They complain about the infringement of the fundamental rights of girl children subjected to early marriages and seek a declaratory order in the terms that:

“1. The effect of section 78(1) of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 is to set 18 years as the minimum age of marriage in Zimbabwe.

2. No person, male or female, in Zimbabwe, may enter into any marriage including an unregistered customary law union or any other union including one arising out of religion or a religious rite before attaining the age of eighteen (18).

3. Section 22(1) of the Marriage Act [Chapter 5:11] is unconstitutional.

4. The Customary Marriages Act [Chapter 5:07] is unconstitutional in that it does not provide for a minimum age limit of eighteen (18) years in respect of any marriage contracted under the same.

5. The respondents pay costs of suit.”

The application arose out of the interpretation and application by the applicants, on legal advice, of section 78(1) as read with section 81(1) of the Constitution.

Section 78(1) of the Constitution is one of the provisions in Chapter 4 which enshrine fundamental human rights and freedoms. It provides:

“78 Marriage Rights

(1) Every person who has attained the age of eighteen years has the right to found a family.

(2) No person may be compelled to enter into marriage against their will.

(3) Persons of the same sex are prohibited from marrying each other.”

Section 81(1) of the Constitution enshrines the fundamental rights of the child.

The fundamental rights, the alleged infringement of which are relevant to the determination of the issues raised by the application, are:

“81 Rights of Children

(1) Every child, that is to say, every boy and girl under the age of eighteen years, has the right –

(a) To equal treatment before the law, including the right to be heard;

(b)…,.

(c)…,.

(d) To family or parental care or to appropriate care when removed from the family environment;

(e) To be protected from economic and sexual exploitation, from child labour, and from maltreatment, neglect, or any form of abuse;

(f) To education, health care services, nutrition, and shelter;

(g)…,.

(h)…,.

(2) A child's best interests are paramount in every matter concerning the child.

(3) Children are entitled to adequate protection by the courts, in particular, by the High Court as their upper guardian.”

The protection of the fundamental rights of the child is guaranteed under section 44 of the Constitution.

The provision imposes an obligation on the State and every person, including juristic persons, and every institution and agency of the Government, at every level, to respect, protect, promote and fulfil the rights and freedoms set out in Chapter 4.

The applicants contend that on a broad, generous, and purposive interpretation of section 78(1) as read with section 81(1) of the Constitution, the age of eighteen years has become the minimum age for marriage in Zimbabwe.

They argued, that, section 78(1) of the Constitution cannot be subjected to a strict, narrow, and literal interpretation to determine its meaning if regard is had to the contents of similar provisions on marriage and family rights found in international human rights instruments from which section 78(1) of the Constitution derives inspiration.

The applicants claimed the right to approach the court seeking the relief they seek under section 85(1)(a) and (d) of the Constitution. In paragraph 16 of the founding affidavit, the first applicant, with whom the second applicant agreed, states:

“16:…,. The issues I raise below are in the public interest, and, therefore, I bring this application in terms of section 85(1)(a) and (d) of the Constitution of Zimbabwe.”

In paragraph 21 of the founding affidavit, the first applicant states:

“21. The instant application is an important public interest application that seeks to challenge the law in so far as it relates to child marriages in Zimbabwe. It is motivated by my desire to protect the interests of children in Zimbabwe.”

At the time sections 78(1) and 81(1) of the Constitution came into force, section 22(1) of the Marriage Act [Chapter 5:11] provided, that, a girl who had attained the age of sixteen years was capable of contracting a valid marriage. She had to obtain the consent, in writing, to the solemnization of the marriage of persons who were, at the time of the proposed marriage, her legal guardians, or, where she had only one legal guardian, the consent, in writing, of such legal guardian.

A boy under the age of eighteen years and a girl under the age of sixteen years had no capacity to contract a valid marriage except with the written permission of the Minister of Justice, Legal and Parliamentary Affairs (“the Minister”).

A child was defined under section 2 of the Child Abduction Act [Chapter 5:05] and section 2 of the Children's Protection and Adoption Act [Chapter 5:06] to be a person under the age of sixteen years.

The applicants contend that since “a child” is now defined by section 81(1) of the Constitution to mean a girl and a boy under the age of eighteen years, no child has the capacity to enter into a valid marriage in Zimbabwe since the coming into force of sections 78(1) and 81(1) of the Constitution on 22 May 2013.

They contend further, that, section 22(1) of the Marriage Act, or any other law which authorises a girl under the age of eighteen years to marry, infringes the fundamental right of the girl child to equal treatment before the law enshrined in section 81(1)(a) of the Constitution.

The argument was that section 22(1) of the Marriage Act exposes the girl child to the horrific consequences of early marriage which are the very injuries against which the fundamental rights are intended to protect every child.

The respondents opposed the application and the granting of the relief sought by the applicants on two alternative grounds.

They took as a point in limine the contention, that, the applicants lacked the right to approach the court claiming the relief sought.

The argument made on behalf of the respondents was that although the applicants claimed to have approached the court in terms of section 85(1)(a) of the Constitution, they did not allege that any of their own interests was adversely affected by the alleged infringement of the fundamental rights of the girl child.

The respondents pointed to the fact, that, none of the applicants alleged that she entered into marriage with the boy who made her pregnant. They said that the applicants alleged that they got pregnant, stopped going to school, and went to live with the boys concerned at their parents homes. The applicants did not suggest that they entered into unregistered customary law unions.

The argument was that the applicants were no longer children protected from the consequences of early marriage by the fundamental rights of the child enshrined in section 81(1) of the Constitution.

On the question whether the applicants had locus standi to approach the court, acting in the public interest, under section 85(1)(d) of the Constitution, the respondents contend that the applicants failed to satisfy the requirements of standing under the relevant provision.

They alleged in the opposing affidavits, that, the applicants were required to give particulars of girl children whose fundamental rights had been infringed and on whose behalf they purported to act.

It was common cause, that, the applicants made no reference, in the grounds of the application, to any particular girl or girls whose rights had been, were being, or were likely to be infringed by being subjected to child marriage in terms of section 22(1) of the Marriage Act or any other law.

The argument was that the applicants had not produced facts to support their claim to locus standi under section 85(1)(d) of the Constitution.

The grounds of opposition to the application on the merits are straight forward.

The respondents denied that section 78(1) of the Constitution has the effect of setting the age of eighteen years as the minimum age for marriage in Zimbabwe. Their reason for the denial was that section 78(1) of the Constitution gives a person who has attained the age of eighteen the “right to found a family.”

The contention is that the meaning of section 78(1) of the Constitution is apparent from the grammatical and ordinary meaning of the language used in giving the “right to found a family.”

The respondents contend, further, that section 78(1) of the Constitution does not give a person who has attained the age of eighteen years the “right to enter into marriage.”

The minor premise on which the contention is based is that the “right to found a family” does not imply the right to marry.

The respondents supported their denial of the contention that section 78(1) of the Constitution sets the age of eighteen years as the minimum age of marriage by the argument advanced on their behalf, that, section 78(1) of the Constitution is not amenable to a broad, generous, and purposive interpretation in the determination of its meaning.

The argument was that it is only accommodative of a literal interpretation.

The effect of the respondents argument was that the question of interpretation did not arise as the words used were clear and un-ambiguous.

Having denied the allegation that section 78(1) of the Constitution sets the age of eighteen years as the minimum age for marriage, the respondents went on to deny that section 22(1) of the Marriage Act, or any other law which authorizes a girl child who has attained the age of sixteen years to marry, contravenes section 78(1) of the Constitution.

They raised as a rationale for the difference in the treatment of a girl child and a boy child under section 22(1) of the Marriage Act - the old notion that a girl matures physiologically and psychologically earlier than a boy.

They put forward the notion of the alleged difference in the rates of maturity in the growth and development of girls and boys as justification for legislation which condemns a girl child, under the pretext of marriage, to a life of sexual exploitation and physical abuse.

The respondents took the view, that, there was nothing unconstitutional about legislation which authorised child marriage.

They suggested that the applicants were the cause of the problem.

The argument was that they should have taken responsibility for getting pregnant. The contention is that instead of seeking to have legislation on child marriage declared unconstitutional, the applicants should have taken advantage of their painful experiences to embark on advocacy and educational programmes to share their experiences with girl children. In that way, the argument went, they would give the girl children the skills and knowledge necessary to enable them to make the right choices on matters of sexual and reproductive health.

Four questions arise for determination from the positions taken by the applicants and the respondents. They are:

(1) Whether or not the applicants have, on the facts, locus standi, under section 85(1)(a) or section 85(1)(d) of the Constitution, to institute the proceedings claiming the relief they seek.

(2) If they are found to have standing before the Court, does section 78(1) of the Constitution set the age of eighteen years as the minimum age for marriage in Zimbabwe?

(3) If the answer to issue No.2 is in the affirmative, did the coming into force of sections 78(1) and 81(1) of the Constitution, on 22 May 2013, render invalid section 22(1) of the Marriage Act [Chapter 5:05] and any other law authorizing a girl who has attained the age of sixteen to marry?

(4) If the answer to issue No.3 is in the affirmative, what is the appropriate relief to be granted by the Court in the exercise of the wide discretion conferred on it under section 85(1) of the Constitution.

LOCUS STANDI

The right to approach a court directly seeking appropriate relief in cases arising from alleged infringement of a fundamental human right or freedom enshrined in Chapter 4 of the Constitution is given to the persons specified under section 85(1) of the Constitution.

Section 85(1) of the Constitution provides:

“85 Enforcement of fundamental human rights and freedoms

(1) Any of the following persons, namely –

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests of a group or class of persons;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members;
is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being, or is likely to be infringed and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”

The applicants alleged, that, the fundamental rights of a girl child to equal treatment before the law and not to be subjected to any form of marriage enshrined in section 81(1) as read with section 78(1) of the Constitution have been, are being, and are likely to be infringed if an order declaring section 22(1) of the Marriage Act, and any other law authorising child marriage, unconstitutional was not granted by the Court.

What is in issue is the capacity in which the applicants act in claiming the right to approach the court on the allegations they have made.

In claiming locus standi under section 85(1) of the Constitution, a person should act in one capacity in approaching a court and not act in two or more capacities in one proceeding.

The respondents correctly submitted, that, although the applicants claimed to have been acting in their own interests, in terms of section 85(1)(a) of the Constitution, the facts showed that they had failed to satisfy the requirements of that rule.

The rule requires, that, the person claiming the right to approach the court must show on the facts, that, he or she seeks to vindicate his or her own interest adversely affected by an infringement of a fundamental right or freedom. The infringement must be in relation to himself or herself as the victim or there must be harm or injury to his or her own interests arising directly from the infringement of a fundamental right or freedom of another person.

In other words, the person must have a direct relationship with the cause of action.

The first part of the rule of standing under section 85(1)(a) of the Constitution needs no elaboration. Its content has constituted the meaning of the traditional and narrow rule of standing with which any common law lawyer is familiar. It is the rule which prompted CHIDYAUSIKU CJ to comment, in Mawarire v Mugabe NO and Others CC01-13…,:

“Certainly this Court does not expect to appear before it only those who are dripping with the blood of the actual infringement of their rights or those who are shivering incoherently with the fear of the impending threat which has actually engulfed them. This Court will entertain even those who calmly perceive a looming infringement and issue a declaration or appropriate order to stave the threat, moreso under the liberal post-2009 requirements.”

That is the familiar rule of locus standi based on the requirement of proof by the claimant of having been or of being a victim of infringement or threatened infringement of a fundamental right or freedom enshrined in Chapter 4 of the Constitution.

The second aspect of the rule is not so familiar. It needs elaboration.

The Canadian cases of R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 and Morgentaler Smoling and Scott v R (1988) 31 CRR 1 illustrate the point, that, a person would have standing under a provision similar to section 85(1)(a) of the Constitution to challenge unconstitutional law if he or she could be liable to conviction for an offence charged under the law even though the unconstitutional effects were not directed against him or her per se.

It would be sufficient for a person to show that he or she was directly affected by the unconstitutional legislation. If this was shown, it mattered not whether he or she was a victim.

In R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 a corporation was allowed to challenge the constitutionality of a statutory provision at a criminal trial on the grounds that it infringed the rights of human beings and was accordingly invalid.

The corporation had been charged in terms of a statute which prohibited trading on Sundays.

It did not have a right to religious freedom. The corporation was nevertheless permitted to raise the constitutionality of the statute which was held to be in breach of the Charter on the Rights and Freedoms (see Ferreira v Levin NO and Others 1996 (1) SA 984…,.). The corporation had a financial interest in the form of profits made out of trading on Sundays.

The concept used in section 85(1)(a) of the Constitution is “own interests” the broad meaning of which includes indirect interests such as commercial interests.

The corporation alleged, that, the statute was unconstitutional because it infringed the fundamental right to freedom of religion of non-Christians who did not observe Sunday as the day of rest and worship.

In getting the statute declared unconstitutional, the corporation's primary purpose was the protection of its own commercial interests and freedom from criminal prosecution for alleged breach of an invalid statutory provision.

