Judgment No. CCZ 11/15 4
Const. Application No. CCZ 28/11
“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”.
The applicant does not deny that he caused the statement in question to be
published. He submits correctly, that there are a number of authorities in our jurisdiction and
beyond that have emphasized the purpose of safeguarding freedom of expression, the fact that
it lies at the very foundation of a democratic society and that, consequently, it is a right that is
jealously guarded by the courts. (See In re Munhumeso 1995 (1) SA 551 (ZCC), Woods and
Others v Minister of Justice & Others 1994 (2) ZLR 195 (S), Madzingo & Others v Minister
of Justice & Others 2005 (1) ZLR 171 (S)). In contending, in his defence, that the statement
in issue was one that was protected under the freedom of expression enshrined in the old
Constitution, the applicant argues that;
(a)
the statement was “undoubtedly” one of a political nature, and therefore fell
into the category of political speech which is ordinarily afforded highest
protection against interference or restriction under the constitutional freedom
of expression provisions;
(b)
since the comment was directed at the decision of the court, which had some
political significance, any reference to the judiciary bordered on the incidental
and therefore could not have been serious;
(c)
in other jurisdictions, statements concerning public officials and other
individuals who perform public services are afforded greater protection and
this was essential for the functioning of a truly democratic society;
(d)
criticism of public authority including the judiciary is a valuable element of
the freedom of expression because the ability to criticise the courts promotes
impartiality, accessibility and effectiveness, serves as a democratic check on