Charles Thomas & Anor & Anor & Anor v The President of the Republic of Zimbabwe N.O. & Anor & Anor & Anor & Anor & Anor

### Preamble
1
HB 195/20
HC 1454/20
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CHARLES THOMAS

And

IBHETSHU LIKAZULU TRUST

And

MBUSO FUZWAYO

And

ZIMBABWE AFRICAN PEOPLE’S UNION

Versus

THE PRESIDENT OF THE REPUBLIC

OF ZIMBABWE N.O.

And

THE MINISTER OF HOME AFFAIRS & CULTURAL HERITAGE

And

MATABELELAND COLLECTIVE

And

JENNIFER WILLIAMS

And

CHAIRMAN NATIONAL PEACE & RECONCILIATION

COMMISSION

And

NATIONAL PEACE AND RECONCILIATION COMMISSION

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 10 &24 SEPTEMBER 2020

Urgent Chamber Application

N. Sithole for the applicants

Ms R. Hove (Civil Divison) with Mr Charumbira & Chimombe

3rd& 4th respondents in person

T. Muganyi with Mahaso for 5th& 6th respondents

MAKONESE J : The applicants have filed this Urgent Chamber Application seeking to interdict the President of the Republic of Zimbabwe and 5 others respondents from conducting or leading any process or exhumation of the bodies of the victims of post –independence conflict, usually referred to as “Gukurahundi”. The applicants seek an order against the respondents in the following terms:

“Interim Relief sought

Pending the finalisation of this matter, applicant be and is hereby granted the following relief:

The 1st, 3rd respondents jointly and severely or through their representatives, members, agents of persons acting on their behalf and the 4th respondent be and is hereby ordered and directed, jointly and severally, to forthwith stop or desist from conducting or leading any process or any disinterment (exhumation) of the remains of persons who died in Matabeleland and the Midlands Provinces during or as a result of the post-independence military or political hostilities in Zimbabwe known as the Gukurahundi disturbances.

The 2nd respondents, Minister of Home Affairs be and is hereby directed to ensure that 1st, 3rd and 4th respondents forthwith comply with the terms of this interim order.

Terms of final order

That you show cause to this honourable court why a final order should not be made in the following terms:

It be and is hereby declared in terms of section 2 of the Inquest Act (Chapter 7:01)that only a police officer is allowed to disinter (exhume) a body that is interred pursuant to the provisions.

It be and is hereby declared that neither 1st respondent, the President of the Republic of Zimbabwe, (NO) nor the 3rd respondent or 4th respondent can carry out any disinterment of any body of any person who died in Matabeleland or Midlands Provinces during the post-independence military operation carried out by the Government of Zimbabwe called Gukurahundi undertaken by the 5th Brigade during the period 1982 – 1987.

1st, 3rd and 4th respondents and their officials or agents be and are herebyinterdicted from carrying out any disinterment (exhumation) of any body of any person who died in Matabeleland or Midlands during the post-independence military operation carried by the Government of Zimbabwe called Gukurahundi undertaken by the 5th Brigade during the period 1982 -1987.

It be and is hereby declared that the process of any disinterment (exhumation) of any body of any person who died in Matabeleland or the Midlands during the post- independence military operation carried by the government of Zimbabwe called the Gukurahundi undertaken by the 5th Brigade during the period 1982 – 1987 should be done within the mandate, framework or authority of a process set up by 6th respondent involving the stakeholders and interested parties through the 6th respondent and in line with section 2 of the Inquest Act (Chapter 7:07).

It be and is hereby declared that 1st, 2nd, 3rd and 4th respondents conduct in dealing with post conflict justice issues have acted unlawfully and usurped the functions of the 6thy respondent encapsulated in section 252(a) of the Constitution of Zimbabwe Amendment (No. 20) Act, 2013.

2nd respondent be and is hereby directed to ensure there are no legally unsanctioned and unauthenticated disinterment of the remains of any person who died during the post- independence military operation carried by the Government of Zimbabwe called Gukurahundi undertaken by the 5th Brigade during the period 1982 – 1987 is undertaken by anyone serve within the mandate, framework or authority of a process set up by the 6th respondent and involving all interest parties through the 6th respondent and in time with section 2 of the Inquest Act (Chapter 7:07).

