iN THE CONSTITUTIONAL COURT OF ZIMBABWE

CASE NO SC96l72 &,340172

HELD AT FIARARE

In the mafter between,

,,

'a.

APPLICAIG' \-,-i--:-'

PITTYMPOFU

'7-''1:'^'

And
THE STATE

RESPONDENT

And
SAMUKELISIWE MTILO

APPLICANT

And
THE STATE

RESPONDENT

applLcant's heads

1.1

of argumentl

These mafters come before this court on referrai. The two quesfions

which are sought to

be answered are sef out on record page 7 of SC 96172 and rclate fo the constitutional

validity of sectiotr 79 of fhe Code. The allegation that the provision in question offends
the protectiou agait.Lst discrirnination was dealt with adequately aquo and counsel will

draw the courf's affenfion to those confenfions. These heads of argnment will
cotrfined therefore

be

to whether the provision is too wrde, arbitrary and therefore

violative of the protecfion of the lavr guarantee. It is subrnittedthat the legislaturehas

cteated au offeuce which is as scary as the evil that it seeks to redress.
1.2

The attack will in this regard specifically be limifed fo aspects of section 7 set out below.
The objectionable elernenfs of that provision are the following,

a.

A persou who realizes that there is a risk or possibility that heishe is infected with HIV

tnust be couvicted under that pro''iision. Clearly everyolle who has had sexual
I These
heads of argumenthavebeen combined for purposes of dealing wlth these two similar mafters.

ultercourse, protecfed or otherwise, rnusf reahze that therc is a risk or possrbility of

irLfectiot"L. Everyoue

who has used a needle or has subjected themselves to blood

tratrsfusiotr must reahze the existence of that possibility. No attempt is made by the
provisiotl to move from ihat general cor-Ljecture to a specific situation underpinned by
krrowledge" A conjectural andv^gue offence has been created,
The provision then deals

with a real risk or possibilify of infecting anofher. This is too

rvide and objectionable. Scienfific research shows that condolns are not 1OO% effective

irr protecting

agarnst

the risk of infections. Thus having sexual infercourse with

coudotn is strictly speaking irrelevanf for the purposes of this provisior-r. A dangerously
wide offence has been created,
There is also a huge danger of false incriminafion.

It is currently nof possible in

this

couufry to tell who it is that was infected first. Even if it is, the provision does nof oblige
the cotrduct of such an inquiry as it rvould undoubtedly be unconstitufional to force a
complainanf to submit to such a process
s

L{.

Notwithsfanding all fhis uncertainty and meaninqlessness, the period of imprisonmenf

is then put at 20 years. This is

7.3

with respect draconian.

Onthisviewof thematter, relief oughttobe afforded.TheprovisioncansurelyrLotpass

rnuster.

7.4

Whetr dealing with an allegation that a piece of legislation is uncor.rstifutional, two

general interpretatior, al principles are to be applied. The first was set out

in Zimbabwe

Township Developers (Pvt) Ltd v Lou's Shoes (hrt) Ltd 1,953 (2) ZLR 376 (S) at 3S2B-D;
1984 (2) SA 778 (ZS) at 783A-D, 1o this effect,

"Clearly

a litigant who

assefis that an

uttcortstitutiottal must sltow tltat

it

is.

Act of Parliament or a Regulation

In such a case

the

is

judicial body cltarged witlt

decidittg that issue must interpret the Constitution and detennine its meaning and
thereafter interpret the challenged piece of legislation to arrive at a cottclusion as to

wltetlter it falls witltin that meanittg or it does not. The cltalletged piece of legislation
may, however, be capable of more than one nteaning.

If tltat is the positiotr then if

one

possible interpretafion falls witltitt the meaning of the Constitutiott and others do ttot,
then the judicial body will presume tltat flte law ntakers intended to act cottsfitutionally

and uphold tlte piece of legislafiott so interpreted. This is one of flte

presuntptiott

serTses

in whiclt a

of cottstitutionality can be said to arise. One does not intetpret tlte

Cottstitutiott in a restricted ntanner in order fo accotnntodate flte cltallenged legislation.

