Court name
Supreme Court of Zimbabwe
Case number
SC 20 of 2003
Civil Application 7 of 2003

Associated Newspapers of Zimbabwe (Pvt) Ltd. v Minister of State for Information and Publicity in the President's Office and Others (07/03) (SC 20 of 2003, Civil Application 7 of 2003) [2003] ZWSC 20 (10 September 2003);

Law report citations
Media neutral citation
[2003] ZWSC 20




REPORTABLE
(13)














Judgment
No S.C.20\03


Civil
Application No 7\03

















ASSOCIATED
NEWSPAPERS OF ZIMBABWE (PRIVATE) LIMITED v (1)
THE MINISTER OF STATE FOR INFORMATION
AND
PUBLICITY IN THE PRESIDENT’S OFFICE (2) MEDIA
AND INFORMATION COMMISSION (3) THE ATTORNEY-GENERAL

OF ZIMBABWE











SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA, ZIYAMBI JA, MALABA JA & GWAUNZA JA


HARARE
JUNE 3 & SEPTEMBER 11, 2003








A.P.
de Bourbon S.C.,

for the applicant





J.
Tomana
,
for the first and second respondents





C.
Mudenda
,
with him
C.
Muchenga
,
for the third respondent








CHIDYAUSIKU
CJ: The applicant in this matter is a corporate company that
owns and publishes the Daily News. The principal
object of the
applicant is to acquire, publish and circulate or otherwise deal with
any newspapers or other publications. The applicant
contends that
it is entitled to enjoy the freedom of expression set out in section
20 of the Constitution of Zimbabwe. It is the
view of the applicant
that the Access to Information and Protection of Privacy Act, Chapter
[10:27] (hereinafter referred to as the
Act) in general terms
interferes with and unduly restricts the enjoyment by the citizens of
Zimbabwe of their freedom of expression.
In particular the
applicant impugns sections 39, 40, 41, 65, 66, 70, 71, 79, 80 ,83 and
89 of the Act, and S.I. 169C of 2002, made
thereunder. It is
contended that the above provisions are unconstitutional.






The first
and second respondents have raised the point in

limine

that the applicant has dirty hands and is not entitled to approach
this Court for relief. This allegation of dirty hands arises
from
the fact that the applicant is in open defiance of the law which it
is seeking to impugn. The first respondent’s contention
is set
out in paragraph 3 of the opposing affidavit which reads as follows:-





“3. I
have read and understood the Applicant’s founding papers and
respond thereto in opposition as follows:-








    1. Firstly
      might I be permitted to state that the Act in question was law in
      this country at the date of the instant application.








3.1.1
I am advised that unless and until a piece of legislation is either
repealed by an Act of Parliament or declared unconstitutional
and
therefore nullified by this Honourable Court, such piece of
legislation retains the force of law obliging all citizens to obey
and respect it.






3.1.2 The Applicant and its
journalists are required by the Act to register and be accredited
after due compliance with the regulations
promulgated as SI 169C/02.






3.1.3 The Applicant has taken
the choice not to apply for registration and the Applicant’s
journalists have not applied for accreditation.
Applicant is
therefore by choice operating a media business in contravention of
the Act.






3.1.4 In other words the
Applicant has taken the place of Parliament and this Honourable
Court, adjudged the Act unconstitutional
and proceeded to ignore the
same completely.






3.1.5
I know of no country where a citizen has the option to respect a law
if it suits such citizen or ignore the same with impunity
if the
piece of legislation fails to meet the expectations of such citizen.






3.1.6
This in fact, is what Applicant has done.





3.1.7
I am however advised that this too is not acceptable in this
country and in particular that this Honourable Court will not
tolerate such an attitude from any of the subjects of the laws of
Zimbabwe.





3.1.8
Applicant approaches this Honourable Court with dirty hands.
Applicant is simply approaching this Honourable Court for a
rubber-stamp
of its prior decision to disrespect the Act which is an
existing Zimbabwean piece of law.





3.1.9
I accordingly urge this Honourable Court to register and restate the
Zimbabwean position on this lawless attitude by refusing
to entertain
this application.





3.1.10
However in the event, that this Honourable Court chooses to condone
the deliberate decision by Applicant to disobey the Act,
I respond,
in opposition, to the merits of the application as follows.”








The
second respondent associates itself with the attitude of the first
respondent. The Chairman of the Commission makes the following
averment in paragraph 2 of his affidavit:-






“2. I
confirm that I have read and understood the Applicant’s papers. I
have also read the 1
st
Respondent’s opposing affidavit the contents of which I fully
associate myself with.”












