Constitutional Rights re: Expression and Dignity

CC02-14 : NEVANJI MADANHIRE and NQABA MATSHAZI vs ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA and GUVAVA JA

CRIMINAL DEFAMATIONOur law of criminal defamation is essentially an amalgam of Roman-Dutch and English Law. The original rationale of the crime of defamation under Roman and Roman-Dutch law is not readily ascertainable. According to JOLOWICZ: An Introduction to Roman Law (3rd ed.)…, its rationale may derive from the social insecurity of the patricians who ...

CRIMINAL DEFAMATION

Our law of criminal defamation is essentially an amalgam of Roman-Dutch and English Law. The original rationale of the crime of defamation under Roman and Roman-Dutch law is not readily ascertainable. According to JOLOWICZ: An Introduction to Roman Law (3rd ed.)…, its rationale may derive from the social insecurity of the patricians who became increasingly threatened by the mounting power of the plebeians. In 17th and 18th century Holland, the Groot Placaat Boek abounds with enactments on the subject. The reason for such repeated re-statements of the offence seems to have been the prevalence of defamatory lampoons, squibs, verses and scurrilous satires, pertaining in particular to persons in authority. See Rex v Harrison and Dryburgh 1922 AD 320…,.

In Zimbabwe, the offence of criminal defamation and its parameters are prescribed in section 96 of the Criminal Law Code as follows:

“(1) Any person who, intending to harm the reputation of another person, publishes a statement which –

(a) When he or she published it, he or she knew was false in a material particular or realised that there was a real risk or possibility that it might be false in a material particular; and

(b) Causes serious harm to the reputation of that other person or creates a real risk or possibility of causing serious harm to that other person's reputation;

shall be guilty of criminal defamation and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding two years or both.

(2) In deciding whether the publication of a statement has caused harm to a person's reputation that is sufficiently serious to constitute the crime of criminal defamation, a court shall take into account the following factors in addition to any others that are relevant to the particular case –

(a) The extent to which the accused has persisted with the allegations made in the statement;

(b) The extravagance of any allegations made in the statement;

(d) Whether and to what extent the interests of the State or any community have been detrimentally affected by the publication.

(3) Subject to subsection (4), a person accused of criminal defamation arising out of the publication of a statement shall be entitled to avail himself or herself of any defence that would be available to him or her in civil proceedings for defamation arising out of the same publication of the same statement.

(4) If it is proved, in a prosecution for criminal defamation that the defamatory statement was made known to any person, it shall be presumed, unless the contrary is proved, that the person understood its defamatory significance.”…,.

FREEDOM OF EXPRESSION

There can be no doubt that the freedom of expression, coupled with the corollary right to receive and impart information, is a core value of any democratic society deserving of the utmost legal protection. As such, it is prominently recognised and entrenched in virtually every international and regional human rights instrument. Indeed, at its first session in 1946, through Resolution 59(I) of 14 December 1946, calling for an international conference on freedom of information, the United Nations General Assembly declared that:

“Freedom of information is a fundamental human right and is the touchstone of all the freedoms to which the United Nations is consecrated.”

This sentiment is echoed, with specific reference to the media, by the Human Rights Committee (established under Part IV of the International Covenant on Civil and Political Rights 1976). In General Comment No.34, issued at its 102nd session in July 2011, the Committee observed as follows…,:

“A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights. It constitutes one of the cornerstones of a democratic society. The Covenant embraces a right whereby the media may receive information on the basis of which it can carry out its function. The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. The public also has a corresponding right to receive media output.”

This Court too has had occasion to recognise the freedom of expression as a core value of a free and democratic society. See Retrofit (Pvt) Ltd v Posts and Telecommunications Corporation & Another 1995 (2) ZLR 199 (S)…,; United Parties v Minister of Justice Legal & Parliamentary Affairs 1997 (2) ZLR 254 (S)…,.

More recently, the South African Supreme Court of Appeal made the following pronouncement per STREICHER JA, in the case of Hoho v The State [2008] ZASCA 98…,:

“The importance of the right to freedom of expression has often been stressed by our courts. Suppression of available information and of ideas can only be detrimental to the decision-making process of individuals, corporations and Governments. It may lead to the wrong government being elected, the wrong policies being adopted, the wrong people being appointed, corruption, dishonesty and incompetence not being exposed, wrong investments being made and a multitude of other undesirable consequences. It is for this reason that it has been said 'that freedom of expression constitutes one of the essential foundations of a democratic society and is one of the basic conditions for its progress and the development of man'.”

It certainly cannot be gainsaid that the offence of criminal defamation operates to encumber and restrict the freedom of expression enshrined in section 20(1) of the former Constitution. On the other hand, it is also not in doubt that the offence of criminal defamation falls into the category of permissible derogations contemplated in section 20(2)(b)(i), as being a provision designed to protect the reputations, rights and freedoms of other persons.

What is in issue for determination by this Court is whether or not it is a limitation that is reasonably justifiable in a democratic society?

The test as to what is democratically reasonable and justifiable is not susceptible to precise legal formulation. In my own appreciation, the test may well vary from one society to another depending upon its peculiar political organisation and socio-economic underpinnings. Nevertheless, as was recognised by GUBBAY CJ in the oft-cited In re Munhumeso & Others 1994 (1) ZLR 49 (S)…,:

“What is reasonably justifiable in a democratic society is an illusive concept – one which cannot be precisely defined by the courts. There is no legal yardstick save that the quality of reasonableness of the provision under challenge is to be judged according to whether it arbitrarily or excessively invades the enjoyment of a constitutionally guaranteed right.”

In Nyambirai v National Social Security Authority & Another 1995 (2) ZLR 1 (S)…, GUBBAY CJ elaborated the test as follows:

“In effect, the court will consider three criteria in determining whether or not the limitation is permissible in the sense of not being shown to be arbitrary or excessive. It will ask itself whether:

(i) The legislative objective is sufficiently important to justify limiting a fundamental right;

(ii) The measures designed to meet the legislative object are rationally connected to it; and

(iii) The means used to impair the right or freedom are no more than is necessary to accomplish the objective.”

As regards the first two rungs of this test, I do not perceive any conceptual or practical impediment to the criminalisation of defamation. The objective behind section 96 of the Criminal Law Code, viz. to protect the reputations, rights and freedoms of other persons, is sufficiently important to warrant the limitation of freedom of expression, and the detailed provisions of section 96 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] are, clearly, rationally connected to that objective. What is contentious, in my view, is the proportionality of the means deployed in this instance. In other words, is it necessary to criminalise defamatory statements in order to accomplish what is otherwise an unquestionably legitimate objective? It seems logical to answer this question in two stages:

(i) Firstly, what are the consequences of criminalising defamation? and

(ii) Secondly, is there an appropriate and satisfactory alternative remedy to deal with the mischief of defamation?

The practical consequences that would ordinarily flow from a complaint of criminal defamation are as follows. The accused person would be investigated and face the danger of arrest. This would arise even where the alleged defamation is not serious and where the accused has an available defence to the charge. Thereafter, if the charge is prosecuted, he will be subjected to the rigours and ordeal of a criminal trial. Even if the accused is eventually acquitted, he may well have undergone the traumatising gamut of arrest, detention, remand and trial. Moreover, assuming that the accused has employed the services of a lawyer, he will also have incurred a sizeable bill of costs which will normally not be recoverable.

I would accept that the foregoing tribulations are not peculiar to the offence of criminal defamation and would potentially be encountered by an accused person charged with any serious criminal offence. However, what is distinctive about criminal defamation, though not confined to that offence, is the stifling or chilling effect of its very existence on the right to speak and the right to know. This, in my view, is the more deleterious consequence of its retention in the Criminal Law Code, particularly in the present context of newspaper reportage.

It cannot be denied that newspapers play a vital role in disseminating information in every society, whether open or otherwise. Part and parcel of that role is to unearth corrupt or fraudulent activities, executive and corporate excesses, and other wrongdoings that impinge upon the rights and interests of ordinary citizens. It is inconceivable that a newspaper could perform its investigative and informative functions without defaming one person or another. The overhanging effect of the offence of criminal defamation is to stifle and silence the free flow of information in the public domain. This, in turn, may result in the citizenry remaining un-informed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices.

The chilling effect of criminalising defamation is further exacerbated by the maximum punishment of two years imprisonment imposable for any contravention of section 96 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. This penalty, in my view, is clearly excessive and patently disproportionate for the purpose of suppressing objectionable or opprobrious statements. The accomplishment of that objective certainly cannot countenance the spectre of imprisonment as a measure that is reasonably justifiable in a democratic society.

The fact that investigative journalism may on occasion involve the publication of erroneous or inaccurate information does not detract from the reciprocal rights to receive and impart information and ideas without interference. As was aptly observed in Hoho v The State [2008] ZASCA 98…,:

“Although false information will not benefit a society, democratic or otherwise, the right to freedom of expression is not restricted to correct or truthful information because errors are bound to be made from time to time and to suppress the publication of erroneous statements on pain of penalty would of necessity have a stifling effect on the free flow of information.”

Another very compelling reason for eschewing resort to criminal defamation is the availability of an alternative civil remedy under the actio injuriandum in the form of damages for defamation. Although this remedy may not be as expeditious as criminal prosecution, it affords ample compensatory redress for injury to one's reputation. If this is correct, the invocation of criminal defamation to protect one's reputation would be unnecessary, disproportionate and therefore excessive.

One of the arguments proffered for the retention of criminal defamation is that injury to one's reputation may have more serious and lasting effects than a physical assault and that, as is the case with assault, there is nothing excessive about one injury attracting both a civil claim and a criminal penalty. See Hoho v The State [2008] ZASCA 98..,.

However, what this argument disregards is that an act of assault or malicious damage to property, unlike defamation, impinges upon the very fabric of society, i.e. by threatening the manner in which citizens are expected to interact in their daily lives without fear of physical violence. In the case of defamation, only the individual rights of the complainant are affected, and he has a clear alternative remedy in civil law, without subjecting the defamer to the distress attendant upon criminal arrest and detention.

In Hoho v The State [2008] ZASCA 98, the Supreme Court of Appeal dealt with the constitutionality of a conviction for criminal defamation. The court deemed civil and criminal liability for defamation to be equivalent in the extent of their limitation, as the onerous consequences of criminal liability are counterbalanced by an onerous burden of proof. It was accordingly held, at para.36, that criminal defamation was not abrogated by disuse and was perfectly consonant with the new South African Constitution. The offence was reasonably required to protect personal reputations and did not go further than was necessary to accomplish that objective. It was not too drastic a limitation on the right to freedom of association.

In an article written by VINAYAK BHARDWAJ and BEN WINKS, in the Mail & Guardian of 1 to 7 November 2013, commenting on the decision in Hoho v The State [2008] ZASCA 98, the vital differences between criminal and civil liability are commendably highlighted. I take the liberty to quote extensively from this article and to associate myself with the propositions articulated therein:

“Civil law exists to provide relief and restitution when one person harms or threatens to harm another's private interests. Criminal law exists to ensure retribution and protection of the public, by detaining offenders and deterring others from offending.

For assault, imposing imprisonment or supervision is essential to protect the victims and the public at large. For damaging speech, however, the civil law is as effective, if not more so, in providing the public with proportionate protection from offenders.

Crucially, freedom of expression is constitutionally enshrined and encouraged, as the lifeblood of democracy. The freedom to wield fists and firearms enjoys no similar status in our supreme law. Thus, the analogy between assault and defamation breaks down. It is an unreliable guide to finding an appropriate balance between the rights to dignity and free speech.

It is also disputable that civil and criminal defamation impose equivalent limitations, and that the harsher consequences of criminal liability are neatly offset by the heavier burden of proof. There are important differences in practice and in principle. First, a prosecution targets the journalist rather than the journal. A civil suit is aimed primarily at the defendant with the deepest pockets.

Furthermore, while civil liability may be discharged within days, through payment or some other performance, criminal liability endures long after the sentence has been served, or even if the sentence has been suspended. Criminal liability is permanent and pervasive. It brands the accused with a mark so deep and indelible, it can be expunged only by Presidential pardon. It stains every sphere of that person's life. He becomes a criminal, and must disclose that every time he applies for a job, a visa or even a bank account.

Even if the State does not discharge its onerous burden of proof, the very existence of the crime creates the risk of wrongful accusation, investigation, prosecution and even conviction, with all the associated inconvenience and scandal. These ills can barely be corrected on appeal, and thus the crime could easily be used to cow courageous journalists.

It is this brand of public disapproval that criminal law rightly casts on murderers, rapists, and thieves, precisely for its deterrent potency. The same objective could not, and should not, apply to injurious speech, the borders of which are elusive and essentially subjective.”…,.

CONCLUSION

Having regard to all of the foregoing, I take the view that the harmful and undesirable consequences of criminalising defamation, viz. the chilling possibilities of arrest, detention and two years imprisonment, are manifestly excessive in their effect. Moreover, there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation. Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons. In short, it is not necessary to criminalise defamatory statements.

Consequently, I am satisfied that the offence is not reasonably justifiable in a democratic society within the contemplation of section 20(2) of the former Constitution.

Accordingly, it is inconsistent with the freedom of expression guaranteed by section 20(1) of that Constitution.

FREEDOM OF EXPRESSION UNDER THE NEW CONSTITUTION

As I have observed at the outset, the principal issue for determination in casu is the constitutionality of criminal defamation under the former Constitution. What has not, and need not, be considered for present purposes is the validity of that offence within the framework of the new Constitution.

What I would simply note at this stage is that the freedom of expression and freedom of the media, as secured by section 61 of that Constitution are framed differently in several material respects. Of particular significance is subsection (5)(c) which expressly excludes malicious injury to a person's reputation or dignity from the ambit of the freedom of expression and freedom of the media guaranteed by subsections (1) and (2). Also relevant is section 51 which declares that every person has inherent dignity and the right to have that dignity respected and protected.

Having regard to these provisions, taken together, it is arguable that the freedom of expression conferred by section 61 is to be more narrowly construed as being subordinate to the value of human dignity. It might also be argued that the offence of criminal defamation is a justifiable limitation on the freedom of expression as envisaged by section 86 of the new Constitution. In any event, as I have said, these are matters for argument and consideration as and when an appropriate case is brought for determination before this Court.

DISPOSITION

The relief sought herein is for the permanent stay of prosecution of the applicants on the charge of criminal defamation brought against them as being in contravention of section 20(1) of the former Constitution.

They have succeeded in demonstrating that the offence of criminal defamation is not reasonably justifiable in a democratic society on any of the grounds mentioned in section 20(2) of the Constitution. However, before the declaratory relief that they seek can be granted, it is necessary to apply the rule nisi requirements of section 24(5) of that Constitution, which subsection provides as follows:

“If in any proceedings it is alleged that anything contained in or done under the authority of any law is in contravention of section 16, 17, 19, 20, 21 or 22 and the court decides, as a result of hearing the parties, that the complainant has shown that the court should not accept that the provision of the law concerned is reasonably justifiable in a democratic society on such of the grounds mentioned in section 16(7), 17(2), 19(5), 20(2) and (4), 21(3) or 22(3)(a) to (e), as the case may be, as are relied upon by the other party without proof to its satisfaction, it shall issue a rule nisi calling upon the responsible Minister to show cause why that provision should not be declared to be in contravention of the section concerned.”

In the result, the Minister of Justice, Legal and Parliamentary Affairs is hereby called upon, if he so wishes, to show cause why section 96 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] should not be declared to be in contravention of section 20(1) of the former Constitution. The Registrar is directed to set the matter down for hearing on the earliest available date.

In considering his position in light of this judgment, the Minister's attention is drawn to the observations made by this Court in Chimakure & Others v Attorney-General of Zimbabwe case no.CCZ 247/09 as to what is ordinarily expected in any Executive response to a rule nisi issued in terms of section 24(5).

Thus, if the Minister intends to oppose the confirmation of the rule nisi, he is enjoined to canvass new facts and legal arguments rather than recapitulate those that have already been traversed, and, in keeping with the intention behind section 24(5), to focus his submissions on the critical question of whether or not the impugned provision is reasonably justifiable in a democratic society.

CC11-15 : ARTHUR MUTAMBARA vs THE ATTORNEY GENERAL OF ZIMBABWE and COMMISSIONER GENERAL OF POLICE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and MAVANGIRA AJCC

Freedom of Expression Freedom of expression is a right which was protected under section 20(1) of the old Constitution, which read as follows: “Except with his own consent, or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions ...

Freedom of Expression

Freedom of expression is a right which was protected under section 20(1) of the old Constitution, which read as follows:

“Except with his own consent, or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference and freedom from interference with his correspondence.”

The applicant does not deny that he caused the statement in question to be published. He submits, correctly, that there are a number of authorities in our jurisdiction and beyond that have emphasized the purpose of safeguarding freedom of expression, the fact that it lies at the very foundation of a democratic society and that, consequently, it is a right that is jealously guarded by the courts.

See In re Munhumeso 1995 (1) SA 551 (ZCC); Woods and Others v Minister of Justice & Others 1994 (2) ZLR 195 (S); Madzingo & Others v Minister of Justice & Others 2005 (1) ZLR 171 (S).

In contending, in his defence, that the statement in issue was one that was protected under the freedom of expression enshrined in the old Constitution, the applicant argues that;

(a) The statement was “undoubtedly” one of a political nature, and therefore fell into the category of political speech which is ordinarily afforded highest protection against interference or restriction under the constitutional freedom of expression provisions;

(b) Since the comment was directed at the decision of the court, which had some political significance, any reference to the judiciary bordered on the incidental and therefore could not have been serious;

(c) In other jurisdictions, statements concerning public officials and other individuals who perform public services are afforded greater protection and this was essential for the functioning of a truly democratic society;

(d) Criticism of public authority, including the judiciary, is a valuable element of the freedom of expression because the ability to criticise the courts promotes impartiality, accessibility and effectiveness, serves as a democratic check on the judiciary, and promotes peace and stability (S v Mamabolo 2001 (2) SA 409 CC);

(e) Genuine, albeit, 'rigorous' criticism of the judiciary is acceptable, as long as it stayed within the limits of reasonable courtesy and good faith (In re Chinamasa 2000 (2) ZLR 322 (S)…,.).

(f) He should not have been charged under section 182(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] since his comment was also 'debate' on the proper role of the judiciary, that is, whether it is best to have an activist or a deferential judiciary; and, finally,

(g) That nothing was, in any case, established on the facts as set out by the State, which suggests there was any impairment of the dignity, reputation or authority of the court.

