4
HH 359-20
HC 2534/20
gives those reasons and shows an intention by the first respondent to proceed as earlier advised.
It would be an exercise in superfluity for the applicant to ask for further reasons when these had
already been given albeit in the context of engagements with MISA.
The objection in limine based on the failure to exhaust domestic remedies is therefore
meritless and is dismissed.
The second ground of objection is incomprehensible. It makes submissions on the merits
of the application. The respondent argues that in coming up with the contested accreditation
categories it was merely exercising its mandate as given by the constitution, the Act and the
regulations cited. The question of whether the exercise of these powers was in accordance with
the law or contravened the provisions of the constitution is the precise issue to be determined in
the application. It cannot be a point in limine. This objection is misconceived and must be
dismissed as well.
On the merits, the respondent’s case is that the additional accreditation categories were
“necessitated by the revolution in the digital media sector, a phenomenon which was not
foreseeable when the current AIPPA was promulgated”. Respondent contends, therefore, that
the new system is intended to embrace and include the players in the digital market so that they
can be duly accredited.
The applicant has alleged violations of s 61 and 62 of the Constitution of Zimbabwe.
Section 61 protects the right to freedom of expression and freedom of the media; s 62 protects
the right of access to information. However, this dispute can be resolved in terms of the
subsidiary law available without a resort to the constitutional rules and principles. This approach
commends itself, as it accords with the principle of avoidance. This principle enjoins a court
which is faced with a dispute to first attempt to address it by application of ordinary principles of
law before resorting to principles of constitutional law. Where it is possible to resolve a legal
dispute other than by application of the provisions of the constitution, the principle of avoidance
demands that the ordinary rules of law be invoked to determine the dispute, the justification
being that a resort to constitutional law procedures and remedies must be reserved for serious
disputes. Thus, in the case of National Coalition for Gay and Lesbian Equality v Minister of
Home Affairs 2000 (2) SA 1(CC), para 21, it was held that: “Where it is possible to decide any
case, civil or criminal, without reaching a constitutional issue, that is the course which should be
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