A similar issue arose in Morgentaler Smoling and Scott v R (1988) 31 CRR 1: Male doctors who were prosecuted under anti-abortion provisions successfully challenged the constitutionality of the legislation in terms of which they were prosecuted.

The legislation directly infringed the rights of pregnant women who were the victims of the anti-abortion provisions.

The rights, the infringement of which formed the basis of the constitutional challenge, were of pregnant women. The rights did not and could not vest in the male doctors. If pregnant women were free to consult the doctors for purposes of abortion, the doctors would benefit financially from charging for services rendered in performing the abortions.

The doctors had their own financial and personal interests to protect in challenging the constitutionality of the anti-abortion legislation on the ground that it infringed the fundamental right of pregnant women to security of the person enshrined in section 7 of the Charter.

Counsel for the applicants conceded, that, the applicants were not victims of the alleged infringements of the fundamental rights of girl children involved in early marriages. They failed to show that any of their own interests were adversely affected by the alleged infringement of the rights of girl children subjected to early marriages. They could not identify any girl child or girl children the infringement of whose rights could be said to have directly and adversely affected their own interests.

Since the applicants were not victims of the infringements of the fundamental rights enshrined in section 81(1) of the Constitution, as they are not children, they could not benefit personally from a declaration of unconstitutionality of any legislation authorizing child marriage.

The contention by the respondents, that, the applicants lack standing under section 85(1)(d) of the Constitution is based on an erroneous view of the requirements of the rule.

The argument that the applicants were not entitled to approach the court to vindicate public interest in the well-being of children protected by the fundamental rights of the child enshrined in section 81(1) of the Constitution overlooked the fact, that, children are a vulnerable group in society whose interests constitute a category of public interest.

Notwithstanding the allusion to acting under section 85(1)(a) of the Constitution, the founding affidavit shows that the applicants believed themselves to be acting in terms of section 85(1)(d) and had their hearts in that rule.

What the respondents accused the applicants of failing to allege is a fact required to be alleged by a person acting in terms of section 85(1)(d) of the Constitution.

Section 85(1)(d) of the Constitution is based on the presumption, that, the effect of the infringement of a fundamental right impacts upon the community at large or a segment of the community such that there would be no identifiable persons or determinate class of persons who would have suffered legal injury.

The primary purpose of proceedings commenced in terms of section 85(1)(d) of the Constitution is to protect the public interest adversely affected by the infringement of a fundamental right. The effective protection of the public interest must be shown to be the legitimate aim or objective sought to be accomplished by the litigation and the relief sought.

The rule of standing under section 85(1)(d) of the Constitution must be understood in the context of its purpose and the objectives it is intended to achieve.

Section 44 of the Constitution imposes the obligation on the State, and every institution and agency of the Government, at every level, to respect, protect, promote, and fulfil the fundamental rights and freedoms enshrined in Chapter 4 of the Constitution.

The constitutional obligation requires the State to protect every fundamental right and freedom regardless of the social and economic status of the right-holder.

Like a shepherd who cannot escape liability for a lost sheep by claiming ignorance of what happened to it, the State is expected to know what is happening to fundamental rights and freedoms enshrined in Chapter 4. It is under an obligation to account, in the public interest, for any infringement of a fundamental right - even by a private person.

The scheme of fundamental human rights and freedoms enshrined in Chapter 4 is based on the constitutional obligation imposed on the State, and every institution and agency of the Government, at every level, to protect the fundamental rights and freedoms to ensure that they are enjoyed in practice.

Section 85(1) of the Constitution is the cornerstone of the procedural and substantive remedies for effective judicial protection of fundamental rights and freedoms and the enforcement of the constitutional obligation imposed on the State, and every institution and agency of the government, at every level, to protect the fundamental rights in the event of proven infringement.

The right to a remedy provided for under section 85(1) of the Constitution is one of the most fundamental and essential rights for the effective protection of all other fundamental rights and freedoms enshrined in Chapter 4.

The right to a remedy, enshrined in section 85(1) of the Constitution, constitutes a constitutional obligation inherent in Chapter 4 as a whole.

The form and structure of section 85(1) of the Constitution shows, that, it is a product of the liberalisation of the narrow, traditional conception of locus standi.

The traditional rule of standing gave a right to approach a competent court for enforcement of a fundamental right or freedom to a person who would have suffered direct legal injury by reason of infringement or threatened infringement of his or her fundamental right or legally protected interest by the impugned action of the State or public authority.

Except for a case where a person was unable to personally seek redress by reason of being under physical detention, no one could ordinarily seek judicial redress for legal injury suffered by another person.

The object of section 85(1) of the Constitution is to ensure that cases of infringement of fundamental rights which adversely affect different interests covered by each rule of standing are brought to the attention of a court for redress.

The object is to overcome the formal defects in the legal system so as to guarantee real and substantial justice to the masses, particularly the poor, marginalised, and deprived sections of society.

The fundamental principle is that every fundamental human right or freedom enshrined in Chapter 4 is entitled to a full measure of effective protection under the constitutional obligation imposed on the State.

The right of access to justice, which is itself a fundamental right, must be made available to a person who is able, under each of the rules of standing, to vindicate the interest adversely affected by an infringement of a fundamental right, at the same time enforcing the constitutional obligation to protect and promote the right or freedom concerned.

The liberalisation of the narrow, traditional conception of standing and the provision of the fundamental right of access to justice compel a court exercising jurisdiction under section 85(1) of the Constitution to adopt a broad and generous approach to standing.

The approach must eschew over reliance on procedural technicalities to afford full protection to the fundamental human rights and freedoms enshrined in Chapter 4.

A court exercising jurisdiction under section 85(1) of the Constitution is obliged to ensure that the exercise of the right of access to judicial remedies for enforcement of fundamental human rights and effective protection of the interests concerned is not hindered, provided the substantive requirements of the rule under which standing is claimed are satisfied.

In Ferreira v Levin NO and Others 1996 (1) SA 984…, CHASKALSON P writing for the Constitutional Court of South Africa made reference to the need to adopt a broad approach to standing in constitutional cases in these terms…,:

“Whilst it is important that this Court should not be required to deal with abstract or hypothetical issues, and should devote its scarce resources to issues that are properly before it, I can see no good reason for adopting a narrow approach to the issue of standing in constitutional cases. On the contrary, it is my view, that, we should rather adopt a broad approach to standing. This would be consistent with the mandate given to this court to uphold the Constitution and would serve to ensure that constitutional rights enjoy the full measure of the protection to which they are entitled.”

Section 85(1)(d) of the Constitution is founded on the broadest conception of standing.

Its primary purpose is to ensure effective protection to any public interest shown to have been or to be adversely affected by an infringement of a fundamental right or freedom.

Whilst its purpose is to ensure that a person who approaches a court in terms of the procedure prescribed under the rule has the protection of public interest as the objective to be accomplished by the litigation, section 85(1)(d) of the Constitution directs against the use of the procedure to protect private, personal, or parochial interests.

By definition, public interest is not private, personal or parochial interest.

An infringement of a fundamental right may cause legal injury to an individual or prejudicially affect private interest without being of a nature that adversely affects the interests of the community at large or a significant section of the community.

The cause of action must show that the proceedings are in the public interest.

Public interest is one of those value laden and amorphous concepts, the limits and substance of which is difficult to define with precision.

Section 85(1)(d) of the Constitution does not define public interest.

The reason is that it does not require a narrow approach which seeks to answer the question “what is public interest?” The courts, in many jurisdictions, have preferred to leave the definition of public interest open. They prefer to determine the question of public interest on the basis of the circumstances of each case.

Given that most violations of fundamental human rights and freedoms are fact and context specific, it is appropriate to keep concepts such as “public interest" broad and flexible to develop in line with changing times and social conditions reflective of community attitudes.

The words “in the public interest” qualify the action to be taken to ensure that it is one intended to achieve the purpose for which locus standi under section 85(1)(d) of the Constitution is designed.

The term “in the public interest” as used in section 85(1)(d) of the Constitution classically imparts a discretionary value judgment to be made by reference to undefined factual matters as they change from case to case. The facts are confined only in so far as the subject matter, the scope, and purpose of the fundamental right allegedly infringed enable.

There are many areas of national and community activities which may be subject to the public interest. Used in the context of section 85(1)(d) of the Constitution, public interest does not mean that which gratifies curiosity or merely satisfies appetite for information or amusement.

It is also necessary to distinguish between “what is in the public interest” and what is of interest to the public: see R v Inhabitants of the County of Bedfordshire [1855] 24 LJQB 81…,.; Lion Laboratories Limited v Evans [1985] QB 526…,.; O'Sullivan v Farrer [1989] 168 CLR 210…,.

The use of the words “the public interest” in section 85(1)(d) of the Constitution suggests, that, there are many categories or facets of public interest. The task is to ascertain, amongst others, the public interest to be served.

As was observed by the Australian Federal Court in Mckinnon v Secretary, Department of Treasury [2005] FCAFC 142…, “the public interest is not one homogenous undivided concept.”

Often quoted is LORD HAILSHAM'S dictum in D v National Society for the Prevention of Cruelty to Children [1978] AC 171…, where he said: “The categories of public interest are not closed.”

Matters of public interest that would affect fundamental rights and freedoms would include, for example, public health, national security, defence, international obligations, proper and due administration of criminal justice, independence of the judiciary, observance of the rule of law, the welfare of children, a clean environment, among others.

Public interest is a term embracing matters, among others, of standards of human conduct tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members.

The paramount test should be whether the alleged infringement of a fundamental right or freedom has the effect of prejudicially affecting or potentially affecting the community at large or a significant section or segment of the community.

The test covers cases of marginalised or underprivileged persons in society, who, because of sufficient reasons such as poverty, disability, socially and economically disadvantaged positions, are unable to approach a court to vindicate their rights.

Section 85(1)(d) of the Constitution was introduced with the view of providing expansive access to justice to wider interests in society, particularly the vulnerable groups in society, the infringement of whose rights would have remained un-redressed under the narrow traditional conception of standing.

The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. A public interest action will usually involve foregoing personal benefit to benefit a greater good to achieve the goals of social justice: see Sinclair v Mining Warden At Maryborough [1975] 132 CLR 473…,.

Whilst acting in the public interest is the imperative for standing under section 85(1)(d) of the Constitution, the meaning or content of public interest will vary from case to case depending on the facts and circumstances.

Public responsibilities regarded as being in the public interest in one case may not be so regarded in a different context because facts and circumstances may differ. The facts may reveal more reasonable and effective methods of resolving the dispute than bringing the matter to court. The concept is elastic and relative rather than fixed and absolute.

Whether a person is acting in the public interest is a question of fact.

It is an objective test which does not depend for its answer on what the person says. In other words, the fact that a person says he or she is acting in the public interest is irrelevant to the determination of the issue. A person is, on the facts and in the circumstances of the case, either acting in the public interest or he or she is not.

There are factors by which a court should be able to decide whether or not a person is genuinely acting in the public interest.

Asserting that an action is in the public interest involves setting oneself up in judgment as to whether the action will benefit the public overall. To act in the public interest is to act in favour of the broader rather than narrow interests. What is important is to set out factors or matters to be considered when deciding whether a person is genuinely acting in the public interest.

The adoption of the approach of testing the actions of the applicant against a set of factors, as an objective standard, is necessitated by the elasticity and relativity of the concept of public interest which is an abstract notion. It is also necessitated by the fact, that, there can be a natural suspicion that the notion of acting in the public interest may be invoked as a smokescreen to garner support for something that actually is in the applicant's own interest.

The factors to be considered do not only help the court to decide whether the action taken is genuinely in the public interest as to meet the requirements of section 85(1)(d) of the Constitution, they are important for the protection of judicial process against abuse for private interest.

As was observed in Stevenson v Minister of Local Government & Ors 2001 (1) ZLR 321 (H) the factors ensure that “potentially viable public causes are not frittered away in frivolous, furtive, unfocused or self-serving private litigation” disguised as public interest.

The factors relate to the key issues that a person facing the challenge of justifying the proceedings instituted as being in the public interest needs to address.

The judicial process is invoked for the purposes of achieving constitutional objectives. The court must be careful not to risk the credibility of its process by unwittingly associating its jurisdiction with proceedings that have nothing to do with the objectives of public interest litigation.

Section 85(1)(d) of the Constitution guarantees standing to a person who institutes judicial proceedings seeking to achieve the objectives for which the remedy of acting in the public interest was designed.

It is in the context of seeking to ensure that public interest litigation is used for its intended purpose, and to prevent section 85(1)(d) procedure being abused by busybodies, merely meddlesome people for oblique motives unrelated to vindication of public interest, that courts developed factors that any person genuinely acting in the public interest has to satisfy: see State of Uttaranchal v Chaufal & Ors, AIR (2010) SC 2550.