The first respondent (“the respondent”) challenges all of the applicant's arguments and submits that there were specific limitations to the right to freedom of expression provided in section 20(2)(b)(iii) of the old Constitution. The purpose of the limitations, it is contended, was to maintain the independence and authority of the courts. The relevant provision read as follows:-

“20 Protection of Freedom of Expression

(1)…,.

(2) Nothing contained in or done under the authority of any law shall be held to be in contravention of subsection (1) to the extent that the law in question makes provision -

(a)…,.

(b) For the purpose of

(i)…,.

(ii)…,.

(iii) Maintaining the authority and independence of the courts or tribunals or the Senate or the House of Assembly.

(iv)…,.

(v)…,.“

The respondent contends that, contrary to the applicant's assertions in this respect, section 182(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] complied with each of the requirements of permissible legislative limitation of the exercise of the right to freedom of expression. He submits that the questions to be posed in this respect are defined as follows in the case of Retrofit (Private) Limited v Posts and Telecommunications and Anor 1995 (2) ZLR 199 (S)…,;

Is the restriction on the exercise of the right of freedom of expression imposed under section 182(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] contained in law?

(1) If yes, does the provision have as its primary objective the protection of a public interest in one or more of the matters listed in section 20(2)(a) of the old Constitution?

(2) If the protection of a public interest listed in section 20(2)(a) is the primary purpose of the legislation, is there a rational connection between the restriction and the exercise of the right to freedom of expression and the objective pursued? (In re Chinamasa 2000 (2) ZLR 322 (S); Chimakure v Attorney General SC14-13)

The respondent then addresses each of these questions in relation to the case at hand and submits as follows in his Heads of Argument;

“It is submitted that the restriction is contained in the law because it is provided for in s 182(1) of the Code. It is further submitted that indeed the offence of 'contempt of court' (“scandalising the court”) exists for purposes of protecting the administration of justice and is thus a permissible derogation from the freedom of expression. It is submitted, in answer to the last question, that there is a rational connection between the restriction on the exercise of the right to freedom of expression and the objective pursued. In other words the offence as provided for in s182(1) of the Code was (reasonably) justifiable in a democratic society. There is need to protect the courts from being scandalized (See in this respect Nyambirai v National Social Security Authority and Another 1995 (2) ZLR (1) (S) at 13 D-F).”

The respondent added that the words uttered in reference to the judiciary were clearly not “within the limits of reasonable courtesy and good faith.”

In considering the lengthy submissions of the parties on this matter, I find that there is no dispute as to the content and purpose of the right to the freedom of expression that was enshrined in the old Constitution. Nor is it disputed that such right is not absolute. I am, however, persuaded by the respondent's submissions as outlined above.

A reading of the offending statement conveys the clear impression that the applicant's major grievance was the perceived collusion between the political party ZANU (PF) and the Zimbabwe Electoral Commission ('ZEC'). It appears that the applicant regarded the vote recount as the result of some pressure having been brought to bear upon the Zimbabwe Electoral Commission to undertake the exercise, as part of a ZANU(PF) 'agenda' to 'seize' at least nine Parliamentary seats from the opposition political parties. Whatever the merits or demerits of this speculative comment, it is evident that the applicant made his meaning quite clear. The first part of the statement, in my view, had political overtones, the like of which one may expect and does in fact hear, from political opponents.

The applicant, however, did not stop there.

He went on to draw the judiciary, generally, and the High Court in particular, into the perceived conspiracy between ZANU (PF) and the Zimbabwe Electoral Commission. From commenting on a factual situation, that is, the vote recounts, he proceeded to confidently 'predict' what would happen should any court challenge to the vote recounts be mounted by the opposition. Using strong language that, in my view, and as rightly submitted by the respondent, fell outside the limits of 'reasonable courtesy and good faith', he charged that the judiciary - accused by him of being 'compliant and pliable'- would dutifully 'consummate' the unlikely marriage between ZANU(PF) and the Zimbabwe Electoral Commission.

The applicant, even after this, was not done!

In an apparent effort to substantiate his speculative charges against the judiciary, he went on to cite a real judgment of the High Court, which he described as “thoughtless,” as an 'example' of the pliability and compliance that he had mentioned earlier in the statement.

While the part of the applicant's statement that cast aspersions on the Zimbabwe Electoral Commission's recounting of the votes and alleged ZANU (PF) 'agenda' could, for the reasons given, fall within the ambit of a political statement, I am of the view that the same cannot be said of the part that denigrated the judiciary and the High Court. I do not doubt that it transcended the 'political' arena and became a direct attack on the judiciary. I therefore have difficulty in accepting the applicant's averment that such a statement 'bordered on the incidental' and could therefore not have been serious. I am, in this respect, persuaded to the merit in the following submission contained in the respondent's heads of argument;

“The applicant's words about the judiciary not only impute improper and corrupt motives or conduct on those taking part in the administration of justice, but also excites misgivings as to the integrity, propriety and impartiality brought to the exercise of judicial office and such words, indeed, created a real or substantial risk of impairing public confidence in the administration of justice. The submission is also made that the crime committed in terms of s 182(1) of the Code falls in the category known as 'Crimes Against the Administration of Justice.' The contempt charged was the type ordinarily referred to as 'scandalising the court.” Such crime is described, in In re Chinamasa 2000 - (2) ZLR 322, as one that is:

'committed by publication, either in writing or verbally, of words calculated to bring a court, a judge or the administration of justice through the courts generally, into contempt.'”

As already indicated, the applicant also sought to defend his utterances against the judiciary on the basis that they constituted 'comment' on the debate focused on the 'proper role' of the judiciary.

I do not find this rather ingenious submission to be persuasive. I have already commented that the applicant's bone of contention was the perceived collusion between ZANU (PF) and the Zimbabwe Electoral Commission to further the former's 'agenda' of seizing some parliamentary seats from the opposition. This grievance was, evidently, what motivated his denigrating comments on the judiciary. There is nothing in the statement to suggest that it was motivated by, or aimed at contributing to some unspecified past, current, or future debate on the 'proper' role of the judiciary.'

I therefore dismiss this argument to the extent that it was meant to justify the denigration of the judiciary on the basis of the statement being 'incidental” and therefore not seriously meant. I am satisfied, however, that the statement falls into the category of 'acts' contemplated by section 182(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

To the extent that this section had not been repealed, or otherwise struck off the statute books, it was clearly 'a law' which, in terms of section 20(2)(ii) of the former Constitution, had the objective of 'maintaining independence and authority of the courts.' Words like 'pliable' and 'compliant' connote the very opposite of judicial independence and authority….,.

I do not find that the applicant has discharged the onus that he bore, to establish that section 182(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] should be struck down because it violated his right to freedom of expression in the manner that he alleges.

SC14-13 : CONSTANTINE CHIMAKURE and VINCENT KAHIYA and ZIMIND PUBLISHERS (PVT) LTD vs THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

The applicants challenged the constitutionality of section 31(a)(iii) of the Criminal Code on the ground that it contravenes section 20(1) of the Constitution which guarantees freedom of expression. The contention is that the provision is not saved by section 20(2) of the Constitution. Section 20 of the Constitution provides: “20 Protection of Freedom of ...

The applicants challenged the constitutionality of section 31(a)(iii) of the Criminal Code on the ground that it contravenes section 20(1) of the Constitution which guarantees freedom of expression.

The contention is that the provision is not saved by section 20(2) of the Constitution. Section 20 of the Constitution provides:

“20 Protection of Freedom of Expression

(1) Except with his own consent or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, that is to say freedom to hold opinion and to receive and impart ideas and information without interference and freedom from interference with his correspondence.

(2) Nothing contained in or done under the authority of any law shall be held to be in contravention of subsection (1) to the extent that the law in question makes provision -

(a) In the interests of defence, public safety, public order, the economic interests of the State, public morality or public health.

(b) …,.

except so far as that provision or as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.”

The applicants do not deny that the right to freedom of expression is not absolute at all times and under all circumstances. They accept that inherent in the exercise of the right to freedom of expression is a duty not to injure the rights of others or the public interests listed in section 20(2) of the Constitution. They argue that the restriction imposed by section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is an impermissible legislative limitation of the exercise of freedom of expression….,.

There is one indivisible freedom for every individual and that is freedom from unwarranted interference by Government.

The fundamental rights protected by the Constitution and exercised by the individual are assertions against the State of different aspects of the freedom inherent in every individual as a human being. Freedom of expression asserts the autonomy of thinking, linguistic, and communicative elements of the life of an individual and a thin slice of the universe of communication policy.

Section 20(1) of the Constitution defines, in broad terms, the nature, content and scope of the cluster of rights the enjoyment of which is protected against interference by the Government under the principle of freedom of expression. The respondent does not dispute the fact that liberty of publishing or communicating one's thoughts, ideas and information expressed in an oral, written or symbolic act to others is essential to the enjoyment of freedom of expression.

There are, in fact, three dimensions to the process of the exercise of the rights guaranteed by section 20(1) of the Constitution;

(i) There is an internal dimension (the formation and holding of opinion, ideas and information);

(ii) A communicative dimension (the expression of opinion, imparting of ideas and information); and

(iii) An external dimension (the effect of opinions, ideas and information on the addressee or the audience i.e. on the rights of others or public interests listed in section 20(2)(a) of the Constitution).

The guarantee of freedom of expression affects the holding sphere, the communicative sphere, and the external sphere. The areas constitute an indissoluble unit.

Protection of the fundamental right to freedom of expression is based on the belief that man is an autonomous and rational agent capable of acquiring knowledge which he or she uses to distinguish right from wrong. He or she is under a duty to promote the general welfare of the community to the extent that it is not injurious to his or her own lawful interests. Freedom of expression is defined not only in terms of the protection of the right to hold opinions but also to receive and impart ideas and information without interference. What is protected by the right is not only the benefits of the communicative process but also the effects the dissemination of ideas and information has on the audience - including public interests.

The State is placed under an enforceable fundamental obligation not to interfere with the exercise of freedom of expression. It may interfere only when the activity or expression poses danger of direct, obvious, and serious harm to the rights of others or the public interests listed in section 20(2) of the Constitution.

Ideas and information are the result, basis and means of cognitive interpretation by man of the real world around him or her. It is by imparting ideas and information he or she holds to others that an individual can let them know his or her thoughts on matters of private and public concern. In that way, he or she is able to influence the attitude of others towards him or her. In that regard, freedom of expression consists of the right to express and convey one's conviction and opinion on any matter orally or by writing, printing or any other method addressed to the eyes and ears of other people.

It is by receipt of ideas and information imparted to him or her by others that the individual can become a social being. He or she would know whether his or her view of the world is correct or wrong thereby attaining self-fulfilment, political or social participation and discovery of truth.

The nature and scope of the rights guaranteed covers every activity which conveys or attempts to convey a message in a non-violent form. Section 20(1) of the Constitution embraces all content of expression irrespective of the nature of the message sought to be conveyed. The right to freedom of expression applies to ideas and information of any kind. Conduct which does not convey meaning or seeks to convey meaning in a violent form or manner does not fall within the protection. 'Form' refers to the physical form including words in which the message is communicated and does not extend to content.

A free person abhors violence perpetrated against him or her by others just as they also abhor violence perpetrated by him or her against them. Ideas and information are imparted and received for mental digestion and acceptance or rejection. Freedom of thought means that the mind must be ready to receive new ideas, to critically analyze and examine them and to accept those which are found to stand the test of scrutiny and to reject the rest: Naraindas v State of Madhya Pradesh (1974) 3 SCR 624…,. It is the battle of minds and the free debate of ideas and information that enjoy the benefits of the protection of freedom of expression. Any form of violence by which meaning is conveyed is an antithesis of freedom of expression. The purpose of the guarantee is to ensure that people can manifest and convey the meaning of their thoughts and feelings in non-violent ways without fear of censure.

The Supreme Court of Canada determined the question of the scope of the guarantee of freedom of expression in the case of Irwin Toy Ltd v Quebec (AG) (1989) 39 C.R.R. 193. Writing for the majority, DICKSON CJC…, said:

“Expression has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning. That meaning is its content…,. Indeed, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. Of course, while most human activity combines expressive and physical elements, some human activity is purely physical and does not convey or attempt to convey meaning….,. The content of expression can be conveyed through an infinite variety of forms of expression: for example the written or spoken word, the arts, and even physical gestures or acts. While the guarantee of free expression protects all content of expression certainly violence, as a form of expression, receives no such protection.”

See also R v Keegstra [1991] LRC (Const.) 333…, (Supreme Court of Canada).

Publication or communication of a false statement to any other person on any subject matter or topic in a non-violent form is an activity which conveys or attempts to convey meaning. The protection provided by section 20(1) of the Constitution does not have regard to the truth or falsity of the meaning of the ideas and information published or communicated. Section 20(1) is a value-free provision which does not recognise any basis for the test of truth. In other words, truth is not a condition sine qua non of the protection of freedom of expression. This freedom applies to all expressions regardless of their nature, content, quality or truth. The content of a statement should not therefore determine whether it falls within section 20(1) of the Constitution's protection: See New York Times v Sullivan 376 US 254 (1964)…,.

Freedom of expression finds its true meaning when its enjoyment is protected from interference by Government. The Constitution recognises the fact that people tell lies in a variety of social situations for different reasons. Lies are not necessarily without intrinsic social value in fostering individual self-fulfilment and discovery of truth. For that reason, the Constitution protects against State interference the rights of every person to speak or write and communicate or publish to others what he or she thinks. These rights are part of the 'freedom' or 'liberty' guaranteed by the Constitution.

The only limitation on the 'freedom' or 'liberty' is the duty not to injure the rights of others or the collective interests listed in section 20(2)(a) of the Constitution. In other words, the State, through the exercise of legislative power, may limit the individual's exercise of the right to freedom of expression if that were necessary for the protection of one or more of the public interests listed in section 20(2)(a) of the Constitution.

It is, in short, not simply the falsity of the message of the verbal or non-verbal nature of expression which determines the validity of a restriction. It is the rights to others or the public interests and actual or potential harm thereto that help to determine whether a restriction on the expression is valid. See Texas v Johnson 491 US 397 (1989)…,.

The fact that a person has told lies to others on any subject matter should not be of concern to the State. Government is prohibited from appointing itself as a monitor of truth for people. They are able to do that for themselves through the free exchange of ideas and information on matters of public interest. People must not be denied the right to freely use speech or the press to silence each other and decide what views shall be voiced. What is protected is really the indivisible freedom of everyone to speak even when they may, after they have done so, be called liars. Anyone has a right to impart or receive ideas and information about the activities of security service institutions regardless of the falsity or truth of the message conveyed, provided no harm or real likelihood of harm to the rights of others or public interest results in breach of law.

The principle of equality of treatment behind the right assures those who tell lies and those who tell the truth that the guarantee of the right to freedom of expression belongs to them together. They are assured that when they exercise it to harm the rights of others or public interest they will be treated the same in the eyes of the Constitution and the law. The liberty cannot be denied to some ideas and saved for others.

The bedrock principle (to borrow the words of JUSTICE BRENNAN in Texas v Johnson 491 US 397 (1989)…,.) of the guarantee is that no exercise of the right to freedom of expression can, without more, be restricted on the ground that the message conveyed is false, offensive or not favourable. R v Zundel (1992) 10 CRR (Can SC) (2d) 193…,. This rule against content-based discrimination is truly the cornerstone of contemporary free expression protection jurisprudence. If expression has to be prohibited because of content there has to be a demonstrable direct and proximate causal link between it and actual or potential harm to a public interest listed in section 20(2) of the Constitution. In other words, the interest that is pursued by the constraint on the exercise of freedom of expression must be protected from harm regardless of whether it can be violated through publication or communication of a true or false statement.

There would be no basis for holding that publication or communication of a false statement on any subject matter is not protected 'expression' in light of the broad, generous, and purposive interpretation of section 20(1) of the Constitution adopted by the court in its case law to give to individuals the full measure of the fundamental right. See United Parties v Minister of Justice, Legal and Parliamentary Affairs & Ors 1997 (2) ZLR 254 (S); Smyth v Ushewokunze & Anor 1998 (3) SA 1125 (ZSC).

Section 20(1) of the Constitution underscores the importance of freedom of expression in a free and democratic society, subject, of course, to section 20(2). The overriding importance of the right has been widely recognized for its own sake and as an essential underpinning of democracy and a means of safeguarding other human rights. It is the duty of the State, in the exercise of collective power, to act in terms of the principles of fundamental human rights and freedoms whilst advancing social justice.

The court recalls what it said in Chavunduka & Anor v Minister of Home Affairs & Anor 2000 (1) ZLR 552 (S). Writing for the unanimous court, GUBBAY CJ…, said:

“This court has held that s 20(1) of the Constitution is to be given a benevolent and purposive interpretation. It has repeatedly declared the importance of freedom of expression to the Zimbabwean democracy - one of the most recent judgments being that of United Parties v Minister of Justice & Ors 1997 (2) ZLR 254 (S) at 268C-F, 1998 (2) BCLR 224 (ZS) at 235I-J. Furthermore, what has been emphasised is that freedom of expression has four broad special objectives to serve:

(i) It helps an individual to obtain self-fulfilment;

(ii) It assists in the discovery of truth and in promoting political and social participation;

(iii) It strengthens the capacity of an individual to participate in decision–making; and

(iv) It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.

See, to the same effect, Thomson Newspapers Co. v Canada (1998) 51 CRR (2d) 189 (Can SC) at 237.

Plainly embraced and underscoring the essential nature of freedom of expression, are statements, opinions and beliefs regarded by the majority as being wrong or false. As the revered HOLMES J so wisely observed in United States v Schwimmer 279 US 644 (1929) at 654, the fact that the particular content of a person's speech might 'excite popular prejudice' is no reason to deny it protection for 'if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought - not free thought for those who agree with us but freedom for thought of that we hate.' Mere content, no matter how offensive, cannot be determinative of whether a statement qualifies for the Constitutional protection afforded to freedom of expression. See R v Keegstra (1991) 3 CRR (2d) 193 (Can SC) at 286. Sixty years later, in R v Zundel (1992) 10 CRR (2d) 193 (Can SC) MADAM JUSTICE MCLACHLIN expressed much the same sentiment as HOLMES J.”

