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Constitutional Rights re: Approach, Scope, Limitation, Attenuation & Justiciability or Enforcement of Fundamental Rights

SC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

Section 15(1) of the Constitution provides that:“(1) No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.”In this case, the only relevant concepts are “torture”; “inhuman treatment” and “degrading treatment”. They make up the three key elements of the protection of a person's ...
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SC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

The constitutional principle of proportionality..., requires that a fair balance be struck between the interests of the individual in the protection of his or her fundamental rights and freedoms and the interests of the public...,.
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HH11-08 : ALBERT MUGOVE MATAPO vs COMMANDER OF THE ZIMBABWE NATIONAL ARMY AND THREE OTHERS
Ruled By: HUNGWE J

A trial body which lacked jurisdiction, in my view, is a serious violation of the right to a fair trial and an assault on the provisions of section 18(1) of the Constitution of the Republic of Zimbabwe.
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Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

Everyone has a right to waive an advantage of a law made solely for his or her benefit and protection in his or her private capacity. He or she may dispense with the benefit or advantage, provided he or she does so without infringing any public right or public policy. ...
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HH128-09 : ROUTE TOUTE BV & OTHERS vs MINISTER OF NATIONAL SECURITY RESPONSIBLE FOR LAND LAND REFORM AND RESETTLEMENT & OTHERS
Ruled By: PATEL J

Section 16B of the Constitution of Zimbabwe came into operation on the 14th of September 2005. Subsections (2) and (3) of section 16B of the Constitution of Zimbabwe..., provide as follows:“(2) Notwithstanding anything contained in this Chapter –(a) All agricultural land –(i) that was identified on or before the 8th ...
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HH549-15 : ELSIE BHILA vs THE MASTER OF HIGH COURT and FREDDY CHMBARI NO and RATIDZO BHILA and KELVIN BHILA and KWATINI BHILA
Ruled By: MWAYERA J

The recognition of one individual's rights has to be as much as practically upheld while at the same time bearing in mind that the next person equally has rights that have to be upheld. It is that process of seeking to balance all individual's rights that, of necessity, the rights of one do not ...
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HH549-15 : ELSIE BHILA vs THE MASTER OF HIGH COURT and FREDDY CHMBARI NO and RATIDZO BHILA and KELVIN BHILA and KWATINI BHILA
Ruled By: MWAYERA J

The Constitution of Zimbabwe Amendment (No.20) Act 2013 itself actually regulates its application and interpretation. Section 44 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 reads - “The State and every person, including juristic persons, and every institution and agency of the Government, at every level, must respect, protect, promote, and fulfil the rights and freedoms ...
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CC11-15 : ARTHUR MUTAMBARA vs THE ATTORNEY GENERAL OF ZIMBABWE and COMMISSIONER GENERAL OF POLICE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and MAVANGIRA AJCC

A pertinent consideration with respect to the enjoyment of fundamental rights and freedoms is the imperative for one to exercise his/her rights to such freedoms in a manner that does not injure or undermine the rights of others.
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CC08-16 : OBEDIAH MAKONI vs COMMISSIONER OF PRISONS and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, MAVANGIRA JCC, BHUNU JCC, UCHENA JCC and CHITAKUNYE AJCC

As a preliminary interpretive point of departure, it is necessary to recognise the special status enjoyed by the rights and freedoms guaranteed by sections 51 and 53 of the Constitution. By virtue of section 86(3)(b) and (c) of the Constitution, no law may limit and no person may violate, inter alia, the right to ...
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CC01-18 : TIMOTHY SANGO and EDWARD DUMBURA vs BOARD OF TRUSTEES OF THE ANGLICAN DIOCESE OF MANICALAND and THE CIVIL SERVICE COMMISSION and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: CHIDYAUSIKU CJ and MALABA DCJ and GWAUNZA JCC and GOWORA JCC and HLATSHWAYO JCC and PATEL JCC and GUVAVA JCC and MAVANGIRA AJCC and BHUNU AJCC

An exercise of a right may bring about undesired consequences. These include reactions by others whose interests are adversely affected by the exercise of one's right. The applicants cannot seek protection from consequences of their own voluntary acts.
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CC09-18 : DEMOCRATIC ASSEMBLY FOR RESTORATION AND EMPOWERMENT and OTHERS vs NEWBERT SAUNYAMA N.O. and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS and ANOR
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and BHUNU JCC

The enjoyment of fundamental rights and freedoms is universally subject to one general rule. The rule is that the fundamental rights and freedoms granted to every person must always be exercised with due regard for the rights and freedoms of other persons. This Rule, which has been part of our constitutional jurisprudence for decades, has been ...
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HH558-16 : TAWANDA MUKUNGURUTSE and PATRICK CHIKOHORA and CLEDWYN MUTETE vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT RURAL AND URBAN DEVELOPMENT
Ruled By: TAGU J

