Rules of Construction or Interpretation re: Subsidiary and Delegated Legislation

SC00-89 : ART CORPORATION LTD vs MOYANA
Ruled By: GUBBAY JA, McNALLY JA and MANYARARA JA

This is a labour dispute between the parties. A brief history of the matter is as follows:

The appellant (the Corporation) employed the respondent (Mr Moyana) on 20 October 1980 as a Marketing Executive. The contract was a simple one, providing that his functions were to be assigned to him from time to time. His starting salary was specified and it was provided that "salary reviews are carried out in Nedlaw as and when an executive shows himself to have performed well and produced results."

(Nedlaw was the Corporation's holding company).

There was also provision for one month's notice of termination of the contract to be given by either side.

Mr Moyana became a Training Officer in the Training Department in 1981 and a Principal Training Officer on 9 January 1982.

On 27 May 1986, the Group Personnel and Training Director wrote complaining about certain alleged shortcomings in Mr Moyana's work, and Mr Moyana replied rejecting the complaints. He claimed that the problems arose out of shortage of staff, and pointed out that the Training Manager had been transferred and not replaced. He claimed that his request for a salary review had been ignored and asserted that he was entitled to an acting allowance during the absence of the Training Manager.

The Corporation's Chairman then wrote withdrawing the letter of 27 May 1986 and adding "Your reply dated 2 June 1986 therefore falls away."

Mr Moyana at once responded that he did not withdraw his claim to be paid as a Training Manager from the time the actual Training Manager had left. (He did not, at any stage, rely on an actual appointment as Training Manager).

After a certain amount of bickering, which need not be set out, the Corporation suspended Mr Moyana without pay with effect from 16 July 1986 and referred the dispute to a Labour Relations Officer in terms of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985 (S.I.371 of 1985).

Thereafter, events developed as follows:

1. On 1 October 1986, the Hearing Officer made a determination that Mr. Moyana be reinstated and paid $12,000 in "Back payment in salary."

2. The Corporation appealed to the Regional Hearing Officer, but, meanwhile, on 6 October 1986, reinstated Mr Moyana as directed.

3. On 22 December 1986, the Regional Hearing Officer upheld the Hearing Officer's decision and increased the "back payment" from $12,000 to $15,184.

4. On 25 March 1987, the High Court, in Judgment No. HH168-87, set aside both these determinations on the grounds of procedural irregularity. In doing so, it commented: "It may well be that, in practical terms, the applicant will be obliged to approach the Labour Relations Officer once again for authority to dismiss the second respondent, but, that is not the concern of this court."

5. Ignoring this advice, and after further criticism by the Corporation's senior officers of Mr Moyana's performance, the Chairman wrote to him, on 28 May 1987, formally terminating his contract of employment and giving him a month's pay in lieu of notice.

6. On 8 June 1987, Mr Moyana referred this dismissal and his claim for an acting allowance of $33,750 to a Labour Relations Officer.

7. The matter was referred to the Labour Relations Board in terms of section 109(2)(d) of the Labour Relations Act, 1985.

8. The Labour Relations Board made determination on 8 April 1988. In summary, it ordered:

(a) Payment of an acting allowance for the twenty-four months preceding the date of the order. Page 307 of 1989 (1) ZLR 304 (SC).

(b) Payment of emoluments from the date of illegal termination to date.

(c) Termination of the contract of employment forthwith (ie with effect from 8 April 1988) on the ground of incompatibility.

9. The Corporation appealed against this decision to the Labour Relations Tribunal which, in an undated judgment apparently handed down on 12 October 1988, ordered as follows:

"1. That the termination of Mr Moyana's contract of employment, as per the Corporation's letter of 28 May 1987, was of no force or effort.

2. That Mr Moyana be and is hereby reinstated as the Corporation's Principal Training Officer without loss of salary or other benefit accompanying his post.

3. That the Corporation pay Mr Moyana acting allowance for carrying out the functions of a Training Manager for a period of 24 months extending from 8 July 1987 and dating back to 7 July 1985 at the rate for the job less his salary as Principal Training Officer.

4. That there be no order as to costs."

Against this order, the Corporation appealed to the Supreme Court. It alleged a number of procedural irregularities and sought a reversal of each of the orders made by the Tribunal.

I will deal with them in turn.

(A) THE VALIDITY OF MR MOYANA'S DISMISSAL ON 28 MAY 1987

I noted earlier that the Corporation seemed to ignore the advice of the High Court that it should, again, seek authority to dismiss Mr Moyana.

The letter of 28 May 1987 is very curiously worded. It begins by saying:

"This letter is to inform you of the termination of your employment with the Art Printers Group in terms of sections 3(a), 3(b), 3(g) and 3(h) of Statutory Instrument 371 [of 1985]."

