Inre Munhumeso 1994 (!) ZLR 49 SC
Judges:
Gubbay CJ, McNally JA, Korsah JA, Ebrahim JA & Muchechetere JA
Subject Area: Application for an order declaring legislative provision to be
unconstitutional
Date: 28 June, 2 November 1993 & 13 January 1994
Constitutional law — whether s 6 of Law and Order (Maintenance) Act [Chapter 65] is
ultra vires ss 20 and 21 of the Constitution — principles for dealing with such a matter —
effect of s 20(6) and s 21(4) of Constitution — whether restrictions imposed by provision
on fundamental rights are reasonably justifiable in democratic society in the interests of
public safety or public order
Constitutional law — s 11 of the Constitution — whether creates substantive rights or is
merely a preamble to the Declaration of Rights provisions
Human rights — nature and scope of the rights of freedom of expression and of assembly
and extent of derogations from those rights
Interpretation of statutes — construction of constitutional provisions protecting freedoms
and of derogations from those rights — how legislation challenged as unconstitutional is
to be construed
The six applicants were jointly charged in a magistrates court with contravening s 6(6) of
the Law and Order (Maintenance) Act [Chapter 65]. The basis of the charge was that they
had taken part in a public procession without obtaining the permit required under s 6(2)
of the Act. The applicants pleaded not guilty. Counsel for applicants argued that s 6 was
ultra vires ss 20 and 21 of the Constitution and that, therefore, the charge was bad in law.
The presiding magistrate referred the question to the Supreme Court in terms of s 24(2)
of the Constitution.
Page 50 of 1994 (1) ZLR 49 (S)
Held, that a litigant who challenges the constitutionality of legislation must show that it is
unconstitutional. The court hearing the matter must interpret the pertinent constitutional
provisions and the challenged legislation, determine the meaning of each and then decide
whether the legislation violates the constitutional provisions. Where the legislation is
capable of more than one meaning, and one meaning would offend against the
constitution but others would not, the court will presume that the law makers intended to
act constitutionally and uphold the challenged legislation. The test in determining
whether an enactment infringes a fundamental freedom is to examine its effect and not its
object or subject matter. If the effect of the impugned law is to abridge a fundamental
freedom, its object or subject matter will be irrelevant.
Held, further, that all provisions bearing upon a particular subject are to be construed
together and as a whole in order to effect the true objective.
Held, further, s 11 of the Constitution is a substantive provision which confers rights on
the individual and is not merely a preamble to the rights provided for in the Declaration
of Rights section. The purpose of this section is to strike a necessary accommodation
between the enjoyment of the freedoms and the potential prejudice resulting from their
exercise both to others and to the public.
Held, further, that derogations from rights and freedoms which have been conferred
should be given a strict and narrow, rather than a wide, construction. Rights and freedoms