To discharge the constitutional mandate of enforcing or securing the enforcement of fundamental human rights and freedoms enshrined in the Constitution, the Court must exercise the power expressly conferred on it.

Its duty is to determine the question whether the conduct of the State, forming the subject of complaint, contravenes the fundamental right or freedom sought to be enforced. It must come up with an affirmative or negative answer to that question after consideration of all the circumstances of the case.

It is unthinkable, in the circumstances, that the Court can restrict the exercise of the power and not inquire into the method by which the presence of an accused person before it was secured. It has to inquire if the allegation is that the conduct of the public officers involved in bringing the accused person violated his or her fundamental right.

The only occasion in which the Court can decline to exercise its powers, under section 24(4) of the Constitution, is if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person under other provisions of the Constitution or under any other law.

What it cannot do is to decline to exercise the power to determine the question whether or not the fundamental right has been or is being or is likely to be contravened by the conduct of the State forming the subject of complaint properly brought before it.

This is an application in terms of section 85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) 2013 (“the Constitution”) alleging that the applicant's fundamental right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair, enshrined in section 68(1) of the Constitution, has been infringed.

The cause of the alleged infringement is the decision by the first respondent to withdraw an offer letter given to the applicant to occupy a piece of agricultural land without giving her an opportunity to be heard on the proposed withdrawal of the offer letter.

The background facts are that on 30 August 2002 the Government compulsorily acquired Lot 1 of the whole of Manyewe Farm in Mazowe District of Mashonaland Central Province which was then registered in the name of Ridwyn (Pvt) Ltd under Deed of Transfer No. 8426/2002.

On 10 July 2008, the acquiring authority offered the applicant the right to occupy, hold and use the whole of Lot 1 of Manyewe Farm measuring 464 hectares. The applicant accepted the allocation of the piece of land by signing the offer letter containing a number of terms and conditions. One of the terms of the offer letter was that the Minister of Lands and Rural Resettlement (“the Minister”) reserved the right to withdraw or change the offer if he deemed it necessary or if the holder of the offer letter was found to be in breach of any of the conditions of the offer letter.

In 2013, the Minister decided to subdivide the land allocated to the applicant into two portions measuring 210 and 254 hectares respectively. On 23 July 2013, the applicant was advised of the decision to withdraw the offer letter relating to Lot 1 of Manyewe Farm which had already been subdivided. On the same date, an offer letter was sent to the applicant allocating to her the right to occupy, hold and use for agricultural settlement, subdivision 2 of Lot 1 of Manyewe Farm measuring 210 hectares. Subdivision 1 of Lot 1 of Manyewe Farm measuring 254 hectares was allocated to the second respondent who accepted the offer.

The applicant was served with the notice of withdrawal of the offer letter relating to Lot 1 and the offer letter relating to subdivision 2 of Lot 1 on 11 November 2013.

The applicant refused to accept the offer letter relating to subdivision 2 of Lot 1 of Manyewe Farm arguing that the land allocated to her was rocky and not arable land. She subsequently applied to the High Court for review of the decision of the Minister to subdivide Lot 1 of Manyewe Farm. She also sought a review of the decision of the Minister to withdraw the offer letter in respect of Lot 1 without giving her notice of the administrative conduct.

The applicant withdrew the application for review of the Minister's decision after the second respondent opposed it on the ground that the application should have been made to the Administrative Court.

Instead of lodging the application with the Administrative Court after its withdrawal from the High Court, the applicant approached the Constitutional Court. She made an application under section 85(1)(a) of the Constitution alleging that her rights under sections 68(1), 71(3) and 291 of the Constitution had been and were being infringed by the administrative conduct of the Minister. The administrative conduct alleged to have violated the applicant's rights was the decision to withdraw the offer letter relating to Lot 1 of Manyewe Farm without giving the applicant notice of the intended action and affording her a reasonable opportunity to make representation on the matter.

The application was opposed on four grounds.

(i) The first was that the application was in the wrong forum as it should have been made to the Administrative Court. 

(ii) The second ground was that section 291 of the Constitution is not part of Chapter 4 and did not enshrine a fundamental right.

The contention was that section 291 did not guarantee to the applicant a fundamental right the infringement of which entitled her to approach the Constitutional Court for appropriate relief in terms of section 85(1)(a) of the Constitution. 

(iii) The third ground on which the application was opposed was that section 71(3) of the Constitution had no bearing on the legality of the decision of the Minister because it was concerned with compulsory acquisition of property by the State and not the withdrawal of rights to occupy, hold and use State land given to a person in terms of an offer letter.

(iv) The fourth ground on which the application was opposed was that the existence of the Administrative Justice Act [Chapter 10:28] gives effect to the fundamental rights enshrined in section 68(1) and (2) of the Constitution and provides an effective remedy for their protection and enforcement.

