The Supreme Court has quashed a High Court judgment barring Zanu-PF from “forcing pupils and teachers to attend political rallies” saying the lower court had erred.
Chief Justice Luke Malaba sitting with Justices Paddington Garwe and Ben Hlatshwayo, set aside the High Court decision and slapped the Amalgamated Rural Teachers’ Union of Zimbabwe (ARTUZ) with an order for costs.
The High Court had also interdicted Zanu-PF from forcing or asking pupils and teachers to attend political rallies.
The ruling party was also barred from using school property, including structures and buses for political activities following an application by ARTUZ.
However, the Supreme Court granted Zanu-PF’s appeal after convincing arguments by Advocate Lewis Uriri, who was being instructed by Mr Nickiel Mushangwe of Mushangwe & Partners.
The lawyers argued that the High Court issued an order against Zanu-PF without proof of any of the alleged infractions.
The operative part of the Supreme Court order reads:
“Whereupon after reading documents filed of record and hearing counsel, it is ordered that:
1 The appeal hereby succeeds with costs
2 The judgment of the court a quo is set aside and substituted with the following order:
“The application is dismissed with costs”.
The court of appeal found that ARTUZ unlawfully sought and obtained a final order under the guise of an interim order.
It also came out of the proceedings that the High Court misdirected itself when it granted the order in favour of ARTUZ.
The erroneous High Court order was granted despite opposing papers filed by Zanu-PF challenging the union to prove that Zanu-PF was indeed guilty of such violations.
In its grounds of appeal, Zanu-PF argued that the judge erred by granting the order based on unsubstantiated allegations against Zanu-PF.
“The learned judge in the court a quo misdirected himself by granting the interdict against the appellant in circumstances where there was no evidence linking same with the alleged infractions other than an erroneous construction that conflates the party and the State,” reads the notice ofappeal.
During the High Court proceedings, Mr Mushangwe opposed the application, saying there was not a shred of evidence that Zanu-PF commandeered school buses.
He also argued that the teachers’ union failed to prove that teachers and pupils were forced by the ruling party to attend the rallies.
Mr Mushangwe argued that the union was confusing the Government and Zanu-PF, which is a mere political outfit, in framing the allegations.
“The applicant did not establish a well-grounded apprehension of irreparable harm or injury actually committed,” he said.
“There is no single piece of document, evidence or sworn testimony that connects the first respondent with the attendance of children at its rallies.
“What appears seems to be a tenuous attempt to conflate the first respondent (Zanu-PF), a political party, which also happens to be the ruling party and the Government, which is a separate entity that operates educational matters through the second respondent (Minister of Primary and Secondary Education).”
The court also relied on a human rights report which was more than a year old, which was compiled during the tenure of former President Robert Mugabe.
In the new dispensation, the lawyer argued, all the allegations levelled against Zanu-PF were unsubstantiated and baseless.
“However, in this matter the facts are distinguishable as this is a new dispensation where there is a new way of doing things,” said the lawyer.
“What are being relied on are events that happened over a year ago when the former President of this country was in office. There is now a new Head of State who has zero tolerance for hate speech and has arguably made the country a safer and more tolerant society during election time.”
Zanu-PF argued that the urgent chamber application granted by the High Court was fatally defective.