The applicant’s response to the
above averments are to be found in paragraph 3 of the answering
affidavit, part of which reads as
follows:-






“3.3.1 I
do not accept as correct the view that First Respondent expresses
regarding the laws whose validity is being lawfully challenged.
If
the Applicant’s view that the provisions of the Act which it is
sought to have declared unconstitutional are indeed unconstitutional,
then Applicant and any other persons affected by those provisions are
not obliged to comply with them
.
In any event First Respondent very significantly and blatantly
exempted the mass media services controlled by him from these
provisions
of the Act. (underlining is mine)









Section
66 of the Act, in terms of which the applicant is required to
register, provides as follows:-







“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 –






  1. 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







  1. a
    representative office of a foreign mass media service permitted to
    operate in Zimbabwe in terms of section ninety; or







  1. 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 the issue of the registration
certificate, failing which the registration certificate shall be
deemed to be cancelled.”








The
applicant has not complied with section 66 of the Act because it
contends that it cannot do so in good conscience. The applicant
contends that it or any other persons affected by the above
provisions are not obliged to comply with the above provisions if
they
should be found to be unconstitutional.





It
is not disputed, therefore, that as of now the applicant is operating
contrary to the provisions of section 66 of the Act.
The applicant
now approaches this Court seeking the relief that section 66 and
other sections of the Act be declared unconstitutional.






Mr Tomana
for the first and second respondents made a number of submissions in
support of the first and second respondents’ point in
limine.
He submitted that the applicant is approaching this Court with
dirty hands and is not entitled to relief from this Court. He
submitted that the applicant admits that it chose not to apply for
registration because, in its view, the provisions requiring
registration
of Mass Media Services are not constitutional. It was
Mr
Tomana’s
further contention that among all the Mass Media Service providers in
Zimbabwe only the applicant chose to disrespect the law by
deliberately refraining from applying for registration as prescribed
because it unilaterally resolved that it cannot, in its alleged
conscience, obey such a law. Mr
Tomana
argued that it was not for the applicant to judge any law of this
land as unconstitutional. That function was for the Constitutional
Court. He also argued that every Act of the legislature is presumed
to be valid and constitutional until the contrary is shown.
Even in
those cases where the constitutionality of the Acts are in doubt all
such doubts are resolved in favour of the validity
of the Acts.
Where an Act is fairly and reasonably open to more than one
construction, that construction will be adopted which
will reconcile
the statute with the Constitution in order to avoid the consequence
of unconstitutionality. For the above proposition
Mr
Tomana
cited the learned author Black,
The
Construction and Interpretation of Laws
1.
The cases of
Growell
v Benson
2
and
Zimbabwe
Township Developers (Pvt) Ltd v Lou’s Shoes (Pvt) Ltd
3
were also cited in support of the above proposition. In the case of
Zimbabwe
Township Developers (Pvt) Ltd v Lou’s Shoes (Pvt) Ltd, supra,

GEORGES CJ (as he then was) at 383A-E had this to say:-






“Many
neo-Nigerian constitutions permit derogation from the declared rights
defined provided that these derogations are, to use the
phrase in the
Zimbabwean Constitution, ‘reasonably justifiable in a democratic
society’. Even where the Constitution does not
make it clear
where the
onus
lies as the Zimbabwe Constitution does, the
onus
lies on the challenger to prove that the legislation is not
reasonably justifiable in a democratic society and not on the State
to
show that it is. In that sense there is a presumption of
constitutionality. As LORD FRASER OF TULLYBELTON stated in
Attorney-General
& Anor v Antigua Times Ltd
[1975]
3 All ER 81 at 90:-





‘In
some cases it may be possible for a court to decide from a mere
perusal of an Act whether it was or was not reasonably required.
In
other cases the Act will not provide the answer to that question.
In such cases evidence has to be brought before the court
of the
reasons for the Act and to show that it was reasonably required?
Their Lordships think that the proper approach to the question
is to
presume, until the contrary appears or is shown, that all Acts passed
by the Parliament of Antigua were reasonably required.’





In
that sense the presumption represents no more than the Court adopting
the view that a legislature, elected by universal adult suffrage
and
liable to be defeated in an election, must be presumed to be a good
judge of what is reasonably required or reasonably justifiable
in a
democratic society. But situations can arise even in such societies
in which majorities oppress minorities, and so the Declaration
of
Rights prescribes limits within which rights may be restricted. It
is only in cases where it is clear that the restriction is
oppressive
that the Court will interfere.”









Mr de
Bourbon
,
for the applicant, on the other hand, submitted that the respondents’
contention that the applicant has come to court with dirty
hands and,
therefore, should not be heard is without legal foundation. He
submitted that the applicant had not sought to be registered
in terms
of the Act because the applicant considers that the registration
provisions of the Act are unconstitutional. The essence
of Mr
de
Bourbon’s

submission is crisply set out in paragraph 4 of his heads of argument
wherein he submits:-






“It
is correct that the Applicant has not sought to be registered in
terms of AIPPA. The Applicant considers that the registration
provisions of AIPPA are unconstitutional. It considers that,
despite the presumption of constitutionality, see
Zimbabwe
Township Developers (Pvt) Ltd v Lou’s Shoes (Pvt) Ltd

1983 (2) ZLR 376 (SC); 1984 (2) SA 778 (ZS), that it cannot in
conscience obey such a law.”