The Constitution must be properly inferpreted, adopting tlte approaclt accepted above,

Thereafter the challetryed legislation

is

examined to discover wltetlter

if

can be

intetpreted to fit ittto tlte framewot"k of the Cottsfitutiotz.'See also Minister of Home
Affairs v Bickle & Ors 1983 (2)ZLR431. (S) at
S

1.5

lE-H, 1984 (2)

SA 39 (ZS)

at 448E-G;

v AJuvenile 198e (2) ZLF' 61 (S) at 89C,19e0 (4) SA 151 (zS) at 167c-H.

The secotrd principle relates to the adoption of abroad approach.

A11

provisior,s bearit.tg

upon a pafitcular subject are to be considered together and construed as a whole ur

order fo effect the true objective. Derogations from rights and freedoms which have
beerr corrferred should be given a strict and narrow, rather than a wide construcfion.

Rights and freedoms are not

to be

dtluted

or

diminished unless necessity or

i-rttractabllity of language drctates ofherwise. See Minister of Home Affairs & Ors v
Dabengwa & Anor 1982
Ncube &
1.6

ors

19

(I)

ZLR

236

(S) at

244W,, 7982 (4) SA 301 (ZS) at 306H; S v

87 (2) ZLR 246 (Sl at 26aF, 1e88 (2) S A

70

2 (ZS) at 7 75C.

The test is no more crystallized than in Munhumeso where the court notes,
"

The test

in determiting whether an efiactment infringes a fundantetrtal freedotn is to

examine its effect and not its object or subject natter.

If tlte effect of tlte impugted law

is to abridge a fundanetttal freedotn, lts object or subject matter will be irrelevant".

Thus after going through the two part process, the matter comes down to whether the

legislation involved has the effect

of abridging fundamental righfs. That effect is not

only fourrd in the tnterprctation of the law but in how the state has used the same. In
other words, we car1l1ot try and divine as to the possible effect of the legislation, we see
same

in practice, in how the stafe uses the law in questiou.

Lt

v Minister of Information, Posfs and

Telecommunications 1997 (2) BCLR 275 (ZS) the court held that certair-L
Telecommuuication Regulations were unconstitutional in tl'ieir effect, although
IU TS Masiyiwa Holdings (Pvt) Ltd and Anor

osterrsibly designed to facilitate complialice with the law. The court, @ zB3 said,

"If'the contrcl mecltanisnt under the regulatiotts, while not interferitg with the (PTC'S)
entitletttent fo cotntttettce to operate a cellular telecotnmutticatiotts seruice, is designed
to

prolong the enfty of anotlter into tlte field, or if it ltas that effect, it would be violative

of the Constitutiott"
1.8

There must be a rational connection between the object of the iimitafion and the actual

limitation itself. In Chavhunduka, the i;ourt held,

"Howev-ei',

if is trot sufficient

ifuaf ihe

iinitafiott ou ireedoru of expressiott efiects nereiy

incidentally one of tlte specified legitintate aims. It tnust be primarily directed at that
aim

att overridittg objective, to use the language of R v Oakes (1986) 19 CRR 308

(can SC)
The link tirust clearly and absolutely be shown. This is in keeping with the general
ir-rterpretative principles

in constifutional jurisprudence. It is therefore not sufficient to

say the dercgatron is in the inferests cf public health,

it must be in the interests of public

health in fhe sense that it must secure the health of the public.
1.9

If there is a possibility of the limitation going outside ifs object, it musf be held to be
void. The Supreme Court of India prorlourlced itself rn Thappar

Stafe

af

Madras

t19501 SCR 594 (SC)at 603 as follows,

"So

long as the possibility (of a limitation) being applied for purposes not sanctiotted by

the Constitution cannot be ruled out, it must be lteld to be wholly urtcottstitutiottal and

void.'
2.1

It is subrnitted that the derogations brought

about by the impugned provision have the

effect, as set out above, of underminirig apphcants' right to the protection of the law.