6th respondent be and is hereby directed to come up with a legal process, after consultation will all stakeholders and interested parties countrywide, which shall be the framework for anydisinterment of the remains of any persons who died during the post- independence military operation carried out by the Government of Zimbabwe called Gukurahundi undertaken by the 5th Brigade during the period 1982 – 1987 and in line with section 2 of the Inquest Act (Chapter 7:07).

6th respondent, the National Peace and Reconciliation Commission, be and is hereby directed to oversee and ensure that all other respondents comply with the terms of this order.

The respondents, jointly and severally, the one paying the other to be absolved, be and hereby ordered to pay the costs of suit.”

Factual Background

On 22 August 2020, the President of the Republic of Zimbabwe, led a delegation of senior government officials and officials from various government departments to meet with the leaders of Matabeleland Collective, the Mayor and councillors from the City of Bulawayo as part of ongoing efforts to deliberate on and resolve issues affecting the region.  The Matabeleland Collective is a registered trust comprised of civil society organisations, churches and other groupings from Matabeleland Province.  At the close of these deliberations, the Permanent Secretary in the Ministry of Information, Publicity and Broadcasting Services gave a media briefing outlining the outcomes of the meeting.  It is noteworthy that this meeting was held at State House in Bulawayo.  The meeting was widely publicised in the local media.  One of the publications, the Sunday News, a weekly paper circulating in the country carried a story with a headline titled “Government to exhume, rebury victims of Gukurahundi”.  The publication dated 23rd August 2020 was also carried online.  It was reported in the Sunday News that the Permanent Secretary in the Ministry of Information had revealed that one of the major resolutions of the meeting was that during the month September 2020, the Government of Zimbabwe would roll out various agreed projects to address challenges faced by the Gukurahundi victims.  It was also reported in the same publication that other issues discussed were the issuance of birth and death certificates to victims of Gukurahundi, exhumation of victims of Gukurahundi, the Zambezi Water Project, rampant corruption in rural district councils, youth empowerment and increased participation of women in Government and Parliament.

What has triggered this urgent chamber application was the report published in the Sunday News implying that with effect from September 2020, a project would be rolled out to commence the exhumation and reburial of Gukurahundi victims.

The applicants’ case

The 1st applicant avers that he is a male adult person with power to sue and to be sued.  He contends that he has a direct and substantial interest in the matter as he is a survivor of the 5th Brigade’s alleged atrocities committed in parts of Matabeleland and Midlands provinces between 1982 and 1987.  1st applicant narrates how in 1983 he and many young man were rounded up by the 5th Brigade in Bulawayo.  He alleges that he was subjected to severe torture and beatings.  1st applicant avers that from recent media reports the government is about to commence exhumation and reburial of victims of Gukurahundi in September 2020.  1st applicant contends that the process of exhumation and re-burials is problematic and illegal in essentially three respects;

The proposed exhumations will contravene sections 110 and 111 of the Criminal law Codification and Reform Act (Chapter 9:23) which criminalises interference with a grave and interfering with a corpse.

These graves are crime scenes and such no one is allowed at law to interfere with a crime scene as this will contaminate evidence and impede investigations on the murder of the victims buried in these graves.

3rd and 4th respondents have no mandate to represent 1st applicant or anyone affected by the Gukurahundi killings.  3rd and 4th respondents are on a frolic of their own and do not have the blessings of the victims.

The exhumations should be carried out by experts trained for such processes who will be able to identify the remains through DNA testing.

Disinterment (exhumation) can only be done by a police officer pursuant to the dictates of the Inquest Act (Chapter 7;07)

The exhumed bodies can only be buried after a death notice has been issued in terms of the law.

The body of a dead person should first be examined by a medical practitioner who must have issued a medical certificate.

In essence, 1st applicant contends that there can be no exhumations and reburials of any the victims of Gukurahundi unless all the requirements as he perceives them have been complied with.  1stApplicant asserts that he has a prima facie right to protection and benefit of the law as a party directly affected by the proposed conduct.  1st applicant further asserts that he has a reasonable apprehension that the process of disinterment and reburials will be commenced in September 2020 by the 1st, 3rd and 4th respondents as published in the media.  The 1st applicant avers that he has no other effective remedy other than the granting of an urgent interdict. It is clear that the 1stApplicant’s averments are purely based on the article referred to in the Sunday News publication of 23rd August 2020.

