At the conclusion of the hearing of this matter in the High Court, the court, inter alia, granted absolution from the instance in respect of the appellant's claim for general damages, future expenses, and replacement value for his motor vehicle.

It is only against that portion of the judgment that the appellant has appealed to this Court.

The facts of this case are as follows:

On 23 July 2006, the appellant was involved in a serious road accident with the respondent at the intersection of Breach Road and Kingsmead Road in Borrowdale, Harare. As a result of the accident, the appellant sustained serious injuries. He was conveyed to Parirenyatwa Hospital whilst in a coma. Thereafter, he was detained in the High Dependency Unit for seventeen (17) days. He spent seven-and-a-half months at St. Giles Rehabilitation Centre. He spent a total of about one-and-half years undergoing hospitalization.

It was accepted, during the trial, that, prior to the accident, the appellant had been active in sport and that he had been in charge of sport and discipline at St Johns College, Borrowdale. In particular, he was in charge of rugby, swimming, hockey, and athletics at the school.

The court a quo found, on the evidence, that the accident was the result of gross negligence on the part of the respondent.

In considering the appellant's claim for general damages, the court a quo found, as a fact, that the appellant will require surgical operations, regular physiotherapy, and medication for the rest of his life. The court also found that he experiences weaknesses of the forearm and arm on the left side and that he will suffer from pain for a very long time.

A report prepared by Professor Kalangu stated that the lower plexus should show good improvement but did not indicate to what extent he was likely to improve. The court was of the view, that, in the absence of evidence from the two doctors who attended to the appellant, the extent of his disability was debatable.

On that basis, the court a quo granted absolution from the instance.

On the question of future medical attention, the court accepted that the appellant will require transport to attend physiotherapy and rehabilitation and that he will require future medical attention. However, the court reached the conclusion that the plaintiff had failed to show how many sessions he would be required to undertake to enable the court to assess the future expenses that he was likely to incur.

On that basis, the court also granted absolution from the instance.

On the question of the replacement value of the motor vehicle, the court a quo came to the conclusion that since delictual damages are calculated as at the time of the delict, the appellant had failed to explain, satisfactorily, the delay between the time of issuance of the summons and the time when quotations were obtained.

In particular, the court was of the view that consideration of factors such as inflation in the calculation of delictual damages would amount to altering the quantum of the debt and would be in conflict with the principle of currency nominalism.

As a result, the court a quo also granted absolution from the instance.

In his grounds of appeal, the appellant has attacked the decision of the court a quo on three bases. These are:

1. That the court a quo erred in failing to consider the evidence placed before it and thereafter to exercise its discretion to make an award for general damages in favour of the appellant.

2. The court a quo erred in failing to consider the evidence placed before it and thereafter in exercising its discretion to make an award for future medical expenses in favour of the appellant.

3. The court a quo erred in applying the principle of currency nominalism and in failing to exercise its discretion to make an award in favour of the appellant for the replacement value of his motor vehicle.

The appellant seeks an order that paragraph 2 of the order of the court a quo be set aside and that the respondent be ordered to pay;

(a) The sum of US$50,000, being the equivalent of Z$1 billion as at the date of judgment, as general damages together with interest thereon at the rate prevailing in the United States of America from the date of judgment to date of payment in full;

(b) The sum of US$5,000, being future medical expenses together with interest thereon at the rate prevailing in the United States from the date of judgment to the date of payment; and

(c) The sum of US$8,000 being the replacement value of the appellant's motor vehicle.

It is appropriate, at this stage, to consider the approach that has been followed by the Courts in the assessment of damages in general, and special damages in particular.

In Hersman Shapiro & Co 1926 TPD 367, 379-80 STRATFORD J observed:

“…, monetary damage having been suffered, it is necessary for the Court to assess the amount and make the best use it can of the evidence before it.

There are cases where the assessment by the Court is very little more than an estimate; but, even so, if it is certain that pecuniary damage has been suffered, the Court is bound to award damages. It is not so bound in the case where evidence is available to the plaintiff which he has not produced; in those circumstances, the Court is justified in giving, and does give, absolution from the instance.

But, where the best evidence available has been produced, though it is not entirely of a conclusive character and does not permit of a mathematical calculation of the damages suffered, still, if it is the best evidence available, the Court must use it and arrive at a conclusion based upon it…,.”

In Ebrahim v Pittman N.O. 1995 (1) ZLR 176H, 187C-D BARTLETT J quoted with approval the remarks of BERMAN J in Aarons Whale Rock Trust v Murray & Roberts Ltd & Anor 1992 (1) SA 652 (C), 655H-656F that:

“'Where damages can be assessed with exact mathematical precision, a plaintiff is expected to adduce sufficient evidence to meet this requirement. Where, as is the case here, this cannot be done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so as to enable the court to quantify his damage to make an appropriate award in his favour. The court must not be faced with an exercise in guesswork; what is required of a plaintiff is that he should put before the court enough evidence from which it can, albeit with difficulty, compensate him by an award of money as a fair approximation of his mathematically unquantifiable loss.…,.'

There must of course be sufficient evidence before the court for it to be in a position to make a proper assessment of damages; for '…, it is not competent for a court to embark upon conjecture in assessing damages where there is no factual basis in evidence, or an inadequate factual basis, for an assessment, and, it is not competent to award an arbitrary approximation of damages to a plaintiff who has failed to produce available evidence upon which a proper assessment of the loss could have been made': per ROSE INNES AJ in Monumental Art Co v Kenston Pharmacy (Pty) Ltd 1976 (2) SA 111 (C) at 118E. See also Mkwananzi v Van der Merwe & Anor 1970 (1) SA 609 (A) at 630.

Thus, where evidence is available to a plaintiff to place before the court to assist it in quantifying damages, and this is not produced, so that it is impossible for the court to do so, or there is no, or quite insufficient evidence which can be produced by an unfortunate plaintiff, he must fail and the defendant must be absolved from the instance…,.”

In, The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT, the learned authors state as follows…,:

“In the case of damages which are capable of exact mathematical computation, such as, for example, medical and hospital expenses, proper evidence establishing the loss and substantiating the precise amount of the claim must be tendered.

Where, on the other hand, mathematical proof of the damages suffered is in the nature of things impossible, then, provided that there is evidence that pecuniary damage in this regard has been suffered, the court must estimate the amount of the damages as best as it can on the evidence available and the plaintiff cannot be non-suited because the damages cannot be exactly computed.

However, the application of this principle is dependent upon the plaintiff having adduced the best evidence available to him. Where he has not done so, and the difficulties in assessing the quantum of damages are due to the manner in which he has conducted his case, then the court is justified in ordering, and does order, absolution from the instance.”

The remarks made in the authorities cited above no doubt correctly reflect the law on the approach to damages in bodily and fatal injury cases both in this country and South Africa.

The first ground of appeal that falls for determination by this Court is whether the court a quo erred in failing to consider the available evidence, and, thereafter, making an award for general damages in favour of the appellant.

The amount claimed as general damages before the court a quo was the sum of Z$1 billion as at the date of judgment. The Z$1 billion claimed represented damages for pain and suffering, disability, bodily disfigurement, shock, discomfort, loss of amenities of life, and shortened life expectancy.

The court a quo delivered its judgment on 16 April 2009, and, in respect of this particular claim, granted absolution from the instance. The basis for that decision was that the remark by Dr Kalangu, in his report, that, “lower plexus should show good improvement”, was imprecise. The court a quo was of the view that it was not clear to what extent the improvement would affect the degree of disability. Further, although the report alluded to the need for a repeat study after six months, no such examination appears to have been undertaken. In view of the medical opinion that the appellant's condition could improve with rehabilitation and treatment, the court concluded that the extent of the disability was debatable, and that, therefore, the appellant had not placed sufficient evidence before the court to enable it to make a proper assessment.

It is correct, as the court found, that no further tests were done to ascertain the degree to which the appellant was likely to recover. The fact that the appellant had sustained very serious injuries from which he could never fully recover was common cause. The court accepted, that, following the accident, he had had to be hospitalized for about one-and-a-half years. The court accepted the report by Dr Kalangu, that, the appellant had sustained “complete paralysis of the left and complete paralysis of both lower limbs” (sic). The radiological investigations had revealed a fracture of the left clavicle, fracture of the spine in C5 and C6 and dislocation of the vertebra in C5-6 associated with spinal cord compression. Dr Kalangu estimated the percentage of disability at 60%. He further found that the appellant will have pain for a long time and he will require physiotherapy.

The court also accepted the report by Professor Meikle, of the Clinical Neurophysiology Laboratory, Harare Hospital, that the appellant had weakness of all the muscle groups in the left arm with no movement in the shoulder and elbow muscles. The Professor found the upper plexus to have been seriously injured with no sign of recovery “at present” but the lower plexus was expected to show good improvement.

Although the Professor recommended repeat studies in six months, as already noted, nothing further appears to have happened after the preparation of that report.

The court a quo found that the accident had had a serious effect on the appellant, who, before the accident, had been in charge of sport at St Johns College, Borrowdale, and had generally been active in short. His condition, after the accident, had also affected his relationship with his daughter, who, it appeared, simply could not understand why her father could no longer engage in the activities he used to.

The court a quo further accepted, as fact, that the appellant will, for the rest of his life, require medical attention, including operations, regular physiotherapy, and medication.

It certainly would have helped had the appellant undergone further examination thereafter so that the exact degree of his injuries could have been ascertained. This notwithstanding, the evidence placed before the court, in my view, was sufficient to enable the court to make an award.

As WATERMEYER JA aptly put it in Sandler v Wholesale & Coal Supplies Ltd 1941 AD 194, 199:

“…, it must be recognized that though the law attempts to repair the wrong done to a sufferer who has received personal injuries in an accident by compensating him in money, yet, there are no scales by which pain and suffering can be measured, and there is no relationship between pain and money which makes it possible to express the one in terms of the other with any approach to certainty. The amount to be awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must necessarily be uncertain, depending upon the judge's view of what is fair in all the circumstances of the case.”

The extent of the injuries sustained was substantiated.

The doctors suggested that there was some possibility of improvement but this could only be determined if a repeat study was carried out at a later stage. During the trial, the appellant said nothing about such a repeat study. The court itself did not ask in order to clarify the situation.

The failure to lead evidence on this should not have resulted in the appellant being non-suited.

As stated in The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT…, in a case such as the present, a Court does not grant absolution but may tend towards conservatism in assessing the damages. The learned authors state:

“The general attitude of the court has been that if there if evidence upon which an estimate, not unfair to the defendant, can be made, it should not refuse to make an award merely on account of the deficiencies in the case presented upon the plaintiff's behalf. Nevertheless, the failure to adduce such evidence would normally operate to the disadvantage of the plaintiff, in that, in its absence, the court would normally tend towards conservatism in computing the damages.”

In my view, this is the approach that the court a quo should have adopted.

I would agree with the appellant that the finding of absolution in these circumstances resulted in an injustice.

It is not uncommon, in claims for general damages, for a plaintiff to claim, and a Court to award, individual damages for pain and suffering, disfigurement, loss of amenities of life, and shortened life expectancy: see The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT…,.

The finding of absolution must therefore be set aside.

The amount claimed, as at the date of commencement of the trial in October 2008, was the sum of Z$1 billion.

Judgment was given six months later, in April 2009.

At the time, the country was gripped by a hyperinflation environment which quickly eroded the value of money. In February 2009, however, the multiple currency system was introduced. Whilst the Zimbabwean dollar remained legal tender, it is a fact that transactions in the local currency ceased effectively rendering the Zimbabwean dollar valueless.

At the time that the court was asked to make its determination, the appellant was seeking the sum of Z$1 billion. It is that claim that should have been considered by the court a quo.

In terms of section 6 of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations S.I.6 of 2009 financial institutions were instructed to accept, between 2 February 2009 and 30 June 2009, Old Zimbabwean currency at the rate of one trillion dollars for one dollar of the new currency system.

In terms of section 8 of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations S.I.6 of 2009, debts incurred before 2 February 2009 were deemed to have been incurred, entered, created, or transferred in terms of the old currency system and were to be settled, discharged, or liquidated in terms of the old currency system provided, however, that, on or after 1 July 2009 every debt was to be settled, discharged, or liquidated in terms of the new currency system only.

In the definition section, “debt” includes anything which may be sued for or claimed by reason of any obligation arising from statute, contract, delict, or otherwise.

By operation of the law, therefore, the claim by the appellant, for general damages, in the sum of Z$1 billion stood to be dealt with in terms of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations.

The one billion dollars claimed under the old currency equated to a fraction of a cent under the new currency system.

Considering the extent of the injuries sustained by the appellant, the claim for damages in the sum of Z$1 billion may not have been an unreasonable sum at the time of commencement of the trial proceedings. However, the law, through the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations (Statutory Instrument 6/09), has converted what would otherwise have been a substantial claim to a most trivial one.

The result is obviously a most unfair one and the appellant, and the general public, would be excused for thinking that there is something seriously wrong with the law or at least the way it works.

The legislature should have been alive to the obvious injustices that were to follow especially because, on 1 February 2009, the Government introduced the multiple currency system under which it became possible to enter into transactions denominated in other currencies: see section 17 of the Finance (No.2) Act 2/09.

The Finance (No.2) Act 2 of 2009 regularized the introduction of other foreign currencies as legal tender with effect from 1 February 2009.

This matter was filed as an urgent chamber application in terms of Rule 241 of the High Court Rules. The applicants were seeking the following urgent relief:

“Pending the confirmation or discharge of the provisional order, the following provisional order is granted:

1. The Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations, 2008, SI43/2008, published in Government Gazette Extra Ordinary on 17 March 2008, shall not be applied in respect of the elections on 29 March 2008.

2. Section 59 and 60 of the Electoral Act [Chapter 2:13] as amended by the Electoral Laws Amendment Act, 2007 (Act 17/2007) shall not be applied in respect of elections to be held on 29 March 2008.

3. Illiterate persons and persons with disabilities or otherwise incapacitated voters, where necessary, and at their request, shall be allowed assistance in voting by a person of their own choice.”

I dismissed the application with costs after hearing submissions. The parties have requested reasons for my decisions. These are they.

The facts in this matter are set out in the applicants founding affidavits and may be summarized as follows:

The first and second applicants are visually impaired. The third applicant is physically handicapped and does not have the use of his arms and legs (though it was noted that his application was purportedly signed by him before a Commissioner of Oaths).

The respondent is the Minister for Justice Legal and Parliamentary Affairs responsible for the implementation of provisions of the Electoral Act.

The applicants are all registered voters and wish to exercise their rights at the elections on 29 March 2008. The applicants have submitted that their rights are being violated as they are obliged, in terms of the law, to seek assistance from strangers who will be presiding at the polling station. They averred that the provisions as set out in section 59 and 60 of the Electoral Act and amended by the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 were unconstitutional.

The application was opposed.

Counsel for the respondent submitted;

(i) Firstly, that the matter was not urgent; and

(ii) Secondly, that the relief that the applicants were seeking was not capable of being granted as a court cannot suspend a provision of an enactment.

(iii) She further submitted that as the matter raised a constitutional point it should be determined by the Supreme Court.

(iv) She also submitted that the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 had been enacted in accordance with the provisions of the enabling Act.

URGENCY OF APPLICATION

The urgency in relation to the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 (the Presidential Powers Regulations) has also not been adequately explained.

The applicants complain, in the submissions, and Heads of Arguments (which were filed after the hearing), that the applicants would not be able to cast their vote freely as they cast doubt on the impartiality of the police officers manning the polling stations.

It seems to me that the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 cannot be looked at in isolation.

An examination of sections 59 and 60 of the Electoral Act as amended by the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 shows that persons in the position of the applicants will not be assisted by one person only but by at least four persons at the same time; that is, the presiding officer, two other electoral officers in addition to the police officer on duty.

The circumstances under which all four persons, acting together, would interfere with the applicants rights to freely cast their vote is, in my view, difficult to imagine nor has it been explained.

All four would have to conspire in relation to the visually impaired applicant to vote against their wishes and be agreed on whom they wanted to vote for.

In relation to the third applicant, the court has not been told that he cannot use mouth to mark the ballot paper against the candidates of his choice. If he could sign so elegantly he should surely be able to place an X on the ballot paper.

It seems to me, therefore, that the application cannot suddenly have become urgent merely because a fourth person has been included in the number of persons assisting illiterate and disabled voters.

