MINISTER’S POWER TO BAN MARCHES CHALLENGED

MANZINI - The power of the Minister of Housing and Urban Development, Prince Simelane, which he used to ban local governments from issuing permits for gathering, is being challenged in court.

This is because the Trade Union Congress of Swaziland (TUCOSWA) has taken the Municipal Council of Manzini to court for refusing to grant it a permit to gather and march in Manzini today. The workers’ federation, which is represented by Human Rights Lawyer Thulani Maseko, from TR Maseko Attorneys, filed an urgent application at Manzini Magistrates Court yesterday afternoon. The first respondent is Manzini mayor, while the second respondent is the Municipal Council of Manzini. The third and fourth respondents are the minister of housing and Urban Development and national commissioner of police, respectively. The attorney general is the fifth respondent.

Oppose

In the notice of application, the federation asked the court to call upon the first and second respondents, together with any others who might choose to oppose its application, to show cause why their decision which was communicated to the applicant by letter dated February 4, 2022 refusing the federation to gather at Somhlolo National Park, Manzini today, should not be reviewed and/or corrected and set aside. Worth noting is that in its response (annexed) to the federation’s application, the municipality said: “Kindly be informed that following a directive from the Ministry of Housing and Urban Development to indefinitely suspend the issuance of permits for all processions within urban areas, dated October 21, 2021, council denied your application to assemble at the Somhlolo National Park and to utilise proposed routes for the procession.”

Again, the applicant applied that the court should declare that the decision of the first respondent, refusing it to gather at the Somhlolo National Park, to be unlawful, null and void and of no force or effect. They argued that this was because the minister allegedly had no power to order the suspension of filing of notices for gatherings and processions. It also applied that the fourth respondent (NATCOM) be ordered not to interfere with the peaceful gathering and procession of the applicant.

Proposed

In the application, the federation attached a founding affidavit of its Secretary General Mduduzi Gina, who is also the convenor of the proposed gathering and procession organised by the applicant. He alleged that on February 2, 2022, the applicant delivered a notice of a gathering to the offices of the second respondent in terms of Section 6 of the Public Order Act of 2017.
He submitted that the purpose of the notice was to notify the second respondent of the applicants’ intention for a gathering in Manzini on Wednesday February 9, 2022 (today). Gina also alleged that the applicant also served and delivered a letter to the Manzini Police Regional Commissioner, notifying them about the notice to deliver a petition. Thereafter, he submitted that through a letter dated February 4, 2022, the first respondent communicated to the applicant and refused to allow the gathering to proceed. He submitted that it was the applicant’s contention that this refusal was not only unreasonable but it was allegedly unlawful and had no force or effect. He alleged that it was clear that the first and second respondents took into account irrelevant factors in that the reason to refuse the gathering and procession was based on some directive allegedly issued by the third respondent.

Directive

“There is no provision in the Public Order Act authorising the first respondent and second respondents to act on the directive and instruction of another authority, even if that authority is the minister,” the secretary general submitted. He also told the court that there was allegedly equally no provision in the Act that the minister had the power and authority to issue a directive ordering the first and second respondent to suspend issuance of permits in terms of the Act. He added that even the respondents did not point out of any such provision. “We are advised and verily accept that it is our understanding that the respondents may prohibit a gathering and only on grounds permissible under the Act.

Advised

“We are advised and verily accept that the respondents may deny a gathering on the basis of Section 8(7) (a) of the Act as read together with subsection 17(a) of the Act. “We are advised and verily accept that by relying on some directive purportedly issued by the third respondent the first and second respondent acted ultra vires the provision of the Act,” Gina submitted.
As such, he alleged that the decision refusing the gathering had to be reviewed and set aside as it was allegedly unlawful in the fact that the first and second respondent allegedly failed to apply their mind in a lawful manner.

He added that it was their submission that given that the decision of the first and second respondent was allegedly unlawful, there was no basis for the fourth respondent to stop the gathering from proceeding. Therefore, he submitted that the applicant apply to the court to set aside the decision of the first and second respondent and to issue an order compelling the said respondents to issue a certificate in terms of Section 10 of the Act.

Scheduled

“The matter is urgent for the reason that the gathering is scheduled to take place on Wednesday February 9, 2022 (today) and all preparations have been made,” Gina submitted. He also added that the decision allegedly violates the applicant’s members’ right to peaceful assembly, association and expression as guaranteed in the Constitution. Again, he submitted that a violation of human rights invites a degree of urgency. The matter is before Manzini Acting Principal Magistrate Sindisile Zwane and it was postponed to today at 10am as some of the representatives of some of the respondents had asked to consult with their clients.

Post your comment

Your name:

Your e-mail address:

Add your comments:

Please enter the code you see in the image:

Image:

Code: