Judgment No CCZ 2/14 9
Const. Application No CCZ 78/12
society to another depending upon its peculiar political organisation and socio-economic
underpinnings. Nevertheless, as was recognised by Gubbay CJ in the oft-cited In re
Munhumeso & Others 1994 (1) ZLR 49 (S) at 64B-C:
“What is reasonably justifiable in a democratic society is an illusive
concept – one which cannot be precisely defined by the courts. There is no legal
yardstick save that the quality of reasonableness of the provision under challenge
is to be judged according to whether it arbitrarily or excessively invades the
enjoyment of a constitutionally guaranteed right.”
In Nyambirai v National Social Security Authority & Another 1995 (2) ZLR 1 (S)
at 13C-F, Gubbay CJ elaborated the test as follows:
“In effect the court will consider three criteria in determining whether or
not the limitation is permissible in the sense of not being shown to be arbitrary or
excessive. It will ask itself whether:
(i)
the legislative objective is sufficiently important to justify limiting
a fundamental right;
(ii)
the measures designed to meet the legislative object are rationally
connected to it; and
(iii)
the means used to impair the right or freedom are no more than is
necessary to accomplish the objective.”
As regards the first two rungs of this test, I do not perceive any conceptual or
practical impediment to the criminalisation of defamation. The objective behind s 96 of
the Criminal Law Code, viz. to protect the reputations, rights and freedoms of other
persons, is sufficiently important to warrant the limitation of freedom of expression, and
the detailed provisions of s 96 are clearly rationally connected to that objective. What is
contentious, in my view, is the proportionality of the means deployed in this instance. In
other words, is it necessary to criminalise defamatory statements in order to accomplish
what is otherwise an unquestionably legitimate objective? It seems logical to answer this
question in two stages: firstly, what are the consequences of criminalising defamation