2nd Applicant, Ibhetshu Likazulu Trust, fully associates itself with founding affidavit of the 1st applicant.  2nd applicant confirms that the urgent chamber application was motivated by the recent media reports suggesting that during the month of September 2020 the exhumation and reburial of Gukurahundi victims would begin.  2nd applicant makes the assertion that the exhumations contemplated by the respondents are illegal and violate various pieces of legislation.  It shall not be necessary to repeat the nature of the alleged illegality as set out by the 1st applicant.

3rd Applicant, contends that he is the Secretary General of the 2nd applicant and that he is authorized to depose to an affidavit on behalf of the 2nd applicant.  3rd applicant repeats the allegations of the alleged and perceived illegal acts of the contemplated exhumations by the respondents.  It shall not be necessary to repeat these averments.

4th Applicant is a political party registered in Zimbabwe.  It has previously participated in general elections held in the country.  Themba Hwalima, a legal secretary of the 4th applicant swore to an affidavit stating that he is authorized to depose to such affidavit.  The 4th applicant gives a narration of the political disturbances in post- independence Zimbabwe.  As regards the issues motivating this application, the 4th applicant associates itself with the averments made in 1st applicant’s founding affidavit.

Response by first respondent

The 1st respondent is the President of the Republic of Zimbabwe cited in his official capacity as the Head of State.  It is common cause and indeed a matter for public record that 1st respondent led a delegation of senior government officials to the City of Bulawayo on the 22nd August 2020.  The purpose of the meeting was to discuss various pertinent issues with civil society organisations led by the Matabeleland Collective, and also with councilors of the City of Bulawayo and the Mayor of the City.  Emerging from the meeting, the Permanent Secretary in the Ministry of Information revealed that the major outcomes of the meeting  were as follows:

Issuance of birth and death certificates to victims of Gukurahundi.

Exhumations of victims of Gukurahundi.

Zambezi Water project

Devolution

Corruption at Rural District Councils

Increased participation of women in Government and Parliament, among others

It was resolved that the exercise to issue out documentation to victims of Gukurahundi would be rolled out as soon as the parties concerned had agreed on all logistical arrangements.

The official media brief summary is annexed to the 1st respondent’s papers. The 1st respondent opposes the relief sought and argues that the urgent chamber application was hastily filed and was premature.  1st respondent points out that it is extremely presumptuous of the applicants to attribute “illegal conduct” in circumstances where there is no actus reus and where the 1st respondents have not shown any desire to operate outside the law.  In any event, if reliance is placed on the media reports, the article referred to did not state that exhumations would commence in September 2020.  The roll-out program as envisaged, would take into account the interests of the stakeholders.  A draft policy framework would be laid out before any exhumations could even begin.  Once agreement is reached with stakeholders on a final policy, only then, can exhumations commence.1st respondent crucially points out that none of the respondents ever contemplated the exhumations to commence in September 2020, and no agreement was ever reached at that meeting held on 22 August 2020.  1st respondent avers that applicants ought to have gathered the correct facts before rushing to court on the basis of a newspaper article.  1st respondent observes that on two occasions he met with the Matabeleland Collective and other organisations, including traditional leaders. 1st Respondent was invited to these meeting.  The 6th respondent is in fact leading the process of the exhumations and all other issues associated with Gukuraundi.  1st respondent as Head of State and Government is seized with all issues of national importance and ought to attend meetings at the invitation of interested parties.  1st respondent argues that applicants are completely misleading the court when they allege that 1st respondent is conducting and leading the process of disinterment.

Further, the 1st and 2nd Respondents raise preliminary points relating to the citation of the parties. The respondents contend that 2nd applicant has been cited as Ibhetshu Likazulu Trust. It is argued that 2nd Applicant has no locus standi in judicio to sue or to be sued. It is not a legal persona, just like a deceased estate. A trust is represented by its trustees. In the present case 3rd applicant confirms that he represents 2nd applicant as its director. There is no mention of the trustees. A Further preliminary point taken is that 4th applicant has been cited as Zimbabwe African People’s Union, a political party with capacity to sue and be sued. There is no reference to a resolution authorizing the deponent to represent the 4th applicant. No resolution has been attached to the application. It is argued that in the absence of an existing legal persona before the court, the application is rendered fatally defective. Additionally, applicants have not exhausted other alternative remedies in that they ought to have written to 1st, 2nd, 5th and 6th respondents to enquire if 1st respondent would be “leading” or “conducting” any process of disinterment. The applicants would have obtained clarificationon how the process of exhumation would be conducted and led by the 5th  and 6th respondents in terms of the law.

