Amalgamated Rural Teachers Union of Zimbabwe and Obert Masaraure v Zimbabwe African National Union [Patriotic Front] and Minister of Primary and Secondary Education

The first applicant is a trade union of primary and secondary school teachers in rural Zimbabwe. The second applicant is a teacher and current president of the first applicant. The first respondent is the ruling political party in Zimbabwe. The second respondent is the Minister of Primary and Secondary Education and a member of the first respondent party. On 28 June 2018, the court granted an interim interdict restraining the first respondent from: (1) asking, encouraging or forcing school children to attend political rallies or causing school closures for political activities; (2) compelling teachers to attend political rallies, wear party regalia, prepare performances for children, or make contributions toward rallies; and (3) using school property for political purposes. The first respondent appealed against the interdict. The applicants then sought leave to execute the judgment pending appeal, alleging that despite the court order, the first respondent continued with impunity to force teachers and school children to attend campaign rallies, even attaching pictures of school children and buses draped in party colours at rallies. This occurred during mid-year examinations and in the lead-up to the general election scheduled for 30 July 2018. The second respondent did not oppose and undertook to abide by the court's decision. The appeal was set down for hearing on 27 July 2018, eleven days away.

• Whether leave to execute pending appeal should be granted in circumstances where the appeal has been set down for hearing in eleven days
• Whether the preponderance of equities favours granting leave to execute to protect school children and teachers from alleged violations of constitutional rights
• Whether the conduct of the first respondent in allegedly continuing to compel school children and teachers to attend political rallies violates constitutional rights including the right to education, the right not to be compelled to take part in political activity, freedom of assembly and association, and property rights
• Whether an interdict prohibiting the use of school property for political purposes without consent is appropriate

The application for leave to execute pending appeal was granted. The court ordered that: (i) Leave to execute the judgment of 28 June 2018 in Case No. HC 263/18 pending appeal SC 513/18 is granted; (ii) Notwithstanding the appeal, the respondents, their employees, members and/or agents are interdicted and restrained from: (a) asking, encouraging or forcing children at schools to attend or participate in political rallies or activities or causing closure of schools for political rallies or activities; (b) compelling teachers to attend political rallies, wear party regalia, prepare performances for children to deliver at rallies, or make contributions towards rallies whether in cash or kind; (c) using school property including school premises, buses, furniture, classrooms or any other property belonging to schools for any political rally or political purpose without consent of relevant school authorities; (iii) The first respondent shall pay the applicants costs for the application.

When considering leave to execute pending appeal, the court must consider cumulatively: (1) the preponderance of equities (potentiality of irreparable harm to either party); (2) prospects of success of the appeal; and (3) balance of hardship. However, where an application for leave to execute involves protection of vulnerable persons (particularly children) from ongoing violations of fundamental constitutional rights, rather than an ordinary money judgment, the preponderance of equities will favour granting leave to execute even where an appeal is set down for imminent hearing. Breaches of constitutional rights, particularly those affecting children's rights to education, freedom from forced political participation, and protection from inappropriate and harmful activities, should not be allowed to subsist for any period. The court's inherent power to control its own process and achieve real and substantial justice permits granting leave to execute where evidence shows continued flagrant violations of a court order and constitutional rights, and where the harm to vulnerable persons outweighs any prejudice to the party noting the appeal. The court as upper guardian of minor children has a duty to set aside non-urgent business to attend to urgent matters affecting children's constitutional rights.

The court observed that applications for leave to execute require weighing the relative strength or weakness of an appeal, which necessarily entails ploughing substantially the same field as done at the original hearing and in some way pronouncing a verdict on an appeal pending before a superior court. The court acknowledged this is one of the shortcomings of this type of application and to a limited extent may amount to usurpation of the functions of the superior court, though this is necessary to guard against frivolous and vexatious appeals noted purely to buy time. The court noted that in applications for leave to execute, each case depends on its own facts and some factors may assume greater or lesser importance in different cases. The court distinguished the present case from Engen Petroleum [Pvt] Ltd v Infrastructure Development Bank of Zimbabwe where it had declined leave to execute when an appeal was set down for hearing in a month's time, on the basis that the present case did not involve ordinary execution in the literal sense of the Sheriff going after respondents with a writ, but rather ensuring the interdict remains operative to protect ongoing rights.

This case is significant in Zimbabwean jurisprudence (though decided by the High Court of Zimbabwe, not a South African court) for several reasons: (1) It affirms the court's role as upper guardian of minor children and its willingness to act urgently to protect children's constitutional rights; (2) It establishes that protection of fundamental constitutional rights, particularly of vulnerable groups like school children, may warrant leave to execute pending appeal even when an appeal is imminent; (3) It recognizes that violations of children's constitutional rights including the right to education, freedom from forced political participation, and protection from inappropriate work cannot be allowed to continue even for short periods; (4) It demonstrates judicial willingness to enforce interdicts against powerful political actors during election periods to protect democratic rights and freedoms; (5) It clarifies the application of the preponderance of equities test in cases involving ongoing constitutional violations versus cases involving ordinary money judgments; (6) It affirms children's rights not to be used for political purposes and teachers' rights to freedom of association.