In a minority judgment which has received approval in subsequent decisions of the Constitutional Court of South Africa, O'REGAN J in Ferreira v Levin NO and Others 1996 (1) SA 984 in considering the interpretation and application of section 7(4)(b)(v) of the Interim Constitution of South Africa, worded in terms identical to section 85(1)(d) of the Constitution, said…,.:

“This Court will be circumspect in affording applicants standing by way of section 7(4)(b)(v) and will require an applicant to show that he or she is genuinely acting in the public interest. Factors relevant to determining whether a person is genuinely acting in the public interest will include considerations such as:

(i) Whether there is another reasonable and effective manner in which the challenge can be brought;
(ii) The nature of the relief sought and the extent to which it is of general and prospective application; and (iii) The range of persons or groups who may be directly or indirectly affected by any order made by the court and the opportunity that those persons or groups have had to present evidence and argument to the court.

These factors will need to be considered in the light of the facts and circumstances of each case.”

In Lawyers for Human Rights & Anor v Minister of Home Affairs & Anor 2004 (4) SA 125 (CC) YACOOB J…, said:

“The issue is always whether a person or organisation acts genuinely in the public interest. A distinction must however be made between the subjective position of the person or organisation claiming to act in the public interest on the one hand, and whether it is objectively speaking in the public interest for the particular proceedings to be brought.

It is ordinarily not in the public interest for proceedings to be brought in the abstract. But this is not an invariable principle.

There may be circumstances in which it will be in the public interest to bring proceedings even if there is no live case. The factors set out by O'REGAN J (Ferreira v Levin NO and Others 1996 (1) SA 984) help to determine the question. The list of relevant factors is not closed. I would add that the degree of vulnerability of the people affected; the nature of the right said to be infringed; as well as the consequences of the infringement of the right are also important considerations in the analysis.”

In SP Gupta v The Union of India & Ors (1982) 2 SCR 365 BHAGWATI J…, writing for the full Bench of the Supreme Court of India, analysed in great detail the origin and rationale behind public interest standing adopted in many democratic legal systems.

He concluded, that, fundamental to public interest standing provisions is the modern conception of the role of law as a weapon for social change. There is also the conception of the judicial function as investing law with meaning primarily aimed at preserving legal order by confining the legislative and executive organs of Government within their powers in the interest of the public, whilst also directed at enforcement of individual rights.

In paragraph [18] of SP Gupta v The Union of India & Ors (1982) 2 SCR 365, the Indian Supreme Court highlighted the importance of affording locus standi to a person acting in the public interest for the vindication of the rule of law. BHAGWATI J…, said:

“But there may be cases where the State or a public authority may act in violation of a constitutional obligation or fail to carry out such obligation, resulting in injury to public interest or what may conveniently be termed as public injury as distinguished from private injury.

Who would have standing to complain against such act or omission of the State or public authority? Can any member of the public sue for judicial redress? Or is the standing limited only to a certain class of persons? Or there is no one who can complain and the public injury must go unredressed.

…,. If the State or any public authority acts beyond the scope of its power and thereby causes a specific legal injury to a person or to a determinate class or group of persons, it would be a case of private injury actionable in the manner discussed in the preceding paragraphs. So also if the duty is owed by the State or any public authority to a person or to a determinate class or group of persons, it would give rise to a corresponding right in such person or determinate class or group of persons and they would be entitled to maintain an action for judicial redress.

But, if no specific legal injury is caused to a person or to a determinate class or group by the act or omission of the State or any public authority and the injury is caused only to public interest, the question arises as to who can maintain an action for vindicating the rule of law and setting aside the unlawful action or enforcing the performance of the public duty.

If no one can maintain an action for redress of such public wrong or public injury, it would be disastrous for the rule of law; for, it would be open to the State or a public authority to act with impunity beyond the scope of its power or in breach of a public duty owed by it.

The Courts cannot countenance such a situation where the observance of the law is left to the sweet will of the authority bound by it, without any redress if the law is contravened.

The view has therefore been taken by the Courts in many decisions, that, whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public, acting bona fide and having sufficient interest, can maintain an action for redressal of such public wrong or public injury.

The strict rule of standing, which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress, is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy–body or a meddlesome interloper but who has sufficient interest in the proceedings.

There can be no doubt that the risk of legal action against the State or a public authority, by any citizen, will induce the State or such public authority to act with greater responsibility and care thereby improving the administration of justice.”

It is not necessary for a person challenging the constitutional validity of legislation to vindicate public interest, on the ground that the legislation has infringed or infringes a fundamental human right, to give particulars of a person or persons who suffered legal injury as a result of the alleged unconstitutionality of the legislation.

Section 85(1)(d) of the Constitution requires the person to allege that a fundamental human right enshrined in Chapter 4 has been, is being, or is likely to be infringed.

He or she is not required to give particulars of a right holder.

The reason is that constitutional invalidity of existing legislation takes place immediately the constitutional provision with which it is inconsistent comes into force.

Constitutional invalidity of legislation enacted after the constitutional provision has come into effect occurs immediately the legislation is enacted. Constitutional invalidity of legislation does not depend, in such circumstances, on when a fundamental human right is infringed.

Fundamental human rights and freedoms are guaranteed so that, beyond the permissible limitations, they are not infringed.

Legislation which is inconsistent with a constitutional provision enshrining a fundamental human right of freedom becomes invalid before application. Application of the legislation is, in the circumstances, an unnecessary factor in the determination of its constitutional validity.

In the main volume of ERASMUS SUPERIOR COURT PRACTICE, Juta…, the learned authors considered the meaning of section 38(d) of the Constitution of the Republic of South Africa, 1996.

Section 38(d) of the Constitution of the Republic of South Africa, 1996 is in identical terms as section 85(1)(d) of the Constitution.

The learned authors made the observation, that, there are important policy reasons why the new ground of standing introduced in section 38(d) should not be interpreted restrictively. The learned authors said the reason is that standing accorded to persons to act in the public interest is “much broader than the other grants of standing contained in section 38.”

On the question whether a person challenging the constitutionality of legislation is required, under section 38(d) of the Constitution of the Republic of South Africa, to allege and prove infringement of a fundamental right of a particular person, the learned authors of ERASMUS SUPERIOR COURT PRACTICE said:

“In terms of this subsection, Chapter 2 litigation may be undertaken by a person acting in the public interest. All an applicant under this paragraph need essentially establish is that;
(I) Objectively speaking, the challenged rule or conduct is in breach of a right enshrined in Chapter 2;
(II) The public has a sufficient interest in an order of constitutional invalidity; and
(III) That the applicant is in fact acting in the public interest (rather than for his or her own interests or some ulterior motive).

As explained by O'REGAN J in Ferreira v Levin N.O. 1996 (1) SA 984 (CC) at para [235] there is no need to point to an infringement of, or threat to, the right of an individual person.

This flows from the notion of acting in the public interest: the public will ordinarily have an interest in the infringement of rights generally, not particularly.

Moreover, as ACKERMAN J explained, in proceedings concerning the validity of laws, the issue of whether the law is invalid or not does not depend on whether, at the moment when the issue is being considered, a particular person's rights are threatened or infringed by the offending law or not.

This is because laws which are inconsistent with the Constitution become invalid upon the commencement of the Constitution (in case of pre-constitutional laws) or upon the date when they came into force (in the case of post–constitutional laws).”

The applicants had no personal or financial gain to derive from the proceedings. They were not acting mala fide or out of extraneous motives as would have been the case if they were mere meddlesome busybodies seeking a day in court and cheap personal publicity.

The applicants were driven by the laudable motive of seeking to vindicate the rule of law and supremacy of the Constitution.

It is a high principle of Constitutional Law that people should be in a position to obey laws which are consistent with constitutional provisions enshrining fundamental human rights and freedoms.

They acted altruistically to protect public interest in the enforcement of the constitutional obligation on the State to protect the fundamental rights of girl children enshrined in section 81(1) as read with section 78(1) of the Constitution.

Children fall into the category of weak and vulnerable persons in society.

They are persons who have no capacity to approach a court on their own seeking appropriate relief for the redress of legal injury they would have suffered. The reasons for their incapacity are disability arising from minority, poverty, and socially and economically disadvantaged positions.

The law recognises the interests of such vulnerable persons in society as constituting public interest.

The proceedings instituted by the applicants, and the relief sought, were the only reasonable and effective means for enforcement of the fundamental rights of the girl children subjected to early marriages. The remedy they sought was the only means for an effective protection of the public interest adversely affected by the alleged infringement of the girl children's fundamental rights.

The respondents denied that there was infringement of the children's fundamental rights.

They could not be heard to argue that there were other reasonable and effective methods for enforcing the children's fundamental rights and protecting the public interest adversely affected by the alleged infringement.

The interests of the girl children subjected to early marriages were properly identified as a public interest to be protected by the relief sought in the proceedings.

Section 85(1)(d) of the Constitution underlines the principle that courts play a vital role in the provision of access to justice and protection of children.

These are matters of public interest.

A nation which is not concerned with the welfare of children cannot look forward to a bright future: see Murina & Ors v State of Uttar Pradesh & Ors (1982) 1 SCC 545.

They complain about the infringement of the fundamental rights of girl children subjected to early marriages and seek a declaratory order in the terms that:

“1. The effect of section 78(1) of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 is to set 18 years as the minimum age of marriage in Zimbabwe.

2. No person, male or female, in Zimbabwe, may enter into any marriage including an unregistered customary law union or any other union including one arising out of religion or a religious rite before attaining the age of eighteen (18).

3. Section 22(1) of the Marriage Act [Chapter 5:11] is unconstitutional.

4. The Customary Marriages Act [Chapter 5:07] is unconstitutional in that it does not provide for a minimum age limit of eighteen (18) years in respect of any marriage contracted under the same.

5. The respondents pay costs of suit.”

The application arose out of the interpretation and application by the applicants, on legal advice, of section 78(1) as read with section 81(1) of the Constitution.

Section 78(1) of the Constitution is one of the provisions in Chapter 4 which enshrine fundamental human rights and freedoms. It provides:

“78 Marriage Rights

(1) Every person who has attained the age of eighteen years has the right to found a family.

(2) No person may be compelled to enter into marriage against their will.

(3) Persons of the same sex are prohibited from marrying each other.”

Section 81(1) of the Constitution enshrines the fundamental rights of the child.

The fundamental rights, the alleged infringement of which are relevant to the determination of the issues raised by the application, are:

“81 Rights of Children

(1) Every child, that is to say, every boy and girl under the age of eighteen years, has the right –

(a) To equal treatment before the law, including the right to be heard;

(b)…,.

(c)…,.

(d) To family or parental care or to appropriate care when removed from the family environment;

(e) To be protected from economic and sexual exploitation, from child labour, and from maltreatment, neglect, or any form of abuse;

(f) To education, health care services, nutrition, and shelter;

(g)…,.

(h)…,.

(2) A child's best interests are paramount in every matter concerning the child.

(3) Children are entitled to adequate protection by the courts, in particular, by the High Court as their upper guardian.”

The protection of the fundamental rights of the child is guaranteed under section 44 of the Constitution.

The provision imposes an obligation on the State and every person, including juristic persons, and every institution and agency of the Government, at every level, to respect, protect, promote and fulfil the rights and freedoms set out in Chapter 4.

The applicants contend that on a broad, generous, and purposive interpretation of section 78(1) as read with section 81(1) of the Constitution, the age of eighteen years has become the minimum age for marriage in Zimbabwe.

They argued, that, section 78(1) of the Constitution cannot be subjected to a strict, narrow, and literal interpretation to determine its meaning if regard is had to the contents of similar provisions on marriage and family rights found in international human rights instruments from which section 78(1) of the Constitution derives inspiration.

The applicants claimed the right to approach the court seeking the relief they seek under section 85(1)(a) and (d) of the Constitution. In paragraph 16 of the founding affidavit, the first applicant, with whom the second applicant agreed, states:

“16:…,. The issues I raise below are in the public interest, and, therefore, I bring this application in terms of section 85(1)(a) and (d) of the Constitution of Zimbabwe.”

In paragraph 21 of the founding affidavit, the first applicant states:

“21. The instant application is an important public interest application that seeks to challenge the law in so far as it relates to child marriages in Zimbabwe. It is motivated by my desire to protect the interests of children in Zimbabwe.”

At the time sections 78(1) and 81(1) of the Constitution came into force, section 22(1) of the Marriage Act [Chapter 5:11] provided, that, a girl who had attained the age of sixteen years was capable of contracting a valid marriage. She had to obtain the consent, in writing, to the solemnization of the marriage of persons who were, at the time of the proposed marriage, her legal guardians, or, where she had only one legal guardian, the consent, in writing, of such legal guardian.

A boy under the age of eighteen years and a girl under the age of sixteen years had no capacity to contract a valid marriage except with the written permission of the Minister of Justice, Legal and Parliamentary Affairs (“the Minister”).

A child was defined under section 2 of the Child Abduction Act [Chapter 5:05] and section 2 of the Children's Protection and Adoption Act [Chapter 5:06] to be a person under the age of sixteen years.

The applicants contend that since “a child” is now defined by section 81(1) of the Constitution to mean a girl and a boy under the age of eighteen years, no child has the capacity to enter into a valid marriage in Zimbabwe since the coming into force of sections 78(1) and 81(1) of the Constitution on 22 May 2013.

