collapses — it is obvious — if public protest becomes violent protest or public order
degenerates into the quietism imposed by successful oppression. But the problem is more
complex than the choice between two extremes — one a right to protest whenever and
where ever you will and the other, a right to continuous calm upon our streets unruffled
by the noise and obstructive pressure of the protesting procession. A balance has to be
struck, a compromise found that will accommodate the exercise of the right to protest
within a framework of public order which enables ordinary citizens, who are not
protesting, to go about their business and pleasure without obstruction or inconvenience.
The fact that those who at any one time are concerned to secure the tranquillity of the
streets are likely to be the majority must not lead us to deny the protesters their
opportunity to march: the fact that the protesters are desperately sincere and are
exercising a fundamental human right must not lead us to overlook the rights of the
majority.’”
Page 59 of 1994 (1) ZLR 49 (S)
See also Cox v Louisiana (1) 379 US 536 (1965) at 554-555.
It is, then, with regard to this “framework of circumstances” that the true meaning of ss
20 and 21 is to be arrived at.
Two general interpretational principles are to be applied. The first was lucidly expressed
by Georges CJ in Zimbabwe Township Developers (Pvt) Ltd v Lou’s Shoes (Pvt) Ltd
1983 (2) ZLR 376 (S) at 382B-D; 1984 (2) SA 778 (ZS) at 783A-D, to this effect:
“Clearly a litigant who asserts that an Act of Parliament or a Regulation is
unconstitutional must show that it is. In such a case the judicial body charged with
deciding that issue must interpret the Constitution and determine its meaning and
thereafter interpret the challenged piece of legislation to arrive at a conclusion as to
whether it falls within that meaning or it does not. The challenged piece of legislation
may, however, be capable of more than one meaning. If that is the position then if one
possible interpretation falls within the meaning of the Constitution and others do not, then
the judicial body will presume that the law makers intended to act constitutionally and
uphold the piece of legislation so interpreted. This is one of the senses in which a
presumption of constitutionality can be said to arise. One does not interpret the
Constitution in a restricted manner in order to accommodate the challenged legislation.
The Constitution must be properly interpreted, adopting the approach accepted above.
Thereafter the challenged legislation is examined to discover whether it can be
interpreted to fit into the framework of the Constitution.”
See also Minister of Home Affairs v Bickle & Ors 1983 (2) ZLR 431 (S) at 441E–H,
1984 (2) SA 39 (ZS) at 448F–G; S v A Juvenile 1989 (2) ZLR 61 (S) at 89C, 1990 (4)
SA 151 (ZS) at 167G–H.
The second principle relates to the adoption of a broad approach. All provisions bearing
upon a particular subject are to be considered together and construed as a whole in order
to effect the true objective. Derogations from rights and freedoms which have been
conferred should be given a strict and narrow, rather than a wide construction. Rights and
freedoms are not to be diluted or diminished unless necessity or intractability of language
dictates otherwise. See Minister of Home Affairs & Ors v Dabengwa & Anor 1982 (1)
ZLR 236 (S) at 244B–C, 1982 (4) SA 301 (ZS) at 306H; S v Ncube & Ors 1987 (2) ZLR
246 (S) at 264F, 1988 (2) SA 702 (ZS) at 715C; African
Page 60 of 1994 (1) ZLR 49 (S)