The two cases were heard together because they raised the same constitutional questions for determination. The cases are about the constitutionality of the provisions of the Broadcasting Services Act [Chapter 12:06] (“the Act”) on funding for the provision of public broadcasting services.

In each case, five questions were referred to the Supreme Court for determination by a magistrate in terms of section 24(2) of the former Constitution upon request by the applicant. The learned magistrate was of the opinion that the request for referral of the constitutional questions which had arisen in the proceedings before him was not frivolous or vexatious. The referral took place  in proceedings in which the applicant faced a criminal charge of possessing a television set without a viewer's licence in contravention of section 38(B)(1) as read with section 38E(1)(h)(i) of the Broadcasting Services Act [Chapter 12:06].

The questions presented in argument for determination at the hearing in each case were whether sections 38B(1), 38C, 38D(2) and 38E(1)(C)and 38E(i)(h)(i) of the Broadcasting Services Act [Chapter 12:06] each infringe the applicant's constitutional right to protection from compulsory deprivation of property (section 16(1)), the right to the protection of the law (section 18(1)), and the right to freedom of expression (section 20(1)).

The applicant, in each case, seeks a declaration that each provision of the Broadcasting Services Act [Chapter 12:06] infringes each of the fundamental human rights enshrined in the relevant provision of the Constitution and is invalid….,.

The Court holds, in each case, that each provision of the Broadcasting Services Act [Chapter 12:06], the constitutionality of which is challenged, does not contravene the fundamental human right enshrined in the relevant provision of the Constitution. Each provision of the Broadcasting Services Act [Chapter 12:06] is a legitimate exercise by the Legislature of the constitutional power vested in it in respect of the matters legislated upon. The provisions of the Broadcasting Services Act [Chapter 12:06] in question are valid. 

This judgment determines the Constitutional Court application launched by the applicant in case number SC-7-03 as well as the appeal by the second respondent against the judgment of the Administrative Court in case number SC-359-03.

As will appear from the facts, the two cases involve the same parties, except for the first and third respondents who were not parties to the proceedings in the Administrative Court, and the facts are very closely related. It is convenient to deal with the two matters in one judgment. I shall refer to Associated Newspapers of Zimbabwe (Pvt) Ltd as the applicant throughout the judgment and the other parties as the respondents. The second respondent is, however, the appellant in the appeal from the Administrative Court.

The applicant is an incorporated company with limited liability and registered in terms of the laws of Zimbabwe. The first respondent is the Minister of State for Information and Publicity (hereinafter referred to as 'the Minister') in the Office of the President responsible for the administration of the Access to Information and Protection of Privacy Act [Chapter 10:27] (hereinafter referred to as 'the Act'). The second respondent is the Media and Information Commission ('the Commission'), a body corporate capable of suing and being sued, established in terms of section 38 of the Access to Information and Protection of Privacy Act [Chapter 10:27]. The functions and powers of the Commission include the power to register the mass media service providers in Zimbabwe. The third respondent is the Attorney-General who has been cited in terms of section 24(6) of the Constitution of Zimbabwe.

The applicant is the owner and publisher of The Daily News, a daily newspaper published and distributed physically, throughout Zimbabwe, and worldwide on the internet. It is common cause that the applicant is a provider of a mass media service.

In terms of section 66 of the Access to Information and Protection of Privacy Act [Chapter 10:27], a provider of a mass media service is required to register before it can provide such service. Upon the coming into operation of the Access to Information and Protection of Privacy Act [Chapter 10:27], the existing mass media service providers, including the applicant, were given a grace period of three months within which to register. The Regulations necessary to facilitate the registration of mass media service providers were not promulgated in time and the registration date was extended. Further extensions for registration were granted, with 31 December 2002 as the new deadline date. It is common cause that the applicant did not apply for registration by the deadline date of 31 December 2002. Despite not being registered, the applicant continued to publish The Daily News and its sister newspaper, The Daily News on Sunday.

The applicant's failure to register was a deliberate contravention of section 66 of the Access to Information and Protection of Privacy Act [Chapter 10:27].

The applicant's stance was that it could not, in good conscience, obey a law that required it to register as such a law, in its view, was unconstitutional. In pursuance of this stance the applicant challenged the constitutional validity of several sections of the Act - including section 66.

At the hearing of the constitutional challenge, the respondents raised the point in limine that the applicant had approached the Court with dirty hands because the applicant was operating as a mass media service provider without being registered in terms of section 66 of the Access to Information and Protection of Privacy Act [Chapter 10:27]. On this basis, it was argued that the Court should refuse to entertain the court application until such time as the applicant had submitted itself to the law.

This Court determined the preliminary point in favour of the respondents. In this regard the Court had this to say:

“This Court is a court of law, and, as such, cannot connive at or condone the applicant's open defiance of the law. Citizens are obliged to obey the law of the land and argue afterwards. It was entirely open to the applicant to challenge the constitutionality of the Act before the deadline for registration and thus avoid compliance with the law it objects to pending a determination by this Court. In the absence of an explanation as to why this course was not followed, the inference of a disdain for the law becomes inescapable. For the avoidance of doubt, the applicant is not being barred from approaching this Court. All that the applicant is required to do is to submit itself to the law and approach this Court with clean hands on the same papers.

Compliance with the law does not necessarily mean submission of an application for registration to carry on the activities of a mass media service. It certainly means desisting from carrying on the activities of a mass media service illegally.”

See Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for Information and Publicity and Ors SC20-03.