Response by 3rd and 4th Respondents

The 4th respondent, Jennifer Louise Williams is the Executive Director of the 3rd respondent.  She represents an organisation known as Women of Zimbabwe Arise (WOZA), an organisation which represents the rights of women in Zimbabwe.  The 4th respondent is a registered trust with institutional membership comprising civil society organisations, churches and other organisations set up to deal with issues affecting the people of Matabeleland.  Amongst other things 4th respondent has the mandate to deal with issues related to national healing, development and social justice.  3rd respondent is leading the 4th respondent in efforts to engage government and all other stakeholders in peace, healing and national reconciliation.  3rd respondent reveals that 3rd applicant is known to her as a member of Ibhetshu Likazulu Trust, a member of the Matabeleland Collective.  3rd respondent further notes that 3rd respondent has prior to this urgent chamber application participated in many activities to develop engagement positions with regard to national reconciliation.  3rd applicant however, decided not to attend the engagement meetings with 1st respondent that were meant to provide views towards developing a restorative justice program.

3rd respondent confirms that she and other groupings engaged 1st respondent on the 22nd August 2020.  At the meeting a Draft Exhumations Policy was presented.  There was never an agreement on the actual exhumations.  To her knowledge the engagement regarding exhumations is in the very early stages and has not reached the community roll out programs.  3rd respondent makes the point that a simple communication by applicants to the 3rd respondent to clarify the media reports would have saved the court’s time. 3rd respondent is unaware of any planned exhumations at this stage. It has never issued any public statements with regard to exhumations at community level. 3rd respondent has never proposed a program nor agreed with 1st respondent on any program of disinterment of human remains as alleged by the applicants.

3rd respondent implores the applicants to participate in consultations towards a holistic restorative justice program for Matabeleland which will ultimately include implementation of the consulted position on exhumations.

3rd respondent contends that the application is based on misleading information and should be dismissed.

Response by 5th and 6th Respondents

The 5th and 6th respondents oppose the application.  They argue that the applicants have prematurely approached this honourable court without first exhausting domestic remedies.  They submit that section 252 (a) of the Constitution of Zimbabwe Amendment (No. 20) provides as follows:

“The National Peace and Reconciliation Commission has the following functions -

To ensure post conflict justice, healing and reconciliation.”

5th and 6th respondent submit that all the issues related to Gukurahundi are covered under this section.  The mechanism for resolving any conflicts fall squarely within the mandate of the 6th respondent as it relates to post conflict justice, healing and reconciliation.  The argument is therefore made that if applicants had any concerns with issues surrounding the exhumations or any other procedural issues, they ought to have invoked the provisions of section 252 (f).  Further, section 252 (f) of the Constitution provides that the 6th respondent shall have the authority and competence to receive and consider complaints from the public and to take such action as it considers appropriate.  In the event that applicants lodge such complaints, 6th respondent is reposed with authority to conciliate and mediate over such disputes in terms of section 252 of the Constitution.  The 5th and 6th respondents aver that this preliminary objection regarding the failure to exhaust domestic remedies should resolve the matter without hearing the merits.

The applicants, on their part admitted that there are indeed domestic remedies as set out in the Constitution.  They however contend that the presence of domestic remedies is not fatal to their case.

Analysis of the law

In my view, it is settled law that courts ought not to entertain litigants who rush to court without first exhausting internal remedies.  In essence, what would be the purpose of having robust constitutional domestic remedies if these were simply ignored or not applied, and parties simply rush to seek other remedies from the courts?