THOMAS EMERSON in his article titled 'Toward a General Theory of the First Amendment' 72 YALE L.J 877 (1963) notes…, that:

“…, the theory of freedom of expression involves more than a technique for arriving at better social judgments through democratic procedures. It comprehends a vision of society, a faith and a whole way of life. The theory grew out of an age that was awakened and invigorated by the idea of a new society in which man's mind was free, his fate determined by his own powers of reason and his prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as a prescription for attaining a creative, progressive, exciting and intellectually robust community. It contemplates a mode of life that, through encouraging toleration, scepticism, reason and initiative, will allow man to realize his full potentialities. It spurns the alternative of a society that is tyrannical, conformist, irrational and stagnant.”…,.

Section 20(2) of the Constitution prescribes strict requirements for any measure in the exercise of State power which has the effect of restricting the exercise of the right to freedom of expression. The recognition of the power of Government to limit the exercise of freedom of expression is based on the concept of a free and democratic State based on the rule of law. This concept is based on the possibility that freedom of any kind, even constitutional freedom of expression, could be abused for the purposes of harming the rights of others or public interest. The exercise of the power to limit the exercise of the right to freedom of expression is not only required to be constitutionally justified; it is itself restricted by the principle of proportionality.

The first thing the Constitution controls, in the exercise by the Government of the power to hinder the enjoyment of freedom of expression under the strict justificatory requirements of section 20(2), is the degree of interference. The interference imposed in terms of the impugned law must be limited to being a restriction or hindrance of the enjoyment of the exercise of the right to freedom of expression. There must be a limitation of acts by which the right to freedom of expression is exercised.

It would not be an interference within the meaning of the Constitution if the measure adopted by the Government amounts to authorization of the destruction or abrogation of the right to freedom of expression itself. To control the manner of exercising a right should not signify its denial or invalidation. The right in the person is indivisible whilst its exercise can differ depending on the situation. The idea must be to harmonize the individual's pursuit of his or her ends with those of others. It is a power which must be exercised in a manner not inconsistent with the continued existence of the right.

Whilst non-interference with the enjoyment of the fundamental right is an obligation on the State, the imposition of restrictions on its exercise, in terms of section 20(2)(a) of the Constitution, is not.

It is optional.

Not every instance of likely harm from expression and dissemination of ideas and information to a public interest listed in section 20(2) of the Constitution would justify the imposition of a restriction on the exercise of freedom of expression. If that were to be the practice the area of freedom of expression would be reduced to naught.

It is only the prohibition of those acts, in the exercise of freedom of expression by the speaker, writer, publisher, or actor, shown to pose danger of direct, obvious, and serious harm to one or more of the public interests listed in section 20(2)(a) of the Constitution which is justifiable. The right to freely express one's opinion or ideas and information on any subject to others goes together with the right to choose the effect one wants the communication or publication to have on the listener or reader and the circumstances likely to produce the strongest effect.

In deciding whether a measure imposes restrictions to the exercise of freedom of expression, the court examines its purpose or effect. The court does not examine the measure, at this stage, for the purpose of ascertaining its objective. It does not make any reference to the consequences of the prohibited activity. The court looks at what has been called the 'facial' purpose of the legislative technique adopted by Parliament to achieve its ends. The question is whether or not the purpose or effect of the provision is to restrict freedom of expression. In Irwin Toy Ltd v Quebec (AG) (1989) 39 C.R.R. 193…., DICKSON CJC said:

“If the Government's purpose is to restrict the content of expression by singling out particular meanings that are not to be conveyed, it necessarily limits the guarantee. If the Government's purpose is to restrict a form of expression in order to control access by others to the meaning being conveyed or to control the ability of the one conveying the meaning to do so, it also limits the guarantee. On the other hand, where the Government aims to control only the physical consequences of certain human activity, regardless of the meaning being conveyed, its purpose is not to control expression.”

See also: In re Munhumeso & Ors 1994 (1) ZLR 49 (S)…,.; Retrofit (Pvt) Ltd v PTC & Anor 1995 (2) ZLR 199 (S)…,.; Bennett Coleman and Co. Ltd & Ors v Union of India & Ors AIR 1973 SC 106…,.; R v Big M Drug Mart Ltd (1985) 18 DLR (4^th) 321…,.

In the case of section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] not every publication or communication of a false statement about a security service institution that is prohibited. It is only when the prohibited expression and dissemination of ideas and information are done with the specific intention or realisation that there is a real risk or possibility of undermining public confidence in a security service institution that the crime is committed. The prohibition is not applicable for example, when a person publishes or communicates a false statement with the intention of inciting others to public disorder.

The effect is that the applicants are, or anyone else is, denied the right to impart the ideas and information in the form of a statement to other people if the message is wholly or materially false. There is a specificity of the quality of the false statement in terms of consequences and the circumstances in which its publication or communication is prohibited as a crime. The other people would be denied the right to receive the statement because of the prohibition on the exercise of the right by the applicants to publish the ideas and information expressed in the statement.

As long as the prohibition is extant, the publication of a false statement with the requisite state of mind would offend against the provisions of section 31(a)(iii) of the Criminal Code. One of the effects of section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is to subject a person charged with the commission of the offence to criminal conviction and potential imprisonment. It is clear that the provision is a material interference by the State with the constitutionally guaranteed right to freedom of expression by making publication or communication of a false statement with the requisite state of mind a punishable crime.

The holding brings into operation the application of the requirements of permissible legislative limitation of the exercise of freedom of expression.

Is the interference with the exercise of freedom of expression justifiable under section 20(2) of the Constitution?

The decision whether or not to promote or protect a particular public interest by imposing restrictions on the exercise of freedom of expression is a political decision beyond the powers of judicial review.

When the Government decides to accomplish the policy objective by the imposition of restrictions on the exercise of the right to freedom of expression by means of criminal law, with its attendant sanctions for disobedience, it must act lawfully. The Constitution imposes minimum standards of permissible legislative limitation of the exercise of freedom of expression which it requires the Legislature to strictly comply with. Violation of any of the principles constituting the permissible limit of interference with a fundamental right constitutes a violation of the right.

The question whether a restriction satisfies all the mandatory requirements of permissible legislative limitation of the exercise of freedom of expression, and therefore enacted as a valid law, is a constitutional question the determination of which falls exclusively within the judicial power of review. The court is under an obligation to give full effect to the requirements in determining the question whether the limitation has not been shown to be arbitrary or excessive.

Compliance by the Legislature with each of the requirements of permissible legislative limitation of the exercise of the right to freedom of expression was put in issue. The issues for determination are therefore these:

(1) Is the restriction on the exercise of the right to freedom of expression imposed under section 31(a)(iii) of the Criminal Code contained in law?

(2) If the restriction is contained in law, does the provision have as its primary objective the protection of a public interest in one or more of the matters listed in section 20(2)(a) of the Constitution?

(3) If the protection of a public interest listed in section 20(2)(a) of the Constitution is the primary purpose of the legislation, is there a rational connection between the restriction on the exercise of the right to freedom of expression and the objective pursued?

The onus of proving the assertions of fact in the issues listed above is on the State. The standard of proof is a preponderance of probabilities.

If the answer to each question is in the affirmative, the onus shifts to the applicants. They bear the onus of showing, on a preponderance of probabilities, that the legislation is not reasonably justifiable in a democratic society. This involves showing absence of a reasonable relationship of proportionality between the means used to impose the restriction on the exercise of the right to freedom of expression and the objective sought to be achieved.

The purpose of the proportionality test is to strike a balance between the interests of the public and the rights of the individual in the exercise of freedom of expression.

The applicants must establish the following facts arising from the application of the three criteria of the proportionality test:

(a) That there is no rational connection between the restriction on the exercise of the right to freedom of expression and the objective sought to be achieved by the provisions of the statute.

(b) That even if there is a rational connection between the restriction on the exercise of freedom of expression and the objective pursued, the means used to effect the connection do not impair the right to freedom of expression as little as possible. That would mean that there are other less intrusive means available which the legislature could have used to restrict the exercise of the right to freedom of expression to achieve the same objective.

(c) That the effects of the restrictive measure so severely trench on the right to freedom of expression that the legislative objective sought to be achieved is outweighed by the restriction on freedom of expression.

The criterion of the proportionality test applicable will vary depending on the circumstances of each case. See R v Oakes (1986) 19 CRR 308…., (Supreme Court of Canada); Nyambirai v NSSA & Anor 1995 (2) ZLR 1 (S)…,.; Attorney General v Morgan [1985] LRC (Const) 770…,.; Capital Radio (Pvt) Ltd v Broadcasting Authority of Zimbabwe & Ors 2003 (2) ZLR 236 (S)…,.

In the determination of the issues raised, it is ever so important to bear in mind that every new legislative restriction on the exercise of the right to freedom of expression has the effect of reducing the existing realm of freedom of expression whilst adding to, and expanding, the area of Governmental control of the exercise of the fundamental right. It is the duty of the court, as guardian of the Constitution and fundamental human rights and freedoms, to ensure that only truly deserving cases are added to the category of permissible legislative restrictions of the exercise of the right to freedom of expression.

The principles impose limitations on the restrictions imposable by the legislature on the exercise of freedom of expression. They are the standard according to which the legitimacy of any restriction on the exercise of freedom of expression must be assessed. Every case must be decided in the context of a legal system with constitutionally entrenched human rights provisions binding the legislature, the executive and the judiciary. The approach is not that what Parliament has ordained goes but whether what Parliament has ordained is consistent with fundamental human rights and freedoms or violates them as measured against the requirements of section 20(2) of the Constitution.

One is reminded of what JUSTICE BREWER of the US Supreme Court said in Muller v Oregon 208 US 412 (1908)…,. He said:

“Constitutional questions, it is true, are not settled by even a consensus of present public opinion, for it is the peculiar value of a written Constitution that it places in unchanging form limitations upon legislative action, and thus gives a permanence and stability to popular Government which otherwise would be lacking.”

SC14-13 : CONSTANTINE CHIMAKURE and VINCENT KAHIYA and ZIMIND PUBLISHERS (PVT) LTD vs THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

In Ramesh Thapper v State of Madras (1950) SCR 594…, (Supreme Court of India) PATANJALI SASTRI J…, stated the legal position thus; “Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting ...

In Ramesh Thapper v State of Madras (1950) SCR 594…, (Supreme Court of India) PATANJALI SASTRI J…, stated the legal position thus;

“Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the constitution cannot be ruled out it must be held to be wholly unconstitutional and void.”

The legislation sweeps under the prohibition a person who at the time he or she publishes or communicates a statement sincerely believes that it is true, although it happens to be false. It does not use such words as 'falsely publishes' which would connote a knowledge requirement. It is left to be assumed, in every case, that the accused person had reasonable opportunity to investigate the accuracy of the statement communicated or published and knowing that it was false, deliberately chose to publish or communicate it to others.

The assumption required to be made of the fact that the accused person had knowledge of the falsity of the statement does not take into account the fact that news media, in particular, often work in situations in which information changes fast denying even the most responsible journalist time to verify the accuracy of the information received. It is one thing to say it is a basic rule of journalism that news media need to verify the accuracy of their stories before publishing them. It is another to enact it as a requirement of a criminal law in the form of a subtle presumption of knowledge of falsity of a statement the responsibility of disproving of which is on the journalist.

The argument was that a person who does not know that a statement is false at the time he or she publishes or communicates it, would not be convicted because the State would not prove that he or she had the intention to undermine public confidence in a particular security service institution. The contention is based on the assumption that the intention to undermine public confidence in the institution is a substitute for knowledge of the falsity of the statement. It fails to appreciate the fact that insistence on knowledge as a requirement of a law imposing restrictions to the exercise of freedom of expression is an element of permissible legislative limitation. It also overlooks the fact that intent and knowledge have different meanings depending on the elements to which they are connected. Knowledge is a different state of mind from intent. It refers to a conscious awareness of the existence of a thing whilst intent refers to the purpose of an act.

An act committed with a specific intent is an act committed in order to achieve a specific result. The act cannot be separated from the result. The accompanying state of mind directs the act towards the achievement of the desired result. A deed is not done with intent to produce a consequence unless the consequence is the aim of the deed. Knowledge relates to the facts which make the statement false. Knowledge and intent relate to the subjective state of mind of the accused person at the time of publishing or communicating the statement to others. The latter is, however, concerned with the purpose of publishing or communicating the statement and events in future which may happen or not happen after the readers or listeners have received the statement.

Whilst intent is associated only with the relevant consequences there is no knowledge associated solely with the relevant conduct. The knowledge element is important because a false statement may be a result of unscrupulous fabrication by the publisher or speaker or it may originate from someone else with the accused person being a facilitator in publishing it or it may be a result of interpretation of facts in a statement made by another person.

The conduct, as defined by section 31(a)(iii) of the Criminal Code, includes the factual circumstance of the false statement. The element of the crime is a statement which is already false. A false statement is a fact which forms an integral part of the criminal conduct. Once the State proves a false statement it does not have to prove that the accused person knew that the statement was false at the time of publishing or communicating it.

A person who sincerely believes, at the time of publication or communication of the statement, that it is true would not have the state of mind justifying the imposition of criminal liability. Liability must be based on the notion of personal responsibility inherent in the concept of the exercise of freedom of expression.

A person may not be in a position to prove, at the trial, the facts on which his or her belief that the statement is true was based. That failure may lead to the inference that he or she knew or 'must have known' that the statement was false and intended to use it to undermine public confidence in the security service institution concerned. The consequences of failure to prove lack of knowledge of falsity of the statement would be the rigorous sanction of criminal conviction and possible imprisonment for a period up to twenty years. In Hector v Attorney General of Antigua and Barbuda & Others 1991 LRC 237, the Privy Council noted…, that it would be 'a grave impediment to freedom of the press' if one could publish only after having verified the accuracy of all statements of fact. Fear of erroneous finding of fact by the judicial process in such cases may deter citizens from uttering true statements.

When determining the question whether section 181 of the Canadian Criminal Code was rationally connected to the objective of fostering social harmony MCLACHLIN J…, in R v Zundel (1992) 10 CRR (2d) 193 (Can SC)…, said:

“What is false may be determined by reference to what is generally accepted as true, with the result that the knowledge of falsity required for guilt may be inferred from the impugned expression's divergence from prevailing or officially accepted beliefs. This makes possible conviction for virtually any statement which does not accord with currently accepted 'truth' and lends force to the argument that the section could be used (or abused) in a circular fashion essentially to permit the prosecution of unpopular ideas.”

Section 181 of the Canadian Criminal Code punished any person who wilfully published a false statement knowing it to be false which caused or was likely to cause injury or mischief to a public interest.

A person who voices a genuine concern about selective or discriminatory enforcement of the law by the law enforcement agency may find himself or herself charged and convicted of the offence because of the difficulty of proving the truth of the allegation in a court of law. Genuine criticism of the way law is enforced may be suppressed. The suppression may be justified by labelling the statement a false statement published or communicated with intent to undermine public confidence in the law enforcement agency.

Information confirmatory of the truth of a statement may in some cases be in the possession of the institution. Withholding such information would inevitably create a situation where the statement is labelled a false statement. As opposed to the usual situation in which one can verify the relevant facts with relative ease, the possibility of obtaining information concerning improper actions of security service officials is typically quite limited. Such a statement may be regarded as false because a journalist feels compelled to uphold the principle of confidentiality protecting the sources of his information within the institution from disclosure.

It is a fundamental principle of the protection of freedom of expression that the State should not penalize people who make false statements in good faith about a matter of public concern. That is the case if the statement is published or communicated to another person without knowledge of its falsity or without reckless disregard as to whether the statement is false or not. Reckless disregard in this usage would mean that the person subjectively believed that what he or she published or communicated was probably false.

The principle that there be an element of knowledge of falsity of the statement published or communicated proved by the prosecution is based on the assumption that journalists, in particular, are responsible professional people. They value freedom of expression and its importance to society such that they would, in most cases, not deliberately propagate falsehood. A reporter's reputation depends on the quality of information he or she provides. Journalists would naturally have a strong incentive, only to share news which they are fairly confident is correct.

The lies criminalised by the offence under section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] are not necessarily fraudulent because the section does not require a person to act in reliance on the lie or that the lie should cause individual harm. Courts have, nonetheless, insisted in such cases that the statement must be a knowing or reckless falsehood. The rule with its tolerance of honest mistakes of fact limits criminal liability whilst more freedom of expression is protected than less. It prevents the unhindered exercise of freedom of expression from being unacceptably chilled when people choose to make only statements which 'steer far wider of the unlawful zone.' See New York Times v Sullivan 376 US 254 (1964)…,.

The harm caused by the unacceptable chilling of the exercise of freedom of expression is comparatively greater than the harm resulting from the chilling of other activities. The logical mandate of the chilling effect doctrine is that legal rules should be formulated to allocate the risk of error away from the preferred value thereby minimizing the occurrence of the most harmful errors. See ANTONIO J. CALIFA 'Rico Threatens Civil Liberties' 43 Vand. L. Rev 805, 833 (1990).

The principle is that taking into account the importance of freedom of expression in a democratic society it would be better to let ten irresponsible journalists free than have one responsible one refrain from reporting an otherwise true story for fear of ending up in jail lest the story is found to have been false. The chilling effect objective is the more obnoxious when regard is had to the fact that it is presented as an unavoidable consequence of the exercise of legislative power. In other words, are the people better off for a law which, in seeking to protect their confidence in the efficient and effective performance by a security service institution of the functions of maintaining public order and preserving public safety from deleterious effects of publication or communication of false statements, has the indirect and noxious effect on lawful exercise of freedom of expression?

A narrowly drawn offence would criminalise only false factual statements made with knowledge of their falsity and with intent that they be taken as true. Applying the same principle, the Supreme Court of the United States of America had occasion to state in Garrison v Louisiana 379 US 64 (1964)…., that:

“Even when the utterance is false, the great principles of the constitution which secure freedom of expression…. preclude attaching adverse consequences to any except the knowing or reckless falsehood.”

See also: Gooding v Wilson 405 US 518 (1972)…,.

There is an element of affront to a writer's, publisher's or speaker's dignity and autonomy when he or she is punished for writing, publishing or saying what he or she believed to be true. Most people would probably feel that the Government was reaching too far if it punished them for innocent falsehoods. They would feel a loss of dignity and equal respect owed to them as citizens. See MARK SPOTTSWOOD: 'Falsity, Insincerity and the Freedom of Expression' William & Mary Bill of Rights Journal Vol 16 Issue 4 Article 10 (2008).

In Castells v Spain (1992) 14 EHRR 445, the European Commission of Human Rights states…, that:

“It is, as a general rule, difficult to justify the penalisation of the expression…, of erroneous facts in as much as the person relating them has good reasons to believe that they are true.”

