Zimbabwe Informal Sectors Organisation and Mfundo Mlilo v The Minister of Health and Child Care

### Preamble
1
HH 36-21
HC 20/21
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ZIMBABWE INFORMAL SECTORS ORGANISATION

and

MFUNDO MLILO

versus

THE MINISTER OF HEALTH AND CHILD CARE

HIGH COURT OF ZIMBABWE

KWENDA J

HARARE, 11, 12, 14 & 18 January 2021, 01 February 2021

Urgent Chamber Application

A Muchadehama, & A Makoni for 1st applicant

T Musangwa & C Chibidi, for respondent

KWENDA J: The first respondent identified itself as a membership based organisation acting on behalf of all people conducting business in the informal. All persons conducting business in the informal sector are its members. The second applicant is a natural person who is a citizen of Zimbabwe. The respondent is the Minister of Health and Child Care.

On the 28 march 2020, the Minister of Health and Child Welfare published the Public Health (COVID-19 Prevention, Containment and Treatment) Regulations, 2020 Statutory Instrument 77 of 2020 (SI 77/20) declaring COVID -19 a ‘formidable epidemic disease’ in Zimbabwe. The statutory instrument introduced measures and restrictions aimed at containing the epidemic such as prohibition of inter district travelling, restrictions on gatherings, compulsory isolation, quarantine, compulsory testing, social distancing, sanitisation, detention and closure of businesses and schools. The National Lockdown had the natural effect of limiting certain rights and freedoms enshrined in the Bill of Rights but the respondent invoked the law-making power given to him in terms of s 68 of the Public Health Act [Chapter15:17]. In terms of s 86 (2) of the Constitution of Zimbabwe (Amendment No 20) Act 2013, fundamental rights and freedoms may be limited in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including the interests of public safety or public health or the general public interest. The restrictions and measures were gradually phased down from level IV, III, 11(Level IV being the toughest and strictest and as at 1 January 2021 the lockdown was in phase II, a stage at which stage, the restrictions were hardly felt.

In making SI 77/20 the respondent reserved for himself the power to make future make orders and prescribed for himself the extent of such power. Section 8(1) of SI 77/2020 reads as follows: -

“Ministerial Orders

8(1) In pursuance to the objective of these regulations, the Minister may (in consultation with the 	President, and in conformity with any directions the President may give) by orders published in the 	Gazette

impose restrictions of public traffic and of movements of persons by means of curfews in 	any local authority;

close schools or regulate and restrict school attendance in any local authority;

close places of worship and restrict gatherings or meetings for the purpose of public 	worship in any local authority;

regulate, restrict or, where deemed necessary, close in any local authority, any place or 	places of public entertainment, recreation or amusement, or where intoxicating liquor is 	sold…. assemblies or public gatherings…”

ETC

In December 2020 the country experienced a sudden resurgence of the formidable epidemic resulting in a spike in COVID-19 related infections and deaths. The respondent responded to the reappearance of the epidemic by gazetting the Public Health (COVID 19 Prevention, Containment and Treatment) (National Lockdown) (No, 2) (Amendment) order 2021 (No. 9) (Statutory Instrument 10 of 2021) (hereinafter referred to as SI 10/2021) using the law-making power he had given himself in s 8(1) of SI 77/20. The effect and intention of SI 10/2021 was stated in the statutory instrument as being to, by and large, revert to Level IV. SI 10/21, therefore, did not introduce a new lockdown but simply extended the life of SI 77/20 and ordered return to tighter controls.

It is the promulgation of SI 10/21 which is under attack by the applicants on various grounds. Some of the grounds are not stated on the face of the application but appear in the founding affidavit. I have therefore put the grounds in my own words as I understood them. The applicants impugn the constitutional validity SI 10/2021 on the grounds are that: -

The respondent could not validly derive the power to make law from SI 77/2020, itself being a Statutory instrument made by him. The respondent exceeded the law-making power delegated to him by Parliament in terms of s 68 of the Public Health Act [Chapter15:17] when he enacted s 8 (1) of SI 77/2020 thereby arrogating to himself the power to make future regulations without reference to the enabling Act of Parliament.

The Statutory Instrument was not subjected to mandatory and constitutionally entrenched Parliamentary controls which are in intended to ensure that the Minister does legislate intra vires the Constitution and the Public Health Act.

The restrictions and measures imposed by the Statutory Instrument are arbitrary, irrational and unlawful because they were not borne out of consultation with the Zimbabwean citizenry. The respondent failed to give notice and provide safety nets for the vulnerable during the period of lockdown. The regulations are in any event unconstitutional, unlawful and irrational in so far as they are not rationally connected to the objectives of slowing down the rate of infection or limiting the spread of COVID-19. The restrictions and measures do not serve any public health purpose and lack proportionality to the harm targeted by them. In any event the restrictions and measures are not necessary as the guidelines of the World Health Organisation on the containment of COVID-9 and spread of the corona virus that include social distancing, wearing masks, sanitisation and temperature control should suffice if properly enforced.

The regulations have an adverse impact on the livelihoods of the applicants and to that extent infringe upon the applicants’ right to life.

