IN THE HIGH COURT OF ZIMBABWE CASE NO. HC 230/18

HELD AT MASVINGO

In the matter between:

In the matter between:

FIRINNE TRUST operating as VERITAS 1st APPLICANT

VALERIE INGHAM-THORPE 2nd APPLICANT

BRIAN DESMOND CROZIER 3rd APPLICANT

And

ZIMBABWE BROADCASTING CORPORATION 1st RESPONDENT

ZIMBABWE NEWSPAPERS (1980) LIMITED 2nd RESPONDENT

ZIMBABWE ELECTORAL COMMISSION 3rd RESPONDENT

ZIMBABWE MEDIA COMMISSION 4th RESPONDENT

BROADCASTING AUTHORITY OF ZIMBABWE 5th RESPONDENT

APPLICANTS’ HEADS OF ARGUMENT

I. BACKGROUND

1. This application has been brought seeking a declaratory order and

an interdict against the Respondents to comply with the provisions

of the Constitution and the electoral law relating to freedom of the

media which they are presently violating.

2. The First and Second Respondents are state-owed media houses

within the meaning of section 61(4) of the Constitution and

therefore have special obligations placed on them in that capacity

to be independent, impartial and provide fair opportunity for the

presentation of divergent views and dissenting opinions.

3. Both have, however, been operating with impunity and in violation

of those provisions. In particular, their coverage of political parties

is grossly inequitable with the lion’s share of airtime being reserved

for members of the ruling ZANU PF party, with the remaining

scraps being distributed between opposition parties. As if that were

not enough, the reporting itself is blatantly biased in favour of the

ruling ZANU PF party and often denigrates opposition parties, in

particular the largest opposition party, MDC.

4. Additionally, since the proclamation of the election there are a

number of additional requirements placed on the First and Second

Respondents by the Electoral Act which give effect to the broader

constitutional principles they continue to violate with impunity.

5. The Third, Fourth and Fifth Respondents are charged with

monitoring media houses during elections and ensuring their

compliance with the law. However, they have failed to discharge

their statutory constitutional obligations to do so, which contributes

to the ongoing violation of the Applicants’ and the general public’s

rights to freedom of expression and the media and administrative

justice, among other rights. They’ve also failed to disclose how

they are going to conduct the monitoring and what they will do to

ensure compliance by errant media houses which violates the right

to access to information.

6. This application seeks to arrest the violation of those rights through

a declaratory order and mandatory interdicts against the

Respondents. The court will be called upon to answer the following

questions:

a. Do the Applicants have locus standi to bring the present

application?

b. Do the Applicants have a clear right?

c. Do the Applicants have a reasonable apprehension of harm,

that is, reasonable grounds for concern that their rights will

be violated?

d. Do the Applicants have no other adequate alternative

remedy?

e. Are the Applicants entitled to their costs?

II. LOCUS STANDI 7. It is submitted that the Applicants clearly have locus standi to bring

this application. The Applicants clearly have a direct and

substantial interest that their rights to freedom of expression,

freedom of information, to administrative justice and to a free and

fair election are upheld and protected from violations by the

Respondents.

8. In UNITED PARTIES v MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS & ORS 1997 (2) ZLR 254 (S) the

Supreme Court stated at 269A:

“I have no hesitation in accepting that freedom of expression

concerning the activities of the political party in power, and of

other opposing parties, should be protected from hindrance.

This is essential to the proper functioning of a democratic

system. Any abridgment affects the right of the people to be informed, through sources independent of government, about matters of public interest.” (emphasis

added)

9. The same court refers with approval to an excerpt from a Canadian

case, REFORM PARTY OF CANADA v CANADA (ATTORNEY GENERAL) (1995) 27 CLR 254 (Alberta Court of Appeal) which

states:

“In the arena of elections, I am satisfied that the guarantee is

not merely to protect the right of the person to speak, but the

right of the public to hear: Communication is fundamental to

expression of any kind.”

