National Constitutional Assembly v Zimbabwe International Trade Fair Company and Anor (HC 1062 of 2002) [2002] ZWBHC 35 (22 May 2002)

Judgment No. HB 35/2002 Case No. HC 1062/2002 NATIONAL CONSTITUTIONAL ASSEMBLY versus ZIMBABWE INTERNATIONAL TRADE FAIR COMPANY and GRAHAM ROWE HIGH COURT OF ZIMBABWE CHIWESHE J BULAWAYO 26 APRIL & 23 MAY 2002 T Ndlovu for the applicant Tshuma for the respondent CHIWESHE J: I dismissed this application with costs and indicated that my reasons would follow. These are they. Applicant sought a provisional order couched as follows:- “Applicant be and is hereby given leave to exhibit at the Zimbabwe International Trade Fair after duly satisfying first respondent’s financial and other requirements.” In his founding affidavit Justine Josiah Ndlovu who is the regional chairperson of the applicant states that on 17 April 2002 he made a written request to first respondent to exhibit at the Zimbabwe International Trade Fair beginning 23 April 2002. In his letter he explained the objectives of applicant’s participation at the Fair, namely to promote applicant’s draft constitution and to promote gender issues with a particular bias towards women’s rights in the constitution. These objectives were to be achieved through the distribution of literature to members of the public visiting the Fair. There would also be video clip and picture exhibitions. Applicant’s personnel would be at hand to respond to general questions from the public. On 20 April 2002 a follow up was made with first respondent’s public relations manager one Ms Bhebhe who 35/02 -2- advised that applicant was not a commercial entity and that therefore applicant should withdraw its request. However, applicant was dissatisfied with that response since other non-commercial entities such as the Zimbabwe Republic Police and the Zimbabwe National Army were exhibiting. Applicant then contacted the second respondent who advised him that applicant’s request had been referred to Harare. However in the end no response was forthcoming by the time the Fair started, prompting the present application. Applicant avers in paragraph 14 of its founding affidavit that respondents’ failure to respond to its request is in violation of sections 20, 21 and 23 of the constitution of Zimbabwe “particularly considering that the objective of the Fair is to allow free exchange of such things as ideas. Members of applicant, who are entitled to enjoy these freedoms will needless to say be deprived of their rights as spelt out in sections 20, 21 and 23 of the constitution”. Further in paragraph 15 of the same affidavit applicant states, “I am aware that constitutional issues may not be raised against a private person or body but it is my sincere belief that respondents’ actions or in action is clearly calculated at depriving the applicant’s membership of its rights of association and protection from discrimination which are provided for under the constitution of Zimbabwe more so considering that first respondent had, through various media invited companies and entities such as applicant to participate at the Fair.” upon Mr Tshuma representing respondents argued that there was no legal basis which the application could be entertained. First respondent is a private organisation and not a public institution. The applicant concedes that constitutional issues may not -3- 35/02 be raised against a private person or body. That being the case the only basis upon which applicant may engage first respondent is contractual. There is no contract between the parties. It would be incompetent for the court to compel first respondent to enter into any contract with the applicant. That would be a violation of a well established principle of our law - freedom of contract. The first respondent is a private organisation. It is free to set its own criteria as to who it wishes to engage. As such it is not under any obligation to contract with applicant. It is not even under any legal obligation to attend to applicant’s request or explain its attitude towards any such request. Whilst applicant has the right to disseminate its message and to associate with others, it cannot compel first respondent to associate with it and use its premises to disseminate information. It is common cause that first respondent’s primary object in holding the Fair is to promote trade. In doing so it may be necessary to publicise and promote the event. That exercise may involve the participation of entertainment groups and other persons not necessarily “commercial” in outlook. The discretion as to who is invited rests with first respondent. Reference in this application to the presence of invitees such a the Zimbabwe Republic Police or the Zimbabwe National Army as a basis upon which the courts should intervene in favour of applicant is therefore irrelevant and without merit. It was for these reasons that the application was dismissed with costs. Chiweshe J