Judgment No. CCZ 9/2016
Const. Application No. CCZ 316/2012
BENARD WEKARE
v
THE STATE
and
THE ATTORNEY GENERAL OF ZIMBABWE
and
ZIMBABWE BROADCASTING CORPORATION
MUSANGANO LODGE (PVT) LTD t/a MUSANGANO LODGE
v
THE STATE
and
ZIMBABWE BROADCASTING CORPORATION
CONSTITUTIONAL COURT OF ZIMBABWE
MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC,
GARWE JCC, GOWORA JCC, HLATSHWAYO JCC,
PATEL JCC, GUVAVA JCC & MAVANGIRA AJCC
HARARE, NOVEMBER 14, 2014 & JULY 20, 2016
T Mpofu with W Chinamora, for the applicants
T T G Musarurwa with A Mambosasa, for the respondents
MALABA DCJ: 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 [Cap. 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 s 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 s 38(B)(1) as read with s 38E(1)(h)(i) of the Act. The questions presented in argument for determination at the hearing in each case were whether ss 38B(1), 38C, 38D(2) and 38E(1)(C)and 38E(i)(h)(i) of the Act 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 Act infringes each of the fundamental human rights enshrined in the relevant provision of the Constitution and is invalid. At the hearing, Mr Mpofu for the applicants, indicated that the determination of the question whether each of the provisions of the Act referred to infringes the fundamental right of the applicants enshrined in ss 19(1) (freedom of conscience), 21(1)) (freedom of association) and 23(1) (protection from discrimination) is no longer sought from the Court. Those contentions may therefore be put out of view.
For the purposes of the determination of the questions referred by the court a quo the “former Constitution” is referred to as “the Constitution”. The Court holds in each case that each provision of the Act 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 Act 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 Act in question are valid. The detailed reasons for the decision now follow. The background facts are not in dispute. The applicant in the first case had under his possession at his place of abode a television set without a licence. On 5 July 2012 he was charged in the Magistrates Court with the offence of being in possession of a receiver otherwise than in accordance with the terms and conditions of a licence issued by the Zimbabwe Broadcasting Corporation (ZBC) or its agents. The alternative charge was that the applicant contravened s 38D(2)(b) as read with s 38E(1)(c) of the Act. The allegation was that being a listener in possession of a receiver he failed to produce a valid licence in terms of a notice served on him in terms of subs(2) of s 38D of the Act.
The applicant admitted that he knowingly possessed the television set without the requisite licence. There was no defence to the charge on the merits. He raised as a defence the
allegation that the provisions of the Act under which he was charged are constitutionally invalid. On 13 July 2012 the applicant requested the presiding magistrate to refer to the Supreme Court Judgment No. CCZ 9/2016 Const. Application No. CCZ 316/2012 for determination the questions of the constitutionality of the relevant provisions of the Act in a
bid to escape conviction for determination the questions of the constitutionality of the relevant provisions of the Act in a bid to escape conviction.
The applicant in the second case is a company with limited liability incorporated in terms of the laws of Zimbabwe. It carries on a hospitality business in Odzi under the style “Musangano Lodge”. The applicant company was arraigned before the Magistrates Court in Mutare on a charge of contravening s 38(B)(1) as read with 38E(1)(h)(i) of the Act. The
allegation was that it had under its possession at the business premises, eight television sets without a licence issued by the ZBC or its agents. The alternative charge was that the applicant contravened s 38D(2)(b) as read with s 38E(1)(C) of the Act in that its director failed to produce a licence in respect of the television sets in terms of a notice served upon it in terms of subs(2) of s 38D of the Act. The applicant company admitted that it knowingly possessed, at the place of business, eight television sets without a licence. There was no defence to the charge on the merits. The company raised as a defence the allegation that the provisions of the Act under which it was charged are constitutionally invalid. It requested the presiding magistrate under s 24(2) of the Constitution to refer the question of the constitutionality of the relevant provisions of the Act to the Supreme Court for determination.
