Last month in response to a spike in local cases the government issued a series of new strict restrictions. One of the provisions spelt out in Statutory Instrument 174 of 2020 is the requirement that businesses only operate under from 8 AM and should close no later than 3 PM. Only essential organisations are allowed to operate outside these hours. More controversially the president also announced a 6 to 6 curfew which some have ridiculed.

Recently the lawyers representing Jacob Ngarivhume and Hopewell Chin’ono,, Ms Beatrice Mtetwa and Moses Nkomo both instructed by the ZLHR, sort to bring an urgent application before the High Court. They felt aggrieved that the Magistrate’s court in which they were mounting the bail challenges on behalf of their clients was about to close as it was now almost 3 PM.

The lawyers filed an urgent application before the High Court challenging the constitutionality of the provisions mandating that organisations should close at 3 PM. The lawsuit, ZLHR listed the Judicial Service Commission (JSC) and National Prosecuting Authority (NPA), the Minister of Justice, Legal and Parliamentary Affairs and the Minister of Health and Child Care as respondents. They wanted the High Court to rule that the Statutory Instrument did not apply to Magistrate’s Courts when hearing bail applications.

The duo’s application failed mostly on techinicalities:

It is this court’s considered view that the applicant in this matter, has failed to take this court into its confidence and justify why this matter should be treated as urgent.

Accordingly, the points in limine raised for and on behalf of the first respondent are upheld and the application for interim relief is hereby dismissed with costs.

Justice Phiri’s ruling on the case.

It’s not clear whether the challenge will succeed once it’s properly filed and brought as a normal case. The way Zimbabwean courts have operated on issues of constitutionality, however, make it probable that by the time the issue is settled by the courts the points raised in the suit will be moot as regulations might not even be in place anymore.

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