In the same
paragraph Mr
de
Bourbon

also refers to the remarks of the Late Martin Luther King which, in
my view, have no legal significance in

casu
.









Mr de
Bourbon

has also argued that even if the applicant had sought to be
registered it might not have been possible for it to do so because
certain
administrative mechanisms were not in place to enable it to
register in terms of the Act. There might have been substance in
this
argument had the applicant’s case been that it was unable to
register because of administrative difficulties. That is not its
case. He also argued that the applicant’s conduct is not tainted
with any moral turpitude such as fraud or dishonesty and is,
therefore, entitled to approach this Court for relief.






In paragraph
10 of his heads, Mr
de
Bourbon

makes the following submission:-






“But
at the end of the day the fact of the matter is that the Applicant
has made no secret of its attitude towards AIPPA; it has made
full
disclosure to this Honourable Court. It considers the legislation
to be unconstitutional, and was not prepared to make an
application
in terms of section 66 of AIPPA for registration. It has continued
operating, and
the
question that has to be determined by this Honourable Court is
whether its attitude in that regard was correct
.
It is respectfully submitted that it cannot be denied a hearing
because two of the three respondents seek to enforce what might
well
be unconstitutional legislation.” (the underlining is mine)









Mr de
Bourbon

made the further submission that the applicant has
locus
standi

in terms of section 24 of the Constitution and should, therefore, be
heard by this Court.






I agree with
Mr
de
Bourbon’s
contention
that the applicant has
locus
standi
in
terms of section 24 of the Constitution. The issue to be determined
as Mr
de
Bourbon

himself has submitted is whether the applicant’s attitude in
refusing to obey a law pending the determination of the
constitutionality
of such law is correct. Is such an applicant
entitled to be heard on the merits of the challenge while in defiance
of such a law?






The issue of
whether a citizen should comply with a law whose validity it
challenges pending the determination of the validity of
such a law
was considered in the case of
F.
Hoffmann-La Roche & Co A.G. and Others v Secretary of State for
Trade and Industry
4.






The facts of
that case were briefly as follows. The F. Hoffmann-La Roche
,
a pharmaceutical company (hereinafter referred to as the company) was
selling some drugs at a certain price. The Secretary for
Trade,
(“The Secretary”) issued statutory orders reducing the selling
price of the drugs sold by the company. The company contended
that
the statutory orders were
ultra
vires

and, therefore, invalid. The company indicated that it was not
going to obey the orders. The company was going to raise the prices
so as to restore them to the level obtaining before the orders were
made. But it would pay the difference into a bank account to
await
a decision on the validity of the orders. The Secretary applied for
an injunction to restrain the company from charging in
excess of the
prices specified in the order. The Secretary sought an interim
injunction pending the determination of the matter.
The company was
prepared to submit to the interim injunction, keeping the low price
provided that the Secretary gave an undertaking
in damages so as to
recompense the company if the orders were afterwards held to be
invalid. The Secretary was not willing to give
that undertaking.
WALON J, in the court of first instance, dismissed the Secretary’s
application for the interim injunction mainly
on the basis of his
refusal to give an undertaking and that in any event the company was
paying the money in a trust account to be
refunded to purchasers in
the event of the decision going against the company and the orders
being held valid. The Secretary appealed
against the judgment of
WALON J. The appeal was upheld.





Lord
DENNING M.R., in allowing the appeal, had this to say at pp
321H-322A:-





“The
Secretary of State has made, under the authority of Parliament, an
order which compels the plaintiffs to reduce their prices greatly.

That order has been approved, after full debate, by both Houses of
Parliament. So long as that order stands, it is the law of
the
land. When the courts are asked to enforce it, they must do so.”





Lord
DENNING M.R. further observed at p 322B-C:-








“They
argue that the law is invalid; but unless and until these courts
declare it to be so, they must obey it. They cannot stipulate
for
an undertaking as the price of their obedience. They must obey
first and argue afterwards.





I
would allow the appeal and grant the injunction as asked without
requiring any undertaking from the Crown in damages.”











The
company appealed to the House of Lords but the appeal was dismissed.
Thus the principle that a citizen who disputes the validity
of a law
must obey it first and argue afterwards is founded on sound
authority and practical common sense. The applicant’s contention
that it is not bound by a law it considers unconstitutional is simply
untenable. A situation where citizens are bound by only those
laws
they consider constitutional is a recipe for chaos and a total
breakdown of the rule of law.




