45 S.C. 128\02 statute with the Constitution and avoid the consequence of unconstitutionality.’ Because the person alleging unconstitutionality must establish it, a burden may rest on that person to establish factually that an act does not fall within the ambit of constitutionality. Many neo-Nigerian constitutions permit derogation from the declared rights defined provided that these derogations are, to use the phrase in the Zimbabwean Constitution, ‘reasonably justifiable in a democratic society’. Even where the Constitution does not make it clear where the onus lies as the Zimbabwe Constitution does, the onus lies on the challenger to prove that the legislation is not reasonably justifiable in a democratic society and not on the State to show that it is. In that sense there is a presumption of constitutionality. As LORD FRASER OF TULLYBELTON stated in Attorney-General & Anor v Antigua Times Ltd [1975] 3 All ER 81 at 90: ‘In some cases it may be possible for a court to decide from a mere perusal of an Act whether it was or was not reasonably required. In other cases the Act will not provide the answer to that question. In such cases has evidence to be brought before the court of the reasons for the Act and to show that it was reasonably required? Their Lordships think that the proper approach to the question is to presume, until the contrary appears or is shown, that all Acts passed by the Parliament of Antigua were reasonably required.’ In that sense the presumption represents no more than the Court adopting the view that a legislature, elected by universal adult suffrage and liable to be defeated in an election, must be presumed to be a good judge of what is reasonably required or reasonably justifiable in a democratic society. But situations can arise even in such societies in which majorities oppress minorities, and so the Declaration of Rights prescribes limits within which rights may be restricted. It is only in cases where it is clear that the restriction is oppressive that the Court will interfere.” (underlining is mine) In Nyambirayi’s case, supra, this Court reiterated and expanded on this approach. In this regard GUBBAY CJ, (as he then was) at p 12G-13E, had this to say:- “In Woods & Ors v Minister of Justice & Ors 1994 (2) ZLR 195 (S); 1995 (1) SA 703 (ZS); 1995 (1) BCLR 56 (ZS) this court emphasised that an abridgment of a guaranteed right should not be arbitrary or excessive. It was said at 199B-C, 706E-F and 59C-D respectively: