Walter Magaya v Zimbabwe Gender Commission

On 23 August 2019, the Zimbabwe Gender Commission (respondent) published General Notice No. 1444/2019 in the Government Gazette announcing its intention to investigate complaints of sexual abuse of women by Walter Magaya (applicant) of Prophetic Healing and Deliverance Ministries in terms of section 5 of the Gender Commission Act. The Notice invited victims or witnesses to furnish written complaints, statements and supporting documents. On 3 September 2019, the applicant filed an application for review of the decision to investigate him (HC 7347/19). The present application was an urgent chamber application seeking a provisional order to set aside the investigations pending the review application. The applicant contended that the investigations would irreversibly violate his constitutional rights, particularly his dignity and reputation, and that the respondent lacked jurisdiction to conduct such investigations or was exercising its powers improperly.

• Whether the Zimbabwe Gender Commission had jurisdiction to investigate complaints of sexual abuse against the applicant
• Whether the investigation violated the applicant's constitutional rights
• Whether the matter was urgent enough to warrant an urgent chamber application
• Whether unterminated proceedings by the Commission could be reviewed by the High Court
• Whether the respondent properly invoked section 5 of the Zimbabwe Gender Commission Act in conducting the investigation
• Whether the applicant established irreparable harm justifying interim relief

The application was dismissed with costs.

The Zimbabwe Gender Commission has constitutional authority under section 246 of the Constitution to investigate possible violations of rights relating to gender, including complaints of sexual abuse, without being limited to section 5 of the Zimbabwe Gender Commission Act which deals specifically with systemic barriers. The Commission's constitutional mandate is not subordinate to the provisions of the Act. Review of unterminated proceedings by administrative authorities will only be exercised in exceptional circumstances where there is gross irregularity or where justice cannot otherwise be attained. An applicant seeking to set aside ongoing investigations must demonstrate irreparable harm and prospects of success in establishing jurisdictional incompetence or procedural irregularity. Investigations that do not impose sanctions and respect natural justice principles do not ordinarily constitute irreparable harm justifying urgent interim relief.

The court observed that if the investigations were set aside, there would be no substantive issue to deliberate on the return day, suggesting the provisional order was not well thought out. The court commented that the Zimbabwe Gender Commission Act is not detailed enough to cater for all aspects of the mandate given to the Commission under section 246 of the Constitution. The court noted that even if the respondent succeeded in the matter, it would be akin to a pyrrhic victory given the limited immediate impact of the intended investigation. The court suggested that the respondent could have simply advertised its intention to conduct investigations relating to violation of gender rights without reference to section 5 of the Act. The court also noted that the issue of want of urgency could have been successfully raised as a preliminary issue.

This case clarifies the powers and mandate of the Zimbabwe Gender Commission under section 246 of the Constitution and the Zimbabwe Gender Commission Act. It establishes that the Commission's constitutional powers to investigate violations of gender rights are broader than the specific provisions in section 5 of the Act relating to systemic barriers. The judgment confirms that the Constitution, as supreme law, grants the Commission investigative powers that are not subordinate to or limited by the Act. The case also illustrates the principles governing urgent applications and review of unterminated proceedings by administrative bodies. It emphasizes that courts will not interfere with ongoing investigations by constitutional commissions absent exceptional circumstances showing gross irregularity or that justice cannot otherwise be attained. The judgment reinforces that investigative bodies like the Gender Commission, which lack sanctioning powers and are subject to natural justice requirements, will not ordinarily cause irreparable harm warranting interim interdicts.