The regulations are invalid because their promulgation had no scientific or rational basis and the restrictions and measures they impose, constitute gross infringements of fundamental rights and freedoms.

SI 10/2021 is invalid because it was made by the Vice President purporting to do so as Minister of Health and Child Welfare yet in terms of s 103 of the Constitution of Zimbabwe (Amendment No 20) Act 2013, a vice president cannot validly hold another public office. As at 2 January 2021 Zimbabwe had no Minister of Health and Child Care and the promulgation of SI 10/2020 was therefore a non-event constitutionally and the regulations cannot have constitutional validity.

The applicants submitted their urgent chamber application with a provisional order whose ultimate goal is to obtain an order of this court declaring Statutory Instrument 10 of 2021 constitutionally invalid. In the interim they seek an order suspending of the operation of the Statutory Instrument, alternatively; an order declaring that all gatherings shall be lawful or allowed subject to the observance of the aforestated World Health Organisation Guidelines; alternatively an order declaring that all businesses and shops shall be allowed to operate subject to the same precautionary measures; alternatively an order directing a return to Level 2 Lockdown restrictions from Level IV brought back by SI 10/2021; alternatively that this court should amend SI 10/2021 by reducing their life from 30 days to 21 days.

The application was opposed by the respondent on the grounds stated below.

Preliminary objections: -

The first applicant did not state in its founding papers the basis upon which it claims legal personality and such personality is not apparent from its name.

The constitutional issues raised by the application are subject of the exclusive jurisdiction of the Constitutional court. This court is precluded from adjudicating on the constitutional issues that arise.

This court does not have the jurisdiction to suspend the operation of a Statutory instrument following an urgent chamber application.

On the merits

The statutory instrument was promulgated because of the need to curb the spread of the corona virus and save lives. The resultant loss of income is not permanent since it will only last for the period of the projected life of the Statutory instrument which is 30 days and is far outweighed by the objective to save lives. The respondent attached proof of the rise in COVID-19 infections and related deaths. The respondent’s Ministry publishes situational reports and statistics on new infections, deaths and recoveries in the form of graphical analysis and presentation which are all public knowledge. Consultations could not be carried out due to the state of disaster posed by the pandemic which is COVID-19 whose sudden acceleration was only noticed during the Christmas festive season in 2020. SI 10/2021 was therefore necessary because it had become increasingly difficult to control the behaviour of persons plying their trade in the informal sector and ensure compliance with WHO guidelines. The informal sector is generally non-compliant.

The vice President is the duly appointed Minister of Health and Child Care appointed as such in terms of s 99 of the Constitution to administer the Ministry and the Public Health Act. He made the impugned regulations in terms of the Public Health Act pursuant to his appointment as such.

After considering papers filed of record and submissions made by counsel, I have arrived at the conclusion that the application cannot succeed based on the preliminary objections which I accept and other legal issues which I raised mero motu. In brief my reasons for dismissing this application are: -

Only a legal subject can be a party to legal proceedings. Capacity to sue flows from legal personality The first applicant, not being a legal person or legal subject, is not a bearer of rights, duties and capacities. The first applicant’s failure to prove its legal personal arises, primarily, from the fact that it is afflicted by a pathetic identity crisis. It failed or neglected to assert its legal personality in its founding affidavit. When challenged by the respondent to state how it claims legal personality, it averred that it is a common law universitas but before long, it mutated into a trust incorporated in terms of a registered Deed of Trust.  A common law universitas and a trust are, in my view, different and distinct legal institutions and no entity can rationally claim to exist as both.

Both applicants have no locus standi to institute these proceedings for both the interim and final constitutional remedies set out in the draft provisional order.

The interim relief sought, being the suspension of SI 10/2021 is incompetent as far as it is deliberately couched in terms that give it final application. It is capable of operating indefinitely, at the pleasure of the applicant, thereby leaving the applicants with no incentive to return to court for either the confirmation or discharge of the provisional order. In any event the impugned statutory instrument has a life span and once terminated by the effluxion of time its alleged constitutional invalidity will become moot and this court will have no reason to adjudicate on its alleged inconsistence with the constitution.

In my view, an order of this court suspending the operation of SI 10/2021 would be a circumvention of s 175(1) of the Constitution. S 175(1) of the Constitution is unambiguous in as far it provides that a declarator of constitutional invalidity made by this court does not take effect unless confirmed by the Constitutional court. It would therefore defeat the exclusive jurisdiction of the Constitutional Court as expressed in s 175(1) of the Constitution if the view that this court on the constitutional invalidity of a law, which is normally suspended by operation of the law pending confirmation, was to become operational simply because it is clothed as an interim relief or interdict.

A proper reading of s 175(2) of the Constitution reveals that this court cannot competently grant interim relief before an order of constitutional invalidity. Interim relief is granted subsequent to the issuance of a declarator pending an anticipated confirmation of the declarator.

