- NEVANJI MADANHIRE (2) NQABA MATSHAZI
CONSTITUTIONAL COURT OF ZIMBABWE
CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA,
GWAUNZA JA, GARWE JA, GOWORA JA,
HLATSHWAYO JA, PATEL JA & GUVAVA JA
HARARE, OCTOBER 9, 2013 & JUNE 12, 2014
E. Morris, for the applicant
E. Makoto with him T. Mapfuwa, for the respondent
PATEL JA: The applicants herein were jointly charged with the crime of criminal defamation as defined in s 96 of the Criminal Law (Codification and Reform) Act [Cap 9:23] (the Criminal Law Code). Pursuant to an application under s 24(2) of the former Constitution, the Magistrates Court sitting at Harare has referred the matter to this Court for the determination of certain constitutional questions.
The first applicant is the editor of The Standard newspaper, while the second applicant is employed by the same journal as a reporter. On 6 November 2011, they published an article concerning the complainant, Munyaradzi Kereke, who is the founder and Chairman of the Green Card Medical Aid Society (the Society). The article stated that the Society was unable to pay its members and staff as well as its creditors and that it was on the brink of collapse as its expenditure outstripped its income.
The applicants were subsequently arrested and charged under s 96 of the Criminal Law Code. It was alleged that they published the foregoing statements knowing that they were false and intending to cause serious harm to the reputations of Kereke and the Society.
The application before this Court, as originally posited, was for the offence of criminal defamation as defined in s 96 of the Criminal Law Code to be declared unconstitutional and struck down as being null and void. The same relief was initially propounded by Adv. Morris at the hearing of the matter. However, after it was observed by the Court that the application in its original form did not address the relevant provisions of the new Constitution, the application was confined to the consistency of the offence with the former Constitution.
The relief now sought is for the perpetual stay of prosecution of the applicants in respect of the offence of criminal defamation allegedly committed under the aegis of the former Constitution. It was noted that the decision of the Court in this matter would also affect the prosecution of several other cases involving offences allegedly committed before the advent of the new Constitution.