10. Additionally, it is precisely for such circumstances such as these

that our Constitution envisages allowing applicants to bring an

application on behalf of the general public and in particular to

vindicate the rights of the poor and marginalized masses who

otherwise might not have their rights respected. In MUDZURU & ANOR V MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS & ORS CCZ 12/2015, Malaba DCJ

(as he was then) stated the following about the principles relating

to standing under the new Constitution:

“The object of s 85(1) of the Constitution is to ensure that

cases of infringement of fundamental rights which adversely

affect different interests covered by each rule of standing are

brought to the attention of a court for redress. The object is

to overcome the formal defects in the legal system so as to

guarantee real and substantial justice to the masses,

particularly the poor, marginalised and deprived sections of

society.” (emphasis added)

11. It is also clear that where an application for an interdict involves

constitutional rights, then the constitutional rules of standing must

apply rather than the common law rules. In HIGHVELDRIDE RESIDENTS CONCERNED PARTY v HIGHVELDRIDGE TLC 2002 (6) SA 66 (T), the court stated as follows:

“Bearing in mind the expanded standing provided for by

section 38 [the South African Constitution’s equivalent to

Zimbabwe’s section 85] and the way in which the latter has

been explained and implemented in previous judgments, I

am of the view that the restrictions placed by the common

law on the legal standing of voluntary associations cannot

and should not apply … in the event of rights in the Bill of

Rights having allegedly been infringed or threatened.

…

I am also of the opinion that the applicant has established

locus standi on the basis provided for by section 38(b). From

the papers it is evident that the people affected by the

alleged [infringement] are mostly indigent and are unable to

individually pursue their claims because of that fact. They are

effectively able to individually act in their own name … There

seems no reason, in principle, why an association such as

the applicant may not act on behalf of people who are unable

to act in their own name.

III. REQUIREMENTS FOR AN INTERDICT 12. The requirements for a final interdict are as follows:

a. a clear right;

b. an injury actually committed or reasonably apprehended; and

c. the absence of similar or adequate protection by any other

ordinary remedy.

See SETLOGELO v SETLOGELO 1914 AD 221 at 227.

13. It is submitted that all of these requirements have been met by the

Applicants, each of which will be discussed in greater detail below.

IV. A CLEAR RIGHT

14. It is submitted that the Applicants and the general public have

multiple clear rights. These rights are enshrined in the various

provisions of the Constitution and the electoral law which are

discussed in further detail below.

15.The Applicants and all persons have a right to freedom of the

media enshrined in section 61 of the Constitution. Section 61(1) of

the Constitution states that this right includes a right to “freedom to

seek, receive and communicate ideas and other information

(emphasis added).” Section 61(4) of the Constitution of Zimbabwe

outlines in further detail how the right relates specifically to state-

owned media such as the First and Second Respondents. It states

as follows:

“4. All State-owned media of communication must—

a. be free to determine independently the editorial content of

their broadcasts or other communications;

b. be impartial; and

c. afford fair opportunity for the presentation of divergent

views and dissenting opinions.”

16. It is submitted that this section provides colour and detail to every

persons’ right to freedom of expression (which includes freedom to

receive ideas and information). Citizens have a right to receive

impartial reporting through State-owned media which is

independent of government influences and have a right hear and

read divergent views and dissenting opinions in the State-owned

media. That must entail equal access to the State-owned media by

opposition parties.

17. In the landmark judgment of NEW PATRIOTIC PARTY v GHANA BROADCASTING CORPORATION [1993-94] 2 GLR 354, the

Ghanaian Supreme Court held the Ghana Broadcasting

Corporation, a state broadcasting media outfit, was in breach of its

constitutional responsibility by failing to afford commensurate air

time for the opposition NPP political party to express its views on

the national budget. It was alleged that the ruling NDC party was

given disproportionate airtime as against the NPP.1

18. The Ghanaian Supreme Court was called upon to interpret Article

163 of the Ghanaian Constitution which is worded very similarly to

section 61(4)(c) of the Zimbabwean Constitution. It is framed as

follows:

“All state-owned media shall afford fair opportunities and

facilities for the presentation of divergent views and

dissenting opinions.