The constitutional litigation arising from the failure by Parliament or the President to fulfil a constitutional obligation is normally subject of the exclusive jurisdiction of the Constitutional Court and where concurrent jurisdiction exists care must be taken not to encroach into the delicate and sensitive separation of roles among the three pillars of the State. Failure by Parliament to legislate for progressive realisation of social economic rights and a challenge to the constitutionality of the President to appoint a vice president to administer a ministry and an Act of Parliament are, in my view, in the realm of the sensitive area of separation of powers and should be dealt with by a judicial authority at the level of the Constitutional Court.

The constitutional jurisprudence and trend emanating from the Constitutional court is to suspend the operation of orders of constitutional invalidity to give the Legislature the opportunity to rectify any flaws in the law making process and/or defects in the legislation forming the basis of its invalidity or inconsistence with the constitution. In other words, the tendency has been to avoid creating a vacuum in the law.

First applicant’s legal personality

The first applicant’s founding affidavit was submitted by one Promise Mkwananzi. He identified the first applicant as an organisation and that he was duly authorised to depose to the affidavit on its behalf by resolution of its ‘Board ‘. The nature of the ‘Board’ is not clear on the face of the resolution which he submitted with the application. The Notice of opposition queried the first applicant’s legal personality. In response, the first applicant filed an answering affidavit explaining its legal personality as follows: -

“1st applicant has full locus standi to make this application, the applicant is a common law universitas and has a duty to represent its members and their interests in any for a. Attached hereto is a copy of 1st applicant’s Deed of trust.”

The first applicant attached a Deed of Trust executed by the Registrar of Deeds on 8 June 2015 as proof of its incorporation. The production of the applicant’s Trust Deed through an answering affidavit was not opposed by the respondent. The net effect of the answering affidavit is that the first applicant claims dual legal personality. It claims to be both a common law universitas and a trust. It is therefore necessary for this court to determine whether first applicant is indeed a legal subject as claimed by it and if so whether it is a common law universitas or trust or both.

Legal personality precedes locus standi. The former begets the latter. The concepts are closely related and often confused. A legal person or legal subject is any being or entity that can have rights, duties and capacities. Put differently, a legal person/subject is any entity which is recognised as such by the law and to which the law attributes the competency to have rights, duties and capabilities. The ability to have rights, duties and capacities is called legal capacity. All human beings have rights, duties and capacities subject to certain restrictions that may be imposed by the law. That is straight forward. However, the demands of legal order necessitate that juristic personality be bestowed on certain entities or associations of natural persons. The juristic person enjoys juridical existence which is independent from that of its members who created it. See South African Law of Persons DSP Cronje & J Heaton Butterworths 1999 ed at pages 2 to 7. Among the entities recognised as juristic persons are associations known as universitas.

A common law universitas is a voluntary association of persons driven by the mutual agreement of the persons aiming to achieve a common objective, usually for a recreational and/or public-benefit activity. It is conceived and formed when three or more persons enter into a contract with the serious intention to associate, and are in agreement on the essential characteristics and objectives of the universitas. The agreement is entered into to form the organisation and to achieve the common (usually non-profit) objectives of its members. The universitas, so formed, acquires a legal personality distinct from its members and the legal personality is discernible from the contract which constituted it, normally referred to as its ‘constitution’. In other words, the common law provides that a juristic person may naturally acquire legal personality by conducting itself as such, provided it does not carry on business for the sole purpose of gain. According to South African Law of Persons DSP Cronje & J Heaton Butterworths 1999 ed at pages 2 to 7 the fact that the association regards itself as a juristic person is important but not decisive

The courts have determined that to be recognised as juristic persons they must meet the following requirements: -

Continuous existence irrespective of the fact that its members may vary

Possess property or be able to possess property belonging to the association as such and not to the individual members in their personal capacities. The object must not be the acquisition of gain. See the now repealed Companies Act Chapter 24:03 and now the new Companies and Other Business Entities Act [Chapter 24:31]

In the case of Gweru Water workers Committe v City of Gweru SC 59/2013 at p 2 of the

cyclostyled judgment, Ziyambi JA quoting from the case of CT Bolts Pvt Ltd v Workers Committee SC 16/12 stated as follows:

“under the common law an unincorporated association not being a legal persona, cannot as a general rule, sue or be sued in its name apart from the individual members whose names have to be cited in the summons. A universitas on the other hand has the capacity apart from the individual’s forming it, to acquire rights and incur obligations. The position is that a body that has no constitution is not a universitas for it is the constitution that determines whether an association is or is not a universitas”

I Maja also discussed common law universitas at p 49 of his textbook Law of Contract.

“The term universitas usually refers to common law voluntary organisations such as churches, 	clubs, co-operative societies etc. The power of a universitas to contract is found in their constitution 	and charter.”

In Christian Faith Tabenacle v Sparrows Nest Ministries 2009 (2) 242 15 (H) the court summarised the contractual capacity of a church as follows: -

‘The locus standi of a voluntary associate derives from the provisions of its charter or constitution, either expressly or impliedly. For the power to sue to be implied, it must be incidental to the express powers as being requisite for the due carrying out of the express objects of the association. The two principal characteristics of the capacity of a universitas to sue are perpetual succession viz continued existence or identity of the association despite changes in its membership, and the capacity to acquire rights and incur obligations independent of its members in particular the capacity to own property. Where the constitution of a church shows that the membership of the church is open to all persons meeting the prescribed spiritual qualification and that the composition of its executive body is subject to change under specified circumstances, thus clearly demonstrates the separate existence or identity of the church not withstanding changes in its leadership or general membership.’”

