iN THE CONSTITUTIONAL COURT OF ZIMBABWE

HELD AT FIARARE

In the mafter between,

PITTYMPOFU

And

THE STATE

And

SAMUKELISIWE MTILO

And

THE STATE

CASE NO SC96l72 &,340172

,, 'a.

APPLICAIG' \-,-i--:-'

'7-''1:'^'

RESPONDENT

APPLICANT

RESPONDENT

applLcant's heads of argumentl

1.1 These mafters come before this court on referrai. The two quesfions which are sought tobe answered are sef out on record page 7 of SC 96172 and rclate fo the constitutionalvalidity of sectiotr 79 of fhe Code. The allegation that the provision in question offendsthe protectiou agait.Lst discrirnination was dealt with adequately aquo and counsel willdraw the courf's affenfion to those confenfions. These heads of argnment will becotrfined therefore to whether the provision is too wrde, arbitrary and thereforeviolative of the protecfion of the lavr guarantee. It is subrnittedthat the legislaturehascteated au offeuce which is as scary as the evil that it seeks to redress.

The attack will in this regard specifically be limifed fo aspects of section 7 set out below.The objectionable elernenfs of that provision are the following,

a. A persou who realizes that there is a risk or possibility that heishe is infected with HIVtnust be couvicted under that pro''iision. Clearly everyolle who has had sexual

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I These heads of argumenthavebeen combined for purposes of dealing wlth these two similar mafters.

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ultercourse, protecfed or otherwise, rnusf reahze that therc is a risk or possrbility ofirLfectiot"L. Everyoue who has used a needle or has subjected themselves to bloodtratrsfusiotr must reahze the existence of that possibility. No attempt is made by theprovisiotl to move from ihat general cor-Ljecture to a specific situation underpinned bykrrowledge" A conjectural andv^gue offence has been created,

The provision then deals with a real risk or possibilify of infecting anofher. This is toorvide and objectionable. Scienfific research shows that condolns are not 1OO% effectiveirr protecting agarnst the risk of infections. Thus having sexual infercourse with acoudotn is strictly speaking irrelevanf for the purposes of this provisior-r. A dangerouslywide offence has been created,

There is also a huge danger of false incriminafion. It is currently nof possible in thiscouufry to tell who it is that was infected first. Even if it is, the provision does nof obligethe cotrduct of such an inquiry as it rvould undoubtedly be unconstitufional to force acomplainanf to submit to such a process

Notwithsfanding all fhis uncertainty and meaninqlessness, the period of imprisonmenfis then put at 20 years. This is with respect draconian.

Onthisviewof thematter, relief oughttobe afforded.TheprovisioncansurelyrLotpassrnuster.

Whetr dealing with an allegation that a piece of legislation is uncor.rstifutional, twogeneral interpretatior, al principles are to be applied. The first was set out in ZimbabweTownship Developers (Pvt) Ltd v Lou's Shoes (hrt) Ltd 1,953 (2) ZLR 376 (S) at 3S2B-D;1984 (2) SA 778 (ZS) at 783A-D, 1o this effect,

"Clearly a litigant who assefis that an Act of Parliament or a Regulation isuttcortstitutiottal must sltow tltat it is. In such a case the judicial body cltarged witltdecidittg that issue must interpret the Constitution and detennine its meaning andthereafter interpret the challenged piece of legislation to arrive at a cottclusion as towltetlter it falls witltin that meanittg or it does not. The cltalletged piece of legislationmay, however, be capable of more than one nteaning. If tltat is the positiotr then if one

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possible interpretafion falls witltitt the meaning of the Constitutiott and others do ttot,then the judicial body will presume tltat flte law ntakers intended to act cottsfitutionallyand uphold tlte piece of legislafiott so interpreted. This is one of flte serTses in whiclt apresuntptiott of cottstitutionality can be said to arise. One does not intetpret tlteCottstitutiott in a restricted ntanner in order fo accotnntodate flte cltallenged legislation.The Constitution must be properly inferpreted, adopting tlte approaclt accepted above,Thereafter the challetryed legislation is examined to discover wltetlter if can beintetpreted to fit ittto tlte framewot"k of the Cottsfitutiotz.'See also Minister of HomeAffairs v Bickle & Ors 1983 (2)ZLR431. (S) at lE-H, 1984 (2) SA 39 (ZS) at 448E-G;S v AJuvenile 198e (2) ZLF' 61 (S) at 89C,19e0 (4) SA 151 (zS) at 167c-H.