They contend further, that, section 22(1) of the Marriage Act, or any other law which authorises a girl under the age of eighteen years to marry, infringes the fundamental right of the girl child to equal treatment before the law enshrined in section 81(1)(a) of the Constitution.

The argument was that section 22(1) of the Marriage Act exposes the girl child to the horrific consequences of early marriage which are the very injuries against which the fundamental rights are intended to protect every child.

The respondents opposed the application and the granting of the relief sought by the applicants on two alternative grounds.

They took as a point in limine the contention, that, the applicants lacked the right to approach the court claiming the relief sought.

The argument made on behalf of the respondents was that although the applicants claimed to have approached the court in terms of section 85(1)(a) of the Constitution, they did not allege that any of their own interests was adversely affected by the alleged infringement of the fundamental rights of the girl child.

The respondents pointed to the fact, that, none of the applicants alleged that she entered into marriage with the boy who made her pregnant. They said that the applicants alleged that they got pregnant, stopped going to school, and went to live with the boys concerned at their parents homes. The applicants did not suggest that they entered into unregistered customary law unions.

The argument was that the applicants were no longer children protected from the consequences of early marriage by the fundamental rights of the child enshrined in section 81(1) of the Constitution.

On the question whether the applicants had locus standi to approach the court, acting in the public interest, under section 85(1)(d) of the Constitution, the respondents contend that the applicants failed to satisfy the requirements of standing under the relevant provision.

They alleged in the opposing affidavits, that, the applicants were required to give particulars of girl children whose fundamental rights had been infringed and on whose behalf they purported to act.

It was common cause, that, the applicants made no reference, in the grounds of the application, to any particular girl or girls whose rights had been, were being, or were likely to be infringed by being subjected to child marriage in terms of section 22(1) of the Marriage Act or any other law.

The argument was that the applicants had not produced facts to support their claim to locus standi under section 85(1)(d) of the Constitution.

The grounds of opposition to the application on the merits are straight forward.

The respondents denied that section 78(1) of the Constitution has the effect of setting the age of eighteen years as the minimum age for marriage in Zimbabwe. Their reason for the denial was that section 78(1) of the Constitution gives a person who has attained the age of eighteen the “right to found a family.”

The contention is that the meaning of section 78(1) of the Constitution is apparent from the grammatical and ordinary meaning of the language used in giving the “right to found a family.”

The respondents contend, further, that section 78(1) of the Constitution does not give a person who has attained the age of eighteen years the “right to enter into marriage.”

The minor premise on which the contention is based is that the “right to found a family” does not imply the right to marry.

The respondents supported their denial of the contention that section 78(1) of the Constitution sets the age of eighteen years as the minimum age of marriage by the argument advanced on their behalf, that, section 78(1) of the Constitution is not amenable to a broad, generous, and purposive interpretation in the determination of its meaning.

The argument was that it is only accommodative of a literal interpretation.

The effect of the respondents argument was that the question of interpretation did not arise as the words used were clear and un-ambiguous.

Having denied the allegation that section 78(1) of the Constitution sets the age of eighteen years as the minimum age for marriage, the respondents went on to deny that section 22(1) of the Marriage Act, or any other law which authorizes a girl child who has attained the age of sixteen years to marry, contravenes section 78(1) of the Constitution.

They raised as a rationale for the difference in the treatment of a girl child and a boy child under section 22(1) of the Marriage Act - the old notion that a girl matures physiologically and psychologically earlier than a boy.

They put forward the notion of the alleged difference in the rates of maturity in the growth and development of girls and boys as justification for legislation which condemns a girl child, under the pretext of marriage, to a life of sexual exploitation and physical abuse.

The respondents took the view, that, there was nothing unconstitutional about legislation which authorised child marriage.

They suggested that the applicants were the cause of the problem.

The argument was that they should have taken responsibility for getting pregnant. The contention is that instead of seeking to have legislation on child marriage declared unconstitutional, the applicants should have taken advantage of their painful experiences to embark on advocacy and educational programmes to share their experiences with girl children. In that way, the argument went, they would give the girl children the skills and knowledge necessary to enable them to make the right choices on matters of sexual and reproductive health.

Four questions arise for determination from the positions taken by the applicants and the respondents. They are:

(1) Whether or not the applicants have, on the facts, locus standi, under section 85(1)(a) or section 85(1)(d) of the Constitution, to institute the proceedings claiming the relief they seek.

(2) If they are found to have standing before the Court, does section 78(1) of the Constitution set the age of eighteen years as the minimum age for marriage in Zimbabwe?

(3) If the answer to issue No.2 is in the affirmative, did the coming into force of sections 78(1) and 81(1) of the Constitution, on 22 May 2013, render invalid section 22(1) of the Marriage Act [Chapter 5:05] and any other law authorizing a girl who has attained the age of sixteen to marry?

(4) If the answer to issue No.3 is in the affirmative, what is the appropriate relief to be granted by the Court in the exercise of the wide discretion conferred on it under section 85(1) of the Constitution.

LOCUS STANDI

The right to approach a court directly seeking appropriate relief in cases arising from alleged infringement of a fundamental human right or freedom enshrined in Chapter 4 of the Constitution is given to the persons specified under section 85(1) of the Constitution.

Section 85(1) of the Constitution provides:

“85 Enforcement of fundamental human rights and freedoms

(1) Any of the following persons, namely –

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests of a group or class of persons;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members;
is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being, or is likely to be infringed and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”

The applicants alleged, that, the fundamental rights of a girl child to equal treatment before the law and not to be subjected to any form of marriage enshrined in section 81(1) as read with section 78(1) of the Constitution have been, are being, and are likely to be infringed if an order declaring section 22(1) of the Marriage Act, and any other law authorising child marriage, unconstitutional was not granted by the Court.

What is in issue is the capacity in which the applicants act in claiming the right to approach the court on the allegations they have made.

In claiming locus standi under section 85(1) of the Constitution, a person should act in one capacity in approaching a court and not act in two or more capacities in one proceeding.

The respondents correctly submitted, that, although the applicants claimed to have been acting in their own interests, in terms of section 85(1)(a) of the Constitution, the facts showed that they had failed to satisfy the requirements of that rule.

The rule requires, that, the person claiming the right to approach the court must show on the facts, that, he or she seeks to vindicate his or her own interest adversely affected by an infringement of a fundamental right or freedom. The infringement must be in relation to himself or herself as the victim or there must be harm or injury to his or her own interests arising directly from the infringement of a fundamental right or freedom of another person.

In other words, the person must have a direct relationship with the cause of action.

The first part of the rule of standing under section 85(1)(a) of the Constitution needs no elaboration. Its content has constituted the meaning of the traditional and narrow rule of standing with which any common law lawyer is familiar. It is the rule which prompted CHIDYAUSIKU CJ to comment, in Mawarire v Mugabe NO and Others CC01-13…,:

“Certainly this Court does not expect to appear before it only those who are dripping with the blood of the actual infringement of their rights or those who are shivering incoherently with the fear of the impending threat which has actually engulfed them. This Court will entertain even those who calmly perceive a looming infringement and issue a declaration or appropriate order to stave the threat, moreso under the liberal post-2009 requirements.”

That is the familiar rule of locus standi based on the requirement of proof by the claimant of having been or of being a victim of infringement or threatened infringement of a fundamental right or freedom enshrined in Chapter 4 of the Constitution.

The second aspect of the rule is not so familiar. It needs elaboration.

The Canadian cases of R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 and Morgentaler Smoling and Scott v R (1988) 31 CRR 1 illustrate the point, that, a person would have standing under a provision similar to section 85(1)(a) of the Constitution to challenge unconstitutional law if he or she could be liable to conviction for an offence charged under the law even though the unconstitutional effects were not directed against him or her per se.

It would be sufficient for a person to show that he or she was directly affected by the unconstitutional legislation. If this was shown, it mattered not whether he or she was a victim.

In R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 a corporation was allowed to challenge the constitutionality of a statutory provision at a criminal trial on the grounds that it infringed the rights of human beings and was accordingly invalid.

The corporation had been charged in terms of a statute which prohibited trading on Sundays.

It did not have a right to religious freedom. The corporation was nevertheless permitted to raise the constitutionality of the statute which was held to be in breach of the Charter on the Rights and Freedoms (see Ferreira v Levin NO and Others 1996 (1) SA 984…,.). The corporation had a financial interest in the form of profits made out of trading on Sundays.

The concept used in section 85(1)(a) of the Constitution is “own interests” the broad meaning of which includes indirect interests such as commercial interests.

The corporation alleged, that, the statute was unconstitutional because it infringed the fundamental right to freedom of religion of non-Christians who did not observe Sunday as the day of rest and worship.

In getting the statute declared unconstitutional, the corporation's primary purpose was the protection of its own commercial interests and freedom from criminal prosecution for alleged breach of an invalid statutory provision.

A similar issue arose in Morgentaler Smoling and Scott v R (1988) 31 CRR 1: Male doctors who were prosecuted under anti-abortion provisions successfully challenged the constitutionality of the legislation in terms of which they were prosecuted.

The legislation directly infringed the rights of pregnant women who were the victims of the anti-abortion provisions.

The rights, the infringement of which formed the basis of the constitutional challenge, were of pregnant women. The rights did not and could not vest in the male doctors. If pregnant women were free to consult the doctors for purposes of abortion, the doctors would benefit financially from charging for services rendered in performing the abortions.

The doctors had their own financial and personal interests to protect in challenging the constitutionality of the anti-abortion legislation on the ground that it infringed the fundamental right of pregnant women to security of the person enshrined in section 7 of the Charter.

Counsel for the applicants conceded, that, the applicants were not victims of the alleged infringements of the fundamental rights of girl children involved in early marriages. They failed to show that any of their own interests were adversely affected by the alleged infringement of the rights of girl children subjected to early marriages. They could not identify any girl child or girl children the infringement of whose rights could be said to have directly and adversely affected their own interests.

Since the applicants were not victims of the infringements of the fundamental rights enshrined in section 81(1) of the Constitution, as they are not children, they could not benefit personally from a declaration of unconstitutionality of any legislation authorizing child marriage.

The contention by the respondents, that, the applicants lack standing under section 85(1)(d) of the Constitution is based on an erroneous view of the requirements of the rule.

The argument that the applicants were not entitled to approach the court to vindicate public interest in the well-being of children protected by the fundamental rights of the child enshrined in section 81(1) of the Constitution overlooked the fact, that, children are a vulnerable group in society whose interests constitute a category of public interest.

Notwithstanding the allusion to acting under section 85(1)(a) of the Constitution, the founding affidavit shows that the applicants believed themselves to be acting in terms of section 85(1)(d) and had their hearts in that rule.

What the respondents accused the applicants of failing to allege is a fact required to be alleged by a person acting in terms of section 85(1)(d) of the Constitution.

Section 85(1)(d) of the Constitution is based on the presumption, that, the effect of the infringement of a fundamental right impacts upon the community at large or a segment of the community such that there would be no identifiable persons or determinate class of persons who would have suffered legal injury.

The primary purpose of proceedings commenced in terms of section 85(1)(d) of the Constitution is to protect the public interest adversely affected by the infringement of a fundamental right. The effective protection of the public interest must be shown to be the legitimate aim or objective sought to be accomplished by the litigation and the relief sought.

The rule of standing under section 85(1)(d) of the Constitution must be understood in the context of its purpose and the objectives it is intended to achieve.

Section 44 of the Constitution imposes the obligation on the State, and every institution and agency of the Government, at every level, to respect, protect, promote, and fulfil the fundamental rights and freedoms enshrined in Chapter 4 of the Constitution.

The constitutional obligation requires the State to protect every fundamental right and freedom regardless of the social and economic status of the right-holder.

Like a shepherd who cannot escape liability for a lost sheep by claiming ignorance of what happened to it, the State is expected to know what is happening to fundamental rights and freedoms enshrined in Chapter 4. It is under an obligation to account, in the public interest, for any infringement of a fundamental right - even by a private person.

The scheme of fundamental human rights and freedoms enshrined in Chapter 4 is based on the constitutional obligation imposed on the State, and every institution and agency of the Government, at every level, to protect the fundamental rights and freedoms to ensure that they are enjoyed in practice.

Section 85(1) of the Constitution is the cornerstone of the procedural and substantive remedies for effective judicial protection of fundamental rights and freedoms and the enforcement of the constitutional obligation imposed on the State, and every institution and agency of the government, at every level, to protect the fundamental rights in the event of proven infringement.

The right to a remedy provided for under section 85(1) of the Constitution is one of the most fundamental and essential rights for the effective protection of all other fundamental rights and freedoms enshrined in Chapter 4.

The right to a remedy, enshrined in section 85(1) of the Constitution, constitutes a constitutional obligation inherent in Chapter 4 as a whole.

The form and structure of section 85(1) of the Constitution shows, that, it is a product of the liberalisation of the narrow, traditional conception of locus standi.

The traditional rule of standing gave a right to approach a competent court for enforcement of a fundamental right or freedom to a person who would have suffered direct legal injury by reason of infringement or threatened infringement of his or her fundamental right or legally protected interest by the impugned action of the State or public authority.