It is clear from the above discussion of the law that the 1st applicant is not a common law universitas because it did not adduce any evidence as to how and when the 1st applicant was constituted into a common law universitas.

The matter however does not end there in as far as the first applicant is concerned. There is evidence before me in the form of a registered trust deed that the first applicant is a trust. Instead of curing a defect in applicant’s founding papers, the answering affidavit created a new complication in applicant’s case. The natural consequence of the production of the Trust Deed is that the first applicant proved that it is not a legal person. By virtue of being a trust, the applicant lacks legal personality and cannot associate or have membership of an association. In fact, it cannot enter into a contract for the formation of a common law universitas. It also lacks capacity to act and thus cannot purport to act on behalf of other persons.

A trust is a legal institution sui generis which exists where the founder has handed over or is bound to handover to a trustee the control of property which is to be administered and disposed of for the benefit of beneficiaries identified in the trust. It is an arrangement whereby a person (a trustee) holds property as its nominal owner for the good of one or more beneficiaries. MALABA J,as he then was, gave a useful insight into trusts in the case of Kanonhuwa v Shannon & Anor 1998(1) ZLR 78 (H) as follows at page 81D-G: -

“A trust is a fiduciary relationship which has to be found to exist in the wide and narrow sense. It has been found to be in existence in a wide sense whenever one person transfers property into the name of another who is bound to hold or manage it on behalf of another person and not for his own benefit; Honore South African Law of Trusts 4 ed p 2. J C Shepherd The law of Fiduciaries (Toronto 1981) writes at p 21:

‘There are three traditional classifications of fiduciaries. From the law of trusts, we have a class which we will call here property-holders, that is, those who hold, or manage property on behalf of another.’

In the strict sense or narrow sense, a trust exists-

‘When the creator of the trust, whom we will call the founder, has handed over or is bound to hand over to another the control of property which or proceeds of which it to be administered or disposed of by the other (the trustee or administrator) for the benefit of some other person other than the trustee as the beneficiary, or for some impersonal object….’”

The first applicant therefore lacks legal personality because it is a trust. It cannot be a party to legal proceedings. It thus lacks the capacity to litigate generally.

Locus standi to institute these proceedings

In Makarudze & Anor v Bungu & Ors 2015 (1) ZLR 15 (H) the court pointed out that locus standi in judicio refers to ones right, ability or capacity to bring legal proceedings in a court of law. One must justify such right by showing that one has a direct and substantial interest in the outcome of the litigation.

Promise Mkwananzi sought to establish the 1st applicant’s locus standi in the following terms: -

“Locus standi

9.	The first applicant is a membership based organisation which represents workers in the 			informal sector. It has a membership base in excess of twenty thousand people

10.	its members represent the poorest rung of society. These include vegetable vendors and 			persons who sell various menial commodities including airtime. They include cross border 		traders, artisanal miners, commuter omnibus drivers, conductors, owners, entrepreneurs 			in home industry such as Epworth Home Industries, Siya So in Mbare, Glen View 7

Furniture Complex among other examples.

11.	Applicant is arguably one of the biggest organisations representing the interests of various

persons working in the informal sector in Zimbabwe.”

He averred, further, that the first applicant is arguable one of the biggest organisations representing the interests of the various persons working in the informal sector, women in the informal sector, street traders, community based traders, domestic workers, hairdressers and small scale farmers. The averments are clearly misplaced because the first applicant is not a voluntary organisation. It cannot impose itself on anyone and claim to be their representative. Only organisations like trade unions whose membership is made compulsory by an Act of Parliament can represent everyone whether they like it or not e.g. trade unions registered in terms of the Labour Act [Chapter 29:01]. Applicant could not and cannot arrogate to itself the right to speak for everyone. It lacks locus standi to institute these proceedings on behalf of other people. It has to submit proof that all the people it purports to represent volunteered to be its members.

I now have to consider whether the first applicant, being a trust, had the locus standi to institute the proceedings now before me. Indeed, situations arise when the interests of a trust may be at stake and litigation is necessary. The procedure was settled by the Supreme court in the case of Veritas v Zimbabwe Electoral Commission SC 103/2020 in paragraphs 19-21 of the cyclostyled judgment.

“THE NATURE OF A TRUST

A very pertinent passage on trusts is found in the book Herbstein & Van Winsen, Civil Practice of the High Courts of South Africa by the learned authors Cilliers, Loots & Nel to the following effect:

‘A trust is not a legal persona, but a legal institution sui generis. Therefore, it must be sued in the name of the trustee or trustees. However, when the trust itself has been cited, the courts have allowed the correction of the citation. Unless one of the trustees is authorized to act by the remaining trustee or trustees, all the trustees must be joined in suing, and all must be joined when an action is instituted against a trust. The trustee should be cited in their representative capacities.”