A provision may not only infringe the requirement of permissible legislative limitation of the exercise of a fundamental right by what it imposes by way of essential elements of an offence. It can breach the requirements of permissible legislative limitation by omitting from the essential elements of an offence matters which, if included as a requirement of the law, would make the provision restrict the exercise of the fundamental right as little as possible.

It must follow from the above analysis that a rational connection between the restriction and the objective pursued by the legislation would be one which incorporates the requirement of knowledge of the falsity of the statement published or communicated as the element of the offence on the basis of knowledge of its effectiveness as part of measures for the protection of the interests in public order and public safety without the chilling effect on freedom of expression.

The duty of the court is not limited to the elaboration of constitutional principles. It may examine for itself the statements in issue and the circumstances under which they were made to see whether they are of a character which the principles of freedom of expression protect.

In this case, the question arising from the first article is whether the Attorney-General named the law enforcement agents as abductors or witnesses. The determination of the accuracy of the statement would be based on the interpretation of what the Attorney-General wrote.

The cynical may say that the writer of the article was simply saying that from what the Attorney General recorded as what each person was going to say in the criminal proceedings it was reasonable to infer that the person was involved in the abductions. The cynical may go on to say, after all a witness is a person who gives evidence of what he or she did or saw being done by another. At law, a witness can have been a participant in the commission of an offence.

The accuracy of the statement that the summary of the State case named the law enforcement agents as the abductors would not relate to the question whether the people named were the abductors or not. The fact of their being the abductors would be irrelevant to the consideration of the question whether the statement was false. The determination of the question would not even prove the offence. It was a matter of public knowledge at the time that the law enforcement agency was involved in the abductions. That fact had been established by the uncontested evidence in the case of Jestina Mukoko v The Attorney-General SC11-12.

The statements would have to be looked at in their proper context and in the light of the particular circumstances of the case….,.

The pervasive threat inherent in the very existence of a law authorising a criminal prosecution for making a false statement coupled with the prospects of suffering a sentence of imprisonment up to twenty years has an unconstitutionally inhibiting effect on the exercise of the right to freedom of expression by all citizens.

People may be inhibited from saying what they desire to say or publish for fear that if they are caught, prosecuted and fail to prove that what they said or wrote is true they may be convicted and sentenced to long terms of imprisonment. This is particularly the case when regard is had to the fact that because of the pervasive nature of false factual statements, Government is provided with a weapon which it may use to prosecute falsehoods against security service institutions without more. Those who are unpopular may fear that the Government will use that weapon selectively against them.

The chilling effect of the disproportionate threat of the period of the maximum penalty of imprisonment to which a person convicted of the offence is liable harms operations of a free media. By authorizing the discretionary imposition of a maximum punishment of twenty years imprisonment for offences amounting to attempts, section 31(a)(iii) of the Criminal Code has a serious inhibiting effect on the exercise of the right to freely criticize public institutions in the performance of their functions.

A strong constitutional protection of freedom of expression cannot tolerate the imposition of self-censorship on free speech and press through fear of lengthy sentences of imprisonment for offences of publishing or communicating false news.

CC09-16 : BENARD WEKARE and MUSANGANO LODGE (PVT) LTD t/a MUSANGANO LODGE vs THE STATE and THE ATTORNEY GENERAL OF ZIMBABWE and ZIMBABWE BROADCASTING CORPORATION
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

FREEDOM OF EXPRESSIONEach applicant sought to impugn the constitutional validity of section 38B(1) of the Broadcasting Services Act [Chapter 12:06] on the ground that it violated the fundamental right to freedom of expression enshrined in section 20(1) of the Constitution by prohibiting, under threat of criminal sanctions, possession of equipment capable of receiving a broadcasting service ...

FREEDOM OF EXPRESSION

Each applicant sought to impugn the constitutional validity of section 38B(1) of the Broadcasting Services Act [Chapter 12:06] on the ground that it violated the fundamental right to freedom of expression enshrined in section 20(1) of the Constitution by prohibiting, under threat of criminal sanctions, possession of equipment capable of receiving a broadcasting service without a licence.

Section 20(1) of the Constitution recognizes, and guarantees to every person, a right to freedom to hold opinions and to receive and impart ideas and information. The right protects the person from any hindrance in or interference with possession of equipment capable of receiving ideas, information and messages delivered by television and radio programmes.

Article 19 of the Universal Declaration of Human Rights (UDHR) guarantees freedom of opinion and expression in the following terms:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”…,.

There is need to first consider the context of the principles of the law of public broadcasting service and the exercise of freedom of expression.

Broadcasting, as a wide dissemination of ideas and information on a variety of subjects by television or radio, is a means of exercising freedom of expression. As a medium through which ideas and information can be received and imparted, broadcasting is intrinsically linked to freedom of expression. It is a medium specifically dedicated to the exercise of the right to freedom of expression. The one is the life blood of the other. Any public broadcasting service system must meet all the requirements of freedom of expression in order to pass the constitutional muster.

The legislation providing for a public broadcasting service system must be in line with the fundamental principles behind freedom of expression. This means that the conditions of use of the public broadcasting service for conveyance of ideas and information must conform to the requirements of this freedom. These principles can be summarized as being that:

1. Everyone has the right to express himself or herself freely through the medium of his or her choice.

2. This implies the right to access, receive and disseminate ideas, information and messages of all types through all communication systems and media – in this case electronic media.

3. The public broadcasting service media shall, in the public interest, enjoy editorial independence from undue influence from both State and corporate actors.

There is intertwining of the public interest standard governing the provision of public broadcasting service with freedom of expression interests. The public interest is viewed through the protection of the right to freedom of expression. In that sense, the public interest standard is a statutory security for the freedom of expression doctrine in public broadcasting.

The public interest standard necessarily invites reference to freedom of expression principles. The question of how the legal provisions governing the structuring and dynamics of the provision of public broadcasting service relate to the principles of freedom of expression is central to the determination of the question of the constitutional validity of the legislation.

Each applicant argued that by prohibiting the possession of a receiver without a licence issued by the Zimbabwe Broadcasting Corporation, section 38B(1) of the Broadcasting Services Act [Chapter 12:06] infringes the right to receive ideas, information and messages from a broadcasting service of his or its choice. In other words, what is regulated is the possession of the means by which to benefit from the services provided by the Zimbabwe Broadcasting Corporation or any services like them.

The right to freedom of expression, as enshrined in section 20(1) of the Constitution, is not absolute. The right is subject to limitations contained in or done under the authority of any law in the cases and for purposes specified under section 20(2) of the Constitution unless the limitation is shown not to be reasonably justifiable in a democratic society.

The effect of section 20(2) of the Constitution is that the same document that entrenches the right to freedom of expression as a fundamental right acknowledges that the right is not absolute. The onus was on the applicants to show that the restriction on the right to possess a 'receiver' without a listener's licence is not reasonably justifiable in a democratic society.

The applicants failed to discharge the onus.

The principles governing the relationship between public broadcasting service and freedom of expression reveal the justification for the restriction on the possession of receivers for the purpose of raising revenue for the Zimbabwe Broadcasting Corporation. The Zimbabwe Broadcasting Corporation is a central medium of expression. As a public broadcaster, it must be a central institution for the effective protection of freedom of expression in the provision of public broadcasting services in a democratic society.

One of the objectives of mass communication in a democracy is the development of an informed public opinion through the public dissemination of news and ideas concerning important public issues of the day. According to Article VI of the Declaration of Principles on Freedom of Expression in Africa adopted by the African Commission on Human and Peoples' Rights at the 32^nd Session, 17^th - 23^rd October 2002, Banjul, Gambia, public broadcasting service is a vital element of modern democratic societies.

Public broadcasting service models were developed to remedy weaknesses inherent in the other broadcasting service systems, namely, State controlled broadcasting service and profit-oriented commercial models. A State controlled broadcaster's programming is essentially driven by the political interests while commercial broadcasters are driven by commercial interests. The programming of a public broadcaster is required to be driven by the public interest.

A public broadcasting service is a national asset that must be independent of both political and commercial pressures in the performance of its mandate. In its ownership, funding and programming the concept of 'public' has always defined the logical boundary of any public broadcasting service organization. As a public sphere essential for a well functioning democracy, public broadcasting service is of the public, for the public and by the public. In other words, public broadcasting service belongs to the entire community, not to the abstraction known as the State nor to the Government in office nor its political party. See Patriotic Party v Ghana Broadcasting Corporation [1992-93] GBR 522…, (Supreme Court of Ghana).

There has been no doubting that it is in the public interest to encourage the growth and development of public television and radio broadcasting for informational, educational, cultural, and entertainment purposes. A public service broadcaster thus requires a particular legal framework and certain structural attributes to enable it to execute its mandate effectively. Public broadcasters are generally defined in terms of their characteristics and purposes.

International standards require States to ensure that public broadcasting services operate in an independent manner. This means fundamentally guaranteeing their administrative and editorial freedom. It also means guaranteeing their financial independence.

Article VI of the Principles on Freedom of Expression in Africa provides that for a public broadcasting service system to comply with the requirements of freedom of expression, the following must be observed in the relevant broadcasting legislation framework:

(i) Public broadcasters should be governed by a Board which is protected against interference, particularly of a political or economic nature;

(ii) The editorial independence of public service broadcasters should be guaranteed;

(iii) Public broadcasters should be adequately funded in a manner that protects them from arbitrary interference with their budgets.

(iv) Public broadcasters should strive to ensure that their transmission system covers the whole territory of the country.

(v) The public service ambit of public broadcasters should be clearly defined and include an obligation to ensure that the public receive adequately, politically-balanced, information particularly during election periods.

The features referred to in Article VI of the Declaration of Principles on Freedom of Expression in Africa are structural in nature. They address requirements of a public service broadcaster to ensure that it effectively delivers on its mandate.

The question is, to what extent are the provisions of the Broadcasting Services Act [Chapter 12:06], on various aspects of the provision of public broadcasting service, based on the principle of promotion and protection of freedom of expression.

How does the legal framework for broadcasting service ensure that the public broadcaster provides the public with the opportunity to exercise their right to speak and have access to television and radio broadcasting as means of communication? How does the legislative framework also ensure that what is broadcast is in the public interest and the programmes meet the standards prescribed in Part I of the Seventh Schedule of the Broadcasting Services Act [Chapter 12:06]? To what extent, does the legal framework on provision of public broadcasting services comply with the recognized international norms on provision of public broadcasting services?

The contents of the objects of the Broadcasting Authority of Zimbabwe and the requirements of the broadcasting service operated by a public broadcaster, as prescribed under Part 1 of the Seventh Schedule to the Broadcasting Services Act [Chapter 12:06], allow the Zimbabwe Broadcasting Corporation freedom to express opinions in the process of the exercise of editorial discretion through selection and presentation of programmes in ways that could not become vehicles for Government propaganda.

When the Zimbabwe Broadcasting Corporation, as a public broadcaster, speaks, it should not be Government speaking. The right to freedom of expression does not extend to protecting Government from itself.

In an article titled “The Unneccessary Gravity of the Soul: Public Service Broadcasters or Government Mouthpieces – An Appraisal of Public Service Broadcasting in Botswana” Vol.10 Issue 1 April 2013 SCRIPT ed TB BALULE writes that public broadcasting service 'which is a particular way of exercising freedom of expression, serves as a vehicle for self-expression, a reflection of public opinion, an informer of the public, and a participant in the formation of public opinion.'

Pluralism and diversity of programmes promote the full enjoyment of freedom of expression in that they ensure that citizens have access to a wide range of information and ideas on a variety of subjects. One of the fundamental requirements of the right to freedom of expression is the need for a broad plurality of information: Inter American Court of Human Rights Rios et al. v Venezuela, Judgment of January 28, 2009…,.

A public broadcaster that is free from political interference and commercial pressures has the potential to ensure quality programming covering a wide range of interests that respond to all sectors of the public thereby promoting pluralism and diversity of programme content. See The Unneccessary Gravity of the Soul: Public Service Broadcasters or Government Mouthpieces – An Appraisal of Public Service Broadcasting in Botswana” Vol.10 Issue 1 April 2013 SCRIPT ed TB BALULE…,.

What is of paramount importance is not the rights of the public broadcaster. What is paramount is the collective right of the viewers and listeners in receiving a balanced presentation of ideas and information on diverse matters of public concern by television and radio. The public's free speech interest in broadcasting is a collective and not an individual right in that the people, as a whole, retain their interest in free speech by radio and television. The people, as a whole, also retain the collective right to have the medium of television and radio broadcasting function consistently with the ends and purposes of the constitutional protection of freedom of expression. See Red Lion Broadcasting v FCC 395 US 367 (1969)…,.; FCC v League of Women Voters 468 US 364 (1984)….,

It follows that for a public broadcaster to effectively discharge its mandate of serving the public interest, it needs protection of a legal nature. The legal protections aim at creating an appropriate structure that will ensure that the public broadcaster is able to discharge its mandate in an independent manner. These legal protections include a clear statement of the purposes and objectives of broadcasting service provided.

There must be a guarantee of the public broadcaster's editorial independence in the law.

A report by ROBERT CORN-REVERE: Washington DC, May 2002 on 'Freedom of Expression in Public Broadcasting' defines editorial independence as: 'the responsible application by professional practitioners of a free and independent decision-making process which is ultimately accountable to the needs and interests of all citizens.'

The financial independence of a public broadcasting service requires that its funding arrangements should not be used to directly or indirectly exert any influence over the public broadcaster's editorial independence and institutional autonomy. The institution must be adequately funded in order to provide citizens with high quality programmes. There is a direct relation between financial independence and editorial freedom of a public broadcaster. They are both guaranteed primarily for the benefit of the public.

Being wholly owned by the State, the Zimbabwe Broadcasting Corporation, as a public broadcaster, could be compromised by the pressures of operating with an inherent conflict of interest in the discharge of the dual responsibility of reporting information and bringing critical judgment to bear on public affairs.

The structuring and dynamism of the public broadcasting service system provided for by the provisions of the Broadcasting Services Act [Chapter 12:06] reveal an acceptance of the principles of institutional and editorial independence. Section 2A(f) of the Broadcasting Services Act [Chapter 12:06] provides that one of the objectives of the Broadcasting Services Act [Chapter 12:06] which the Broadcasting Authority of Zimbabwe must have regard to, as the regulatory authority, is 'to ensure the independence, impartiality and viability of public broadcasting services.' Part 1(d) of the Seventh Schedule to the Broadcasting Services Act [Chapter 12:06] requires the Zimbabwe Broadcasting Corporation to 'provide news and public affairs programming which meets the highest standards of journalism, and which is fair and unbiased and independent from Government, commercial or other interests.'

The provisions show a commitment to freedom of expression.

Selection and presentation of programmes should be an exercise of editorial discretion. For better or for worse, editing is what editors are for, 'and editing is selection and choice of material.' See Columbia Broadcasting System v Democratic Nat'l Comm 412 US 94 (1969)…,. The provisions of section 2A(f), Part 1(d) of the Seventh Schedule to the Broadcasting Services Act [Chapter 12:06] and the application of the principle of company law, to the effect that shareholding and management of a company must always be kept separate, are important in this respect. They show that the public broadcaster is vested with substantial editorial discretion and judgment in deciding how to meet its journalistic purposes, achieve high standards of quality in the programmes broadcast and fulfil statutory obligations.

The Zimbabwe Broadcasting Corporation is not permitted, but required, to exercise independent editorial discretion and judgment in the performance of the functions necessary for the fulfillment of its journalistic purpose and statutory obligations. It is for the Zimbabwe Broadcasting Corporation, in the exercise of editorial discretion, to decide whether a programme is compatible with the requirements of freedom of expression by adhering to the standards of programming prescribed in Part 1 of the Seventh Schedule to the Broadcasting Services Act [Chapter 12:06].

The editorial independence of the Zimbabwe Broadcasting Corporation is further guaranteed by the requirement that the Board to which the Zimbabwe Broadcasting Corporation is accountable, and has the power to appoint its Chief Executive Officer, must not interfere in the day-to-day management of the Zimbabwe Broadcasting Corporation.

Public broadcasters, particularly when they effectively delegate editorial discretion to professional journalists, may perform their functions and fulfil statutory obligations admirably. In any case, the public interest standard on the programmes broadcast by the Zimbabwe Broadcasting Corporation in respect to their geographic reach, content, subject–matters, linguistic presentation, independence from Governmental, commercial or any other interests and quality prescribed by Part 1 of the Seventh Schedule of the Broadcasting Services Act [Chapter 12:06] requires that a substantial degree of editorial discretion must remain with the public broadcaster.

In the exercise of editorial discretion, the Zimbabwe Broadcasting Corporation has power, under Part 1 of the Seventh Schedule of the Broadcasting Services Act [Chapter 12:06] to decide on what programmes to broadcast, at what time, on which subjects and for what purposes. It has the power to decide on who participates in the programmes, provided it does not exclude people because it disagrees with their points of view on matters of public interest and complies with the relevant requirements of programming prescribed in Part 1 of the Seventh Schedule of the Broadcasting Services Act [Chapter 12:06]. The decision must be reasonable and viewpoint neutral. In other words, the legal discretion granted to the Zimbabwe Broadcasting Corporation and its editors is not limitless or expressed in terms of an unfettered power.

The existence of provisions which underpin the presence of editorial discretion in the public broadcasting service system gives rise to a presumption against State involvement in the programming decisions of the Zimbabwe Broadcasting Corporation. In fact, governmental involvement in decisions as to which programmes to broadcast would be incompatible with or anti-thetical to the editorial discretion vested in the Zimbabwe Broadcasting Corporation by the statute.

The system imposes on the Zimbabwe Broadcasting Corporation programme and content obligations that protect freedom of expression in the public sphere. The provisions of the Broadcasting Services Act [Chapter 12:06] reveal the symbiotic relationship existing between the provision of public broadcasting service and freedom of expression in the public sphere.

The principles on the provision of public broadcasting services and the exercise of freedom of expression are now related to the method of funding chosen for the Zimbabwe Broadcasting Corporation. In other words, how does the mechanism of funding chosen fit into the structure and dynamics of the relationship between the provision of public broadcasting service and freedom of expression?

Does the method of funding promote or violate the right to freedom of expression?

As a public broadcaster, the Zimbabwe Broadcasting Corporation is able to enjoy and maintain the independence guaranteed to it by the law and achieve the objectives for which it was established as it relies on funding from members of the public and not on State resources. In that way, it is able to provide access to the speech market to a broader section of the public thereby ensuring greater participation.

