Blessed Mhlanga v Magistrate Nduna NO & Ors

The applicant, a journalist, sought access to the complete record of proceedings in the matter State v Hopewell Chin'ono CRB 6801/20, particularly proceedings held in camera. In July-August 2020, the applicant was covering the arrest, detention and bail application of fellow journalist Hopewell Chin'ono, who was charged with incitement to participate in a gathering with intent to promote public violence. During Chin'ono's second bail application in August 2020 before the first respondent (Magistrate Nduna), the State applied to have evidence concerning conditions at Harare remand prisons and COVID-19 protocols given in camera on grounds of prison security. The first respondent granted this application over the objection of Chin'ono's defence team and ordered members of the public, press and other legal practitioners to leave the courtroom. The applicant was among those excluded. The applicant then brought this application seeking: (1) a mandatory order directing respondents to avail the complete record for public access; (2) a declaration that the conduct of holding in-camera proceedings and redacting evidence was unlawful and violated Sections 5 and 6 of the Freedom of Information Act and Sections 61 and 62 of the Constitution; and (3) a declaration that Section 3 of the Courts and Adjudicating Authorities (Publicity Restriction) Act was unconstitutional to the extent it limits the right to a fair hearing under Section 69 of the Constitution.

• Whether the applicant had standing to seek access to the court record when he was not a party to the proceedings
• Whether the respondents cited were the proper custodians of the court record
• Whether the application was a disguised appeal or review brought outside the proper procedural framework
• Whether Section 3 of the Courts and Adjudicating Authorities (Publicity Restriction) Act is inconsistent with Section 69 of the Constitution
• Whether the applicant's constitutional rights under Sections 61 and 62 of the Constitution (freedom of expression and access to information) were violated by the in-camera proceedings
• Whether the applicant complied with the procedural requirements of the Freedom of Information Act for requesting access to information
• Whether there was proper joinder of parties, particularly the absence of interested parties in a constitutional challenge

The application was dismissed with costs.

A person seeking access to court records held in camera must: (1) cite the proper custodians of those records; (2) follow the procedural requirements of the Freedom of Information Act by making a written application to an information officer; (3) if challenging a court order excluding the public, bring proper appeal or review proceedings rather than a standalone application; (4) if seeking a declaration of constitutional invalidity, join all interested parties including Parliament, the President, and the Attorney-General. Constitutional rights of access to information and freedom of the media do not circumvent established procedural requirements or create a separate pathway to challenge judicial decisions outside the appeal and review framework. An application that is in substance an appeal or review will be dismissed as incompetent even if framed as a vindication of constitutional rights.

The court observed that if the applicant genuinely wanted to know what Chin'ono said in evidence, he could simply ask Chin'ono directly, as the exclusion order did not prevent Chin'ono from disclosing his evidence outside court. The court also noted that if the applicant wanted information about conditions in prisons, he could bring an application directly against the prison authorities at any time without linking his cause to Chin'ono's bail proceedings. The court further observed that the first respondent, in issuing the exclusion order, relied not on Section 3 of the Courts and Adjudicating Authorities Act but on Section 86 of the Constitution regarding limitation of fundamental rights and various international legal instruments. The court indicated it would not enter into lengthy discourse on the nature of rights and limitations under Section 86 because the application was flawed on fundamental procedural grounds. The court also noted that costs should not ordinarily be ordered against judicial officers in their personal capacity for anything done in the lawful discharge of their constitutional duties, which the applicant's counsel properly conceded.

This case is significant for establishing procedural requirements for journalists and members of the public seeking access to court records held in camera. It clarifies that: (1) even constitutional rights of access to information and freedom of the media must be pursued through proper procedural channels, including the Freedom of Information Act requirements; (2) challenges to judicial orders excluding the public from proceedings must be brought via appeal or review, not disguised as standalone constitutional applications; (3) persons seeking to challenge legislation as unconstitutional must join all interested parties including Parliament, the President, and the Attorney-General; (4) the proper custodians of court records must be identified and cited; and (5) non-parties to proceedings face significant standing hurdles in challenging procedural orders made in those proceedings. The judgment reinforces that while the Constitution guarantees freedom of expression, media freedom and access to information, these rights must be vindicated through proper legal procedures and cannot be used to bypass established appeal and review mechanisms or procedural requirements for accessing information held by the State.