Passenger Association of Zimbabwe and Bernard Marizani v The Commissioner General of Police N.O and Others

The applicants sought declaratory relief declaring that members of the Zimbabwe Republic Police were acting unlawfully by spiking public and private motor vehicles in urban areas (particularly Harare), smashing windscreens of vehicles, and using excessive force when dealing with alleged road traffic infractions. The context involved police enforcement actions against illegal taxi operators colloquially known as "mushikashikas" who operated without proper licenses in contravention of the Road Motor Transportation Act. These illegal operators often refused to stop when signaled by police, leading to dangerous high-speed chases and sometimes running over pedestrians. Police sometimes resorted to using spikes, teargas, and smashing windscreens to stop these vehicles. The applicants alleged this conduct violated constitutional rights to life and personal security under section 52(a) of the Constitution and was inconsistent with section 42 of the Criminal Procedure and Evidence Act which limits force to what is reasonable, justifiable and proportionate.

• Whether the use of spikes, teargas and smashing of windscreens by police when dealing with traffic violations violates the constitutional right to personal security and the right to life under section 52(a) of the Constitution
• Whether such police conduct is inconsistent with section 42 of the Criminal Procedure and Evidence Act which limits use of force to what is reasonable, justifiable and proportionate
• Whether the applicants satisfied the requirements for a declaratory order
• Whether the applicants satisfied the requirements for an interdict
• Whether the relief sought was too broad and lacked precision
• Whether granting the application would sanitize illegal conduct by unlicensed taxi operators

The application was dismissed with costs on a legal practitioner and client scale against the applicants.

Courts will not grant declaratory orders or interdicts that would have the effect of sanitizing illegal conduct or unduly incapacitating police from exercising their constitutional mandate under section 219 to enforce law and order. When assessing the reasonableness of police use of force under section 42 of the Criminal Procedure and Evidence Act, courts must consider the full factual context including the conduct of suspects who flee, resist arrest, and endanger public safety. Applicants seeking public interest relief must approach the court with "clean hands" and not with ulterior motives to protect illegal activities. Relief sought must be precise and not so broad as to create legal uncertainty or prevent legitimate law enforcement across a range of scenarios. The requirements for declaratory orders and interdicts require applicants to view matters holistically, not from one angle only.

The court made several non-binding observations: (1) It questioned why members of the public have a high affinity for boarding illegal vehicles at undesignated points when conventional transport like ZUPCO is available; (2) It noted that while it does not condone police smashing windscreens, using spikes on moving vehicles or teargas, exceptional circumstances may dictate such actions; (3) It observed that illegal "mushikashika" operators are "a menace" who endanger themselves, the public and police, particularly during the COVID-19 pandemic; (4) It noted that spikes remain an essential tool used by police services worldwide at roadblocks; (5) It suggested the applicants' novel idea of using vehicle registration numbers through VID to trace culprits would be futile since most illegal taxis are unregistered; (6) It observed that illegal operators commit not just traffic violations but also First Schedule offences including drug abuse, harassment, theft and robbery; (7) It noted that to grant the application "would be tantamount to legalizing the actions of these errant motorists."

This case is significant in Zimbabwean jurisprudence as it addresses the tension between police powers to use force in law enforcement and constitutional protections of rights to life and personal security. It establishes that courts will not grant relief that would sanitize illegal conduct or unduly restrict legitimate police powers to maintain law and order. The judgment recognizes that while certain police tactics may be problematic, blanket prohibitions that fail to account for operational realities and the full context of law enforcement will not be granted. The case also demonstrates the application of the "clean hands" doctrine in public interest litigation, requiring applicants to approach the court without ulterior motives to protect illegal activities. It balances constitutional rights protection with practical law enforcement needs in dealing with uncooperative suspects who endanger public safety.