In ensuring that broadcasting services reach as many people as possible who also would want to enjoy the right to receive and impart ideas or information, the Zimbabwe Broadcasting Corporation is promoting freedom of expression. Provision of public broadcasting service is, by its nature, intended to reach the poor, marginalized and illiterate sections of society. In this sense, the regulation of public broadcasting service is part of a proactive policy of social inclusion that tends to reduce pre-existing inequality in access to the media. See Nyambirai v National Social Security Authority & Anor 1995 (2) ZLR 1 (S)….,. The method of funding and the objectives prescribed for the corporation, as a public broadcaster, are influenced by the considerations of the right to freedom of expression.

The system of funding the provision of public broadcasting service through the payment of listener's licence fees is commonly used in many democratic societies. The African Charter on Broadcasting 2001 Windhoek which inspired the Declaration of Principles on Freedom of Expression in Africa, to which Zimbabwe is a signatory, provides in Part II, section 5, that:

“Public services broadcasters should be adequately funded in a manner that protects them from arbitrary interference with their budgets.”

The report by AFRIMAP, OSISA & OSIMP on Zimbabwe in Public Broadcasting in Africa Series 2009 commented on the funding of the Zimbabwe Broadcasting Corporation as follows:

“(1) Licence fees form the backbone of the ZBC revenue sources because they provide stable, predictable multi-year funding and allow the broadcaster to plan and implement the necessary investment in programming and operational improvements.”

The system of licence fees is used in the funding of the British Broadcasting Corporation (the BBC) and the South African Broadcasting Corporation (the SABC). The money from licence fees is collected by the British Broadcasting Corporation – rather than by a governmental organisation – and then utilized to fund its programming and operations. In the United States of America, citizens pay the Federal Communication Commission (the FCC) taxes. The amount of the fee is calculated based on the needs of the Federal Communication Commission. The taxes are collected by cable providers through the monthly fees paid by television watchers.

The difference between the Federal Communication Commission and the Zimbabwe Broadcasting Corporation method of funding is that, instead of the money being collected directly from the public by the public broadcaster the taxes are collected by cable providers, as middlemen, for onward transmission to the Federal Communication Commission. See ANDREW GIAROLO 'Public Broadcasting' Seton Hall Journal of Sports and Entertainment Law: Vol 23.2 (2013) 439…,.

Unlike our statute, the South African Broadcasting Services Act expressly provides that the licence fee must be paid by a person who owns a television set or a radio set. The system of funding adopted for the British Broadcasting Corporation and the South African Broadcasting Corporation is based on a restriction on the exercise of the right to receive television or radio programmes broadcast. The applicants did not refer the Court to any authority from these democratic countries to the effect that the use of licence fees to fund the public broadcaster under a system of law that guarantees editorial independence is a violation of the fundamental right to freedom of expression.

The Report of the Independent Review Panel on the future funding of the British Broadcasting Corporation indicated that funding the public broadcaster through television licence fees remained the most viable option if public broadcasting was to remain in existence. It said, at page 137:

“The best means of funding such broadcasting yet devised is a licence fee. However, broadcasting which the market will not provide may (almost by definition) be broadcasting that is not very popular. At least, it will not necessarily be the kind of 'lowest common denominator' which can command the largest audiences. And people naturally resist the proposition that they should pay for programmes that they do not wish to watch. Hence, we have a debate which veers dangerously between the purist view of public service broadcasting, the so-called 'Himalayas' view, which has it just producing programmes at the top end of the market, and the impure view, which interprets, 'public service' as potentially embracing any broadcasting, however populist, which a public broadcaster chooses to put on the air.

We have not resolved this conundrum, perhaps because it is unresolvable. We do believe that public service broadcasting, however defined, can play an important role in the competitive and complex broadcasting environment of the multi-channel, digital future. There is good reason to suppose that the market, left to itself, will not provide the broadcasting which our society wishes to foster.

Public service broadcasting exists to service the community by providing distinctive programmes which inform, educate and entertain. It can help to ensure that the benefits of the information age are available to all at a reasonable cost and that viewers and listeners have access to quality services which cater for a wide range of interests. In all these respects, it can correct the tendency of the market to pull too far in the opposite direction.”

Each applicant failed to show that the use of a licence tax, as a method of funding the Zimbabwe Broadcasting Corporation, as a public broadcaster, under the Broadcasting Services Act [Chapter 12:06], with its attendant condition on the possession of receivers, is not reasonably justifiable in a democratic society.

Countries like Germany, which abandoned the funding model of a licence fee based on ownership of television and radio sets, did so, not for the reason that the model of funding violated the fundamental right to freedom of expression. Germany did so upon the realization that reliance on ownership of television and radio sets limited the source of funding for the public broadcasters as people now used other appliances to watch and record television programmes.

The other reason for abandoning the funding model based on ownership of television and radio sets, was that the costs of enforcement of the law against evaders, who had increased in numbers, was too high. The law governing public broadcasting service in Germany now requires every household to pay a fixed licence fee annually, regardless of whether the household owns an appliance capable of receiving broadcasting service or not.

The example of the funding method adopted by Germany shows that, whatever model is adopted for funding public broadcasting service, it must ensure that the funding is protected against arbitrary governmental interference. Institutional and editorial independence of a public broadcaster, such as the Zimbabwe Broadcasting Corporation, is not likely to be effectively guaranteed if Government can exert pressure on its programming through control of the financial resources. The example of the model of funding adopted by Germany helps to show that public financial support is a sine qua non of a public broadcasting service system.

There is a close link between the funding model adopted and the type of broadcasting service to be supported. It is often argued that the mechanism of funding adopted by the State is critical in determining the nature of a broadcasting institution with fears that commercial funding methods have the tendency to undermine public broadcasting service values. One of the important definitional features of a public broadcasting service system is absence of efforts to raise funds from viewers and listeners. The usual source of revenue is taxation.

It follows that taxation, as the mechanism of funding adopted by the State, cannot be examined without reference to the substance of the scheme for public broadcasting service embodied in the provisions of the Broadcasting Services Act [Chapter 12:06] of which it is an integral part. What is clear is that the mechanism of funding adopted by the Parliament is part of a system of broadcasting service. The primary object of the broadcasting service is to protect and promote the right of the public to receive suitable access to social, political, cultural, moral and other ideas and experiences by television and radio programmes consistent with the requirements of freedom of expression. The method of funding, combined with the editorial independence and the public interest standard, provides a viable solution to the governmental control problem consistent with the principles of freedom of expression. The issue of an appropriate method of funding for a public broadcaster like the Zimbabwe Broadcasting Corporation is intrinsically linked to the fundamental question whether the country should have a public broadcasting service system or not.

The applicants labored under the mistaken belief that the purpose of section 38B(1) of the Broadcasting Services Act [Chapter 12:06] is to compel the holder of the television or radio licence to view or listen to programmes broadcast by the Zimbabwe Broadcasting Corporation.

Both applicants said the reason why they were opposed to the licensing fee system of funding in this case is that they did not want to receive broadcasting service from the Zimbabwe Broadcasting Corporation. Musangano Lodge went further to say it did not want to pay the licence fees because there was no broadcasting service from the Zimbabwe Broadcasting Corporation reaching the area where its business is located. It said it subscribed to DSTV. Mr Wekare also said DSTV was the broadcasting service provider of his choice.

It is true that freedom of expression goes further than the theoretical recognition of the right to receive ideas and information. It also includes, and cannot be separated from the right to choose from which effective medium of communication one wants to receive ideas and information.

Section 38B(1) of the Broadcasting Services Act [Chapter 12:06] does not guarantee the Zimbabwe Broadcasting Corporation an audience. It does not compel the holder of a listener's licence to receive the broadcasting service from the corporation. All it does is to compel a person who is in possession of a receiver to pay a licence fee because the gadget in question is a 'receiver' capable of receiving a broadcasting service from any provider. It sets a pre-condition for the exercise of the right to freedom of expression by the person in possession of a receiver. The fact that any given listener is averse to the material that the Zimbabwe Broadcasting Corporation broadcasts, whether from a recreational or political perspective, does not necessarily violate his right to freedom of expression.

Section 38B(1) of the Broadcasting Services Act [Chapter 12:06] is not to the effect that the equipment possessed by a person under the obligation to pay the licence fee should be capable of receiving a broadcasting service from the Zimbabwe Broadcasting Corporation. The right of a person who does not want to view or listen to programmes broadcast by the Zimbabwe Broadcasting Corporation by television or radio is not violated.

The person is obliged to pay a licence fee for the possession of the receiver whether he or she wants to receive broadcasting service from the Zimbabwe Broadcasting Corporation or not.

Once a person has paid the licence fee for the possession of the receiver, he or she is free to receive a broadcasting service from a provider of his or her choice. In other words, his or her right to freedom of expression is then not hindered or interfered with. The law is, however, intended to serve the public interest. It does not follow that because an individual does not want to receive ideas and information from a public broadcasting service the law should be changed.

It cannot be overemphasized that a public broadcasting service is established to serve the public interest in the exercise of freedom of expression. The interests of the individual to access ideas and select programmes of his or her choice may be satisfied by the ever-expanding availability of channels. This is particularly so through cable broadcasting. The channels allow for some degree of individual preference in programme selection.

It would not matter, for the purpose of the obligation to pay the licence fee for possession of a receiver in terms of section 38B(1) of the Broadcasting Services Act [Chapter 12:06], that there is no signal from the Zimbabwe Broadcasting Corporation reaching the area where the equipment is located or that one prefers to watch DSTV programmes. Payment of a tax has always been a social responsibility of the individual placed under the obligation to pay. No direct benefit needs to accrue to a tax-payer for discharging a social duty.

This is not to say the Zimbabwe Broadcasting Corporation is doing well by failing to ensure that its broadcasting services reach all areas of the country.

The law governing the public broadcasting service system expressly imposes an obligation on the national broadcaster to ensure that its programmes are available to Zimbabweans in languages commonly used in Zimbabwe. This means that the Zimbabwe Broadcasting Corporation is under an obligation to make its services available throughout the country. Failure by the Zimbabwe Broadcasting Corporation to fulfil its mandate does not mean that the law by which the obligation is imposed is unconstitutional….,.

Each application is dismissed with no order as to costs.

HB126-16 : MOVEMENT FOR DEMOCRATIC CHANGE–T vs OFFICER COMMANDING BYO CENTRAL DISTRICT POLICE N.O. and THE COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE N.O. and THE MINISTER OF HOME AFFAIRS N.O.
Ruled By: MAKONESE J

Everyone has the right to freedom of peaceful assembly. This is a right closely linked to the right to freedom of expression. The right to demonstrate provides a means for public expression and is one of the foundations of a democratic society. The right applies to protest marches, demonstrations, public and private meetings, “sit-ins”, and “silent protests.”…,. In re: ...

HB129-16 : FANELE MAQELE and ALDRIN NYABANDO and TENDAI WARAMBWA vs VICE CHANCELLOR, PROFESSOR N.M BHEBHE N.O. and MIDLANDS STATE UNIVERSITY
Ruled By: MATHONSI J

Section 61 of the Constitution guarantees freedom of expression, that is to say, that individuals have the freedom to seek, receive and communicate ideas and other information.

SSC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X
Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

I. INTRODUCTIONIn August 1999, three nationals of the United States of America, Gary George Blanchard, Joseph Wendell Pettijohn, and John Lamonte Dixon, were jointly indicted with the commission of two offences:(i) The first was a contravention of section 7(1)(a) of the Aircraft (Offences) Act [Chapter 9:01], as read with section ...

I. INTRODUCTION

In August 1999, three nationals of the United States of America, Gary George Blanchard, Joseph Wendell Pettijohn, and John Lamonte Dixon, were jointly indicted with the commission of two offences:

(i) The first was a contravention of section 7(1)(a) of the Aircraft (Offences) Act [Chapter 9:01], as read with section 360(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], in that on 7 March 1999 they had attempted to place aboard an aircraft dangerous goods, namely, various revolvers, pistols, rifles, knives, and ammunition.

(ii) The second was a contravention of section 37(2) of the Law and Order (Maintenance) Act [Chapter 11:07], in that on the same day they were in unlawful possession of arms of war and offensive materials, consisting of a variety of pistols, revolvers, rifles, firearms, ammunition, knives, teargas, and electric shock devices.

The trial, which was protracted, was presided over by ADAM J and assessors, in the High Court, at Harare. Judgment was delivered on 10 September 1999. The three accused were convicted on both Counts. On 13 September 1999, the learned judge sentenced them to six months' imprisonment with labour on the first Count; and, on the second, to twenty-one months' imprisonment with labour, of which period nine months were conditionally suspended for five years, and six months were to run concurrently with the sentence imposed on Count One.

The effective punishment of six months' imprisonment with labour was then back-dated to 7 March 1999, being the day when the incarceration of the accused as remand prisoners began.

The judgment, on both conviction and sentence, is now reported, sub. nom. S v Blanchard & Ors, in 1999 (2) ZLR 168 (H).

On 15 September 1999, a statement, made by the applicant, then the Attorney-General for Zimbabwe, and presently the Minister of Justice, Legal and Parliamentary Affairs, was published in The Herald newspaper under the headings: “US gunmen's sentence causes outrage, Attorney-General's office expresses shock at court's trivialisation of offence.”

The article that followed reported that:

“The Attorney-General's Office is shocked and outraged by the effective six month jail term imposed on the three Americans convicted for illegal possession of weapons and attempting to take them on board an aircraft. It intends to appeal to the Supreme Court against the sentence which it said had trivialised the seriousness of the crime. In a statement yesterday, the Attorney-General, Mr Patrick Chinamasa, said the sentence handed down by High Court Judge, Justice Adam, 'induces a sense of shock and outrage in the minds of all right-thinking people.'

He said Gary George Blanchard, Joseph Wendell Pettijohn, and John Lamonte Dixon were convicted of offences which were treated as serious by all civilised countries worldwide, including America, which was in the forefront of fighting terrorism and gun-running.

'By imposing sentences which do not match the seriousness of the offences, Justice Adam has in effect trivialised crimes of unlawful possession of arms and has seriously erred in doing so.

The Attorney-General's Office is left bemused by the meaninglessness of it all.

The nation should know and be told that the leniency of the sentences constitutes a betrayal of all civilised and acceptable notions of justice and of Zimbabwe's sovereign interests.

Mere unlawful transiting of firearms through the territory of Zimbabwe is in itself a serious and gross violation of the sovereign and security interests of Zimbabwe.'

Mr Chinamasa said the attitude taken by the court, in meting out sentences which did not match the severity of the crimes committed, came against the backdrop of repeated complaints made to him by his Law Officers of hostility and verbal abuse directed at them and their submissions by the Bench during proceedings. All these developments erode the office's confidence in the administration of criminal justice.”

Reaction to the article led to the issuance of a citation for contempt of court. It was served on the applicant on 28 September 1999. In its amended form the citation reads:

“TAKE NOTICE THAT on the 28th day of September 1999 The Honourable Mr Justice Adam caused a citation to be issued against you whereby YOU ARE TO APPEAR in person before the High Court of Zimbabwe in Harare on the 1st day of October 1999 at 10:00am or soon thereafter to show cause why an Order of Contempt should not be made for the wilful and intentional contemptuous statement issued by you, which statement you caused to be published or alternatively was published in the issue of the 15th September 1999 of THE HERALD, as appears more fully from the attached copy entitled 'US gunmen's sentences causes outrage'.”

II. THE PROCEDURE ADOPTED BY THE HIGH COURT

The hearing of the proceedings initiated by the citation was assigned to BLACKIE J. He immediately appointed a legal practitioner in private practice to appear as amicus curiae to present the complaint against the applicant.

On 1 October 1999, the learned judge held a pre-hearing conference at which the parties agreed to a time-frame for the filing of a Defence Outline by the applicant and written heads of argument by both him and the amicus curiae. The matter was then postponed for a week.

At the commencement of the proceedings, on 8 October 1999, the amicus curiae particularised the passages in the reported words of the applicant which were considered to contain the contempt alleged against him. These were:

(a) The statement that the sentence handed down “induces a sense of shock and outrage in the minds of all right-thinking people.”

(b) The statement that: “By imposing sentences which do not match the seriousness of the offences, Justice Adam has, in effect, trivialised crimes of unlawful possession of arms and has seriously erred in doing so. The Attorney-General's Office is left bemused by the meaninglessness of it all. The nation should know and be told that the leniency of the sentences constitutes a betrayal of all civilised and acceptable notions of justice and of Zimbabwe's sovereign interests.'”;

(c) The statement that: “All these developments erode the office's confidence in the administration of criminal justice.”

Thereafter, counsel for the applicant, acting in terms of section 24(2) of the Constitution of Zimbabwe, requested the court to refer to the Supreme Court for determination a number of questions in respect of which it was contended that the proceedings were in contravention of the Declaration of Rights.

The questions, subsequently re-drafted and re-presented to the Court, were these:

“1. Whether the High Court and/or counsel appearing amicus curiae, can, before the High Court, present allegations of contempt of court in the light of the provisions of section 76 and section 18(2) of the Constitution.

2. Whether the choice and assignment to deal with this matter, by the Judge who passed the sentence which was commented upon in the alleged contemptuous statement of the presiding judge, and the selection of counsel to appear amicus curiae by the assigned judge, violates the Attorney-General's right to appear before an independent and impartial court established by law as provided in section 18 of the Constitution.

3. Whether the order issued by the High Court, on 1 October 1999, which order was issued in the presence of the Attorney-General, and, in respect of which the Attorney-General, when invited, elected to make no submissions:

(a) Violates the Attorney-General's right not to be compelled to give evidence as provided for in section 18(8) of the Constitution, given that he was ordered to file a Defence Outline;

(b) Violates the Attorney-General's right to be given adequate time to prepare his defence as provided for in section 18(3) of the Constitution, in circumstances where the Attorney-General, at no stage, applied for or requested an extension of time, nor did he, at any time, object to the time limits set out in the said order, and, in circumstances where the Attorney-General requested a postponement to 6 October 1999 and then 8 October 1999, to enable him to travel to Zambia on Government business, both requests being granted;

(c) Violates the Attorney-General's rights to examine witnesses as provided for in section 18(3)(e) of the Constitution, in circumstances where he was ordered to file argument relating to the facts and the law before the hearing.

4. Whether the procedure in terms of which the Registrar can issue a court application, which is not supported by any affidavit as to facts, as is provided in Order 43 Rule 389, violates the Attorney-General's right to a fair trial as is provided for in section 18 of the Constitution.

5. Whether the citation issued on 28 September 1999, which calls upon the Attorney-General to show cause why an order of contempt should not be made, violates the presumption of innocence of the Attorney General and unfairly places the onus to prove innocence on the Attorney-General in contravention of section 18 of the Constitution.