Within this jurisdiction the issue of whether or not a trust is a person has received attention and there is a plethora of authority on the subject. In Crundall Bros (Pvt) Ltd v Lazarus NO & Anor 1990 (1) ZLR (H), at 298E the court stated:

‘I can see no reason why a trust should be regarded as a ‘person’ for the purposes of the Regulations, when it is not regarded as a ‘person’ for other purposes.’

This principle was confirmed by SMITH J in WILSA & Ors v Mandaza & Ors 2003(1) ZLR (H), at 505-6 wherein is stated the following:

‘Mr Nherere took the point, in limine, that WLSA, being a trust is not a corporate body and therefore cannot appear as a party. That contention is legally sound. In Commissioner for Inland Revenue v MacNeillie’s Estate 1961(3) SA 833 (A) at 840F-H, Steyn CJ said:

‘Like a deceased estate, a trust, if it is to be clothed with juristic personality, would be a persona or legal entity consisting of an aggregate of assets and liabilities. Neither our authorities nor our courts have recognized it as such a persona or entity. The Estate Duty Act, like the Income Tax Act, 31 of 1941, does not define ‘person’. The Statutory definition in sec. 2(x) of the Interpretation Act, 33 of 1957, does not mention a trust or any category of persons which would include a trust. It is trite law that the assets and liabilities in a trust vest in the trustee. The introduction of another persona consisting of those assets and liabilities for the purposes of imposition and collection of a tax, when there is a trustee ready to hand, would be an extraordinary measure which would call for some adjustment, the nature of which is by no means obvious, and of which there is no trace in the Act, between the legal position of such a persona and of the trustee.’

That statement of the law was confirmed in Crundall Bros (Pvt) Ltd v Lazarus NO & Anor 1991(2) ZLR 125(S) where at 128F, it was said:

‘A trust is not a person. The trustee is the person to be considered for the purposes of the Regulations”.”

Herbstein & Van Winsen also states:

‘The fact that one trustee has been authorized by the remaining trustees to institute action on behalf of the trust does not necessarily confer locus standi on that trustee. The trustees must act nomine officii and cannot act in their private capacities. Beneficiaries cannot act independently of trustees against someone other than the trustee in legal proceedings relating to trust property.’

The passage quoted above is in sync with our law. In Chiite & 7 Others v Trustees, Leonard Cheshire Homes Zimbabwe Central Trust CCZ 10/17, MALABA CJ made the following observation regarding the citation of trustees:

‘A proper reading of the provisions of r 8A of the High Court Rules establishes that it is not a requirement for the names of the trustees to be listed when they bring an action on behalf of the Trust. The only place where the issue of the listing of the names of the trustees when an action has been instituted on behalf of the Trust is where a defendant to a suit by the Trustees has requested from the Trust the names and addresses of the individual trustees. This would be in line with r 8A of the High Court Rules, 1971.”

Several principles emerge from the discussion of the law above. The applicant has no locus standi to bring these proceedings in its name. Only its trustees could do so in the interests of the trust. At the time of writing this judgment, the erroneous citation of the applicant as a party remains fatal to the applicant’s case because the no amendment was effected. A trust, being a legal institution sui generis cannot claim to be a common law universitas because that is inconsistent with its sui generis character. Although Promise Mkwanazi appears ex facie in the trust deed as donor/trustee of the applicant, that does not cure the defect because his name does not appear in the heading. In any event it must be clear from the citation that all the trustees are involved. In addition to that the averments by Promise Mkwananzi in the 1st applicant’s founding affidavit are very misleading because they cannot possibly relate to a trust. A trust is not a membership organisation. In any event the trust deed which created the applicant defined the trustees’ powers to litigate in clause 6 (v) as follows: -

“to take action in a court of law for the recovery of any amounts due to the trust or to compel the 	fulfilment of obligations in its favour and to defend any proceedings that may be instituted against 	the trust.”

There is therefore no way Promise Mkwananzi could have purported to be representing all persons in the informal sector as that would be ultra vires the trust deed.

The 1st applicant alleged infringement of fundamental rights and freedoms entrenched in the Bill of Rights as the basis of this application. In argument Mr Muchadehama stated that the applicant was before the court in terms of s 85 of the Constitution. I quote s 85 of the constitution below: -

“85 Enforcement of fundamental human rights and freedoms

(1) 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.”

What appears to have been lost to the applicant and counsel is that the applicant is not a legal person with the capacity to act in court even in its own interests, let alone in the interests of another or other persons or interest groups.

