Court name
Supreme Court of Zimbabwe
Case number
SC 59 of 2003
Civil Application 328 of 2002

Law Society of Zimbabwe v Minister of Transport and Communications and Another (28/02) (SC 59 of 2003, Civil Application 328 of 2002) [2004] ZWSC 59 (02 March 2004);

Law report citations
Media neutral citation
[2004] ZWSC 59


REPORTABLE (48)


















Judgment No
S.C. 59\03


Civil
Application No 328\02

















THE
LAW SOCIETY OF ZIMBABWE


v
(1) THE MINISTER OF TRANSPORT AND COMMUNICATIONS
(2) THE ATTORNEY-GENERAL OF ZIMBABWE











SUPREME
COURT OF ZIMBABWE


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


HARARE
MAY 15 2003 & MARCH 3, 2004








A.P.
de Bourbon S.C.,

for the applicant





Y.
Dondo
,
for the respondents









CHIDYAUSIKU
CJ: The applicant in this case is the Law Society of Zimbabwe,
established in terms of the Law Society of Zimbabwe
(Private) Act
[Chapter 223] of 1974. It has capacity to institute legal
proceedings in terms of section 51 of the Legal Practitioners
Act
[Chapter 27:07]. Although the papers do not expressly allege this,
this application is brought in terms of s 24 of the Constitution
of
Zimbabwe (“the Constitution”). In terms of s 24 of the
Constitution an applicant is entitled to approach this Court directly
on the basis that the applicant’s fundamental right has been, is,
or is about to be, violated. The applicant represents over
600
practising legal practitioners. The applicant’s case is that its
members’ right to freedom of expression as enshrined in
s 20 of the
Constitution is threatened by the provisions of s 98(2) and s 103 of
the Postal and Telecommunications Act [Chapter 12:05]
(“the Act”).
The applicant seeks an order declaring sections 98(2) and 103 of
the Act invalid and of no legal force or effect
because they are
inconsistent with s 20 of the Constitution.











It
is the applicant’s case that its members, legal practitioners, are
in law entitled to free and unhindered communication between
themselves and their clients and amongst each other. The applicant
contends that the privileged status of legal communications
between
legal practitioner and client goes beyond the general protection to
all persons by the Constitution. The privileged status
of
lawyer-client communication is time honoured and enshrined in common
law and in s 8 of the Civil Evidence Act [Chapter 8:01].
The
applicant contends that legal practitioners receive from their
clients, private, personal and confidential information. Their
clients must of necessity disclose to them information that has not
yet been made public or which is of a private and confidential
nature
and should not be disclosed to the public. In order for legal
practitioners to advise their clients effectively they must
receive
full information and instructions from their clients. Often the
dissemination of such information to third parties or the
public
would cause potential or actual loss, harm and/or prejudice to
clients. It is for the protection of clients that the legal
privilege accorded to legal practitioner and client communication is
recognised and enforced by law.








Subsection
(2) of s 98 of the Act allows the President to give a direction that
postal articles shall be intercepted and detained.
The Act defines
“postal services” in very broad terms and the Act does not impose
any restriction on the manner in which, or
the persons by whom, such
interception or detention may be effected. In terms of the Act the
President is allowed to give a direction
that any article shall be
delivered to an employee of the State to be disposed of in such a
manner as the President may direct.
The Act allows the President to
give a direction that communications shall be intercepted or
monitored. The President may give
any of the directions referred to
above if, in his opinion, it is necessary in the interests of
national security or the maintenance
of law and order.








Section
103 of the Act similarly allows the President to give such directions
to any licensee as appears to him to be requisite
or expedient in the
interests of national security or relations with the Government of a
country or territory outside Zimbabwe.
Section 20(1) of the
Constitution expressly provides that no person shall be hindered in
the enjoyment of his freedom of expression
which includes freedom
from interference with correspondence.








Subsection
20(2) of the Constitution provides for the derogation of the freedom
of expression if it is necessary to do so in the
interests of
defence, public safety, public order etc, but such derogation has to
be reasonably justifiable in a democratic society.








The
applicant contends, firstly, that the impugned sections do not fall
within any of the exceptions permissible under s 20(2)
of the
Constitution.