Except for a case where a person was unable to personally seek redress by reason of being under physical detention, no one could ordinarily seek judicial redress for legal injury suffered by another person.

The object of section 85(1) of the Constitution is to ensure that cases of infringement of fundamental rights which adversely affect different interests covered by each rule of standing are brought to the attention of a court for redress.

The object is to overcome the formal defects in the legal system so as to guarantee real and substantial justice to the masses, particularly the poor, marginalised, and deprived sections of society.

The fundamental principle is that every fundamental human right or freedom enshrined in Chapter 4 is entitled to a full measure of effective protection under the constitutional obligation imposed on the State.

The right of access to justice, which is itself a fundamental right, must be made available to a person who is able, under each of the rules of standing, to vindicate the interest adversely affected by an infringement of a fundamental right, at the same time enforcing the constitutional obligation to protect and promote the right or freedom concerned.

The liberalisation of the narrow, traditional conception of standing and the provision of the fundamental right of access to justice compel a court exercising jurisdiction under section 85(1) of the Constitution to adopt a broad and generous approach to standing.

The approach must eschew over reliance on procedural technicalities to afford full protection to the fundamental human rights and freedoms enshrined in Chapter 4.

A court exercising jurisdiction under section 85(1) of the Constitution is obliged to ensure that the exercise of the right of access to judicial remedies for enforcement of fundamental human rights and effective protection of the interests concerned is not hindered, provided the substantive requirements of the rule under which standing is claimed are satisfied.

In Ferreira v Levin NO and Others 1996 (1) SA 984…, CHASKALSON P writing for the Constitutional Court of South Africa made reference to the need to adopt a broad approach to standing in constitutional cases in these terms…,:

“Whilst it is important that this Court should not be required to deal with abstract or hypothetical issues, and should devote its scarce resources to issues that are properly before it, I can see no good reason for adopting a narrow approach to the issue of standing in constitutional cases. On the contrary, it is my view, that, we should rather adopt a broad approach to standing. This would be consistent with the mandate given to this court to uphold the Constitution and would serve to ensure that constitutional rights enjoy the full measure of the protection to which they are entitled.”

Section 85(1)(d) of the Constitution is founded on the broadest conception of standing.

Its primary purpose is to ensure effective protection to any public interest shown to have been or to be adversely affected by an infringement of a fundamental right or freedom.

Whilst its purpose is to ensure that a person who approaches a court in terms of the procedure prescribed under the rule has the protection of public interest as the objective to be accomplished by the litigation, section 85(1)(d) of the Constitution directs against the use of the procedure to protect private, personal, or parochial interests.

By definition, public interest is not private, personal or parochial interest.

An infringement of a fundamental right may cause legal injury to an individual or prejudicially affect private interest without being of a nature that adversely affects the interests of the community at large or a significant section of the community.

The cause of action must show that the proceedings are in the public interest.

Public interest is one of those value laden and amorphous concepts, the limits and substance of which is difficult to define with precision.

Section 85(1)(d) of the Constitution does not define public interest.

The reason is that it does not require a narrow approach which seeks to answer the question “what is public interest?” The courts, in many jurisdictions, have preferred to leave the definition of public interest open. They prefer to determine the question of public interest on the basis of the circumstances of each case.

Given that most violations of fundamental human rights and freedoms are fact and context specific, it is appropriate to keep concepts such as “public interest" broad and flexible to develop in line with changing times and social conditions reflective of community attitudes.

The words “in the public interest” qualify the action to be taken to ensure that it is one intended to achieve the purpose for which locus standi under section 85(1)(d) of the Constitution is designed.

The term “in the public interest” as used in section 85(1)(d) of the Constitution classically imparts a discretionary value judgment to be made by reference to undefined factual matters as they change from case to case. The facts are confined only in so far as the subject matter, the scope, and purpose of the fundamental right allegedly infringed enable.

There are many areas of national and community activities which may be subject to the public interest. Used in the context of section 85(1)(d) of the Constitution, public interest does not mean that which gratifies curiosity or merely satisfies appetite for information or amusement.

It is also necessary to distinguish between “what is in the public interest” and what is of interest to the public: see R v Inhabitants of the County of Bedfordshire [1855] 24 LJQB 81…,.; Lion Laboratories Limited v Evans [1985] QB 526…,.; O'Sullivan v Farrer [1989] 168 CLR 210…,.

The use of the words “the public interest” in section 85(1)(d) of the Constitution suggests, that, there are many categories or facets of public interest. The task is to ascertain, amongst others, the public interest to be served.

As was observed by the Australian Federal Court in Mckinnon v Secretary, Department of Treasury [2005] FCAFC 142…, “the public interest is not one homogenous undivided concept.”

Often quoted is LORD HAILSHAM'S dictum in D v National Society for the Prevention of Cruelty to Children [1978] AC 171…, where he said: “The categories of public interest are not closed.”

Matters of public interest that would affect fundamental rights and freedoms would include, for example, public health, national security, defence, international obligations, proper and due administration of criminal justice, independence of the judiciary, observance of the rule of law, the welfare of children, a clean environment, among others.

Public interest is a term embracing matters, among others, of standards of human conduct tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members.

The paramount test should be whether the alleged infringement of a fundamental right or freedom has the effect of prejudicially affecting or potentially affecting the community at large or a significant section or segment of the community.

The test covers cases of marginalised or underprivileged persons in society, who, because of sufficient reasons such as poverty, disability, socially and economically disadvantaged positions, are unable to approach a court to vindicate their rights.

Section 85(1)(d) of the Constitution was introduced with the view of providing expansive access to justice to wider interests in society, particularly the vulnerable groups in society, the infringement of whose rights would have remained un-redressed under the narrow traditional conception of standing.

The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. A public interest action will usually involve foregoing personal benefit to benefit a greater good to achieve the goals of social justice: see Sinclair v Mining Warden At Maryborough [1975] 132 CLR 473…,.

Whilst acting in the public interest is the imperative for standing under section 85(1)(d) of the Constitution, the meaning or content of public interest will vary from case to case depending on the facts and circumstances.

Public responsibilities regarded as being in the public interest in one case may not be so regarded in a different context because facts and circumstances may differ. The facts may reveal more reasonable and effective methods of resolving the dispute than bringing the matter to court. The concept is elastic and relative rather than fixed and absolute.

Whether a person is acting in the public interest is a question of fact.

It is an objective test which does not depend for its answer on what the person says. In other words, the fact that a person says he or she is acting in the public interest is irrelevant to the determination of the issue. A person is, on the facts and in the circumstances of the case, either acting in the public interest or he or she is not.

There are factors by which a court should be able to decide whether or not a person is genuinely acting in the public interest.

Asserting that an action is in the public interest involves setting oneself up in judgment as to whether the action will benefit the public overall. To act in the public interest is to act in favour of the broader rather than narrow interests. What is important is to set out factors or matters to be considered when deciding whether a person is genuinely acting in the public interest.

The adoption of the approach of testing the actions of the applicant against a set of factors, as an objective standard, is necessitated by the elasticity and relativity of the concept of public interest which is an abstract notion. It is also necessitated by the fact, that, there can be a natural suspicion that the notion of acting in the public interest may be invoked as a smokescreen to garner support for something that actually is in the applicant's own interest.

The factors to be considered do not only help the court to decide whether the action taken is genuinely in the public interest as to meet the requirements of section 85(1)(d) of the Constitution, they are important for the protection of judicial process against abuse for private interest.

As was observed in Stevenson v Minister of Local Government & Ors 2001 (1) ZLR 321 (H) the factors ensure that “potentially viable public causes are not frittered away in frivolous, furtive, unfocused or self-serving private litigation” disguised as public interest.

The factors relate to the key issues that a person facing the challenge of justifying the proceedings instituted as being in the public interest needs to address.

The judicial process is invoked for the purposes of achieving constitutional objectives. The court must be careful not to risk the credibility of its process by unwittingly associating its jurisdiction with proceedings that have nothing to do with the objectives of public interest litigation.

Section 85(1)(d) of the Constitution guarantees standing to a person who institutes judicial proceedings seeking to achieve the objectives for which the remedy of acting in the public interest was designed.

It is in the context of seeking to ensure that public interest litigation is used for its intended purpose, and to prevent section 85(1)(d) procedure being abused by busybodies, merely meddlesome people for oblique motives unrelated to vindication of public interest, that courts developed factors that any person genuinely acting in the public interest has to satisfy: see State of Uttaranchal v Chaufal & Ors, AIR (2010) SC 2550.

In a minority judgment which has received approval in subsequent decisions of the Constitutional Court of South Africa, O'REGAN J in Ferreira v Levin NO and Others 1996 (1) SA 984 in considering the interpretation and application of section 7(4)(b)(v) of the Interim Constitution of South Africa, worded in terms identical to section 85(1)(d) of the Constitution, said…,.:

“This Court will be circumspect in affording applicants standing by way of section 7(4)(b)(v) and will require an applicant to show that he or she is genuinely acting in the public interest. Factors relevant to determining whether a person is genuinely acting in the public interest will include considerations such as:

(i) Whether there is another reasonable and effective manner in which the challenge can be brought;
(ii) The nature of the relief sought and the extent to which it is of general and prospective application; and (iii) The range of persons or groups who may be directly or indirectly affected by any order made by the court and the opportunity that those persons or groups have had to present evidence and argument to the court.

These factors will need to be considered in the light of the facts and circumstances of each case.”

In Lawyers for Human Rights & Anor v Minister of Home Affairs & Anor 2004 (4) SA 125 (CC) YACOOB J…, said:

“The issue is always whether a person or organisation acts genuinely in the public interest. A distinction must however be made between the subjective position of the person or organisation claiming to act in the public interest on the one hand, and whether it is objectively speaking in the public interest for the particular proceedings to be brought.

It is ordinarily not in the public interest for proceedings to be brought in the abstract. But this is not an invariable principle.

There may be circumstances in which it will be in the public interest to bring proceedings even if there is no live case. The factors set out by O'REGAN J (Ferreira v Levin NO and Others 1996 (1) SA 984) help to determine the question. The list of relevant factors is not closed. I would add that the degree of vulnerability of the people affected; the nature of the right said to be infringed; as well as the consequences of the infringement of the right are also important considerations in the analysis.”

In SP Gupta v The Union of India & Ors (1982) 2 SCR 365 BHAGWATI J…, writing for the full Bench of the Supreme Court of India, analysed in great detail the origin and rationale behind public interest standing adopted in many democratic legal systems.

He concluded, that, fundamental to public interest standing provisions is the modern conception of the role of law as a weapon for social change. There is also the conception of the judicial function as investing law with meaning primarily aimed at preserving legal order by confining the legislative and executive organs of Government within their powers in the interest of the public, whilst also directed at enforcement of individual rights.

In paragraph [18] of SP Gupta v The Union of India & Ors (1982) 2 SCR 365, the Indian Supreme Court highlighted the importance of affording locus standi to a person acting in the public interest for the vindication of the rule of law. BHAGWATI J…, said:

“But there may be cases where the State or a public authority may act in violation of a constitutional obligation or fail to carry out such obligation, resulting in injury to public interest or what may conveniently be termed as public injury as distinguished from private injury.

Who would have standing to complain against such act or omission of the State or public authority? Can any member of the public sue for judicial redress? Or is the standing limited only to a certain class of persons? Or there is no one who can complain and the public injury must go unredressed.

…,. If the State or any public authority acts beyond the scope of its power and thereby causes a specific legal injury to a person or to a determinate class or group of persons, it would be a case of private injury actionable in the manner discussed in the preceding paragraphs. So also if the duty is owed by the State or any public authority to a person or to a determinate class or group of persons, it would give rise to a corresponding right in such person or determinate class or group of persons and they would be entitled to maintain an action for judicial redress.

But, if no specific legal injury is caused to a person or to a determinate class or group by the act or omission of the State or any public authority and the injury is caused only to public interest, the question arises as to who can maintain an action for vindicating the rule of law and setting aside the unlawful action or enforcing the performance of the public duty.

If no one can maintain an action for redress of such public wrong or public injury, it would be disastrous for the rule of law; for, it would be open to the State or a public authority to act with impunity beyond the scope of its power or in breach of a public duty owed by it.

The Courts cannot countenance such a situation where the observance of the law is left to the sweet will of the authority bound by it, without any redress if the law is contravened.

The view has therefore been taken by the Courts in many decisions, that, whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public, acting bona fide and having sufficient interest, can maintain an action for redressal of such public wrong or public injury.

The strict rule of standing, which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress, is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy–body or a meddlesome interloper but who has sufficient interest in the proceedings.

There can be no doubt that the risk of legal action against the State or a public authority, by any citizen, will induce the State or such public authority to act with greater responsibility and care thereby improving the administration of justice.”

It is not necessary for a person challenging the constitutional validity of legislation to vindicate public interest, on the ground that the legislation has infringed or infringes a fundamental human right, to give particulars of a person or persons who suffered legal injury as a result of the alleged unconstitutionality of the legislation.

Section 85(1)(d) of the Constitution requires the person to allege that a fundamental human right enshrined in Chapter 4 has been, is being, or is likely to be infringed.

He or she is not required to give particulars of a right holder.