The secotrd principle relates to the adoption of abroad approach. A11 provisior,s bearit.tgupon a pafitcular subject are to be considered together and construed as a whole urorder fo effect the true objective. Derogations from rights and freedoms which havebeerr corrferred should be given a strict and narrow, rather than a wide construcfion.Rights and freedoms are not to be dtluted or diminished unless necessity ori-rttractabllity of language drctates ofherwise. See Minister of Home Affairs & Ors vDabengwa & Anor 1982 (I) ZLR 236 (S) at 244W,, 7982 (4) SA 301 (ZS) at 306H; S vNcube & ors 19 87 (2) ZLR 246 (Sl at 26aF, 1e88 (2) S A 7 0 2 (ZS) at 7 75C.

The test is no more crystallized than in Munhumeso where the court notes,

" The test in determiting whether an efiactment infringes a fundantetrtal freedotn is toexamine its effect and not its object or subject natter. If tlte effect of tlte impugted lawis to abridge a fundanetttal freedotn, lts object or subject matter will be irrelevant".

Thus after going through the two part process, the matter comes down to whether thelegislation involved has the effect of abridging fundamental righfs. That effect is notonly fourrd in the tnterprctation of the law but in how the state has used the same. Inother words, we car1l1ot try and divine as to the possible effect of the legislation, we seesame in practice, in how the stafe uses the law in questiou.

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Lt IU TS Masiyiwa Holdings (Pvt) Ltd and Anor v Minister of Information, Posfs andTelecommunications 1997 (2) BCLR 275 (ZS) the court held that certair-LTelecommuuication Regulations were unconstitutional in tl'ieir effect, althoughosterrsibly designed to facilitate complialice with the law. The court, @ zB3 said,

"If'the contrcl mecltanisnt under the regulatiotts, while not interferitg with the (PTC'S)entitletttent fo cotntttettce to operate a cellular telecotnmutticatiotts seruice, is designedto prolong the enfty of anotlter into tlte field, or if it ltas that effect, it would be violativeof the Constitutiott"

There must be a rational connection between the object of the iimitafion and the actuallimitation itself. In Chavhunduka, the i;ourt held,

"Howev-ei', if is trot sufficient ifuaf ihe iinitafiott ou ireedoru of expressiott efiects nereiyincidentally one of tlte specified legitintate aims. It tnust be primarily directed at thataim

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att overridittg objective, to use the language of R v Oakes (1986) 19 CRR 308(can SC)

The link tirust clearly and absolutely be shown. This is in keeping with the generalir-rterpretative principles in constifutional jurisprudence. It is therefore not sufficient tosay the dercgatron is in the inferests cf public health, it must be in the interests of publichealth in fhe sense that it must secure the health of the public.

If there is a possibility of the limitation going outside ifs object, it musf be held to bevoid. The Supreme Court of India prorlourlced itself rn Thappar v Stafe af Madrast19501 SCR 594 (SC)at 603 as follows,

"So long as the possibility (of a limitation) being applied for purposes not sanctiotted bythe Constitution cannot be ruled out, it must be lteld to be wholly urtcottstitutiottal andvoid.'

It is subrnitted that the derogations brought about by the impugned provision have theeffect, as set out above, of underminirig apphcants' right to the protection of the law.Not only must derogations be strictly construed- Minister of Home Affairs & Ors v

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Dabengwa & Anor 1982 (1) zLR zs\ (s) at 2448-t, rssz (4) sA 801 (zs) ar s06H; s vNcube & ors 1987 (2) zLR246 (s) at 26aF, 19s8 (2) sA 7oz (zs) at Trdc; NationalCongress (Border Branch) v Chauman, Council of Stafe of Ciskei 1992 (4) SA 434(CkG) at 447G-I, the resfrictious must in additron be reasonably justifiable it adetnocratrc society- Nyambiraiv NSSA & Anor 1995 (2) zLR 1, (s) at 13c-F. if therestriction does not fall within these corrtours, then it may not pass muster.