19. The Ghanaian Supreme Court held that state-owned media did

not have a discretion to provide “reasonable” airtime for opposition

parties but had a mandatory duty to provide equal access. The

Court stated as follows:

“The Attorney-General, appearing for the defendant, in his

submissions argued that the word "fair" in article 163 of the

Constitution, 1992 should be interpreted to mean

"reasonable" and that what is reasonable depends on what

the Ghana Broadcasting Corporation thinks is reasonable.

This argument is not only untenable for the reasons given

above, but also for this reason, namely that since the word

"shall" used in article 163 of the Constitution, 1992 imposes

a mandatory, not permissive duty on the Ghana

Broadcasting Corporation, the Ghana Broadcasting

1 Kofi Quashigah, “THE 1992 CONSTITUTION OF GHANA”, Institute for International and Comparative Law in Africa.

Corporation has no discretion in the performance of its constitutional duty of mandatorily affording equal opportunities to all parties to present divergent and dissenting opinions to the public on the state-owned news media: see section 27 of the Interpretation Act, 1960

(CA 4) where it is stated that the word "shall" is mandatory

and therefore excludes any question of discretion.”

(emphasis added)

20. The Ghanaian Supreme Court explained that dissenting views are

an essential component of a vibrant democracy. The court goes so

far as to state that the denial of those dissenting views is only one

step away from one-party rule:

“A denial of opportunity for the expression of opposing views,

inherent in a democracy, would amount to moves which may

culminate in the creation of a monolithic government which is

only one step removed from a one-party government.”

21. The Kenyan Supreme Court has also had opportunity to comment

on Article 34(4) of the Kenyan Constitution which is worded

identically to section 61(4) of the Zimbabwean Constitution. In

COMMUNICATIONS COMMISSION OF KENYA & 5 OTHERS v ROYAL MEDIA SERVICES LIMITED & 5 OTHERS [2014] eKLR,

the Kenyan Supreme Court made obiter remarks about Article

34(4) of the Kenyan Constitution paragraph [370] noting in

particular its importance for a democratic society:

“Sub-Article 4 of Article 34 decrees that all state-owned

media shall be free to determine independently the editorial

content of their broadcasts or other communications; be

impartial; and afford fair opportunity for the presentation of

the divergent views and dissenting opinions. This sub-article

refers to both KBC and SIGNET. Since the State is invariably

controlled by vested interests this provision makes sense in

a democratic society. Read within the word and spirit of Article 4(2), the whole gamut of human rights, and citizens’ participation in affairs of their country, divergent views and dissenting opinions nurture democracy.” (emphasis added)

22. Clearly, something which is so central to a democratic society and

is fundamental to the right to freedom of expression is not a right

held exclusively by political parties as averred by the First

Respondent. It is also a right held by Applicants and by the public

at large.

The right to free and fair elections and administrative justice:

compliance with media laws during elections

23. The electoral law also has specific provisions which give effect

to the right to freedom of expression and the media in the

context of elections. Among these are sections 160G, 160J and

160K of the Electoral Act. The Applicants have a right to have

the Respondents comply with these provisions. This right

accrues from section 61 itself (since the provisions give effect to

it); section 67(1)(a) of the Constitution of Zimbabwe which

enshrines a right to free and fair elections conducted in

accordance with the Constitution and the law; and section 68 of

the Constitution which enshrines a right to administrative

conduct that is lawful, prompt, efficient, reasonable,

proportionate, impartial and both substantively and procedurally

fair as well as section 3 of the Administrative Justice Act.

24. Section 160G provides as follows:

“(1) Public broadcasters shall afford all political parties and

independent candidates contesting an election such free

access to their broadcasting services as may be

prescribed.

(2) Regulations made for the purposes of subsection (1)

shall provide for—

(a) the total time to be allocated to each political party and

candidate and the duration of each broadcast that may be

made by or on behalf of a party or candidate; and

(b) the times at which broadcasts made by political parties

and candidates are to be transmitted; and

(c) the areas to which broadcasts made by political parties

and candidates are to be transmitted;

and the regulations shall ensure—

(d) a fair and balanced allocation of time between each

political party and independent candidate; and

(e) that each political party and independent candidate is

allowed a reasonable opportunity to present a case through

the broadcasting service concerned.”

