89.
In simple terms, the onus shifts to the State to show that the current
marriages laws are fair, reasonable, necessary and justifiable.
90.
How can anyone submit that let alone the government of the people
submit that it is fair, reasonable, necessary and justifiable to have the
current laws?
91.
Just to expand on Section 86 of the Constitution it is submitted that it
is for the Respondents to justify that a particular law which the Court
would have found that it infringes a right is legitimate. The burden of
justification is one that falls squarely on the Respondents.
Nyambirai v NSSA &
See
Another 1995 (2) ZLR 1 (S); State v
Makwenyane 1995 (3) SA 391 (CC) paragraph 102; National
Coalitions for Gays & Lesbians Equality v Minister of justice 1999 (1)
SA (6) (CC).
92.
It is also important to underscore the point that in the second stage of
enquiry the Courts depart from the generous broad and interpretation
stated above to a strict one.
93.
The above cases illustrate that.
94.
In addition the question of whether an infringement of a right is a
legitimate limitation of that right involves a far more factual enquiry
than the question of interpretation.
In this regard, appropriate
evidence must be led to justify the limitation of a right in accordance
with the criteria laid down.
95.
Put in simple terms, a Court will not be able to make a decision
whether the limitation is reasonable, necessary or justifiable in
openness, democratic society based on human dignity, equality and
freedom without evidence in data. See for instance Cameron J in State
Page 30 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 byTendai Biti Law
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