This is an application for relief made in terms of section
85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the
Constitution”). The applicant is acting in her own interests although she also
invokes the alleged violation of the rights of the Movement for Democratic
Change-Tsvangirai ('MDC-T'), a political party of which she is a member.
The application is for an order declaring, in the first
part, that certain provisions of the Broadcasting Services Act [Chapter 12:06]
(“the Act”) are invalid for alleged infringement of the applicant's fundamental
right not to be compulsorily deprived of property except in terms of a law of
general application complying with the requirements prescribed under section 71(3)(b)(i)
and (ii) of the Constitution. The second part of the order seeks to direct the
respondents to obey their constitutional obligations to respect, protect and
promote the applicant's fundamental rights and freedoms enshrined in sections 56(3),
58(1) and (2), 60(1a) and (4b) and 67(1)(b)(2) of the Constitution.
The court holds that the applicant has invoked a wrong
remedy for the protection of the fundamental rights and freedoms she alleges
have been infringed. The application has to be dismissed.
The following are the reasons for the decision.
The applicant is a Member of Parliament representing the
Harare West Constituency on the MDC-T political party ticket. It is common
cause that she premised the application and the relief sought on the allegation
that the first respondent has shown bias towards the ZANU-PF political party in
the selection and presentation of television and radio programmes on political matters.
It is also common cause that as a result of the alleged
bias towards ZANU-PF in the broadcasting of political programmes levelled
against the first respondent, the Zimbabwe Broadcasting Corporation ('the ZBC'),
the applicant has been refusing to pay the licence fee payable by every person
in possession of an apparatus capable of receiving broadcasting services in
terms of section 38B(1) of the Broadcasting Services Act [Chapter 12:06].
On 1 July 2013, a licence inspector employed by the Zimbabwe
Broadcasting Corporation, in terms of section 38D(a1) of the Broadcasting
Services Act [Chapter 12:06], arrived at the applicant's residence and asked
her to produce a television licence as she was suspected, on reasonable cause,
to be in possession of a television set at home. When the applicant failed to
produce the licence, the inspector issued her with a notice in terms of section
38D(2) of the Broadcasting Services Act [Chapter 12:06] requiring her to
produce the licence at a police station within seven days from the date of
service of the notice. The applicant had, as far back as 15 September 2012,
resolved to disobey the law and not pay the licence fee for the television and
radio sets she possessed.
In paragraphs 15 and 16 of the founding affidavit, the
applicant reveals her resolve not to obey the law. She said:
“15. I did not produce the television licences at the
police station and I will not do so. This means therefore that I am in
contravention of s 356(1)(a) of the Criminal Procedure and Evidence Act
[Chapter 7:09] and am liable for prosecution in terms of this particular Act.
16. I hasten to submit that my non-compliance with the
afore-mentioned statutes is indeed purposeful but it is by no means wilful and
contemptuous of the law.”
A study of the founding affidavit shows that the cause of
action, on the basis of which relief is sought, is the alleged bias exhibited
by the Zimbabwe Broadcasting Corporation in favour of ZANU-PF in the selection
and presentation of television and radio programmes of political issues of
national importance. The applicant
accepts the fact that the Zimbabwe Broadcasting Corporation is a public
broadcaster with a mandate, under the Broadcasting Services Act [Chapter 12:06],
to provide a balanced and neutral broadcasting service to the public.
She accused the Zimbabwe Broadcasting Corporation of
partiality in broadcasting political events. She produced, as evidence of the
alleged bias by the Zimbabwe Broadcasting Corporation in favour of ZANU-PF in
the selection and presentation of programmes on political matters, documentary
reports produced by an organization called Media Monitoring Project of Zimbabwe
(MMPZ).
In paragraph 20 of the founding affidavit, the applicant
said:
“20. The evidence of 1st respondent's bias towards
ZANU-PF is overwhelming and self-evident to even the ordinary reasonable
viewer. Evidence of the bias is adduced hereto by way of copies of reports
conducted systematically and scientifically over the past five years by the
Media Monitoring Project of Zimbabwe (MMPZ). The MMPZ is an independent
organization which monitors and analyses data and statistics pertaining to
media content and coverage by media houses in Zimbabwe.
21. Firstly, 1st respondent is without doubt
quite clearly a propaganda and advocacy tool for ZANU-PF. It operates as a
public mouthpiece for ZANU-PF's commonly known political campaign positions and
philosophies that are exclusively associated with that political party. Through
various documentary, current affairs and news programmes 1st
respondent promotes ZANU-PF's political agenda with overt and covert messages
that are quintessentially ZANU-PF in content, ideology and form.”