Secondly,
and in the alternative, the applicant contends that even if the
impugned sections fall within the exceptions set out
in s 20(2) they
are too vague to satisfy the requirement as provided by law and are
not reasonably justifiable in a democratic society.








The
respondent, on the other hand, concedes that sections 98(2) and 103
of the Act are a derogation on the guaranteed freedom of
expression
but argued that both provisions fall within the permissible
exceptions under s 20(2) of the Constitution and are reasonably
justifiable in a democratic society, and therefore constitutional.








It
is apparent from the stance of the parties that the facts of this
case are common cause. The issue that falls for determination
is
whether sections 98(2) and 103 of the Act are consistent with s 20 of
the Constitution. The applicant has submitted that the
issue here
relates in general terms, to the interception of communications, but
more specifically relates to interference with lawyer-client
privilege which would result from the interception of mail and
telecommunications between a lawyer and his client. The concern
of
the applicant is that the right of the State to intercept
communications in terms of sections 98 and 103 of the Act put at risk
the privilege of such communication and this constitutes an
interference with the constitutional rights of both the lawyer and
the
client in terms of s 20 of the Constitution. The applicant
contends that sections 98 and 103 of the Act place at risk the
confidentiality
of the communications and thus negate the privilege
that is granted to those communications.








LAWYER-CLIENT
PRIVILEGE



Mr
de Bourbon, for the applicant, argued strenuously that the
lawyer-client privilege was fundamental to the proper administration
of justice.
He argued that the existence of the privilege is in the
interests of all sectors of the community including the State itself.

It was also argued that at the heart of this privilege are two
fundamental rights. Firstly, the right of persons freely to
communication
with one another and, secondly, the right to fair
justice. If this privilege is destroyed or threatened then these
rights become
meaningless.








The
Court was referred to a wide range of authorities that underpinned
the importance and significance of the lawyer-client privilege.
In
the case of Baker v Campbell1
it was held that the privilege existed not simply in relation to
litigation but to advice sought between a client and a lawyer so
that
the client can regulate his affairs. In another case cited to this
Court it was held that the privilege between lawyer and
client even
overrode the policy consideration that no innocent man should be
convicted of a crime, see S v Safatsa2.
In this regard see also Mahomed v President of the Republic
of South Africa & Ors
2001 (2) SA 1145 (C) at pages 1151 and
1152 – 1155. The sanctity of the lawyer-client privilege and the
need to minimise in-roads
into that privilege is emphasised in a
number of Canadian cases that were cited by the applicant.3








It
is also very clear from the cited authorities that the privilege is
not absolute. The following are some of the recognised
exceptions
to the rule:








(a) the
right of the accused to fully defend themselves;



(b) communications
that are criminal in themselves or that are intended to obtain legal
advice to facilitate criminal activities;



(c) when
safety of the public is at risk.4








In
Zimbabwe the lawyer-client privilege is provided for in a statute.
Section 8 of the Civil Evidence Act [Chapter 8:01], which
protects
the lawyer-client privilege provides as follows:-








“8. (1) In
this section –








‘client’,
in relation to a legal practitioner, means a person who consults or
employs the legal practitioner in his professional
capacity’;








‘confidential
communication’ means a communication made by such a method or in
such circumstances that, so far as the person making
it is aware, its
contents are disclosed to no one other than the person to whom it was
made;








‘legal
practitioner
’ means a person
entitled to practise in Zimbabwe as a legal practitioner or entitled
to practise outside Zimbabwe in an equivalent
capacity;








‘third
party
’, in relation to legal
proceedings, means a person who is not a party to those proceedings.








(2)
No person shall disclose in evidence any confidential communication
between –








(a) a
client and his legal practitioner or the legal practitioner’s
employee or agent; or








(b) a
client’s employee or agent and the client's legal practitioner or
the legal practitioner’s employee agent;








where
the confidential communication was made for the purpose of enabling
the client to obtain, or the legal practitioner to give
the client,
any legal advice.








(3)
No person shall disclose in evidence any confidential communication
between a client, or his employee or agent, and a third
party, where
the confidential communication was made for the dominant purpose of
obtaining information or providing information to
be submitted to the
client’s legal practitioner in connection with pending or
contemplated legal proceedings which the client is
or may be a party.








