Source: ConCourt reserves judgment in HSTV case -Newsday Zimbabwe
THE Constitutional Court (ConCourt) has reserved judgment after hearing arguments in a matter where Heart and Soul Broadcasting Services (HSTV) is challenging the Attorney-General’s Office over some provisions in the Criminal Law (Codification and Reform) Act curtailing freedom of the media and expression in Zimbabwe.
HSTV cited the Justice, Legal and Parliamentary Affairs minister, Information, Publicity and Broadcasting Services ministry and Attorney-General as respondents.
The ConCourt bench was being led by Justice Ben Hlatshwayo and included Justices Anne Gowora and Paddington Garwe.
HSTV is challenging the constitutionality of section 164 of the Code, arguing that it violates the right to freedom of expression and freedom of the media as entrenched in section 61 and the right to access information enshrined in section 62 of the Constitution.
Through lawyers Beatrice Mtetwa, Ryan Sitotombe and Doug Coltart, HSTV submitted that section 164 of the Criminal Law Code is totally misplaced and undesirable in a democratic society.
The broadcaster had initially filed an application before a Harare magistrate where the application for referral to the ConCourt was refused.
However, HSTV filed a direct access which case was heard yesterday. It argued that its core functions as set out in the company documents are to undertake media business and broadcasting.
The broadcaster argued that its core function, through its various digital platforms, was to freely and independently disseminate information, particularly, local, regional and international news to the public.
It further argued that its core function included news gathering and dissemination of information which is constitutionally protected and entrenched as a human right in the Constitution.
“The applicant is totally committed to delivering accurate and impartial news designed to inform public debate on all aspects of social, economic and political developments in Zimbabwe so that Zimbabweans can make informed decisions in their day-to-day lives.
“In the dissemination of information, applicant strives to be truthful, objective, candid, accurate, relevant and where necessary, offer relevant context and analysis,” the broadcaster argued.
The lawyers also submitted that HSTV attended a Press conference addressed by one Blessed Runesu Geza, a veteran of Zimbabwe’s war of liberation as part of its constitutionally-protected daily core function and business.
Part of the documents submitted in court were articles on November 9, 2017 where NewsDay covered a Press conference convened by then Vice-President of Zimbabwe Emmerson Mnangagwa who was at the time in hiding in the Republic of South Africa and the article is titled “Mugabe out in weeks Mnangagwa”.
The lawyers submitted that the digital publication of Geza’s Press conference was part of HSTV’s core function and business as a topical subject matter in Zimbabwean politics in exactly the same manner that the NewsDay covered an similar situation on November 9, 2017.
“In any event, it was shared by members of the public in the exercise of their right to freedom of expression, which empowers members of the public to seek and receive information.
“Surprisingly, and most unexpectedly, one of the applicant’s journalists, Blessed Mhlanga, was arrested on the February 24, 2025, and placed on remand for allegedly contravening section 164 of the Criminal Law (Codification and Reform Act) (hereinafter referred to as “The Code)”.
“… it is alleged that one of the applicant’s journalists, Mhlanga contravened section 164 of the Code by allegedly providing a live broadcast of a Press conference held by one Geza, who is a war veteran-cum-politician on the HSTV digital platform.”
It is further argued that a live broadcast is real-time transmission of media content and dissemination as it happens and consequently, one does not know in advance what the person will say and how the person will say it.
“All that the broadcaster does is to disseminate what the source of the Press conference says which would not be known in advance by the broadcaster. And it is not for the broadcaster to censor the information given,” they argued.
HSTV argued that its rights have been infringed by the magistrate who refused to refer the constitutional issue raised to the Con Court.
It is also argued that the magistrate erred in refusing the request for referral in terms of section 175(4) of the Constitution, taking away the protection afforded to the applicant.
HSTV is seeking at the ConCourt a declaration of rights, namely that its rights have been infringed in the manner explained above.
In response, Attorney-General Virginia Mabhiza opposed the application, saying it is frivolous and vexatious.
She submitted that Rule 26(9) of the Constitutional Court Rules sets out the factors that the court considers in deciding whether to grant direct access, saying the intended application does not enjoy prospects of success.
“It is further submitted that there are alternative remedies available to the applicant. The applicant is aggrieved by the determination of the magistrate and the remedy of an appeal is available,” Mabhiza submitted.
Prosecutor-General Justice Loyce Matanda Moyo also opposed the application arguing that the magistrate correctly found that the impugned section of the Criminal Code falls within the exceptions and limitations of freedom of expression and freedom of the media.
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