The provisions of the Electoral Act rendering assistance to physically handicapped persons has always been in existence - even before the 2007 amendment. The position would have been different, in my view, had the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 sought to remove the other three persons who are already in the Electoral Act and substitute them with one person. However, this is not the position in this case.

For these reasons, I would therefore find that the application is not urgent and dismiss it on that basis.

Although I have dismissed the application on the basis of the preliminary point raised, I, however, wish to comment on the following issues which were raised in this application.

The applicant submitted that the interim relief should be granted on four grounds:

(i) It was submitted that the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 were ultra vires the Presidential Powers (Temporary Measures) Act [Chapter 10:20] as they were not made in accordance with section 2 of the Presidential Powers (Temporary Measures) Act.

(ii) Secondly, the provisions of the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 (Presidential Powers Regulations) seek to reintroduce the assistance of police officers which had been removed by the Electoral Amendment Act No.17 of 2007.

Counsel for the applicants submitted further that sections 59 and 60 of the Electoral Act were negotiated provisions between the political parties and it was wrong for the President to reintroduce it through the Presidential Powers Regulations.

(iii) It was further submitted that the President is also contesting the elections and the Presidential Powers Regulations may have been gazetted to further his interest.

(iv) Finally, the applicants submitted that the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 violated their rights as enshrined in the Constitution, UN Conventions on the Rights of Persons with Disabilities, the SADC Principles and Guidelines Governing Democratic Elections, and the AU Declaration On The Principles Governing Democratic Elections In Africa.

It is trite that once Regulations are published in terms of the Presidential Powers (Temporary Measures) Act they have the same force and effect, during their life span, as legislation passed by an Act of Parliament.

The applicant has asked that this court suspend the operation of the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 and sections 59 and 60 of the Electoral Act so that they are not applicable in the elections which are to take place tomorrow.

In the case of The Registrar General of Elections v Combined Harare Residents Association & Anor SC07-02 CHIDYAUSIKU CJ held that a court could not suspend the operation of any legislation. He states…, as follows:

“With respect, this is where the learned judge fell into error. The court cannot suspend the provisions of the Act for whatever purpose and no matter how desirable and plausible that may be. It is the legislature itself, and possibly an authority properly delegated, that can amend an Act of Parliament…,.”

It seems to me, therefore, that where provisions of an enactment may be void, whether on the basis of being unconstitutional or on the basis of being ultra vires the authority delegated by Parliament, they remain in full force until they have been declared void and set aside. 

The court cannot suspend their operation for a limited period - however compelling the reasons.

Section 15(1) of the Constitution provides that:

“(1) No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.”

In this case, the only relevant concepts are “torture”; “inhuman treatment” and “degrading treatment”. They make up the three key elements of the protection of a person's dignity and physical integrity from the prohibited treatment at the hands of public officials.

Section 15(1) of the Constitution enshrines one of the most fundamental values in a democratic society. Chahal v United Kingdom [1996] 23 EHRR 413…,. It is an absolute prohibition. It is because of the importance of the values it protects that the rules by which the prohibition imposes the obligations on the State are peremptory in effect. The most conspicuous consequence of this quality is that the principle at issue cannot be derogated from by the State - even in a State of public emergency: see section 25 of the Constitution.

The provision is subject only to the exercise by Parliament, when properly constituted, of the power under section 52 of the Constitution to amend, add to, or repeal any provision of the Constitution upon strict compliance with the procedure prescribed for the purpose: Mike Campbell (Pvt) Ltd v Ministry of Lands 2008 (1) ZLR 17 (S).

The principle of legality..., requires the Court to uphold conduct which is in accordance with law.

Section 39 of the Constitution, as read with Standing Order 6, has directed that the Clerk shall conduct an election of a Speaker by secret ballot but has not provided what should be the consequence of the non-compliance with this peremptory direction by Parliament.

This Court recently had occasion to deal with the issue of interpreting a statute that does not prescribe the consequences of non-compliance with a statutory provision in the case of Doctor Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor Judgment No. SC11-08.

In that case, I cited with approval a passage from BENNION Statutory Interpretation…, which sets out how courts should approach that issue.

The learned author states that a court charged with the enforcement of a statute that does not state the consequences of non-compliance needs to decide what consequence Parliament intended should follow from such failure to comply. In that case, I had this to say at pp21-23 of the cyclostyled judgment:

"It is the generally accepted rule of interpretation that the use of peremptory words such as 'shall' as opposed to 'may' is indicative of the legislature's intention to make the provision peremptory. The use of the word 'may' as opposed to 'shall' is construed as indicative of the legislature's intention to make a provision directory. In some instances the legislature explicitly provides that failure to comply with a statutory provision is fatal. In other instances, the legislature specifically provides that failure to comply is not fatal. In both of the above instances no difficulty arises.

The difficulty usually arises where the legislature has made no specific indication as to whether failure to comply is fatal or not.

In the present case, the consequences of failure to comply with the provisions of section 18 of the Zimbabwe Electoral Commission Act are not explicitly spelt out.

In those statutory provisions where the legislature has not specifically provided for the consequences of failure to comply, it has to be assumed that the legislature has left it to the Courts to determine what the consequences of failure to comply should be.

The learned author FRANCIS BENNION in his work Statutory Interpretation suggests that the courts have to determine the intention of the legislature using certain principles of interpretation as guidelines. He had this to say at pp21-22:

'Where a duty arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from breach of the duty.

This is an area where legislative drafting has been markedly deficient. Draftsmen find it easy to use the language of command. They say that a thing 'shall' be done. Too often they fail to consider the consequence when it is not done. What is not thought of by the draftsman is not expressed in the statute.

Yet the courts are forced to reach a decision.

It would be draconian to hold that in every case failure to comply with the relevant duty invalidates the thing done. So, the courts' answer has been to devise a distinction between mandatory and directory duties.

Terms used instead of "mandatory" include 'absolute', 'obligatory', 'imperative' and 'strict'. In place of "directory", the term 'permissive' is sometimes used. Use of the term 'directory' in the sense of permissive has been justly criticised: see CRAIES Statute Law (7th edn, 1971) p61 n74. However, it is now firmly rooted.

Where the relevant duty is mandatory, failure to comply with it invalidates the thing done. Where it is merely directory the thing done will be unaffected (though there may be some sanction for disobedience imposed on the person bound). {As to sanctions for breach of statutory duty see section 13 of this Code (criminal sanctions) and section 14 (civil sanctions)}.'

Thereafter, the learned author sets out some guiding principles for the determination of whether failure to comply with a statutory provision is fatal or a mere irregularity.

One of these guiding principles is the possible consequences of a particular interpretation. If interpreting non-compliance with a statutory provision leads to consequences totally disproportionate to the mischief intended to be remedied, the presumption is that Parliament did not intend such a consequence and therefore the provision is directory."

MAXWELL on The Interpretation of Statutes 12ed…, says much the same as the above cited excerpt from BENNION.

Parliament is presumed to be familiar with its own Acts. 

The corollary, that Parliament is ignorant of its own Acts, is simply untenable.

Thus, at the time of enacting Standing Order 6, in 2005, in terms of which the Clerk acted, Parliament was familiar with the provisions of section 177 of the Electoral Act, which was enacted earlier. 

This particular provision has been included in no less than nine electoral Acts in this country since 1928.

This is an urgent chamber application for stay of execution pending review. The relevant background to this matter is as follows:

On 14 December 2009, the Regional Court sitting at Harare convicted the applicant Bank of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced the applicant to pay a fine of $500 and also ordered the applicant to compensate the first respondent the sum of $250,000.

The learned Magistrate suspended the payment of the fine to the next day, 15 December 2009. Immediately after the sentence, the applicant noted an appeal against both conviction and sentence.

That appeal is still pending before this court.

Mr Clemence Zingoni, who deposed to an affidavit on behalf of the applicant says that he was shocked to hear, on 17 December 2009, that, on the same day, the second respondent, armed with a writ of execution together with a Bond of Indemnity, had been at the applicant's Head Office with the intent to attaching property in order to satisfy the Order of Restitution.

Mr Zingoni averred, that, the issuing of the writ was improper and unlawful, as, the effect of noting of an appeal against the magistrate's decision was to suspend its execution. The writ was therefore defective as it could not be issued in those circumstances.

It was Mr Zingoni's further contention that the value of the writ exceeded the jurisdiction of the Regional Magistrate as prescribed by Statutory Instrument 21 of 2009.

It was also contented, that, in terms of section 372 of the Criminal Procedure and Evidence Act [Chapter 9:07] any Court purporting to enforce a Restitution Order made in criminal proceedings can only do so if it has monetary jurisdiction in the first instance.

Following the service of the writ of execution on the applicant, its legal practitioners immediately filed an ex parte application, on 18 December 2009, in the Magistrate's Court, for stay of execution.

The application was dismissed by a magistrate on the same day.

Immediately thereafter, the applicant filed an application for review of the learned magistrate's judgment. That application for review was filed simultaneously with this application for stay of execution.

It is worthy noting, that, in its application for the review of the conduct of the learned magistrate who dismissed the ex parte application, the Messenger and the Clerk of Court, the applicant concedes, that, the noting of an appeal does not suspend the execution of any sentence of imprisonment, fine or community service as is provided in section 63 of the Magistrate's Court Act [Chapter 7:10].

However, the applicant's argument is that the Order which is subject of these proceedings is neither a term of imprisonment, a fine nor an Order for community service. It is an order for restitution. It is further argued that restitution is not specifically mentioned by the said Magistrates Court Act, and, therefore, in accordance with rules of interpretation, the express mention of the other forms of punishment excludes what is not stated in section 63 of the Magistrate Court Act....,.

It was further argued, that, the order of compensation, which prompted the writ of execution, had been suspended by the appeal which the applicant had filed.

Section 63 of the Magistrate Court Act provides as follows:

“The execution of any sentence of imprisonment, fine, or community service shall not be suspended by -

(a)…,.

(b) The noting of an appeal referred to in section sixty unless -

(1) In the case of imprisonment or fine, bail is granted by a judge or magistrate in terms of section 163 of the Criminal Procedure and Evidence Act [Chapter 9:07]; or

(2) In the case of community service, an application is granted by the magistrate to suspend the operation of the sentence pending determination of the appeal.”

What this means is that the payment of the fine is not suspended by the appeal.

The Magistrate Court Act does not, however, mention whether or not an order of compensation is suspended by an appeal.

In terms of section 370 of the Criminal Procedure and Evidence Act “a court which makes an award or order in terms of this Part may require the injured party to give security for repayment of the compensation or the return of the property, in case the award is reversed on appeal or review.”

This clearly suggests that payment of compensation is immediate and is not suspended by an appeal or review.

If an order of restitution was suspendable by an appeal or review, the legislature would not have provided for security to be given by the injured party. The need to provide security by the injured party pre-supposes that compensation would have been paid soon after the sentence is passed.

The next matter which the Constitution controls is the origin and quality of the provision by which the restriction is imposed on the exercise of the right to freedom of expression. It requires that any interference with freedom of expression must be 'contained in law.' The legislature alone may specify clearly and concretely in the law the actual limitations to the exercise of freedom of expression.

If the restriction on the exercise of freedom of expression is imposed by a decision or action of the judiciary or the executive, the decision or action must be under the authority of law. In the latter case, the validity of the law itself is not in issue.

Is the restriction on the exercise of freedom of expression imposed by section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] 'contained in law'?

It is a fundamental principle of constitutional law that any restriction which hinders the enjoyment of a fundamental right must be introduced by a legal provision. The grounds for the justification of the restriction must be found in the law by which it is imposed. Fundamental rights and freedoms and other constitutional values are protected by the fundamental law which is the supreme law of the land. Restrictions imposed on them must be consistent with the fundamental law otherwise they are void.

The requirement that the restriction on the exercise of the right to freedom of expression must be contained in law is expressive of and consistent with the principle of the rule of law. The principle is to the effect that every Governmental action which adversely affects the legal situation of persons in a free and democratic society must be justifiable by reference to an existing law.

No person shall be prevented, in a free and democratic society, from doing an act which is not prohibited by law at the time he or she does it. There cannot be a crime and punishment without law. What that means is that there must be first put in place a provision which meets all the characteristics of a legal norm by which the conduct to constitute a crime is defined and in terms of which the State may then interfere with the exercise of the right. There must be an offence prohibiting and defining in clear and precise terms what conduct is a crime. To act without a legal basis is to act arbitrarily and therefore unlawfully.

The 'rule of law' is an indispensable principle on which any free and democratic society is based. It is an integral part of the vision and way of life in a free society. Where there is rule of law there is peace, justice and freedom. Law plays its proper role only if it takes due account of all the three elements. It does not admit of the rule of man. No individual is above the law. In other words, what is envisaged is 'a Government of laws and not of men.' Bennett Coleman and Co. Ltd & Ors v Union of India & Ors AIR 1973 SC 106…,.

The words 'contained in…, any law' or 'done under the authority of any law' used in section 20(2) of the Constitution have been given meaning similar to that given to such equivalent phrases as 'provided by law', 'in accordance with the law', 'prescribed by law', 'determined by law' and 'in terms of law' used in international human rights instruments and Constitutions of other nations. In Chavunduka & Anor v Minister of Home Affairs & Anor 2000 (1) ZLR 552 (S)…., it was held that 'the meaning of these phrases is substantially the same.' They all refer to the legality of the positive law, that is to say the law which is binding on the executive and the judiciary. In fact, the word 'legality' is derived from the latin word 'legalis' which means 'in accordance with a law.'

The word 'legalis' is, in turn, derived from lex, which means 'law'. See CR SYMAN: 'Criminal Law' 2ed [1989]…,. The Constitution requires that the provision by which the restriction on the exercise of freedom of expression is to be imposed must have all the universally recognised characteristics of a legal norm.

In Regina v Therens [1985] 13 CRR 193 when interpreting the requirement of section 1 of The Canadian Charter of Rights and Freedoms to the effect that a limit on the exercise of freedom of expression must be 'prescribed by law' BROWNRIDGE JA…, said:

“The requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary. The limit will be prescribed by law within the meaning of s 1 if it is expressly provided for by statute or regulation or results by necessary implication from the terms of the statute or regulation or from its operating requirements. The limit may also result from the application of a common law rule.”

The applicants did not attack the restriction on the ground of the origin of the law-making provision for its imposition. They accepted that the measure is a product of the process and procedures for the exercise of the legislative powers by Parliament. They accepted that Parliament had the competence to legislate in respect of the subject-matter of the provision. Prima facie, the restriction is contained in law because it is provided for in section 31(a)(iii) of the Criminal Code.

The applicants attacked the quality of the law.

There is no question of breach of the rule of adequate accessibility. The law is published in a form accessible to those affected. The contention was that the provision is not a rule of law because the essential elements of the crime do not define the scope of the prohibited acts in a language which is sufficiently clear and adequately precise. A compliant law must, in accordance with the principle of legality, enable a person of ordinary intelligence to know, in advance, what he or she must not do and the consequences of disobedience. 

This is the requirement of foreseability of law.

It was argued that the restriction provided for cannot be regarded as 'contained in law' because the means or concepts by which it is defined and imposed suffer from the vice of unconstitutional vagueness.  The sufficiency of the precision of the definition of the acts prohibited in the exercise of the right to freedom of expression is not considered at this stage. It will be considered when the question of the relationship of proportionality between the restriction and the objective pursued by the legislation is determined.

Behind the requirement that restrictions on the exercise of the right to freedom of expression must be based in law lies an order of completeness allowing the complete extent of such restrictions to be identified on the basis of the interpretation of the provisions of the law. It is important that the concepts chosen to define the essential elements of the offence provide for the judiciary and the executive a workable means of enforcing the restriction.

Counsel for the applicants argued in support of the alleged unconstitutional vagueness of section 31(a)(iii) of the Criminal Code that the phrase 'real risk or possibility' refers to anything which can scientifically happen without necessarily being probable. The contention was that people often act without considering the circumstances of their behaviour to identify the existence of the real risk or possibility of an event occurring as a consequence of their conduct.

It was counsel for the applicants' submission that the use of the word 'false' introduces into the essential elements of the offence a concept which cannot describe the content of a statement with certainty. The argument was that the word 'false' was wide enough in meaning to embrace a statement which is merely incorrect or inaccurate. He argued that it is always difficult to conclusively determine total falsity.