The above citation has been the subject of varied interpretation by the parties. The citation simply means that a number of options were open to the applicant to bring itself within the law. In particular, the applicant could have challenged section 66 of the Access to Information and Protection of Privacy Act [Chapter 10:27] before the Act came into operation, and sought the Court's indulgence to continue publishing pending the determination of its Constitutional challenge. The applicant could have stopped providing a mass media service pending the determination of its Constitutional challenge. The applicant could have applied for registration, and, upon being registered, continued providing a mass media service while at the same time challenging the constitutionality of section 66 of the Access to Information and Protection of Privacy Act [Chapter 10:27].

Other mass media service providers exercised one or more of the above options enabling them to operate within the law.

The applicant chose to operate outside the law pending the determination of the Constitutional challenge. In adopting this course, the applicant created problems for itself. The issue is not the contents or slant of the applicant's newspapers. There are several mass media service providers that are as critical of the Government and the establishment as the applicant's newspapers. They registered and are operational. The issue, as far as this Court is concerned, is one of compliance with the law - nothing more and nothing less. Nobody is above the law and that includes the applicant. The applicant's contention that it is being victimised because of its editorial inclination is totally without foundation. Once the applicant complies with the law this Court will accord it the same protection that it accords all citizens who are law-abiding.

The judgment on the point in limine in this case, No. SC20-03, was handed down on 11 September 2003. Despite the Court's ruling that the applicant was operating illegally, it continued providing mass media services.

The applicant was eventually stopped by the police from its continued breach of the law.

On 15 September 2003, the applicant applied to the Media and Information Commission for registration as a mass media service provider.

The Commission turned down the application on 19 September 2003….,.

The applicant was aggrieved by the refusal of registration and appealed to the Administrative Court in terms of section 60 of the Access to Information and Protection of Privacy Act [Chapter 10:27]. The notice of appeal sets out ten grounds of appeal. The Administrative Court dealt with only three of the ten grounds of appeal, namely;

(i) Improper constitution of the second respondent;

(ii) The allegation that the Commission acted ultra vires; and

(iii) Bias on the part of the Chairman of the Commission.

It is not clear from the record why the other grounds of appeal were not dealt with.

The Administrative Court allowed the appeal. It ordered that the Media and Information Commission be re-constituted and register the applicant by 30 November 2003, failing which the applicant would be deemed to be registered. The order reads as follows:

“Accordingly, it is ordered that –

(a) There be appointed by the appointing authority a validly constituted Board as envisaged in section 40 by the 30^th of November 2003;

(b) The Board is to issue the appellant with a certificate of registration on or before that date, failing which the appellant shall be deemed to be registered as from that date.”

The Commission, dissatisfied with the determination by the Administrative Court, appealed to this Court. That appeal was noted on 31 October 2003, under case No. SC-320-03.

The noting of the appeal suspended the order of the Administrative Court.

The applicant was desirous of commencing the publication of its newspapers immediately without having to await the outcome of the appeal. The applicant, by way of an urgent chamber application, applied to the Administrative Court for an order authorising the execution of its judgment despite the noting of an appeal.

The Administrative Court granted the application and ordered the execution of its judgment despite the noting of the appeal. The respondents, again, appealed against that judgment.

Various exchanges between the parties occurred, culminating with an application to this Court by the respondents to stay execution of the Administrative Court's judgments pending the determination of the appeal by this Court.

After a hearing in Chambers, I issued, by consent, the following order, on 28 January 2004:

“IT IS ORDERED BY CONSENT –

1. THAT Supreme Court Civil Appeals Numbers 320/03 and 359/03 be and are hereby consolidated;

2. THAT the Registrar of the Administrative Court is hereby directed to prepare the records in the above cases as a matter of urgency;

3. THAT the consolidated appeals and the Constitutional case no. SC-323-03 are set down for argument on 18 February 2004;

4. THAT the applicant's (the Media and Information Commission) prayer in paragraph 4 of the draft order is held over and the parties are granted leave to file further papers; and

5. THAT the costs of this application are reserved.”

On 9 February 2004, the following additional order was issued by me:

“IT IS ORDERED THAT:

The relief sought in paragraph 4 of the applicant's (the Media and Information Commission) draft order be referred to the Court sitting on 18 February 2004 to hear the consolidated cases between the parties and that costs be costs in the cause.”

The relief sought in paragraph 4 of the applicant's (the Media and Information Commission) draft order reads as follows:

“The respondent (Associated Newspapers of Zimbabwe) be and is hereby ordered to refrain from publishing pending the finalisation of the consolidated appeals.”

The Constitutional application and the consolidated appeals were then duly set down for hearing. At the hearing, the following issues fell for determination:

1. Whether or not the applicant had now brought itself within the law to enable this Court to hear the Constitutional challenge on the merits;

2. In the event of the applicant satisfying the Court that it was now operating within the law, the merits of the Constitutional challenge; and

3. The merits of the appeal against the judgment of the Administrative Court, including the issue of whether or not the Administrative Court had jurisdiction to order execution of its judgment despite the noting of an appeal.

I will deal with these issues seriatim.

HAS THE APPLICANT BROUGHT ITSELF WITHIN THE LAW TO ENABLE THIS COURT TO HEAR THE CONSTITUTIONAL CHALLENGE ON THE MERITS?

The respondents contend that the applicant is still in contempt of both the law and this Court and its court application challenging the constitutionality of several sections of the Access to Information and Protection of Privacy Act [Chapter 10:27] should not be heard on the merits until the applicant has purged itself of the contempt. In particular, it was submitted that:

(1) The day after the judgment of this Court, namely, on 12 September 2003, the applicant continued publishing its newspapers.

