its effect is that I cannot move if I have to exercise that right together with other people. There is no basis upon which my movement is restricted neither can such a restriction be reasonably justifiable in a democratic society.

15. I am advised that I cannot argue the matter in these papers but can only set out the basis of my arguments as I have done. The points of law will be explored by my representatives in their Heads of Argument.
16. As the 1st respondent did not refer this matter under these clear circumstances, I submit that such refusal to refer breached my right of access to this court and thus negated my right to the protection of the law.
17. In the circumstances, I submit that the court is now at large to place itself in the position that it would have been in had the referral been made. I thus humbly pray that the honourable court deal with the constitutionality of the impugned provisions.

THE RELIEF SOUGHT

18. In view of the above, I submit that a case has been made for a declaration to the effect that the refusal to refer the constitutional issues raised in terms of section 24 (2) of the Constitution to the Supreme Court for its determination is wrongful and is consequently a breach of the section 18 (1) of the Constitution.
19. That under the circumstances, the court should now deal with the issues raised and declare section 37 (1) (a) (i) of the Code unconstitutional and as such void in that it involves the state in the infringement of our right to expression.
20. Further that the impugned provision is void in that it is inconsistent with the guarantee in favour of assembly and association.
21. Finally that the provision is inconsistent with the freedom of movement and is on that basis void.

ALTERNATIVE RELIEF
20. In the event that the court finds the legislation in question is not void, I submit that a case has been made for the suggestion that our prosecution is under the circumstances of this matter a violation of the above rights, more specifically on the grounds above stated.
21. I would in those circumstances pray that the court grant relief in the alternative.
22. In the circumstances, I submit that a case has been made for the relief sought and thus pray for an order in terms of the draft attached hereto.

THUS SWORN TO AND DATED at HARARE THIS 10th DAY OF MARCH 2009.

_______________
JENNIFER WILLIAMS

BEFORE ME: COMMISIONER OF OATHS

CASE NO. chs S.C 53/09
REF CASE NO. MC

IN THE SUPREME COURT OF ZIMBABWE
HELD AT HARARE
In the matter between:
JENIFFER WILLIAMS 1ST APPLICANT
And
MAGODONGA MAHLANGU 2ND APPLICANT
And
PATHEKILE MSIPA N.O 1ST RESPONDENT
And
THE MINISTER OF JUSTICE 2ND RESPONDENT
And
THE ATTORNEY GENERAL, OF ZIMBABWE 3RD RESPONDENT

THE SECOND APPLICANTS’ SUPPORTING AND VERIFYING AFFIDAVIT

I the undersigned MAGODONGA MAHLANGU, do hereby make oath to state that;
1. I am second applicant in this matter and depose to this supporting and verifying in that capacity. The facts hereunder stated are within my personal knowledge and are true and correct.
2. I have read the founding affidavit of Jennifer Williams and associate myself with it. I specifically adopt its contents as if they had been fully deposed hereto.
3. I further confirm Jennifer William’s authority to depose to the founding affidavit on my behalf.
4. I accordingly pray for and order in term of the draft

THUS SWORN TO AND DATE at HARARE THIS 10th DAY OF MARCH 2009-04-27
Signed MAGODONGA MAHLANGU
BEFORE ME: COMMISSIONER OF OATHS

CHARGE SHEET
BULAWAYO CENTRAL 311/10/08

BULAWAYO

BULAWAYO PROVINCE
1. JENNIFER WILLIAMS 46 YRS
2. MAGODONGA MAHLANGU 36 YRS

C/S 37 (I) (a) (i) OF THE CRIMINAL LAW CODIFICATION AND REPORT ACT CHAPTER 9:23

“Acting together with one or more other persons with him/her in any place realizing that there is real risk or possibility of disturbing peace, security or order of the public”

In that on the 16th day of October 2008, the accused persons MAGODONGA MAHLANGU and JENNIFER WILLIAMS one or more of them unlawfully and acting together with one or more other persons with them gathered at Mhlahlandlela government complex singing, chatting slogans and carrying placards realizing that there is real risk or possibility of disturbing peace, security and order of the public.

STATE OUTLINE
BULAWAYO CENTRAL
311/10/08
C/S 37 (I) (a) (i) OF THE CRIMINAL LAW CODIFICATION AND REPORT ACT CHAPTER 9:23
16/10/08 11:15 ARRESTED MHLANHLANDLELA COMPLEX, BYO

1. JENNIFER WILLIAMS 46 YRS
RES: 10 KENT RD, HILLSIDE, BYO
BUS: UNEMPLOYED
2. MAGODONGA MAHLANGU 36 YRS
RES: 1404 NEW MAGWEGWE, BYO
BUS: UNEMPLOYED

POLICE CELLS
THE STATE
01. The accused persons in this matter is Jennifer Williams and Magodonga Mahlangu who belong to a certain organization call Women Of Zimbabwe Arise (WOZA)
02. The complainant in this matter is the state.
03. On the 16th day of October 2008 and at around 1100hrs, the two aforesaid accused persons led a group of about 200 women and proceeded to Mhlahlandlela complex singing, chatting slogans and carrying placards with various messages. Some of the placards were written “ideal lenu selibulele ilizwe, umangoye selala eziko, sifuna amatitsha esikolo.” (Translation inserted by WOZA – your deal has killed the country/ the cat is basking on the stove – implying no food to cook / We want teachers in the schools)
04. When this group arrived at Mhlahlandlela, they were addressed by Jennifer Williams and Magodonga Mahlangu. The group was then ordered to disperse by police but the two above accused persons refused to comply to the orders leading to their arrest.
05. The accused person had no right whatsoever to act in the manner they did.