Yet, those subsections do not deal with termination of employment. They deal with summary suspension without pay.

The Corporation was well aware of this because earlier, on 16 July 1986, it had acted under this section and had summarily suspended Mr Moyana. It is difficult to understand how the Corporation thought it could dismiss Mr Moyana under this section.

Before us, counsel for the appellant did not seek either to defend or explain these contradictions. He asserted that the letter of 28 May 1987 was a dismissal on one month's notice and contended that dismissal on notice was lawful in terms of the Labour Relations Act. Insofar as section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985, S.I.371 of 1985 contradicted the assertion, it was, he claimed, ultra vires the Labour Relations Act 1985.

I will assume that the letter of 28 May 1987 can be regarded as a dismissal on notice because it reads in part:

"However, the Company intends nevertheless to pay you not only your salary in respect of May 1987 (which has already been paid) but also a month's pay in lieu of notice, that is to the 30th June 1987."

Despite this, I remain un-persuaded that the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985, S.I.371 of 1985 are ultra vires.

Basically, I agree with the reasoning of the President of the Tribunal, who relied, in turn, upon a decision of the Judge President of the High Court in Jarvis v Commercial Careers College (1980) (Pvt) Ltd HH312-88.

I will therefore set out my reasons only briefly.

Counsel for the appellant's central submission was that section 12(1)(a) of the Labour Relations Act No.16 of 1985, enshrines the right of an employer to terminate a contract on notice. That being so, the Minister has no power, by Regulations, to qualify or, a fortiori, to eliminate that right.

I will accept, for purposes of argument, that the conclusion is correct. It is the premise, in my view, which is false.

Section 12(1)(a) of the Labour Relations Act reads as follows:

"Except where a longer period of notice has been provided for in any contract or in any relevant enactment, every contract of employment made without reference to time, not being a contract to perform some specific service, shall be deemed, in the case where -

(a) The contract is to pay wages at a monthly rate, to be a contract from month to month, terminable by either party at any time upon giving not less than one month's notice, terminating on the last day of a month…,."

This section does not enshrine the right of an employer to terminate a contract on notice. All it does is to introduce a statutory term into employment contracts which are " made without reference to time."

The section in fact says nothing about the contract with which we are concerned, because that contract did specify a month's notice. It was not "made without reference to time." I am entirely satisfied that the section is no more that a deeming section. It speaks only of the content of a contract of employment; it says nothing about the enforceability of the terms deemed to be part of the contract.

It is interesting, as confirmation of the above, that sections 13, 14 and 15 of the Labour Relations Act 1985, to which counsel for the appellant referred by way of analogy, all contain the words "shall be entitled".

No such words appear in section 12 of the Labour Relations Act 1985.

There is a further reason, if further reasons are necessary, why I am unable to accept the submission that section 12(1)(a) of the Labour Relations Act 1985 enshrines the right of an employer to terminate a contract of employment on notice.

Insofar as there is ambiguity in the provisions, although I do not believe there is any, one must look for an interpretation which is consistent with the context within which the words came into existence. In looking at the context, one has in mind the words of SCHREINER JA in Jaga v Donges NO & Anor: Bhana v Donges NO & Anor 1950 (4) SA 653 (A)…,.:

"'[T]he context' as here used is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted.

Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its backgrounds."

The long title of the Labour Relations Act No.16 of 1985 sets out its purpose to be:

"To declare and define the fundamental rights of employees; to define unfair labour practices; to regulate conditions of employment and other related matters…,."

The provisions of the Labour Relations Act No.16 of 1985 itself confirm the clear impression that one of its fundamental objects is to improve the lot of the employee. Thus -

(a) There is no definition or declaration of the fundamental rights of employers, whereas Part II sets out the fundamental rights of employees;

(b) Part III sets out unfair labour practices which may be committed by employers, by trade unions, and by worker' committees. There is no specific references to unfair labour practices by individual employees, though section 20 allows the Minister to prescribe acts or omissions which constitute unfair labour practice by employees. Apart from failure to comply with the provisions of a Collective Bargaining Agreement (section 87(3) of the Labour Relations Act) no such practice has been defined: see the Third Schedule to S.I.368 of 1985;

(c) The general conditions of employment defined are all minimum requirements and may be improved, in favour of the employee, by contract or by Regulations, industrial agreement, or determination: see generally Part IV of the Labour Relations Act;

(d) Specifically, section17 of the Labour Relations Act gives the Minister regulatory powers for the "development, improvement, protection, regulation, and control of employment and conditions of employment."

These Regulations have overriding force: see section 17(2) of the Labour Relations Act No.16 of 1985.

In the wider context, too, one construes the Labour Relations Act No.16 of 1985 according to its historical setting and in terms of the "mischief" rule.

