Antony Chawafambira v Commissioner General of Police and Officer Commanding - Harare Police Central District and Minister of Home Affairs N.O

### Preamble
1
HH 41-21
HC 54/21
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ANTONY CHAWAFAMBIRA

versus

COMMISSIONER GENERAL OF POLICE

and

OFFICER COMMANDING - HARARE POLICE CENTRAL DISTRICT

and

MINISTER OF HOME AFFAIRS N.O

HIGH COURT OF ZIMBABWE

MUZOFA J

HARARE, 26 January & 8 February 2021

Urgent Chamber Application

MUZOFA J: On 22 January 2021 the applicant instituted the proceedings in casu by way of an urgent chamber application seeking the following provisional order:

“TERMS OF THE ORDER SOUGHT

That the respondents show cause why a final order should not be made in the following 	terms;

That the provisional order be and is hereby confirmed.

That the use of excessive force and assaulting applicant or any member of the public during enforcement of Covid-19 lockdown regulations by the respondents be and is hereby declared unconstitutional.

That the failure by the respondents to observe social distancing, sanitizing suspects before putting them in police holding cells, putting applicant or anyone in overcrowded holding cells and failure to enforce the wearing of face masks be and is hereby declared to be ultra vires Statutory Instrument 84 of 2020 as amended by Statutory Instrument 10 of 2021.

4.    The respondents to pay the costs of suit.

INTERIM RELIEF SOUGHT

That pending the determination of this matter, the following relief is granted:

The respondents be and are hereby barred and interdicted from using 			     		excessive force and from assaulting applicant and any member of the public during 			enforcement of Covid-19 lockdown regulations.

The respondents are ordered to sanitize suspects before putting them in police holding cells.

The respondents are ordered to observe social distancing and enforce wearing of face masks during the enforcement of Covid-19 lockdown regulations.

The respondents be and are hereby barred and interdicted from demanding the payment of fine in the form of hard cash only and ordered to accept other forms of payment such as eco-cash and swipe.

SERVICE OF THIS ORDER

WITHOUT DEROGATION from the normal powers of the Deputy Sheriff to serve 	court process, the applicants or their Legal Practitioners or any attested member of the 	Zimbabwe Republic Police is hereby authorized to serve this Order on the respondents.”

The applicant approaches this court on his behalf and on behalf of others ‘… who are subject to arrests and same treatment I received and continue to receive in the hands of the members of the respondents,’ in terms of section 85 (1) (a), (c) and (d) of the Constitution.

The first respondent is the Commissioner of Police cited in his official capacity as the authority responsible for the police service in Zimbabwe. The second respondent is the Officer Commanding Police, Harare who is cited in his official capacity as the authority responsible for the administration of police services in the Harare district where the alleged infringement of rights occurred. The third respondent is the Minister of Home Affairs, cited in his official capacity as the Minister responsible for the police service in Zimbabwe.

When I received this application on the 26th of January 2021, I directed the respondents to file their responses, serve the applicant and the applicant to file an answering affidavit and the heads of argument if so advised. The 1st and 3rd respondents did not file any responses. The 2nd respondent filed a notice of opposition. There is no evidence that the applicant was served with the response. Despite non service on the applicant, the applicant filed his heads of argument through his legal practitioners of record.  These are some of the intrinsic challenges that have risen as a result of the Covid-19 pandemic. It has also affected the normal court processes.

In March 2020 the Minister of Health and Child Welfare through the Public Health (COVID-19 Prevention and Containment and Treatment) Regulations 2020, Statutory Instrument 77 of 2020 declared COVID-19 a formidable epidemic disease. Measures were introduced to prevent, contain and treat the incidence of the disease which include closure of schools and business except for essential services as declared by the regulations, prohibition of gatherings, restriction of movement, compulsory wearing of face masks in public, sanitization and social distancing. The periods of lockdown and levels varied from time to time. In terms of Statutory Instrument 10 of 2021 a 30-day Level IV national lockdown was imposed from the 3rd of January 2021.

On 21 January 2021 a date falling within the lockdown period, the applicant was arrested in the Harare Central Business Centre for contravening section 4 (1) (a) of Statutory Instrument 83 of 2020 as read with Statutory Instrument 10 of 2021 together with other members of the public in the vicinity. The applicant alleges that, upon arrest they were assaulted by members of the respondents with truncheons and forced into a police truck. Oblivious of the tenets of the lockdown regulations they purported to enforce, the respondents’ members did not ensure that the applicant and others had their face masks on and no social distancing was observed in the truck. They were driven to Harare Central Police Station where they were lodged in police holding cells already packed with other suspects. In the holding cells there was no social distancing and the wearing of face masks was not enforced at all. The conduct by the members of the police exposed the applicant and others to the COVID-19 pandemic thus violating their right to health. It is on that basis that the applicant seeks an order to compel the members of the respondents to comply with the regulations.

In his opposing affidavit Oskah Mugomeri denied all the factual basis of the application save for the fact that the applicant was arrested on the 21st of January. He stated that a fine was assessed and the applicant paid a fine on the same day he was arrested. The admission of guilt signed by the applicant was attached to his affidavit.

Before delving into the merits of the case. I must first determine whether the matter is urgent.