The reason is that constitutional invalidity of existing legislation takes place immediately the constitutional provision with which it is inconsistent comes into force.

Constitutional invalidity of legislation enacted after the constitutional provision has come into effect occurs immediately the legislation is enacted. Constitutional invalidity of legislation does not depend, in such circumstances, on when a fundamental human right is infringed.

Fundamental human rights and freedoms are guaranteed so that, beyond the permissible limitations, they are not infringed.

Legislation which is inconsistent with a constitutional provision enshrining a fundamental human right of freedom becomes invalid before application. Application of the legislation is, in the circumstances, an unnecessary factor in the determination of its constitutional validity.

In the main volume of ERASMUS SUPERIOR COURT PRACTICE, Juta…, the learned authors considered the meaning of section 38(d) of the Constitution of the Republic of South Africa, 1996.

Section 38(d) of the Constitution of the Republic of South Africa, 1996 is in identical terms as section 85(1)(d) of the Constitution.

The learned authors made the observation, that, there are important policy reasons why the new ground of standing introduced in section 38(d) should not be interpreted restrictively. The learned authors said the reason is that standing accorded to persons to act in the public interest is “much broader than the other grants of standing contained in section 38.”

On the question whether a person challenging the constitutionality of legislation is required, under section 38(d) of the Constitution of the Republic of South Africa, to allege and prove infringement of a fundamental right of a particular person, the learned authors of ERASMUS SUPERIOR COURT PRACTICE said:

“In terms of this subsection, Chapter 2 litigation may be undertaken by a person acting in the public interest. All an applicant under this paragraph need essentially establish is that;
(I) Objectively speaking, the challenged rule or conduct is in breach of a right enshrined in Chapter 2;
(II) The public has a sufficient interest in an order of constitutional invalidity; and
(III) That the applicant is in fact acting in the public interest (rather than for his or her own interests or some ulterior motive).

As explained by O'REGAN J in Ferreira v Levin N.O. 1996 (1) SA 984 (CC) at para [235] there is no need to point to an infringement of, or threat to, the right of an individual person.

This flows from the notion of acting in the public interest: the public will ordinarily have an interest in the infringement of rights generally, not particularly.

Moreover, as ACKERMAN J explained, in proceedings concerning the validity of laws, the issue of whether the law is invalid or not does not depend on whether, at the moment when the issue is being considered, a particular person's rights are threatened or infringed by the offending law or not.

This is because laws which are inconsistent with the Constitution become invalid upon the commencement of the Constitution (in case of pre-constitutional laws) or upon the date when they came into force (in the case of post–constitutional laws).”

The applicants had no personal or financial gain to derive from the proceedings. They were not acting mala fide or out of extraneous motives as would have been the case if they were mere meddlesome busybodies seeking a day in court and cheap personal publicity.

The applicants were driven by the laudable motive of seeking to vindicate the rule of law and supremacy of the Constitution.

It is a high principle of Constitutional Law that people should be in a position to obey laws which are consistent with constitutional provisions enshrining fundamental human rights and freedoms.

They acted altruistically to protect public interest in the enforcement of the constitutional obligation on the State to protect the fundamental rights of girl children enshrined in section 81(1) as read with section 78(1) of the Constitution.

Children fall into the category of weak and vulnerable persons in society.

They are persons who have no capacity to approach a court on their own seeking appropriate relief for the redress of legal injury they would have suffered. The reasons for their incapacity are disability arising from minority, poverty, and socially and economically disadvantaged positions.

The law recognises the interests of such vulnerable persons in society as constituting public interest.

The proceedings instituted by the applicants, and the relief sought, were the only reasonable and effective means for enforcement of the fundamental rights of the girl children subjected to early marriages. The remedy they sought was the only means for an effective protection of the public interest adversely affected by the alleged infringement of the girl children's fundamental rights.

The respondents denied that there was infringement of the children's fundamental rights.

They could not be heard to argue that there were other reasonable and effective methods for enforcing the children's fundamental rights and protecting the public interest adversely affected by the alleged infringement.

The interests of the girl children subjected to early marriages were properly identified as a public interest to be protected by the relief sought in the proceedings.

Section 85(1)(d) of the Constitution underlines the principle that courts play a vital role in the provision of access to justice and protection of children.

These are matters of public interest.

A nation which is not concerned with the welfare of children cannot look forward to a bright future: see Murina & Ors v State of Uttar Pradesh & Ors (1982) 1 SCC 545.

They complain about the infringement of the fundamental rights of girl children subjected to early marriages and seek a declaratory order in the terms that:

“1. The effect of section 78(1) of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 is to set 18 years as the minimum age of marriage in Zimbabwe.

2. No person, male or female, in Zimbabwe, may enter into any marriage including an unregistered customary law union or any other union including one arising out of religion or a religious rite before attaining the age of eighteen (18).

3. Section 22(1) of the Marriage Act [Chapter 5:11] is unconstitutional.

4. The Customary Marriages Act [Chapter 5:07] is unconstitutional in that it does not provide for a minimum age limit of eighteen (18) years in respect of any marriage contracted under the same.

5. The respondents pay costs of suit.”

The application arose out of the interpretation and application by the applicants, on legal advice, of section 78(1) as read with section 81(1) of the Constitution.

Section 78(1) of the Constitution is one of the provisions in Chapter 4 which enshrine fundamental human rights and freedoms. It provides:

“78 Marriage Rights

(1) Every person who has attained the age of eighteen years has the right to found a family.

(2) No person may be compelled to enter into marriage against their will.

(3) Persons of the same sex are prohibited from marrying each other.”

Section 81(1) of the Constitution enshrines the fundamental rights of the child.

The fundamental rights, the alleged infringement of which are relevant to the determination of the issues raised by the application, are:

“81 Rights of Children

(1) Every child, that is to say, every boy and girl under the age of eighteen years, has the right –

(a) To equal treatment before the law, including the right to be heard;

(b)…,.

(c)…,.

(d) To family or parental care or to appropriate care when removed from the family environment;

(e) To be protected from economic and sexual exploitation, from child labour, and from maltreatment, neglect, or any form of abuse;

(f) To education, health care services, nutrition, and shelter;

(g)…,.

(h)…,.

(2) A child's best interests are paramount in every matter concerning the child.

(3) Children are entitled to adequate protection by the courts, in particular, by the High Court as their upper guardian.”

The protection of the fundamental rights of the child is guaranteed under section 44 of the Constitution.

The provision imposes an obligation on the State and every person, including juristic persons, and every institution and agency of the Government, at every level, to respect, protect, promote and fulfil the rights and freedoms set out in Chapter 4.

The applicants contend that on a broad, generous, and purposive interpretation of section 78(1) as read with section 81(1) of the Constitution, the age of eighteen years has become the minimum age for marriage in Zimbabwe.

They argued, that, section 78(1) of the Constitution cannot be subjected to a strict, narrow, and literal interpretation to determine its meaning if regard is had to the contents of similar provisions on marriage and family rights found in international human rights instruments from which section 78(1) of the Constitution derives inspiration.

The applicants claimed the right to approach the court seeking the relief they seek under section 85(1)(a) and (d) of the Constitution. In paragraph 16 of the founding affidavit, the first applicant, with whom the second applicant agreed, states:

“16:…,. The issues I raise below are in the public interest, and, therefore, I bring this application in terms of section 85(1)(a) and (d) of the Constitution of Zimbabwe.”

In paragraph 21 of the founding affidavit, the first applicant states:

“21. The instant application is an important public interest application that seeks to challenge the law in so far as it relates to child marriages in Zimbabwe. It is motivated by my desire to protect the interests of children in Zimbabwe.”

At the time sections 78(1) and 81(1) of the Constitution came into force, section 22(1) of the Marriage Act [Chapter 5:11] provided, that, a girl who had attained the age of sixteen years was capable of contracting a valid marriage. She had to obtain the consent, in writing, to the solemnization of the marriage of persons who were, at the time of the proposed marriage, her legal guardians, or, where she had only one legal guardian, the consent, in writing, of such legal guardian.

A boy under the age of eighteen years and a girl under the age of sixteen years had no capacity to contract a valid marriage except with the written permission of the Minister of Justice, Legal and Parliamentary Affairs (“the Minister”).

A child was defined under section 2 of the Child Abduction Act [Chapter 5:05] and section 2 of the Children's Protection and Adoption Act [Chapter 5:06] to be a person under the age of sixteen years.

The applicants contend that since “a child” is now defined by section 81(1) of the Constitution to mean a girl and a boy under the age of eighteen years, no child has the capacity to enter into a valid marriage in Zimbabwe since the coming into force of sections 78(1) and 81(1) of the Constitution on 22 May 2013.

They contend further, that, section 22(1) of the Marriage Act, or any other law which authorises a girl under the age of eighteen years to marry, infringes the fundamental right of the girl child to equal treatment before the law enshrined in section 81(1)(a) of the Constitution.

The argument was that section 22(1) of the Marriage Act exposes the girl child to the horrific consequences of early marriage which are the very injuries against which the fundamental rights are intended to protect every child.

The respondents opposed the application and the granting of the relief sought by the applicants on two alternative grounds.

They took as a point in limine the contention, that, the applicants lacked the right to approach the court claiming the relief sought.

The argument made on behalf of the respondents was that although the applicants claimed to have approached the court in terms of section 85(1)(a) of the Constitution, they did not allege that any of their own interests was adversely affected by the alleged infringement of the fundamental rights of the girl child.

The respondents pointed to the fact, that, none of the applicants alleged that she entered into marriage with the boy who made her pregnant. They said that the applicants alleged that they got pregnant, stopped going to school, and went to live with the boys concerned at their parents homes. The applicants did not suggest that they entered into unregistered customary law unions.

The argument was that the applicants were no longer children protected from the consequences of early marriage by the fundamental rights of the child enshrined in section 81(1) of the Constitution.

On the question whether the applicants had locus standi to approach the court, acting in the public interest, under section 85(1)(d) of the Constitution, the respondents contend that the applicants failed to satisfy the requirements of standing under the relevant provision.

They alleged in the opposing affidavits, that, the applicants were required to give particulars of girl children whose fundamental rights had been infringed and on whose behalf they purported to act.

It was common cause, that, the applicants made no reference, in the grounds of the application, to any particular girl or girls whose rights had been, were being, or were likely to be infringed by being subjected to child marriage in terms of section 22(1) of the Marriage Act or any other law.

The argument was that the applicants had not produced facts to support their claim to locus standi under section 85(1)(d) of the Constitution.

The grounds of opposition to the application on the merits are straight forward.

The respondents denied that section 78(1) of the Constitution has the effect of setting the age of eighteen years as the minimum age for marriage in Zimbabwe. Their reason for the denial was that section 78(1) of the Constitution gives a person who has attained the age of eighteen the “right to found a family.”

The contention is that the meaning of section 78(1) of the Constitution is apparent from the grammatical and ordinary meaning of the language used in giving the “right to found a family.”

The respondents contend, further, that section 78(1) of the Constitution does not give a person who has attained the age of eighteen years the “right to enter into marriage.”

The minor premise on which the contention is based is that the “right to found a family” does not imply the right to marry.

The respondents supported their denial of the contention that section 78(1) of the Constitution sets the age of eighteen years as the minimum age of marriage by the argument advanced on their behalf, that, section 78(1) of the Constitution is not amenable to a broad, generous, and purposive interpretation in the determination of its meaning.

The argument was that it is only accommodative of a literal interpretation.

The effect of the respondents argument was that the question of interpretation did not arise as the words used were clear and un-ambiguous.

Having denied the allegation that section 78(1) of the Constitution sets the age of eighteen years as the minimum age for marriage, the respondents went on to deny that section 22(1) of the Marriage Act, or any other law which authorizes a girl child who has attained the age of sixteen years to marry, contravenes section 78(1) of the Constitution.

They raised as a rationale for the difference in the treatment of a girl child and a boy child under section 22(1) of the Marriage Act - the old notion that a girl matures physiologically and psychologically earlier than a boy.

They put forward the notion of the alleged difference in the rates of maturity in the growth and development of girls and boys as justification for legislation which condemns a girl child, under the pretext of marriage, to a life of sexual exploitation and physical abuse.

The respondents took the view, that, there was nothing unconstitutional about legislation which authorised child marriage.

They suggested that the applicants were the cause of the problem.

The argument was that they should have taken responsibility for getting pregnant. The contention is that instead of seeking to have legislation on child marriage declared unconstitutional, the applicants should have taken advantage of their painful experiences to embark on advocacy and educational programmes to share their experiences with girl children. In that way, the argument went, they would give the girl children the skills and knowledge necessary to enable them to make the right choices on matters of sexual and reproductive health.

Four questions arise for determination from the positions taken by the applicants and the respondents. They are:

(1) Whether or not the applicants have, on the facts, locus standi, under section 85(1)(a) or section 85(1)(d) of the Constitution, to institute the proceedings claiming the relief they seek.

(2) If they are found to have standing before the Court, does section 78(1) of the Constitution set the age of eighteen years as the minimum age for marriage in Zimbabwe?