09 MARCH 2009 Ruling MAGISTRATE PHATHEKILE MSIPA N.O (handwritten)

The applicants are the founder and coordinator of Women of Zimbabwe Arise (WOZA). They were arrested on 16 October 2008 and 19 June 2004 upon allegations of having committed both jointly acts likely to interfere with ordinary comfort, convenience, peace or quiet of the public and also on allegation acting together in any place realising that there’s a real risk or possibility of the disturbing peace, security or order of the public.

On 22 January 2009, counsel for the applicants challenged the right of the state to prosecute the applicants. He did so, on the ground that the facts with the particular sections do not disclose any offence and further he stated that there would be previous prejudice if the accused are prosecuted. It is apparent that their conduct is protected by law. The state responded by opposing the application and stated in its argument that the charges should stand as they are; that both charges disclose an offence in this application the court dismissed the application and reasons were availed to both counsel.

On the 27th January2009 the applicants through their lawyer approached the court seeking a postponement due to the fact that he had other commitments and needed sufficient time to go through the ruling that had been made on the 22nd January 2009.

Once again the state was opposed to the postponement and reiterated by indicting the court that witnesses were in attendance and the defence’s request to postpone the matter was meant to delay the trial.

The court ruled that the trial should proceed and the appellants filed a notice of appeal against refusal to grant a postponement on the 28 January 2009. The order was granted on the 13 February by the High Court that matter should be postponed to 26 February. On the 25th February 2009 counsel filed yet another notice of appeal again the ruling that had been made by the court on the 22 January 2009.

On the 26 February 2009 the matter could be heard because the court did not have the High Court’s order and hence the matter was postponed to the 05/03/09.

On the 05 March 2009 where the matter was supposed to proceed to trial counsel for the applicants indicated to the court that he was requesting the applicants’ matter be referred to the Supreme Court for its decision in terms of S.24 (2) of the Constitution of Zimbabwe.

In the three application the applicants made in this occur referred above, the matter could not commence to trial. Despite the fact that the matter had been set down for trial on the 22 January 2009 by consent. In essence on one was caught by surprise. The witnesses attended the accused persons and the defence attended, the state was ready for trial but defence counsel sought to a postponement as highlighted above by making an application to quash the charge/indictment on the basis that the facts did not disclose a charge.

Subsequently on two other occasions, despite the presence of the witnesses and the preparedness of the state counsel the defence asked for another postponement and the trial was further delayed.

Before this court for determination is a fourth application made on the 5th March 2009 which date was again a trial date.

Section 24 of the Constitution of Zimbabwe has been interpreted clearly by the Supreme Court in the case of Martin vs A.G and Aruss 1993 (i) ZLR at 153 Supreme Court as right to approach the Supreme Court for relief. In that case the Supreme Court laid down the test to be used by the court before which the application is made in terms of that section.
Gubbay C.J as he then was and the other 4 judges of the Supreme Court held “…………the test of whether a request for referral under S24 (2) of the Constitution is frivolous/vexatious is whether or not it would constitute on abuse of the process of the Supreme Court and had to be determined by applying conscientious and objective thought to the question.”

The bona fides of the application can be commended probably by conscientiously and objectively looking at the circumstances preceding this application. The issue of the constitutionality or otherwise of the charges the accused are facing is only being raise now after three other application brought by the defence to present the trial of this matter on three other dates.

It is my objective view that matters brought before this court must be tried on trial date if all witness are present, the court is properly constituted, the defence is present and was aware of the final date and if the accused are in a healthy state making it proper for a comprehensible proceeding. A postponement must e refused save for compelling reasons.

From the attitude of the defence, it would appear from the circumstances and the charge and the facts of the case, the accused are playing for time and are deliberately frustrating the course of justice by preventing the commencement of the trial. The various application made before have not been without merit save for one postponement that they were granted by the High Court from these circumstances. I am convinced that this application is without bona fides and is clearly an abuse of the process of the Supreme Court. My conclusion therefore is that this request for referral under S24 of the Constitution is therefore frivolous and vexatious and must be denied and I order that the matter must proceed to trial.

CASE NO. cns S.C. 53/09
REF. CASE NO. MC

DRAFT ORDER

HARARE the day of 2009.
BEFORE the honourable Justice in Chambers
Mr. For the applicants
Mrs. For the respondents

WHEREUPON after reading papers filed of record and hearing Counsel,

IT IS DECLARED THAT:

1. The refusal by 1st respondent to refer the Constitutional issues raised by applicants to the Supreme court in terms of section 24 (2) of the Constitution of Zimbabwe was wrongful and as such a breach of applicants right to approach the supreme Court.

IT IS CONSEQUENTLY ORDERED THAT:

2. The court should now deal with the issues raised by the application for referral.

IT IS THUS DECLARED THAT:

3. Section 37 (1) (a) (i) of the Criminal Law (Codification and Reform) Act is inconsistent with sections 20, 21 and 22 of the Constitution of Zimbabwe and is void. Accordingly, it is struck off.
4. Respondents shall jointly and severally the one paying the other to be absolved pay costs of this application.

ALTERNATIVELY:

5. That the prosecution of applicants under the circumstances of this matter constitutes an infringement of section 18 (1) of the constitution in that it is inconsistent with sections 20, 21 and 22 of the Constitution of Zimbabwe.
6. Respondents shall jointly and severally the one paying the other to be absolved pay costs of this application.
BY THE JUDGE

REGISTRAR

Women and Men of Zimbabwe Arise