PAZVAKAVAMBWA v PORTCULLIS (PVT) LTD 2011 (2) ZLR 112 (H)

Flynote

Constitutional law — Constitution of Zimbabwe 1980 — s 20(1) — freedom of expression and information — derogation therefrom so as to protect the reputations of others — s 20(2)(b) — public policy a legitimate consideration in considering any law formulated thereunder

Constitutional law — Constitution of Zimbabwe, 1980 — s 20(1) — freedom of expression and information — information of applicant's criminal record circulated by the respondent for the benefit of the financial sector — creditworthiness of clients of banks a matter of vital interest to bankers — information retained indefinitely by respondent on its database — whether public policy requires limit on how long such information may be retained — dissemination of such information to the financial sector not contrary to public policy — reasonable man test — service rendered by respondent to financial sector not objectionable

Costs — no order as to costs — application — dismissal of — application of considerable public importance — no order as to costs

Human rights — freedom of information — freedom of speech — right to privacy — record of information kept on individuals and supplied to subscribers needing to assess individual's creditworthiness — record of criminal conviction — whether there should be a limit on how long such information may be retained

Headnote

"The creditworthiness of clients or potential clients is a matter of vital interest and any information honestly given to people who are legitimately interested in it does not ... attract liability, no matter the consequences to the client" (dicta per Williamson J in Ebrahim v Mer Products CC & Anor 1994 (4) SA 121 (C) at 126 followed).

The respondent's business was to collect, store and disseminate public information on persons likely to use the banking services or credit facilities of financial institutions. In terms of its standard contract with its various clients, its centralized system was available to check the antecedents of its client's customers so as to avoid the possibility of civil or criminal default. In 1998, following the applicant's conviction on five counts of contravening s 3(1)(f) of the Prevention of Corruption Act [Chapter 9:16], the applicant had been sentenced to a fine of Z$30 000 or a term of imprisonment in default of payment. His subsequent appeal to the Supreme Court against the convictions and sentence had failed. The respondent had recorded the foregoing information, obtained from the media, on its database and made it available to those of its clients who had sought information as to applicant's credit worthiness. As a result, the applicant had been unable to access banking services or loans from financial institutions. It was the applicant's case that the respondent's maintenance of records ad infinitum was unreasonable and caused disproportionate prejudice to past offenders. For this reason, it should be declared unlawful as being contrary to the public policy of rehabilitating offenders and their right to reintegrate into society. It was argued, therefore, that the relevant contracts between the respondent and its clients were also contrary to public policy. The respondent placed reliance on s 20(1) of the Constitution of Zimbabwe 1980, in terms of which it enjoyed a right to freedom of expression and information.

Held, that the rights set out in s 20(1) of the Constitution were subject to s 20(2)(b), which did permit a derogation therefrom, provided that any such derogation was not shown to be reasonably justifiable in a democratic society. In this regard, the public policy of Zimbabwe was a legitimate consideration in assessing the constitutionality of any law formulated or conceived under s 20(2)(b) to restrain any act or conduct impugning on the reputations, rights and freedoms of others.

Held, further, that as the information relating to the applicant was initially published in, and extracted from, the public domain, the fact that it had been retained on the respondent's database for an indefinite period, did not detract from the reasonableness or legitimacy of the respondent's actions.

Held, further, that in final analysis, it is necessary in each case to balance the social policy rehabilitation and reintegration of offenders as against community interests and standards. In casu, the closed financial community, within which the respondent operated its services, would not find anything objectionable in the conduct of which the applicant complained, nor would the notional "reasonable man" consider such a conduct unreasonable. The service provided by the respondent and the underlying standard contract with its clients were not contrary to public policy.