In S v Hartmann & Another 1,983 (2) ZLR 186 (SC) it was said,

"It is pennissible therefore to make an inroad info tlte protected righf of fieedon ofspeech ...., but tltat inroad should not be wider or deeper than is requiredfor the acltievemettt of the declared oiyectiv'.

Tl-Lis is exactiy w-hai is acitieved by tiris provisiorr. ii goes beyonci iire proieciionaccorded subjects by law and crirninalises what otherwise would be law abtdntgcitizens. It creates the possibility of convictior.r to people who have innocently indulgeditr sexual intercourse. The state has rro business rcgulatrngwhathapperrs in bedrooms,

At the eud of the day, subjects of the state do not know what is expected of them. Shouldthey have sex or not?. Should they use condoms when the possibility exists that theymay not be effective?. What sort of lectures should they take their pafiners fhroughbefore indulgrng?. Is it reasonable to expect people to go through lectures beforc asexual encounter?. All those questions legitimafely arise but ate rn l1o way arrswered. Apiece of legislation whose consideration yields the confusion set out above is invalid. In

respect of same, the court in Chavhunduka,satd,

"It is the guidance of cottduct, and not tlte absolute directiott of cottduct, whiclt is tlteappropriate objective of legislatioti. A provisiott will be too vagae if it fails to provide afoundation for legal debate and discussion. An inadequate demarcation of an area ofrisk affords neitlter notice to a person of cottduct whiclt is potentially criminal, nor anappropriate Limitation upott tlte discretion of the authorifies seeking to enforce tlteprovisiotl If offers no basis for the cout"t to define linits of conduct"

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o/1L,a In The Sunday Times v The Unifed Kingdom (1979-s0) 2 EHRR Z4S, the EuropealrCourt of Human Rights held at 2TI (paru 49),

"'.".. a nofln carutot be regatded as a'law'unless it is fortnulated witlt sufficientprecisiott to enable tlte citizen to regulate his cottduct, he ntust be able

- if need be witlt

appropriate advice -

to foresee, to a degree fhat is t"easonable in the circuntstattces, tlteconsequel\ces whiclt a given actiott may entail. Those collsequences ueed nof beforeseeable with absolute certainty, experience shows this to be uttattaittable. Again,whilst certainty is highly desirable, it may bring in its train excessive ngtdity and flteIaw must be able to keep pace with changing cjrcutnstances.,,

Itr Connolly v General Construction Cc 269 US 385 (1925) at 3gI the court took fheview that,

". ' ' a statLlte which eitlter forbids or requires the doing of an act in tenns so vague that

men of colnnlon intelligence nust necessarily guess at its meaning and djffer as to itsapplication, violates the first essential of due process of law,

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The subjecf is not clear as to what fhis law relates. The raw hasguide colrduct and men of average irrfelligence must differ as toproscribed by this law.

nrade no attempt to

fhe kind of conduct

2.7 Itr the words of McNallyJ.A (as he then was) in Chavhunduka, .The sectiott is too widelyexpressed, too anclear as to its limitations, and too intimidatittg". As their Lordships alsofound, " The sweep of the sectiott is too vague and too broad to be acceptable,, permalofity judgment irr S v Tsvangirai ZO}i, (Z)ZLR426 (S).

Similar remarks are made rnPapachrlirtou u Cify of Jacksonville 4OS US 156 (I9TZ) at1.62where it is said,

'This Ordittance is void for vagaeness, both in the sense that it 'fails to give a person ofotdinary intelligence fair notice that his contemplated cottduct is forbiddett by tlteStatute' ... and because it encourages arbitraty and erratic aruests and cottvictions .., .Liuing under a rule of Iaw entails varioas suppositiotls, one of which is that '(all

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persolts) are entitled to be infonned of what the State comntands or forbids'. Langetta vNewJersey 306 US 451 at 453.',

