S v WEKARE; S v MUSANGANO LODGE (PVT) LTD 2016 (2) ZLR 109 (C)

Flynote

Constitutional law: " Constitution of Zimbabwe 1980 " Declaration of Rights " protection from compulsory deprivation of property (s 16(1)) " fees required to be paid to Zimbabwe Broadcasting Corporation constituting a tax " protection of the law (s 18(1)) " not violated by wide definition of "receiver" " right to freedom of expression (s 20(1)) " system of licence fees not violated by s 38B(1) and 38E(1)(h)(i) of the Broadcasting Services Act [Chapter 12:06]

Constitutional law: " Constitution of Zimbabwe 1980 " Consolidated Revenue Fund " payment into of all revenues " whether licence fees collected by the ZBC can be retained to defray its expenses in terms of s 101 " tax not paid to protect personal interest

Media: " broadcasting " payment of licence fee to Zimbabwe Broadcasting Holdings " not a violation of rights protected under 1980 Constitution " failure by broadcaster to comply with requirements for quality of programming " domestic remedies

Statute: " Broadcasting Services Act [Chapter 12:06] " s 38B(1) and 38E(1)(h)(i) requiring payment of licence fee " not a violation of rights protected under Constitution of Zimbabwe 1980

Headnote

The two cases were considered together as both applicants had been charged with being in possession of a television receiver without holding a licence issued by ZBC. Both had been charged in the magistrates court and requested the matter be referred to the Supreme Court to challenge the constitutionality of the licence requirement in terms of s 24(2) of the Constitution of Zimbabwe 1980. They claimed that several rights guaranteed in the Declaration of Rights were violated. protection from compulsory deprivation of property (s 16(1)), the right to the protection of the law (s 18(1)) and the right to freedom of expression (s 20(1)).

The payment of the fee was claimed by the applicants to be a violation of the protection from compulsory deprivation of property in s 16(1); the right to protection of the law (s 18(1)) was violated in that the obligation to pay a licence fee gave too wide a definition of "receiver", rendering the obligation vague; the right to freedom of expression (s 20(1)) was violated as the public was denied the ability to receive information freely.

Held, that a licence fee is a tax and the fact that the fixed amount of money compulsorily payable by members of the public who possess receivers is called a "licence fee" would not alter the fact of its being a "tax", as it raises funds for a public purpose. Section 101 gives the legislature the power to tax. There is no requirement that the authority show that the money is being used for its intended purpose; if the applicants believed that the funds were not being used for the stated purpose, the appropriate remedy would be a mandamus compelling the authority administering the public funds to utilise them for their intended purpose; a law cannot be declared invalid simply because it is misused and failure by the ZBC to fulfil its mandate does not mean that the law by which the obligation is imposed is unconstitutional.

Held, further, that ZBC is a public broadcaster, not a private or a state broadcaster; in collecting licence fees it is exercising delegated powers of the legislature to levy taxes; it is not receiving an unfair advantage against competitors.

Held, further, that as a public broadcaster the ZBC can only retain editorial independence from government by collecting fees which it controls directly, apart from government consolidated revenue. Institutional and editorial independence of a public broadcaster such as the ZBC is not likely to be effectively guaranteed if government can exert pressure on its programming through control of the financial resources.

Held, further, that the question of how the legal provisions governing the structuring and dynamics of the provision of public broadcasting service relate to the principles of freedom of expression is central to the determination of the question of the constitutional validity of the legislation. As a public sphere essential for a well-functioning democracy, public broadcasting service is of the public, for the public and by the public. What is paramount is the collective right of the viewers and listeners in receiving a balanced presentation of ideas and information on diverse matters of public concern by television and radio. The public's free speech interest in broadcasting is a collective and not an individual right in that the people as a whole retain their interest in free speech by radio and television.

Held, further, that it would not matter for the purpose of the obligation to pay the licence fee for possession of a receiver in terms of s 38B(1) of the Act, that there is no signal from the ZBC reaching the area where the equipment is located or that one prefers to watch DSTV programmes. Payment of a tax has always been a social responsibility of the individual placed under the obligation to pay. No direct benefit needs to accrue to a tax-payer for discharging a social duty.

Held, further, that if the applicants had complaints about the nature of programming by the public broadcaster they could have raised these through approaching the ZBC directly using s 40 of the Act.

Held, further, that the court would not undertake a collateral inquiry as to the measure of regulatory effect on the conduct of possession of an appliance capable of receiving a broadcasting service because of alleged violation of the right to freedom of expression. To do so would be an attempt to undermine the exercise by the legislature of the constitutional power of taxation.

Held, finally, that the onus was on the applicants to show that the provisions of the Act went further than was reasonably justifiable in a democratic society, and they had failed to do so.