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Legal
opinion on the notice to all PVO's not registered with the Ministry
of Public Service, Labour and Social Welfare in terms of section
9 of the PVO Act [Chapter 12:04]
Brian
Kagoro
September 24, 2002
This opinion is meant to explore the meaning and legal implications
of the above-mentioned notice.
The Text
of the Notice
The
notice under review was issued by the Legal Advisor to the Ministry
of Public Service, Labour and Social Welfare. It was published in
the Herald Newspaper of 13th September 2002. It states
as follows in its essential parts:
"Any
body or Association of persons, corporate or un-incorporate or
any institution whose objects include one or more of those stipulated
in section 2 of the Private Voluntary Organisations Act [Chapter
17:05], excluding those excepted under the same section, is a
Private Voluntary Organisation and should be registered in terms
of section of the Private Voluntary Organisations Act, aforesaid.
Section
6 of the PVO Act, prohibits such a body, institution or association
to operate without being registered. And section 25 of the same
Act, makes it a criminal offence to operate without being
so registered.
May all
such bodies as are not registered urgently stop their operations
until they have regularised their registration in terms of section
9.Failure to adhere to the Law will result in arrests being made
…."
The Meaning
of the Notice
The Notice appears to be a re-assertion of the provisions of
the PVO Act regarding registration of PVO’s and in particular section
2(2) from which the spirit of the notice has been extracted. It
does not seek to create any new category of PVO’s nor does it expand
the existing one. The Notice also does not alter the range of exceptions
set-out in the Act in section 2. What the Notice constitutes is
the first attempt to enforce the PVO Act after the contra judgment
against the Ministry in the AWC (Association of Women’s Clubs) case.
Section 2 of
the PVO Act defines a PVO as an association of persons, corporate
or unincorporated, or any institution with any one or more of the
following objectives:
- The provision
of all or any of the material, mental, physical or social needs
of persons or families;
- Rendering
of charity to persons or families in distress;
- The prevention
of social distress or destitution of persons or families;
- The provision
of assistance in, or promotion of, activities aimed at uplifting
the standard of living of persons or families;
- The provision
of funds for legal aid;
- The collection
of contributions for any of the fore-going
This definition
excludes the following entities:
- The Zimbabwe
Red Cross Society
- Any political
organisation in respect of work to political activities
- Registered
hospitals and nursing homes and work done for their benefit
- Registered
health institutions under the Medical, Dental and Allied Professions
Act [Chapter 27:08];
- Any entity
whose activities are for the sole benefits of its members
- Any Trust
established directly by any enactment or registered with the High
Court ;or
- Any educational
trust approved by the Minister
- Any institution
or service maintained and controlled by the State or a local authority;
and
- Any religious
body in respect of activities confined to religious work
The sting in
this notice, therefore, is really in the requirement that all bodies
and association of persons (corporate or otherwise) any whose objects
fall within the Act should cease operations forthwith or risk prosecution.
This prohibition
will cover many common law associations founded only in terms of
their constitutions as well as temporary networks (political or
otherwise) currently set-up to respond to the food crisis and those
Trusts registered with the Registrar of Deeds and not the High Court.
In other words, the notice covers attempts by political parties
and several trusts to assist displaced farm workers and other disadvantaged
communities. The exact ramifications of this Notice for organisations
dealing with Aids orphans and widows, street children and the unemployed
should be fully investigated. The writer’s suspicion is that the
greater number of groups working in this area are not registered
in terms of the PVO Act. The requirement that temporary entities
set-up to respond to the prevailing national crisis should be registered
under the PVO Act defies logic. It is tantamount to saying that
– faced with the incapacity of the State and registered PVO’s to
respond to the current food crisis due to its magnitude – all other
bona fide attempts to assist are criminal.
The process
of registration set-out in section 9 of the Act is too cumbersome
and experience suggests that it may – at times – take several months
if not years. In the result, the requirement that those already
operating as un-incorporated entities or who for any other reason
fail to comply with the Act should cease operations forthwith, is
grossly unreasonable. Particularly because it is perfectly legal
in our law to register and operate a trust without having to register
with the High Court. This should also be understood in the context
of section 11 of the PVO Act which prohibits registered PVO’s from
carrying on their activities, seeking financial assistance from
any source or collecting contributions from the public ‘under
a name other than the name under which it is registered’. Section
23 of the Act makes it a criminal offence to collect or even attempt
to collect contributions on behalf of an un-registered PVO.
The Constitutionality
Test
As intimated above, the Notice is not contrary to the PVO
Act and is therefore, at law, intra-vires the Act. Aggrieved parties
must, therefore, look elsewhere for relief. It is possible that
the Notice is, in its effect, unconstitutional for the following
reasons:
- Prior to
requiring affected parties to cease operations, they should have
been afforded an opportunity to be heard in terms of section 18(9)
of the Constitution of Zimbabwe. Primarily because the effect
of the Notice goes to the root of their existence as associations
under the law. The constitution requires that they be granted
a fair and impartial hearing in the determination of their rights
and privileges. In the result groups adversely affected by this
notice are at liberty to seek redress through a High Court review
;or
- If it is
deemed that they were operating illegally anyway, they still should
have been given adequate notice to cease operations or regularise
their status within the law. This is particularly because their
activities affect their employees and beneficiaries in very significant
ways and it could not be the intention of government to penalise
these groups unnecessarily. It is in any respect a requirement
of our administrative justice system;
- The provisions
of the Act relating to the criminalization of un-registered associations
may be ultra-vires the right to freedom of association enshrined
in the constitution of Zimbabwe. There seems to be no real public
interest basis for criminalizing entities that do not collect
contributions from the public for their operations. Nor is there
any constitutionally sound basis for criminalizing trusts or common
law associations founded in terms of their own constitutions.
The restrictions in the PVO Act go beyond the interests sought
to be protected and therefore may be said to be unreasonable in
a democratic society.
Conclusion
Due to the understanding of the Act and Notice propounded above,
it is unnecessary in this opinion to cite legal authority. The views
expressed above are self-explanatory. As already stated above, the
challenge is how to argue out of the obvious fact that the notice
is a restatement of the law as it is. The proposals made above only
would benefit those groups that were not in deliberate violation
of the Act.
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