(1) CONSTANTINE MUNYARADZI CHIMAKURE (2) VINCENT KAHIYA (3) ZIMIND PUBLISHERS (PVT) LTD

vs

THE ATTORNEY GENERAL OF ZIMBABWE

CONSTITUTIONAL COURT OF ZIMBABWE
CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA,
GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA,
PATELJA& GUVAVAJA
HARARE, OCTOBER 30, NOVEMBER 20, 2013 &
JANUARY 15 & JULY 22, 2014,

MALABA DCJ: On October 2013 the court issued a rule nisi pursuant to s24(5) of the former Constitution. The rule nisi called upon the Minister of Justice, Legal and Parliamentary Affairs ("the Minister") to show cause, on 20 November 2013, why s31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code) should not be declared to be ultra vires s 20(1) of the former Constitution and accordingly invalid.

The court had found that s 31(a)(iii) of the Criminal Code had the effect of interfering with the exercise of the right to freedom of expression. It found that the applicants had discharged the onus of showing that s 31(a)(iii) of the Criminal Code was not reasonably justifiable in a democratic. society for the protection of the public interest in public order or public safety.

The Minister had not been a party to the proceedings. Under s 24(5) of the former Constitution, the Minister had a right to be given an opportunity to persuade the court that although s 31(a)(iii) of the Criminal Code infringed the fundamental right to freedom of expression it was reasonably justifiable in a democratic society. On the return day no affidavit was filed by the Minister. What was filed was a lengthy document containing a critical review of the whole judgment of the court. The purpose of the document was to show that the court had misdirected itself in finding that s 31 (a)(iii) of the Criminal Code had the effect of interfering with the exercise of the right to freedom of expression enshrined under s 20(1) of the former Constitution. The object was to show that the court also erred in holding the prima facie view that s 31(a)(iii) of the Criminal Code was not reasonably justifiable in a democratic society. There was no attempt to show the existence of factors, which were not brought to the attention of the court, consideration of which would have persuaded it not to accept the prima facie view that the enactment was not reasonably justifiable in a democratic society.