25. The peremptory word “shall” used in section 160G(1) and (2)

makes it clear that:

a. Public broadcasters such as the First and Second

Respondents must provide free and equal access to political

parties and candidates;

b. The Regulations must provide for certain things and failure to

enact Regulations that provide for those things amounts to

non-compliance with section 160G(2) of the Electoral Act.

26. Section 160J(1) of the Electoral Act provides as follows:

“(1) Subject to subsection (2), during an election period

broadcasters and print publishers shall ensure that—

(a) all political parties and candidates are treated

equitably in their news media, in regard to the extent,

timing and prominence of the coverage accorded to

them;

(b) reports on the election in their news media are

factually accurate, complete and fair;

(c) a clear distinction is made in their news media

between factual reporting on the election and editorial

comment on it;

(d) inaccuracies in reports on the election in their news

media are rectified without delay and with due

prominence;

(e) political parties and candidates are afforded a

reasonable right of reply to any allegations made in

their news media that are claimed by the political

parties or candidates concerned to be false;

(f) their news media do not promote political parties or

candidates that encourage violence or hatred against

any class of persons in Zimbabwe;

(g) their news media avoid language that—

(i) encourages racial, ethnic or religious prejudice or

hatred; or

(ii) encourages or incites violence; or

(iii) is likely to lead to undue public contempt towards

any political party, candidate or class of person in

Zimbabwe.”

27. Section 160K(1) of the Electoral Act provides as follows:

“(1)The Commission, with the assistance, at its request, of

the Zimbabwe Media Commission established by section

248 of the Constitution, and the Broadcasting Authority of

Zimbabwe established by section 3 of the Broadcasting

Services Act [Chapter 12:06] (No. 3 of 2001), shall monitor

the Zimbabwean news media during any election period to ensure that political parties, candidates, broadcasters, print publishers and journalists observe the provisions of this Part.” (emphasis added)

28. The duty outlined in section 160K above is further strengthened

with regard to the Fourth Respondent, upon whom a special

mandate is placed by the Constitution and the Access to Information

and Protection of Privacy Act to fairness and compliance with

applicable law by the media in Zimbabwe.

29. Section 249 of the Constitution makes it clear that the Fourth

Respondent is empowered to take active measures to ensure and

enforce compliance by media houses and journalists. Below the

relevant provisions of section 249(1) are quoted with the actions that

the Fourth Respondent is enjoined to take highlighted for emphasis:

“1. The Zimbabwe Media Commission has the following

functions--

a. to uphold, promote and develop freedom of the media;

b. to promote and enforce good practices and ethics in

the media;

c. to monitor broadcasting in the public interest and, in

particular, to ensure fairness and diversity of views

broadly representing Zimbabwean society;

d. to encourage the formulation of codes of conduct for

persons employed in the media and, where no such code

exists, to formulate and enforce one;

e. to receive and consider complaints from the public and,

where appropriate, to take action against journalists and

other persons employed in the media or broadcasting who are found to have breached any law or any code of

conduct applicable to them;

f. to ensure that the people of Zimbabwe have fair and wide access to information;

g. …;

h. …;

i. to promote fair competition and diversity in the media; and

j. ...;

30. The right to compliance with these rights is clearly threatened by

the First and Second Respondents obstinate refusal to comply

with above provisions which apply to them and the failure of the

Third, Fourth and Fifth Respondents to take appropriate action to

address the violations or to comply with the provisions that relate

to each of them.

Right to access to information

31. The Applicants and the general public also have a right of access

to information enshrined in section 62 of the Constitution of

Zimbabwe. Section 62(1) and (2) state as follows:

“1. Every Zimbabwean citizen or permanent resident,

including juristic persons and the Zimbabwean media, has

the right of access to any information held by the State or by

any institution or agency of government at every level, in so

far as the information is required in the interests of public

accountability.

2. Every person, including the Zimbabwean media, has the

right of access to any information held by any person,

including the State, in so far as the information is required for

the exercise or protection of a right.”