Later, in argument, Mr Muchadehama conceded that the applicant had failed to prove the membership of the persons it purported to represent. He then fell back on s 85 (1) of the Constitution. Unfortunately, still, the applicant is not a legal person. It cannot be the bearer of rights, duties and capacities

The second applicant created problems for himself by making his application parasitical to the 1st applicant’s application. In the founding affidavit submitted on behalf of the first applicant, Promise Mkwananzi stated that the second applicant’s application was founded by the same affidavit and that he had authority of the second applicant to depose to the affidavit on his behalf. The 2nd applicant confirmed that in a brief supporting affidavit. The second applicant, therefore, did not do much save to identify worth the first applicant’s application. He did not identify the fundamental right or freedom infringed by SI 10/2021. He also failed to lay the factual basis of the alleged infringement. See Ignatious Chombo v Parliament of Zimbabwe SC5/13. In Tsvangirai v Registrar General & Ors 2002(1) ZLR 268(S) at pages 25G-27A the court discussed locus standi deriving from s 85(1) (a) as follows: -

“…the bald, unsubstantiated allegation will not satisfy the requirements of the section. The applicant must aver in his founding affidavit, facts, which if proved would establish that a fundamental right enshrined in the declaration of Rights has been contravened in respect of himself.”

The second applicant was ought to have realised that the demise of host’s papers would spell disaster for him as a parasite. I can do no better than quote chitapi j in the case of MDC- Alliance and Anor v Douglas Togaraseyi Mwonzora & Ors HH346/20

‘The next issue is to determine where the failure by the first applicant to establish its capacity to sue and be sued places the second and third applicants. The applicants did not file separate applications. They simply filed affidavits in support of the case sought to be established by the first applicant. They are before the court as appendages of the first applicant. If the first applicant’s case is thrown out on the basis of lack of capacity to sue, then the second and third applicants’ suffer the same fate. Had they filed applications independently of the first applicant, their applications would be properly before the court.”

In the result both applicants failed to establish their locus standi in terms of s 85 of the Constitution.

Jurisdiction

The respondent objected to the jurisdiction of the court to deal with the application. The applicant seeks, in the interim, suspension of S I 10/2020. During argument Mr Muchadehama conceded that all the alternative reliefs were superfluous since they would all naturally flow from an interim order suspending the operation of the Statutory Instrument, if granted. I therefore struck off the alternative reliefs from the draft provisional order at counsel’s instance. The final order sought is a declarator that Statutory Instrument 10/2021 is unconstitutional and violates s 3 (1) (a) (b) and (c), 3 (2) (f) and 134 of the Constitution. The allegation is that the promulgation of SI 10/2021 was flawed because the statutory instrument was not made in terms of the enabling Act of Parliament but in terms of s 8 (1) of previous regulations, it was not laid before Parliament, the restrictions and measures contained in it are whimsical, irrational and arbitrary because their conception was not preceded by consultations, it offends against the founding values of the Constitution., it has not been scrutinised by elected represent. For those reasons the Statutory Instrument is constitutionally invalid.

Section 134 of the Constitution provides that delegated power to make statutory instruments must meet the following requirements: -

It must be exercised within the scope of and for the purposes laid out in the enabling Act;

Parliament’s primary law-making power must not be delegated;

statutory instruments must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights;

statutory instruments must be consistent with the Act of Parliament under which they are made;

statutory instruments do not have the force of law unless they have been published in the Gazette; and statutory instruments must be laid before the National Assembly in accordance with its Standing Orders and submitted to the Parliamentary Legal Committee for scrutiny

Section 134 should be read in isolation but with s 152 of the Constitution. Section 152 of the Constitution provides as follows: -

“152 Parliamentary Legal Committee

(1) As soon as practicable after the beginning of each session of Parliament, the Committee on Standing Rules and Orders must appoint a committee to be known as the Parliamentary Legal Committee, consisting of at least three Members of Parliament who are not Ministers or Deputy Ministers.

(2) A majority of the members of the Parliamentary Legal Committee must be qualified to practise in Zimbabwe as legal practitioners unless there are insufficient such persons eligible to be appointed to the Committee.

(3) The Parliamentary Legal Committee must examine—

(a) every Bill, other than a Constitutional Bill, before it receives its final vote in the Senate or the National Assembly;

(b) any Bill which has been amended after being examined by the Committee, before the Bill receives its final vote in the Senate or the National Assembly;

(c) every statutory instrument published in the Gazette;

(d) every draft Bill which has been referred to the Committee by a Vice-President or a Minister; and

(e) every draft statutory instrument which has been referred to the Committee by the authority empowered to make the instrument;

and must report to Parliament or to the Vice-President, Minister or authority, as the case may be, whether it considers any provision in the Bill, statutory instrument or draft contravenes or, if enacted, would contravene any provision of this Constitution.

(4) After examining any statutory instrument or draft statutory instrument the Parliamentary Legal Committee must report to Parliament or to the Vice-President, Minister or authority concerned whether it considers any provision in the instrument is or, if enacted, would be ultra vires the enabling Act of Parliament.

(5) ………….

The Constitution gives the legislative function to Parliament. The Court also imposes the obligation on Parliament to ensure that all legislation is compliant with the constitution and the enabling Act of Parliament. See ss 116 1nd 117 of the Constitution.

“LEGISLATIVE AUTHORITY

116 The Legislature

The Legislature of Zimbabwe consists of Parliament and the President acting in accordance with this Chapter.

117 Nature and extent of legislative authority

(1) The legislative authority of Zimbabwe is derived from the people and is vested in and exercised in accordance with this Constitution by the Legislature.