The first respondent denied being biased in favour of
ZANU-PF and against MDC-T in the selection and presentation of programmes on
television and radio. It challenged the accuracy and correctness of the
information contained in the documentary reports produced by the Media
Monitoring Project of Zimbabwe. It alleged that the Media Monitoring Project of
Zimbabwe did not even attempt to summarise a quarter of its entire programming
on television and radio.
What is of relevance for the purposes of the determination
of the issues raised is the fact that the applicant has based the allegations
of infringement of her fundamental rights and freedoms on the alleged bias in
favour of ZANU-PF exhibited by the Zimbabwe Broadcasting Corporation, in the
selection and presentation of programmes on political matters on television and
radio. It is the alleged conduct of the Zimbabwe Broadcasting Corporation which
the applicant says caused her to refuse to pay the licence fee for the
television and radio sets in her possession. It is the same conduct, of the
alleged biased selection and presentation of programmes in favour of ZANU-PF on
political matters which founded the allegation of infringement of the
applicant's fundamental rights and freedoms.
The nature of the relief sought by the applicant is
telling. It is concerned with the prevention of the alleged bias the Zimbabwe
Broadcasting Corporation is accused of exhibiting in favour of ZANU-PF in
broadcasting programmes on political matters on television and radio. The order
sought is in the following terms:
“IT IS DECLARED THAT;
1. Sections 38B2, 38C and 38D1-4 of the Broadcasting
Services Act [Chapter 12:06] are constitutionally invalid in that they are
ultra vires section 71(3)(b)(i) and (ii).
2. There shall be urgent enforcement of applicant's rights
which are being infringed in that 1st respondent ceases forthwith to
be biased in favour of ZANU-PF or any other political party in its programming
and gives coverage equally to the applicant's and other political parties.
THEREFORE IT IS ORDERED THAT:
(i) 3rd respondent permanently stays prosecution
proceedings against applicant in terms of the Criminal Procedure and Evidence
Act [Chapter 9:07].
(ii) 1st, 2nd, 3rd
respondents forthwith respect, protect, promote and fulfil applicant's rights
and freedoms as set out in section 44 and 45 of the Constitution and comply
with sections 56(3), 58(1)(2), 60(1)(b), 61(1a)(4b)(4c), 67(1)(b) and (2),
71(3)(b)(i) and (ii) and 155(2)(d) which guarantee rights not to be unfairly
discriminated against on the grounds of political affiliation, freedom of
association and assembly, freedom of expression and freedom of the media,
political freedom and participation and the guarantee from unlawful deprivation
of property rights.
(iii) 1st, 2nd, 3rd
respondents specifically and forthwith cease the bias and partiality in 1st
respondent's programming by according equal coverage to applicant's political
party and others as it accords ZANU-PF.
(iv) In the alternative, 1st respondent is to
encrypt its signal to be received on subscription basis by those who wish to
associate with it and ZANU (PF) programming content.
(v) 1st and 2nd respondents bear
applicant's legal costs.”
With the exception of paragraph 1 of the relief sought,
which relates to the constitutional invalidity of the specified provisions of
the Broadcasting Services Act [Chapter 12:06], there is no declaration sought
to the effect that the conduct of the Zimbabwe Broadcasting Corporation is
unconstitutional in that it infringes any of the fundamental rights and
freedoms listed.
The Constitution confers power on a court, under section
85(1), to grant appropriate relief to an injured person who has approached it
for relief.
It is not the business of a court to grant relief to an
applicant whose fundamental rights or freedoms have not been violated. He or
she would be an uninjured applicant. A court does not grant relief to an
uninjured applicant.
A relief that does not contain a declaration of a finding
of infringement of a fundamental right or freedom, and, ipso facto,
constitutional invalidity of the conduct or legislation under attack, has no
legal justification.
The substance of the relief sought by the applicant is the
exhortation by the court to the respondents to discharge their constitutional
obligation to respect, protect, promote and fulfil the applicant's fundamental
rights and freedom.
It is not the duty of a court to remind other duty-bearers
to observe their duties in the absence of proven infringement of a fundamental
human right or freedom.
The court has proceeded to examine the matter further on
the basis of the principle that an application falls or stands on the founding
affidavit and that 'appropriate relief' under section 85(1) of the
Constitution gives a court wide discretionary power to grant relief that is
different from that claimed
The determination of appropriate relief calls for the
balancing of various interests that might be affected by the remedy. The
balancing must at least be guided by the objective;
(i) First to address the wrong occasioned by the
infringement of the constitutional right;
(ii) Secondly, to deter future violations;
(iii) Third, to make an order that can be complied with;
and
(iv) Fourth, achieve the objective of fairness to all who
might be affected by the relief.
The nature of the infringement will invariably provide
guidance as to the appropriate relief.