32. The Applicants require access to information from the Third,

Fourth and Fifth Respondents with regard to how they are going

to conduct monitoring of the media during the elections and what

action they will undertake to ensure compliance by errant media

houses. This information is clearly necessary for the exercise of

the other rights outlined above and it is also required in the

interests of public accountability since it is in the public’s best

interest to know how this scourge—which the Respondents have

failed to deal with in previous elections—is going to be dealt with

in during this election period.

V. A REASONABLE APPREHENSION OF HARM

33. It is submitted that the Applicants have clearly demonstrated that

they have multiple grounds upon which a reasonable apprehension

of harm is based. The Applicants have clearly demonstrated in

their Founding Affidavit that the rights outlined above are currently

being violated and there is a threat that they will continue to be

violated. Additionally, many of the averments in the Respondents’

Opposing Affidavits actually demonstrate their disregard for or total

lack of awareness of the Applicant’s rights as well as their active

attempts to mislead the court which further reinforces the

Applicants’ well-grounded fears that their rights will be violated.

34. The courts have held that the “harm” or “injury” referred to in this

requirement to must be understood in the wide sense to include

any prejudice suffered by the applicant including an infringement of

their rights. See MINISTER OF LAW AND ORDER, BOPHUTHATSWANA v COMMITTEE OF THE CHURCH SUMMIT OF BOPUTHATSWANA 1994 (3) SA 89 (B) at 98H-I.

35. An applicant does not have to establish on a balance of

probabilities that the injury will occur; he or she must simply

establish that there are grounds for a reasonable apprehension

that his or her rights or her rights will be detrimentally affected. See

ERASMUS v AFRIKANDER PROPIETARY MINES LTD 1976 (1)

SA 950 (W) at 965. The test is objective and the question is

whether a reasonable person, confronted by the facts, would

apprehend the probability of harm; actual harm need not be

established on a balance of probabilities. See SETLOGELO v SETLEGELO supra.

36. The Applicants grounds for being concerned that the violations of

their clear rights by the Respondents will continue to happen

unless the relief sought is granted include the following:

a. A long history of biased and inequitable reporting by, as well

as Government influence and control over, the First and

Second Respondents:

i. This is clearly shown in the Election Observer Reports

attached as Annexures “B”, “C” and “D” to the

Founding Affidavit which were not disputed by the

Respondents;

ii. In its Opposing Affidavit, the First Respondent does not

dispute that in the past it produced biased coverage of

political parties and that this culture was passed on

from the colonial regime until the present day. It merely

claims that things have changed without providing any

evidence that indeed they have.

b. The brazenly biased stories by both the First and Second

Respondents attached to the Founding Affidavit as

Annexures “F”, “H” and “I”.

c. The First Respondent’s feeble attempt at paragraph 12.2 of

its Opposing Affidavit to justify its failure to provide a right of

reply for a story which clearly required one, demonstrating

that it clearly does not understand the most basic concepts of

journalistic ethics;

d. The clear trend of inequitable and biased reporting by the

First and Second Respondents in violation of its

constitutional and statutory obligations both before and after

the proclamation of the election as demonstrated by the

comprehensive reports and analysis by Media Monitors in

Annexure “G” of the Founding Affidavit (before proclamation)

and Annexure “A1” of the Answering Affidavit (after

proclamation).

e. The First Respondent’s attempt to mislead the court that it is

complying with its constitutional and statutory obligations

through the grossly inadequate and misleading schedule of

opposition parties it has purportedly covered (attached as

Annexure “J” to its Opposing Affidavit) without providing the

court any comparative data with respect to its coverage of

ZANU PF during the same period. The deceptive nature of

that schedule is clearly demonstrated by the analysis of it by

Media Monitors attached to the Answering Affidavit as

Annexure “A4”.

