MAJOME v ZIMBABWE BROADCASTING CORPORATION & ORS

CONSTITUTIONAL COURT, HARARE

[Constitutional Application CCZ 14-16]

November 14, 2014 and November 9, 2016

MALABA DCJ, ZIYAMBI, GWAUNZA, GARWE, GOWORA, HLATSHWAYO,
PATEL, GUVAVA JJCC AND MAVANGIRA AJCC

Constitutional law – Constitution of Zimbabwe, 2013 – Declaration of Rights – Section 71 (3) – Right not to be compulsorily deprived of property – Refusal to pay television licence – Such refusal based on alleged bias of public broadcaster – Whether any constitutional matter arises.

Constitutional law – Principle of subsidiarity – Applicability of the principle.

The applicant, a Member of Parliament on an opposition ticket, alleged that the first respondent Zimbabwe Broadcasting Corporation was biased towards the ruling political party in its selection and presentation of television and radio programmes on political matters. As a result of that alleged bias, the applicant was refusing to pay license fees. When a license inspector issued her with a notice to produce a license at a police station within seven days from the date of service of the notice, she did nothing about it and instead approached the Constitutional Court alleging an infringement of her constitutional rights.

Held, that there was no constitutional matter at all because the applicant had adopted a wrong remedy for the protection of the rights she alleges were infringed. Where a law of general application prohibits conduct, the commission of such conduct does not give rise to a constitutional matter. The legality of the conduct complained of, namely the alleged bias of the public broadcaster, was a matter adequately provided for by a law of general application, the Broadcasting Services Act [Chapter 12:06].

Held, further, that when seeking to protect a constitutional right, the principle of subsidiarity requires a litigant to rely on legislation enacted to protect that constitutional right and not directly on the underlying constitutional provision unless the litigant wants to attack the constitutional validity or efficacy of the legislation itself. In this case, the applicant’s remedy lies in the Broadcasting Services Act as read with the Administrative Justice Act [Chapter 10:28].

Cases cited:

August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC), referred to

De Lille and Another v Speaker of National Assembly 1998 (3) SA 430 (C), referred to

MEC for Education, KwaZulu-Natal and Others v Pillay 2008 (1) SA 474 (CC), referred to

Minister of Safety and Security and Another v Xaba 2003 (2) SA 703 (D), referred to

Pretoria City Council v Walker 1998 (2) SA 363 (CC), referred to

Wekare v The State & Ors CCZ 9-16 (unreported), referred to

Legislation considered:

Administrative Justice Act [Chapter 10:28], s 3

Broadcasting Services Act [Chapter 12:06], ss 2A (1)(e), (f), 11 (1)(b1), 38B (1), (2), 38C, 38D (a1), (1)-(4), Seventh Sch Part I

Constitution of Zimbabwe, 2013, ss 56 (3), 58 (1), (2), 60 (1a), (1)(b), 61 (1a), (4b), (4c), 67 (1)(b), (2), 71 (3)(b)(i), (ii), (c)-(e), 85 (1)(a),
155 (2)(d)

Criminal Procedure and Evidence Act [Chapter 7:09], s 356 (1)(a)

Electoral Act [Chapter 2:13], ss 160G, 160J

Books cited:

Van der Walt AJ Constitutional Property Law (3rd edn, Juta & Co Ltd, Cape Town, 2011) p 66

Woolman S and Bishop M (eds) Constitutional Law of South Africa (2nd edn, Juta & Co Ltd, Cape Town, 2008) (Frank Snyckers and Jolandi le Roux) Vol 2 pp 34-47 – 34-48; 34-59

RH Goba, for the applicant

TTG Musarurwa with A Mambosasa, for the respondents

MALABA DCJ:

This is an application for relief made in terms of s 85 (1)(a) of the Constitution of Zimbabwe, 2013 (“the Constitution”). The applicant is acting in her own interests although she also invokes the alleged violation of the rights of Movement for Democratic Change-Tsvangirai (“MDC-T”), a political party of which she is a member.