Not only must derogations be strictly construed- Minister of Home Affairs & Ors v

Dabengwa & Anor 1982 (1) zLR

zs\

(s) at

2448-t, rssz (4) sA 801 (zs)

ar s06H; s v

ors 1987 (2) zLR246 (s) at 26aF, 19s8 (2) sA 7oz (zs) at Trdc; National
Congress (Border Branch) v Chauman, Council of Stafe of Ciskei 1992 (4) SA 434
(CkG) at 447G-I, the resfrictious must in additron be reasonably justifiable it a

Ncube &

detnocratrc society- Nyambiraiv NSSA & Anor 1995 (2) zLR 1, (s)

at 13c-F. if

the

restriction does not fall within these corrtours, then it may not pass muster.
2.2

In

v Hartmann & Another 1,983 (2) ZLR 186 (SC) it was said,

"It is pennissible therefore to make an inroad info tlte protected righf of fieedon of

speech

...., but tltat inroad should not be wider or deeper than is required

for the acltievemettt of the declared oiyectiv'.

Tl-Lis

is exactiy w-hai is acitieved by tiris provisiorr.

ii

goes beyonci iire proieciion

accorded subjects by law and crirninalises what otherwise would be

law

abtdntg

citizens. It creates the possibility of convictior.r to people who have innocently indulged

itr sexual intercourse. The state has rro business rcgulatrngwhathapperrs in bedrooms,
2.3

At the eud of the day, subjects of the state do not know what is expected of them. Should

they have sex or not?. Should they use condoms when the possibility exists that they
may not be effective?. What sort of lectures should they take their pafiners fhrough
before indulgrng?. Is

it

reasonable to expect people to go through lectures beforc a

sexual encounter?. All those questions legitimafely arise but ate rn l1o way arrswered. A
piece of legislation whose consideration yields the confusion set out above is invalid. In
respect of same, the court in Chavhunduka,satd,

"It is the guidance of cottduct, and not tlte absolute directiott of cottduct, whiclt is tlte

appropriate objective of legislatioti. A provisiott will be too vagae if it fails to provide a

foundation for legal debate and discussion. An inadequate demarcation of an area

of

risk affords neitlter notice to a person of cottduct whiclt is potentially criminal, nor an
appropriate Limitation upott tlte discretion of the authorifies seeking to enforce tlte

provisiotl If offers no basis for the cout"t to define linits of conduct"

o/1
L,a

In The Sunday Times v The Unifed Kingdom (1979-s0) 2

Court of Human Rights held at 2TI (paru 49),
"'.".. a nofln carutot be regatded as a'law'unless

EHRR Z4S, the Europealr

it is fortnulated witlt sufficient

precisiott to enable tlte citizen to regulate his cottduct, he ntust be able if need be witlt
appropriate advice - to foresee, to a degree fhat is t"easonable in the circuntstattces, tlte
consequel\ces whiclt a given actiott may entail. Those collsequences ueed

nof

be

foreseeable with absolute certainty, experience shows this to be uttattaittable. Again,

whilst certainty is highly desirable, it may bring

in its train

excessive ngtdity and flte

Iaw must be able to keep pace with changing cjrcutnstances.,,

L.O

Itr Connolly v General Construction Cc 269 US 385 (1925) at 3gI the court took fhe
view that,
". '

'

a statLlte which eitlter forbids or requires the doing of an act

in tenns so vague that

men of colnnlon intelligence nust necessarily guess at its meaning and djffer as to its
application, violates the first essential of due process of law,
The subjecf is not clear as to what fhis law relates. The raw has nrade no attempt to
guide colrduct and men of average irrfelligence must differ as to fhe kind of conduct
proscribed by this law.
2.7

Itr the words of McNallyJ.A (as he then was)

in Chavhunduka,

.The sectiott is too widely

expressed, too anclear as to its limitations, and too intimidatittg". As their Lordships also

found, " The sweep of the sectiott is too vague and too broad to be acceptable,, per
malofity judgment irr
2.8

Similar remarks

are

v Tsvangirai ZO}i, (Z)ZLR426 (S).

made rnPapachrlirtou u Cify of Jacksonville 4OS US 156 (I9TZ) at

1.62where it is said,
'This Ordittance is void for vagaeness, both in the sense that

it

'fails to give a person

of

otdinary intelligence fair notice that his contemplated cottduct is forbiddett by tlte
Statute' ... and because

it encourages arbitraty

and erratic aruests and cottvictions ..,

Liuing under a rule of Iaw entails varioas suppositiotls, one

of

which is that '(all

persolts) are entitled to be infonned of what the State comntands or forbids'. Langetta v
NewJersey 306 US 451 at 453.',
2.9

