Judgment No. CCZ 6/201412
Const. Application No. CCZ 247/09
reasonably justifiable in a democratic. society for the protection of the public interest in
public order or public safety.
The Minister had not been a party to the proceedings. Under s 24(5) of the former
Constitution, the Minister had a right to be given an opportunity to persuade the court that
although s 31 (a)(iii) of the Criminal Code infringed the fundamental right to freedom of
expression it was reasonably justifiable in a democratic society.
On the return day no affidavit was filed by the Minister. What was filed was a
lengthy document containing a critical review of the whole judgment of the court. The
purpose of the document was to show that the court had misdirected itself in finding that s
31 (a)(iii) of the Criminal Code had the effect of interfering with the exercise of the right to
freedom of expression enshrined under s 20(1) of the former Constitution. The object was to
show that the court also erred in holding the prima facie view that s 31(a)(iii) of the Criminal
Code was not reasonably justifiable in a democratic society. There was no attempt to show
the existence of factors, which were not brought to the attention of the court, consideration of
which would have persuaded it not to accept the prima facie view that the enactment was not
reasonably justifiable in a democratic society.
It was not the purpose of s 24(5) of the former Constitution to give to the
executive, review powers over decisions of the court. The object of s 24(5) of the former
Constitution was to give a Minister who was not party to the proceedings challenging the
constitutional validity of an enactment, the administration of which is his or her