It was averred, and not seriously disputed, that had the police not stopped the applicant from publishing its newspapers it would have continued doing so despite this Court's ruling that in doing so the applicant was acting illegally. It was also averred, and not disputed, that the applicant made disparaging remarks about the judgment of this Court. This, it was argued, demonstrated the applicant's persistent contempt of the law and this Court; and

(2) On 25 September 2003, the applicant, again, published its newspapers, despite the explicit language of the judgment of the Administrative Court that the applicant was to submit its application for registration in terms of section 66 of the Access to Information and Protection of Privacy Act [Chapter 10:27] and that that application was to be considered by a newly re-constituted Commission as soon as possible and that, in the event of the newly constituted Commission failing to register the applicant by 30 November 2003, the applicant was to be deemed registered.

It was also argued for the respondents that the publication of the applicant's newspaper on 25 September 2003 was unlawful and constituted contempt of the law and the Administrative Court.

The reasons advanced by the applicant for this unlawful conduct were;

(i) Firstly, that it did not understand the full import of the two judgments, namely, that of this Court and the Administrative Court; and

(ii) Secondly, that the violation was not intentional.

With respect to the applicant, I find this explanation spurious and without substance.

It was also submitted by the respondents, and not seriously disputed by the applicant, that it was finally stopped from publishing its newspapers illegally only when the journalists working for the applicant refused to continue working for it until their accreditation, in terms of section 79 of the Access to Information and Protection of Privacy Act [Chapter 10:27], had been finalised.

Whilst the conduct of the applicant is not condoned, the fact that it was not in contempt of court at the time the application was brought before the Court entitled it to be heard on the merits especially when regard is had to the fact that the cessation of the illegal publication of newspapers was as a result of the refusal by journalists to continue acting without accreditation, that is to say, outside the law.

THE CONSTITUTIONALITY OF THE IMPUGNED SECTIONS OF THE ACT

The applicant has challenged the constitutionality of a number of sections of the Access to Information and Protection of Privacy Act [Chapter 10:27]. These are set out in the draft order. The impugned sections are - 39(1)(g), (i), (j), (n) and (p), 40, 41, 65, 66, 69, 70, 71, 72, 79, 80, 83 and 89, and paragraph (4) of the Fourth Schedule of the Act.

In addition, the applicant seeks the following declaratory orders, namely:

(i) That the Access to Information and Protection of Privacy (Registration, Accreditation and Levy) Regulations, 2002, published in Statutory Instrument 169C of 2002, infringe the right of the freedom of expression set out in section 20 of the Constitution of Zimbabwe ('the Constitution') and are therefore invalid and of no force and effect in respect of the registration of newspapers and the accreditation of journalists;

(ii) That section 65 of the Access to Information and Protection of Privacy Act [Chapter 10:27] infringes the right of the freedom of association set out in section 21 of the Constitution and is, therefore, invalid and of no legal effect; and

(iii) That section 76, insofar as it refers to the second respondent, infringes the applicant's right against the compulsory acquisition of property set out in section 16 of the Constitution and is therefore invalid and of no legal effect….,.

I will now deal with the particular sections under challenge.

Section 39

Section 39 of the Access to Information and Protection of Privacy Act [Chapter 10:27] provides as follows:

“39. Functions and powers of Commission

(1) Subject to this Act, the powers and functions of the Commission shall be -

(a) To ensure that Zimbabweans have access to information and effective control of mass media services; and

(b) To receive and act upon comments from the public about the administration and performance of the mass media in Zimbabwe; and

(c) To comment on the implications of proposed legislation or programmes of public bodies on access to information and protection of privacy; and

(d) To comment on the implications of automated systems for collection, storage, analysis or transfer of information or for access to information or protection of privacy; and

(e) To inform the public about this Act; and

(f) To engage in or commission research into anything affecting the achievement of the purposes of this Act; and

(g) To conduct investigations in terms of Part IX to ensure compliance with the provisions of this Act; and

(h) To advise the Minister on the adoption and establishment of standards and codes relating to the operation of mass media; and

(i) To receive, evaluate for accreditation and consider applications for accreditation as a journalist; and

(j) To enforce professional and ethical standards in the mass media; and

(k) To review the decisions of public bodies in terms of Part X; and

(l) To bring to the attention of the head of a public body any failure to meet the prescribed standards for fulfilling the duty to assist applicants; and

(m) To authorise a public body, at the request of its head, to disregard requests that would unreasonably interfere with the operations of the public body; and

(n) To accredit journalists; and

(o) To monitor the mass media and raise user awareness of the mass media; and

(p) To register mass media in Zimbabwe; and

(q) To investigate and resolve complaints against any mass media service in terms of the provisions of this Act.

(2) In the exercise of its functions, the Commission shall have regard to the desirability of securing the following objects -

(a) To foster freedom of expression in Zimbabwe;

(b) To make information easily accessible to persons requiring it;

(c) To ensure accurate, balanced and unbiased reporting by the mass media in Zimbabwe;

(d) The development of mass media that uphold professional and ethical codes of conduct;

(e) To promote the preservation of the national security and integrity of Zimbabwe;

(f) To foster a Zimbabwean national identity and integrity;

(g) To be responsible for enforcing and monitoring the enforcement of provisions of this Act; and

(h) To ensure that its purposes are achieved.

(3) Subject to this Act, for the better exercise of its functions, the Commission shall have power to do or cause to be done, either by itself or through its agents, all or any of the things specified in the Third Schedule, either absolutely or conditionally and either solely or jointly with others.”

The applicant's founding affidavit sets out no details as to how the impugned provisions of section 39 of the Access to Information and Protection of Privacy Act [Chapter 10:27] are unconstitutional or in what manner sction 39 abridges the applicant's constitutional rights. In paragraph 13 of the founding affidavit there is a broad reference to section 39 of the Act. It is as follows:

“13. It is the view of the applicant, therefore, that the provisions of the Act concerning the second respondent and its functions and also the provisions of the Act relating to the registration of mass media owners and related provisions set out in sections 39(1) (g), (i), (j), (n) and (p), 40, 41, 65, 66, 69, 70, 71, 72, 76, 79, 83 and 89 are unconstitutional and should be declared to be so.”

