Zimbabwe, High Court of Zimbabwe, 26 May 2020, [2020] ZWHHC 334
Case overview
Country
Case ID
Decision date
Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
- Non-discrimination
- Freedom of movement of goods and capital
- Freedom of movement of people
- Scope of powers of public authorities (legislative, executive etc.)
Outcome of the decision
Link to the full text of the decision
General Summary
The plaintiffs sought the following interim orders: that the 1st Respondent, within 3 days of the order, amend the Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) Order of 2020, issued under Statutory Instrument 83 of 2020, to allow the operation of registered transporters and other operators to transport passengers on their licensed routes - subject to compliance with relevant lockdown conditions, such as social distancing, temperature testing and the use of sanitizers; that informal businesses be allowed to reopen, subject to compliance with lockdown regulations of social distancing, temperature testing, and sanitizing.
Further, the applicants sought an order declaring that S.8 of the Public Health (COVID-19, Prevention, Containment and Treatment) Regulations, published under Statutory Instrument 77/20, is ultra vires S. 68 of the Public Health Act and breaches S.134 of the Constitution. The applicants sought a declaration that S. 4(2), 4(1) and 11(f) of the Public Health (COVID-19, Prevention, Containment and Treatment) Regulations, published under Statutory Instrument S.I 83\20 as amended, be declared ultra vires the Public Health Act and S.134 of the Constitution of Zimbabwe.
The Court has held:
The restrictions were found to be necessary in a democratic society to protect the health of all citizens. Application dismissed.
Facts of the case
The applicants contended that the orders issued by the First Respondent in consultation with the President are null and unconstitutional in that they allow unlawful delegation of powers to the Sixth Respondent, in breach of S. 134 of the Constitution of Zimbabwe. The powers exercised are ultra vires the powers given to the R espondent in S. 68 of the Public Health Act. Further, the power exercised in allowing the Seventh Respondent and vehicles of the Public Service Association to operate to the exclusion of all other public transporters allegedly creates a monopoly over public transport. Allowing formal business to open while the informal sector remains closed is unfair and unreasonable and ultra vires S. 68 of the Public Health Act. The majority of people in Zimbabwe are employed in the informal business sector, which has been hit the hardest by the lockdown measures and poverty. Workers in the informal business sector have been unable to provide for their families and pay rent.
The restrictions imposed affect the applicants’ members and infringe upon their right to health and the right to life under S. 48 (1) of the Constitution. The monopoly given to Seventh Respondent infringes upon the applicants’ right to freedom of profession, trade, and occupation guaranteed under S. 64 of the Constitution. The treatment of applicant’s members is discriminatory and unfair and violates their rights to equal protection and benefits of the law as protected by S. 56(1) of the Constitution.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private collectiveDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Court has reasoned that allowing the informal business and transport sectors to operate while Respondents are lacking the capacity to monitor their activities would further contribute to the spread of the pandemic. The restrictions are necessary in a democratic society to protect the health of all citizens. The restrictions in place are neither arbitrary nor discriminatory in their application and are subject to review. The measures put in place are proportionate to the good that Respondents seek to achieve. There is no alternative and less restrictive effective remedy to achieve the same objective. The interference is commensurate with the threat posed.
The Court has noted that if the economy is allowed to restart hastily and without proper considerations, the spread of the disease is likely to be accelerated. It would be irresponsible of the Court to grant the request of the applicants, especially while the pandemic is still surging. Without any knowledge of how to fight the disease, with no cure or vaccine in sight, the consequences of such approach would be disastrous.
Conclusions of the deciding body
The measures have been upheld as the restrictions were found to be necessary in a democratic society to protect the health of all citizens.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Right to health (inc. right to vaccination, right to access to reproductive health)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to equal protection and benefits of the law under S. 56(1) of the Constitution
- Right to life under S. 48 (1) of the Constitution
- Freedom of profession, trade, and occupation guaranteed under S. 64 of the Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. economic freedoms
- Health v. freedom of movement of persons
- Health v. freedom of movement of goods / services
- Health v. freedom of movement of capital
- Health v. freedom to conduct a business
- Health v. private life
General principle applied
- Proportionality
- Reasonableness
- State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)
The Court has deemed the restrictions necessary to protect the health of all citizens in a democratic society.
Impact on Legislation/Policy
The governmental measure have been upheld.
Impact on national case law
Complementary
Other notes
Case ID
The Zimbabwe Chamber for Informal Workers,
Passenger Association Of Zimbabwe,
C. C.
Versus
Minister of Health and Child Welfare,
Minister of Local Government, Rural And Urban Development,
Minister of Finance and Economic Development,
Minister of Public Service Labour and Social Welfare,
Minister of Transport and Infrastructure Development,
The President of The Republic of Zimbabwe,
Zimbabwe United Passenger Company (Pvt) Ltd
Other fundamental right involved
- Right to equal protection and benefits of the law
- Right to life
- Freedom of profession, trade and occupation
Fundamental Right(s) Involved (constitutional provisions, international conventions and treaties)
- Article 16 (2) of the African Charter places responsibility on State parties to “take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.’’
- Article 12 of the International Covenant on Economic Social and Cultural Rights obliges Governments to take effective steps for the “prevention, treatment and control of epidemic, endemic, occupational, and other diseases.”