(2) The legislative authority confers on the Legislature the power—

(a) to amend this Constitution in accordance with section 328;

(b) to make laws for the peace, order and good governance of Zimbabwe; and

(c) to confer subordinate legislative powers upon another body or authority in accordance with section 134.”

Parliament thus has the oversight role to ensure that delegated legislation is valid and consistent with the Constitution. In other words, that Parliament has the mechanism to deal with the complains raised by the applicant and has the obligation to mero motu to examine all Statutory Instruments as soon as they are gazetted and the law-making process was therefore flawed. Parliament is therefore an interested party in these proceedings. This matter cannot be resolved effectively without the input of Parliament. The fact that Parliament delegated its legislative function to the respondent does not absolve the Parliament of its obligations in terms of the Constitution. The applicant omitted to cite Parliament, yet made allegations against it. The allegations made against Parliament cannot be resolved without its involvement. I abstained from exercising my discretion to order joinder of Parliament because I brought the misjoinder of Parliament to the attention of the applicants’ counsel who argued that such joinder was not necessary. The essence of the complaints is therefore that Parliament failed to discharge its constitutional obligations. Although Parliament’s failure to fulfil a constitutional obligation appears to be within the exclusive jurisdiction of the Constitutional Court (see 167 (2) (d), there appears to be concurrent jurisdiction. However, the implementation of the declarator of invalidity is, beyond doubt, within the exclusive jurisdiction of the Constitutional Court. In my view the reliefs sought both in the interim and in the draft final order have a huge bearing on the delicate issue of separation of powers and cannot be sought from this court. I could have competently dealt with issues arising from the alleged flawed legislative processes, that the Minister acted ultra vires the enabling act but the issues raised by the applicants which suggest that the legislature enacted bad law encroach perilously into the sensitive area of separation of powers. It is common cause that COVID-19 is causing havoc in the country. It is also common cause that the Minister of Health and Child Care has a constitutional duty to legislate in the event that such a health hazard occurs. The court is not an elected representative of the people. It is up to the elected representatives in Parliament or their delegates to write the law and to be held accountable by their constituencies. A court may not review a law simply because it is unpopular with a section of the citizenry. The law may be unpopular to the second applicant but there is no way of knowing what the other millions think. In Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC), the Constitutional Court of South Africa held that the exclusive jurisdiction in relation to the President’s or Parliament’s failure to fulfil a constitutional obligation is invoked where the dispute concerns questions relating to the sensitive areas of separation of powers. The closer the issue is to the sensitive area of separation of powers, the higher the likelihood that it falls within the exclusive jurisdiction w provided for in s 167(2) d of the constitution. In my view the argument that the Minister made bad law or that the President should not have appointed the Vice President to administer a Ministry or the Public Health are issues perilously to close to the sensitive area of separation of powers and should be adjudicated upon by the Constitutional Court. In any event the President would also have to be a party for a proper adjudication on that because his conduct is also under attack. I am aware that the matter came before the Constitutional court but was not determined with finality because in that case the Vice President had not been pronounced Minister. I will not delve into that because as already indicated the preliminary issues are dispositive of this case.

The Legislature comprising of Parliament and the President has the constitutional obligation to legislate for the progressive realisation of social and economic rights. The failure to fulfil that constitutional obligation is under attack by the applicants who alleged that the promulgation was not born out of consultations, did not take into account inevitable economic loss and failed to legislate for safety nets. All those arguments are, in my view within the exclusive jurisdiction of the Constitutional Court.

While seeking a declarator of invalidity. the applicant somehow, omitted, in its founding papers and argument, to implicate the relevant provision of the Constitution that empowers this court to grant both the declarator of invalidity and suspension of the statutory instrument. I will therefore assume that the applicant was inviting this court to exercise its jurisdiction in terms of s 175 of the Constitution. Section 175 (1) sets out this Court’s powers and the applicable remedies ss 175 (2) and 175 (6) of the Constitution.

“175 Powers of courts in constitutional matters

(1) Where a court makes an order concerning the constitutional invalidity of any law or any conduct of the President or Parliament, the order has no force unless it is confirmed by the Constitutional Court.

(2) A court which makes an order of constitutional invalidity referred to in subsection (1) may grant a temporary interdict or other temporary relief to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of the law or conduct concerned.

(3) Any person with a sufficient interest may appeal, or apply, directly to the Constitutional Court to con-firm or vary an order concerning constitutional validity by a court in terms of subsection (1).

(4) ………….

(5) …………...

(6) When deciding a constitutional matter within its jurisdiction a court may—

(a) declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency;

(b) make any order that is just and equitable, including an order limiting the retrospective effect of the declaration of invalidity and an order suspending conditionally or unconditionally the declaration of invalidity for any period to allow the competent authority to correct the defect.”

For the above reasons and for the stronger reason discussed below that this court cannot competently grant both the interim and final reliefs, I am convinced that the constitutional issues arising in this application require the exclusive jurisdiction of the Constitutional Court.