Also in paragraph 37 of the applicant's heads of argument there is an oblique reference to section 39 of the Act which does not in any way take the averments any further. The remaining subsections of section 39 of the Act are not, in any way, impugned by the applicant. In particular, the applicant does not impugn the functions of the Commission but does impugn the Commission's powers to investigate issues of compliance with the Act; powers of accreditation of journalists (paragraph (g) and (n)); powers to enforce professional and ethical standards (j); to monitor the mass media and raise user awareness of the mass media (o); and the registration of the providers of mass media services in Zimbabwe.

As I have already stated, the applicant does not state in what manner these provisions are unconstitutional.

This Court has already held that accreditation of journalists and the licensing of electronic media is constitutional as long as the requirements for such accreditation and licensing are not onerous. See Capital Radio (Private) Limited v Broadcasting Authority of Zimbabwe and Others SC128-02 and Association of Independent Journalists & Others v The Minister of State for Information and Publicity in the President's Office & Others SC136-02.

Section 39 deals not with the qualifications for accreditation but with the requirements for accreditation, which this Court has declared to be constitutional….,.

Section 40

Section 40 of the Access to Information and Protection of Privacy Act [Chapter 10:27] provides as follows:

“40. Appointment and composition of Media and Information Commission

(1) The operations of the Commission shall, subject to this Act, be controlled and managed by a Board.

(2) Subject to subsection (3), the Board shall consist of no fewer than five members and not more than seven members (at least three of whom shall be nominated by an association of journalists and an association of media houses) appointed by the Minister after consultation with the President and in accordance with any directions that the President may give him.

(3) The Fourth Schedule shall apply to the qualifications of members of the Board and the Commission, their terms and conditions of office, vacation of office, suspension and dismissal, and the procedure to be followed by the Commission at meetings.”

Section 4 of the Zimbabwe Broadcasting Services Act [Chapter 12:06] is similar to section 40 of the Access to Information and Protection of Privacy Act [Chapter 10:27]. It provides as follows:

“4. Establishment and composition of Broadcasting Authority of Zimbabwe Board

(1) The operations of the Authority shall, subject to this Act, be controlled and managed by a Board to be known as the Broadcasting Authority of Zimbabwe Board.

(2) Subject to subsection (3), the Board shall consist of not fewer than seven members and not more than nine members appointed by the Minister after consultation with the President and in accordance with any directions the President may give him.

(3) Of the members appointed in terms of subsection (2) -

(a) Two shall be persons chosen for their experience or professional qualifications in the field of broadcasting technology and broadcasting content respectively; and

(b) One shall be a chief as defined in the Traditional Leaders Act [Chapter 29:17] and nominated by the Council of Chiefs referred to in that Act; and

(c) One shall be a legal practitioner of not less than five years' standing registered in terms of the law in force relating to the registration of legal practitioners; and

(d) One shall be a public accountant of not less than five years' standing registered in terms of the law in force relating to the registration of public accountants; and

(e) One shall be a representative of churches or other religious bodies chosen from a list of nominees submitted by groups, representative of churches or other religious bodies.

(4) At least three of the members referred to in subsection (3) shall be women.

(5) The Third Schedule shall apply to the qualifications of members of the Board, their terms and conditions of office, vacation of office, suspension and dismissal, and the procedure to be followed by the Board at its meetings.

(6) If any council or group referred to in subsection (3), or the Board or portfolio committee referred to in subsection (1) of section four A, fails or refuses to submit any nomination within thirty days of being requested to do so by the Minister in writing, the Minister may, subject to subsection (4), appoint any person to represent that council or group or the Board or portfolio committee, and the person so appointed shall hold office as a member of the Board or of the Independent Disciplinary Committee in all respects as if he or she had been duly nominated and appointed in terms of subsection (3) or subsection (1) of section four A.”

Again, the manner in which section 40 of the Access to Information and Protection of Privacy Act [Chapter 10:27] is alleged to violate the applicant's fundamental right is not clearly spelt out. It would appear, however, that the basis of the challenge to section 40 of the Act is that it fails to provide for a Board that is independent of the Minister and is therefore unconstitutional.

Similar submissions were made in respect of section 4 of the Zimbabwe Broadcasting Services Act [Chapter 12:06] ('the Broadcasting Act') in the case of Capital Radio (Private) Limited v Broadcasting Authority of Zimbabwe and Others SC128-02. The Court came to the conclusion that section 4 of the Zimbabwe Broadcasting Services Act [Chapter 12:06] was constitutional and that the method of appointment did not make a Board subservient to the Minister.

The factors relied upon by the Court in upholding the constitutionality of section 4 of the Zimbabwe Broadcasting Services Act [Chapter 12:06], which are equally valid in the determination of the constitutionality of section 40 of the Access to Information and Protection of Privacy Act [Chapter 10:27], were that it merely created the regulating authority and identified the Minister as the person to appoint its members. Someone had to make the appointments to the Board. The persons to be appointed were not identified in such a manner as to leave the Minister with no choice but to appoint people dependent on Government.

The security for the independence of the Commission does not depend upon the nature of the appointing authority but on the existence of qualification requirements the consideration of which induces a sense of duty in the appointing authority and eliminates the exercise of discretionary power thereby ensuring that merit alone is the basis for selection. The constitutionality of section 40 of the Access to Information and Protection of Privacy Act [Chapter 10:27] could not be successfully impeached on the mere ground that the Executive has the power to appoint the members of the Commission.