6. Whether the contempt proceedings, as particularised, violate the Attorney-General's freedom of expression, that is to say, his right to hold opinions and to express such opinions without interference as is provided for in section 20 of the Constitution.”

After reserving his decision on the questions raised, BLACKIE J ruled that it had not been shown to his satisfaction that question 1 concerned a breach of the Declaration of Rights; and that questions 3 and 4 were frivolous and vexatious within the meaning attributed to the phrase in Martin v Attorney-General & Anor 1993 (1) ZLR 153 (S)…,.

He therefore declined to refer these three questions. His Lordship's detailed reasons for so concluding are to be found at 297B-298A and 299E-300D of the judgment, which is reported in 1999 (2) ZLR 291 (H).

However, the request to refer questions 2 and 6 (as modified in the judgment), as well as question 5, was acceded to.

Added thereto was the further question of whether a person charged with contempt of court falls under the protections provided to a person charged with a criminal offence under section 18 of the Constitution.

The learned judge recast the questions in the following manner:

“1. Whether a charge of contempt of court is a charge of a criminal offence entitling the person charged to the protections afforded by the provisions of section 18 of the Constitution.

2. If the answer to question 1 is in the affirmative:

(a) Whether the procedure whereby a person charged with contempt of court is tried by the court which complains about the contempt violates the right of a person, in terms of section 18 of the Constitution, to be tried by an independent and impartial tribunal.

(b) Whether the citation issued on 28 September 1999, which called upon the accused person to show cause why an order of contempt should not be made against him, violates the presumption of innocence on the part of an accused person in contravention of section 18 of the Constitution.

3. Whether the law of contempt of court, as contained in the common law of Zimbabwe, is such as cannot be shown 'to be reasonably justifiable in a democratic society', and, therefore, is incompatible with the provisions of section 20 of the Constitution.”...,.

IV. WHETHER THE LAW OF CONTEMPT OF COURT, UNDER THE COMMON LAW OF ZIMBABWE, IS SUCH AS CANNOT BE SHOWN “TO BE REASONABLY JUSTIFIABLE IN A DEMOCRATIC SOCIETY” AND, THEREFORE, IS INCOMPATIBLE WITH THE PROVISIONS OF SECTION 20 OF THE CONSTITUTION

It is convenient, at the outset, to consider what I regard as the main question. In doing so, a preliminary matter must be made clear.

In the context of the applicant's statements, the reference in the question to the law of contempt must be taken to mean that species of the common law of contempt which has been given the colourful nomenclature of “scandalising the court”; and not any of the other different ways in which the offence may be committed.

A consideration of the following issues is, I believe, essential to the resolution of the question posed:

(1) Does the form of contempt known as scandalizing the court continue to exist as an offence under the common law of Zimbabwe?

There are two modes of conduct which fall within the scope of criminal contempt:

(i) First, there is contempt in facie curiae, which encompasses any word spoken or act done within the precinct of the court that obstructs or interferes with the due administration of justice, or is calculated to do so.

(ii) Secondly, the offence may be committed ex facie curiae by words spoken or published or acts done which are intended to interfere with, or are likely to interfere with, the fair administration of justice.

An example of this type of contempt is that described as “scandalising the court”. It is committed by the publication, either in writing or verbally, of words calculated to bring a court, a judge of a court, or the administration of justice through the courts generally, into contempt. It need not be an attack directed at any specific case, either past or pending, or at any specific judge. It is sufficient if it is a scurrilous attack on the judiciary as a whole, calculated to undermine the authority of the courts and endanger public confidence, thereby obstructing and interfering with the administration of justice: see Chokolingo v Attorney General of Trinidad and Tobago [1981] 1 All ER 244 (PC)…, LORD DIPLOCK.

See also, BORRIE & LOWE's Law of Contempt 2ed…,; SNYMAN, Criminal Law 3ed…,; MILTON, South African Criminal Law and Procedure 3ed, Vol II…,.

At one stage, in England, the continued existence of this branch of contempt law was called into doubt by LORD MORRIS in McLeod v St. Aubyn 1899 AC 549. After pointing out that committals for contempt are ordinarily in cases where:

(i) Some contempt has been committed in the face of the court; and (ii) comments have been made on cases pending in the courts, LORD MORRIS dealt with a third form of contempt. Of this, he said…,:

“Committals for contempt of Court, by scandalising the Court itself, have become obsolete in this country. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them.”

The observation proved to be premature.

Nine months later, an application was made, in R v Gray [1900] 2 QB 36, to the Queens Bench Division to commit the editor of a Birmingham newspaper for writing and publishing a scurrilous personal attack on MR JUSTICE DARLING. It described him as an “impudent little man in horse-hair - a microcosm of conceit and empty-headedness”, adding: “No newspaper can exist except upon its merits, a condition from which the Bench, happily for MR JUSTICE DARLING, is exempt…,. MR JUSTICE DARLING would do well to master the duties of his own profession before undertaking the regulation of another.”

The article did not deal with pending litigation; it was about the conduct of a judge in a case in which a conviction had been recorded and sentence passed.

After defining the offence, LORD RUSSELL OF KILLOWEN CJ went on to say…,:

“That description of that class of contempt is to be taken subject to one and an important qualification. Judges and Courts are alike open to criticism, and, if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court. The law ought not to be astute in such cases to criticise adversely what under such circumstances and with such an object is published; but, it is to be remembered that in this matter the liberty of the press is no greater and no less than the liberty of every subject of the Queen.

Now, as I have said, no one has suggested that this is not a contempt of Court, and nobody has suggested, or could suggest, that it falls within the right of public criticism in the sense I have described.

It is not criticism, I repeat that, it is personal scurrilous abuse of a judge as a judge.”

Although LORD RUSSELL did not mention McLeod v St. Aubyn 1899 AC 549, it was referred to by the reporter of R v Gray [1900] 2 QB 36 in a footnote at the end of the judgment. In the course of his note, the reporter accurately summed up the effect of R v Gray [1900] 2 QB 36 as follows:

“The present case is reported as showing that in this country the Court will still, where the circumstances demand its action, exercise its jurisdiction to punish, on summary process, the contempt of 'scandalising the Court', although no contempt has been committed ex facie of the Court, or in respect of a case pending.”

At the present time, prosecutions in England, for scandalising the court, have once again become a rarity. However, there can be little doubt as to the continued application of this branch of the law of contempt.

LORD HAILSHAM OF ST. MARYLEBONE made this clear in Badry v Director of Public Prosecutions of Mauritius [1982] 3 All ER 973 (PC)…, in stating:

“(Whilst) nothing really encourages courts or Attorneys-General to prosecute cases of this kind in all but the most serious examples, or courts to take notice of any but the most intolerable instances, nothing has happened in the intervening eighty years to invalidate the analysis by the first LORD RUSSELL OF KILLOWEN CJ in R v Gray.”

Yet, in Secretary of State for Defence & Anor v Guardian Newspapers Ltd [1984] 3 All ER 601 (HL)…, LORD DIPLOCK ventured the opinion that contempt for publishing material that scandalises the court was “virtually obsolescent.”

It is well established that this form of contempt continues to exist in other jurisdictions:

The principle enunciated in R v Gray [1900] 2 QB 36 was adopted by the Supreme Court of Canada in In re: Duncan (1958) 11 DLR (2d) 616 (SC)…,; see also R v Kopyto (1988) 47 DLR (4th) 213 (Ont. CA)…,.

In New Zealand, reservations expressed by some judges were dispelled by the Court of Appeal in Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA)…,.

In Australia, a number of prosecutions illustrate that this species of contempt continues to be recognised: see R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 (HC); though the scope for its use seems more limited following Attorney General for New South Wales v Mundey [1972] 2 NSWLR 887.

Under Hong Kong law, scandalising contempt is accepted as an offence: see Wong Yeung Ng v Secretary for Justice [1999] 2 HKLRD 293 (CA)…,.

This is not the law in the United States of America.

In Bridges v State of California 314 US 252 (1941) all the members of the Supreme Court were agreed that there is no such offence in the United States…,. JUSTICE FRANKFURTER referred to the scandalizing of the court as an offence as “English foolishness.” He considered criticism of the courts, no matter how un-restrained, made after a decision has been rendered, to be an exercise of the right of free discussion and free speech.

Nearer to home, in South Africa, the authority to punish scandalisation contempt, summarily or otherwise, was given in 1874 by the Cape Supreme Court in In re: Neethling (1874) 5 Buch 133. Three years later, KOTZE CJ in In re: Phelan (1877) Kotze 5…, explained the nature of this form of contempt thus:

“No principle of law is better established than this: that any publications or words which tend, or are calculated, to bring the administration of justice into contempt, amount to contempt of court. Now, nothing can have a greater tendency to bring the administration of justice into contempt than to say, or suggest, in a public newspaper, that the Judge of the High Court of this territory, instead of being guided by principle and his conscience, has been guilty of personal favouritism, and allowed himself to be influenced by personal and corrupt motives, in judicially deciding a matter in open court.”

Anything spoken or written imputing corrupt or dishonest motives or conduct to a judicial officer, in the discharge of official duties, or reflecting in an improper or scandalous manner on the administration of justice, has been held to fall within the ambit of this species of contempt: see R v Torch Printing & Publishing Co. (Pty) Ltd & Ors 1956 (1) SA 815 (C)…,; S v Oliver 1964 (3) SA 660 (N)…,; S v Tobias 1966 (1) SA 656 (N)…,.

In S v Van Niekerk 1972 (3) SA 711 (A) it was held that this type of contempt is even committed by exhorting the judiciary to embark on a course of action which is in clear conflict with its duties, for example, by asking that it refuse to give credit to a certain class of evidence irrespective of its intrinsic merit…,.

The issue of whether scandalising the court is an offence in Zimbabwe has not been addressed directly by the courts.

Nonetheless, the general case law on the law of contempt in this country, the weight of the authorities referred to, and the principles they enunciate, satisfy me that a refusal to recognise scandalizing as a species of the offence of contempt of court is not warranted.

Indeed, counsel for the applicant did not seek to argue the contrary.

Consequently, it is unnecessary that the conduct complained of does not relate to pending legal proceedings.

Having said that, it is plain that the line between scandalising comment and fair and legitimate criticism is not always easy to draw. As a general rule, as alluded to by OGILVIE THOMPSON CJ in S v Van Niekerk 1972 (3) SA 711 (A)…,:

“Genuine criticism, even though it be somewhat emphatically or unhappily expressed, should, in my opinion…, preferably be regarded as an exercise of the right of free speech rather than as 'scandalous comment' falling within the ambit of the crime of contempt of court.”

Much the same thought, though in slightly stronger language, was expressed earlier by LORD DENNING MR in R v Metropolitan Police Commissioner, Ex parte Blackburn (No.2) [1968] 2 All ER 319 (CA)…,:

“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not.

All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms.”

In the same case, SALMON LJ stated the position even more succinctly at 321A-B:

“…, no criticism of a judgment, however vigorous, can amount to contempt of court, provided it keeps within the limits of reasonable courtesy and good faith.”

It should not be overlooked that some legal writers, and a few judges, have been vehement in their criticism of the recognition of scandalising the court as an offence. They argue that the basic assumption embodied in the offence of scandalizing the court, namely, that public confidence in the administration of justice would be undermined by comments that tend to lower the authority of the court, is highly speculative. They contend that an intelligent and sophisticated public should evaluate the merits of the comments rather than the judiciary which, in effect, acts as both prosecutor and judge. They take the position that the courts, like other public institutions, should be open to lively and constructive criticism and do not need, and should not have, specific rules for their protection: see, for instance, BORRIE & LOWE's Law of Contempt 2ed…,; WALKER, Scandalising in the Eighties (1985) 101 LQR 359…,.

In the Australian case of Attorney General for New South Wales v Mundey [1972] 2 NSWLR 887.., HOPE JA said:

“There is no more reason why the acts of courts should not be trenchantly criticised than the acts of public institutions, including Parliaments. The truth is, of course, that public institutions, in a free society, must stand upon their own merits: they cannot be propped up if their conduct does not command respect and confidence of a community; if their conduct justifies the respect and confidence of a community they do not need the protection of special rules to shield them from criticism.”

Despite the strong objection levelled at scandalising contempt, I reiterate that it remains an offence according to the common law of Zimbabwe.

Whether the statements of the applicant fall within or outside the limits of reasonable courtesy; whether they represented the expression of a genuinely held belief; and whether, emanating as they did from the country's Chief Law Officer, being a person of high standing in the community, they were intended or likely to bring MR JUSTICE ADAM into disrepute, as reflecting upon his capacity as a judge, and to shake public confidence in the manner in which justice had been administered by the High Court in the case in question, are issues of fact, the resolution of which is of no relevance to these proceedings.

The advent of the Constitution makes it necessary for this Court to review the offence of scandalising the court in order to ensure that it meets the requisite Constitutional standards.

The statements of the applicant touched on a matter of public interest – the high profile and much publicised trial of the three Americans and the punishment meted out to them.

They concerned the functioning and operations of a public institution.

It is necessary, therefore, to consider whether they attract the protection of section 20(1) of the Constitution.

(2) Are the words of the applicant protected by the freedom of expression provision set out in section 20(1) of the constitution?

Section 20(1) of the Constitution protects the freedom of expression in the following terms:

“Except with his own consent, or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.”

This Court has held that the provision is to be given a benevolent and purposive interpretation.

It has repeatedly declared the vital and fundamental importance of freedom of expression to the Zimbabwean democracy - one of the most recent judgments being that in United Parties v Minister of Justice, Legal and Parliamentary Affairs & Ors 1997 (2) ZLR 254 (S)…,: 1998 (2) BCLR 224 (ZS)…,.

What has been emphasised is that freedom of expression has four broad special objectives to serve. The most significant, in the present context, is the second, namely, “it assists in the discovery of the truth.”

The search for truth rationale has been articulated in terms of the famous “marketplace of ideas” concept. This holds that truth will emerge out of the competition of ideas.

In his classic dissent in Abrams v United States 250 US 616 (1919) at 630, the redoubtable JUSTICE HOLMES said that:

“…, when men have realised that time has upset many fighting faiths, they may come to believe, even more than they believe the very foundations of their own conduct, that the ultimate good desired is better reached by free trade in ideas; that the best test of truth is the power of the thought to get itself accepted in the competition of the market; and that truth is the only ground upon which their wishes safely can be carried out.”

It is indeed difficult to imagine a more crucial protection to a democratic society than that of freedom of expression.

Without the freedom to express, interchange, and communicate new ideas and advance critical opinions about public affairs or the functioning of public institutions, a democracy cannot survive.

The use of colourful, forceful, and even disrespectful language may be necessary to capture the attention, interest, and concerns of the public to the need to rectify the situation protested against or prevent its recurrence. People should not have to worry about the manner in which they impart their ideas and information. They must not be stifled in making such exchanges.

The point is well made in the majority judgment of the European Court of Human Rights in Handyside v UK (1979-80) 1 EHRR 737 at 754…, that freedom of expression is applicable: “…, not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock, or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance, and broad-mindedness without which there is no democratic society.”

See also Garrison v State of Louisana 379 US 64 (1964)…, per JUSTICE BRENNAN.

A similar observation was made recently in Chavanduka & Anor v Minister of Home Affairs & Anor (2000) 8 BHRC 390 (ZS), where, after citing a dictum of MR JUSTICE HOLMES in US v Schwimmer 279 US 644 (1929)…, this Court said…,:

“Mere content, no matter how offensive (save where the expression is communicated in a physically violent form), cannot be determinative of whether a statement qualifies for the constitutional protection afforded to freedom of expression.”

With particular regard to criticisms levelled at the courts, I can find no more eloquent and pertinent expose than that of CORY JA in R v Kopyto (1988) 47 DLR (4th) 213 (Ont. CA)…,:

“The courts play an important role in any democratic society. They are the forum not only for the resolution of disputes between citizens but also for the resolution of disputes between the citizen and the State in all its manifestations.

The more complex society becomes the greater is the resultant frustration imposed on citizens by that complexity and the more important becomes the function of the courts.

As a result of their importance, the courts are bound to be the subject of comment and criticism. Not all will be sweetly reasoned. An unsuccessful litigant may well make comments, after the decision is rendered, that are not felicitously worded. Some criticism may be well founded, some suggestions for change worth adopting. But, the courts are not fragile flowers that will wither in the hot heat of controversy. Rules of evidence, methods of procedure, and means of review and appeal exist that go far to establishing a fair and equitable rule of law.

The courts have functioned well and effectively in difficult times. They are well-regarded in the community because they merit respect. They need not fear criticism nor need they seek to sustain unnecessary barriers to complaints about their operations or decisions.”

I am thus firmly of the view that statements made on a matter of public interest, even if intemperately or offensively worded, or in fact false, so long as they are not obscene or criminally defamatory, come within the protection of section 20(1) of the Constitution.

Undoubtedly, the comments of the applicant come within the parameters of that protection.

It remains to be determined whether the common law offence of contempt by scandalising the court is a constitutionally permissible restriction on the protection afforded the applicant's statements.

(3) Is the limitation which the common law offence of scandalising the court imposes on the right of freedom of expression saved by section 20(2)(b)(iii) of the Constitution?

Section 20(2)(b)(iii) of the Constitution, in relevant part, reads:

“Nothing contained in…, any law shall be held to be in contravention of subsection (1) to the extent that the law in question makes provision –

…,.

(b) For the purpose of –

…,.

(iii) Maintaining the authority and independence of the courts…, except so far as that provision…, is shown not to be reasonably justifiable in a democratic society.”

The underlined portions of the subsection give rise to three specific questions:

(a) Is the limitation upon freedom of expression contained in any law?

The term “law” is defined in section 113(1) of the Constitution to include “any unwritten law in force in Zimbabwe, including African customary law.”

The common law in force in Zimbabwe falls within the definition.

And, as I have endeavoured to show, the common law of scandalizing the court does limit the freedom of expression.

(b) Is the limitation upon freedom of expression employed for the purpose of maintaining the authority and independence of the courts?

Unquestionably, the offence of scandalising the court exists, in principle, to protect the administration of justice. It is thus a permissible derogation from the freedom of expression.

(c) Has the offence of scandalising the court been shown to be reasonably justifiable in a democratic society?

This is the crucial inquiry.

From a procedural aspect, the burden of proof is on the challenger to establish that the impugned law goes further than is reasonably justifiable in a democratic society; and not, as is common with the Constitutions of other countries, upon the State to show that it does not: see Zimbabwe Township Developers (Pvt) Ltd v Lou's Shoes (Pvt) Ltd 1983 (2) ZLR 376 (S)…, 1984 (2) SA 778 (ZS)…,.