Counsel for the applicants' argued, further, that the concept of 'public confidence' as the prejudicial consequence to the State with which the offence deals, is nebulous and susceptible of change as to render the offence unconstitutionally vague. He said as the offence does not relate to undermining the authority of the institution concerned it becomes difficult to ascertain the level of public confidence in the institution at any given time. According to counsel for the applicants', it is almost impossible to measure 'public confidence' in a public institution as it depends on such factors as the political and economic conditions of a country at any given time.

The rationale underlying the principle of unconstitutional vagueness of a statute is clear.

A law which does not meet the constitutional requirement of legality cannot be saved by section 20(2) of the Constitution. It is essential in a free and democratic society that people should be able, within reasonable certainty, to foresee the consequences of their conduct in order to act lawfully. The fact that one can, on a fair warning about what is criminal, dependably calculate action in advance is a very fundamental element of law, order, and therefore peace.

On the fair notice component of the rule against unconstitutional legislative vagueness, it is not enough that a person of average intelligence has had notice of the legislation. He or she must, on reasonable examination of its provisions, be able to appreciate that the law proscribes certain conduct and what that conduct is.

The Constitution insists that laws must give people of ordinary intelligence a reasonable opportunity to know what is prohibited so that they may act lawfully. The assumption is that man is free to steer between lawful and unlawful conduct. Once a person has a fair notice of what conduct is lawful, he or she is able to order his or her actions together with others thereby giving rise to order and stability in society.

The second component of the doctrine is based on the belief that if arbitrary and discriminatory enforcement is to be preventable laws must provide explicit standards for those who apply them. The discretion of those entrusted with law enforcement should be limited by clear and explicit legislative standards. This is especially important in the use of criminal law because people are potentially liable to deprivation of personal liberty if their conduct is in conflict with the law.

A vague law impermissibly delegates basic policy matters to policemen, prosecutors, and judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. So the legislature is prevented from passing arbitrary and vindictive laws. Grayned v City of Rockford 408 US 104 (1972)…,.; Reference Re Criminal Code sections 193 and 195 1(1)(C) (1990) 48 CRRI…,.

In Chavunduka & Anor v Minister of Home Affairs & Anor 2000 (1) ZLR 552 (S)…, GUBBAY CJ quoted with approval from Sunday Times v The United Kingdom (1979-80) 2E HRR 245…, where the majority of the European Court of Human Rights said:

“In the court's opinion, the following are two of the requirements that flow from the expression 'prescribed by law';

(i) First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. 

(ii) Secondly, a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able - if need be, with appropriate advice - to foresee to a degree that is reasonable in the circumstances, the consequences which a given action may entail. 

Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its trail excessive rigidity and the law must be able to keep pace with changing circumstances.”

Many laws are inevitably couched in terms which are to a greater or lesser extent vague. Their interpretation and application in many cases are questions of practice by the courts. The standard is one of sufficient clarity. It is not one of absolute clarity.

Counsel for the applicants' based his submissions on the need to apply the standard of absolute clarity in the interpretation of the word 'false' and the phrases 'real risk or possibility' and 'public confidence' used in section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

What degree of vagueness is acceptable largely depends on the circumstances.

A norm imposing restrictions on the exercise of the right to freedom of expression will be unconstitutionally vague if it fails to provide a standard for legal debate and discussion as to whether a particular conduct is in violation of it or not.

Section 15(1) of the Criminal Code defines the subjective concept of realization of a 'real risk or possibility' of an event resulting from unlawful conduct as consisting of two components:

“(a) A component of awareness, that is, whether or not the person whose conduct is in issue realised that there was a risk or possibility, other than a remote risk or possibility that -

(i) His or her conduct might give rise to the relevant consequence; or

(ii) The relevant fact or circumstance existed when he or she engaged in the conduct; and

(b) A component of recklessness, that is, whether despite realizing the risk or possibility referred to in paragraph (a) the person whose conduct is in issue continued to engage in that conduct.”

The Court respects the power of the legislature to define the terms it uses in a statute to make clear the meaning they should be given, consistent with the rule of law principle.

What is clear from the meaning the legislature intends the words to have in the context of section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is what they denote. They denote a test to be used to establish a subjective state of mind accompanying the publication or communication of a false statement relating to the security service institution referred to in the provision. The requisite state of mind is related to the aim of the unlawful conduct and the real likelihood of it materialising.

The prohibition provided for by section 31(a)(iii) of the Criminal Code is not concerned with the way the statement is published or communicated. It is concerned with what is published or communicated, the purpose of its publication or communication, and the effect the statement has or is likely to have on the audience.

Whether there is a 'real risk or possibility' of an event happening as a natural consequence of another is a question of fact provable by evidence. Whether or not an accused person had the requisite state of mind at the time he or she engaged in the prohibited conduct is a question to be determined by reference to the circumstances of the case. The circumstances would have been given rise to by the conduct of the accused in publishing or communicating the false statement. The presumption is that a rational person will undertake an act or do a thing he or she knows is likely than not to produce the consequence he or she wants. He or she is likely to undertake an act when he or she foresees that the consequence is likely than not to flow from it.

The fact of a person having foresight from the circumstances of his or her own conduct of a 'real risk or possibility' of an event happening as a natural consequence of what he or she is doing is a common feature of offences created by criminal law. The concept of 'realisation of a real risk or possibility' of the occurrence of a specific event, as a consequence of the proscribed conduct, has been used in the definition of crimes for many years. It has been used to denote a subjective state of mind of crimes to the extent that it has now acquired a special meaning in criminal law jurisprudence. Courts are not unfamiliar with the requirements of the test for a subjective state of mind denoted by the words 'real risk or possibility' used in a statute.

A statement is a means by which a person expresses to others by way of spoken or written words or any other action a message about the relationship between what he or she thinks and the real world. Where the relationship is presented in terms of a correspondence between the idea or information imparted or received and reality or fact the statement is a true statement. What is reality or fact does not change. It may expand as more ideas or information about it comes to light. Reality defines the difference between truth and falsity.

The truth or falsity of an alleged fact is a matter of evidence.

Where there is no relationship of correspondence between the ideas or information imparted or received and reality the statement is false. To say something has happened when it has not happened is a lie. A statement is indeed defined by section 19 of the Criminal Code to mean 'any expression of fact or opinion whether made orally, in writing, electronically or by visual images.' So a 'false statement' of fact is a statement which is in 'conflict with reality.' It is a misrepresentation that what is stated or expressed is a fact. Difficulty of verification of the 'falsity' or 'truth' of a statement does not detract from the definitional clarity of the meaning of 'false statement.'

The words 'public confidence' are not so vague as to escape definition by the courts. As shall be shown later, these words are to be interpreted in the context of the performance by a security service institution referred to in section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] of functions in the exercise of the powers conferred on it by the Constitution. Public confidence in that context refers to the trust reposed in the institution by the public. The basis of the trust is a belief that members of a security service institution will be able to execute their duties in accordance with the purposes for which the institution was established under the Constitution.

The contention that section 31(a)(iii) of the Criminal Code, as it is framed, is unconstitutionally vague as to fail the test of legality is clearly unsustainable.  

Any man or woman of ordinary intelligence can foresee, to a reasonable extent, what conduct is prohibited by the statute and the consequences of committing the conduct.

The concepts of 'false'; 'real risk or possibility' and 'public confidence' do not in themselves cause insurmountable problems of interpretation when used in a statute. The meaning to be given to each word or phrase as used in section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is clear. What they describe is adequately foreseeable. The interference the description of which they form a part has a legal basis.

The next matter the Constitution addresses is the objective the impugned legislation must pursue.

Every legislation is animated by an object the legislature intends to achieve: R v Big M Drug Mart Ltd (1985) 18 DLR (4^th) 321 (Supreme Court of Canada)…,. The Constitution prescribes the interests a law which imposes restrictions on the exercise of the right to freedom of expression must have been enacted to protect if it is to be consistent with the purpose for which the fundamental right is guaranteed.

A law shall not be held, if all other requirements are met, to be in contravention of the protection of the exercise of the fundamental right to freedom of expression if the objective of its enactment is the protection of a public interest listed in section 20(2)(a) of the Constitution. Interference with freedom of expression may only be justified if it pursues a legitimate aim. The reason is that freedom of expression is guaranteed by the Constitution so that it is not exercised in a manner that is detrimental to the rights of others or the public interests listed in section 20(2)(a) of the Constitution. The public interest lies in the need for the individual to respect the interests listed when he or she exercises the right to freedom of expression.

The specific aims which must be pursued by a provision imposing restrictions on the exercise of freedom of expression and the legitimacy of them are pre-determined and established directly by the Constitution.  The interests to be protected and sufficiency of their importance are pre-determined. The legislature is bound, under the principle of legitimacy, by the higher norm to limit the exercise of the right to freedom of expression only for clearly defined purposes. The question in each case is whether the aim pursued by the prohibition imposed by the impugned legislation is the protection of an interest directly related to or falling within the categories of the interests listed in section 20(2)(a) of the Constitution. It seems clear, therefore, that in assessing whether a restriction on freedom of expression addresses a legitimate aim both its purpose and its effect should be taken into account; R v Big M Drug Mart Ltd (1985) 18 DLR (4^th) 321 (Supreme Court of Canada)…,.

In ascertaining the objective of a statute, the court construes the language used in the provision taking into account its subject matter, the reasons for and effects of the restriction imposed on the exercise of freedom of expression. In other words, the court must look at the intention of Parliament. An object is the interest which the legislature intends to promote or protect by means of the prohibition, by criminal law, of expression causing or likely to cause harm to it. The public interest in this case is that members of the security service institutions referred to in section 31(a)(iii) of the Criminal Code be left to enjoy public confidence in the performance according to law of the functions for which the institutions were established.

The object of a statute provides the ground for the justification of the prohibition of acts as a crime and the basis for a precise definition of the scope of the proscribed conduct. The words 'to the extent that the law in question makes provision…., in the interests of' mean that it must be shown that the primary purpose of creating the crime out of the expression and dissemination of the ideas and information accompanied by the requisite state of mind was to protect one or more of the public interests listed in section 20(2)(a) of the Constitution.

The presumption is that legislative action is a rational process with ends to serve and reasons for its products. O.W. HOLMES JR in his article titled 'The Path of the Law' 10 Harvard Law Review 457 (1897)…, put it thus:

“It is true that a body of law is more rational and civilized when every rule it contains is referred articulately and definitely to an end which it subserves and when the grounds for desiring that end are stated or are ready to be stated in words.”

The list of the matters which define the categories and nature of the objects of legislative protection which may justify the imposition of restrictions on the exercise of freedom of expression is exhaustive. A restriction may, in consequence, constitute a breach of section 20(1) of the Constitution if its purpose is not one of the legitimate aims listed. The pre-determination and direct establishment of the nature of the substance of the objective to be pursued limit the exercise of the legislative power as to the nature and scope of the means to be used.

The Government has no power to create its own interests to protect by imposition of restrictions on the exercise of freedom of expression using criminal law. By defining the grounds on which limitations on the exercise of freedom of expression may be imposed, the Constitution has made provision for the settlement of conflicts between the rights of the individual and the exercise of State power so that the latter cannot relapse into arbitrariness. The list of the interests in section 20(2) of the Constitution is therefore exclusive in the sense that they are the only interests whose protection might justify a restriction on freedom of expression.

Is the purpose of the restriction to achieve one or more of the legitimate aims specifically listed in section 20(2)(a) of the Constitution?

The fact that section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] mentions specifically the three security service institutions is significant. It is not Government, in general, referred to but specific institutions. 

The subject-matter of the restriction of the exercise of freedom of expression must relate to the functioning of the particular institutions. In subjecting the exercise of freedom of expression to the statutory falsehood to provide immediate protection to public confidence in a security service institution Parliament took into account the fact that public confidence in a public institution arises from and is directly related to the manner the institution performs its Constitutional functions.

The objective of protecting public confidence in a security service institution by prohibiting as a crime the acts of publishing or communicating a false statement with the intention or realising that there is a real risk or possibility of undermining it must lie in the role public confidence plays in the exercise by the security service institution of its constitutional functions.

Counsel for the respondent argued that the offence was created to make provision for the protection of public order and public safety. The parties were agreed that the words 'in the interests of' used in section 20(2)(a) of the Constitution mean for the protection of a public interest listed or an interest falling within the categories of the public interests listed therein. They differed on the question whether the aim pursued by section 31(a)(iii) of the Criminal Code is the protection of public order and/or public safety. 

Counsel for the applicants' argued that the restriction on the exercise of freedom of expression was imposed to protect the honour of the institutions referred to in the provision.

It must be established as a fact that the prohibition of the publication or communication of a false statement as a crime under section 31(a)(iii) of the Criminal Code is in the interests of the maintenance of public order and/or preservation of public safety.

It is common cause that all the institutions referred to in section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] are established by the Constitution for the specific purpose of enforcing laws for the maintenance of public order and the preservation of the security of the State. An Act of Parliament relating to each institution defines the powers to be exercised, the procedures and conditions to be complied with in the proper exercise of the powers conferred on it in the performance of the functions for the achievement of the purposes of its existence.

Section 93(1) of the Constitution provides for the establishment of a Police Force which, together 'with such other bodies as may be established by law for the purpose, shall have the function of preserving the internal security of and maintenance of law and order in Zimbabwe.' Under section 19 of the Criminal Code, 'a law enforcement agency' is defined to mean 'the Police Force (including a member of the Police Constabulary as defined in s 2 of the Police Act) [Cap. 11:10] or an intelligence service maintained by the Government, or any agency assigned by an enactment to maintain and enforce the law.'

Section 96(1) of the Constitution provides that for the purpose of defending Zimbabwe there shall be Defence Forces consisting of an Army, and Air Force and such other branches, if any, of the Defence Forces as may be provided for by or under an Act of Parliament.

Section 99(1) of the Constitution provides that there shall be a Prison Service for the administration of prisons in Zimbabwe and for the protection of society from criminals through the incarceration and rehabilitation of offenders and their re-integration into society.

It is clear from the relevant provisions of the Constitution that the institutions referred to in section 31(a)(iii) of the Criminal Code were established to serve specific needs of the community. Security service institutions are important national institutions which form part of the essential framework of a constitutional democracy. They are known and accepted by the public at large as being responsible for the defence of the country, preservation of public safety, and maintenance of public peace and tranquillity.

All criminal laws provide protection to public order and/or public safety. Justification under section 20(2) of the Constitution requires more than the general goal of protection from harm common to all criminal legislation. Interests of public order or public safety are quite general in nature. It is therefore important to look at the role public confidence plays in the performance by the security service institutions of their functions and the impact on society of undermining or likelihood of undermining it. The reason for such an approach is that, on its own, public confidence in a security service institution hardly qualifies as an interest whose protection would constitute a legitimate aim under section 20(2) of the Constitution.

The public has an interest in the maintenance of public peace and tranquillity and the preservation of public safety in accordance with the law. In an organised society, the presence of public order and public safety is a pre-condition for the enjoyment of freedom of expression. An impression should not be created in the minds of the public that the exercise of the right to freedom of expression is not subject to the responsibility to keep peace and tranquillity.

A valid legislative restriction of the exercise of the right to freedom of expression should be as limited as the scope of the meaning of the public interest for the protection of which it is imposed. While it is intended that there should be freedom of expression it is also intended that in the exercise of the right, conditions should not be deliberately created for the undermining of the maintenance of the public order or preservation of public safety. There is a direct and vital relationship between the exercise of freedom of expression and the preservation of public peace and tranquillity.

Freedom of expression can only thrive in an orderly society. Fundamental rights have no real meaning if the State itself is in danger and disorganised. If the State is in danger, the liberties of the individual are themselves in danger. The very fact of belonging to a society ordered by law implies that the actions of the individual cannot be deployed absolutely in all direction without being contained within the limits imposed by community life. Section 20(1) of the Constitution guarantees complete freedom of expression but it also makes an exception in respect of breach of public order and public safety in section 20(2)(a).  As MR JUSTICE JACKSON of the U.S. Supreme Court once observed in Terminiello v City of Chicago 337 USI 37 (1949):

“The choice is not between order and liberty. It is between liberty with order and anarchy without either.”

