Farai Misihairabwi AND Farai Chigume Versus THE President OF THE Republic OF Zimbabwe N.O AND OR Anyone Acting IN THAT Capacity AND THE Minister OF Health OF THE Republic OF Zimbabwe N.O AND OR Anyone Acting IN THAT Capacity AND Minister OF HOME Affairs OF THE Republic OF Zimbabwe N.O AND OR Anyone Acting IN THAT Capacity

### Preamble
1
HH 137-21
HC 34/21
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FARAI MISIHAIRABWI

and

FARAI CHIGUME

versus

THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE N.O

AND OR ANYONE ACTING IN THAT CAPACITY

and

THE MINISTER OF HEALTH OF THE REPUBLIC OF ZIMBABWE N.O

AND OR ANYONE ACTING IN THAT CAPACITY

and

MINISTER OF HOME AFFAIRS OF THE REPUBLIC OF ZIMBABWE N.O

AND OR ANYONE ACTING IN THAT CAPACITY

HIGH COURT OF ZIMBABWE

FOROMA J

HARARE, 21 January 2021 & 31 March 2021

Ruling on Urgency

F Misihairambwi, for the applicants

E Jaricha, for the respondents

FOROMA J: Applicants have approached this court through an urgent chamber application for the following relief per provisional order whose terms have been couched as follows:

“TERMS OF FINAL ORDER SOUGHT

An order to allow the classing of all Religion under the essential services as already enshrined in our constitution is now and hereby granted.

That worship and prayer services in groups and sizes that are manageable say 30 or 20 people or less be now and hereby allowed at least once a week while observing all other rules and regulations to curb the spread of the Corona virus.

An order to allow full time Religious Ministries and or administrators to be classified under essential services and hence continue to operate while observing the rules and regulations to do with COVID-19.

That there is no order as to costs.

INTERIM RELIEF SOUGHT AND GRANTED

An order to allow known religious groups that have been known and recognized before lockdown be now and hereby granted authority to worship and pray for groups of 30 people or less observing all other rules and regulations relating to the gazette on COVID-19 lockdown rules and regulations on the curb of the spread of Corona Virus (COVID-19).

That gathering of reasonable sizes for religious purposes for 30 people or less depending with the size of the room for social distances purposes while observing all other rules and regulations as an essential service not to be interrupted and or stopped. Be now and hereby granted.

No order as to costs each party to bear its own costs.”

Applicants are Farai Misihairabwi and Farai Chigume each in his individual capacity and not representing any religious organization or church community. Essentially they seek an order that the Religion be declared and included in those activities that should be permitted to continue its activities as an essential service and not be part of the prohibitions on account of lockdown rules and regulations.

The second respondent filed a notice of opposition to the applicants’ application in which they raised as a point in limine the argument that the matter is not urgent and thus does not deserve to be treated on the basis that it is urgent.

At the hearing I directed that as is the practice the issue of urgency be resolved before going into the merits of the dispute. The applicants through the first applicant submitted that the matter is urgent as the members of the community of any religious persuasion consider group prayer and worship an essential part of their daily life and should not be prevented from conducting their activities by reason of the prohibition of gatherings as the latest lock down rules have sought to do. Applicants consider that the religious right to group worship should be permitted and the prohibition of gatherings in terms of the latest lock down regulations will cause all religious groups irreparable harm spiritually.

The applicants content that the need to act arose on the declaration of the latest lock down rules.

Second respondent counter argued that the latest lock down rules have not prohibited worshiping individually or virtually as groups but face to face group worship as the face to face group worship exposes members to infection by the COVID 19 virus. In addition the second respondent argued that the need to act arose in August 2020 when regulations declaring essential services excluded religious activities from essential services. It was then that this challenge ought to have been brought. Besides one of the tests for urgency is the resultant irreparable loss that is likely to cause to the applicant. The second respondent argued further that applicants are acting in their individual capacities and individual worship is not affected by the latest lock down rules. The applicants cannot purport to claim irreparable loss on behalf of church communities on whose behalf they are not instructed to represent. I am satisfied that the applicants have no legal authority to act on behalf of religious entities that are not before the court. The applicants as individuals and in their own right have not demonstrated any irreparable loss that they stand to suffer should the matter not be treated as urgent. In any event the dies induciae granted to the respondents in the application which though brought as a chamber application is the normal dies in terms of the rules of this court applicable to ordinary court application thus rendering the matter not urgent.

In the circumstances I am satisfied that the matter is not urgent and I order that it be removed from the roll of urgent applications.

Lawman Chimuriwo Attorney at Law, applicants’ legal practitioners

Civil Division of the Attorney General’s Office, respondents’ legal practitioners