Moyo v Minister of Justice, Legal and Parliamentary Affairs N.O and 5 Others (3 of 2021) [2021] ZWHHC 3 (3 February 2021)

1 HH 28-21 HC 47/21 ALAN MOYO versus MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS N. O and ZIMBABWE PRISONS AND CORRECTIONAL SERVICE and COMMISSIONER-GENERAL ZIMBABWE PRISONS AND CORRECTIONAL SERVICE N. O and CHAIRPERSON, ZIMBABWE PRISONS AND CORRECTIONAL SERVICE COMMISSION and ZIMBABWE PRISONS AND CORRECTIONAL SERVICE COMMISSION and MINISTER OF HEALTH AND CHILD CARE HIGH COURT OF ZIMBABWE TAGU J HARARE 26 January and 3 February 2021 Urgent Chamber Application G. Mtisi with N. Tonhodzayi, for applicant L. T. Muradzikwa, for respondents TAGU J: This is an urgent chamber application for an interdict and declatatory relief in terms of Order 32 Rule 241 as read with Section 85 of the Constitution of Zimbabwe. In concise terms this is an urgent chamber application for an order compelling the first respondent to issue written policy directives that ensure compliance with the COVID-19 preventative measures known as Public Health (COVID-19 Prevention, containment and Treatment orders) in compliance with section 229 (4) of the Constitution of Zimbabwe which responsibility affects the affairs of the Prisons and Correctional service. THE FACTUAL BACKGROUND On 31 December 2019, a novel pneumonia of unknown cause was detected in Wuhan, China. This virus, now known as the COVID-19 Coronavirus, a highly communicable and infectious disease, was declared to be Public Health Emergency of international Concern on 30 January 2020 by the World Health Organization. In 2020 the President of the Republic of Zimbabwe declared a state of national disaster and announced measures to combat the spread of HH 28-21 HC 47/21 COVID-19. The Minister of Health also issued regulations implementing measures where movement would be severely restricted through “a lockdown”. This ranged from the S. I 77of 2020, S. I 93 of 2020, S. I 110 of 2020, S. I 174 of 2020. This January 2021 the Minister also introduced S. I 10 of 2021 and S. I 13 of 2021. These instruments work together for the prevention, containment and treatment of COVID-19. The lockdown statement by the Minister of Health and the Vice President was to the effect that COVID-19 preventative measures will be strictly enforced that is to say correct wearing of masks, social distancing, hand sanitization and temperature checks. The applicant in his founding affidavit submitted that he is currently detained at Harare Remand Prison in Cell B2 Section D from the time he was detained in custody on the 9th of DECEMBER 2020 by the Harare Magistrates Court. His cell has a carrying capacity of 30 inmates. However, it has 70 persons despite the Government and the World Health Organization’s Recommendations to keep physical distance of at least a meter apart from another person. He complaints that this prison environment is harmful to his health and well-being and that of his co-inmates in contravention of section 73 (1) (a) of the Constitution. They are not provided with masks and those that have them cannot wash them due to shortages of water and soaps. Further, there is no hand sanitization and screening being done since they mingle with Prison Officers who come from different locations on a daily basis using public transport. He said there was an inmate who came from court on 2 January 2021 without being tested, screened or isolated and was transported to prison in an overcrowded prison transport and was allowed to mingle with him and other inmates in cell B2 Section D. After a week he had a severe cough, high temperature, fever and loss of appetite which are symptoms of COVID-19. He was isolated on 9 January when his situation deteriorated. Clearly, he said among other things that some fundamental Constitutional, human rights and dignity are being violated. The applicant, therefore brought this urgent chamber application seeking the following relief- “IT IS ORDERED THAT 1. 2. This application is heard as one of urgency, the ordinary requirements of the Rules of this Court in respect of notice, service and time periods being dispensed with, and the Applicant’s departure therefrom is condoned. It is declared that Applicant and all prisoners detained in all prisons including Harare Remand Prison are entitled to:- 2.1 2.2 The right to human dignity. The right to an environment that is not harmful to health and well being. HH 28-21 HC 47/21 The right to equal protection of the law. The right not to be treated in an inhuman manner. The right to health care services. 2.3 2.4 2.5 It is declared that the Public Health (COVID-19 Preventation, containment, and Treatment) orders apply with equal force to all prisons including Harare Remand Prison. It is declared that failure to ensure that there is implementation and compliance with COVID-19 measures in prisons including Harare Remand Prison by 1st Respondent is a violation of the rights in paragraph 2 of this order. It is declared that 1st Respondent has failed to implement COVID-19 measures in prisons by failing to give written directives that ensured that there is compliance with COVID-19 orders in prisons, in particular the Harare Remand Prison. It is declared that the 1st respondent is required to give directives in terms of Section 229 (4) of the Constitution which ensure compliance with COVID-19 orders in Prisons including Harare Remand Prisons. 1st & 5th Respondent are directed to give a report on the steps to be taken to ensure compliance and implementation of COVID-19 orders within 24 hours of this order to and such report shall be given to Applicant’s Legal Practitioners. 