Section 41

Section 41 of the Access to Information and Protection of Privacy Act [Chapter 10:27] provides as follows:

“41. Financial and miscellaneous provisions relating to Commission

The Fifth Schedule shall govern the financial and certain other aspects of the operations of the Commission.”

The Fifth Schedule referred to in this section provides for regulation of the financial management of the Commission funds and how those funds are to be acquired. It also provides for the appointment of auditors of the Commission and the powers of those auditors.

Again, no attempt has been made, either in the founding affidavit or in the heads of argument, to establish how the provision for the management of the Commission's finances, as set out in section 41 of the Act, violates the applicant's constitutional rights. There is nothing in section 41 of the Access to Information and Protection of Privacy Act [Chapter 10:27] which is blatantly unconstitutional.

Section 65

Section 65 of the Access to Information and Protection of Privacy Act [Chapter 10:27] provides as follows:

“65. Restriction of ownership of mass media services

The following persons and bodies may not be mass media owners -

(a) An individual who is not a citizen of Zimbabwe or any body corporate in which a controlling interest is not held, directly or indirectly, whether through any individual, company or association or otherwise, by one or more individuals who are citizens of Zimbabwe;

(b) An association of persons or an organisation whose activity is banned or prohibited by law; or

(c) Any person who is insolvent or bankrupt under a law in force in Zimbabwe or any other country, and has not been rehabilitated or discharged.

No person other than -

(a) A citizen of Zimbabwe or person who is regarded as permanently resident in Zimbabwe by virtue of the Immigration Act [Chapter 4:02]; or

(b) A body corporate in which a controlling interest is not held, directly or indirectly, whether through any individual, company or association or otherwise, by one or more individuals who are citizens of Zimbabwe or are regarded as permanently resident in Zimbabwe by virtue of the Immigration Act [Chapter 4:02];

may hold or acquire any shares in a mass media service.

(3) Nothing contained in this section shall prevent any person who was an existing mass media owner as at 31^st January 2002, from continuing to be a mass media owner after that date to the extent of his ownership on that date.”

The above section seeks to control the ownership of the mass media services and limits the ownership of the media by non-citizens of Zimbabwe. Section 8 of the Zimbabwe Broadcasting Services Act [Chapter 12:06] imposes similar restrictions on non-citizens in respect of licensing of broadcasters.

Section 65 of the Access to Information and Protection of Privacy Act [Chapter 10:27] and section 8 of the Zimbabwe Broadcasting Services Act [Chapter 12:06] deal with the same principle, namely, restrictions on foreign ownership of the Zimbabwean media. In Capital Radio (Private) Limited v Broadcasting Authority of Zimbabwe and Others SC128-02, this Court concluded that section 8 of the Zimbabwe Broadcasting Services Act [Chapter 12:06] was constitutional.

The decision in that case, as it should be in this case, was that the applicant had to show that it was a body corporate in which the controlling interest was not held directly or indirectly whether through any individual company or association by one or more individuals who are not citizens of Zimbabwe or are not regarded as permanently resident in Zimbabwe by virtue of the Immigration Act [Chapter 4:02]. Similarly, section 65 of the Access to Information and Protection of Privacy Act [Chapter 10:27] specifies who may and who may not own a mass media or hold or acquire shares therein. If the applicant fell into the prohibited class it was expected to make those allegations in its affidavit in order to lay the basis for impunging the constitutionality of section 65 of the Access to Information and Protection of Privacy Act [Chapter 10:27]. It is to be inferred from the applicant's silence that there was no contravention of its right to freedom of expression arising from those provisions.

Section 66

Section 66 of the Access to Information and Protection of Privacy Act [Chapter 10:27] provides as follows:

“66. Registration of mass media services

(1) A mass media owner shall carry on the activities of a mass media service only after registering and receiving a certificate of registration in terms of this Act:

Provided that this section shall not apply to –

(a) The activities of a person holding a licence issued in terms of the Broadcasting Services Act [Chapter 12:06] to the extent that such activities are permitted by such licence; or

(b) A representative office of a foreign mass media service permitted to operate in Zimbabwe in terms of section ninety; or

(c) In-house publications of an organisation which is not mass media service.

(2) An application for the registration of a mass media service whose products are intended for dissemination in Zimbabwe shall be submitted by its owner to the Commission in the form and manner prescribed and accompanied by the prescribed fee.

(3) The Commission shall, upon receiving an application for registration, send a notification of receipt of the application to the owner or person authorised by him indicating the date when the application was received, and the Commission shall consider such application within a month of receiving it.

(4) A mass media service shall be registered when it is issued with a certificate of registration by the Commission.

(5) A certificate issued in terms of subsection (4) shall be valid for a period of two years and may be renewed thereafter.

(6) The registered owner shall start circulating his mass media's products six months from the date of issue of the registration certificate, failing which the registration certificate shall be deemed to be cancelled.”

Section 66 is very similar to section 79 of the Act. Section 79 of the Access to Information and Protection of Privacy Act [Chapter 10:27] provides for accreditation of journalists, whilst section 66 provides for the registration of providers of mass media services.

The mandatory registration by the Commission to which the owner of a mass media service has to submit himself in order to exercise the right to freedom of expression as a mass media service provider is a means rationally connected to the objects of the Act the achievement of which it is the duty of the Commission to oversee. One of the objects of the Access to Information and Protection of Privacy Act [Chapter 10:27] is the achievement of effective ownership and control of mass media services by citizens of Zimbabwe. For historical reasons this source of economic and political power was owned and controlled by foreigners. It cannot be said that a requirement that a mass media service provider should register itself with the Commission in order to exercise the right of freedom of expression is not justifiable in a democratic society when its object is to ensure that citizens of the country have effective ownership and control of the mass media for the exercise of their right to freedom of expression.

