Moffat Mungazi
Trust Maanda
Legal Position
THE Constitution of Zimbabwe provides for fundamental human rights in Chapter Four under what is commonly known as Bill of Rights.
These are human rights that every citizen enjoys.
In order for these rights to be protected and enjoyed, the Constitution provides for means by which any person may approach the court.
Section 85 of the Constitution provides for that mechanism.
That section lists different kinds of persons, and the manner in which they derive locus standi, the right to seek audience with the court.
Any of the persons listed in Section 85 of the Constitution can approach the court.
Any person acting in their own interests may make an application to the court.
This person must be the one whose right is being sought to be protected.
He or she must be the one who has suffered or is likely to suffer the harm or injury.
He or she must act in his or her personal interest.
In this regard, an applicant must in his or her founding affidavit, aver facts which if proved will establish that fundamental right has been or is threatened to be contravened in relation to him or her.
To make it easy, an applicant must specify which fundamental right has been infringed by what conduct.
Another person who can approach the court is any person acting on behalf of another person who cannot act for themselves.
This is where the persons cannot act for themselves.
The reasons for acting on their behalf must be stated.
Another category is any person acting as a member, or in the interests, of a group or class of persons.
A person can act on behalf of a class of persons to which he belongs.
Any person acting in the public interest may approach the court.
Another person with a right to approach the court is any association acting in the interests of its members.
This is where an association goes to court on behalf of its members.
This is the converse of a member going to court on behalf of members of the association.
A person must come to court on any one basis of claiming the right to approach the court.
He or she cannot rely on more than one.
That is what cases that the courts previously decided have said.
Any of those persons, if they can show the basis on which the seek the court’s protection, can approach the court and allege that a fundamental right or freedom enshrined in Chapter Four of the Constitution has been, is being or is likely to be infringed.
The person does not have to approach the court when the or after the right has been infringed.
They can approach the court even before the right is infringed, but there is a likelihood that it will be infringed.
The right that is or is likely to be infringed has to be specifically pointed out.
One cannot go to court and just allege an infringement or likely infringement of an unknown right.
The conduct complained of must be shown to have indeed infringed or likely to infringe the right.
The court may grant appropriate relief, including a declaration of rights and an award of compensation.
The fact that a person has contravened a law does not debar them from approaching a court for relief.
This means that no person can fail to be heard on the basis that he or she has contravened a law.
This seems to suggest that the dirty hands principle does not affect ones right to approach the court.
The dirty hands principle is that where one is in defiance or breach of a law, he or she cannot be heard until they have purged themselves by obeying the law.
The case that popularised the doctrine is the case of Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for Information and Publicity & Ors 2004 (1) ZLR 538(S).
The Constitution requires court rules to provide for the procedure to be followed in cases where relief is sought in terms of Section 85.
Those rules must ensure that the right to approach the court under Section 85(1) is fully facilitated, and those formalities relating to the proceedings, including their commencement, are kept to a minimum.
This was intended for the human rights protection to be given without being hindered by strict adherence to technical rules of the court.
The court, while observing the rules of natural justice, is not unreasonably restricted by procedural technicalities.
The constitution intends the rights it provides for to be enforceable and enjoyable.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646.
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