In this case, no infringement of a fundamental right or
freedom was established because the applicant adopted a wrong remedy for the
protection of the rights she alleges were infringed.
The principles of supremacy of the Constitution and
one-system-of-law require that in the choice of the law and appropriate remedy
for the protection of a fundamental right or freedom allegedly infringed by any
conduct, consideration must be given to the question whether there is in
existence a law of general application governing the conduct complained of and
if there is, whether the constitutionality of that law is being impugned.
The threshold test of law of general application excludes
instances in which the party whose conduct has been found to limit a
fundamental right cannot rely upon an existing rule of law as a justification
for the limitation. There cannot be justification of conduct for which no legal
authorization exists. The question of the validity of conduct which falls
within the ambit of a law of general application cannot be determined by
reference to the Constitution. It must be determined by reference to the
provisions of the law of general application unless the constitutionality of
that law is itself being attacked.
WOOLMAN and BISHOP – 'Constitutional Law of South Africa' 2
ed Juta Vol. 2…, comment as follows:
“To say that only 'law of general application' may justify
the impairment of a fundamental right means that conduct – public or private –
that limits a fundamental right but which is not sourced in a law of general
application cannot be justified.”
In August v Electoral Commission and Others 1999 (3)
SA 1 (CC)…, it was held that in the absence of a disqualifying legislative
provision it was not possible for respondents to seek to justify the threatened
infringement of prisoners' rights to register as voters in an election as there
was no law of general application upon which they could rely to do so.
In Minister of Safety and Security and Another v Xaba 2003 (2)
SA 103 (D), police officers compelled a suspect to have surgery to remove a
bullet that they believed would provide evidence connecting the suspect to a
crime he was alleged to have committed. Neither the Criminal Procedure Act nor
any other law authorizes surgery without consent. As a result, the exercise of
State power to compel surgery of a suspect in the absence of legal authority
failed to satisfy the law leg of the test for law of general application. See
also: WOOLMAN and BISHOP – 'Constitutional Law of South Africa' 2 ed Juta Vol.
2…,; De Lille and Anor v Speaker of National Assembly 1998 (3) SA 430 (C);
Pretoria City Council v Walker 1998 (2) SA 363.
The conduct complained of in this case is the alleged
biased selection and presentation of television and radio programmes by the
public broadcaster in favour of ZANU-PF political party. There is a law of
general application prohibiting specifically such conduct by a public
broadcaster. Part 1 of the Seventh Schedule to section 11(1)(b1) of the Broadcasting
Services Act [Chapter 12:06] on programming by public broadcasters provides:
“REQUIREMENTS FOR
PUBLIC BROADCASTERS:
The broadcasting service operated by a public broadcaster
shall,
(a)…,.
(b)…,.
(c)…,.
(d) Provide news and public affairs programming which meets
the highest standards of journalism which is fair and unbiased and
independent from Government, commercial or other interests.”
The Broadcasting Services Act [Chapter 12:06] provides, in
section 2A(1)(e) and (f), that its purpose is to regulate broadcasting services
to attain, amongst others, the following objectives:
“1(e) Tto promote public broadcasting services in the
interest of the public;
(f) To ensure the independence, impartiality and
viability of public broadcasting services.”
Section 160G of the Electoral Act [Chapter 2:13] requires a
public broadcaster to afford all political parties contesting an election such
free access to its broadcasting services as may be prescribed. The regulations
by which free access to broadcasting services is prescribed are required to
make provision for the total time to be allocated to each political party, the
duration of each broadcast and the areas to which broadcasts made by political
parties are to be transmitted. The regulations must ensure a fair and balanced
allocation of time between each political party. They must ensure that each
political party is allowed a reasonable opportunity to present a case through
the broadcasting service concerned.
Section 160J of the Electoral Act [Chapter 2:13], which deals with
conduct of news media during an election period, requires all broadcasters to
ensure that all political parties are treated equitably in their news media in
regard to the extent, timing and prominence of the coverage accorded to them.
Not only is institutional and editorial independence
guaranteed to the Zimbabwe Broadcasting Corporation, the public broadcaster is
required to act in an independent and unbiased manner in the selection and
presentation of television and radio programmes. There is a provision
prohibiting the Zimbabwe Broadcasting Corporation, as a public broadcaster,
from acting in a manner that favours the viewpoints of one political party
whilst shutting out, as a matter of policy, view points of other political
parties on matters of national interest. If the Zimbabwe Broadcasting
Corporation is biased towards ZANU-PF in its programming, as alleged by the
applicant, it commits conduct which is in breach of its statutory obligations.
The conduct complained of does not give rise to a
constitutional matter at all.
