Precious Gwatidzo and Clever Rambanapasi v Minister of Health and Child Care and Others

The applicants, a commuter omnibus operator from Mutare (first applicant) and an employee from Harare (second applicant), challenged section 4(2) of SI 83/2020 which restricted passenger transport services during COVID-19 to ZUPCO and certain authorized operators. The first applicant owned two commuter omnibuses that plied routes before the pandemic restrictions, employed five people, and supported an extended family through this business. She was directed to pay US$200 per vehicle to register with ZUPCO, which she could not afford. The second applicant alleged inadequate transport services affected his employment and daily movement. Both applicants argued the restrictions were unconstitutional, ultra vires the Public Health Act and SI 77/2020, and violated their rights to freedom of profession, trade or occupation (section 64) and equality before the law (section 56). The President had declared COVID-19 a state of disaster, and the Minister of Health enacted various Statutory Instruments to contain the pandemic, including restricting transport operations.

• Whether section 4(2) of SI 83/2020 was ultra vires section 68 of the Public Health Act Chapter 15:17
• Whether section 4(2) of SI 83/2020 was ultra vires section 8 of SI 77/2020
• Whether section 4(2) of SI 83/2020 violated section 64 of the Constitution (freedom of profession, trade or occupation)
• Whether section 4(2) of SI 83/2020 violated section 56 of the Constitution (equality and non-discrimination)
• Whether the limitation of constitutional rights was justifiable under section 86 of the Constitution

The application was dismissed. No order as to costs.

Section 4(2) of SI 83/2020 is not ultra vires section 68 of the Public Health Act or section 8 of SI 77/2020, as these provisions expressly empower the Minister to regulate and restrict public traffic to prevent and contain formidable epidemic diseases. The right to freedom of profession, trade or occupation under section 64 of the Constitution is not absolute and may be regulated by law, including through statutory instruments enacted during public health emergencies. A limitation of constitutional rights is permissible under section 86(2) where: (i) the legislative objective is sufficiently important to justify limiting the right; (ii) the measures are rationally connected to that objective; (iii) the means used impair the right no more than necessary; (iv) the limitation is fair, reasonable, necessary and justifiable in a democratic society; and (v) it serves legitimate purposes such as public health and safety. Temporary restrictions on transport operations that allow for registration and compliance, imposed to contain a pandemic, satisfy these constitutional requirements and do not violate equality rights where they apply generally to all operators.

The court observed that although section 64 appears to grant every person the right to freedom of profession, trade or occupation, foreigners may not be entitled to this freedom without work permits required by immigration law, highlighting inherent practical limitations. The court noted that South Africa's Constitution restricts freedom of occupation to citizens only, reflecting recognition of such limitations. The court emphasized that constitutional rights must be exercised reasonably and with due regard for others' rights, and that not all infringements of rights are unconstitutional if justifiable in an open and democratic society. The court made sympathetic observations about the applicants' difficulties but emphasized that government must be afforded space to exercise its mandate in preventing and containing COVID-19, expressing judicial deference to executive pandemic management decisions.

This case establishes important principles regarding the state's power to limit constitutional rights during public health emergencies in Zimbabwe. It confirms that the right to freedom of profession, trade or occupation under section 64 is not absolute and contains inherent limitations allowing regulation by law. The judgment provides a comprehensive analysis of the constitutional limitation framework under section 86, harmonizing pre-2013 jurisprudence (particularly Nyambirai v NSSA) with the codified constitutional provisions. It demonstrates judicial deference to executive decisions during emergencies where measures are temporary, rationally connected to legitimate public health objectives, and provide alternative means of compliance. The case affirms that international human rights instruments (ICCPR, ICESCR) support limitations on rights for public health purposes. It is significant for establishing that emergency health regulations can constitutionally restrict economic activities where necessary to protect public health and the right to life, provided such restrictions meet the proportionality and reasonableness tests.