(3) If the answer to issue No.2 is in the affirmative, did the coming into force of sections 78(1) and 81(1) of the Constitution, on 22 May 2013, render invalid section 22(1) of the Marriage Act [Chapter 5:05] and any other law authorizing a girl who has attained the age of sixteen to marry?

(4) If the answer to issue No.3 is in the affirmative, what is the appropriate relief to be granted by the Court in the exercise of the wide discretion conferred on it under section 85(1) of the Constitution.

LOCUS STANDI

The right to approach a court directly seeking appropriate relief in cases arising from alleged infringement of a fundamental human right or freedom enshrined in Chapter 4 of the Constitution is given to the persons specified under section 85(1) of the Constitution.

Section 85(1) of the Constitution provides:

“85 Enforcement of fundamental human rights and freedoms

(1) Any of the following persons, namely –

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests of a group or class of persons;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members;
is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being, or is likely to be infringed and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”

The applicants alleged, that, the fundamental rights of a girl child to equal treatment before the law and not to be subjected to any form of marriage enshrined in section 81(1) as read with section 78(1) of the Constitution have been, are being, and are likely to be infringed if an order declaring section 22(1) of the Marriage Act, and any other law authorising child marriage, unconstitutional was not granted by the Court.

What is in issue is the capacity in which the applicants act in claiming the right to approach the court on the allegations they have made.

In claiming locus standi under section 85(1) of the Constitution, a person should act in one capacity in approaching a court and not act in two or more capacities in one proceeding.

The respondents correctly submitted, that, although the applicants claimed to have been acting in their own interests, in terms of section 85(1)(a) of the Constitution, the facts showed that they had failed to satisfy the requirements of that rule.

The rule requires, that, the person claiming the right to approach the court must show on the facts, that, he or she seeks to vindicate his or her own interest adversely affected by an infringement of a fundamental right or freedom. The infringement must be in relation to himself or herself as the victim or there must be harm or injury to his or her own interests arising directly from the infringement of a fundamental right or freedom of another person.

In other words, the person must have a direct relationship with the cause of action.

The first part of the rule of standing under section 85(1)(a) of the Constitution needs no elaboration. Its content has constituted the meaning of the traditional and narrow rule of standing with which any common law lawyer is familiar. It is the rule which prompted CHIDYAUSIKU CJ to comment, in Mawarire v Mugabe NO and Others CC01-13…,:

“Certainly this Court does not expect to appear before it only those who are dripping with the blood of the actual infringement of their rights or those who are shivering incoherently with the fear of the impending threat which has actually engulfed them. This Court will entertain even those who calmly perceive a looming infringement and issue a declaration or appropriate order to stave the threat, moreso under the liberal post-2009 requirements.”

That is the familiar rule of locus standi based on the requirement of proof by the claimant of having been or of being a victim of infringement or threatened infringement of a fundamental right or freedom enshrined in Chapter 4 of the Constitution.

The second aspect of the rule is not so familiar. It needs elaboration.

The Canadian cases of R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 and Morgentaler Smoling and Scott v R (1988) 31 CRR 1 illustrate the point, that, a person would have standing under a provision similar to section 85(1)(a) of the Constitution to challenge unconstitutional law if he or she could be liable to conviction for an offence charged under the law even though the unconstitutional effects were not directed against him or her per se.

It would be sufficient for a person to show that he or she was directly affected by the unconstitutional legislation. If this was shown, it mattered not whether he or she was a victim.

In R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 a corporation was allowed to challenge the constitutionality of a statutory provision at a criminal trial on the grounds that it infringed the rights of human beings and was accordingly invalid.

The corporation had been charged in terms of a statute which prohibited trading on Sundays.

It did not have a right to religious freedom. The corporation was nevertheless permitted to raise the constitutionality of the statute which was held to be in breach of the Charter on the Rights and Freedoms (see Ferreira v Levin NO and Others 1996 (1) SA 984…,.). The corporation had a financial interest in the form of profits made out of trading on Sundays.

The concept used in section 85(1)(a) of the Constitution is “own interests” the broad meaning of which includes indirect interests such as commercial interests.

The corporation alleged, that, the statute was unconstitutional because it infringed the fundamental right to freedom of religion of non-Christians who did not observe Sunday as the day of rest and worship.

In getting the statute declared unconstitutional, the corporation's primary purpose was the protection of its own commercial interests and freedom from criminal prosecution for alleged breach of an invalid statutory provision.

A similar issue arose in Morgentaler Smoling and Scott v R (1988) 31 CRR 1: Male doctors who were prosecuted under anti-abortion provisions successfully challenged the constitutionality of the legislation in terms of which they were prosecuted.

The legislation directly infringed the rights of pregnant women who were the victims of the anti-abortion provisions.

The rights, the infringement of which formed the basis of the constitutional challenge, were of pregnant women. The rights did not and could not vest in the male doctors. If pregnant women were free to consult the doctors for purposes of abortion, the doctors would benefit financially from charging for services rendered in performing the abortions.

The doctors had their own financial and personal interests to protect in challenging the constitutionality of the anti-abortion legislation on the ground that it infringed the fundamental right of pregnant women to security of the person enshrined in section 7 of the Charter.

Counsel for the applicants conceded, that, the applicants were not victims of the alleged infringements of the fundamental rights of girl children involved in early marriages. They failed to show that any of their own interests were adversely affected by the alleged infringement of the rights of girl children subjected to early marriages. They could not identify any girl child or girl children the infringement of whose rights could be said to have directly and adversely affected their own interests.

Since the applicants were not victims of the infringements of the fundamental rights enshrined in section 81(1) of the Constitution, as they are not children, they could not benefit personally from a declaration of unconstitutionality of any legislation authorizing child marriage.

The contention by the respondents, that, the applicants lack standing under section 85(1)(d) of the Constitution is based on an erroneous view of the requirements of the rule.

The argument that the applicants were not entitled to approach the court to vindicate public interest in the well-being of children protected by the fundamental rights of the child enshrined in section 81(1) of the Constitution overlooked the fact, that, children are a vulnerable group in society whose interests constitute a category of public interest.

Notwithstanding the allusion to acting under section 85(1)(a) of the Constitution, the founding affidavit shows that the applicants believed themselves to be acting in terms of section 85(1)(d) and had their hearts in that rule.

What the respondents accused the applicants of failing to allege is a fact required to be alleged by a person acting in terms of section 85(1)(d) of the Constitution.

Section 85(1)(d) of the Constitution is based on the presumption, that, the effect of the infringement of a fundamental right impacts upon the community at large or a segment of the community such that there would be no identifiable persons or determinate class of persons who would have suffered legal injury.

The primary purpose of proceedings commenced in terms of section 85(1)(d) of the Constitution is to protect the public interest adversely affected by the infringement of a fundamental right. The effective protection of the public interest must be shown to be the legitimate aim or objective sought to be accomplished by the litigation and the relief sought.

The rule of standing under section 85(1)(d) of the Constitution must be understood in the context of its purpose and the objectives it is intended to achieve.

Section 44 of the Constitution imposes the obligation on the State, and every institution and agency of the Government, at every level, to respect, protect, promote, and fulfil the fundamental rights and freedoms enshrined in Chapter 4 of the Constitution.

The constitutional obligation requires the State to protect every fundamental right and freedom regardless of the social and economic status of the right-holder.

Like a shepherd who cannot escape liability for a lost sheep by claiming ignorance of what happened to it, the State is expected to know what is happening to fundamental rights and freedoms enshrined in Chapter 4. It is under an obligation to account, in the public interest, for any infringement of a fundamental right - even by a private person.

The scheme of fundamental human rights and freedoms enshrined in Chapter 4 is based on the constitutional obligation imposed on the State, and every institution and agency of the Government, at every level, to protect the fundamental rights and freedoms to ensure that they are enjoyed in practice.

Section 85(1) of the Constitution is the cornerstone of the procedural and substantive remedies for effective judicial protection of fundamental rights and freedoms and the enforcement of the constitutional obligation imposed on the State, and every institution and agency of the government, at every level, to protect the fundamental rights in the event of proven infringement.

The right to a remedy provided for under section 85(1) of the Constitution is one of the most fundamental and essential rights for the effective protection of all other fundamental rights and freedoms enshrined in Chapter 4.

The right to a remedy, enshrined in section 85(1) of the Constitution, constitutes a constitutional obligation inherent in Chapter 4 as a whole.

The form and structure of section 85(1) of the Constitution shows, that, it is a product of the liberalisation of the narrow, traditional conception of locus standi.

The traditional rule of standing gave a right to approach a competent court for enforcement of a fundamental right or freedom to a person who would have suffered direct legal injury by reason of infringement or threatened infringement of his or her fundamental right or legally protected interest by the impugned action of the State or public authority.

Except for a case where a person was unable to personally seek redress by reason of being under physical detention, no one could ordinarily seek judicial redress for legal injury suffered by another person.

The object of section 85(1) of the Constitution is to ensure that cases of infringement of fundamental rights which adversely affect different interests covered by each rule of standing are brought to the attention of a court for redress.

The object is to overcome the formal defects in the legal system so as to guarantee real and substantial justice to the masses, particularly the poor, marginalised, and deprived sections of society.

The fundamental principle is that every fundamental human right or freedom enshrined in Chapter 4 is entitled to a full measure of effective protection under the constitutional obligation imposed on the State.

The right of access to justice, which is itself a fundamental right, must be made available to a person who is able, under each of the rules of standing, to vindicate the interest adversely affected by an infringement of a fundamental right, at the same time enforcing the constitutional obligation to protect and promote the right or freedom concerned.

The liberalisation of the narrow, traditional conception of standing and the provision of the fundamental right of access to justice compel a court exercising jurisdiction under section 85(1) of the Constitution to adopt a broad and generous approach to standing.

The approach must eschew over reliance on procedural technicalities to afford full protection to the fundamental human rights and freedoms enshrined in Chapter 4.

A court exercising jurisdiction under section 85(1) of the Constitution is obliged to ensure that the exercise of the right of access to judicial remedies for enforcement of fundamental human rights and effective protection of the interests concerned is not hindered, provided the substantive requirements of the rule under which standing is claimed are satisfied.

In Ferreira v Levin NO and Others 1996 (1) SA 984…, CHASKALSON P writing for the Constitutional Court of South Africa made reference to the need to adopt a broad approach to standing in constitutional cases in these terms…,:

“Whilst it is important that this Court should not be required to deal with abstract or hypothetical issues, and should devote its scarce resources to issues that are properly before it, I can see no good reason for adopting a narrow approach to the issue of standing in constitutional cases. On the contrary, it is my view, that, we should rather adopt a broad approach to standing. This would be consistent with the mandate given to this court to uphold the Constitution and would serve to ensure that constitutional rights enjoy the full measure of the protection to which they are entitled.”

Section 85(1)(d) of the Constitution is founded on the broadest conception of standing.

Its primary purpose is to ensure effective protection to any public interest shown to have been or to be adversely affected by an infringement of a fundamental right or freedom.

Whilst its purpose is to ensure that a person who approaches a court in terms of the procedure prescribed under the rule has the protection of public interest as the objective to be accomplished by the litigation, section 85(1)(d) of the Constitution directs against the use of the procedure to protect private, personal, or parochial interests.

By definition, public interest is not private, personal or parochial interest.

An infringement of a fundamental right may cause legal injury to an individual or prejudicially affect private interest without being of a nature that adversely affects the interests of the community at large or a significant section of the community.

The cause of action must show that the proceedings are in the public interest.

Public interest is one of those value laden and amorphous concepts, the limits and substance of which is difficult to define with precision.

Section 85(1)(d) of the Constitution does not define public interest.

The reason is that it does not require a narrow approach which seeks to answer the question “what is public interest?” The courts, in many jurisdictions, have preferred to leave the definition of public interest open. They prefer to determine the question of public interest on the basis of the circumstances of each case.

Given that most violations of fundamental human rights and freedoms are fact and context specific, it is appropriate to keep concepts such as “public interest" broad and flexible to develop in line with changing times and social conditions reflective of community attitudes.

The words “in the public interest” qualify the action to be taken to ensure that it is one intended to achieve the purpose for which locus standi under section 85(1)(d) of the Constitution is designed.

The term “in the public interest” as used in section 85(1)(d) of the Constitution classically imparts a discretionary value judgment to be made by reference to undefined factual matters as they change from case to case. The facts are confined only in so far as the subject matter, the scope, and purpose of the fundamental right allegedly infringed enable.

There are many areas of national and community activities which may be subject to the public interest. Used in the context of section 85(1)(d) of the Constitution, public interest does not mean that which gratifies curiosity or merely satisfies appetite for information or amusement.

It is also necessary to distinguish between “what is in the public interest” and what is of interest to the public: see R v Inhabitants of the County of Bedfordshire [1855] 24 LJQB 81…,.; Lion Laboratories Limited v Evans [1985] QB 526…,.; O'Sullivan v Farrer [1989] 168 CLR 210…,.

The use of the words “the public interest” in section 85(1)(d) of the Constitution suggests, that, there are many categories or facets of public interest. The task is to ascertain, amongst others, the public interest to be served.