1st respondent is directed to issue written directives on the measures that shall be put in place to ensure compliance with COVID-19 orders within 48 hours of giving a report in terms of clause 7 of this order. 1st Respondent is directed to issue written directive that covers the following provisions:- 9.1 The Provision of face masks for prisoners both in detention and the incoming prisoners. The Provision of face masks for prison officers. The Provision for hand sanitization at the prisons entry for all persons that enters and exit the prisons. The Provision for temperature checks for all persons that enters and exit the Prisons. The Provision for adequate transportation which affords the minimum required physical distancing of prisoners that goes to and from court. Provision for transportation of prison officers from work to home and vice versa. Provision for the number of prisoners to be carried in the transportation vehicle. Provision for the decongestion of the Prison cells. Provision for the number of persons that must occupy a cell. Provision for social distancing in prison cells. Provision for the holding cell of incoming prisoners before allocation of prison cells. Provision for isolation and quarantine places for prisoners 9.12 The 3rd Respondent is directed to carry out the directives of the 1st respondent within 24 hours of receipt of those directives from 1st Respondent. 1st Respondent is directed to give the directives to the 3rd Respondent within five hours of issuing a report in terms of clause 7 of this order. The report in clause 7 of this order shall be given and served on Applicant’s Legal Practitioners. The 6th Respondent is directed to make the order in terms of Section 68 of the Public Health Act which expressly includes the Prisons whether Remand prisoners or not to be the public places for purposes of his Orders. Costs shall be borne by Respondents who oppose this application.” 9.2 9.3 9.4 9.5 9.6 9.7 9.8 9.9 9.10 9.11 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. HH 28-21 HC 47/21 The third respondent filed a Notice of Opposition on his behalf and on behalf of the first and second respondents in light of the fact that the matters to which this application relates are entirely within the area of responsibility of his office. The first, second and third respondents raised three objections. The first point in limine is that the matter is not urgent. The second point in limine is that the applicant’s founding affidavit is defective. The third point in limine is that the relief being sought is defective and incompetent. I will look at each point in limine first before dealing with the merits of the application. If I uphold the points in limine that is the end of the matter. In the event I find the points in limine to lack merit I will proceed to deal with the application on the merits. MATTER NOT URGENT The respondents’ contention is that the COVID-19 pandemic has been with us for a long time now dating back from March 2020. The possibility of COVID-19 entering prisons and spreading has always been there since that time but it has not been successful as measures to combat and restrict Covid-19 has been put in place. The Applicant has been in prison for a while now for over 40 days in remand and he never challenged the authorities. They said he never found it necessary to approach the courts for the relief he is seeking now. To them the urgency of the matter is self-created. In applicant’s own words he could have been infected on 2 January 2021 when the purported person from court exhibiting signs of Covid -19 joined them in their cell. Since then that did not frighten him yet he now thinks the matter is urgent. The truth is that notwithstanding the fact that covid-19 has been around for a while there has not been a spreading of the pandemic in the Zimbabwe Prison and Correctional Service (ZPCS). This is a result of the adequate measures the Minister and ZPCS took to contain the pandemic. In his written submission the applicant maintained that this matter is urgent on two legs. The first being that of assumed urgency given that this matter falls squarely on actions to protect life. Secondly, he argued that this matter cannot wait as this matter falls squarely within the ambit of the Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (H). HE further relied on the case of Document Support Centre (Private) Limited v Mapuvire HH 117-08 by MAKARAU J (as she then was) where her Ladyship stated the principle and test as follows: “Without attempting to classify the causes of action that are incapable of redress by way of urgent application, it appears to me that the nature of the cause of action and the relief sought are important considerations in granting or denying urgent applications. HH 28-21 HC 47/21 Some actions by their very nature demand urgent attention and the law appears to have recognized that position. Thus, actions to protect life and liberty of the individual or where the interests of minor children are at risk demand that the courts drop everything else and in appropriate cases, grant interim relief protecting the affected rights. The rationale of the courts acting swiftly where such interest are concerned in my view clear. Failure to act in these circumstances will result in the loss of life or the liberty of individuals or the infliction of irreversible physical or psychological harm on children.” It is not in doubt that the application is concerned with