A law cannot be used to restrict the exercise of freedom of expression under the guise of protecting public order when what is protected is not public order. This is because the maintenance of public order or preservation of public safety is synonymous with the protection of fundamental human rights and freedoms. The State cannot, therefore, violate fundamental human rights and freedoms under the cover of maintaining public order or preserving public safety. It is always important to understand and appreciate the meaning of the concepts of public order and public safety. They describe the definitional balancing line between the exercise of the right to freedom of expression and the public interests for the protection of which the State may restrict the exercise of that right.

Public order is a concept used to describe the state of calm or even tempo of the life of the community brought about by laws enforced by the State. Order is the basic need in any organised society. It implies the orderly state of society or community in which people can peacefully pursue their normal activities of life. It refers to the absence of acts which aim at endangering the safety of the lives and property, peace and tranquillity of the community.

It is synonymous with the peace and tranquillity of the community. Public order does not, in that limited sense, refer to isolated acts which affect individuals leaving the tranquillity of the community unaffected.  Not every violation of law constitutes breach of public order. The isolated acts of violence may not affect the even tempo of the life of the community.

Public order excludes from its ambit the more serious offences which are against public safety and endanger the security of the State itself. It is clear from the juxtaposition of the different grounds in section 20(2)(a) of the Constitution, on which the exercise of freedom of expression may be restricted, that although they sometimes tend to overlap they are intended to exclude each other. Public order is therefore something which is demarcated from the ground of public safety.

Whether an act is of a character that affects public order is a question of degree. It is not the quality of the act that matters but its potentiality. It is a matter of context. One act may, in one context, have effects that injure the individual only whilst in another context the same type of act may have effects that endanger the peace and tranquillity of the community. What is clear is that the maintenance of public order is equated with the maintenance of public peace and tranquillity. See Elliot v Commissioner of Police & Anor 1997 (1) ZLR 315 (S)…,.

In 'Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism: Advisory Opinion OC-5/85 of 13 November 1985 Series A No. 5 para 66' the Inter-American Court of Human Rights stated that the term 'public order' does not refer simply to the maintenance of physical order but also includes 'the organisation of society in a manner that strengthens the functioning of democratic institutions and preserves and promotes the full realization of the rights of the individual.'

The argument that section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] does not make provision in the interests of public order or public safety is based on the absence of express reference to public order or public safety in the terms of the statute. Unlike subparagraph(s) (i) and (ii) which make express reference to the legitimate aims prescribed by section 20(2)(a) of the Constitution, subparagraph (iii) of section 31(a) of the Criminal Code makes reference to 'public confidence' in the security service institutions.

On the face of it, the specific purpose of the provision is to protect public confidence in a security service institution referred to in the provision. It is protected from being undermined or the likelihood of being undermined by a false statement published or communicated with the requisite state of mind. That would, however, suggest that public confidence in a security service institution is an end in itself equivalent to and as important as the public interests listed in section 20(2)(a) of the Constitution.

The fact that the location of the offence in the Criminal Code suggests that it is intended to serve a political purpose requires that its objective be closely scrutined. Protection of public confidence in a security service institution is not one of the legitimate aims for the achievement of which permissible legislative limitation on the exercise of freedom of expression can be imposed.

The Constitution does not require that a law restricting the exercise of freedom of expression must state in express terms that its objective is to protect the interest listed in section 20(2) of the Constitution. That it must have that as its object is an obligation the breach of which affects the legitimacy of the legislative action and the legality of the provision in question. It is a matter the determination of which may call for construction of the provision in the light of its history and the circumstances of its enactment. In other words, all relevant circumstances would have to be considered to determine the question whether the objective pursued by the legislation is one or more of the legitimate aims listed in section 20(2)(a) of the Constitution.

The purpose for enactment of a provision of a law may be expressly stated by the terms of the provision or it may be implied by them. A law can be in the interests of public order or public safety without it being stated in so many words that it is for that purpose. The words 'in the interests of…,' in section 20(2)(a) of the Constitution are of wide connotation. The words would cover legislation which expressly and directly purports to maintain public order or preserve public safety and one which does not expressly state the said purpose but leaves it to be implied therefrom. They would also cover legislation which protects the exercise of functions for the purposes of maintaining public order or preserving public safety.

In its plain terms, section 31(a)(iii) of the Criminal Code does not create a crime out of acts which breach public peace and tranquillity or public safety directly. Other provisions of the Criminal Law (Codification and Reform) Act [Chapter 9:23] create and define such crimes. Section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] creates a crime out of acts which have the effect of interfering with the ability of the security service institutions to prevent occurrences of those offences which breach public order or endanger public safety directly.

As an offence against the State and not against public order or public safety, section 31(a)(iii) of the Criminal Code has as its primary objective the protection of the interests of the State from the consequences of the proscribed acts. Those are acts which undermine or are likely to undermine the ability of the security service institutions to perform their functions efficiently and effectively in accordance with the law.

The words 'in the interests of…,' do not limit the provisions of the law to having to be for the protection of the public interest listed in section 20(2)(a) of the Constitution from consequences of acts which harm or are likely to harm it to the exclusion of the public interest in its maintenance or preservation. In other words, can it be said that a law the purpose of which is to protect the ability of the State to secure public safety and the maintenance of public order is not in the interest of these matters?

The proscription of the publication or communication of a false statement about lawful activities of a security service institution with the intention of undermining public confidence in that institution, is in the interests of public order or public safety when specific conditions are met. It must be shown that public confidence in the institution is an essential element in the ability of the institution to efficiently and effectively secure the maintenance of public order or preservation of public safety. In that sense, the words 'in the interests of public order' are of wider connotation than the words 'for the maintenance of public order' or 'for the preservation of public safety.'

A law may not have been designed to directly maintain public order or preserve public safety in the sense of creating an offence against public order or public safety and yet it may have been enacted 'in the interests' of public order or public safety. Ramji La Modi v The State of UP 1957 SCR 860…,.

If it appears on the examination of the relevant factors that the intention is to establish a rule of conduct carefully designed to ensure that security service institutions are able to efficiently and effectively secure the maintenance of public order or the preservation of public safety, the legislation would be 'in the interests of public order' or 'public safety.'

It would be a limitation designed to ensure that the enjoyment of the right to freedom of expression does not prejudice the interest of public order or public safety.

Public confidence in a security service institution is a measure of the expectation the public have that members of the institution concerned will act in accordance with the law. They are expected to do so in the exercise of functions to ensure the safety of lives and property, peace and tranquillity in the community. The measure of public confidence in the institution in the circumstances lies in the lawful acts done and expected to be done by the members of the institution in the exercise of the functions imposed on it for the achievement of the purposes of its constitutional existence.

The interest of the public is not in the mere existence of a security service institution without reference to the manner in which the exercise of its functions affects the enjoyment of their rights and freedoms. The public interest is in ensuring that the exercise of freedom of expression does not cause direct, serious, and proximate harm to lawful performance by the security service institutions of the functions for which they were established by the Constitution.

There is general recognition of the fact that members of security service institutions cannot operate in a vacuum. They carry out their duties in the communities they serve. Public confidence is therefore the result of the knowledge by members of the public of the truth about the lawful activities carried out by members of the security service institution in securing the maintenance of public order or preservation of public safety.

The knowledge of lawful activities of members of a security service institution is acquired from statements made directly by members of the institution to members of the public or from statements published through the print and electronic media or communicated in private conversations. Where a statement about the lawful activities of members of the institution is true, the confidence of the public in the institution is enhanced. It is the justified public confidence in the institution which the provisions of section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] protect. The efficient functioning of a security service institution is not valuable in itself. It is only valuable when it is in accordance with the law and therefore based on truth.

No public confidence in an institution is maintainable on an inefficient and ineffective delivery of service. There cannot be public confidence in a public institution when its members, under the pretext of exercising its powers, act outside the law which the people, through their representatives in Parliament, put in place. If the statements published or communicated show that the law enforcement agents are doing all that is required of them by the law to cut crime, public confidence translates into practical benefits to the institution in the execution of its functions. The public embrace the goals of the institution and voluntarily support it in the fight against crime. After all, peace or breach of it is a product of human behaviour. Peace starts with the people. They give the police information necessary for the prevention of crime.

The proper exercise of freedom of expression can therefore build public confidence in the law enforcement agency in the interests of public order or public safety. The same principle would apply to the other security service institutions referred to in section 31(a)(iii) of the Criminal Code in the exercise of the functions for which they are established by the Constitution. The indissoluble unit between the procedural or functionary aspects of the communicative process and the effects on the audience of the exercise of the right to freedom of expression is protected.

Where law enforcement agents enjoy public confidence, members of the public take part in the programmes involving the policing of streets and neighbourhoods. The participation by members of the public in self-policing programmes has the effect of ensuring accountability by the institution to the public.  Democratic accountability brings about efficient and effective discharge of duties by the members of the institution. Participation by members of the public in the affairs of an institution, the activities of which affect their lives is one of the fundamental values of a democratic society. All this guarantees justified public confidence in the institution.

As stated above, justified public confidence is confidence based on the knowledge of the truth of the lawful activities of members of the institution concerned in the exercise of the functions for which it is established by the Constitution. Public institutions are established under the Constitution as part of the means by which a State governed by the rule of law protects and promotes the enjoyment of fundamental human rights and freedoms.

One who upholds the Constitution respects its institutions when their powers are exercised in accordance with the law. The protection of public confidence in the security service institutions is based on the acceptance of the fact that the knowledge that members of the institutions act lawfully assures members of the public of the protection of their rights. The public have an interest in receiving accurate information on the activities of security service institutions relating to the maintenance of public order and the preservation of public safety.

Public confidence may be undermined when the public know the truth about unlawful activities by members of the security service institutions. This is because unlawful activities by members of a security service institution are inconsistent with the protection of fundamental human rights and freedoms. It is clear that public confidence in a security service institution is based on or linked to evidence of lawful activities by its members in securing the maintenance of public order or the preservation of public safety.  It is not linked to the reputation of the institution as argued by counsel for the applicants. The reputation of the institution would also depend on the knowledge by the public of the lawful activities the members carried out in the discharge of its constitutional mandate.

The result of knowledge by members of the public of the truth of unlawful activities by members of a security service institution would be the reduction of support by the community for programmes relating to the maintenance of public order or the preservation of public safety. Members of the public become reluctant to give information to members of the institution. They fear disclosure of their identities by unscrupulous law enforcement agents to criminals who, in turn, may endanger their lives. As less information is given to law enforcement agents, more crimes are committed with fewer criminals accounted for. Members of the public who lose trust in the ability of the law enforcement agency to protect them from criminals resort to self-help remedies thereby creating conditions of lawlessness.  Some of them may end up taking into their own hands the punishment of what they conceive to be crimes.

It is the duty of a free media of communication to give accurate information to the public on unlawful activities of members of a security service institution. It is in the public interest that the media should be free to provide criticism of such conduct. Indeed, a democracy cannot exist without that freedom to put forward opinions about the functioning of public institutions.

The concept of free and uninhibited expression and dissemination of opinion about the functioning of public institutions permeates all free and democratic societies. Not only does the media have the duty to impart such ideas and information concerning the activities of security service institutions relating to securing of the maintenance of public order or the preservation of public safety, the public have a right to receive the ideas and information.

There is danger of unjustified loss of public confidence in a security service institution if false statements about its lawful activities are published or communicated with the deliberate intention or when realising that there is a real risk or possibility of undermining public confidence in it as a custodian of public order or public safety. It must not be forgotten that the concept of limitation is inherent in that of right. Even without the necessity of criminal sanctions, freedom of expression imposes on the media the responsibility of ensuring, to the extent it is reasonably practicable to do so, the accuracy of the information conveyed to the public on matters of public concern.

Members of the public often do not take the trouble and time to verify the truthfulness of information given to them. They act on it on the assumption that the publisher or speaker has taken the trouble to verify the accuracy of the information. In that regard, they act on the assumption that what is reported or said is true.

There is a real danger that a false statement published or communicated to members of the public about lawful activities of a security service institution in the maintenance of public order or preservation of public safety, may lead to withdrawal of support for law enforcement. There may be withdrawal of voluntary participation by communities in policing programmes involving their neighbourhoods. The result would be an increase in lawlessness and collapse of public order.

Section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] deals with a situation where a person publishes or communicates a false statement with the intention that what is said or written be accepted as the truth. The intended result of the unlawful act is undermined confidence of the public in the ability of the security service institution to perform the functions of maintaining public order or preserving public safety. The person uses a false statement as a means of undermining public confidence in the institution concerned because he or she is aware of the vital role public confidence plays in the efficient and effective performance of its functions.

Justified public confidence reposed in a security service institution as a result of the efficient and effective performance of lawful activities in the maintenance of public order or the preservation of public safety would be known to exist by the speaker or publisher of a false statement before it is sought to be undermined.

It would be against the principle of the rule of law to allow the exercise of freedom of expression to falsely malign an institution in the proper performance of its constitutional functions with a view to diverting it from properly discharging its mandate. While actions of members of security service institutions should be open to criticism and their work subjected to scrutiny and open debate, the State should not allow public accusations of misconduct lacking legitimate cause. Publication or communication of altogether untrue statements which have been merely invented for the purpose of providing arguments for a campaign against a security service institution would be an abuse of the right to freedom of expression.  Thorgeirson v Iceland 14 E.H. R.R. 115 paras 79 & 81 (1990 Commission Report).

If unjustified loss of public confidence in a security service institution which would result from publication or communication of a false statement about its lawful activities is prevented justified public confidence in the institution is protected. The prohibition and punishment of the acts concerned together with the accompanying state of mind have the effect of protecting the lawful activities of the security service institution by which it enforces laws that guarantee public order or public safety. That means that an important element in the maintenance of public order or the preservation of public safety is secured.

By preventing unjustified loss of public confidence in a security service institution the law protects what secures public peace, safety and tranquillity. The objective of protecting public order or preserving public safety is, in turn, achieved. A democratic state system would be unthinkable without the alignment and protection of the lawful activities of State administration which, in turn, guarantee public order or public safety. Public order or public safety is protected in an indirect manner by the prevention of the undermining of an element which is essential to its maintenance or preservation.

The impugned statute is based on the need to protect the institutions from the perversion which might result from the distortion of public confidence on which they depend for efficient and effective operations consistent with the protection of fundamental human rights and the public interests listed in section 20(2)(a) of the Constitution. In that regard, a strong case may be made that the institutions concerned which are charged with the responsibility of maintaining public order and preserving public safety have a right to justified public confidence reposed in them.

Members of the public must be able to rely on the security service institutions carrying out their tasks effectively. They have a right not to be deliberately misinformed about the activities of the security service institutions in the discharge of the functions of maintaining public order or preserving public safety.

A provision which prohibits, under threat of punishment, any act the direct effect of which is harm or likelihood of harm to the ability of an institution entrusted with the duty of maintaining peace and tranquillity to carry out its constitutional mandate, is a law 'in the interests of public order' within the meaning of section 20(2)(a) of the Constitution. In Ghosh v Joseph AIR 1963 SC 812…, the Supreme Court of India held that protection of discipline and efficiency in the performance of functions by members of a public institution 'may, in a sense, be said to be related to public order.'

In Chavunduka & Anor v Minister of Home Affairs & Anor 2000 (1) ZLR 552 (S), the Court held that a law which made it an offence to publish or communicate a false statement with the intention of causing alarm and despondency was a law enacted in the interests of public order. The reason was that the law was enacted on the basis of the fact that there was a real danger of breach of peace. Members of the public who believed that the statement was true and felt alarmed and despondent as a result of the alleged failure of law enforcement agents to ensure peace and tranquillity in the community could withdraw support for the law enforcement agency to the detriment of public order.

Counsel for the applicants strenuously sought to distinguish the effect of the provisions of the law in Chavunduka & Anor v Minister of Home Affairs & Anor 2000 (1) ZLR 552 (S) from those of section 31(1)(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The principle of prevention of actual or potential harmful effects on the maintenance of public order is the principle on which the reasoning and finding in that case were based. Its application to the facts of this case justifies the finding that the restriction imposed by section 31(a)(iii) of the Criminal Code on the exercise of the right to freedom of expression is in the interests of public order and the preservation of public safety.

The imposition of the restriction creates conditions in which the relationship between the exercise of freedom of expression and justified public confidence for the achievement of public order or public safety can prevail. The provision meets the 'legitimate aim' test. The purpose of protecting public confidence in a security service institution as a means of ensuring efficiency and effectiveness in the performance of its constitutional mandate falls within the scope of the legitimate aim of protecting the interests of public order and public safety within the meaning of section 20(2) of the Constitution.