LORD SIMON of GLAISDALE, in his speech in Cheng v Governor of Pentonville Prison [1973] 2 All ER 204 (HL)…, spoke of:

"…, ascertaining, first, the general situation in which Parliament was legislating, and, secondly, the particular situation for which Parliament was providing a remedy. These are really different aspects of the same canon of construction; though the former is sometimes called construction according to 'historical setting', the latter 'the mischief rule'. "

Thus, when the decision in S v Jovner 1982 (2) ZLR 252 (SC) showed that the Employment Act 1980, in its section 8, and the Employment (Conditions of Service) Regulation 1981, in section 4, did not serve to prevent termination on notice, the President clarified the State's intentions by means of the Emergency Powers (Termination of Employment) Regulations 1982, published in S.I.714B of 1982.

The existence of the statutory instrument was obviously known to the Legislature when the Labour Relations Act was enacted in 1985 and the overwhelming probability must be that the Legislature did not intend to go back to the status quo ante.

Indeed, one has only to look at the difference between section 17(2) of the 1985 statute and section 5(2)(a) of the 1980 statute to appreciate that the Legislature intended to confirm the reversal of S v Jovner 1982 (2) ZLR 252 (SC) achieved by section 4 and 5 of the Emergency Powers (Termination of Employment) Regulations 1982, published in S.I.714B of 1982 which were only finally repealed by S.I.77 of 1987.

I have taken this further argument more or less directly from the heads of page 311 of 1989 (1) ZLR 304 (SC) argument of Mr Gillespie in Jarvis v Commercial Careers College (1980) (Pvt) Ltd HH312-88 which was heard some days after the present appeal was argued.

I acknowledge the force of the submissions, and I adopt them, without deviating from my primary view that the words of the enactment are clear and do not require interpretation.

Once it is accepted that section 12 of the Labour Relations Act No.16 of 1985 does not give or enshrine a right to give notice, then one may turn again to section 17 of the Labour Relations Act No.16 of 1985, which begins:

" (1) Subject to the provisions of this Act, the Minister may make regulations providing for the development, improvement, protection, regulation, and control of employment and conditions of employment. "

Clearly, the Minister's power, under this sub-section, to "regulate" dismissal on notice, is not subject to the provisions of section 12.

Section 12 of the Labour Relations Act 1985, as we have seen, concerns only the content of contracts of employment, and section 17(2) of the Labour Relations Act 1985 makes it clear that Regulations override content, when it says -

"Regulations made by the Minister, in terms of subsection (1), shall, unless such regulations otherwise provide, prevail over the provisions of any other statutory instrument or of any agreement or arrangement whatsoever…,."

Finally, the Minister's power is defined in section 17(3)(r) of the Labour Relations Act 1985 which permits him to make regulations -

"…, specifying or otherwise restricting the circumstances in which contracts of employment may be terminated summarily or otherwise."

I am therefore satisfied that section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985, S.I. 371/1985 is not ultra vires the powers granted to the Minister in terms of section 17 of the Labour Relations Act No.16 of 1985 and is not in conflict with the provisions of section 12 of the Labour Relations Act No.16 of 1985.

The first point must therefore be decided against the appellant.

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").The appellants, as the applicants in the court a quo, ...

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").

The appellants, as the applicants in the court a quo, sought the following relief set out in the draft order:

"WHEREUPON after perusing the documents filed of record and hearing counsel, it is hereby declared that:-

1. The election of (the) second respondent as the Speaker of the Parliament of Zimbabwe on 25 August 2008 is null and void and set aside.

2….,.

3. That the respondents jointly and severally pay the costs of suit."

(The applicants abandoned the relief set out in paragraph 2).

The appellants' main contention in the court a quo, and in this Court, is that the election of the Speaker was null and void because it was not conducted in terms of section 39 of the Constitution of Zimbabwe (hereinafter referred to as "the Constitution"), as read with Standing Order 6 of the Standing Orders of Parliament of Zimbabwe (hereinafter referred to as "the Standing Orders").

PATEL J dismissed the application. The appellants now appeal against that judgment....,.

SANDURA JA: I have read the judgment prepared by CHIDYAUSIKU CJ, but respectfully disagree with it.

The judgment is based on the principle that a peremptory enactment must be obeyed or fulfilled exactly, and that in respect of a directory enactment substantial compliance therewith will suffice.

That principle was disapproved of and abandoned by this Court, about twenty-two years ago, in Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (SC).

At 301B-302B GUBBAY JA …, with the concurrence of McNALLY JA and MANYARARA JA, said the following:

"The categorisation of an enactment as 'peremptory' or 'directory', with the consequent strict approach that if it be the former it must be obeyed or fulfilled exactly, while if it be the latter substantial obedience or fulfilment will suffice, no longer finds favour.

