Court name
Supreme Court of Zimbabwe
Case number
SC 79 of 2005
Civil Appeal 71 of 2005

Khuphe v Officer In Charge Law and Order Section ZRP Bulawayo Central Station and Others (71/05) (SC 79 of 2005, Civil Appeal 71 of 2005) [2005] ZWSC 79 (27 November 2005);

Law report citations
Media neutral citation
[2005] ZWSC 79













REPORTABLE
(71)


Judgment
No. SC. 79/05


Civil
Appeal No. 71/05








THOKOZANI
KHUPHE v





(1)
THE OFFICER IN CHARGE, LAW AND
ORDER SECTION, ZRP BULAWAYO CENTRAL
STATION


(2)
THE COMMISSIONER OF POLICE, ZRP HARARE


(3)
THE ATTORNEY-GENERAL OF ZIMBABWE








SUPREME
COURT OF ZIMBABWE


CHEDA
JA, MALABA JA & BERE AJA


BULAWAYO,
NOVEMBER 28, 2005.








J
Sibanda
, for the appellant





B
Ndove
, for the respondents





CHEDA
JA: After hearing the appellant’s counsel, we dismissed this
appeal with costs and indicated that the reasons would follow.

These are they.






The
appellant was a duly elected Member of Parliament for the Makokoba
Constituency in Bulawayo at the time of the incident that
led to this
appeal. She represented the Movement for Democratic Change, an
opposition political party in Zimbabwe.





In
January 2005 new constituency boundaries were announced in
preparation for the general elections that were to take place in
March
2005.





On
23 January 2005 the appellant called for a meeting of her
constituents at her restaurant, which is along Leopold Takawira
Avenue in Bulawayo. More than eighty people from various wards of
her constituency attended the meeting. Members of the Zimbabwe
Republic Police arrived, broke up the meeting and arrested the
appellant.





The
appellant was charged with contravening s 24(6) of the Public
Order and Security Act [Chapter 11:17] (“the Act”)
(also known as “POSA”) - holding a public meeting without
notifying the authority concerned. She was then
placed on remand by
the magistrate's court and at the time of the hearing of this appeal
she was still on remand in respect of that
charge.





The
appellant, being of the view that the meeting she had called was a
private one and did not fall under the type of meetings or
gatherings
prohibited by s 24 of the Act, approached the High Court seeking
a declaration in the following terms:






“1. That it is hereby declared
that section 24 of the Public Order and Security Act
[Chapter 11:17], as read with section 2 thereof,
does not oblige the organiser or convenor of a meeting to notify the
regulating authority
concerned, if such meeting or gathering be a
private meeting or gathering.





2. For
the avoidance of doubt, the organiser of such meeting as is referred
to in (a), above, shall not be held to have contravened
section 24
of POSA, as read with section 2 thereof, where the meeting or
gathering concerned is not a public meeting or
gathering.





3. The
respondents pay the costs of this application jointly and severally,
the one paying to absolve the others.”






The
appellant also sought the following interim relief:






“Pending
confirmation or the discharge of the order, that this order shall
operate as a temporary order –







1. Restraining the second
respondent, through his officers, from disrupting, breaking up or in
any way interfering with the holding
of any private meeting held by
the applicant, whether such meeting be held in a private place or
other place.






2. Restraining
the second respondent, through his officers, from causing the arrest
of the applicant for holding such meetings.”






The
High Court declined to grant the declarator and ordered the
appellant to pay the costs.





The
appellant appealed against this refusal by the High Court to grant
the declarator sought.





I
find the appellant’s position to be difficult and confused, unless
there is an error in the typed judgment of the High Court.
In his
judgment the Judge of the High Court stated:






“Mr Sibanda urged me not
to dismiss the application but instead to decline to make the
declarator






At
the end of his judgment the High Court Judge stated:






“Accordingly
I decline to grant the
declarator
sought, with the applicant paying the costs of the application.”





It
is not clear why the appellant, having asked the court to decline to
grant the
declarator
and the court having done exactly that, now appeals to this Court
against that order.





Turning
now to the merits, s 24 of the Act reads as follows:






“24. (1) Subject to
subsection (5) the organiser of a public gathering shall give at
least four clear days’ written notice
of the holding of the
gathering to the regulating authority for the area in which the
gathering is to be held:






Provided that …





2
–6 ….”





The
main issue raised by the appellant is whether the meeting that she
called was a public or a private meeting.





The
appellant is currently on remand. The main issue to be determined
at her trial is clearly whether her gathering was a public
one or a
private one. If it was not a public meeting, as she submits, she
will be acquitted. If the gathering was a private one
as opposed to
a public one, that is a defence that is still available to her, which
could lead to an acquittal if proved. If it
was not, the trial
court will make an appropriate finding.





This
issue is therefore one to be determined by the trial court, after
hearing evidence. It is neither for the High Court to take
on
itself to determine, nor for this Court to do so on appeal. It is a
question of interpretation, and depends mainly on the evidence
that
will be led at the trial. Until then, this Court is not in a
position to interfere. This is a court of appeal. The appellant
can only come on appeal against the determination of the magistrate's
court once the matter has been determined in a manner that
she
considers to be incorrect.





I
find that the High Court was correct in declining to grant the
declarator,
as the application to it had no merit. In any event, there is no
point in issuing a
declarator
concerning private meetings because that is common cause. To do so
would be simply to repeat to the police what they already know.
The
police, in their request for remand, said the appellant organised a
public, not a private, gathering.





The
appeal to this Court has no merit either and that is why we ordered
it dismissed with costs.











MALABA
JA: I agree.











BERE
AJA: I agree.











Job
Sibanda & Associates
,
appellant's legal practitioners


T
Hara & Partners
,
respondents' legal practitioners