Fidelis Munyoro-Chief Court Reporter
A television show for live DNA paternity results can continue broadcasting after the High Court yesterday quashed a decision by the Health Professions Authority of Zimbabwe last year to shut it down on the grounds that non-qualified people were issuing results.
The High Court found that the TV show and the backing company were not a health institution in terms of the Health Professions Act and so did not fall under the regulatory authority and so could not be closed by the authority.
Tinashe Mugabe’s punch show, The Closure DNA, commanded attention in the country with accounts or videos of couples in dispute about the parentage of children. This sparked controversy and occasionally ruffled some feathers.
In some cases, the DNA results from tests would unvaryingly put to rest some paternity disputes. But the HPAZ shut down the show in September last year after declaring that Mr Mugabe and his company, Global Parentage Services, trading as Global DNA
Zimbabwe, had breached conditions it had set, including a requirement that the company should employ a professional laboratory scientist at all times.
This sparked a fierce legal dispute that spilled into the High Court with Mr Mugabe and his company challenging the suspension of his operations and closure of his offices.
He listed the HPAZ and the Medical Laboratory and Clinical Scientists Council Zimbabwe (MCAZ) as respondents in the suit.
The regulatory authority said Mr Mugabe was neither qualified nor competent to issue DNA test results, but Justice Joseph Mafusire yesterday brought Mugabe’s TV show back to life after he ruled that the organisation was not a health institution in terms of the Health Professions Act and so could not be governed by the HPAZ.
“The conclusion reached in this judgment, that the applicant is not a health institution within the meaning of that term in the Act, puts paid to any other point of contention in this matter,” said Justice Mafusire, finding that the HPAZ, in shutting down Mugabe’s TV show, exercised powers that the Act does not give them.
“It may well be that the applicant’s activities require proper regulation. But if there should exist some other law providing for such regulation, it has not been pointed out in this court. The Act is certainly not such law. The applicant is entitled to the main relief prayed for, namely that it is not a health institution within the meaning of the Act.”
Justice Mafusire said if Global DNA Zimbabwe is not a health institution, “then none of the requirements for health institutions as prescribed by the Act, including the need to register with the respondents, applies to it.”
In his application, Mr Mugabe denied that his company was a medical one requiring regulation by HPAZ, insisting that he only registered with them to stay out of trouble. Through his legal counsel, Mr Mugabe also argued that after he started his operations in the business of DNA testing he was approached by HPAZ which advised him to register with them.
As part of the conditions, Global DNA was informed to employ a laboratory scientist and was also registered under MCAZ as a collection site. He said he complied with the directives of registration until his scientist resigned from her job.
Mr Mugabe said their centre is only a collection site and samples are sent out of Zimbabwe for testing before results are returned to Zimbabwe. HPAZ and MCAZ strenuously argued that Mr Mugabe’s organisation was a health institution within the meaning of the Act hence was required to be registered with HPAZ and one which should have a covering health practitioner who themselves must be registered with the MCAZ.
HPAZ also argued that collection of human DNA samples must be done by a health practitioner as it required specialised skills, as it involves the drawing of blood, hair, teeth, fingernails and tissue from internal organs for testing.
But Mr Mugabe argued that DNA testing is now commonplace and easy, that there are even self-testing DNA kits which enable anyone to do it do it by themselves. And Justice Mafusire found Mr Mugabe’s argument more plausible and persuasive.
He agreed with it, finding simply nothing in the Act that supported the argument that the collection of human specimens for DNA testing has to be done by a medically trained person or a laboratory technician.
“It just does not sound correct that one needs a doctor or a scientist to trim one’s toenails or fingernails, pull one’s strand of hair or eyelash, peel off one’s skin, or spit one’s saliva in a container to send for DNA sampling. The applicant is merely a collection site.”
The TV host, who once featured on Australian TV accused of issuing falsified DNA test results, is now happy that the actions of the HPAZ and MCAZ have been declared null and void.