Ms Emma Drury, a registered legal practitioner certified the matter to be urgent. She believed the matter to be urgent because the conduct by the members of the respondents to assault the applicant on arrest, the detention of the applicant in an overcrowded holding cell without face masks and the non-observation of social distancing violated Statutory Instrument 83 of 2020. She also alleged that the members of the police illegally detained the applicant without trial. The last issue is clearly not a basis for such an application. The applicant had committed an offence and this application was filed before the expiration of the 48 hours provided in section 50 (2) of the Constitution. The allegation of illegal detention is therefore baseless. The heads of argument substantiated urgency on the basis that, a violation of a fundamental human right gives rise to urgency. In this case the respondents’ members violated the applicant’s right to health.

A matter is urgent where the established facts are such that if the court does not intervene the applicant will suffer irreversible harm. The court in Dexprint Ace Property and Investments Company (Pvt) (Ltd) HH 48/04 expressed that: -

“For a court to deal with a matter on an urgent basis, it must be satisfied of a number of 	important aspects. The court has laid down the guidelines to be followed. If by its nature the 	circumstances are such that the matter cannot wait in the sense that if not dealt immediately 	irreparable prejudice will result, 	the court can be inclined to deal with that on an urgent basis.”

Similarly, in Gwaranda v Johnson and others 2009 (2) ZLR 159 (H) the court explained circumstances giving rise to urgency as those that require ‘contemporaneous resolution, the absence of which would cause extreme prejudice to the applicant.’

In my view the circumstances must be such that if the court does not intervene future intervention may not help him. The circumstances should be live and existing at the time of filing the application and the granting of the order. An order sought post facto may not give rise to urgency since the harm has already materialised and there are no effects of such harm may be curtailed by dealing with the matter on an urgent basis.

In this case the 2nd respondent attached to his notice of opposition an admission of guilt purportedly signed by the applicant. He paid a fine of ZW$500 on 21 January 2021 the very day he was arrested. The 2nd respondent averred that the applicant paid by way of swipe on the 21st of January 2021. This application was prepared on the 21st and filed on the 22nd of January. At the time that the application was filed the harm if any, had materialised for the applicant. The order that the applicant seeks cannot avert the prejudice he has suffered nor remedy the effects of the unlawful action already taken in respect of the applicant. The horse has already bolted therefore it becomes unnecessary to shut the door.

In other words, as of 22 January when the application was filed the applicant had paid the fine, it is presumed that he was released on the same day therefore he was no longer in the police holding cells. After that, there was no further threat of prejudice to the applicant. His remedy ceased to be in the form of an urgent mandatory or prohibitory interdict as prayed for herein. One cannot interdict an act that has already taken place.

There is no urgency in respect of the applicant.

Even if l have made a finding on urgency l am inclined to comment in passing on the applicant’s locus standi. The applicant appears before this court in three capacities, in his personal capacity, in the interest of a group of people he was arrested with and in the interest of the general public. This right is entrenched in s 85 (1) of the Constitution which provides as follows:

‘Any of the following persons, namely-

(a) any person acting in their own interests;

(b) any person acting on behalf of another person who cannot act for 
               themselves;

(c) any person acting as a member, or in the interests, of a group or class of      	             	                    persons;

(d)  any person acting in the public interest;

(e)  any association acting in the interests of its members; is entitled to          	      	       	         approach a court, alleging that a fundamental right or freedom enshrined         	           	           in this Chapter has been, is being or is likely to be infringed, and the court   	          	         	          may grant appropriate relief, including a declaration of rights and an award of  		          compensation.’

The order sought is noble if indeed the members of the respondents are enforcing the lockdown regulations violating the same regulations they purport to enforce. However, it can only be granted where it is procedurally and substantively in accordance with the law.

The Constitutional Court has pronounced itself on the proper way to approach a court in terms of section 85 (1) of the Constitution. An applicant cannot found locus standi in more than one capacity. In Mudzuru  and Another v Minister of Justice and Parliamentary Affairs CCZ 12/15 ,the Deputy Chief Justice  Malaba (as he then was) had this to say on the issue,

‘What is in issue is the capacity in which the applicants act in claiming the right to 	approach the court on the allegations they have made. In claiming locus standi under s 85 	(1) of the Constitution, a person should act in one capacity in approaching a court and not 	act in two or more capacities in one proceeding.’

This position was followed in Samuel Sipepa Nkomo v Minister of Local Government, Rural and Urban Development and Others CCZ 6/16, the learned ZIYAMBI JCC (as she then was) said:

‘In so far as the applicant alleges an infringement of his fundamental right 	enshrined in [Chapter 4] of the Constitution, he may, in the absence of the 	rules 	referred to in s 85 (3), be permitted to access this Court directly. On this basis he 	has, prima facie, the locus standi to bring his application in 	terms of 13 see section 	167 (1) (a) of the Constitution of Zimbabwe, 2013. 	But he cannot, as he has sought 	to do, act in his own interest as well as the public interest.’

In this case the three-tier capacity by the applicant is improper. He can only act in one capacity.

From the foregoing the following order is made.

The matter is struck off the roll of urgent matters.

Shava Law Chambers, applicant’s legal practitioners

Attorney General’s Office, Civil Division, 2nd respondent’s legal practitioners