I am not
persuaded by Mr
de
Bourbon’s

submission that the principle of dirty hands only applies to those
litigants whose conduct lacks probity or honesty and those litigants
whose conduct is tainted with moral obliquity such as fraud or other
forms of dishonesty.






For the above
submission Mr
de
Bourbon

sought to rely on the case of
Deputy
Sheriff, Harare v Mahleza & Anor

1997 (2) ZLR 425 (HC). In that case Mrs Mahleza had purchased goods
in the name of her husband’s company in order to avoid the
payment
of sales tax. The goods were subsequently attached at the instance
of the company’s creditors. Interpleader proceedings
were
launched. The court,
mero
motu,

refused her relief until such time as she would have paid the tax.
Mrs Mahleza had been candid with the court as to why she purchased
goods in the name of the company.
Mahleza’s
case,
supra,
is certainly an authority for the proposition that a litigant with
dirty hands will be denied relief. That case does not seek
to
define the extent of that principle. It certainly is not an
authority for the proposition that denial of relief will be confined
only to those litigants whose conduct lacks probity or honesty or is
tainted with moral obliquity. In the cases of
S
v Neill
5
and
S
v Nkosi
6
the
court refused to hear appeals of appellants who had absconded or
failed to comply with bail conditions. Such conduct does not,
in
any way, involve moral obliquity. Defiance of a court order does
not involve dishonesty or moral obliquity yet litigants in
defiance
of court orders more often than not are denied relief by the court
until they have purged their contempt. In my view there
is no
difference in principle between a litigant who is in defiance of a
court order and a litigant who is in defiance of the law.
The Court
will not grant relief to a litigant with dirty hands in the absence
of good cause being shown or until such defiance or
contempt has been
purged
7.
In the present case Mr
de
Bourbon

has advanced two reasons why the court should exempt the applicant
from the application of the dirty hands principle, namely,:-



  1. that
    the applicant has made an open and candid disclosure of its conduct;


  2. that
    the applicant is acting in response to its conscience.







I am not
satisfied that these two reasons are sufficient to justify this Court
to grant relief to the applicant who approaches it
while in open
defiance of the law for a number of reasons. The mere fact that the
applicant has disclosed to the court its defiance
of the law is
totally inadequate to purge the applicant’s contempt of the law.
In many of the cases where relief was refused
and, indeed, in the
present case, the facts are patent and the litigant has no choice but
to make such a disclosure. In the present
case the applicant did
not apply for registration in terms of the Act. Its failure to do
so is a matter of public record and easily
ascertainable.
Disclosure of what is patent and obvious is not something for which
the applicant can claim credit. Indeed, in
Mahleza’s
case,
supra,
the litigant disclosed in her affidavit that she had used another
person’s name to purchase her goods in order to avoid payment
of
tax. That disclosure did not help her. If anything it was as a
result of such disclosure that the court
mero
motu

raised the principle of dirty hands. In my view, it would not have
helped the litigant either if she had alleged that the law imposing
the tax was unconstitutional, which brings me to the next reason
advanced by Mr
de
Bourbon

as to why this Court should grant the applicant the relief it seeks.







The applicant
argues that it could not, in good conscience, apply to register in
terms of the Act because in its view certain provisions
of the Act
and, in particular, section 66, requiring such registration was
unconstitutional. I am not impressed by the good conscience
argument for a number of reasons. Firstly, section 66 of the Act is
not blatantly unconstitutional. At worst its constitutionality
is
debatable. If the impugned section was patently unconstitutional
the court might be persuaded. Indeed the licensing of the
media,
particularly, the electronic media has been adjudged constitutional
in some jurisdictions
8.
A perusal of the other impugned sections reveals that they are not
totally repugnant and would need careful consideration to determine
their constitutionality. Secondly, it would appear that of all the
publishing companies the applicant was the only conscientious
objector. If the Act was as morally repugnant as the applicant
would have the court believe one would have expected more than one
conscientious objector.






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.






In the result
the point taken in
limine
succeeds. The applicant is operating outside the law and this Court
will only hear the applicant on the merits once the applicant
has
submitted itself to the law.






No
order as to costs has been requested and none will be made.











CHEDA
JA: I agree








ZIYAMBI
JA: I agree








MALABA
JA: I agree








GWAUNZA
JA: I agree









Gill
Godlonton & Gerrans
,
applicant’s legal practitioners


Muzangaza
Mandaza & Tomana
,
first and second respondent's legal practitioners


Civil
Division of the Attorney-General’s Office,
third
respondent's legal practitioners









1
(1911
p 110 paragraph 41H)




2
(1931)
285 US 22 at 62




3
1983
(2) ZLR 376




4
[1975]
AC 295




5
1982
(1) ZLR 142




6
1963
(4) SA 87




7
Hoffman-La Roche v Trade
Secretary, supra




8


Athukorale & Ors v
Attorney-General of Sri Lanka
(1997) 2 BHRC 610