On 17 April 2002, the applicant (National Constitutional Assembly), through its regional chairperson Justine Josiah Ndlovu, made a written request to the first respondent (Zimbabwe International Trade Fair Company) to exhibit at the Zimbabwe International Trade Fair beginning 23 April 2002. The applicant sought to promote its draft constitution and gender issues, particularly women's rights in the constitution, through distributing literature, video clips, and picture exhibitions. On 20 April 2002, the first respondent's public relations manager advised that the applicant was not a commercial entity and should withdraw its request. The applicant objected, noting that other non-commercial entities such as the Zimbabwe Republic Police and Zimbabwe National Army were exhibiting. The second respondent (Graham Rowe) indicated the request had been referred to Harare, but no response was forthcoming by the time the Fair started. The applicant then brought an urgent application seeking a provisional order to be allowed to exhibit at the Fair.
The application was dismissed with costs.
Constitutional rights cannot be enforced directly against private persons or entities. A court cannot compel a private organization to enter into a contract with another party, as this would violate the principle of freedom of contract. Private organizations have the discretion to determine with whom they will contract and are under no legal obligation to accept requests for contractual engagement or to provide reasons for refusal. The right to freedom of association and expression does not extend to compelling others to provide a platform or premises for the exercise of those rights.
The court observed that while the first respondent's primary object in holding the Fair was to promote trade, it may be necessary in doing so to publicize and promote the event, which may involve the participation of entertainment groups and other persons not necessarily commercial in outlook. However, the discretion as to who is invited for such purposes rests entirely with the first respondent. The fact that other non-commercial entities such as the Zimbabwe Republic Police or Zimbabwe National Army were exhibiting does not create any legal basis for requiring the first respondent to accept the applicant as an exhibitor.
This case is significant in establishing the limits of constitutional rights enforcement in Zimbabwe (and analogous to South African jurisprudence on horizontal application of rights). It confirms that constitutional rights provisions cannot be directly enforced against private entities in the absence of statutory intervention. The judgment reinforces the fundamental principle of freedom of contract, protecting private parties from being compelled by courts to enter into contractual relationships. It delineates the boundary between public and private action in constitutional litigation, establishing that private organizations retain autonomy in selecting their business partners and associates, even when exercising discretion that may affect others' ability to exercise constitutional rights. This principle is relevant to South African law where similar issues arise regarding the horizontal application of the Bill of Rights under section 8 of the Constitution.