(4)
No person shall disclose in evidence any confidential communication
between a client’s legal practitioner, or his employee
or agent,
and a third party, where the confidential communication was made for
the dominant purpose of obtaining information or providing
information for the client’s legal practitioner in connection with
pending or contemplated legal proceedings in which the client
is or
may be a party.








(5)
The privilege from disclosure specified in this section shall not
apply –








(a) if
the client consents to disclosure or waives the privilege; or








(b) if
the confidential communication was made to perpetrate a fraud, an
offence or an act of omission rendering a person liable to
any civil
penalty or forfeiture in favour of the State in terms of any
enactment in force in Zimbabwe; or








(c) after
the death of the client, if the disclosure is relevant to any
question concerning the intention of the client or his legal
competence.








(6)
Any evidence given in contravention of this section shall be
inadmissible.”













It
is quite clear from the cited authorities and section 8 of the Civil
Evidence Act that the sanctity of lawyer-client privilege
is largely
applicable in the domain of litigation or court proceedings.
Indeed a proper reading of s 20 of the Constitution reveals
that the
lawyer-client privilege, as such, is not constitutionally guaranteed.
It is only constitutionally guaranteed to the extent
that the
lawyer-client privilege is subsumed in the right to freedom of
expression which includes freedom from interference with
one’s
correspondence. I have no doubt that a breach of the lawyer-client
privilege almost invariably leads to the violation of
one’s
entitlement to a fair trial guaranteed under s 18 of the Constitution
but that is not the basis of the present application.








ARE
SECTIONS 98(2) AND 103 OF THE ACT INCONSISTENT WITH SECTION
20 OF THE CONSTITUTION
?



Section
20 of the Constitution provides as follows:-



“20
Protection of freedom of expression






(1)  Except
with his own consent or by way of parental discipline, no person
shall be hindered in the enjoyment of his
freedom of expression, that
is to say, freedom to hold opinions and to receive and impart ideas
and information without interference,
and freedom from interference
with his correspondence.








(2)  Nothing
contained in or done under the authority of any law shall be held to
be in contravention of subsection (1)
to the extent that the law in
question makes provision—








(a) in the
interests of defence, public safety, public order, the economic
interests of the State, public morality or public health;



…





except so far as
that provision or, as the case may be, the thing done under the
authority thereof is shown not to be reasonably justifiable
in a
democratic society.”













The
impugned sections of the Act provide as follows:-



“98.(2) If, in the opinion of
the President it is necessary in the interests of national security
or the maintenance of law and order,
he may give a direction that –






(a) any postal article or class
of postal articles or any telegram or class of telegrams shall be
intercepted or detained and shall
be delivered to an employee of the
State specified in the direction to be disposed of in such manner as
the President may direct;
or







(b) any communication or class of
communication transmitted by means of a cellular telecommunication or
telecommunication service
shall be intercepted or monitored in a
manner specified in the direction; or






(c) any
cellular telecommunication or telecommunication service established,
maintained or worked by a cellular telecommunication
or
telecommunication licensee or any class of such services shall be
suspended or that such service shall be suspended in respect
of a
person named in the direction.







103. Directions
to licensees in the interests of national security







(1) The President may, after
consultation with the Minister and the licensee concerned, give that
licensee such directions of a general
character as appear to the
President to be requisite or expedient in the interests of national
security or relations with the government
or territory outside
Zimbabwe.







(2) If it appears to the
President to be requisite or expedient to do so in the interests of
national security or relations with
the government of a country or
territory outside Zimbabwe, he may, after consultation with the
Minister and the licensee concerned,
give to that licensee a
direction requiring him to do, or not to do, a particular thing
specified in the direction.







(3) A licensee shall give effect
to any direction given to him in terms of this section
notwithstanding any other duty imposed on
him by or under this Act.





(4) The
President shall, at the earliest opportunity, publish in the Gazette
every direction given under this section, unless he
is of the opinion
that such publication is against the interests of national security
or relations with the government of a country
or territory outside
Zimbabwe, or the commercial interests of any person.






(5) A person
shall not disclose, or be required by virtue of any enactment or
otherwise to disclose, anything done by virtue of this
section if the
President has notified him that the President is of the opinion that
disclosure of that thing is against the interests
of national
security or relations with the government of a country or territory
outside Zimbabwe, or the commercial interests of
some other person.







