Elizabeth Mwanza and Anor v Holiday Inn Garden Court Hotel (1997/HP/2054) [1999] ZMHC 2 (24 June 1999)

IN THE HIGH COURT FOR ZAMBIA 1997/HP/2054 AT THE PRINCIPAL REGISTRY AT LUSAKA (CIVIL JURISDICTION) IN THE MATTER: THE CONSTITUTION OF THE REPUBLIC OF ZAMBIA AND IN THE MATTER: ARTICLES 11, 21, 23 AND !28 BETWEEN: ELIZABETH MW ANZA CLOTILDAH MULENGA AND 1st Petitioner 2 nd Petitioner HOLIDAY INN GARDEN COURT HO EL Respondent BEFORE THE HONOURABLE MR. JUSTICE PETER CHITENGI IN OPEN COURT AT LUSAKA THIS 24TH DAY OF JUNE, 1999. I For the Petitioners: For the Respondent: Mr. Zulu Messrs Central Chambers Mr. Nchito Messrs Nchito & Nchito JUDGMENT I I The two Petitioners have brought this al tion seeking redress alleging that the Respondent seriously abrogated their freedoms of movement, association and assembly and seek the following declarations:- (i) That they have been and are likely to con ·nue to be unfairly discriminated against on the grounds of sex. \t " .. . J (ii) That they and indeed any other human being are entitled to human rights . and that it is therefore unlawful for the Respondent to lefuse admission to public places on the grounds that a person is female or is a female not accompanied by a male. (iii) That all Public institutions be open to all eople irrespective of sex or other discriminatory attributes provided they have not breached any written laws or regulations and that all institutions whose poli,cies result in female harassment are against the law, against public policy or interest and against the International Conventions to which Zambia is a party. The Petitioners also seek an injunction to rest ain the Respondent and its servants and/or agents from turning away un accompanied men etc., ordinary and exemplary damages for embarrassment and humiliation, ordin and exemplary damages and cost. Both Petitioners testified on their own behalf. According to the First Petitioner Elizabeth Ml anza, on 8th November, 1996, she went to the Respondent Hotel with the Second Res~ondent to meet business associates for a drink in the Hotel pub. At the Hotel entrance a Security Guard DW2, stood in front of them and asked if a man accompanied them. DW2 said the hotel did not allow in un accompanied women. They pointed out that they were together but the Guard said the Hotel did not allow in un accompanied women. Thisl exchange took place in the view of the general public. She asked DW2 to accompany them to the Reception to verify the issue of women being accompanied by men. There pon, DW2 crossed his arms on his chest at the entrance indicating that there was no wly through the door. The two then pushed their way past DW2 and went to the Recepf6n and inquired why a man should accompany them before they could be allowed in th hotel. They got no response from the Receptionists. They asked for the Duty Manager ut the Duty Manager never showed up from 20.30 hours to 23.00 hours when they left. They were in the pub in the hotel. They were not drunk. She did not assault DW2. Sh read the statement in the press that she went berserk, pulled the Guard by the tie arid t ok him to the Reception. It is not correct. She was misquoted. She was only upset. T e Petitioner then gave evidence of similar incidents at the Respondent hotel and othe hotels. She is some sort of the national figure. She was Miss Zambia 1992 and he is in various charities and she appears in National media. When cross-examined, she said that at the ma erial time they were coming from a cocktail at the British High Commission. She oJ y took soda water. She gave an interview to the Post the day after on the phone. The Second Petitioner' s evidence is material articularly the same as that of the First Petitioner except that according to her they spen l some two to three minutes arguing / with DW2. They were not rowdy. They were not removed out of the hotel after they had entered. She did not drink that night. While in th hotel no one disturbed them. The Respondent called two witnesses, its De uty General Manager (DWI) and the Guard concerned (DW2). According to the Deputy General Manager, r. Siasumba, he was not aware of the incident in question. Management asked the Du& Manager about it and he said he knew nothing. When DW2 was asked he said two ladies confronted him. It is not company policy to discriminate against women. Thel allow screening of the clients in order to comply with the Liquor Licence Act with res ect to unruliness, drunkenness and prostitution while in the hotel. According to DW2 the Petitioners came to fe Hotel entrance making a lot of noise and to him they seemed drunk. He asked the P titioners if they were accompanied by men because they were already drunk. Accordin to the Regulations drunken people whether men or women are not allowed to enter the Hotel. Accordingly, he asked the Petitioners if they were accompanied