Castells v Spain (1992) 14 EHRR 445…,.

The next requirement relates to the relationship between the restriction on the exercise of freedom of expression by section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and the objective of protecting public order or preserving public safety.

Once it is found that the primary purpose of interference by the State with the exercise of freedom of expression was to protect a public interest listed in section 20(2)(a) of the Constitution, the next question for determination is whether the provisions of the law put in place were carefully designed to achieve that objective only.

The question for determination is whether or not the restriction imposed by section 31(a)(iii) of the Criminal Code to the exercise of freedom of expression is rationally connected with the objective of protecting public order or public safety. This precedent rule of legitimacy requires that a provision of law prohibiting conduct in the exercise of freedom of expression to protect a public interest must be a response to the effects of direct and proximate harm or likelihood of harm to the public interest. 

On the contention that the means used by section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] to restrict the exercise of freedom of expression are not proportionate to the objective pursued, counsel for the applicants was on firmer ground.

It is easy for Government to place a restriction of the exercise of a fundamental right within the requirement for adoption of a legitimate objective. It is for the court to ensure that the law was conceived and expressed solely to achieve that objective. The law should not, in its design, have the effect of overreaching and restricting expression which is not necessary for the achievement of the objective concerned. The court applies the principle of proportionality to test the relationship between the restriction to the exercise of the right to freedom of expression and the objective pursued. The question is whether the restriction is necessary and proportionate to the objective pursued. Any restriction to the exercise of the right to freedom of expression claiming to be for the protection of any of the public interests listed in section 20(2)(a) of the Constitution must meet strict requirements indicating its necessity and proportionality.

This part of the test presents a high standard to be overcome by the State seeking to justify the restriction: See Thorgeirson v Iceland (1992) 14 EHRR 843…,. It was held in that case that the necessity for any restriction must be 'convincingly established.'

The court must pay particular attention to the principles characterising a democratic society and the fundamental role which freedom of expression plays in such society. In order to permit the citizen to keep a critical control of the exercise of public power, particularly strict limits must be imposed on interferences with the publication or communication of ideas and information which refer to activities of public institutions.

The question to be determined in the application of the proportionality test is whether the means used by Government to restrict the exercise of freedom of expression are those which are suitable for the achievement of the legitimate objective pursued. The principle of proportionality is not explicitly mentioned in the Constitution. It forms an implicit standard gleaned from words such as 'to the extent that the law in question makes provision in the interests of…,' in section 20(2)(a) of the Constitution and the general prioritisation of personal liberty over Governmental regulation.

Protection denotes provision of relief from an actual or potential burden or harm. For the provision to constitute protection of a public interest listed in section 20(2)(a) of the Constitution, the restriction imposed on the exercise of freedom of expression must form a barrier between the proscribed acts and the public interest thereby breaking the chain of causation of direct and proximate actual or likely harm on the public interest.

There cannot be a pressing social need for the imposition of a restriction on the exercise of freedom of expression for the purpose of protecting a public interest when that interest is not under threat of direct and proximate harm from the exercise of freedom of expression. The Constitution forbids the imposition of a restriction on the exercise of freedom of expression when it poses no danger of direct, obvious, serious, and proximate harm to a public interest listed in section 20(2)(a) of the Constitution.

In Rangarajan v Ram [1990] LRC 412…, SHETTY J said:

“There does indeed have to be a compromise between the interest of freedom of expression and social interest. But we cannot simply balance the two interests as if they were of equal weight. Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural, or far-fetched. It should have a proximate and direct nexus with the expression.  The expression of thought should be intrinsically dangerous to the public interests. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a 'spark in a powder keg.'”

Fundamental human rights are personal rights.

Freedom of expression belongs to the individual. Any restriction must be based on the concept of personal responsibility constituted from personal conduct accompanied by a subjective state of mind.  Where it has been necessary to restrict the exercise of freedom of expression by means of criminal law, the individual must be the unit of analysis in the determination of the question whether the law is constitutionally valid or not.

The principle that criminal liability should be based on personal responsibility is the justification for the requirement that there ought to have been in existence before the imposition of restrictions on the exercise of freedom of expression a causal link between the prohibited acts, the accompanying state of mind of the speaker, writer or publisher or actor and actual or potential harm to the public interest the protection of which is the object pursued. The prohibited acts and their actual or potential harmful effects on the public interest must be traceable to the speaker, writer, publisher or actor as the source. If that is not the case, they cannot be the basis for restricting the exercise of freedom of expression. The rule on the need for a causal link between the prohibited conduct and the injury to be prevented must be shown to have been satisfied by any permissible legislative limitation to the exercise of freedom of expression.  In other words, the sole motive of the State should be to ascertain that the protected interests of the community are respected by the individual or that a guarantee exists that they will be respected. The purpose must be to ensure that people are able to make use of their right to freedom of expression to full effect without damaging public interest.

Not every case of actual or potential harm on the public interests listed in section 20(2)(a) of the Constitution justifies the imposition of restrictions on the exercise of freedom of expression. If that were to be the case the realm of freedom of expression, as protected by the Constitution, would eventually shrink to zero. The exercise of the right to freedom of expression is not protected because it is harmless. It is protected despite the harm it may cause.

It also does not mean that every breach of the restrictive provision deserves the exercise of the herculean powers of the sword of prosecution. In fact, a restriction is unlikely to be considered proportionate where a less restrictive, but equally effective, alternative exists. At times, invoking the adage that the best remedy for a bad speech is another speech may be all that is required to refute the false allegations and disclose the truth. Government has sufficient resources for doing so. Officials within these institutions who are responsible for public relations possess the best tools for responding to false statements about performance of their functions. That would relate to their ability to obtain the relevant information concerning their performance and in terms of their ability to draw the attention of the media and thus make their response heard. See Castells v Spain (1992) 14 EHRR 445…,.

As MR JUSTICE BRANDEIS of the U.S. Supreme Court in Whitney v California 274 US 357 (1927)…, said:

“To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular Government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose, through discussion, the falsehood and fallacies to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”

By guaranteeing freedom to impart and receive ideas and information on any subject, section 20(1) of the Constitution writes into the Constitution, as a fundamental principle, that competitive persuasion is one of the means by which a public institution can effectively protect a public interest against the publication or communication of false statements about its activities without having the exercise of the right to freedom of expression curtailed by means of criminal law. The restriction becomes unnecessary.

It must be established as a fact on the examination of the provisions of the law that the concepts by which the restriction of the exercise of freedom of expression is imposed define the proscribed conduct with adequate precision. The causal connection between the legislative purpose and the means used to achieve it must be clear and convincing. Only acts in the exercise of freedom of expression, the prohibition of which is necessary for the achievement of the objective, should have been proscribed. The means by which the restriction to the exercise of freedom of expression is imposed must be narrowly drawn and specifically tailored to achieve the objective pursued by the legislation. The question is not whether the means the Legislature employs to accomplish the end pursued are the wisest or the best.

In Superintendent Central Prison Fatehgarh v Ram Manohar Lohia 1960 SCR (2) 821, the Supreme Court of India held that for a restriction imposed by a law on the exercise of freedom of expression for the purpose of protecting public order to be rationally connected to the objective served there must be a proximate connection between the two. SUBBA RAO J observed that:

“…,. The limitation imposed in the interests of public order to be a reasonable restriction, should be one which has a proximate connection or nexus with public order, but not one far-fetched, hypothetical or problematical or too remote in the chain of its relation with public order.”

In R v Oakes (1986) 19 CRR 308…, the Supreme Court of Canada held that the rational connection criterion entailed the establishment of the fact that 'measures adopted have been carefully designed by the legislature to achieve the objective in question. They must not be arbitrary, unfair or based on irrational consideration. In short, they must be rationally connected to the objective.' See also R v Edwards Books & Art Ltd (1986) 28 C.R.R I…,.

The principle was also stated by the US Supreme Court in Aptheker v Secretary of State 378 US 500 (1964) in these words:

“A Governmental purpose to control or prevent activities constitutionally subject to State regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of constitutionally protected freedoms.

Even though a Governmental purpose is legitimate and substantial that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.  The breadth of legislative abridgment must be reviewed in the light of less drastic means for achieving the same purpose. The Constitution requires that the powers of Government must be so exercised as not, in attaining a permissible end, unduly to infringe a constitutionally protected freedom….,. Precision must be the touchstone of legislation affecting the liberty guaranteed in the fifth Amendment.”

A restriction which is not rationally connected with the objective pursued is an unreasonable, unnecessary, and arbitrary interference with the exercise of freedom of expression.

As a means of protecting the interests of public order and public safety by the State, section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is problematic. It is not narrowly drawn and carefully tailored to achieve the objective pursued. Whilst placing substantial restriction on the basic right to freedom of expression, the effectiveness of the impugned statute in achieving the legislative purpose is, in practice, very uncertain.

Section 31(a) (iii) of the Criminal Code must be construed taking into account the context of the company it keeps. It is indeed a principle of statutory interpretation that the true meaning of the words used and the intention of the legislature in any statute can be properly understood if the statute is considered as a whole. Every part of a section must be considered as far as it is relevant to do so in order to get the true meaning and intent of any particular portion of the enactment. It is also important to bear in mind that as the statute purports to implement derogation from the principle of a guaranteed fundamental right it must be strictly construed.

It has already been found that section 31(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] prohibits publication or communication of a false statement when it is accompanied by the subjective state of mind to secure the results specified in subparagraph(s) (i), (ii) (iii) and (iv). The prohibited consequences show the interest protected; 

(a) Subparagraph (i) protects public safety or public order. 

(b) Subparagraph (ii) protects the defence and economic interests of Zimbabwe. 

(c) It must follow that subparagraph (iii) protects public confidence in the security service institutions referred to in the provision.

Section 31(a)(iii) of the Criminal Code makes no reference to public peace and tranquillity or public safety except by inference drawn from the reference to security service institutions in the provision.

Public order, public safety, defence, and economic interests of Zimbabwe are interests specifically listed by section 20(2)(a) of the Constitution for the protection of which imposition of a restriction on the exercise of freedom of expression may be justified. Public confidence in a security service institution is not one of those interests. A restriction in the interest of public confidence in a security service institution is not one of the restrictions permitted by section 20(2)(a) of the Constitution. As an end in itself, protection of public confidence in a security service institution cannot justify the imposition of a restriction on the exercise of freedom of expression under section 20(2)(a) of the Constitution. Its protection can only be as part of the means of securing the maintenance of public order or preservation of public safety.

If public confidence is viewed in the light of the role it plays in influencing the efficient and effective performance of the functions of maintaining public order and preserving public safety, the conduct prohibited by section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is covered  by sections 31(a)(i) or (ii) of the Criminal Code. Section 31(a)(iii) of the Criminal Code would be an unnecessary enlargement of the provisions of the preceding subparagraphs.

Section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] prohibits publication or communication of a false statement on any subject matter accompanied by the requisite state of mind. It does so without regard to the question whether the fact about which the lie is published or communicated relates to an important aspect of the performance by a security service institution of its functions. For the protection of public confidence in a security service institution to have any connection with the legitimate aim of protecting the interests of public order and public safety, the false statement, the publication or communication which is prohibited must relate to the performance by the security service institution of its functions as defined by law.

The matter to which the false statement relates does not have to be a matter within the jurisdiction of a security service institution referred to in section 31(a)(iii) of the Criminal Code. The prohibition is not even limited to apply only to a publication or communication which reaches a significant number of people. A conversation between two people in a private home would be covered.

A statement, the publication or communication of which is suppressed because its content is intended to undermine public confidence in a security service institution may not also undermine the ability of the security service institution to efficiently and effectively secure the maintenance of public order and preservation of public safety. There are many activities by security service institutions on which false statements may be published or communicated to others to undermine public confidence in them which are unrelated to their efficient performance of the functions of maintaining public order or preserving public safety. The legislative purpose of protecting public order or public safety from the false statements, the publication or communication of which is prohibited by section 31(a)(iii) of the Criminal Code was not necessarily achieved by the method used in the statute. The effectiveness of the prohibition for achieving the proposed legislative objective is open to serious doubt.

It would be actual or likely harm to the public interest in the ability of the security service institution to efficiently and effectively perform the function of maintaining public order and preserving public safety which would justify the imposition of the restriction on the exercise of freedom of expression. Section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] makes no reference to the functioning of the security service institution as an interest to be protected.

There is the problem of the use of the words 'wholly' or 'materially' false. The word 'wholly' suggests an intention to exclude a statement which is a 'half-truth' because it is always also a 'half-lie.' The use of words 'materially false' in the alternative undermines that conception. For example, a statement that police caused crime suspects to walk for 50km may be a true statement. The half-lie would be in not revealing that they did so because of lack of transport but suggesting instead that they were doing so to torture the suspects. The statement is not wholly true because the omission of the information on the non-availability of transport makes it a half-lie. A person may have published or communicated the statement with the intention of undermining public confidence in the police. To say a statement is 'materially false' is to say it is not 'wholly false.'

False news that is harmless to the effectiveness of a security service institution in maintaining public order or preserving public safety would be covered by the offence as long as it is accompanied by an intention to undermine public confidence in the security service institution. The point is not that a requirement of actual harm to public confidence in a security service institution is necessary. It is that protecting public confidence in a security service institution in the manner it does section 31(a)(iii) of the Criminal Code has the effect of shielding the public interest from every possibility of harm. That includes harm the occurrence of which is a remote possibility.

A remote possibility of harm to the maintenance of public order or preservation of public safety cannot be a reasonable basis for the legislative imposition of a restriction on the exercise of freedom of expression.  When the enforcement of the provisions of a criminal law can lead to conviction and punishment of a person even in situations in which the harm intended to be prevented is a remote possibility the reason for the law is lost. In Gosh v Joseph AIR 1963 SC 812…, the Supreme Court of India held that:

“…, the words 'in the interests of…,'…, cannot be interpreted to mean that even if the connection between the restriction and the public order is remote and indirect the restriction can be said to be in the interests of public order. A restriction can be said to be in the interests of public order only if the connection between the restriction and the public order is proximate and direct. Indirect or far-fetched or unreal connection between the restriction and public order would not fall within the purview of the expression 'in the interests of public order.'

The danger of undermining public confidence in the security service institution by a false statement does not have to be significant. The prohibition applies to cases where the harm caused by a false statement to public confidence in a security service institution is of a trivial nature. The clear principle is that prohibition of the exercise of freedom of expression is a measure so stringent that it would be inappropriate as a means for averting a relatively trivial harm to society. Where the evil apprehended is not relatively serious the fact that the exercise of freedom of expression is likely to undermine public confidence in a security service institution is not enough to justify its suppression. See Whitney v California 274 US 357 (1927)…,.

The provision permits the State to restrict constitutional rights in circumstances that may not justify the action. As the offence relates to expression, state of mind, and effects on attitudes of people it was imperative that it be narrowly drawn and specifically tailored to achieve the objective so as not to inhibit expression which does not require that the ultimate sanction of the criminal law be brought to bear.  Protecting public confidence in a security service institution may give rise to a situation where the law is invoked to prevent the publication or communication of a false statement because it upsets people.

Where public confidence is temporarily lost security service institutions may be able to maintain public order and preserve public safety by use of the coercive force of the State. Without specific reference to maintenance of public order or public safety in the terms of the impugned provision there would be no obvious obligation on the State to prove that the proscribed conduct posed any real danger to the public interest concerned. Nothing in the language of the statute limits its applicability to situations where the prohibited acts directly and proximately cause harm to the maintenance of public order or preservation of public safety.

The concept of 'undermining' requires that there be some sort of actual or likelihood of concrete change of attitude in the audience from reposition of confidence in the security service institution to a withdrawal of such confidence. It is, however, not a requirement of the offence that the false statement be of the nature from which such consequence would flow. It is what the person thinks the statement will do for him or her when it reaches the audience which matters.

A person who publishes or communicates a false statement without an intention to also undermine public order is not necessarily outside the constitutional guarantee although he or she may be within the statutory prohibition. Whilst it does not specify any subject matter of a false statement published or communicated with the requisite state of mind, section 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] fails to require that the subject matter then conveyed must be shown to have a direct and proximate deleterious effect on the public interest the protection of which is the objective pursued.