Incompetent relief

There is a plethora of case authority which states that in a provisional order, the interim relief must not be final in nature. The relief sought, being the suspension of SI 10/2021 is capable of having final application at applicants’ pleasure. The regulations have a life of thirty days.  As soon as their enforcement has been suspended it is up to the applicant to set down the provisional order for confirmation or discharge barring respondents’ right to anticipate the return date. The respondent is a public official with numerous functions and common experience is that the State or its officials rarely follow up on provisional orders. This Court can take judicial notice of the fact that there are provisional orders which have remained extant for long periods, even in excess of twenty years. The situation is compounded by the removal from the High Court rules of the provision relating to superannuation of judgments. The current form template of our provisional order as set out in the rules is easily susceptible to manipulation. It is absurd that the Court grants an order intending it to be temporary but the life of that order is not up to the Court but left to the whims of the person granted the order. He/she/it can leave the order to operate ad infinitum. It may be necessary to revert to the old rule nisi, where the return date is determined and set by the Court which grants interim relief.

To the extent explained above the interim relief is incompetent. Mr Muchadehama submitted that there is no law which disallows this Court to issue a final order in an urgent application. I agree because a spoliation order immediately comes to mind. In any event the proviso to rule 231 of the High Court rules contemplate an urgent court application with the leave of a judge.	However, the argument does not help the applicant. The applicant seeks a provisional order and not a final order. It is inappropriate to disguise a final relief as an interim relief. It is an abuse of process to disguise a final relief as an interim relief well knowing that as soon as the interim relief is granted there will be no incentive to come back to Court. The applicant argued in the alternative. He submitted that even if the suspension of SI 10/20121 is granted as an interim relief, the applicants will still come back for the declarator of invalidity. That argument is clearly fallacious because as soon as the regulations expire their invalidity will become moot. In any event the applicant will not risk losing the comfort given by the indefinite suspension of the regulations because if it sets the matter down there is no guarantee that it will succeed.

The interim relief is also not competent for other reasons. In terms of s 175(2) it is only competent for this court to issue an interim relief or interdict after it has already made the declarator of invalidity. In other words, the declarator must precede the interim relief. The manner in which the provisional order is couched is a complete reversal of the correct procedure by putting the cart before the horse. Despite the power of this Court to issue a declarator of constitutional invalidity, s 175 (1) of the Constitution is unambiguous that the declarator does not take effect unless confirmed by the Constitutional Court. The jurisprudence coming out of the Constitutional Court has established a clear trend of suspending declarators of invalidity for a specified period to allow the Legislature to rectify the defect or redress the flawed process. The reason is to avoid a situation where there is a vacuum in the law. See the case of Democratic Assembly for Restoration and Empowerment, Stendrick Zvorwadza, Combined Harare Residents Association and National Election Reform Agenda v Newbert Saunyama N. O. Commissioner General of Police, The Minister of Home Affairs and The Attorney General of Zimbabwe CCZ9/18

It could not have been the intention the drafters of the Constitution to give this Court the leeway to circumvent s 175 (1) or second guess the decision of the Constitutional Court through an interim relief whether finite or indefinite. In my view an order of this court suspending a piece of legislation whether directly or by suspending in its enforcement as prayed for by the applicants has the effect of circumventing s 175(1 of the Constitution and the exclusive jurisdiction of the Constitutional court to decide whether and when a declarator of constitutional invalidity takes effect.

Lastly the interim relief is incompetent for yet another reason. It is too wide. The respondent submitted irrefutable evidence that the promulgation of the regulations was necessitated by the spike in COVID-19 infections and deaths. The applicant says the decision is not based on any scientific proof. It therefore wants the lockdown completely reversed albert it termed it suspension. The applicant has not infused in its draft order how it is going to ensure that it’s so called members at the border posts, Glen View home industry, vendors in Mbare will comply with WHO guidelines. A representative body must have the capacity to reign in its membership in other words the order sought in its present would be irrational and violate other people’s rights to feels associate, good health and life.

This application is so flawed that it deserves to be dismissed. The preliminary issues which I have decided against have the effect of disposing of the matter. I will not delve into the merits. In the process of dealing with the preliminary issues I may have strayed into the merits to the extent that that was unavoidable but I dispose of this matter on the preliminary issues only. Courts are slow to grant make an award of costs in constitutional litigation in view of the jurisprudential benefits deriving therefrom. See Handbook on Constitutional & Electoral Litigation in Zimbabwe published by the Law Society of Zimbabwe at page 68

“The primary consideration in constitutional litigation is whether a costs order would hinder or promote the advancement of constitutional justice, hence regard is paid to the nature of the issues before the court. From this standpoint, the importance of the constitutional issue raised can be a paramount consideration in awarding costs.”

See also Mudzuru & Anor v Minister of Justice, Legal & Parliamentary Affairs N.O & Ors CCZ 2/15.

Our constitutional jurisprudence is still in its infancy. However, such litigation to benefit constitutional jurisprudence, it must be well thought out, adequately researched, bona fide and thoroughly prepared.

In the result I order that:

The application be and is hereby dismissed with costs.

Mbidzo Muchadehama and Makoni, applicants’ legal practitioners

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