Associated Newspapers of Zimbabwe (Private) Limited v The Minister of State for Information and Publicity in the President's Office and Others

The applicant, Associated Newspapers of Zimbabwe (Private) Limited, which owns and publishes the Daily News, challenged the constitutionality of various provisions of the Access to Information and Protection of Privacy Act, Chapter [10:27] (AIPPA), specifically sections 39, 40, 41, 65, 66, 70, 71, 79, 80, 83 and 89, and S.I. 169C of 2002. The applicant contended that these provisions interfered with and unduly restricted the freedom of expression guaranteed under section 20 of the Constitution of Zimbabwe. Section 66 of AIPPA required mass media owners to register and receive a certificate of registration before carrying on activities of a mass media service. The applicant deliberately chose not to apply for registration because it considered the registration provisions unconstitutional and claimed it could not comply "in good conscience." The applicant continued to operate the Daily News in open defiance of the registration requirement. The applicant was the only publishing company that refused to register under AIPPA.

• Whether the applicant was entitled to approach the court for constitutional relief while in open defiance of the law it was challenging
• Whether the 'dirty hands' doctrine applied to bar the applicant from obtaining relief
• Whether an applicant challenging the constitutionality of legislation is required to comply with that legislation pending determination of its validity
• Whether disclosure of non-compliance and acting according to 'conscience' constitute sufficient grounds to exempt an applicant from the dirty hands principle
• Whether the impugned provisions of AIPPA were unconstitutional (not decided on the merits)

The preliminary objection (point in limine) raised by the first and second respondents succeeded. The Court refused to hear the applicant on the merits of its constitutional challenge. The Court held that it would only hear the applicant on the merits once the applicant had submitted itself to the law and ceased operating illegally. No order as to costs was made.

Citizens who dispute the validity of legislation must obey that legislation and comply with its requirements unless and until a court of competent jurisdiction declares it invalid. The principle is: "obey first and argue afterwards." A litigant who approaches a court while in open defiance of existing legislation, even legislation whose constitutionality is being challenged, comes to court with 'dirty hands' and will be denied relief until they have submitted themselves to the law. The 'dirty hands' principle applies not only to conduct involving dishonesty or moral obliquity, but also to open defiance of the law. Allowing citizens to be bound only by laws they personally consider constitutional would be a recipe for chaos and a total breakdown of the rule of law. Mere disclosure of non-compliance and claims of acting according to conscience do not constitute good cause to exempt a litigant from the dirty hands principle or purge contempt of the law.

The Court observed that section 66 of AIPPA was not patently or blatantly unconstitutional; at worst its constitutionality was debatable. The Court noted that licensing of media, particularly electronic media, has been adjudged constitutional in some jurisdictions (citing Athukorale & Ors v Attorney-General of Sri Lanka (1997) 2 BHRC 610). The Court observed that if the impugned provisions were patently unconstitutional, the court might be persuaded to take a different approach. The Court noted that the applicant was the only publishing company that refused to register, suggesting that if the Act were as morally repugnant as claimed, there would have been more conscientious objectors. The Court commented that it was entirely open to the applicant to challenge the constitutionality of AIPPA before the registration deadline, thus avoiding the need to comply with the law pending determination. The Court clarified that compliance with the law does not necessarily mean submitting an application for registration, but certainly means desisting from carrying on mass media activities illegally. The Court emphasized it was not barring the applicant from approaching the Court, but rather requiring it to submit to the law and approach with clean hands on the same papers.

This case establishes an important principle in Zimbabwean (and by extension, relevant to South African) constitutional law regarding the approach courts should take when litigants challenge legislation while simultaneously defying it. The judgment reinforces the rule of law principle that citizens must obey legislation unless and until it is declared invalid by a competent court. It confirms that the 'dirty hands' doctrine applies not only to conduct involving dishonesty or moral turpitude, but also to defiance of the law. The case demonstrates that courts will not condone 'lawlessness' even where the litigant claims to be acting on constitutional principle or conscience. It emphasizes that the proper course is to seek a declaration of unconstitutionality before the law comes into effect or becomes applicable, rather than to unilaterally decide to disobey it. The judgment also clarifies that full disclosure of unlawful conduct does not purge contempt or entitle a litigant to relief. This case has implications for media freedom cases and constitutional challenges generally, establishing procedural requirements for how such challenges should be brought.