It tnatters not that the Aftorr-rey Ger-Leral has a discretion to consider circurnstances ofally case before proceediug with a prosecution. The according of such a discretion vestsin the executive unacceptable powers. This is more so the case when one has rcgard. tothe fact that subjects of the state do not know before hand what it is that is proscribed.They therefore clo tiot kuow before hand how the Attorney General is likely to exercisehis discretion. Adopting this approach, fhe court in Chavhunduka corrcluded,

" I regard the provisiotl as one uncertain in the generality of the discretiott confercedupon the Attorney-Gettetul as to wltefher to prosecute or not (see s 63(I) of the Act anclthe statemettt of tlte Ontario High Court in Re Ontario FiIm and Video AppreciationSociety v Ontario Board of Censors (1983) 3I OR (2d) 583 at 592); and in its use ofIanguage, insufficienfly precise to demonstrate the area of risk and prouide guidance ofcottduct to persons of average intelligence. On both scores, taken cumulatively, it fails forueet the requiremettt of being ,,ufider the authority of any Law,,.

Nothing commeuds a differenl conclusion in fhis matter. The legislation is accordrngTynot under the authority of the grundnorm and can thus nof be saved.

Further, the legislation penalises a conjectural likelihood. A conjectural likelihood thatthe persou indulging if H.LV posifive is crir.ninalrzedby fhe use of the words, ,,risk orpossibilify". This is unlawful. An Act cannot create an offence based on surmise andconjecture. Once the complainant produces a medical report showing that they arcnow posifive, the courf without enquiring as to when they contracfed the virus musfcotrvict. And for committing a "cfilne", which does nof take place, an accused persotlfaces the prospect of 20 years in jatl.

Beyond doubt, fhis provision invades the righfs contained in the constifutiort. It canscarcely be brought within fhe restrictions that are constifutionally permissible. As heldin Chavhunduka,

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J.J

" It is cleat tltat lintitatiotts on freedotn of expressiott which do not serve one of theIegititnate six ains or exceptiotts listed in s 20(2) of the Constitutiott are not valid. SeeThe Sunday Times case supra at 26g (para 4S)."

It is clear tl-Lat the legislation is not reasonably justifiable in a democratic state, (atleastin the lnal1l1er it is crafted), for want of compliance with the principles set out inNyambirai v NSSA & Anor 1995 (2) ZLR 7 (S) at i 3C-F,. The evil it is designed to redressand ifs effect, (as cleariy seen in these cases) are disproportionafe.

" It places persolls in doubt as fo wltat can lawfully be done and what cannot. As a result,it exerfs an uilacceptable ,chilling effect,,..."..

See Chavhunduka.

Atr accused person rs at large to challenge their prosecution on the basis that it iscotrstitutiotrally invalid In Chavhunduka and ANOR V Minister of Home Affairs andAnor 2000 (1) ZLR 555, the court approved of the followingpassage,

"Itt the clear words of Dickson cJ in R v Big M Drug Mart (Igss) Is cRR 6a pan sc)at 79-80; 'Sectiott 52 sets out the fundarnental principle of cottstitutional law that theCottstitutiott is supreme. TIte undoubted corollary to be drawtt frotn this pfinciple isthat no otle cail be convicted of an offettce under an unconstitutional law. . . . .. . . . ..Attyaccused, whether corporate or individual, may defettd a critninal charge by atguittgthat the law under which the charge is brcught is cottstitutiottally invalid."

In the circumstauces, if is submittedthat the provision is obviously too wide, dangerousand unlawful and strikes at the perch of the protection of the law guarantee. The courfis left at large to afford the relief sought being to strike it down to the extent to which itis irrconsisferrt with the constitution.

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DATED AT FIAMREMITS i I PAY OFOCTOBER 2013

thabarti mpofuchantbers, hatarc

lnrtrueted by

ZIN4BABWE IAW\TRS FOR HUMAN RIGHTS

Applicant's Lega| Pr acti tioners

HARARE (W Zhuwarura)TO THE REGISTRAR

Constitutional Court of Zinrbabwe

FIARARE

AND TO ATTORNEY GENERAIRespondenf's Legal Practitioners

HARARE