As was observed by the Australian Federal Court in Mckinnon v Secretary, Department of Treasury [2005] FCAFC 142…, “the public interest is not one homogenous undivided concept.”

Often quoted is LORD HAILSHAM'S dictum in D v National Society for the Prevention of Cruelty to Children [1978] AC 171…, where he said: “The categories of public interest are not closed.”

Matters of public interest that would affect fundamental rights and freedoms would include, for example, public health, national security, defence, international obligations, proper and due administration of criminal justice, independence of the judiciary, observance of the rule of law, the welfare of children, a clean environment, among others.

Public interest is a term embracing matters, among others, of standards of human conduct tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members.

The paramount test should be whether the alleged infringement of a fundamental right or freedom has the effect of prejudicially affecting or potentially affecting the community at large or a significant section or segment of the community.

The test covers cases of marginalised or underprivileged persons in society, who, because of sufficient reasons such as poverty, disability, socially and economically disadvantaged positions, are unable to approach a court to vindicate their rights.

Section 85(1)(d) of the Constitution was introduced with the view of providing expansive access to justice to wider interests in society, particularly the vulnerable groups in society, the infringement of whose rights would have remained un-redressed under the narrow traditional conception of standing.

The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. A public interest action will usually involve foregoing personal benefit to benefit a greater good to achieve the goals of social justice: see Sinclair v Mining Warden At Maryborough [1975] 132 CLR 473…,.

Whilst acting in the public interest is the imperative for standing under section 85(1)(d) of the Constitution, the meaning or content of public interest will vary from case to case depending on the facts and circumstances.

Public responsibilities regarded as being in the public interest in one case may not be so regarded in a different context because facts and circumstances may differ. The facts may reveal more reasonable and effective methods of resolving the dispute than bringing the matter to court. The concept is elastic and relative rather than fixed and absolute.

Whether a person is acting in the public interest is a question of fact.

It is an objective test which does not depend for its answer on what the person says. In other words, the fact that a person says he or she is acting in the public interest is irrelevant to the determination of the issue. A person is, on the facts and in the circumstances of the case, either acting in the public interest or he or she is not.

There are factors by which a court should be able to decide whether or not a person is genuinely acting in the public interest.

Asserting that an action is in the public interest involves setting oneself up in judgment as to whether the action will benefit the public overall. To act in the public interest is to act in favour of the broader rather than narrow interests. What is important is to set out factors or matters to be considered when deciding whether a person is genuinely acting in the public interest.

The adoption of the approach of testing the actions of the applicant against a set of factors, as an objective standard, is necessitated by the elasticity and relativity of the concept of public interest which is an abstract notion. It is also necessitated by the fact, that, there can be a natural suspicion that the notion of acting in the public interest may be invoked as a smokescreen to garner support for something that actually is in the applicant's own interest.

The factors to be considered do not only help the court to decide whether the action taken is genuinely in the public interest as to meet the requirements of section 85(1)(d) of the Constitution, they are important for the protection of judicial process against abuse for private interest.

As was observed in Stevenson v Minister of Local Government & Ors 2001 (1) ZLR 321 (H) the factors ensure that “potentially viable public causes are not frittered away in frivolous, furtive, unfocused or self-serving private litigation” disguised as public interest.

The factors relate to the key issues that a person facing the challenge of justifying the proceedings instituted as being in the public interest needs to address.

The judicial process is invoked for the purposes of achieving constitutional objectives. The court must be careful not to risk the credibility of its process by unwittingly associating its jurisdiction with proceedings that have nothing to do with the objectives of public interest litigation.

Section 85(1)(d) of the Constitution guarantees standing to a person who institutes judicial proceedings seeking to achieve the objectives for which the remedy of acting in the public interest was designed.

It is in the context of seeking to ensure that public interest litigation is used for its intended purpose, and to prevent section 85(1)(d) procedure being abused by busybodies, merely meddlesome people for oblique motives unrelated to vindication of public interest, that courts developed factors that any person genuinely acting in the public interest has to satisfy: see State of Uttaranchal v Chaufal & Ors, AIR (2010) SC 2550.

In a minority judgment which has received approval in subsequent decisions of the Constitutional Court of South Africa, O'REGAN J in Ferreira v Levin NO and Others 1996 (1) SA 984 in considering the interpretation and application of section 7(4)(b)(v) of the Interim Constitution of South Africa, worded in terms identical to section 85(1)(d) of the Constitution, said…,.:

“This Court will be circumspect in affording applicants standing by way of section 7(4)(b)(v) and will require an applicant to show that he or she is genuinely acting in the public interest. Factors relevant to determining whether a person is genuinely acting in the public interest will include considerations such as:

(i) Whether there is another reasonable and effective manner in which the challenge can be brought;
(ii) The nature of the relief sought and the extent to which it is of general and prospective application; and (iii) The range of persons or groups who may be directly or indirectly affected by any order made by the court and the opportunity that those persons or groups have had to present evidence and argument to the court.

These factors will need to be considered in the light of the facts and circumstances of each case.”

In Lawyers for Human Rights & Anor v Minister of Home Affairs & Anor 2004 (4) SA 125 (CC) YACOOB J…, said:

“The issue is always whether a person or organisation acts genuinely in the public interest. A distinction must however be made between the subjective position of the person or organisation claiming to act in the public interest on the one hand, and whether it is objectively speaking in the public interest for the particular proceedings to be brought.

It is ordinarily not in the public interest for proceedings to be brought in the abstract. But this is not an invariable principle.

There may be circumstances in which it will be in the public interest to bring proceedings even if there is no live case. The factors set out by O'REGAN J (Ferreira v Levin NO and Others 1996 (1) SA 984) help to determine the question. The list of relevant factors is not closed. I would add that the degree of vulnerability of the people affected; the nature of the right said to be infringed; as well as the consequences of the infringement of the right are also important considerations in the analysis.”

In SP Gupta v The Union of India & Ors (1982) 2 SCR 365 BHAGWATI J…, writing for the full Bench of the Supreme Court of India, analysed in great detail the origin and rationale behind public interest standing adopted in many democratic legal systems.

He concluded, that, fundamental to public interest standing provisions is the modern conception of the role of law as a weapon for social change. There is also the conception of the judicial function as investing law with meaning primarily aimed at preserving legal order by confining the legislative and executive organs of Government within their powers in the interest of the public, whilst also directed at enforcement of individual rights.

In paragraph [18] of SP Gupta v The Union of India & Ors (1982) 2 SCR 365, the Indian Supreme Court highlighted the importance of affording locus standi to a person acting in the public interest for the vindication of the rule of law. BHAGWATI J…, said:

“But there may be cases where the State or a public authority may act in violation of a constitutional obligation or fail to carry out such obligation, resulting in injury to public interest or what may conveniently be termed as public injury as distinguished from private injury.

Who would have standing to complain against such act or omission of the State or public authority? Can any member of the public sue for judicial redress? Or is the standing limited only to a certain class of persons? Or there is no one who can complain and the public injury must go unredressed.

…,. If the State or any public authority acts beyond the scope of its power and thereby causes a specific legal injury to a person or to a determinate class or group of persons, it would be a case of private injury actionable in the manner discussed in the preceding paragraphs. So also if the duty is owed by the State or any public authority to a person or to a determinate class or group of persons, it would give rise to a corresponding right in such person or determinate class or group of persons and they would be entitled to maintain an action for judicial redress.

But, if no specific legal injury is caused to a person or to a determinate class or group by the act or omission of the State or any public authority and the injury is caused only to public interest, the question arises as to who can maintain an action for vindicating the rule of law and setting aside the unlawful action or enforcing the performance of the public duty.

If no one can maintain an action for redress of such public wrong or public injury, it would be disastrous for the rule of law; for, it would be open to the State or a public authority to act with impunity beyond the scope of its power or in breach of a public duty owed by it.

The Courts cannot countenance such a situation where the observance of the law is left to the sweet will of the authority bound by it, without any redress if the law is contravened.

The view has therefore been taken by the Courts in many decisions, that, whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public, acting bona fide and having sufficient interest, can maintain an action for redressal of such public wrong or public injury.

The strict rule of standing, which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress, is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy–body or a meddlesome interloper but who has sufficient interest in the proceedings.

There can be no doubt that the risk of legal action against the State or a public authority, by any citizen, will induce the State or such public authority to act with greater responsibility and care thereby improving the administration of justice.”

It is not necessary for a person challenging the constitutional validity of legislation to vindicate public interest, on the ground that the legislation has infringed or infringes a fundamental human right, to give particulars of a person or persons who suffered legal injury as a result of the alleged unconstitutionality of the legislation.

Section 85(1)(d) of the Constitution requires the person to allege that a fundamental human right enshrined in Chapter 4 has been, is being, or is likely to be infringed.

He or she is not required to give particulars of a right holder.

The reason is that constitutional invalidity of existing legislation takes place immediately the constitutional provision with which it is inconsistent comes into force.

Constitutional invalidity of legislation enacted after the constitutional provision has come into effect occurs immediately the legislation is enacted. Constitutional invalidity of legislation does not depend, in such circumstances, on when a fundamental human right is infringed.

Fundamental human rights and freedoms are guaranteed so that, beyond the permissible limitations, they are not infringed.

Legislation which is inconsistent with a constitutional provision enshrining a fundamental human right of freedom becomes invalid before application. Application of the legislation is, in the circumstances, an unnecessary factor in the determination of its constitutional validity.

In the main volume of ERASMUS SUPERIOR COURT PRACTICE, Juta…, the learned authors considered the meaning of section 38(d) of the Constitution of the Republic of South Africa, 1996.

Section 38(d) of the Constitution of the Republic of South Africa, 1996 is in identical terms as section 85(1)(d) of the Constitution.

The learned authors made the observation, that, there are important policy reasons why the new ground of standing introduced in section 38(d) should not be interpreted restrictively. The learned authors said the reason is that standing accorded to persons to act in the public interest is “much broader than the other grants of standing contained in section 38.”

On the question whether a person challenging the constitutionality of legislation is required, under section 38(d) of the Constitution of the Republic of South Africa, to allege and prove infringement of a fundamental right of a particular person, the learned authors of ERASMUS SUPERIOR COURT PRACTICE said:

“In terms of this subsection, Chapter 2 litigation may be undertaken by a person acting in the public interest. All an applicant under this paragraph need essentially establish is that;
(I) Objectively speaking, the challenged rule or conduct is in breach of a right enshrined in Chapter 2;
(II) The public has a sufficient interest in an order of constitutional invalidity; and
(III) That the applicant is in fact acting in the public interest (rather than for his or her own interests or some ulterior motive).

As explained by O'REGAN J in Ferreira v Levin N.O. 1996 (1) SA 984 (CC) at para [235] there is no need to point to an infringement of, or threat to, the right of an individual person.

This flows from the notion of acting in the public interest: the public will ordinarily have an interest in the infringement of rights generally, not particularly.

Moreover, as ACKERMAN J explained, in proceedings concerning the validity of laws, the issue of whether the law is invalid or not does not depend on whether, at the moment when the issue is being considered, a particular person's rights are threatened or infringed by the offending law or not.

This is because laws which are inconsistent with the Constitution become invalid upon the commencement of the Constitution (in case of pre-constitutional laws) or upon the date when they came into force (in the case of post–constitutional laws).”

The applicants had no personal or financial gain to derive from the proceedings. They were not acting mala fide or out of extraneous motives as would have been the case if they were mere meddlesome busybodies seeking a day in court and cheap personal publicity.

The applicants were driven by the laudable motive of seeking to vindicate the rule of law and supremacy of the Constitution.

It is a high principle of Constitutional Law that people should be in a position to obey laws which are consistent with constitutional provisions enshrining fundamental human rights and freedoms.

They acted altruistically to protect public interest in the enforcement of the constitutional obligation on the State to protect the fundamental rights of girl children enshrined in section 81(1) as read with section 78(1) of the Constitution.

Children fall into the category of weak and vulnerable persons in society.

They are persons who have no capacity to approach a court on their own seeking appropriate relief for the redress of legal injury they would have suffered. The reasons for their incapacity are disability arising from minority, poverty, and socially and economically disadvantaged positions.

The law recognises the interests of such vulnerable persons in society as constituting public interest.

The proceedings instituted by the applicants, and the relief sought, were the only reasonable and effective means for enforcement of the fundamental rights of the girl children subjected to early marriages. The remedy they sought was the only means for an effective protection of the public interest adversely affected by the alleged infringement of the girl children's fundamental rights.

The respondents denied that there was infringement of the children's fundamental rights.

They could not be heard to argue that there were other reasonable and effective methods for enforcing the children's fundamental rights and protecting the public interest adversely affected by the alleged infringement.

The interests of the girl children subjected to early marriages were properly identified as a public interest to be protected by the relief sought in the proceedings.

Section 85(1)(d) of the Constitution underlines the principle that courts play a vital role in the provision of access to justice and protection of children.

These are matters of public interest.

A nation which is not concerned with the welfare of children cannot look forward to a bright future: see Murina & Ors v State of Uttar Pradesh & Ors (1982) 1 SCC 545.