(6) The
President may make
ex
gratia

payments to licensees for the purpose of defraying or contributing
towards any losses they may sustain by reason of compliance with
any
direction given in terms of this section.







(7) Any
licensee who refuses to comply with a direction given in terms of
this section shall be guilty of an offence and liable to
a fine not
exceeding two hundred thousand dollars or to imprisonment for a
period not exceeding two years or to both such fine and
such
imprisonment.”










It is quite
clear from a reading of the above provisions that sections 98(2) and
103 are a derogation of the right to freedom of
expression conferred
by s 20 of the Constitution.






It is also
clear that the protection given, under the Constitution, to freedom
from interference with correspondence is not an absolute
right but
may be restricted, as with freedom of expression, in certain
circumscribed circumstances:-








(a) the
interference with the right must be in accordance with a law;



(b) it
must be, inter alia, in the interest of defence, public
safety, public order, the economic interests of the State, public
morality or public health;



(c) the
interference must be reasonably justifiable in a democratic society.








The
impugned sections 98(2) and 103 of the Act confers on the President
unfettered powers to intercept correspondence and communications.

The only limitation to the exercise of that power is that the
President has to hold the “opinion” that it is necessary in the
interests of national security or necessary for the maintenance of
law and order. It is not a legal requirement that the holding
of
the opinion be based on reasonable grounds or good cause. In terms
of s 103 of the Act the only restriction on the President
before he
gives certain directives is that he should consult the Minister, an
appointee of the President, who is accountable to him.








Sections
98(2) and 103 of the Act have no built-in mechanism restricting or
limiting:-








(a) who
the President may authorise to make the interception;



(b) what
is to become of the mail or other communication once it has been
intercepted;



(c) who
has access to the contents in the intercepted communication;



(d) what
steps are to be taken to ensure that any lawyer-client privilege is
not unduly interfered with.








The
net effect of the failure to provide statutory mechanisms to control
or limit the exercise of the power conferred by the Act
on the
President leads to an unfettered discretion to intercept mail and
communication. The impugned sections provide no guidance
as to what
a citizen should not do to avoid conduct that might lead to the
exercise of the powers conferred by the impugned sections.
The Act
provides no legal recourse or safeguard for the innocent. The Act
does not provide any mechanisms for accountability.
Similar
legislation in other jurisdictions provides or is required to
provide, for prior scrutiny, independent supervision of the
exercise
of such powers and effective remedies for possible abuse of the
powers.5
The Act provides for no such safeguards.








The
issue here is not that the powers have been abused or are likely to
be abused by the President but rather that there are no
mechanisms
in the Act to prevent such an abuse. In the absence of such
limitations and control mechanisms the powers conferred
on the
President are too broad and overreaching to be reasonably justified
in a democratic society. The impugned sections, as I
have already
stated, are so vague that the citizen is unable to regulate his
conduct in such a way as to avoid the interception of
his mail or
communication. Thus, in this regard, the impugned sections of the
Act are too vague and do not satisfy the constitutional
requirement
of “provided by law”.6








In
the result the application succeeds and sections 98(2) and 103 of the
Postal and Telecommunications Act [Chapter 12:05] hereby
declared
unconstitutional and are struck down. The costs of this application
shall be paid by the respondents, jointly and severally,
the one
paying the other to be absolved.























SANDURA
JA: I agree













CHEDA
JA: I agree













MALABA
JA: I agree


















GWAUNZA
JA: I agree













Gill
Godlonton & Gerrans
applicant’s legal practitioners



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











1
(1983)
153 CLR 52 (HCA)




2
1988
(1) SA 868 (A) at pages 878-887




3
Solosky
v The Queen

(1979) 105 DLR (3d) 745 (SCC) at p 760;
R
v McClure

(2001) 151 CCC (3d) 321 (SCC) at p 332;
Dexôteaux
v Mierzwinski

(1982) 141 DLR (3d) 590 (SCC)




4
Smith
v Jones
(1999)
169 DLR 385 SCC para 52 p. 401, para 55 p. 402, para 57 p. 403




5


Klass
& Others v Federal Republic of Germany

(1978) 2 EHRR 214




6





Chavunduka
& Anor v Minister of Home Affairs

2000 (1) ZLR 552