Chaduka NO & ANOR v Mandizvidza 2002 (1) ZLR 72 (S)

Mr LT Biti for the respondent – constitutional law, declaration of rights women rights. The respondent was a student at teacher training college run by a church. Signed a contract upon entering the college, agreeing that if she became pregnant she would be withdrawn from the course. She married under customary law and latter became pregnant. She was obliged by the college to withdraw from the college before completing her studies it was argued that she was being treated in a discriminatory manner by any any person action by virtue of any written law or in the performance of the functions of any public office or any public authority, contrary to s 23(1)(b) of the constitution

held, that the term “public authority” not being defined in s 113 of the constitution the court could place a wider meaning of the word “ public”,l as used in that phrase, that int he other phrases in that section where the word ‘public’ occurred. “Public authority” was a broader conception that state authority, and could those include local government institutions or other bodies which had public or statutory duties to perform however a college such as in this case, even if its did proved a public benefit and was supervised by the state it terms of s 46 and s 66 of the education act [chapter 25:04] was not under state control too the extent where it could b regarded as an organ of the state. the state was not responsible for nor did it have control of the education at the college.

held, further that without deciding whether the declaration of rights generally had only vertical application,it was clear the s 23 had only such application. but this did not render the declaration of right totally irrelevant to any litigation between private litigants. It has a mediate or indirect application, in that a private litigant may well say that the law or executive act that the other is relying on is unconstitutional. Reprehensible conduct between private individuals is normally dealt with by legislation or the common law. there was no such legislation affecting this situation and consequently, the respondent could not get relief under s 23

held further, however that the discriminatory clause in the contract could be struck down as being contra bonos mores, being worded far more widely than would be necessary if it related strictly to morality. It pushed the married woman who fell pregnant, but no the male student who has extra-martial sex with a non-student, even if pregnancy resulted. It could this not be defend on the grounds that ra religious organisation is entitled to insist on certain moral standards among its students.