All the four points raised by counsel for the second respondent are unassailable….,.

The applicant founded her cause of action on section 68 of the Constitution. In paragraphs 17 and 18 of the founding affidavit, the applicant avers as follows:

“17. Second respondent was allocated the arable portion of the property which I was using in my rose production. This is the portion of the property where one can engage in farming activities as compared to the other portion which is not arable.

18. The decision of the 1^st respondent to subdivide the property and allocate the 2^nd respondent the portion that I was using and shoving me to the rocky, mountainous, and unarable portion is grossly arbitrary and unreasonable.”

The meaning of section 68 of the Constitution escaped the applicant's legal representative.

Section 68(1) of the Constitution gives every person the right to administrative conduct and sets out the standards the conduct has to meet. Section 68(1) of the Constitution defines the scope, substantive and procedural content of the right concerned. Section 68(2) gives a person whose right has been infringed by an administrative conduct a right to be given, promptly, written reasons for the conduct. Section 68(3) of the Constitution goes on to provide that there shall be an Act of Parliament that gives effect to the rights given under subsections (1) and (2).

Subsection (3) of section 68 of the Constitution provides that the Act of Parliament giving effect to the rights given under subsections (1) and (2) must require that administrative conduct should meet the standards set out in subsection (1) and that there be the substantive and procedural protection required under subsection (2) in the event of alleged infringement of the right by an administrative conduct.  Subsection (3) of section 68 of the Constitution provides that the Act of Parliament must include remedies for effective judicial review of administrative conduct complained of to ensure that it meets the standards set out in subsection (1). The remedy would include the right of access to a court with power to review administrative conduct.

Once an Act of Parliament, which gives effect to all the rights to just administrative conduct set out in subsections (1), (2) and (3), is enacted, section 68 of the Constitution takes a back seat. 

The question whether any administrative conduct meets the requirements of administrative justice must be determined in accordance with the provisions of the Administrative Justice Act. Unless there is no Administrative Justice Act or the complaint is that the provisions of the Act do not give effect to the fundamental rights guaranteed under section 68(1) of the Constitution in the terms required by subsection (3), section 68 cannot found a complaint of its violation in terms of section 85 of the Constitution.

Where there is an Administrative Justice Act which gives full effect to all the substantive and procedural requirements for effective protection of the fundamental rights guaranteed under section 68, the Act must surely govern the process for the determination of the question whether a specific administrative conduct is in accordance with the standards of administrative justice. There cannot be an allegation in terms of section 85(1) of the Constitution of administrative conduct violating the fundamental right to administrative justice enshrined in section 68 of the Constitution when there is an Act of Parliament which validly gives full effect to the requirements for the protection of the fundamental right against the provision of which the legality of the administrative conduct must be tested.

Section 33(1) of the Constitution of the Republic of South Africa 1996 on which section 68 of the Constitution is broadly modeled provides:

“Just Administrative Action

33(1) Every one has the right to administrative action that is lawful, reasonable and procedurally fair.

(2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.

(3) National legislation must be enacted to give effect to these rights and must –

(a) Provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;

(b) Impose a duty on the State to give effect to the rights in subsections (1) and (2); and

 (c) Promote an efficient administration.”

The rights given under subsections (1) and (2) of section 33 of the Constitution of the Republic of South Africa were given effect to by the Promotion of Administrative Justice Act No.3 of 2000 (PAJA) which is the equivalent of our Administrative Justice Act (AJA). Commenting on the relationship of the Promotion of Administrative Justice Act No.3 of 2000 to administrative justice rights and the status of rights in section 33 of the Constitution of the Republic of South Africa, CURRIE I and DE WAAL J, in the 'Bill of Rights Handbook', JUTA & Co. 6 ed….., say:

“Since the commencement of the PAJA judicial review of administrative action generally has a legislative basis. In other words, it is based on the rights, duties and remedies provided for in the Act itself. The rights to just administrative action in the Constitution now play an indirect rather than direct role in judicial review.”

At page 649 of the 'Bill of Rights Handbook' the learned authors state:

“Before the introduction of PAJA, challenges to the validity of administrative action were constitutional challenges based on the rights to administrative justice in the Bill of Rights - rights that are interpreted by reference to corresponding rights in the common law. But what is the status of the constitutional rights in section 33 today?

The PAJA 'gives effect to' the constitutional rights in section 33. This means that the Act makes the rights effective by providing an elaborated and detailed expression of the rights to just administrative action and providing remedies to vindicate them. The constitutional rights exist independently of the statute that gives effect to them but retreat to a background role. This is because Parliament chose to give effect to the rights in section 33 by enacting a general and comprehensive administrative action as defined by the Act.”

Two principles discourage reliance on the constitutional rights to administrative justice.