It tnatters not that the

Aftorr-rey Ger-Leral has a discretion to consider circurnstances of

ally case before proceediug with a prosecution. The according of such a discretion vests

in the executive unacceptable powers. This is more

so the case when one has rcgard. to

the fact that subjects of the state do not know before hand what it is that is proscribed.
They therefore clo tiot kuow before hand how the Attorney General is likely to exercise
his discretion. Adopting this approach, fhe court
"

I regard

the provisiotl as one uncertain

in

in Chavhunduka

the generality

corrcluded,

of the discretiott conferced

upon the Attorney-Gettetul as to wltefher to prosecute or not (see s 63(I) of the Act ancl

the statemettt of tlte Ontario High Court in Re Ontario FiIm and Video Appreciation
Society v Ontario Board of Censors (1983)

3I

in

its use

of

Ianguage, insufficienfly precise to demonstrate the area of risk and prouide guidance

of

OR (2d) 583 at 592); and

cottduct to persons of average intelligence. On both scores, taken cumulatively, it fails fo

rueet the requiremettt of being ,,ufider the authority of any Law,,.

Nothing commeuds a differenl conclusion in fhis matter. The legislation is accordrngTy

not under the authority of the grundnorm and can thus nof be saved.
3.7

Further, the legislation penalises a conjectural likelihood. A conjectural likelihood that

the persou indulging

if

H.LV posifive is crir.ninalrzedby fhe use of the words, ,,risk or

possibilify". This is unlawful. An Act cannot create an offence based on surmise and

conjecture. Once the complainant produces a medical report showing that they arc
now posifive, the courf without enquiring as to when they contracfed the virus musf
cotrvict. And for committing a "cfilne", which does nof take place, an accused persotl
faces the prospect of 20 years

3.2

in jatl.

Beyond doubt, fhis provision invades the righfs contained

scarcely be brought

in Chavhunduka,

in the constifutiort. It

can

within fhe restrictions that are constifutionally permissible. As held

It is cleat tltat lintitatiotts on freedotn of expressiott which do not serve one of the

"

Iegititnate six ains or exceptiotts listed in s 20(2) of the Constitutiott are not valid. See
The Sunday Times case supra at 26g (para 4S)."
J.J

It is clear

in the

tl-Lat

the legislation is not reasonably justifiable in a democratic state, (atleast

lnal1l1er

it

is crafted), for want of compliance with the principles set out in

Nyambirai v NSSA & Anor 1995 (2) ZLR 7 (S) at i 3C-F,. The evil it is designed to redress
and ifs effect, (as cleariy seen in these cases) are disproportionafe.
"

It places persolls in doubt as fo wltat can lawfully be done and what cannot. As a result,

it exerfs an uilacceptable ,chilling effect,,..."..

See

3.4

Chavhunduka.

Atr accused person rs at large to challenge their prosecution on the basis that it

is

cotrstitutiotrally invalid In Chavhunduka and ANOR V Minister of Home Affairs and

Anor 2000 (1) ZLR 555, the court approved of the followingpassage,
"Itt the clear words of Dickson cJ in R v Big M Drug Mart

(Igss) Is

cRR 6a

pan sc)

at 79-80; 'Sectiott 52 sets out the fundarnental principle of cottstitutional law that the
Cottstitutiott is supreme. TIte undoubted corollary to be drawtt frotn this pfinciple is
that no otle cail be convicted of an offettce under an unconstitutional law.

...

..

...

..Atty

accused, whether corporate or individual, may defettd a critninal charge by atguittg

that the law under which the charge is brcught is cottstitutiottally invalid."
J.C

In the circumstauces, if is submittedthat the provision is obviously too wide, dangerous

and

unlawful and strikes at the perch of the protection of the law guarantee. The courf

is left at large to afford the relief sought being to strike

it down to the extent to which it

is irrconsisferrt with the constitution.

DATED AT FIAMREMITS i

PAY OFOCTOBER 2013

thabarti mpofu

chantbers, hatarc
lnrtrueted by

ZIN4BABWE IAW\TRS FOR HUMAN RIGHTS

Applicant's Lega| Pr acti tioners

HARARE

TO

(W Zhuwarura)

THE REGISTRAR

Constitutional Court of Zinrbabwe

FIARARE

AND

TO

ATTORNEY GENERAI
Respondenf's Legal Practitioners
HARARE