Section 86 of the Constitution provides that - “(1) The fundamental rights and freedoms set out in this Chapter must be exercised reasonably and with due regard to rights and freedoms of other persons. (2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and ...
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SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

Section 86(2) of the Constitution provides for the limitations of rights and freedoms as follows: “(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on ...
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SC54-18 : CITY OF HARARE vs FARAI MUSHORIWA
Ruled By: PATEL JA, UCHENA JA and ZIYAMBI AJA

The learned author, N. GABRU: Some Comments on Water Rights in South Africa PER/PELJ 2005 Vol.8 No.1..., notes, quite correctly, that fundamental rights and freedoms are not absolute, their boundaries being demarcated by the rights of others and by the legitimate needs of society.
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HH172-17 : TENDAI MANGWIRO vs MINISTER OF JUSTICE & LEGAL AFFAIRS (N.O.) and MINISTER OF HOME AFFAIRS (N.O) and ATTORNEY-GENERAL OF ZIMBABWE (N.O.)
Ruled By: MUSHORE J

The test of proportionality is an expanded juristic translation of the factors which are found in section 86(2) of the Constitution. It is apposite in providing guidelines for determining the validity of a limitation even in the face of an existing or potential collision with guaranteed Constitutional rights. It balances out the list of considerations itemised ...
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HH172-17 : TENDAI MANGWIRO vs MINISTER OF JUSTICE & LEGAL AFFAIRS (N.O.) and MINISTER OF HOME AFFAIRS (N.O) and ATTORNEY-GENERAL OF ZIMBABWE (N.O.)
Ruled By: MUSHORE J

RIGHTS WHICH CANNOT BE LIMITED WHATSOEVER Section 86(3) of the Constitution provides as follows: “Section 86(3): No law may limit the following rights enshrined in this Chapter, and no person may violate them - (a) The right to life, except to the extent specified in section 48; (b) The right to human dignity; (c) The right not to be tortured or subjected to cruel, inhuman or degrading ...
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Appealed
CC11-18 : LYTTON INVESTMENTS (PRIVATE) LIMITED vs STANDARD CHARTERED BANK ZIMBABWE LIMITED and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ

Respect for fundamental rights and freedoms is one of the foundational values and principles set out in section 3 of the Constitution. It is a foundational value which must be upheld by any body exercising public authority. Section 3 of the Constitution sets out the objective principles which underscore the importance of fundamental human rights and freedoms and ...
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Appealed
CC11-18 : LYTTON INVESTMENTS (PRIVATE) LIMITED vs STANDARD CHARTERED BANK ZIMBABWE LIMITED and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ

Constitutional rights conferred without express limitation should not be cut down by reading implicit limitations into them.
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CC10-19 : THE STATE vs WILLARD CHOKURAMBA (JUSTICE FOR CHILDREN'S TRUST INTERVENING AS AMICUS CURIAE and ZIMBABWE LAWYERS FOR HUMAN RIGHTS INTERVENING AS AMICUS CURIAE)
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, HLATSHWAYO JCC, MAVANGIRA JCC, BHUNU JCC, UCHENA JCC and MAKONI AJCC

Section 53 of the Constitution of Zimbabwe Amendment (No.20) Act, 2013 (“the Constitution”) protects the fundamental right of every person not to be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment. The protected right is absolute and non-derogable.
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CC10-19 : THE STATE vs WILLARD CHOKURAMBA (JUSTICE FOR CHILDREN'S TRUST INTERVENING AS AMICUS CURIAE and ZIMBABWE LAWYERS FOR HUMAN RIGHTS INTERVENING AS AMICUS CURIAE)
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, HLATSHWAYO JCC, MAVANGIRA JCC, BHUNU JCC, UCHENA JCC and MAKONI AJCC

The assessment of the purpose of the protection of a fundamental human right or freedom takes into account the values and principles on which a democratic society is based.
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HB156-16 : LUCKSON MATEURE vs SAMUEL CHIDUMWA
Ruled By: MATHONSI J and MAKONESE J

There is no evidence on the record that the applicant was alleging infringement of a fundamental right. In my view, for any party to resort to the provisions of section 85 of the Constitution, he must assert infringement of a fundamental right. Section 86 deals with limitation of rights and freedoms and stipulates as follows:- “(3) No law may ...
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HHB166-16 : ADMIRE CHIKWAYI vs THE STATE
Ruled By: KAMOCHA J and MAKONESE J

A basic tenant of Constitutional Law is that not all rights are absolute but their restriction has to be proportionate to the means that it seeks to achieve.
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HH181-16 : MICHAEL NYIKA and CRISPEN TOBAIWA 1 vs MINISTER OF HOME AFFAIRS 2 and COMMISSIONER GENERAL, POLICE N.O. and INSPECTOR DAMBURAI and CONSTABLE LISBORNE CHIBANDA
Ruled By: TSANGA J

