Judgment No. CCZ 12/2015 11
Const. Application No. 79/14
The corporation alleged that the statute was unconstitutional because it
infringed the fundamental right to freedom of religion of non-Christians who did not observe
Sunday as the day of rest and worship. In getting the statute declared unconstitutional, the
corporation’s primary purpose was the protection of its own commercial interests and freedom
from criminal prosecution for alleged breach of an invalid statutory provision.
A similar issue arose in Morgentaler’s case (supra): Male doctors who were
prosecuted under anti-abortion provisions successfully challenged the constitutionality of the
legislation in terms of which they were prosecuted. The legislation directly infringed the rights
of pregnant women who were the victims of the anti-abortion provisions. The rights, the
infringement of which formed the basis of the constitutional challenge, were of pregnant
women. The rights did not and could not vest in the male doctors. If pregnant women were
free to consult the doctors for purposes of abortion, the doctors would benefit financially from
charging for services rendered in performing the abortions. The doctors had their own financial
and personal interests to protect in challenging the constitutionality of the anti-abortion
legislation on the ground that it infringed the fundamental right of pregnant women to security
of the person enshrined in s 7 of the Charter.
Mr Biti conceded that the applicants were not victims of the alleged
infringements of the fundamental rights of girl children involved in early marriages. They
failed to show that any of their own interests were adversely affected by the alleged
infringement of the rights of girl children subjected to early marriages. They could not identify
any girl child or girl children the infringement of whose rights could be said to have directly
and adversely affected their own interests. Since the applicants were not victims of the
infringements of the fundamental rights enshrined in s 81(1) of the Constitution as they are not