because they ere drunk and being only women, they could misbehave. The Petitioners did not answe but the First Petitioner pulled him by his tie , squeezed his neck and dragged him to the eception. The tie almost strangled him and he was trying to free his neck. The First Pe itioner said all the time she goes to the Hotel she is asked foolish questions. She dragged him to the Reception to explain. At the Reception, the Petitioner said it must be th last time to be asked the foolish question and next time she would sue the Hotel. No one answered the First Petitioner. She then let him free and went to Mcgintys to drink. e reported to the Duty Manager, a Mr. Chongo. He wanted to report the incident to the olice but Mr. Chongo discouraged him because the First Petitioner was a client. Mr. Chongo advised him to forget about it and he forgot about it. No one removed the Petition rs from Mcgintys. The Petitioners bought spirituous alcohol and drunk. Counsel filed written submissions. The substance of the submissions on behL f of the Petitioners is that the Petitioners' rights were infringed entitling the Petitio ers to the redress they seal. On the other hand it is submitted on behalf of the Respo dent that the Petitioners were not hindered in the enjoyment of their rights. The Petitio ers were never denied access to the · Hotel. This incident arose because of the Petitioners J eing drunk and disorderly. I have carefully considered the evidence an submissions of Counsel and the cases cited to me. Mr. Sikota , learned Counsel for he Petitioners submitted _that this case is on all forms with the Sara Longwe case, Mr. , ikota gave the citation of this case as 1992 ZR without giving the page. The Longwe case is not reported in this volume or indeed in any of Zambia Law Reports Volumes. Ho ever, I am well aware of the facts of Longwe case. Sarah Longwe was totally barred f om entering the Hotel and did not brow beat her way into the hotel. I now come to the instant case. The question hether the Petitioners' rights were violated turns on which of the two versions represent the truth of what happened on that day. As I have said already, I have carefully considered the evidence before me and after this consideration and after seeing the Petitioners gi e evidence and DW2 before me, I was left with no difficulty to find where the truth lie . I found that there was a ring of truth in which the Security Guard (DW2) said. This witness was a simple man who struck me as incompetent of fabricating the story he ~old the Court. Indeed his story of being manhandled by the first Petitioner is confirmeld by the interview, which the first Petitioner gave to the Post. Of course the fust l etitioner said she was misquoted. Unfortunately while the first Petitioner conceded giving the interview she never led . evidence that she denied the story and asked the Pokt to correct it. Further, DW2 had demonstrated that he is a veracious witness. He , as quick to admit in his evidence without proding, that he asked the Petitioners whether they were accompanied by a man, the very offending question the Petitioners are compl "ning against. I found the evidence of the Petitioners not cretlible. The Petitioners' evidence is embellished and in most parts false. Accepting the evidence of DW2, as I do, I hol that none of the Petitioners' rights were infringed. It is clear to me that the Petitioner were somehow high when DW2 asked them whether they were accompanied by a mJ.. The first Petitioner took it upon herself to manhandle DW2 and dragged him to the eception. The second Petitioner who struck me as the more self-restrained of the o Petitioners, then followed the . proceedings until they found themselves drinking in the Mcgintys. In the event, if DW2 did anything that infrinJ ed the Petitioners' rights it was to ask whether the Petitioners were accompanied by I man, a question which the first In my consid red opinion that question alone, Petitioner characterised as foolish. annoying as it may be, without more does amount to violation of one' s fundamental rights and freedoms under the constitution as pleadL by the Petitioners. Indeed the totality of the evidence is against the view th~t Dr 2 ever intended to exclude the Petitioners from the Hotel on ground of their sex. Even after the manhandling of DW2 the Petitioners were never ejected from the Hotel. \ The first Petitioner complained about other i cidents where she was barred to enter the Respondent Hotel on ground of her sec. T7at may be so. But here I am not conducting a general enquiry. I am concerned with this one particular incident and in this incident the Petitioners have failed to prove that their lights were violated. In the result I dismiss this Petition with costs to the Respondent to be taxed in default of agreement. DELIVERED IN OPEN COURT AT LUSAKA T IS 24™ DAY OF JUNE, 1999. 6