f. The Third Respondent’s failure, since the enactment of

section 160G of the Electoral Act in September 2012, to

produce Regulations in compliance with the peremptory

requirements of section 160G;

g. The Third Respondent’s insistence that the outdated and

non-compliant 2008 Regulations are sufficient,

notwithstanding the fact that it is on record stating that they

are inadequate (Annexure “D” of the Third Respondent’s

Opposing Affidavit) and the fact that the violations by the

First and Second Respondents have continued with total

impunity;

h. The Third, Fourth and Fifth Respondent’s failure to provide

any information with regard to how it will conduct monitoring

of the media throughout the election period, both in previous

elections and in the present election;

i. The Fourth and Fifth Respondent’s bald averments that they

are already in compliance with their obligations when

Annexure “D” of the Third Respondent’s Opposing Affidavit

demonstrates that as at 4th June 2018 they were not

conducting any monitoring and the fact that they have

produced nothing to this court to demonstrate that they are;

j. The Fourth Respondent’s refusal to take responsibility for

ensuring compliance by errant media houses notwithstanding

its constitutional mandate to do so;

k. The Fifth Respondent’s grossly misguided averments at

paragraph 12 of its Opposing Affidavit that only political

parties have a right to freedom of the media in Zimbabwe

demonstrating that it has no appreciation for the rights of

ordinary citizens.

VI. THE ABSENCE OF AN ORDINARY REMEDY

37. It is submitted that the Applicants are without any other remedy

besides the granting of an interdict against the Respondents in

order to protect their rights. The urgency of the matter and the

nature of the harm threatened by the Respondents’ conduct means

that no other remedy will provide adequate protection.

38. It is clear that damages would be an inadequate remedy in the

circumstances as the violation of the Applicants’ rights is being

repeated daily, is ongoing and is likely to continue. In RIVAS v PREMIER (TRANSVAAL) DIAMOND MINING CO LTD 1929 WLD

1, the court held that damages will not be considered an adequate

alternative remedy when there is a continuing violation of an

applicant’s rights.

39. Additionally, it would be extremely difficult to quantify or place a

monetary value the violation of the Applicants’ rights to freedom of

the media, to access to information and free and fair elections.

These types of injuries are best remedied by putting a stop to them

immediately by way of an interdict. See NAMPESCA (SA) PRODUCTS (PTY) LTD v ZADERER 1999 (1) SA 886 (C) at 901.

40. Therefore, the Applicants are left with no other option than to

approach this court to seek a declaratory order and an interdict

against the Respondents.

VII. COSTS

41. It is submitted that an award of costs against all of the

Respondents apart from the Second Respondent is appropriate in

the circumstances. The conduct of the Second Respondent, in this

respect, is what one would expect from a litigant who knows that

the Applicants are entitled to the relief that they seek. The conduct

of the other Respondent’s frivolously opposing a matter involving

the protection of constitutionally enshrined rights and the discharge

of their clear constitutional and statutory duties deserves censure

by this court through an award of costs.

DATED AT HARARE THIS ………. DAY OF JULY 2018

_________________________

MTETWA & NYAMBIRAIApplicants’ Legal Practitioners

c/o Matutu & MureriFBC Building

179 Robertson StreetMASVINGO [BTM/DC]

TO: THE REGISTRAR High Court of Zimbabwe MASVINGO

ANDTO: SCANLEN & HOLDERNESS

1st Respondent’s Legal Practitioners

c/o Chihambakwe Law Chamber30 Hofmyer StreetMASVINGO [RMB/em]

ANDTO: GULA NDEBELE & PARTNERS

2nd Respondent’s Legal Practitioners34 Cleveland AveMilton ParkHARARE [SGN/sjn/GNP1556(204)]

ANDTO: NYIKA, KANENGONI & PARTNERS

3rd Respondent’s Legal Practitionersc/o Bhunu & Associates9 Hellet StreetMASVINGO [Mr T. Bhunu]

ANDTO: MUSUNGA AND ASSOCIATES

4th Respondent’s Legal Practitionersc/o Chihambakwe Law Chamber30 Hofmyer StreetMASVINGO [AAM/VM/bs]

ANDTO: TH CHITAPI & ASSOCIATES

5th Respondent’s Legal Practitionersc/o Chakabuda Foroma Law ChambersSuite 10, 1st Floor, Kyle House344 Josiah Tongogara StreetMASVINGO [SM/VM/MN]