Where a law of general application prohibits conduct, the
commission of such conduct does not give rise to a constitutional question. The
question of the legality of the conduct is determined on the basis of the
interpretation and application of the statutory provision prohibiting the
conduct unless the constitutionality of the statutory provision itself is
challenged.
Bias is a well -known ground for review of administrative
conduct in Administrative Law.
The Administrative Justice Act [Chapter 10:28] provides
effective procedural and substantive remedies for the protection of the
applicant's rights. Under the Administrative Justice Act, an applicant would be
entitled to administrative conduct, on the part of the Zimbabwe Broadcasting
Corporation, which gives effect to the right to unbiased selection and
presentation of programmes on news and current affairs as required by paragraph
(d) of Part 1 of the Seventh Schedule to the Broadcasting Services Act [Chapter
12:06]….,.
The provisions, the validity of which is impugned, are
executory in that they provide for a mechanism for the fixing, collection and
payment of the value of the obligation imposed by section 38B(1) of the Broadcasting
Services Act [Chapter 12:06]. The provisions in question provide the means
which are appropriate for the achievement of the public purpose for which the
obligation to pay tax was imposed by section 38B(1). The purpose is to create a
fund to guarantee, to the public broadcaster, institutional and editorial
independence in the selection and presentation of programmes on television and
radio. The deprivation of property, in the form of the money collected as tax,
is incidental to the main purpose.
Compulsory deprivation of property is not the primary
purpose of the provisions.
The content and purpose of the programmes the Zimbabwe
Broadcasting Corporation is enabled to produce, select and broadcast and the
manner in which it must perform its functions are not matters for the
provisions the validity of which is impugned. They are matters provided for
under the requirements of Part 1 of the Seventh Schedule to the Broadcasting
Services Act [Chapter 12:06].
It is clear from the provisions of paragraph (d) of Part 1
of the Seventh Schedule to the Broadcasting Services Act [Chapter 12:06] that
in selecting and presenting the programmes, the Zimbabwe Broadcasting
Corporation is required to act in an unbiased manner. Its conduct must be
independent of Government, commercial, or any other interest. It must be
viewpoint neutral. By specifically prohibiting programmes that are biased in
favour of one viewpoint whilst shutting out other viewpoints on matters of
national interest, Part 1 of the Seventh Schedule to the Broadcasting Services
Act [Chapter 12:06] places biased conduct in programming within the ambit of a
law of general application.
The applicant was bound by the principle of subsidiarity in
the choice of the law on which to found the cause of action.
According to the principle of subsidiarity, litigants who
aver that a right protected by the Constitution has been infringed must rely on
legislation enacted to protect that right and may not rely on the underlying
constitutional provision directly when bringing action to protect the right,
unless they want to attack the constitutional validity or efficacy of the
legislation itself. See AJ VAN DER WALT: 'Constitutional
Property Law' 3ed Juta…,; MEC for
Education: KwaZulu Natal v Pillay 2008 (1) SA 474 (CC)….,; Chirwa v Transet Ltd
2008 (2) SA 24 (CC)…,.
The cause of the alleged violation of the fundamental right
not to be compulsorily deprived of property except by a law of general
application satisfying the conditions set out in section 71(3)(b)(i) or (ii) of
the Constitution is the alleged bias, in favour of ZANU-PF, exhibited by the
public broadcaster in the selection and presentation of programmes on political
matters on television and radio. Part 1 of the Seventh Schedule to the Broadcasting
Services Act [Chapter 12:06] prohibits specifically biased programming by the
public broadcaster.
The applicant did not impugn the constitutional validity of
paragraph (d) of Part 1 of the Seventh Schedule to the Broadcasting
Services Act [Chapter 12:06].
The applicant was required, on the principle of subsidiarity,
to rely on the provisions of the Seventh Schedule to the Broadcasting Services
Act [Chapter 12:06] to protect the rights she alleged were infringed. Reliance
on the provisions of the Broadcasting Services Act [Chapter 12:06], the
validity of which was impugned, was a misplaced remedy because those provisions
had no direct relationship with the bias in the programme by the Zimbabwe
Broadcasting Corporation which she is complaining about….,.
Disguising an attack on the validity of conduct as an attack
on the constitutionality of legislation governing that conduct cannot save the
applicant from the requirements of the principle of subsidiarity.
What the applicant is complaining about is the alleged
violation of the right to fair and unbiased administrative conduct by the Zimbabwe
Broadcasting Corporation. That right is protected by paragraph (d) of Part 1 of
the Seventh Schedule to the Broadcasting Services Act [Chapter 12:06] as read
with section 3 of the Administrative Justice Act.
The Administrative Justice Act provides the
remedy for the enforcement of the protection of the right in question.
