The ManicaPost
Trust Maanda
Post Correspondent
THE dirty hands doctrine is a principle that a court will not come to the aid of one who is in defiance of the law.
It is a principle that one who wants the help of the courts of law must first comply with the law before the court grants him or her audience.
If one is in defiance of a court order or a law, which he or she seeks to challenge, the courts will decline jurisdiction until that party has purged his or her contempt of the law.
The principle is that one cannot seek help from the law when they are in contempt of it.
Every citizen is obliged to obey the law of the land.
He or she should obey it and argue later.
The case that popularised the doctrine is the case of Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for Information and Publicity &Ors 2004 (1) ZLR 538 S.
In that case, a law was passed which required media houses and journalists to be accredited and registered before they could practice journalism or publish newspapers.
Associated Newspapers of Zimbabwe and some journalists viewed that law as unconstitutional for the reasons they provided.
They challenged the law before the Supreme Court, sitting as a Constitutional Court.
They sought to have the law declared unconstitutional while they had refused to be accredited and registered, but were in the meantime continuing to operate.
Their argument was that to register and be accredited in terms of a law that violated their rights was to subject themselves to something that the constitution regarded as null and void, because anything not in accordance with the constitution is null and void to the extent of its inconsistency.
The Minister, one of the respondents in that matter, raised the argument that the applicants’ hands were dirty in that they were challenging a law that they were in open defiance of, therefore they could not be heard and aided by the court.
In that case, the court said: “This Court is a court of law, as such it cannot connive at or condone the applicant’s open defiance of the law, citizens are obliged to obey the law of the land and argue afterwards . . .
“For the avoidance of doubt, the applicant is not being barred from approaching the court, all that the applicant is required to do is to submit to the law and approach this court with clean hands on the same papers.”
The court declined to hear the applicants.
This was for the applicants to go and clean their hands by submitting themselves to the law before they could come to court for relief.
In terms of the dirty hands doctrine, all subsisting laws are lawful and binding until they have been lawfully repealed or declared invalid by the courts.
All questioned laws are presumed valid until declared otherwise by a competent court.
But until then, they remain lawful and binding, obliging obedience of all citizens.
Every Act of the Parliament is presumed to be valid and constitutional until the contrary is shown.
When an Act of Parliament is open to more than one meaning, the meaning that aligns that Act with the constitution will be adopted in order not to render the Act unconstitutional.
The same goes for court orders.
Once an order of court is made, it is binding on a party, no matter how unjust or invalid that party may view it to be.
Where he is not happy with a court order, a party should seek to have it set aside on appeal or review or by some other lawful means.
He cannot simply ignore it.
He will be in contempt of court if he does so.
He cannot be heard by a court in the same matter until he has cleaned his hands by complying with the court order.
Some people have argued that an unconstitutional law is no law at all.
They argue that if a law is unconstitutional, it is void from the start and does not need to be declared invalid.
That may be so but no one has the role to judge on the validity or otherwise of the law, unless it is challenged in court and declared invalid by the courts.
If everyone was a judge of what law to obey and to disobey, there would be no need for the courts, and there would be chaos.
If every litigant challenging the validity of any law was excused from obeying that law pending determination of its validity, chaos would reign supremeand the application of the rule of law would be rendered virtually impossible.
Before seeking relief, a party should have clean hands as the courts may decline to hear him.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646.