There is a catena of case law that supports the view that a party who fails to exhaust domestic remedies enjoys no audience from the court.  See Jambwa v Grain Marketing Board HH-124-13; Tuso v City of Harare 2004 (1) ZLR 1 (H); Chawora v Reserve Bank of Zimbabwe 2006 (1) ZLR 525 (H); Tutani v Minister of Labour and Ors 1987 (2) ZLR 88 (H)

I note that counsel for the applicant sought to place reliance on the case of Harare South Housing Union Cooperative Society Ltd v Nkomo & Others HH 270 /15. In this matter the learned judge held that the High Court is not barred from entertaining matters simply because there are internal remedies. The case is clearly distinguishable from the present case. The case referred to dealt with spoliation. The threshold in matters of spoliation is totally different. All the court has to consider is whether an act of spoliation has occurred. If satisfied that the applicant has been despoiled the court may grant the order inspite of the existence of internal remedies. In the case before me the applicants deliberately failed to invoke clear constitutional remedies available to them.

I am satisfied that 2nd applicant is not properly before the court. A trust is represented by its trustees. No meaningful argument was presented to establish the locus standi of the 2nd applicant. In Herbstein& Van Winsen; Civil Practice of the High Courts of South Africa; by Cilliers, Loots & Noel, a trust was defined as follows-;

“A trust is not a legal persona, but a legal institution sui generis. Therefore it mustbe sued in the name of the trustee or trustees.”

See also Crundall Bros (Pvt) Ltd v Lazarus NO & Anor 1990 (1) ZLR 290 (HC) and  WILSA & Ors v Mandaza & Ors 2003 (1) ZLR (H) at 505-6.

Within this jurisdiction the issue of whether or not a trust is a legal persona has received attention and there is a plethora of authority on the subject. The issue was considered at great length by Gowora JA in the recent case of Veritas v ZEC & Ors SC 103/20.

The learned judge stated at page 10 of the cyclostyled judgment as follows;

“The contention by the applicants is that it is the trust that has brought this suit. That is incorrect. The suit has been brought by Veritas. The person who deposed to the founding affidavit is not a trustee,she is an administrator in the employ of the trading arm of the trust. Thus the party before the court is not the trust, it is an entity associated with the trust. I am not convinced that the rule that the appellants place reliance on is of any assistance to them.”

In the matter before me the 3rd applicant deposes that he is the Secretary General of the 2nd applicant. There is no reference to the trustees. He does not say he is authorized by the trustees. In my view the trust is not properly before court. Similarly, 4th applicant has been cited as the Zimbabwe African People’s Union, a political party with capacity to sue or be sued. No resolution was attached to the application authorizing the deponent to the founding affidavit. It is settled in this jurisdiction that where a party to legal proceedings is not properly before the court he enjoys no audience from the court. The application is rendered fatally defective.

Disposition

Before concluding, I need to point out that it is not only presumptuous to allege that 1st Respondent sought to conduct unlawful exhumations.  The suggestion by the applicants is fanciful, scurrilous and unjustified.  Applicants took no time to enquire whether the media reports were accurate and how these exhumations would be carried out.  As I pointed out during oral submissionsby the parties, the issue of Gukurahundi is emotive and sensitive. The applicants did not seek the intervention of the 6th respondent. The issue of Gukurahundi and exhumations has to be dealt with carefully and in full compliance with the requirements of the law.  The manner in which this application was rushed to court without following the provisions of the Constitution, particularly section 252 (f) is deeply concerning.  Any allegation of an illegal act made against the 1st respondent, who is the President of the Republic, should not be made lightly, more so, when it is shown that the alleged illegal acts have not even occurred.

By his own admission, the 1st applicant asserts in paragraph 64 of the founding affidavit in clear and unambiguous terms, that it is the 6th respondent who has the legal mandate to promote the programmes concerning peace and reconciliation in accordance with s.252 (a) of the Constitution. One wonders why 1st applicant chose to file this urgent application before engaging the 6th respondent when he was well aware of the legal remedies available in the Constitution.

For the aforegoing reasons, it is my finding that this application is presumptuous and premature.  There is need to exhaust domestic remedies as provided in section 252 (f) of the Constitution. There is therefore no need to determine the matter on the merits.  The preliminary objection is upheld.

Accordingly, and in the result, the application is dismissed with costs.

Messrs Ncube Attorneys, applicants’ legal practitioners

Civil Division of the Attorney General’s Office, 1st& 2nd respondents’ legal practitioners

Tanaka Law Chambers, 5th& 6th respondents’ legal practitioners