In Hector v Attorney General of Antigua and Barbuda & Others 1991 LRC 237, the appellant was the editor of a newspaper published in Antigua known as the 'Outlet.' He was charged in respect of an article published in the 'Outlet' in May 1985. The charge alleged that the article complained of was a false statement which was likely to undermine public confidence in the conduct of public affairs in contravention of section 33B of the Public Order Act 1972 as amended by the Public Order (Amendment) Act 1976. Section 33B provided:

“Notwithstanding the provisions of any other law, any person who -

(a) In any public place or at any public meeting makes any false statement; or

(b) Prints or distributes any false statement which is likely to cause fear or alarm in or to the public or to disturb the public peace or to undermine public confidence in the conduct of public affairs;

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding five hundred dollars or to a term of imprisonment not exceeding six months.”

The appellant challenged the validity of the prosecution on the ground that the specific provisions of section 33B of the Public Order Act 1972 as amended by the Public Order (Amendment) Act 1976, under which the charge was laid on him, violated section 12(1) of the Constitution of Antigua and Barbuda. Section 12(1) of the Constitution of Antigua and Barbuda guarantees to every person the right to freedom of expression in terms and to the scope similar to that guaranteed by section 20(1) of our Constitution.  Section 12(4) of the Constitution of Antigua and Barbuda provides that:

“Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -

(a) That is reasonably required -

(i) In the interests of defence, public safety, public order, public morality or public health.”

In considering the question whether section 33B of the Public Order Act 1972 as amended by the Public Order (Amendment) Act 1976 was justified under section 12(4) of the Constitution of Antigua and Barbuda, LORD BRIDGE of HARWICH, writing for the unanimous bench of the Judicial Committee of the Privy Council, addressed the constitutionality of legislation which applied to situations in which harm to public order was a remote possibility. His Lordship…, said:

“If…., a particular false statement, although likely to undermine public confidence in the conduct of public affairs, is not likely to disturb public order, a law which makes it a criminal offence cannot be reasonably required in the interests of public order by reference to the remote and improbable consequence that it may possibly do so.”

Section 20(2)(a) of the Constitution, having allowed the imposition of restrictions on the exercise of freedom of expression only in cases where danger to the public interests listed therein is involved, an enactment which is capable of being construed and applied to cases where no such danger could arise cannot be held to be constitutional and valid to any extent. As section 31(a)(iii) of the Criminal Code would apply where the false statement published or communicated to others would cause no harm or be unlikely to cause harm to a public interest listed in section 20(2)(a) of the Constitution it must be held to be constitutionally invalid.

In other words, the restriction must be exclusively, not just tangentially, directed towards the legitimate aim....,.

Section 31(a)(iii) of the Criminal Code is particularly invasive because of the level of the maximum penalty by which it has chosen to effect its end.

A penalty of imprisonment up to twenty years for publishing or communicating a false statement with the intention or realising that there is a real risk or possibility of undermining public confidence in a security service institution is draconian.

In the 'Commentary on the Criminal Law (Codification and Reform) Act 2004', published by the Legal Resources Foundation, PROFESSOR G. FELTOE…, expresses the view that the penalty 'can only be described as savage.' It is also disproportionate to the harm against which the public interest in the ability of the institution to efficiently and effectively perform its functions is protected.

The legislature, having constitutional powers to set out punishments and the severity of those punishments when laying down the constitutive elements of a particular criminal offence, has a duty to set the maximum limits on the punishments for the particular criminal offence. The constitutional principles of justice and a State governed by the rule of law presuppose that every penalty imposable in this sphere must be proportionate to the legitimate aim pursued and the seriousness of the offence. The maximum penalty of imprisonment to which a person convicted of the offence is made liable does not meet this test.

The establishment is not permitted of punishments, the severity of which are obviously inappropriate for the criminal offence and the purposes of the punishment for which maximus penalties are ordinarily fixed.  No relevant and sufficient reasons were advanced by the State for the decision to fix the maximum penalty of imprisonment at twenty years. It is very hard to see in the circumstances the justification for the use of such a maximum sentence on the principle of general deterrence of commission of similar offences.

The only inference that can be drawn from the maximum penalty of imprisonment to which the offender may be subjected is that the punishment is intended to have a chilling effect on the exercise of freedom of expression as opposed to merely deterring the occurrence of the prohibited acts. This is particularly the case when regard is had to the fact that the cases to which section 31(a)(iii) of the Criminal Code applies would not involve actual violence or threats of violence. It is an offence which punishes a person for conduct committed with intent to produce a specific result or when realizing that there is a real risk or possibility of the result occurring quite often regardless of whether the result  materializes or not.

By its nature, the offence is committed in a peaceful environment and does not usually give rise to actual disturbance of public order. In this case, the ability of the law enforcement agency to maintain peace and tranquillity in the community remained what it was before the two articles were published in the newspaper. The security service institutions continued with the performance of the functions of maintaining public order and preserving public safety.

The factor of seriousness of the offence could not have caused Parliament to set the maximum penalty of imprisonment at twenty years. It is equally difficult to imagine the worst offence and worst offender deserving of the imposition of the maximum penalty of imprisonment of twenty years. The proportionality requirement takes into account the fact that a threat of criminal prosecution, conviction, and punishment for publishing or communicating falsehood to undermine public confidence in a security service institution must inevitably have an inhibiting effect on the exercise of freedom of expression.

The principle is concerned to prevent inhibition which extends beyond the subject matter of the law….,.

Taking into account the fact that freedom of expression is peculiarly more vulnerable to the 'chilling effects' of criminal sanctions than any other fundamental right, it has been stated by the UN Special Rapporteur on freedom of opinion and expression that penal sanctions, particularly imprisonment, should never be applied to offences of publishing false news. The higher the level of the maximum penalty of imprisonment the greater the chilling effect on freedom of expression.

The United Nations Human Rights Commission commented on the effect of the use of sentences of imprisonment for offences of publishing or communicating false news. In 2000, the UN Special Rapporteur made a statement on the unacceptability of imprisonment under false news provisions saying:

“In the case of offences such as publishing or broadcasting 'false' or 'alarmist' information, prison terms are both reprehensible and out of proportion to the harm suffered by the victim. In all such cases, imprisonment as punishment for the peaceful expression of an opinion constitutes a serious violation of human rights.”

Provisions of a law which fixes a maximum level of punishment disproportionate to the objective pursued have the effect of setting a court up as an inadvertent censor of freedom of expression contrary to its constitutional function of safeguarding the enjoyment of fundamental human rights.

Experience has shown that it is difficult to excise false statements on matters of public concern such as the performance of law enforcement agents without significantly damaging democratic self-governance.  The United Nations Human Rights Commission has even gone to the extent of recommending the scrapping of false news provisions from statute books because they 'unduly limit the exercise of freedom of opinion and expression.' What all this means is that such laws are not deemed necessary in a democratic society. What is clear is that because of the severity of the deleterious effects on the exercise of freedom of expression of the level of the maximum penalty of imprisonment the law is not justified by the objective it is intended to serve. The requirement that there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by the measure applied by the State in restricting the exercise of freedom of expression was not met.

It has not been shown that section 31(a) (iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] was not in contravention of section 20(1) of the former Constitution. 

Section 24(5) of the former Constitution applies. 

The Minister of Justice, Legal Affairs and Parliamentary Affairs is hereby called upon to appear, if he so wishes, before the Constitutional Court on 20 November 2013, at 9.30am, to show cause why section 31 (a)(iii) of the Criminal Code should not have been declared to be in contravention of section 20(1) of the former Constitution.

The contention was that section 38(b)(1) of the Broadcasting Services Act [Chapter 12:06] violates the applicants' right to freedom of expression because it has the effect of prohibiting possession of appliances for receiving programmes broadcast by television and radio.

The applicants overlooked an important point relating to the nature of the constitutional power of taxation exercised by the legislature. In the exercise of the constitutional power of taxation, the legislature has an absolute discretion to select an activity or conduct and not others, as a subject of taxation. In this case, it selected receivers and chose to prohibit their possession without a listener's licence as the subject of taxation. The Legislature may prescribe the basis of tax, fix the value and require payment as it may deem proper. Within the limits of the constitutional power, it is supreme in its action.

See McCray v United States 195 US 27…,.

The fact that other motives may impel the exercise of taxation power does not authorize the courts to inquire into that subject. Whether the choice of the activity or conduct, as a subject of taxation, has the burdensome regulatory effect of restricting the activity or conduct in relation to the use of the appliance as a means of exercising freedom of expression by receiving broadcasting service from a provider of one's choice, cannot be investigated by the Court. Every tax is in some measure regulatory in effect. To some extent it interposes an economic impediment to the activity or conduct taxed as compared with others not taxed. But a tax is not any the less a tax because it has a regulatory effect.

If the legislation is within the taxing power it may not be declared unconstitutional because its effect may be to accomplish another purpose as well as the raising of revenue. The argument is the same as saying that the question of power depends not upon the authority conferred by the Constitution, but upon what may be the consequence arising from the exercise of the lawful authority.

If a tax be within the lawful power, the exertion of that power may not be judicially restrained because of the results that arise from its exercise. The power to tax is exercised oppressively upon persons who have fundamental rights. The rights are not destroyed. They are restricted to the extent necessary for the public purpose of raising revenue consistently with the principles of freedom and justice upon which the Constitution rests. See See McCray v United States 195 US 27…,.

As pointed out, inquiry into the hidden motives which may have moved the Legislature to exercise the power of taxation constitutionally conferred upon it, is beyond the competence of courts. The Court will not undertake a collateral inquiry, as to the measure of regulatory effect on the conduct of possession of an appliance capable of receiving a broadcasting service because of alleged violation of the right to freedom of expression. To do so would be an attempt to undermine the exercise by the Legislature of the constitutional power of taxation. 

Societies, by their very nature, evolve with time.

Parliament is not a mere rubber stamp.

Thus, there was no certainty that, after having debated the matter, Parliament would necessarily accept the draft Bill and enact it into law without any alteration.

Regulations constitute subsidiary legislation and the responsible Minister is obliged to check their compliance with the law in general…, before they are promulgated.

In short, any regulation presented before Parliament must be consistent with the laws of the country - including the common law….,.

Section 134(f) of the Constitution..., provides:

“134 Subsidiary legislation

Parliament may, in an Act of Parliament, delegate power to make statutory instruments within the scope of and for the purposes laid out in that Act, but -

(a)...,.

(b)...,.

(c)...,.

(d)...,.

(e)...,.

(f) Statutory instruments must be laid before the National Assembly in accordance with its Standing Orders and submitted to the Parliamentary Legal Committee for scrutiny.”...,.

Thus, it is evident that even though the regulations must be placed before the Minister for approval, they are still subject to mandatory scrutiny by Parliament. They cannot be promulgated unless the Parliamentary Committee tasked with their scrutiny and confirmation has been given the opportunity to do so and has confirmed that they are in compliance with the laws of the country, and, more importantly, that they are valid under the Constitution.

Section 141 of the Constitution makes provision for public access to and involvement in Parliament. It declares that:

“Parliament must -

(a) Facilitate public involvement in its legislative and other processes and in the processes of its committees;

(b) Ensure that interested parties are consulted about Bills being considered by Parliament, unless such consultation is inappropriate or impracticable; and

(c) Conduct its business in a transparent manner and hold its sittings, and those of its committees, in public, though measures may be taken -

(i) To preserve order in parliamentary proceedings;

(ii) To regulate public access, including access of the media, to Parliament and its committees;

(iii) To exclude the public, including the media, from sittings of committees; and

(iv) To provide for the searching of persons, and, where appropriate, the refusal of entry to Parliament or the removal of any person from Parliament;

but those measures must be fair, reasonable and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.”

Section 152 of the Constitution governs the formation, composition and functions of the Parliamentary Legal Committee (the PLC). In terms of section 152(3)(a):

“The Parliamentary Legal Committee must examine…, every Bill, other than a Constitutional Bill, before it receives its final vote in the Senate or the National Assembly…, and must report to Parliament…, whether it considers any provision in the Bill…, contravenes, or, if enacted, would contravene any provision of this Constitution.”

Having regard to the decisions in King & Ors v Attorneys Fidelity Fund Board of Control & Anor 2006 (1) SA 474 (SCA) and Doctors for Life International v Speaker of the National Assembly & Ors 2006 (6) SA 416 (CC), I have no doubt that the obligation of Parliament to secure public access to and involvement in its legislative and other processes, as enjoined by section 141 of the Constitution, is not merely a procedural pre-requisite pertaining to form and manner. Rather, it is a substantive Constitutional obligation within the contemplation of section 167(2)(d) of the Constitution which is fundamental to the lawful passage of every legislative enactment.

It is a Constitutional duty that must be complied with by Parliament in a fair, reasonable and justifiable manner….,.

The paramount importance of participatory democracy and public participation in the law-making process was aptly emphasised in Doctors for Life International v Speaker of the National Assembly & Ors 2006 (6) SA 416 (CC). In the words of NCGOBO J:

“Therefore, our democracy includes, as one of its basic and fundamental principles, the principle of participatory democracy. The democratic Government that is contemplated is partly representative and partly participatory, is accountable, responsive and transparent and makes provision for public participation in the lawmaking processes. Parliament must therefore function in accordance with the principles of our participatory democracy.” [at paragraph 116].

“It is implicit, if not explicit, from the duty to facilitate public participation in the law-making process that the Constitution values public participation in the lawmaking process. The duty to facilitate public participation in the law-making process would be meaningless unless it sought to ensure that the public participates in that process. The very purpose in facilitating public participation in legislative and other processes is to ensure that the public participates in the lawmaking process consistent with our democracy.” [at paragraph 135].

“In my judgment, public participation in the law-making processes of the NCOP is the goal of the duty to facilitate public involvement comprehended in section 72(1)(a). Participation is the end to be achieved. To hold otherwise would be contrary to the participative nature of our democracy and the Constitution's commitment to the principles of accountability, responsiveness and openness. Parliament, and all nine provinces, therefore, in my view, properly conceded that the duty to facilitate public involvement contemplates public participation in the lawmaking process.” [at paragraph 141].

“In the end, however, the duty to facilitate public involvement will often require Parliament, and the provincial legislatures, to provide citizens with a meaningful opportunity to be heard in the making of the laws that will govern them. Our Constitution demands no less.” [at paragraph 145].

By the same token, the duty vested in the Parliamentary Legal Committee (the PLC), by the peremptory provisions of section 152(3), to examine every Bill, for the purpose of considering whether it contravenes or would, if enacted, contravene any provision of the Constitution, is not a mere procedural prerequisite. In my view, it is a critical substantive obligation imposed upon the Parliamentary Legal Committee (the PLC) to ensure that Parliament is fully apprised of any Constitutional defect in proposed legislation to enable it to rectify such defect in order to secure due conformity with the Constitution.

It is trite that every enactment, by implication, imports the principle underlying the maxim omnia praesumuntur rite et solemniter esse acta. See BENNION: Statutory Interpretation…,.

The maxim establishes the presumption that an enactment, or delegated legislation, is properly passed or correctly made, until the contrary is proved.

There is no doubt that it is the Legislature that has the power, under the Constitution, to create crimes and prescribe punishments for them.

In the exercise of the power to prescribe punishments for crimes the Legislature is bound by section 44 of the Constitution. The section provides that in its capacity as an institution of Government the Legislature must respect, protect, promote, and fulfil the rights and freedoms set out in Chapter 4 of the Constitution. The Legislature is also required, under Chapter 2 of the Constitution, to adopt as the objective of the exercise of legislative power the protection of the fundamental rights and freedoms.

As was aptly captured by LORD DIPLOCK in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenberg AG [1975] 1 All ER 810…,:

“The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it. Where those consequences are regulated by a statute the source of that knowledge is what the statute says. In construing it, the court must give effect to what the words of the statute would be reasonably understood to mean by those whose conduct it regulates. That any or all of the individual members of the two Houses of Parliament that passed it may have thought the words bore a different meaning cannot affect the matter. Parliament, under our constitution, is sovereign only in respect of what it expresses by the words used in the legislation it has passed.”

Furthermore, as is lucidly expounded by MEGAW LJ in Ulster-Swift Ltd v Taunton Meat Haulage Ltd (1977) 3 All ER 641…, the danger of allowing judges the latitude of freely interpreting statutes according to their own view of what is just and equitable:

“…, is not, indeed, that the judges become legislators, but that they may become legislators with widely differing, and perhaps unduly legalistic, views of the policy which is, or ought to be, behind the legislation. Hence the law, whatever it may gain in other respects, may in some cases suffer a loss in what has always been regarded as one of the essential features of law – uniformity; or at least predictability. Sometimes, in relation to the judicial view of 'the presumed purpose of the legislation', it may be a case of quot judices, tot sententiae: whereas in relation to what the legislation has actually said, it is unlikely that judicial opinion would vary so widely.”