This Court considered section 79 of the Access to Information and Protection of Privacy Act [Chapter 10:27] in the case of Association of Independent Journalists & Others v The Minister of State for Information and Publicity in the President's Office & Others SC136-02 and concluded that the principle of accreditation was constitutional. The Court also expressed the view that the conditions for such accreditation would be held to be unconstitutional if they are onerous.

Section 69

Section 69 of the Access to Information and Protection of Privacy Act [Chapter 10:27] provides as follows:

“69. Refusal of registration of mass media service

(1) The Commission may not refuse to register a mass media service unless -

(a) It fails to comply with the provisions of this Act; or

(b) The information indicated in an application for registration is false, misleading or contains any misrepresentation; or

(c) That mass media service seeks to be registered in the name of an existing registered mass media service;

and the Commission shall forward a written notification of the refusal of registration, stating the grounds upon which such refusal is based.

(2) An application for the registration of a mass media service shall not be considered –

(a) If it contravenes any provision of this Act;

(b) If the application has been filed by a person who has no authority to do so;

(c) If the application fee has not been paid.

(3) An application for registration may be re-submitted for consideration after the removal of any contraventions or when there is a change of circumstances.”…,.

Subsections (2) and (3) have since been repealed.

Section 69 of the Act sets out the powers of the Commission in regard to an application for registration of a mass media service provider.

The first point I wish to make in regard to this section relates to the use of the word 'may' in subsection (1). It is quite clear from the context in which that word is used that it should be taken to mean 'shall.' The word 'may' generally confers discretion, but when followed by the negative word 'not', i.e. 'may not', as is the case here, it means absence of discretion as in 'shall.' When this Court dealt with the word 'may' in section 79 of the Access to Information and Protection of Privacy Act [Chapter 10:27] in Association of Independent Journalists & Others v The Minister of State for Information and Publicity in the President's Office & Others SC136-02, the Court made the following observation:

“It is quite clear from the context that the word 'may' means 'shall' in this subsection.

In ordinary usage, 'may' is a permissive and 'must' is imperative, and, in accordance with the usage, the word 'may' in a statute will not generally be held to be mandatory. In some cases, however, it has been held that expressions such as 'may' or 'shall have power' or 'shall be lawful' have – to say the least – a compulsory force and so their meaning has been modified by judicial exposition.

See MAXWELL on The Interpretation of Statutes 12 ed by P St. J LAGAN at pp 234-235 and the cases there mentioned.”

I am satisfied that the word 'may' in subsection (1) of section 69 of the Access to Information and Protection of Privacy Act [Chapter 10:27] means 'shall.'

It follows, therefore, that section 69(1) of the Access to Information and Protection of Privacy Act [Chapter 10:27] confers no discretion on the Commission, and, consequently, an applicant who has complied with the Act is entitled to registration as a matter of law.

Paragraph 69(1)(b) provides that registration could be refused if the information indicated in an application for registration is false, misleading or contains any misrepresentation. This provision confers on the Commission the power to determine whether the information indicated in an application for registration is false, misleading or contains a misrepresentation. While the use of the words, false, misleading and misrepresentation may, on the face of it, appear vague and uncertain such words are commonly found in legal instruments and courts have been called upon, in numerous cases, to determine what, in legal terms, constitutes what is false, misleading or what constitutes a misrepresentation. In the event of a dispute between an applicant and the Commission over the meaning of the above words, such a dispute is justiciable and thus eliminates the possibility of abuse.

In the result, I am satisfied that section 69(1)(b) of the Access to Information and Protection of Privacy Act [Chapter 10:27] is constitutional.

Section 69(1)(c) of the Act prohibits the registration of a mass media service provider in the name of an already existing registered mass media service provider. It prohibits passing off. The Constitution of Zimbabwe does not confer on anyone the right to pass off. The applicant does not have a constitutional right to register itself in the name of an already existing mass media service provider. The applicant has not even alleged, on the papers, that that is what it intends to do.

I am satisfied that section 69(1)(c) of the Access to Information and Protection of Privacy Act [Chapter 10:27] is constitutional.

Section 69(2) of the Access to Information and Protection of Privacy Act [Chapter 10:27], which has since been repealed, provided that an application for registration shall not be considered if it contravenes any of the provisions of the Act. The contraventions referred to in this section must be those that are apparent on the face of the application, such as those that are referred to in section 66(2) of the Act, which provides that an application shall be made in the form and manner prescribed and accompanied by the prescribed fee. Thus, for an application to be considered at all, it must be in a prescribed form and accompanied by the prescribed fee. Where an application is not in the prescribed form and is not accompanied by the prescribed fee the Commission is barred from considering the application. Contraventions of the Act such as those envisaged in section 69(1) can only emerge after the commencement of consideration of an application by the Commission.

It is on this basis that I am satisfied that the Administrative Court's decision that the Commission acted ultra vires section 69(2) is wrong. In this case, the Associated Newspapers of Zimbabwe (Pvt) Ltd application complied with the formal requirements as set out in section 66(2) of the Act and the Commission, quite correctly in my view, considered the application. During the consideration of the application, or the meeting to adjudicate upon the application, alleged violations of the Act were brought to the attention of the Commission. On the basis of these alleged violations, the registration of the applicant was refused.

On these facts, to conclude that the Commission acted ultra vires does not make sense.

The same section also bars the Commission from considering an application submitted by an unauthorised person or if the prescribed application fee has not been paid.