In Nyambirai v National Social Security Authority & Anor 1995 (2) ZLR 1 (S)…, 1995 (9) BCLR 1221 (ZS)…, and Retrofit (Pvt) Ltd v Posts and Telecommunications Corporation & Anor 1995 (2) ZLR 199 (S)…, 1995 (9) BCLR 1262 (ZS)…, this Court, following Canadian jurisprudence, set out the three criteria to be looked to in determining whether or not the limitation is permissible in the sense of not being shown to be arbitrary or excessive.

To be answered are whether –

(i) The objective which the limitation in the law is designed to promote is sufficiently important to warrant overriding a fundamental right;

(ii) The measures designed to meet the objective are rationally connected with it and are not arbitrary, unfair, or based on irrational considerations;

(iii) The means used to impair the right or freedom are no more than is necessary to accomplish the objective.

In Ahnee & Ors v Director of Public Prosecutions [1999] 2 WLR 1305 (PC), an appeal from the Supreme Court of Mauritius, the question arose as to whether the offence of scandalising the court had been shown, by the appellants, not to be reasonably justifiable in a democratic society (section 12(2) of the Constitution of Mauritius).

Holding that it had not, LORD STEYN, in delivering the opinion of their Lordships, offered two main reasons for that view. He said…,:

“In England, such proceedings are rare and none has been successfully brought for more than sixty years. But, it is permissible to take into account that on a small island, such as Mauritius, the administration of justice is more vulnerable than in the United Kingdom. The need for the offence of scandalising the court on a small island is greater: see FELDMAN, Civil Liberties and Human Rights in England and Wales (1993) pp746-747; BARENDT, Freedom of Speech (1985) pp218-219.

Moreover, it must be borne in mind that the offence is narrowly defined. It does not extend to comment on the conduct of a judge unrelated to his performance on the Bench. It exists solely to protect the administration of justice rather than the feelings of judges. There must be a real risk of undermining public confidence in the administration of justice.

The field of application of the offence is also narrowed by the need, in a democratic society, for public scrutiny of the conduct of judges, and for the right of citizens to comment on matters of public concern.

There is available to a defendant a defence based on the 'right of criticising, in good faith, in private or public, the public act done in the seat of justice'…,.

The classic illustration of such an offence is the imputation of improper motives to a judge…,.

Given the narrow scope of the offence of scandalising the court, their Lordships are satisfied that the constitutional criterion that it must be necessary in a democratic society is, in principle, made out. The contrary argument is rejected.”

With regard to the first reason, I must respectfully disagree with the sweeping observation that in small islands the need to retain the offence of scandalising the court is greater than in the United Kingdom because the administration of justice is more vulnerable. By alluding to “small islands”, I assume that the learned LORD OF APPEAL, in ordinary, was including comparatively small jurisdictions.

In supporting the proposition by reference to academic writings it may well be that the Board wished to be spared the embarrassment of citing LORD MORRIS's racist comment in McLeod v St. Aubyn 1899 AC 549…, that:

“In small colonies, consisting principally of coloured populations, the enforcement, in proper courts, of committal for contempt of Court for attacks on the Court may be absolutely necessary to preserve, in such a community, the dignity of and respect for the Court;”

Yet, like LORD ATKIN, in Ambard v Attorney-General for Trinidad and Tobago…, believed it necessary to pronounce, somewhat condescendingly, a modern non-racist justification of McLeod to small countries.

Whether the administration of justice in Mauritius was correctly perceived to be more vulnerable than in the United Kingdom appears to me to be a contentious proposition. But, one thing is certain; the same epithet does not fit the situation in Zimbabwe.

I am confident that our courts are strong enough to withstand criticism after a case has been decided no matter how scurrilous that criticism may be.

Communication with a fair proportion of the population is easily achieved. Court proceedings are widely publicised in the media. Most, if not all, judges are known by name. Trust in the legal system and the authority of the courts are matters of importance to the ordinary citizen. The courts are looked upon as the ultimate refuge from injustice.

The second reason, that the narrow scope of the offence of scandalising the court makes its retention “necessary” in a democratic society, is much more persuasive.

Criticism which imputes improper or corrupt motives or conduct to those taking part in the administration of justice, which “excites misgivings as to the integrity, propriety, and impartiality brought to the exercise of the judicial office”, does create a real or substantial risk of impairing public confidence in the administration of justice.

Unlike other public figures, judges have no other proper forum in which to reply to criticisms. They cannot debate the issue in public without jeopardizing their impartiality. This is why protection should be given to judges when it is not given to other important members of society such as politicians, administrators, and public servants.

The other case to which reference must be made is that of R v Kopyto (1988) 47 DLR (4th) 213 (Ont. CA) where, save for unanimity in the setting aside of the conviction, the Ontario Court of Appeal was split three ways. CORY JA and GOODMAN JA were of the view that in order to accord with the fundamental freedoms in the Canadian Charter of Rights and Freedoms, the contempt must be shown to involve a real, substantial, and present or immediate danger to the administration of justice. Their view that such a contempt could not be committed unless it interferes with the fair trial of present or pending proceedings, was influenced by American jurisprudence and its test of “clear and present danger” to the administration of justice.

HOULDEN JA went even further. He was of the opinion that no offence of scandalising the court, however framed, would be consistent with the Charter; therefore, there could be no such contempt.

DUBIN JA (with whom BROOKE JA concurred), on the other hand, considered the offence to be a necessary exemption, provided that the statement complained of is calculated to bring the administration of justice into disrepute; and it is shown that there is a “serious risk that the administration of justice would be interfered with.” Rejecting the approach of the majority, he said…,:

“In other words, as I understand it, if the words complained of are stated in court, while the judge is still sitting in court, my colleagues would hold the offence to be constitutional, but, if the words were stated after the judge had delivered his judgment and withdrawn from the courtroom, and the statement was made to the press or to the public, in his absence, the offence becomes unconstitutional.

The result of the majority ruling is that in this jurisdiction there is, at present, no limit on what is permissible with respect to comments made which are intended to interfere seriously with the administration of justice and the rule of law unless the comment is made in the face of the court, or would interfere with the fair trial of pending proceedings.

With respect, I see no basis for such a distinction.”

The learned JUDGE OF APPEAL then pointed out that the distinction had been rejected by RICHMOND P in Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA)…, where LORD DIPLOCK's analysis in Attorney-General v Times Newspaper Ltd [1973] 3 All ER 54 (HL)…, was cited with approval.

In dismissing the relevance of the American jurisprudence, DUBIN JA…, approved of another passage of the judgment in Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA)…, namely:

“The American courts appear to have directed their attention to the existence of a clear and present danger of a court being influenced, intimidated, impeded, embarrassed, or obstructed in the administration of justice.

English Law, on the other hand, has also attached great importance to the need to preserve public confidence in the administration of justice generally. This court should not depart from that attitude subject, of course, in the type of contempt now under consideration, to the public right of fair comment and criticism, and to the possible defence of justification earlier referred to in this judgment.”

Turning to the merits of the appeal, DUBIN JA was satisfied that the conviction could not stand as the requisite elements of the offence had not been made out.

In my respectful view, the minority judgment is impressive.

The serious risk test, preferred to the one adopted in American case law in which the administration of justice must be imperiled immediately, conforms with that applied in this country: see S v Hartmann & Anor 1983 (2) ZLR 186 (S)…, 1984 (1) SA 305 (ZS)…,; Banana v Attorney-General 1998 (1) ZLR 309 (S)…, 1999 (1) BCLR 27 (ZS)…,.

Furthermore, the danger in adopting the American approach is that it is predicated upon the conception that scandalising contempt is to “preserve the dignity of the Bench.”

This is wrong.

The recognition given to this form of contempt is not to protect the tender and hurt feelings of the judge or to grant him any additional protection against defamation other than that available to any person by way of a civil action for damages. Rather, it is to protect public confidence in the administration of justice, without which the standard of conduct of all those who may have business before the courts is likely to be weakened, if not destroyed.

I pass now to the application of the three criteria, but would repeat that the onus is upon the applicant of showing that the law of contempt by scandalising the court is not a limitation that is reasonably justifiable in a democratic society.

(i) First, the primary objective of the impugned law of scandalising the court must relate to concerns which are pressing and substantial and of sufficient importance to override the constitutionally protected freedom: see Chavanduka & Anor v Minister of Home Affairs & Anor (2000) 8 BHRC 390 (ZS)…,.

The objective of the law of contempt is well captured in the following passage in BORRIE & LOWE's Law of Contempt 2ed…,:

“The necessity for this branch of contempt lies in the idea that, without well regulated laws, a civilised community cannot survive. It is therefore thought important to maintain the respect and dignity of the court and its officers, whose task it is to uphold and enforce the law, because without such respect, public faith in the administration of justice would be undermined and the law itself would fall into disrepute.”

The same sentiment was neatly put by RICHMOND P in Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA)…, in these words:

“The justification for this branch of the law of contempt is that it is contrary to the public interest that public confidence in the administration of justice should be undermined.”

I do not therefore consider that this objective, which the limitation in the law is designed to promote, can be said not to be of sufficient importance to warrant overriding the fundamental right of freedom of expression.

(ii) It was conceded by counsel for the applicant, and correctly so in my opinion, that the second criterion is satisfied, in that the measures designed to meet the objective are rationally connected to it.

(iii) With regard to the third criterion which the applicant must meet, two points must be made:

(a) First, as emphasised in Ahnee & Ors v Director of Public Prosecutions [1999] 2 WLR 1305 (PC), the offence of scandalizing the court does not extend to hostile criticism on the behaviour of a judicial officer unrelated to his performance on the Bench. Any personal attack upon him, unconnected with the office he holds, must be dealt with under the laws of defamation: see McLeod v St. Aubyn 1899 AC 549 …,; R v Fuleza 1951 (1) SA 519 (A)…,; R v Robberts 1959 (4) SA 554 (A)…,. The offence is narrowly defined.

(b) Secondly, prompt action to preserve the authority of the court and the due carrying out of its function, which are subject to being undermined by scandalising contempt, is required.

The institution of criminal proceedings, at the instance of the Attorney-General, with all the attendant delays, would be too dilatory and too inconvenient to offer a satisfactory remedy. Once a matter has been referred to the Attorney-General, it is removed from the court's control, and the Attorney General might well be reluctant to prosecute. Moreover, criminal defamation is concerned with personal reputations. And, in any event, it would not be applicable to an attack upon an unspecified group of judges or upon the court system in general.

In sum, the applicant has failed to meet the criteria laid down. He has not shown that the limitation placed on the right to freedom of expression for the purpose of maintaining the authority and independence of the courts is not one that is reasonably justifiable in a democratic society.

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAFUSIRE J

Section 51 of our Constitution guarantees the right to human dignity. It says every person has inherent dignity in their private and public life, and the right to have that dignity respected.

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE
Ruled By: MWAYERA J

This matter concerns the status of adultery damages in Zimbabwe in the 21st century. The main issue is whether or not the common law delictual claim for adultery damages is constitutional or unconstitutional.

The plaintiff is married to Lawrence Muzvondiwa in terms of the Marriages Act [Chapter 5:11].

From about 2012, it is alleged, that, the defendant engaged in adulterous relations with the plaintiff's husband. The adulterous relationship culminated in siring a child for the adulterous couple. The plaintiff, irked by this adulterous relationship, issued summons claiming adultery damages for a total of $25,000 broken down as follows;

(a) Contumelia: $15,000.

(b) Loss of consortium: $10,000.

The parties referred the matter for trial on the contentious issues. At the hearing of the trial, the defendant made an application on the constitutionality, or otherwise, of the plaintiff's claim.

It is this constitutional application that I am now seized with and seek to dispose of.

The thrust of the defendant's argument, as presented in heads of argument and orally, can be briefly summed up as follows:

(i) The applicant (defendant) argued, that, it is improper to sue the defendant to the exclusion of the plaintiff's spouse yet he is the main architect of the relationship. This is viewed by the applicant as discriminatory and therefore contrary to the constitutional provisions of equality before the law.

(ii) Secondly, the applicant argued that the claim amounted to infringement into privacy of the applicant's sexual life thus violating not only the right to privacy, but, also, the right to freedom of association.

The applicant argued, that, the claim by the plaintiff has no legal standing as it is archaic and unconstitutional.

The respondent (plaintiff), on the other hand, presented argument, in Heads of Arguments and orally, to the effect, that, the claim was well founded in terms of common law and was also supported by the Constitution. The Constitution, being the supreme law of the country, recognises the marriage institution. Thus, adultery, as argued by the respondent, is a threat to the very existence of the marriage institution which the Constitution of Zimbabwe seeks to protect. As such, the claim for adultery damages by the plaintiff was properly before the court.

I must mention at the outset, that, the applicant placed heavy reliance on foreign judgements to persuade the court to align to the notion that adultery damages are not only archaic but unconstitutional.

I will, in due course, revert to some of the cases referred to as persuasive authority.

At this juncture, it is important to look at the delictual claim of adultery and the mischief that the law seeks to protect by the remedies available.

It is settled, that, adultery is an injury occasioned to the innocent spouse because of the adulterous relationship. The spouse can recover damages for loss of a spouse's consortium as well as any patrimonial loss suffered and also personal injury or contumelia suffered by the innocent spouse, inclusive of loss of comfort, society, and services.

In the case of Timothy Chinyadza v Melton Phiri HH76-09, KUDYA J…, defined contumelia as follows:

“Contumelia is equated to the injury, hurt, insult, and indignity inflicted upon a plaintiff by adultery committed by a defendant with his or her spouse.”

One does not require a magnifying glass to scrutinize and come up with a conclusion that contumelia, that is injury, hurt, insult, and indignity occurs, to an innocent spouse where the other commits adultery. The injury is so obvious that there would be no justification in not seeking legal redress for the wrongful hurt occasioned.

The Supreme Court of South Africa decision in the case of RH and DE (C594/2013) (2014) ZA SCA 133 confirmed that the award for contumelia was rightly made even though there was a finding that the adultery was committed at a time when the marriage had already irretrievably broken down.

What is worth noting is that once there is evidence of injury, hurt, insult, and indignity having been occasioned on an innocent party because of the adulterous relationship, then, the innocent spouse is entitled to damages for contumelia.

Once contumelia is established, then, the next issue would be whether or not there is loss of consortium, that is, loss of comfort and society.

The basis of such a claim being the defilement and corruption of the innocent spouse's matrimonial bed.

It is my considered view, that, adultery damages, whether classified as falling under contumelia, or, on the other hand, consortium, are delictual damages arising from a delictual wrong occasioned to an innocent married party. To this extent, the distinction is fallacious.

It is important to understand the basis of such a delictual claim in the context of a marriage institution.

A marriage is defined as a sui generis contract entered into by two willing parties (see NCUBE, Family Law in Zimbabwe 1987). The sanctity of this anomalous contract is what an adultery damages claim seeks to protect.

The claim should not be viewed in isolation, but, from the view point of its purpose, being to protect the sanctity of marriage.

If it is for this purpose, then, the argument that it is improper to sue one party to the adulterous relationship does not hold water. This is because given the nature of a marriage, it would amount to suing oneself.

Whereas, in suing the third party, the claimant will be seeking a personal remedy for hurt, injury, iniquity of company and comfort occasioned by the third party's association with the married party.

The historic background to adultery claims should not be ignored upon considering whether or not the delict no longer has space in our legal system.

I am alive to the position taken by the Supreme Court of South Africa in the case of RH and DE (C594/2013) (2014) ZA SCA 133, wherein, in relation to the award for consortium, it held that the award was not justified, and further concluded that its continued existence was no longer justified.

The court, in RH and DE (C594/2013) (2014) ZA SCA 133, considered the question for determination to be: what are the consequences of adultery, and, thus, only sought to highlight the quantum of damages.

The court considered the South African constitutional values and also sought to rely on other foreign judgements. It then held, that, the award for contumelia had been rightly made but that the award for consortium was not justified. It held, further, that, the delict's continued existence in the South African context was no longer justified.

The circumstances of that case are that adultery was committed after irretrievable breakdown had occurred. Also, the court relied on decisions from other jurisdictions like Rose v Valentine (1999) SCSC 8; 1999 SLR 99 the Supreme Court of Seychelles, quoting Cosgrow v Cosgrow SCA 12/1992 (New Zealand) that;

“The evolution of law within commonwealth jurisdiction over the last decade or so demonstrates that there is no longer any turpitude attached to adultery.”

The South African Supreme Court was persuaded by that position and also sought to evaluate the socio-economic and legal framework for the South African jurisdiction. As correctly observed in HV Fetal Assessment Centre (2014) ZACC 34; 2015 (2) SA 193 CC;

“In considering the position in other jurisdictions, sight should not be lost of whether similar legal questions would have arisen, and the context in which they would have arisen, so as to come up with an informed decision of the applicability or otherwise of the decision.”

The central question is: in the Zimbabwean context, are these foreign decisions applicable?

In other words, one has to consider whether the reasoning adopted in South Africa, Seychelles, Canada, and New Zealand is possible and applicable in light of the Zimbabwean Constitution's normative framework and our social context.

From case law, it is settled in our jurisdiction, that, in coming up with adultery damages the following factors have to be considered;

1. The social and economic status of the plaintiff and the defendant.

2. The character of the spouse involved.

3. Whether or not the defendant has shown contrition.

4. The need for deterring measures against the adulterer.

5. The level of award in similar cases.

See Khumalo v Mandishona 1996 (1) ZLR 434; Nyakudya v Washaya 2000 (1) ZLR 65 C; Chenesai Rateiwa v Tsistsi Venge HH152-11.

Of course, the circumstances of each case come under scrutiny as the court makes the decision.

The reason behind adultery damages being the protection of the sanctity of the marriage institution.

In Katsimbe v Buyanga 1999 (1) ZLR 256 H…, ROBINSON J affirmed the purpose of adultery damages as the protection of the marriage institution when he remarked as follows:

“Before addressing myself to the quantum of damages to be awarded to the plaintiff, I wish to say, that, in my view, where a third party is shown to have intruded, sexually, upon a marriage and to have contributed to the breach of duty of marital fidelity which each spouse owes the other, by committing adultery with one spouse, the courts, in the absence of mitigating circumstances, should be seen, in their award of damages, to come down hard on the adulterer or adulteress as opposed to treating him or her with kid gloves for a variety of expedient reasons.”

Precedents in the Zimbabwean jurisdiction reveals that adultery damages are underpinned on the preservation of the sanctity of marriage.