With the ushering in of the new Constitution in 2013, an unprecedented number of civil and political liberties have been introduced by the new Constitution to keep the State accountable. The tenets of the new Constitution commit the State to fostering a new era of people-centred constitutionalism. Core to constitutionalism is regulating all forms of public power….,. Writing about ...
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HH475-18 : ETHEL TSITSI MPEZENI vs ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: ZHOU J

Injury, in the context of contravention of the declaration of rights arises from the mere invasion of the right protected by the Constitution and by the common law. Put in other words, the harm is constituted by the mere violation of the right.
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HH05-18 : MOVEMENT FOR DEMOCRATIC CHANGE (T) and MOVEMENT FOR DEMOCRATIC CHANGE (N) and SARAH KACHINGWE vs ZIMBABWE ELECTORAL COMMISSION and REGISTRAR GENERAL N.O. and OTHERS
Ruled By: MUNANGATI-MANONGWA J

In passing, I need state that an Act of Parliament cannot come in the way of the full enjoyment of a right bestowed by the Constitution.
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HH311-18 : SERGEANT KHAUYEZA (F048677J) vs THE TRIAL OFFICER (Superintendent J. Mandizha) and THE COMMISSIONER GENERAL OF POLICE
Ruled By: CHIWESHE JP and CHAREWA J

It is an accepted principle of human rights law that it is not every interference with a person's rights that must receive a remedy. This is particularly so where the right is not an absolute right, but is subject to other competing interests: viz security, public interest; See African Commission on Human and Peoples' Rights v ...
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SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

Chapter 4 of the Constitution sets out the Declaration of Rights, divided into several Parts.Part 1 deals with the application and interpretation of Chapter 4. Part 2 enumerates those rights that are considered to be fundamental rights and freedoms. Part 3 elaborates certain rights and freedoms in relation to their ...
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HH390-18 : MIDLANDS STATE UNIVERSITY vs ALOIS MATONGO
Ruled By: MUZOFA J

In terms of section 69(3) of the Constitution, every person has the right of access to the courts. This right, though, can only be exercised reasonably and with due regard for the rights and freedoms of other persons in terms of section 86(1) of the Constitution. In essence, it is ...
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CC04-20 : INNOCENT GONESE and JESSIE MAJOME vs PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF THE SENATE and EMMERSON MNANGAGWA N.O. and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and BHUNU JCC

Section 45(1) of the Constitution provides that the provisions guaranteeing the protection and promotion of fundamental human rights and freedoms, enshrined in Chapter 4, are binding on the State and all executive, legislative, and judicial institutions....,.Section 85(1) of the Constitution secures the fundamental rights and freedoms by making courts of ...
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SC14-13 : CONSTANTINE CHIMAKURE and VINCENT KAHIYA and ZIMIND PUBLISHERS (PVT) LTD vs THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

The next matter which the Constitution controls is the origin and quality of the provision by which the restriction is imposed on the exercise of the right to freedom of expression. It requires that any interference with freedom of expression must be 'contained in law.' The legislature alone may specify clearly and concretely in ...
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CC20-20 : MATHEW SOGOLANI vs MINISTER OF PRIMARY AND SECONDARY EDUCATION and HEADMASTER, MASHAMBANHAKA SECONDARY SCHOOL and HEADMASTER, CHIZUNGU PRIMARY SCHOOL and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

Freedom is one of the underlying values of the Declaration of Rights.Courts must interpret all rights to promote the underlying values of human dignity, equality and freedom. Human dignity has little value without freedom; for without freedom personal development and fulfilment are not possible. Without freedom, human dignity is little ...
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CC20-20 : MATHEW SOGOLANI vs MINISTER OF PRIMARY AND SECONDARY EDUCATION and HEADMASTER, MASHAMBANHAKA SECONDARY SCHOOL and HEADMASTER, CHIZUNGU PRIMARY SCHOOL and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

This is an application made in terms of section 85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act, 2013 (“the Constitution”) for appropriate relief based on a freedom of religion claim.The application raises questions of the constitutionality of the policy and the actions of the education authorities of compelling school ...
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SSC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X
Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

From a procedural aspect, the burden of proof is on the challenger to establish that the impugned law goes further than is reasonably justifiable in a democratic society; and not, as is common with the Constitutions of other countries, upon the State to show that it does not: see Zimbabwe ...
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SSC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X
Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

(a) Is the limitation upon freedom of expression contained in any law?The term “law” is defined in section 113(1) of the Constitution to include “any unwritten law in force in Zimbabwe, including African customary law.”The common law in force in Zimbabwe falls within the definition.
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CC04-18 : GABRIEL SHUMBA and SIBONILE MFUMISI and DARLINGTON NYAMBIYA vs MINISTER OF JUSTICE and CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

This is an application in terms of section 85(1)(a) of the Constitution and the background to the matter is as follows:-The applicants are all citizens of, but are not resident in, Zimbabwe. They give different reasons for their absence, with the first applicant citing political reasons. The second applicant cites ...