(i) The first is the principle of avoidance which dictates that remedies should be found in legislation before resorting to constitutional remedies.

(ii) The second principle is one of subsidiarity which holds that norms of greater specificity should be relied on before resorting to norms of greater abstraction.

The applicant is not challenging the constitutional validity of any provision of the Administrative Justice Act nor is she seeking to use the constitutional rights to administrative justice to interpret the provisions of the Administrative Justice Act. The exceptional circumstances in which an applicant can rely on the constitutional rights to administrative justice do not apply to the applicant. 

She ought to have used the remedies provided for under the Administrative Justice Act to enforce her rights to just administrative conduct.

The application is dismissed. There shall be no order as to costs.

The Zimbabwe Broadcasting Corporation, as a public broadcaster, cannot work in a culture which is that it does what it likes without having to be accountable. The applicants, like all tax payers, have a right to know how their money is spent.

In MEC for Development Planning & Local Government, Gauteng v Democratic Party 1998 (4) SA 1157 (CC) it was said:

“Where there are both constitutional issues and other issues in the appeal, it will seldom be in the interests of justice that the appeal be brought directly to this Court.”

Useful guidance can also be gleaned from the decisions of the United States Supreme Court. In Spector Motor Services, Inc. v Mclaughlin 323 U.S. 101, 103 (1944), JUSTICE FRANKFURTER remarked:

“[i] there is no doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not pass on questions of constitutionality…, unless such adjudication is unavoidable.”

In Ashwander v Tenessee Valley Authority (TVA) 297 U.S. 288, 345-48, (1936) the Court held:

Regarding the propriety of the Order, the applicants alleged that although the chamber application for leave to execute was served upon Messrs Atherstone & Cook, who are its legal practitioners of record and who had represented the applicants in the main matter and noted the appeals from the order of MTSHIYA J, the notice of set down for the hearing in chambers was served at the applicants' place of business when the deponent to the founding affidavit was out of the country. It is only at about 2pm on 13 September 2016, during the course of enquiry with the clerk to MWAYERA J as to the progress in the matter, that the applicants' legal practitioner became aware that the application was set down for 3pm on the same date. The applicants' legal practitioner appeared before the Judge and requested that the matter be deferred to secure counsel's attendance but this failed and he was forced to present argument failing which the matter would be dealt with as unopposed.

It was alleged, further, that the Order was constitutionally invalid and the applicants stood to suffer closure of their business and consequent loss of millions of dollars on the basis of that invalidity.

The Order, it was averred, was in breach of the provisions of sections 56(1), 69(2), 69(3) and 69(4) of the Constitution of Zimbabwe.

SUBMISSIONS IN OPPOSITION

The application was opposed by the respondents who raised various points, in limine, the most pertinent ones being that:-

(i) The applicants should have exhausted domestic remedies, namely, an appeal to the Supreme Court; alternatively, the applicants ought to have proceeded in terms of section 85(1) of the Constitution.

(ii) The application was defective in that no affidavit by the applicants' legal practitioners was attached in support of the averments made by the applicant.

DISPOSITION

As I understood counsel for the applicants' submissions, the Order of MWAYERA J was wrong.

However, even if the applicants were to appeal against it to the Supreme Court, the relief of stay of execution would not be available to them in view of the wording of the Order. Such relief, it was submitted, could only be granted by this Court pending the determination of an appeal before it.

The difficulty I have with the relief sought is that there are other remedies available to the applicants. The sole reason advanced for bringing the matter before the Constitutional Court is that the remedy of stay of execution, which is sought herein, is not available in the High Court or the Supreme Court.

I do not think the reason advanced is adequate.

Decisions of this Court have indicated that where there are other remedies available, an applicant must pursue those remedies before approaching the Constitutional Court. If the applicants' grievances may be remedied by proceedings in another court, that is the route that the applicants must take.

If, as the applicants contend, the Order of MWAYERA J, restricting their right of appeal is wrong, the proper course is to appeal directly against that Order to the Supreme Court. That Court would be in a position to deal with any interlocutory applications pending the determination of the appeal before it.

In my view, no good reason has been advanced as to why leave to appeal to the Constitutional Court should be granted. While the criticism advanced against the propriety of paragraph 2 of the Order may contain some merit, there is, available to the applicants, another avenue for the vindication of its rights.

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 1^st 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, 1^st 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 1^st 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 1^st 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) 3^rd respondent permanently stays prosecution proceedings against applicant in terms of the Criminal Procedure and Evidence Act [Chapter 9:07].

(ii) 1^st, 2^nd, 3^rd 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) 1^st, 2^nd, 3^rd respondents specifically and forthwith cease the bias and partiality in 1^st respondent's programming by according equal coverage to applicant's political party and others as it accords ZANU-PF.

(iv) In the alternative, 1^st 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) 1^st and 2^nd 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