The principle of presumption of constitutional validity of legislation pending determination of the main application is an important limitation to the exercise of judicial power. Zimbabwe Township Developers (Pvt) Ltd v Lou's Shoes (Pvt) Ltd 1983 (2) ZLR 376 (S)…,.

By observing the principle, due respect is accorded to the legislative branch of Government consistent with the fundamental principle of separation of powers.

In Mathuthu v Chegutu Municipality & Others HH502-14, I said that:

“The authority, dignity and respect of courts of law should never be demeaned, prejudiced or undermined. It behoves the subject to bow to the decision of the court, and, where there exists a remedy, to then pursue that remedy elsewhere. This is extremely important for the proper administration of justice.”…,.

Every citizen of this country is obliged to obey the orders of the courts. That is the essence of the rule of law: see Mapfumo v Director of Housing and Community Service and Others HH274-14.

As stated by ROMER LJ in Hadkinson v Hadkinson (1952) 2 ALL ER 567 (CA)…,.;

“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it even extends to cases where the person affected believes it to be irregular or even void.”

See also Mpofu v Mlilo 2002 (1) ZLR 160 (H)…,.

Section 119(1) of the Constitution provides that Parliament must protect the Constitution and promote democratic governance in Zimbabwe.

The appellant argued, at length, and cited numerous authorities from our jurisdiction and beyond, on the need for courts, through judicial activism, to play their role in outlawing laws and practices that adversely affect the advancement of women's development in all spheres of life. It was argued in this and other respects, that, at common law, the courts are obliged to be 'judicially active' and develop the common law. Reliance for this argument was, inter alia, placed on the case of Zimnat Insurance Company Ltd v Chawanda 1990 (2) ZLR 143…, where GUBBAY ACJ…, stated:

“It sometimes happens that the goal of social and economic change is reached more quickly through legal development by the judiciary than by the Legislature. This is because judges have an amount of freedom or latitude in the process of interpretation and application of the law. It is now acknowledged that judges do not merely discover the law but they also make law. They take part in the process of creation. Law making is an inherent and inevitable part of the judicial process.”

Special mention was made of section 176 of the Constitution, which vests, in our higher courts, the power to protect and regulate their own processes and “to develop common law or the customary law, taking into account the interests of justice and the provisions of this Constitution.”…,.

Judicial activism, while having a place in our legal system, as in many others, and, in appropriate cases, however, has its limits. The major limitation to the law-making role of the courts is the need for the judiciary not to step onto the toes of the Legislature, whose primary mandate is to make laws through Parliament. I have no doubt in my mind that section 176 of the Constitution is not meant to vest the judiciary with authority to usurp the legislative responsibility of the Legislature. In this respect, I associate myself with the sentiments of TSANGA J as expressed in the case of Madzara v Stanbic Bank Zimbabwe Limited and Others HH546-15 as follows:

“In sum, much as judicial activisim has its place in law's advancement given the absence of constitutional breach in the manner averred by the Applicant in this case, and the clear recognition of a legislative gap that the State can be pressed to rectify, these are not issues that can be addressed through the enthusiastic pen of an overly activist judge. These issues require informed dialogue and the legislator's engagement with relevant stake holders on what would be realistic. Sight should not be lost of the significance of participation, for efficacy of laws, by those on whom they will have a bearing.”…,.

It should be noted in this case that the appellant's call was for the exercise of judicial activism taking the form of 'expanding' the common law, based only on the facts of the dispute at hand. The dispute clearly has a bearing on both social and economic issues but does not reflect the full ambit and reach of the problem sought to be addressed. The interests of other players, like banks and building societies, whose business includes the lending of money upon the pledging of immovable property as security would most likely be affected. One may envisage a situation where such entities may, to their detriment, become wary of extending mortgage bond facilities to a married couple aspiring to acquire and jointly own a matrimonial home, to any married person for that matter, or to a married couple wishing to raise funds to develop their jointly owned property! One may also not rule out collusion between an unscrupulous married couple, who may borrow money from a lending agency and then hide behind their joint ownership of a matrimonial home in order to frustrate the creditor's efforts to recover its money. Furthermore, it must be accepted that the second respondent was unable to find any other property belonging to the first respondent that could have been attached and sold in execution in order to raise the not inconsiderable amount that it is owed. It falls to reason that granting the relief sought by the appellant would leave the second respondent with no recourse - much to its prejudice. These and other related matters are weighty and complex. They need proper consideration before such a fundamental change to the common law, as is sought by the appellant, can be effected, even by the Legislature should it be so persuaded.

The Judiciary, by nature, lacks the resources or any capacity to undertake such a task.

That being the case, it is patently evident that granting the relief sought by the appellant, while it may solve her particular problem, would create problems for many others on whom it would impact. It is not the type of relief that the court may properly grant. This dilemma is aptly captured by FRANKFURTER J in the USA case of Sherrer v Sherrer 334 US 343, 366 (1948), as follows:

“Courts are not equipped to pursue the paths for discovering wise policy. A court is confined within the bounds of a particular record, and, it cannot even shape the record. Only fragments of a social problem are seen through the narrow window of litigation. Had we innate or acquired understanding of a social problem in its entirety we would not have at our disposal adequate means for constructive solution.”

This is in line with the sentiments of GUBBAY CJ in Walker v Industrial Equity Limited 1995 (1) ZLR 87 (S) when he stated:

“Almost ninety years ago, in Blower v Van Noorden 1909 TS 890 at 905, INNES CJ aptly observed that:

'There comes a time in the growth of every living system of law when old practice and ancient formulae must be modified in order to keep in touch with the expansion of legal ideas and to keep pace with the requirements of changing conditions. And it is for the courts to decide when the modifications, which time has proved to be desirable, are of a nature to be effected by judicial decision and when they are so important or so radical that they should be left to the legislature.'”…,.

In my view, this is a proper approach to judicial decision-making which strikes the correct balance between excessive caution, on the one hand, and judicial over-reach, on the other.

HLATSHWAYO JA had occasion to comment on the same dilemma in his former life as an academic some two decades ago, thus:

“In point of fact, though, there is no great difference between the two approaches, especially given the very limited scope of judicial law-making. However, the consequences of adopting one approach as against the other are far-reaching on the maintenance of the rule of law structure, the development and consolidation of human rights and human rights culture. To use a homely description, judicial law making could be likened to 'grazing over the fence'. Now, it is one thing when judges stretch their necks to graze on the sweet green grass bordering the judicial paddock and quite another for them to go trip, trap, trip, trap, billy goat Gruff style, across the bridge to graze on the other side. Then, one never knows what ugly trolls they might disturb and the constitutional havoc that might ensue. In this illustration, judicial restraint can be compared to stretching the neck as far as it can go to graze on the sweet green grass, while remaining within the judicial constitutional space and judicial activism, to bolting out of the paddock and going round to eat perhaps the very same grass or a little bit more further afield. The extra mouthful of grass, I submit, is not worth the consternation that the act of bolting out of the judicial enclosure causes!”

Order in the Courts: Judicial Activism and Restraint, 1997, Legal Forum…,.

It is not to be denied that the relief sought by the appellant is one that would resonate with women's rights activists and many married women who jointly own matrimonial property with their husbands. This is because it would deal a killing blow to one of the major social and cultural pressures that serve to stifle the economic empowerment of married women, their access to vital resources like reliable shelter and the security that all this brings to women and families as a whole. I however agree with the learned judge a quo, and the authorities cited, that the complexity of the matter at hand and its undeniable impact on other players who are not parties to this claim, are issues that should properly be left to the legislature to address. The issue at hand is one that, to use TSANGA J's words in the case of Madzara v Stanbic Bank Zimbabwe Limited and Others HH546-15 “requires informed dialogue and the legislator's engagement with relevant stakeholders on what would be realistic.” Thus, thorough, systematic legislation informed by views garnered from consultation with relevant players and stake-holders is necessary in addressing problems like the one at hand that impinge on matters to do with the country's social and economic development.

I do not entertain any doubt, when all is said, that the exercise of judicial restraint is properly called for in relation to the legal changes sought in casu….,.

When all is said, there is, in my opinion, a clear need for those who advocate for the protection of the rights of women, children, and the family as whole, to lobby the Legislature to enact laws that address the problem in casu and similar issues. As indicated, I concur with the view taken by the court a quo, that this is a matter to be properly dealt with by substantive law rather than through the court taking “a robust approach” in protecting women's constitutional rights as contended for the appellant.

It is the Constitution of a country which provides for limits on legislative power to enact retrospective laws. See Kameshwar Nath Chaturvedi “Legislative Retrospectivity and Rule of Law” Statute Law Review 34(3)(2013)…,.

It is important to state that, with the exception of the area of Criminal Law, there is no provision in the Constitution that prohibits the enactment of retrospective Civil legislation. Whilst the Constitution offers meaningful constitutional restraint against retrospectivity with regard to Criminal legislation in terms of practical limitation upon the exercise of legislative power, this safeguard does not extend to civil legislation. In other words, there is no constitutional requirement of civil legislation prospectivity….,.

Section 70(1)(k) of the Constitution expressly prohibits the enactment of retrospective (ex post facto) criminal law by making an act or omission which was not an offence when it was committed an offence. It provides that any person accused of an offence has a right “not to be convicted of an act or omission that was not an offence when it took place.”

Section 70(1)(k) of the Constitution is an absolute prohibition of ex post facto penal laws. It applies only to retrospective criminal legislation….,.

The legislative authority vested in the Legislature by the people, in terms of section 117(2)(b) of the Constitution, confers on it the power to make laws on any subject and at its discretion for the purposes of peace, order and good governance of Zimbabwe. Retrospectivity is one of the methods by which the Legislature chooses to implement civil legislation it enacts for the purposes of peace, order and good governance. The words “peace, order and good governance” are words of very wide import, giving wide discretion to the Legislature to pass laws for such purpose. The words have, of course, reference to the scope and not the merits of the legislation. See Att. Gen. for Saskatchewan v Canadian Pacific Rly. Co [1953] AC 594…,.; Bribery Comr. v Ranasinghe [1965] AC 172…,.; Cobbs & Co Ltd v Kropp [1967] AC 141…,. There is no constitutional provision that prohibits the Legislature from using retrospectivity as a method of giving effect to civil legislation.

Retrospective lawmaking has been part of instruments of governance of human affairs for many centuries. The only constitutional limitation to the exercise of that power is that the retrospective application of the law must not infringe the fundamental human rights and freedoms enshrined in Chapter IV of the Constitution. Concerns about the inexpediency and injustice of the retrospectivity of legislation properly conveyed do not, therefore, raise any doubt as to the power of the Legislature under the Constitution to enact retrospective civil legislation.

What this means is that a statutory provision cannot be held unconstitutional on the ground that it gives retrospective effect to a civil statute….,.

P. W. HOGG, in Constitutional Law of Canada, 3ed (1992)…, wrote:

“Apart from section11(g), Canadian constitutional law contains no prohibition of retroactive (or ex post facto) laws. There is a presumption of statutory interpretation that a statute should not be given retro-active effect, but, if the retroactive effect is clearly expressed, then there is no room for interpretation and the statute is effective according to its terms. Retroactive statutes are in fact common. The power to enact retroactive laws, if exercised with appropriate restraints, is a proper tool of modern government. Section 11(g) diminishes this power only by excluding the creation of retroactive criminal offences. Other kinds of laws may still be made retroactive.”

Section 11(g) of the Canadian Charter of Rights is, in substance, similar to section 70(1)(k) of the Constitution….,.

In the exercise of its power under section 117(2)(b) of the Constitution, the Legislature can legislate any subject matter and order retrospective application of civil legislation as long as doing so is for the purposes of peace, order and good governance of Zimbabwe. The Legislature is at liberty to decide whether the civil legislation enacted is to have retrospective application….,.

Section 44(1) of the Constitution imposes on the Legislature an obligation to respect, protect, promote and fulfil the fundamental human rights and freedoms enshrined in Chapter IV when exercising the legislative powers in terms of section 117(2)(b) of the Constitution.

Clarity and un-ambiguity of legislation are requirements of the principle of legality which is an aspect of the rule of law.

The fundamental principle of the rule of law, to the effect that all State power is bound by law and that everyone is bound by law, means that there is equal application of law since the very nature of law demands universal application. Section 56(1) of the Constitution speaks to substantive equality.

In Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143 (SC), GUBBAY CJ said…, (McNALLY JA and MANYARARA JA concurring):

“Law in a developing country cannot afford to remain static. It must undoubtedly be stable, for otherwise reliance upon it would be rendered impossible. But, at the same time, if the law is to be a living force it must be dynamic and accommodating to change. It must adapt itself to fluid economic and social norms and values and to altering views of justice. If it fails to respond to these needs and is not based on human necessities and experience of the actual affairs of men rather than on philosophical notions, it will one day be cast off by people because it will cease to serve any useful purpose. Therefore, the law must be constantly on the move, vigilant and flexible to current economic and social conditions….,.

Today, the expectations amongst people all over the world, and particularly in developing countries, are rising, and the judicial process has a vital role to play in moulding and developing the process of social change. The Judiciary can and must operate the law so as to fulfil the necessary role of effecting such development.

It sometimes happens that the goal of social and economic change is reached more quickly through legal development by the Judiciary than by the Legislature. This is because judges have a certain amount of freedom or latitude in the process of interpretation and application of the law. It is now acknowledged that Judges do not merely discover the law, but they also make law. They take part in the process of creation. Law-making is an inherent and inevitable part of the judicial process.

The opportunity to play a meaningful and constructive role in development and moulding the law to make it accord with the interests of the country may present itself where a judge is concerned with the application of the common law, even though there is a spate of judicial precedents which obstructs the taking of such a course. If judges hold their precedents too closely, they may well sacrifice the fundamental principles of justice and fairness for which they stand. In a famous passage, LORD ATKIN, referring to judicial precedents, said:

'When these ghosts of the past stand in the path of justice clanking their medieval chains the proper course is for the judge to pass through them undeterred.'”

The applicant filed a court application before this court on 8 May 2011 seeking an order for the amendment of the judgment handed down by this court on 23 January 2008 under case number HC4252/2001. The order of January 2008 reads as follows:

“Judgment is entered in favor of the plaintiff as follows:

That Defendant pays;

(a) BP63,750 as replacement value for his damaged vehicle.

(b) 83,717=09 for medical expenses.

(c) BP1,800,000 for loss of income.

(d) $3.50 for towing charges.

(e) BP12,000,000 for car hire charges.

(f) $2,000,000 for pain and suffering.

(g) $850,000 for disability.

(h) $1,000,000 for future medical expenses.

(i) Costs of suit.”

The order sought by the applicant in this matter relates to the Zimbabwe dollar component of that order. The applicant seeks an order that the judgment of this Honorable Court, in case number HC4252/2001, dated 23 January 2008 be amended as follows:-

“That the Defendant pays to the Plaintiff:

1. USD$2,790=60 for medical expenses.

2. USD$116=66 for towing charges.

3. USD$66,666=67 for pain and suffering.

4. USD$28,333=30 for disability.

5. USD$66,666=67 for future medical expenses.

6. Interest at the prescribed rate of 5% per annum calculated from the date of judgment to the date of payment.

7. Costs of suit.”…,.

It is common cause that upon the introduction of the multi-currency basket in January 2009, Parliament did not see fit to introduce any legislation to enable this court to look at judgments given before January 2009.

It was contended that, in the absence of legislative authority that enables this court to look at judgments given in Zimbabwe dollars before dollarization in January 2009 we must be guided by the usual common law Rules.

I find myself in full agreement with these statements of the law as it currently stands….,.

On 21 December 1999 at the 12km peg along the Rusape to Nyanga road a horrific collision involving the respondent and an employee of the appellant occurred. The former sustained frightful injuries. Sadly, the appellant's employee succumbed to injuries occasioned from the collision.

The following facts are common cause.

The respondent sued for and was awarded damages by the High Court on 23 January 2008. The damages so awarded were the following:

(i) BP (Botswana Pula) 63,750 for the cost of replacement of a vehicle;

(ii) BP83,717=90 in respect of medical expenses.

