Thokozani Khuphe v The Officer in Charge, Law and Order Section, ZRP Bulawayo Central Station and Others

The appellant was an elected Member of Parliament for Makokoba Constituency in Bulawayo, representing the Movement for Democratic Change opposition party. Following the announcement of new constituency boundaries in January 2005 in preparation for the March 2005 general elections, on 23 January 2005 the appellant called a meeting of her constituents at her restaurant along Leopold Takawira Avenue in Bulawayo. More than eighty people from various wards of her constituency attended. Members of the Zimbabwe Republic Police arrived, broke up the meeting and arrested the appellant. She was charged with contravening section 24(6) of the Public Order and Security Act (POSA) - holding a public meeting without notifying the authority concerned. She was placed on remand by the magistrate's court. The appellant, believing the meeting was private and not subject to POSA requirements, approached the High Court seeking a declaratory order that section 24 of POSA does not oblige organisers of private meetings to notify the regulating authority. The High Court declined to grant the declarator and ordered costs against the appellant.

• Whether the High Court was correct in declining to grant a declaratory order concerning the application of section 24 of the Public Order and Security Act to private meetings
• Whether it was appropriate for the High Court to make a determination on whether the appellant's meeting was public or private while criminal proceedings were pending
• Whether the Supreme Court should interfere with the High Court's decision given that the substantive issue (whether the meeting was public or private) was yet to be determined at trial

The appeal was dismissed with costs. The High Court's refusal to grant the declaratory order was upheld.

Where a person is on remand facing criminal charges and the central issue in those criminal proceedings is a question of fact and interpretation (whether a meeting was public or private), courts will not grant declaratory relief on that same issue in parallel civil proceedings. Such questions must be determined by the trial court after hearing evidence. Appellate courts will not interfere with or pre-empt the determination of the trial court on matters that are properly within its jurisdiction to decide. Furthermore, there is no basis for granting a declaratory order that merely restates what is already common cause or established law.

Cheda JA observed that the appellant's position was "difficult and confused" given that she had asked the High Court to decline to make the declarator, the court did exactly that, yet she then appealed against that very order. The Court also noted that issuing a declarator concerning private meetings "would be simply to repeat to the police what they already know" since the police themselves had alleged in their request for remand that the appellant organized a public, not a private, gathering.

This case is significant in Zimbabwean jurisprudence as it clarifies the procedural limits on seeking declaratory relief when criminal proceedings are pending on the same issue. It establishes that courts will not make declaratory orders on factual and interpretive questions that are properly to be determined at criminal trial. The case demonstrates judicial restraint and respect for the proper sequencing of legal proceedings, emphasizing that appellate intervention is premature when the substantive issues have not yet been adjudicated in the trial court. It also illustrates the principle that declaratory orders should not be granted to merely restate what is already common cause or settled law.