73
S.C. 128\02
For the reasons which I set out when I considered the applicant’s locus
standi in respect of ss 8(1) and 8(2), I am satisfied that the applicant has the locus
standi to challenge the constitutionality of s 8(5).
In addition, the fact that in its
founding affidavit the applicant did not state that it has less than the required
minimum of ten shareholders is not fatal.
That is so because even if it has ten or
more shareholders, s 8(5) precludes it from reducing that number to less than ten for
whatever reason, even if such a move might be absolutely necessary for the
company’s survival.
In that event the applicant might be compelled to give up
private broadcasting.
In the circumstances, the only issue left for consideration is whether s
8(5) is reasonably justifiable in a democratic society.
The legislative objective in respect of this provision is set out by the
second respondent as follows:“The frequency spectrum is a finite resource, which is owned by all
Zimbabweans.
Indeed, all Zimbabweans must have the opportunity to
participate in the utilisation, control and ownership of their resource.
Restricting the amount of equity that may be owned by one shareholder is one
way of ensuring that as many Zimbabweans as possible participate in the use
of their product.”
I now wish to apply the three-part test set out in Nyambirai’s case,
supra.
Is the legislative objective sufficiently important to justify a restriction on the
freedom of expression?
Select target paragraph3
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