(iii) BP1,800,000 for loss of income.

(iv) Z$3,500 towing charges.

(v) BP12,000,000 car hire charges.

(vi) Z$2,000,000 shock, pain and suffering.

(vii) Z$850,000 disability damages.

(viii) Z$1,000,000 future medical expenses.

The appellant was dissatisfied with the judgment and appealed to this Court against the finding of vicarious liability as well as the amounts awarded in Botswana Pula (BP). There was no appeal against the amounts denominated in the Zimbabwe dollar. On 28 February 2012 this Court, in the case of The Cold Chain (Pvt) Ltd v Robson Makoni SC09-12, issued an order in the following terms:

“IT IS ORDERED THAT:

1. The application to adduce further evidence is dismissed with costs.

2. The appeal against the finding of vicarious liability is dismissed.

3. The appeals in respect of the value of the replacement motor vehicle, vehicle hire charges, and lost income are allowed and the order of the court a quo is altered in the following respects:

(i) In paragraph (a), Botswana Pula 40,000 is substituted for BP63,000;

(ii) In paragraph (c), Botswana Pula 616,200 is substituted for BP1,800,000;

(iii) In paragraph (e), Botswana Pula 6,000 is substituted for BP12,000,000.

4. There will be no order as to costs of appeal.

It is common cause that the appellant paid the amounts denominated in Botswana Pula. In respect of the other sums it tendered payment in Zimbabwe dollar. The respondent rejected the tender. He contended that due to the erosion of the currency it had become moribund due to disuse, and, as such, he had no use for it. He could not tender the same for payment to anyone.

An impasse ensued which resulted in the respondent filing an application with the High Court for the conversion to United States Dollars of the sums awarded to him in the local currency.

The High Court found that it had no jurisdiction to convert the amounts thus awarded to United States dollars. It said:

“In conclusion, this Court's opinion on the issue of currency nominalism, in the circumstances of this case, is that, while on the whole this Court has inherent jurisdiction to ensure that the process of execution is neither abused nor unfair, it does not have jurisdiction to rewrite an order in the manner sought by the applicant. I hold the considered view that this Court cannot revalue an order for purpose of execution.”

In short, it declined jurisdiction.

The respondent was aggrieved and appealed to this Court and was successful. In Robson Makoni v The Cold Chain t/a Sea Harvest SC55-16, this Court said the following:

“The principles enunciated in the case of Dube (supra) demonstrate that the once and for all rule is not applicable to the facts of this case because the applicant is not seeking further damages for the injuries he sustained in the accident. He is seeking the conversion of the damages he was awarded by the High Court in 2008 in Zimbabwean dollars to United States dollars. The appellant's application is intended to facilitate the enforcement of the order of damages in Zimbabwean dollars. The once and for all rule prevents a plaintiff from seeking further damages from a cause of action previously sued on. It does not prevent him from seeking the currency adjustment of an order already granted by the court.

Courts have authority to adjust their orders but under prescribed circumstances. Those circumstances depend mainly on whether or not the court will be functus officio.

The court a quo erred by relying on the once and for all rule to hold that it had no jurisdiction to hear the appellant's application. The application was for the conversion of already granted Zimbabwean dollar awards to United States dollars, which both parties agree have not yet been paid as there is a dispute as to how payment should be made. It was thus premised on a subsequent dispute over how damages awarded by the High Court in 2008 should be enforced.

The court's awards had been made uncertain by the dollarization of the Zimbabwean economy.

The appellant could not have reasonably foreseen that the Zimbabwe currency was going to be rendered moribund by the introduction of the United States dollar as usable currency in Zimbabwe.”

The court therefore allowed the appeal and issued an order in the following terms:

“Accordingly, it is ordered as follows;

1. The appeal is allowed with costs.

2. The decision of the court a quo is set aside.

3. The matter is remitted back to the court a quo for a hearing and determination on the merits.”

The words of OLIVER WENDELL HOLMES in his opening page of The Common Law…, state that:

“The life of the law has not been logic; it has been experience…,.The law embodies the story of a nation's development through many centuries.”

This matter has trudged a long and tortuous journey.

The applicants are former employees of the respondent who were charged with misconduct and dismissed in 2005 following disciplinary processes. The applicants challenged their dismissal right up to the Labour Court in case number LC/H15/06. The Labour Court found for the applicants on 5 July 2007 and ordered their reinstatement, alternatively, payment of damages in lieu of reinstatement. The respondent opted to pay damages, caused their quantification on 10 December 2008 equivalent to 5 years salary using the cut off date of 5 July 2007 and tendered them to the applicants.

The tender, dated 11 February 2009 from the respondent's legal practitioners addressed to the applicants' erstwhile legal practitioners, Mwonzora & Associates, reads:

“RE: L MAWERE AND OTHERS v FLEXMAIL: QUANTIFICATION OF DAMAGES

In line with the judgment of the Labour Court handed down on 10 December 2008, please find herewith our client's cheque in the sum of $12,594=77 (revalued) in full settlement of the amounts due to your clients. A copy of the schedule as to how the various figures were arrived at is attached hereto.

You will note from the computation that the amounts have been revalued and inflation adjusted to February 2009.

The matter is accordingly closed…,.”

The applicants, through their then legal practitioners mentioned above rejected the tender and returned the cheque in question. The attempt at payment was tendered after breakdown of quantification negotiations. The primary reason for rejecting the tender was that the respondent attempted to pay the damages in Zimbabwe dollars in February 2009 when the currency had become moribund.

In their amended draft order the applicants are seeking a declaratory order in the following terms:

“IT IS HEREBY ORDERED:

1. The respondent be and is hereby ordered to pay damages in lieu of reinstatement to the applicants in United States Dollars using the initial United States Dollar salary scales which were used by the respondent when it started paying its employees in foreign currency.

2. That the respondent pay the costs of suit.”

The main thrust of the applicants' argument, as gleaned from the founding affidavit and heads of argument, is as follows:

The applicants have approached this court, since it is the only court with inherent jurisdiction, seeking a declaratur that the principle of currency nominalism has no place in Labour Law (a common law principle) as it would be at variance with the Labour Act's aim of achieving social justice. Further, they seek a declaration to the effect that damages in lieu of reinstatement have to be paid in an effective manner, that is in an amount, currency, and quantity that achieves fairness as required by the Labour Act. The applicants further seek an order compelling the respondent to pay damages in United States dollars using the initial United States dollar salary scales which were used by the respondent when it started paying its employees in foreign currency i.e. in February 2009. A successful appellant, so the argument went, should have a discretion to choose payment of damages in the currency that will redress the injury suffered and adequately compensate him/her/ it for the loss as well as fulfil the objectives of the Labour Act.

Interpreting the order of the Labour Court to mean payment in Zimbabwe dollars would amount to making the order a brutum fulmen because the Zimbabwe dollar, by the time of the tender, had became de facto valueless and useless, this would amount to non-payment thereby reducing court orders into empty judgments which is both unfair and against public policy.

The respondent's opposition was premised on the following main planks:

1. The matter is res judicata in that the Labour Court handed down judgment in case number LC/H/15/06 ordering the respondent to either reinstate the applicants or pay damages in lieu thereof. Following quantification of such damages, the amount due and payable was duly remitted to the applicants. In the event, this application disguised as an “application for a declaratory order” is merely meant to deal with the same issues which were concluded by the Labour Court.

2. The issue brought before this court is an employment/labour issue and by virtue of section 89(6) of the Labour Act [Chapter 28:01], the jurisdiction of this court is ousted.

3. What the applicants are asking this court to do is to:

3.1 Ignore the salaries payable to the applicants as at 5 July 2007 when an order of reinstatement was made by the Labour Court.

3.2 Depart from the current position of law and order payment of damages based on a date after the order of reinstatement was made.

3.3 Ignore the lawful currency that governed the contractual relationship between the parties as at 5 July 2007 (which required payment of salaries in Zimbabwe dollars) and set aside that trite position to enable the applicants to be paid afresh damages in lieu of reinstatement in US dollars. This is despite the fact that, as at 5 July 2007, the applicants' employment contracts entitled them to remuneration in Zimbabwe dollars and not in US dollars sought by the applicants.

4. The issues raised by the applicants have been dealt with by the courts on many occasions and are not unique to the applicants.

I am mindful of the fact that what the applicants are inviting this court to do, as submitted by counsel for the respondent, boils down to two pertinent issues, viz:

1. To do that which Parliament should, i.e. to make law by repealing the common law principle of currency nominalism; and

2. To “overrule” those decisions of the Supreme Court which have already made the point that in quantification of damages in respect of labour disputes, the rates that are applicable are those that applied at the time of dismissal or suspension. See Redstar Wholesalers v E Mabika SC52-05 and First Mutual Life Limited v Jackson Muzivi 2000 (1) ZLR 325 (S)....,.

Regarding the point raised, that the applicants are inviting this court to do what Parliament should, viz to make law by repealing the common law principle of currency nominalism, it is settled that it is not impermissible of the judiciary to make law by way of decided cases if an opportunity presents itself to plug a legislative gap especially where not to do so will leave many an unlawfully dismissed employee languishing in the asylum of financial misery.

The applicants are not asking this court to declare that the principle of currency nominalism no longer has any space in our common law generally. They are simply asking the court to pronounce that following the introduction of the multi currency regime, in January/February 2009, and the concomitant disuse of the Zimbabwe dollar which had become moribund as a result of economic and many other circumstances which had conspired to facilitate this major unprecedented conflagration, and Parliament has remained in a near catatonic state in addressing this occurrence, this court should declare that in the realm of employment relations, the principle of nominalism has, for now, no place until economic normalcy has been restored.

This court is enjoined to take judicial notice of the reality that immediately before and after the country adopted the multi-currency regime, in about February 2009, the Zimbabwe dollar was so valueless that it had ceased to be the medium of exchange in all financial transactions. To therefore have an employer tender damages in lieu of reinstatement in the form of Zimbabwe dollars in February 2009, as what the respondent did to the applicants in casu, is tantamount to giving someone an ordinary stone and expect him/her to transact using that stone as a medium of exchange. It does not make any sense in any sane society.

Should Zimbabwe continue being immutable to change on this score?

On principles of equity, this court should tread a path that will avoid iniquity and injustice where legislative intervention is not forthcoming.

The words of GUBBAY ACJ…, in the case of Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143 (S)…, regarding judicial law-making, bear useful repetition for clarity:

“Even if confirmation of the appellant's liability to the respondent should meet with disapproval as being an encroachment upon the discretion reposed in the law-giver to change the law, we would strongly defend the Judiciary's right to do so. Law in a developing country cannot afford to remain static. It must undoubtedly be stable, for otherwise reliance upon it would be rendered impossible. But, at the same time, if the law is to be a living force it must be dynamic and accommodating to change. It must adapt itself to fluid economic and social norms and values and to altering views of justice. If it fails to respond to these needs, and is not based on human necessities and experience of the actual affairs of men rather than on philosophical notions, it will one day be cast off by the people because it will cease to serve any useful purpose. Therefore, the law must be constantly on the move, vigilant and flexible to current economic and social conditions.”

After quoting the celebrated American jurist, OLIVER WENDELL HOLMES opening page of his famous work, The Common Law which reads:

“The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries and it cannot be dealt with as if it contained only the axioms and corollaries of a Book of Mathematics.”

The learned ACTING CHIEF JUSTICE, at page 154 paragraphs A-E of Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143 (S), went on to say:

“Today, the expectations amongst people all over the world, and particularly in developing countries, are rising, and the judicial process has a vital role to play in moulding and developing the process of social change. The judiciary can, and must, operate the law so as to fulfil the necessary role of effecting such development. It sometimes happens that the goal of social and economic change is reached more quickly through legal development by the Judiciary than by the Legislature. This is because judges have a certain amount of freedom or latitude in the process of interpretation and application of the law. It is now acknowledged that judges do not merely discover the law - but they also make law. They take part in the process of creation. Law-making is an inherent and inevitable part of the judicial process. The opportunity to play a meaningful and constructive role in developing and moulding the law to make it accord with the interests of the country may present itself where a judge is concerned with the application of the common law, even though there is a spate of judicial precedents which obstructs the taking of such a course. If judges hold to their precedents too closely they may well sacrifice the fundamental principles of justice and fairness for which they stand.”

The learned ACTING CHIEF JUSTICE then quoted a famous passage by LORD ATKIN, referring to judicial precedents:

“When these ghosts of the past stand in the path of justice clanking their medieval chains the proper course is for the judge to pass through them undeterred.”

The quotations cited above are not only attractive and persuasive but fit the instant scenario of the application before me like a fiddle.

The principle of currency nominalism works fairly in an economy which can be described as normal or stable, or, at the very worst, in which inflation is not hyper, not like in an environment with a runaway inflation as was the case in this country in the period immediately preceding the introduction of the multi-currency regime.

After introduction of multiple currency, in February 2009, it is beyond cavil that the Zimbabwe dollar died a natural death by disuse. To then give someone such currency, which no one nationwide was prepared to accept in any transaction, let alone beyond our borders, as damages in lieu of reinstatement, and after having laboured for the employer for periods ranging between 25 and 46 years like what the respondents did in casu is not only immoral but an infringement of a human right.

If judges continue to cling to their precedents in such a scenario of social and economic change, like the grasp of an epileptic during a fit, they will certainly be sacrificing the fundamental principles of justice and fairness for which they stand.

I am prepared in the instant case not to let the ghosts of the past stand in the path of justice clanking their medieval chains but to pass through them undeterred in the interests of justice and fairness.

In any event, the assertion that by granting the order sought would be usurping the role of the Legislature has no legal leg to stand on for the issuing of orders in foreign currency has been decisively dealt with before locally, regionally, and internationally.

In Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC) GUBBAY JA…, was of the view that in the absence of any legislative enactments which require our courts to order payment in local currency only, the innovative approaches taken in England and South Africa, making orders in foreign currency, had to be adopted in order to bring Zimbabwe into line with other foreign legal systems. In that case, the court relied on the House of Lords decision in Owners of the MV Eleftherotria v Owners of the MV Despina R (1971) 1 ALL ER 421 (HL).

In South Africa, a similar approach was followed in the case of Elgin Brown & Hammer v Dampskibsselskabet Torm Limited 1988 (4) SA 671 (NPD).

After reviewing the three authorities cited immediately above, MAKARAU JP…, awarded delictual damages in foreign currency to a party who had purchased a house in local currency against a seller who had failed to effect transfer as a result of a prior sale to another party in Kwindima Fabiola v Mvudura Louis HH25-09. At page 5 of the cyclostyled judgment the learned judge reasoned as follows:

“It appears to me that the issue I have to determine is whether to extend the approach that has been taken in the Makwindi case and be innovative enough to suggest that where a loss has been suffered and can be calculated in both the local and in a foreign currency, the court has a discretion to award judgment in that currency that will redress the injury suffered and adequately compensate the plaintiff for the loss. It would then follow that where that currency is the foreign currency as opposed to the local currency, then judgement should be in the foreign currency, for to award damages in the local currency, where the local currency has been rendered valueless by inflation might be to deny a plaintiff the redress that he or she seeks.”

Adopting the approach taken in Kwindima Fabiola v Mvudura Louis HH25-09, I am persuaded that in the instant case, in order to adequately compensate the applicants, the currency which the respondent must pay them as damages for unlawful dismissal in lieu of reinstatement should be in foreign currency. I say so because in a multi-currency regime where the local currency has become moribund, to award damages to an unlawfully dismissed employee who has toiled for the employer for between 25 and 46 years in such local currency is not only clinging to a positivist jurisprudential approach but iniquitous and offends against all known tenets of justice in a civilised and democratic society.

Such an award should not be a brutum fulmen but must be meaningful and beneficial to the beneficiary.

Even on an international plane, in terms of Article 10 of the I.L.O. Convention 158 Termination of Employment Convention 1982, adequate compensation should be paid for unjustified loss of employment.

Certainly payment in Zimbabwe dollars in this era will not amount to adequate compensation.

GUBBAY CJ observed, in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC)…,:

“That the majority of the Law Lords succeeded in surmounting (such) an obstacle and opted for a more realistic approach to modern economic conditions is strongly illustrative of the concept, never to be overlooked, that the law is a living system that adapts to the necessities of present times and is to be given new direction, where, on principle and in reason it appears right to do so.”