Editor Nevanji Madanhire and reporter Nqaba Matshazi are challenging section 96 (1) of the code arguing that it is unconstitutional and breaches on their rights of freedom of expression.
They were charged with criminal defamation charges after the publication of a story that Green Card Medical Aid Society faced financial difficulties.
The medical insurance firm is owned by Munyaradzi Kereke, an advisor to the Reserve Bank of Zimbabwe governor, who said the story was criminally defamatory.
Representing the journalists, Advocate Eric Morris successfully argued that criminal defamation laws were archaic and most democracies had decriminalised defamation.
Morris said Britain, from which Zimbabwe adopted its penal code, had struck off criminal defamation from its constitution because it was found to infringe on freedom of expression.
Prosecutor Tapiwa Kasema had argued against the case being referred to the Supreme Court, saying the application was frivolous and vexatious.
Kasema argued that the case could be tried by the lower court.
The referral puts on hold proceedings at the magistrates’ court and these may only be resumed if the Supreme Court rules that Section 96 (1), which criminalises defamation, is constitutional.
— BY OUR STAFF