By Court Reporter | In a historic case, the Supreme Court Of Zimbabwe has ruled over the abuse of women involving the late Nigerian preacher, TB Joshua, that the investigation on his mentee, Walter Magaya must go ahead.
TB Joshua was in 2016 recorded while trying to subvert the court of justice on one of the Magaya victims in the verified-case of Zimbabwean woman, Angela Charakupa, and in Nigeria he himself had up to the time of his death, piles of children and older women who are complainants against him.
A long list of other women are complainants in cases reported on ZimEye since the unexplained sudden death of one of Magaya’s girlfriends in 2014, Chipo Chakanyuka. Following the latest three cases, Walter Magaya had taken the Gender Commission Of Zimbabwe to the Supreme Court.
On the 23rd August 2019, the Commission issued General Notice 1444 of 2019 on Walter Magaya which it published in the Government Gazette. The General Notice authorized the respondent to conduct an investigation into complaints of sexual abuse generally made against the appellant.
In response, on 3 September 2019, Magaya filed an application with the High Court for a review of the decision by the respondent to launch the investigation pursuant to the General Notice. He followed this up with an urgent chamber application in which he sought by way of interim relief an interdict against the conduct of the investigation by the respondent.
On 22 October 2019, the High Court dismissed the urgent chamber application with costs.
Magaya then appealed to the Supreme Court against that judgment.
He contended that he had good prospects of succeeding on the review and that his rights from the review process would be rendered nugatory if the investigations were not halted pending the review. His stance was that neither the Constitution nor the Act afforded the Commission the authority to conduct the contemplated investigation. To that extent, any investigation by the Commission constituted an illegality. He contended further that what the Commission intended from the published notice was outside its statutory mandate and as a result, Magaya was entitled to the protection of the law which he was seeking from the court.
But ruling against him, Supreme Court justices, Gowora, Patel and Uchena stated as follows:
I have read the lead judgment of my learned sister Gowora JA and consider it necessary to briefly analyse and address the nature of the relief sought by the appellant in the proceedings a quo.
As regards this aspect, Gowora JA quite correctly observes that in the review application the principal relief sought is that the decision of the Commission in issuing the General Notice be set aside. Again, the provisional order sought in the urgent chamber application simply prays for the intended investigation of the appellant by the Commission in terms of the General Notice to be stayed. It is only in the final order sought that the appellant prays that the General Notice be declared null and void and of no force or effect. Consequently, my learned sister concludes that the appellant cannot seek to police lawful conduct through an interdict, given that the validity of the General Notice, which is presumed to be valid until it is set aside, has yet to be determined. In keeping with the case authorities cited and relied upon by Gowora JA, I fully agree that an interdict cannot ordinarily be granted against conduct that is prima facie lawful.
Regrettably for the appellant, he has tactically miscalculated the nature of the relief that he sought in the urgent chamber application before the court a quo. He has also failed to correlate and align the draft order in the chamber application with the relief sought in the application for review pending before the High Court.
In the final analysis, the applicant has failed to take into account the formidable hurdle presented by the rule that an interdict cannot in principle be granted against conduct that is prima facie lawful and carried out in terms of an extant statutory instrument that is presumed to be valid until it is duly set aside by a competent court that is properly seized with the question of its validity. In any case, as a matter of procedural correctness, the validity of the impugned General Notice could not properly have been an issue before the court a quo until the return day had arrived. By the same token, it cannot be properly ventilated before and determined by this Court on appeal against the judgment a quo. For these essentially technical reasons, I would agree with Gowora JA that the present appeal should not be allowed.