I am satisfied that the Constitution does not confer on the applicant the constitutional right to have its application submitted by an unauthorised person. The applicant has not alleged on the papers that it wishes to have its application submitted by an authorised person and that that right has been violated. The applicant has not alleged, on the papers, that the prescribed fees are onerous and there is nothing on the papers to suggest that they are.

In any event, section 69(2) has been repealed and the question of its constitutionality is now academic. I am satisfied that section 69(2) of the Act was constitutional.

Section 70

Section 70 of the Access to Information and Protection of Privacy Act [Chapter 10:27] reads as follows:

“70 Registration fee

The registration fee shall be as prescribed by the Minister:

Provided that the Minister may prescribe a higher fee for established mass media services specialising in commercial mass media services and advertising and a lower fee for a mass media service specialising in producing materials intended for children, adolescents and disabled persons and used for educational, philanthropic and social purposes.”

This section merely provides that the Minister can prescribe the registration fee.

The payment of the registration fee, in itself, cannot, in my view, be unconstitutional although the amount of the prescribed fee could, in certain circumstances, be unconstitutional, for example, if the prescribed fees are excessive. In that case, a constitutional challenge against the level of fees is sustainable. Indeed, the applicant, in its heads of argument, argues that it is the potential for charging exorbitant fees that could be unconstitutional. In the light of that, one has to look at the Statutory Instrument setting out the prescribed fees to see whether it is constitutional or not.

Section 71

Section 71 of the Access to Information and Protection of Privacy Act [Chapter 10:27] is a fairly lengthy provision but it essentially provides for the circumstances under which a registration certificate can be suspended or cancelled by the Commission. This is provided for in subsection (1), which reads as follows:

“(1) Subject to this section, the Commission may, whether on its own initiative or upon the investigation of a complaint made by any interested person against the mass media service, suspend or cancel the registration certificate of a mass media service if it has reasonable grounds for believing that -

(a) The registration certificate was issued in error or through fraud or there has been a misrepresentation or non-disclosure of a material fact by the mass media owner concerned; or

(b) The mass media service concerned does not publish or go on air within twelve months from the date of registration; or

(c) The mass media service concerned has contravened sections sixty-five, seventy-five, seventy-six, seventy-seven or eighty-nine of this Act.”

The rest of the provisions deal with the consequences and the procedures to be followed in establishing the basis for the Commission to act in terms of subsection (1).

It is clear from subsection (1) that the Commission is empowered to suspend or cancel a registration certificate for the three reasons set out in paragraphs (a), (b) and (c) thereof.

In terms of paragraph (b), the mass media service provider that does not publish or go on air within twelve months from the date of registration is liable to have its registration cancelled. I have no difficulty in upholding this ground of cancellation as constitutional. The mass media service provider that obtains registration but does not seek to exercise its right under that registration for a period of twelve months really has no basis for complaining that its registration has been cancelled.

I am also unable to see on what basis the applicant contends that its right is about to be violated by this provision. The applicant was an existing media service provider at the time that the Act came into operation. It was already publishing its papers and was unlikely to be affected by this provision. In any case, it does not state, on the papers, how it is being adversely affected by this provision.

Paragraph (c) of subsection (1) provides that a mass media service provider that has contravened section 65, section 75 and section 89 of the Access to Information and Protection of Privacy Act [Chapter 10:27] can have its certificate of registration cancelled. Again, I have no problem in finding that this provision is intra vires the Constitution. The provision provides for the cancellation of a certificate for contravening the law. It is difficult to see the basis of the applicant's complaint in that if it abides by the law its rights will not be affected but if it breaks the law, the consequence of such breach of the law is the cancellation of the registration. If the applicant is law-abiding then it has nothing to fear. It certainly has no basis to fear that its registration will be cancelled.

In considering section 69(1)(b) of the Access to Information and Protection of Privacy Act [Chapter 10:27], I expressed some misgivings regarding the use of the word 'misrepresentation' but concluded that the meaning of misrepresentation is justiciable and capable of determination. I am also satisfied that what constitutes a material non-disclosure is justiciable and capable of determination. What is fraudulent is much easier to determine than non-disclosure of a material fact and misrepresentation. In my view, the Constitution confers no right on an individual to misrepresent, either directly or through non-disclosure of a material fact or to commit fraud. Accordingly, none can be violated.

Section 72

Section 72 of the Access to Information and Protection of Privacy Act [Chapter 10:27] provides as follows:

“72 Penalties for operating mass media service without registration certificate

(1) No person shall carry on or operate a mass media service without a valid registration certificate, license or permit issued in terms of this Act or any other law.

(2) A person who contravenes subsection (1) shall be guilty of an offence and liable, upon conviction, to a fine not exceeding three hundred thousand dollars or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.

(3) In addition to any fine imposed in terms of subsection (2) and without derogation from any of its powers granted under any enactment a court convicting a person of contravening subsection (1) may declare forfeited to the State any produce, equipment or apparatus used for the purpose of or in connection with the offence.

(4) The proviso to subsection (1) and subsections (3), (4), (5) and (6) of section 62 of the Criminal Procedure and Evidence Act [Chapter 9:07] shall apply mutatis mutandis, in relation to a declaration made in terms of subsection (3).”

This section is a penalty clause and the type of clause found in most acts of Parliament providing for a penalty for contravening a statute. Subsection (1) merely prohibits the operation of a mass media service without a registration certificate. In view of the fact that I have concluded that section 66 is constitutional, there is no basis for holding that section 72(1) of the Access to Information and Protection of Privacy Act [Chapter 10:27] is unconstitutional.