The application is for an order declaring in the first part that certain provisions of the Broadcasting Services Act [Chapter 12:06] (“the Act”) are invalid for alleged infringement of the applicant’s fundamental right not to be compulsorily deprived of property except in terms of a law of general application complying with the requirements prescribed under s 71 (3)(b)(i) and (ii) of the Constitution. The second part of the order seeks to direct the respondents to obey their constitutional obligations to respect, protect and promote the applicant’s fundamental rights and freedoms enshrined in ss 56 (3), 58 (1) and (2), 60 (1a) and (4b) and 67 (1)(b) and (2) of the Constitution.

The court holds that the applicant has invoked a wrong remedy for the protection of the fundamental rights and freedoms she alleges have been infringed. The application has to be dismissed. The following are the reasons for the decision. 

The applicant is a Member of Parliament representing the Harare West Constituency on the MDC-T political party ticket. It is common cause that she premised the application and the relief sought on the allegation that the first respondent has shown bias towards the Zimbabwe African National Union-Patriotic Front (“ZANU-PF”) political party in the selection and presentation of television and radio programmes on political matters.

It is also common cause that as a result of the alleged bias towards ZANU-PF in the broadcasting of political programmes levelled against the first respondent the Zimbabwe Broadcasting Corporation (“the ZBC”), the applicant has been refusing to pay the licence fee payable by every person in possession of an apparatus capable of receiving broadcasting services in terms of s 38B (1) of the Act.

On 1 July 2013, a licence inspector employed by the ZBC in terms of s 38D (a1) of the Act arrived at applicant’s residence and asked her to produce a television licence as she was suspected on reasonable cause to be in possession of a television set at home. When the applicant failed to produce the licence, the inspector issued her with a notice in terms of s 38D (2) of the Act requiring her to produce the licence at a police station within seven days from the date of service of the notice. The applicant had as far back as 15 September 2012 resolved to disobey the law and not pay the licence fee for the television and radio sets she possessed.

In paras 15 and 16 of the founding affidavit, the applicant reveals her resolve not to obey the law. She said:

“15. I did not produce the television licences at the police station and I will not do so. This means therefore that I am in contravention of
s 356 (1)(a) of the Criminal Procedure and Evidence Act [Chapter 7:09] and am liable for prosecution in terms of this particular Act.

16. I hasten to submit that my non-compliance with the aforementioned statutes is indeed purposeful but it is by no means wilful and contemptuous of the law.”

A study of the founding affidavit shows that the cause of action on the basis of which relief is sought is the alleged bias exhibited by the ZBC in favour of ZANU-PF in the selection and presentation of television and radio programmes of political issues of national importance. The applicant accepts the fact that the ZBC is a public broadcaster with a mandate under the Act to provide a balanced and neutral broadcasting service to the public.

She accused the ZBC of partiality in broadcasting political events. She produced as evidence of the alleged bias by the ZBC in favour of ZANU-PF in the selection and presentation of programmes on political matters documentary reports produced by an organisation called Media Monitoring Project of Zimbabwe (“MMPZ”).

In paras 20 and 21 of the founding affidavit the applicant said:

“20. The evidence of first respondent’s bias towards ZANU-PF is overwhelming and self-evident to even the ordinary reasonable viewer. Evidence of the bias is adduced hereto by way of copies of reports conducted systematically and scientifically over the past five years by the MMPZ. The MMPZ is an independent organisation which monitors and analyses data and statistics pertaining to media content and coverage by media houses in Zimbabwe.

21. Firstly, first respondent is without doubt quite clearly a propaganda and advocacy tool for ZANU-PF. It operates as a public mouthpiece for ZANU-PF’s commonly known political campaign positions and philosophies that are exclusively associated with that political party. Through various documentary, current affairs and news programmes first respondent promotes ZANU-PF’s political agenda with overt and covert messages that are quintessentially ZANU-PF in content, ideology and form.”

The first respondent denied being biased in favour of ZANU-PF and against MDC-T in the selection and presentation of programmes on television and radio. It challenged the accuracy and correctness of the information contained in the documentary reports produced by MMPZ. It alleged that MMPZ did not even attempt to summarise a quarter of its entire programming on television and radio.