The Matrimonial Causes Act [Chapter 5:13] provide sanction issues of divorce and distribution or apportionment of property. Divorce is granted in circumstances where it would have been shown that the marriage has irretrievably broken down.

Adultery is still a recognised ground of divorce, and, as such, it is still part of our law.

Section 5(1) and 2(b) of the Matrimonial Causes Act reads as follows:

“(1) An appropriate court may grant a decree of divorce on the grounds of irretrievable break down of the marriage if it is satisfied that the marriage relationship between the parties has broken down to such an extent that there is no reasonable prospect of restoration of a normal marriage relationship between them.

(2) Subject to subsection (i) and without prejudice to any other facts or circumstances which may show the irretrievable break-down of a marriage, an appropriate court may have regard to the fact that -

(a)…,.

(b) The defendant has committed adultery…,. which the plaintiff regards as incompatible with the continuation of a normal marriage relationship.”

Since adultery is considered as a ground for divorce, then, it would be a contradiction to consider the delictual claim for adultery damages as irrelevant.

The Maintenance Act [Chapter 5:09] also seeks to taint adultery. Section 10 of the Maintenance Act, on adultery, reads:

“Where a spouse is proved to have committed adultery before or after making an order and such adultery has not been condoned, the Maintenance Court may refuse to make an order for maintenance in favour of such spouse or may discharge an order for maintenance made in favour of such spouse.”

Thus, clearly, for all intents and purposes, the legislature, as it currently stands, condemns adultery.

As will later be shown when we look closely at the relevant constitutional provisions adultery damages are still relevant in our societal and legal context.

Worth noting is the fact that superior courts, inclusive of the High Court, have inherent jurisdiction to protect and regulate their own process and develop common law in so far as the interests of justice are maintained: see section 176 of the Constitution.

In the case of Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143 GUBBAY ACJ…, stated that;

“…, law in a developing country cannot afford to remain static…, it must adapt itself to fluid economic and social norms as and values and to altering views of justice.”

In making that pronouncement, he did not seek to usurp the legislature's function of making the law. Rather, he buttressed the need to develop the common law taking into account the societal interests which are the interests of justice.

This observation I make is made clear when one considers the facts of Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143.

The court in that case had to answer the question whether a wife married under an unregistered customary union has a right of support and thus a right to compensation for loss of support.

The court had to do away with discrimination between a customary law marriage and a civil marriage. The court had to protect the interests of widows who are married under customary law by developing customary law to allow widows of customary law marriages to have a claim against third parties for the wrongful death of their spouse.

My understanding of the reasoning in Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143 is that the court, in the interests of justice, can develop common law, but, that this does not amount to usurping the legislature's function of making law.

The same sentiments were echoed by KENTRIDGE AJ…, in Du Plessis and Others v De Klerk and Another (1966) ZACC 10 1996 (3) SA 850 quoting R v Salituro (1992) 8 CRR 2nd 173 when he remarked that:

“Judges can, and should, adapt the common law to reflect the changing, social, moral, and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law…,. In a constitutional democracy such as ours, it is the legislature, and not the courts, which has the major responsibility for law reform…,. The judiciary should confine itself to these incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.”…,.

Clearly, courts have a duty to develop the common law whenever it is warranted and in conformity with the interests of justice.

Having made the observation that adultery is still part of our law, from precedents, and legislative provisions, it is important to turn to the Constitutional provisions which show that adultery claims are very much in sync with the present day social and legal reality in Zimbabwe.

Public policy is now infused with Constitutional values and norms.

It is apparent public policy often represents the legal convictions of the community. It reflects those values that are held dearly by a society.

To that extent, therefore, in deciding whether a delictual claim of adultery damages is constitutional or otherwise, while appreciating and respecting foreign jurisdictions' decisions, the decision should be contextualised to reflect the legal convictions and societal values.

Section 2(1) of the Constitution of Zimbabwe is relevant and speaks volumes in respect of societal values. It reads:

“This Constitution is the supreme law of Zimbabwe and any law, practice, custom or contract inconsistent with it is invalid to the extent of the inconsistency. The obligation imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions, and agencies of Government at every level, and must be fulfilled by them.”

Section 3 of the same Constitution, which is the supreme law of the country, outlines the values and principles on which the Constitution is founded.

A reading of the whole section clearly reveals that the Constitution recognizes and accepts that the Zimbabwean moral fabric is engraved in the country's culture, religion, and traditional values.

Any development of the common law, therefore, ought to be underpinned on the interests of justice, and, of course, in conformity with the Constitution.

The institution of marriage is entrenched deeply in the country's culture, tradition, and religion and its protection has been, in un-ambiguous language, propagated by the courts: see Katsumbe v Buyanga 1991 (2) ZLR 256 and Mapuranga v Mungate 1997 (1) ZLR 64.

In both cases, the courts frowned on the wrongfulness of adultery in so far as it is a threat to the marriage institution.

MALABA J…, in Mapuranga v Mungate 1997 (1) ZLR 64 held:

“Adultery is still prohibited by public opinion as an act of sexual incontinence.”

Given the people-driven Constitution process which took place in Zimbabwe, that observation by MALABA J…, still holds true as confirmed by protection of the marriage institution in the Constitution of Zimbabwe Amendment (No 20) Act 2013.

Section 78 thereof recognizes the marriage institution.

This gives a public complexion to the marriage institution. The nation of Zimbabwe has a duty to protect the marriage institution, and, obviously, third parties encroaching into a marriage are also part of the nation.

This takes me to the purpose of adultery damages, being protection of the marriage institution.

My reading of RH and DE (C594/2013) (2014) ZA SCA 133 reveals, to a great extent, the court proceeded on the premise that the import of the delict is to restore a marriage or to prop it up.

In my view, and with all due respect, this is not the consideration.

This marks a point of departure.

The point which must be made is that the import of the delict, in the interest of protection of the marriage institution, is also of Constitutional interest or national interest given the values under which our Constitution is underpinned.

Adultery damages are to compensate the innocent party to a marriage for their loss of consortium and contumelia. When an award for damages for adultery is made, the innocent party is not precluded from suing for divorce or condoning the wrong by the other spouse and forging ahead with the marriage.

It is accepted marriage and family are social institutions of vital importance. They have more than personal significance, as shown by the constitutional protection of the morally underpinned relationship. The Constitution would not seek to protect the marriage institution if the duty for the sustenance of the institution was wholly for the parties, at least in the Zimbabwean context, given the importance placed by society on the marriage institution.

The argument, that, the delict brings about indignity on the third party and that it infringes on the rights of the third party cannot be sustained when from the perspective of its invasion of the marriage institution.

The marriage institution is protected by the society and the nation in the Constitution.

In circumstances where a third party is prepared to violate the marriage institution, they cannot be seen to complain of their dignity being impaired when they would have violated the very institution they vowed to protect through the constitutional values.

The invasion of a marriage by a third party, in the Zimbabwean context, is an attack on the dignity of the innocent party. The dignity of the adulterer ought not to be more important than that of an innocent party to a marriage.

The dignity and right to privacy of all citizens is not absolute as the Constitution, in section 86, is instructive on limitation of fundamental human rights and freedom. Section 86(1) and (2) is instructive. It reads:

“1. The fundamental rights and freedoms set out in this Chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons….,.

2. The fundamental rights and freedoms set out in this chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality, and freedom, taking into account all relevant factors including -

(a) The nature of right or freedom concerned;

(b) The purpose of the limitation, in particular, whether it is necessary in the interest of…, public morality…,or the general public interest.”

It is made abundantly clear that rights, as given by the Constitution, have to be responsibly enjoyed. Everyone has the duty to respect the fundamental human rights and freedoms as entrenched in the Constitution.

In casu, the defendant has rights to dignity, privacy, and equality before the law, which are the same rights the plaintiff has. What remains is the balancing act on whether there is an intrusion on the other's rights which would require the delictual sanction.

To argue, that, dealing with an adultery damages claim trial, would infringe on privacy of the defendant as issues of intimacy would be delved into, amounts to barring prosecution of all matters of a sexual nature.

One needs not go further by giving examples of cases of rape which necessarily involve divulging of intimate details of how the sexual violation would have occurred. Even divorce matters, parties seek to prove irretrievable breakdown by divulging lack of sexual intimacy for specified periods.

Adultery entails intrusion into an innocent spouse's intimate relationship without the innocent's spouse's consent. Certainly, that does not mean the intruding party's rights supersede the rights of the innocent spouse.

The investigation into the alleged adultery is to assess if indeed the intrusion is genuine, and, if so, to assess the quantum of damages so as to compensate the wronged innocent spouse.

There is nothing unconstitutional, in my view, in carrying out the investigative part, moreso when one considers the purpose of adultery damages.

The potential infringement of dignity and privacy should not be viewed in isolation of the rights of the innocent spouse in a marriage.

Section 56 of the Constitution is to the effect, that, all persons are equal before the law and have equal protection and benefit of the law.

My reading of that section does not reveal that wrongful conduct is sanctioned by the law.

The Constitution clearly affords protection to all regardless of their social status.

It is not only a fallacy, but also unrealistic, to impute that a claim for adultery damages by an innocent spouse discriminates on the basis of marital status. This is for the obvious reason that adultery damages claims are not only targeted against unmarried persons. The claim is against a third party, married or not married, who is alleged to have intruded into the marriage institution at the expense of the innocent spouse.

The action for adultery damages is, as a matter of fact, not limited to unmarried third parties only.

From the above discussions, it is apparent that the defendant has not managed to prove that the claim for adultery damages offends against the Zimbabwean Constitution.

What is clear is that other jurisdictions have, in part or fully, done away with the delict or tort of adultery.

Whereas, it is important to take note and appreciate what is going on in other jurisdictions, it is of paramount importance to apply the principle in the context of our nation as a constitutional democracy.

Public policy, as reflected in our Constitution, depicts our values as a nation.

The protection of the family and marriage institutions is encapsulated in the Constitution.

It is my considered view, that, society, which was involved in the Constitution-making process, still views adultery negatively. The divorce law in Zimbabwe is based on the irretrievable breakdown principle. Adultery is one of the considerations under section 6 of the Matrimonial Causes Act.

Whereas the innocent party cannot sue their spouse for adultery for the obvious reason they (underlying the marriage relationship) also have an option to divorce or condone and move on: the fundamental question is - what should happen to the third party who would have intruded?

It is the law which ought to retain a legal outlet to the aggrieved spouse. The Zimbabwean Constitution, and subservient law, still permit redress by claims for adultery damages. The damages are meant to compensate for the occasioned contumelia and loss of consortium.

Adultery is still a consideration in our law for divorce, and, as such, given our Constitutional provisions on the rights, freedoms, protection of the marriage and family institution, one cannot just, in the abstract, from foreign jurisdictions with different societal values, declare an otherwise legitimate claim illegitimate.

The remarks and sentiments by Hon. ROBINSON J in Katsumbe v Buyanga 1991 (2) ZLR 256 still hold true today. I subscribe to the same sentiments where he remarked;

“Hopefully, we have not reached the stage where we have to be told adultery is not something to be eschewed and condemned. Accordingly, unless they are prepared to take a strong and principled stand in this regard in support of the vital institution of marriage, the court will only be party to society's further slide down the slippery slope to the unlicensed promiscuity which scoffs at the spiritual prohibitions against premarital and extra marital sex and which has landed the world in the sexual moral over which monsters, AIDS, now presides in all its frightening aspects.”

See also the case of Elizabeth Tanyanyiwa v Lindiwe Huchu HH668-14.

I wish to add my voice, that, it must be remembered that marriage and family remains the basic structure of our society, the preservation of which squarely lies on the couple and the nation as per our Constitution.

The third party, who, with knowledge, intrudes into the marriage institution, ought to compensate the innocent spouse for the injury occasioned.

It goes without saying, adultery is almost always debilitating for the victimised spouse who suffers indignity and hurt because of the adultery. The importance of the marriage and family social institutions cannot be underplayed, moreso given that the relationship is not only significant to the individuals concerned but also for the public at large.

In my view, marriage is a human institution which is regulated by law and protected by the Constitution, which, in turn, creates genuine legal duties.

See also the case of Dawood and Another v Minister of Home Affairs and Others, Shalabi and Another v Minister of Home Affairs and Others, Thomas and Another v Minister of Home Affairs and Others (2000) ZACC 8; 2000 (3) SA 936 (OC); 2000 (8) BCLR 837 (CC).

The court therein alluded to the importance of marriage and family institution, and O'REGAN J had this to say;

“Marriage and family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties…,. Such relationships are of profound significance to the individuals concerned. But, such relationships have more than personal significance, at least in part, because, human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well…,.”…,.

It can clearly be deduced, therefore, that a marriage institution has both the private and public complexion, hence the need for its protection.

Any deliberate intrusion into the marriage institution is an attack on the dignity of an innocent spouse which ought to be sanctioned by the law.

In my considered view, the bonis mores or legal convictions of our society have not changed so much that adultery could objectively be regarded as reasonable and thus it remains unlawful. The legal and public policy in Zimbabwe are still reflective of adultery as wrongful. This is moreso given our legislative and Constitutional provisions which are inclined towards protection of the marriage and family institution.

The marriage institution is founded upon morals, and the Constitution, which is the supreme law of the country, protects that very morally underpinned relationship. Intrusion in the marriage institution by adultery therefore remains wrongful and there is nothing unconstitutional about an adultery damages claim.

Accordingly, it is ordered that:

1. The application to have adultery damages claim declared unconstitutional is dismissed with costs.

2. The plaintiff's claim for adultery damages is properly before the court.

Back Main menu

Law Portal
Zimbabwe

Constitutional Rights re: Expression and Dignity

CC02-14 : NEVANJI MADANHIRE and NQABA MATSHAZI vs ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA and GUVAVA JA

CC11-15 : ARTHUR MUTAMBARA vs THE ATTORNEY GENERAL OF ZIMBABWE and COMMISSIONER GENERAL OF POLICE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and MAVANGIRA AJCC

SC14-13 : CONSTANTINE CHIMAKURE and VINCENT KAHIYA and ZIMIND PUBLISHERS (PVT) LTD vs THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

SC14-13 : CONSTANTINE CHIMAKURE and VINCENT KAHIYA and ZIMIND PUBLISHERS (PVT) LTD vs THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

CC09-16 : BENARD WEKARE and MUSANGANO LODGE (PVT) LTD t/a MUSANGANO LODGE vs THE STATE and THE ATTORNEY GENERAL OF ZIMBABWE and ZIMBABWE BROADCASTING CORPORATION
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

HB126-16 : MOVEMENT FOR DEMOCRATIC CHANGE–T vs OFFICER COMMANDING BYO CENTRAL DISTRICT POLICE N.O. and THE COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE N.O. and THE MINISTER OF HOME AFFAIRS N.O.
Ruled By: MAKONESE J

HB129-16 : FANELE MAQELE and ALDRIN NYABANDO and TENDAI WARAMBWA vs VICE CHANCELLOR, PROFESSOR N.M BHEBHE N.O. and MIDLANDS STATE UNIVERSITY
Ruled By: MATHONSI J

SSC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X
Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAFUSIRE J

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE
Ruled By: MWAYERA J

Categories

Law Portal Zimbabwe

Constitutional Rights re: Expression and Dignity

CC02-14 : NEVANJI MADANHIRE and NQABA MATSHAZI vs ATTORNEY-GENERAL Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA and GUVAVA JA

CC11-15 : ARTHUR MUTAMBARA vs THE ATTORNEY GENERAL OF ZIMBABWE and COMMISSIONER GENERAL OF POLICE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and MAVANGIRA AJCC

SC14-13 : CONSTANTINE CHIMAKURE and VINCENT KAHIYA and ZIMIND PUBLISHERS (PVT) LTD vs THE ATTORNEY-GENERAL OF ZIMBABWE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

SC14-13 : CONSTANTINE CHIMAKURE and VINCENT KAHIYA and ZIMIND PUBLISHERS (PVT) LTD vs THE ATTORNEY-GENERAL OF ZIMBABWE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

CC09-16 : BENARD WEKARE and MUSANGANO LODGE (PVT) LTD t/a MUSANGANO LODGE vs THE STATE and THE ATTORNEY GENERAL OF ZIMBABWE and ZIMBABWE BROADCASTING CORPORATION Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

HB126-16 : MOVEMENT FOR DEMOCRATIC CHANGE–T vs OFFICER COMMANDING BYO CENTRAL DISTRICT POLICE N.O. and THE COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE N.O. and THE MINISTER OF HOME AFFAIRS N.O. Ruled By: MAKONESE J

HB129-16 : FANELE MAQELE and ALDRIN NYABANDO and TENDAI WARAMBWA vs VICE CHANCELLOR, PROFESSOR N.M BHEBHE N.O. and MIDLANDS STATE UNIVERSITY Ruled By: MATHONSI J

SSC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES Ruled By: MAFUSIRE J

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE Ruled By: MWAYERA J

Categories

Your Donation.

Law Portal
Zimbabwe

CC02-14 : NEVANJI MADANHIRE and NQABA MATSHAZI vs ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA and GUVAVA JA

CC11-15 : ARTHUR MUTAMBARA vs THE ATTORNEY GENERAL OF ZIMBABWE and COMMISSIONER GENERAL OF POLICE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and MAVANGIRA AJCC

SC14-13 : CONSTANTINE CHIMAKURE and VINCENT KAHIYA and ZIMIND PUBLISHERS (PVT) LTD vs THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

SC14-13 : CONSTANTINE CHIMAKURE and VINCENT KAHIYA and ZIMIND PUBLISHERS (PVT) LTD vs THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

CC09-16 : BENARD WEKARE and MUSANGANO LODGE (PVT) LTD t/a MUSANGANO LODGE vs THE STATE and THE ATTORNEY GENERAL OF ZIMBABWE and ZIMBABWE BROADCASTING CORPORATION
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

HB126-16 : MOVEMENT FOR DEMOCRATIC CHANGE–T vs OFFICER COMMANDING BYO CENTRAL DISTRICT POLICE N.O. and THE COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE N.O. and THE MINISTER OF HOME AFFAIRS N.O.
Ruled By: MAKONESE J

HB129-16 : FANELE MAQELE and ALDRIN NYABANDO and TENDAI WARAMBWA vs VICE CHANCELLOR, PROFESSOR N.M BHEBHE N.O. and MIDLANDS STATE UNIVERSITY
Ruled By: MATHONSI J

SSC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X
Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAFUSIRE J

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE
Ruled By: MWAYERA J