Subsection (2) of section 72 provides that a person who operates without a registration certificate commits an offence and is liable, upon conviction, to a fine not exceeding $300,000= or imprisonment not exceeding two years or to both such fine and imprisonment.

This section provides guidelines to the court on the level of the seriousness with which the legislature regards a contravention of subsection (1) of section 72 of the Access to Information and Protection of Privacy Act [Chapter 10:27]. The fine and the period indicated cannot be described as totally disproportionate to the offence created under subsection (1).

Subsection (3) confers on the court, upon conviction of a person for contravening subsection (1), the power to declare forfeited the equipment or apparatus used for the purpose of or in connection with the offence. Again, this is a standard clause found in most Acts of Parliament conferring on the court the power to declare a weapon used in the commission of the offence to be declared forfeited. That power is exercised by a court of law and there is no risk of that power being exercised in a capricious manner.

I also see no possible constitutional impediment to subsection (4), which simply incorporates the provisions of the Criminal Procedure and Evidence Act.

Section 76

Section 76 of the Access to Information and Protection of Privacy Act [Chapter 10:27] provides as follows:

“76 Deposit copies

The mass media service shall send free deposit copies of a periodical to the Commission and the National Archives.”

Sections 79, 80 and 83

The constitutionality of the above sections was challenged in the case of Association of Independent Journalists & Others v The Minister of State for Information and Publicity in the President's Office & Others SC136-02.

In respect of section 79 of the Access to Information and Protection of Privacy Act [Chapter 10:27], the Court concluded as follows:-

“It is common cause that s 79 is at the centre of the licensing system. Licensing of the media, as I have already stated, is sufficiently important to have been recognised as a constitutional exception. Accordingly, I am satisfied that the object of s 79 is sufficiently important for the purpose set in (1) above.

Section 79 is rationally connected to the above objective because, as was submitted by the applicant's counsel, it is at the centre of the licensing process. On this basis s 79 is, therefore, rationally connected to the objective of legislation, The second requirement is therefore met.

The third requirement cannot be conveniently applied to s 79. Section 79 is essentially an enabling provision. The requirement that the means used be no more than is necessary to accomplish the objective can only be applied to the regulations that prescribe formalities and qualifications for accreditation. As I have said, none of the provisions of SI 169C have been challenged. Section 79 merely confers the powers to make regulations that prescribe the formalities and qualifications for accreditation. The test will have to be applied to the regulation that prescribes the formalities and the qualifications and not s 79 which only confers the powers to make such regulations.

In the result, I come to the conclusion that the challenge to s 79 cannot succeed.”

The submissions made in the present case have not persuaded me to depart from that conclusion. For the reasons set out in Association of Independent Journalists & Others v The Minister of State for Information and Publicity in the President's Office & Others SC136-02, section 79 of the Access to Information and Protection of Privacy Act [Chapter 10:27] is constitutional.

In respect of section 80 of the Access to Information and Protection of Privacy Act [Chapter 10:27], this Court concluded that section 80(1)(a)(b) and (c) were unconstitutional and struck them down while the rest of section 80 was held constitutional.

There is nothing, on these papers, that persuades me to depart from that conclusion. However, section 80 of the Access to Information and Protection of Privacy Act [Chapter 10:27] has since been repealed and substituted by a new section 80 which provides as follows:-

“80. Abuse of journalistic privilege

A journalist who abuses his or her journalistic privilege by publishing –

(a) Information which he or she intentionally or recklessly falsified in a manner which –

(i) Threatens the interests of defence, public safety, public order, the economic interests of the State, public morality or public health; or

(ii) Is injurious to the reputation, rights and freedoms of other persons; or

(b) Information which he or she maliciously or fraudulently fabricated; or

(c) Any statement –

(i) Threatening the interests of defence, public safety, public order, the economic interests of the State, public morality or public health; or

(ii) Injurious to the reputation, rights and freedoms of other persons; in the following circumstances –

A. Knowing the statement to be false or without having reasonable grounds for believing it to be true; and

B. Recklessly, or with malicious or fraudulent intent, representing the statement as a true statement;

shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years.”

It will be seen that the offending paragraphs have been repealed. The issue, therefore, has become academic.

In respect of section 83 of the Access to Information and Protection of Privacy Act [Chapter 10:27] the Court concluded:-

“Section 83 prohibits an individual from practicing as a journalist unless he or she is accredited as a journalist. The issues raised here are identical to those raised in respect of the challenge to s 79. What I said in regard to s 79 applies with equal force to s 83. In my view, s 83 is constitutional.”

Section 89

Section 89 of the Access to Information and Protection of Privacy Act [Chapter 10:27] provides as follows:

“89 Right of reply

(1) A person or organisation in respect of whom a mass media service has published information that is not truthful or impinges on his rights or lawful interests shall have a right of reply in the same mass media service at no cost to him, and the reply shall be given the same prominence as the offending story.

(2) The reply shall be featured in the next issue of the mass media service.”

Section 89 confers on the person or organisation in respect of whom incorrect information has been published or whose rights or lawful interests have been infringed in a publication, the right to reply at no cost to him and that reply should be published within a certain period of time.

In my view, freedom of expression carries with it certain responsibilities, one of which is not to infringe on the rights of others, and a law that offers a remedy for the wronged party is constitutional.

Therefore, I find that section 89 of the Access to Information and Protection of Privacy Act [Chapter 10:27] is constitutional….,.

In the result, the Court issues the following order –

1. The application to declare sections 39(1)(g)(i)(j)(n) and (p), 40,41,65,66,69,70,71,76,79,80(1)(d)(2), 83 and 89 and paragraph 4 of the Fourth Schedule of the Access to Information and Protection of Privacy Act [Chapter 10:27], null and void is dismissed.