What is of relevance for the purposes of the determination of the issues raised is the fact that the applicant has based the allegations of infringement of her fundamental rights and freedoms on the alleged bias in favour of ZANU-PF exhibited by the ZBC, in the selection and presentation of programmes on political matters on television and radio. It is the alleged conduct of the ZBC which the applicant says caused her to refuse to pay the licence fee for the television and radio sets in her possession. It is the same conduct of the alleged biased selection and presentation of programmes in favour of ZANU-PF on political matters which founded the allegation of infringement of the applicant’s fundamental rights and freedoms.

The nature of the relief sought by the applicant is telling. It is concerned with the prevention of the alleged bias the ZBC is accused of exhibiting in favour of ZANU-PF in broadcasting programmes on political matters on television and radio. The order sought is in the following terms:

“IT IS DECLARED THAT:

1. Sections 38B (2), 38C and 38D (1)-(4) of the Act are constitutionally invalid in that they are ultra vires s 71 (3)(b)(i) and (ii) of the Constitution.

2. There shall be urgent enforcement of applicant’s rights which are being infringed in that first respondent ceases forthwith to be biased in favour of ZANU-PF or any other political party in its programming and gives coverage equally to the applicant’s and other political parties.

3. THEREFORE IT IS ORDERED THAT:

(i) Third respondent permanently stays prosecution proceedings against applicant in terms of the Criminal Procedure and Evidence Act.

(ii) First, second and third respondents forthwith respect, protect, promote and fulfil applicant’s rights and freedoms as set out in ss 44 and 45 of the Constitution and comply with ss 56 (3), 58 (1), (2), 60 (1)(b), 61 (1a), (4b), (4c),
67 (1)(b), (2), 71 (3)(b)(i), (ii) and 155 (2)(d) which guarantee rights not to be unfairly discriminated against on the grounds of political affiliation, freedom of association and assembly, freedom of expression and freedom of the media, political freedom and participation and the guarantee from unlawful deprivation of property rights.

(iii) First, second and third respondents specifically and forthwith cease the bias and partiality in first respondent’s programming by according equal coverage to applicant’s political party and others as it accords ZANU-PF.

(iv) In the alternative first respondent is to encrypt its signal to be received on subscription basis by those who wish to associate with it and ZANU-PF programming content.

(v) First and second respondents bear applicant’s legal costs.”

With the exception of para 1 of the relief sought which relates to the constitutional invalidity of the specified provisions of the Act, there is no declaration sought to the effect that the conduct of the ZBC is unconstitutional in that it infringes any of the fundamental rights and freedoms listed. The Constitution confers power on a court under s 85 (1) to grant appropriate relief to an injured person who has approached it for relief. It is not the business of a court to grant relief to an applicant whose fundamental rights or freedoms have not been violated. He or she would be an uninjured applicant. A court does not grant relief to an uninjured applicant.

A relief that does not contain a declaration of a finding of infringement of a fundamental right or freedom and ipso facto constitutional invalidity of the conduct or legislation under attack has no legal justification. The substance of the relief sought by the applicant is the exhortation by the court to the respondents to discharge their constitutional obligation to respect, protect, promote and fulfil the applicant’s fundamental rights and freedom. It is not the duty of a court to remind other duty-bearers to observe their duties in the absence of proven infringement of a fundamental human right or freedom.

The court has proceeded to examine the matter further on the basis of the principle that an application falls or stands on the founding affidavit and that “appropriate relief” under s 85 (1) of the Constitution gives a court wide discretionary power to grant relief that is different from that claimed. The determination of appropriate relief calls for the balancing of various interests that might be affected by the remedy. The balancing must at least be guided by the objective, first to address the wrong occasioned by the infringement of the constitutional right, secondly to deter future violations, third to make an order that can be complied with and fourth achieve the objective of fairness to all who might be affected by the relief. The nature of the infringement will invariably provide guidance as to the appropriate relief.

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