84.
The expresio unius rule is an important aspect of our law. It was defined
by Gubbay CJ in Cl1ivinge v Mushayakarara & Another 1998 (2) ZLR
500 (SC)
85.
Thus there can be no question that the Constitution protects children
but not only that it is clear that the Constitution in very obvious terms,
proscribes the founding of a family which can only be done through
marriage for no Constitution can promote general application to
persons above the age of eighteen (18).
86.
Indeed, in the execution of the Court's function as upper guardian of
the minor children the paramount factor is the best interest. As argued
above, whilst Respondents may argue otherwise, it is not in the best
interest of children to be married before eighteen (18) years and one
would argue even to have sexual intercourse before the age of eighteen
(18) years.
(EB) WHAT THE COURT DOES IF THERE IS AN INFRACTION
8 7.
At the end of the day, if the Court finds that there is an infraction of
the Bill of Rights caused by the two laws being challenged, the second
stage of the enquiry is under Section 86 of the Constitution of
Zimbabwe.
88.
Section 86 (2) is very clear. It states that the fundamental rights and
freedoms set out in this Chapter may be limited only in terms of a law
of general application and to the extent that the limitation is fair,
reasonable, necessary and justifiable in a democratic society based on
openness, justice, human dignity, equality and freedom.
Page 29 of 46
Applicant's Heads of Argument in the matter between:
Loveness Mudzuru & Another v Minister of Justice Legal & Parliamentary Affairs & 2 Others
Case Number CCZ 79/2014
Prepared by Tendai Biti Law
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