human life in prison communities. But the question to be asked is whether the application has been filed when the need to act arose. Given the narrative given by the respondents the urgency in this matter is not the one contemplated by the rules. It is clearly self-created. It is not as if the pandemic manifested itself when the inmate referred to by the applicant was admitted in prison. It has always been there at the time the applicant was admitted in Remand prison and he took no action until now. The applicant went into prison 40 days ago and was subjected to the conditions he is complaining about now but was not jolted into action. I there for uphold the first point in limine. APPLICANT’S FOUNDING AFFIDAVIT IS DEFECTIVE. The urgent application shows that it was filed on 4 January 2021 as the Registrar‘s issue stamp suggest. The founding affidavit was signed and commissioned on 15 January 2021, some 11 days after the application was filed. The respondents allege that this is a mystery as it cannot happen that way. They said an affidavit cannot be filed without first being signed and commissioned. Signing and commissioning of the affidavit comes first before filing at the court. To the respondents this supports the first point in limine that the matter is a classical case of self – created urgency. In light of the above the respondents pray that the matter should rest on this point alone irrespective of the explanation that will be given by the applicant. To them there is no application before the court. It’s a nullity. The applicant suggested that the correct position is that the application was filed on the 15th January 2021 and stamped by the Registrar on the 15th January 2021. He said 4 January 2021 that appears on the Registrar’s stamp is an honest error on the part of the Registrar who did not adjust the stamp when he was called to perform his duties. To him it obviously means that the stamp was last used on 4 January 2021 and because of the COVID-19 confusion he forgot to have his stamp adjusted on 15 January 2021. The error was later brought to the counsel for the applicant by the counsel for the respondent. HH 28-21 HC 47/21 On the face of it appears that the affidavit was signed and commissioned well after the matter had been filed. However, though there is no affidavit from the Registrar to confirm the explanation, the court will give the applicant the benefit of the doubt since it is possible that the stamp may not have been adjusted. This is so though the date when the affidavit was commissioned is not very clear. Be that as it may that does not mean the matter is urgent. RELIEF BEING SOUGHT IS DEFECTIVE AND INCOMPETENT. The respondent’s contention is that an urgent chamber application should be accompanied by a draft Provisional Order and an order for confirmation of the relief being sought on the return date. In the attached papers there is no order being prayed for in the interim and on the final. To them the draft order attached is in violation of the Rules of this Honourable Court. Order 32 Rule 247 (1) and (2) are clear. Once it is in contravention of the rules of this court there is no application that will be before the court. The applicant submitted that the respondents are wrong in law and in fact to assume that every urgent chamber application must have a Provisional order and a final order. In some case like spoliation applications a final order is granted on an urgent chamber application provided a final order has been proved on the merits. In my view there seems to be confusion on this aspect. According to CHITAPI J in Machaya and Ors v The State and Anor HH 442-19 a final order may be granted on an urgent chamber application. However, in Samukeliso Mabhena v Edward Mbangani HB 57/18 MATHONSI J (as he then was) disagreed with the applicant’s contention that there was nothing in the rules to preclude an applicant in an urgent application from seeking a final order. The learned judge referred to r 246 (2) which obliges the judge to grant the provisional order as sought or as varied if the papers establish a prima facie case. The learned judge further stated: “It is a well -established practice of this court that in an urgent application the court grants interim relief and not substantive or final relief. It does so because the rules do not call on applicant to prove its case but merely a prima facie case. in this regard, a practice has evolved wherein an urgent application is accompanied by a provisional order for the judge to consider granting interim relief. The substantive or final relief is then considered on the return date of the provisional order.” I am of the view that every urgent chamber application must have a final order and a provisional order which must be confirmed on the return date. In casu this is not an application for spoliation order. There is need for the confirmation of the provisional order on the return day. I HH 28-21 HC 47/21 agree with the respondents that the relief sought is incompetent. Even if I were to say the relief sought is competent this would not change the complexion of the matter because the application is not urgent anywhere. I will uphold the respondents’ point in limine in this regard. Having said the above, I will remove the application from the roll of urgent matters. IT IS ORDERED THAT 1. 2. The application is removed from the roll of urgent matters. There is no order as to costs. Musendekwa-Mtisi, applicant’s legal practitioners Civil Division of the Attorney-General’s Office, respondents’ legal practitioners.