As was pertinently observed by VAN DEN HEEVER J (as he then was) in Lion Match Co. Ltd v Wessels 1946 OPD 376 at 380 the criterion is not the quality of the command but the intention of the legislator, which can only be derived from the words of the enactment, its general plan, and objects.

The same sentiment was expressed by MILNE J in J.E.M. Motors Ltd v Boutle & Anor 1961 (2) SA 320 (N) at 327 in fine – 328B.

This approach received the imprimatur of the South African Appellate Division in Maharaj & Ors v Rampersad 1964 (4) SA 638 (A), where, after concluding that the provision with which he was concerned was imperative, VAN WINSEN AJA went on to enquire whether the failure in strict compliance therewith was fatal. He propounded the following test at 646C-E:

'The enquiry, I suggest, is not so much whether there has been "exact", "adequate" or "substantial" compliance with this injunction, but, rather, whether there has been compliance therewith.

This enquiry postulates an application of the injunction to the facts and a resultant comparison between what the position is and what, according to the requirements of the injunction, it ought to be. It is quite conceivable that a Court might hold that, even though the position as it is, is not identical with what it ought to be, the injunction has nevertheless been complied with.

In deciding whether there has been a compliance with the injunction the object sought to be achieved by the injunction and the question of whether this object has been achieved are of importance.'…,.

See also Shalala v Klerksdorp Town Council & Anor 1969 (1) SA 582 (T) at 587H-588B; Nkisimane & Ors v Santam Insurance Co. Ltd 1978 (2) SA 430 (A) at 433H-434E; and, more recently, Ex p Dow 1987 (3) SA 829 (D) at 831B-D.

Judges in this country also have not been slow to move away from the traditionally strict approach. See Swift Transport Services (Pvt) Ltd v Pittman NO & Ors 1975 (2) RLR 226 (GD) at 228C-229C, 1976 (1) SA 827 at 828; Macara v Minister of Information, Immigration and Tourism & Anor 1977 (1) RLR 67 (GD) at 70H; Ex p Ndlovu 1981 ZLR 216 (GD) at 217F-G.

Testing the matter then in the manner approved by these authorities, one is constrained to discover the object of section 3(1) of the Regulations to determine whether that object is fundamental to the policy of the enactment, and, if it is, to decide whether it is defeated or frustrated by the non-compliance complained of. The degree of observance and non-compliance is another relevant consideration."

In that case, GUBBAY JA was considering whether section 3(1) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, 1985 ("the Regulations") (now repealed) had been complied with.

The facts in that case are set out in the headnote, which, in relevant part, reads as follows:

"In July 1987, the appellant, the respondent's employer, suspended the respondent from her employment without pay, pending the outcome of the appellant's request to the Ministry of Labour for her dismissal on the grounds of having stolen a confidential document from the company. The relevant section of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations required that (the) application be made to a labour relations officer, but, the appellant applied to an acting regional hearing officer in the Ministry…..,."

Having found that the object of the requirement of section 3(1) of the Regulations (i.e. that upon suspension of an employee without pay and other benefits the employer was to apply forthwith to a labour relations officer for an order or determination terminating the contract of employment) was predominantly the protection of the interests of the employee, that that object was not frustrated or materially impaired by the employer proceeding in the manner it did, and that the degree of non-compliance was by no means great, the Court held that section 3(1) of the Regulations had been complied with.

In my view, the principles set out in the above authorities are the principles which should be applied in the present case in order to determine whether Standing Order No. 6 ("the Standing Order") was complied with in the election of the Speaker.

In this regard, the following questions arise for consideration –

1. What is the object sought to be achieved by the Standing Order?; and

2. Was that object achieved in the election of the Speaker?

I shall deal with the questions in turn.

What is the object sought to be achieved by the Standing Order?

The Standing Order reads as follows:

"If more than one person is proposed as Speaker, the Clerk shall conduct the election of the Speaker by a secret ballot."

In my view, the object sought to be achieved by this Standing Order is the same as the object sought to be achieved by the secret ballot system all over the world. It is to protect the voter, mainly against intimidation and victimisation, by enabling him or her to vote freely and in secret for the candidate of his or her choice, without fearing that other people would know for which candidate he or she has voted.

The secret ballot system, in this country, has its origin in the Ballot Act 1872, which introduced a secret system of voting in Parliamentary and Municipal elections in Great Britain. Before the Ballot Act was enacted, in 1872, Britain had an open system of voting in Parliamentary and Municipal elections.

In Parliamentary elections, the voter would go onto a platform at the polling station and announce his choice of candidate to an officer, who then recorded it in what was called a Poll Book. Intimidation and victimization were rife. Employees were required, by their employers, to vote for particular candidates or lose their employment. The same applied to tenants. If they did not vote as the landlord wanted them to vote, they were evicted from the premises they occupied. In the circumstances, there was a growing demand for the protection of the voter against intimidation and victimisation by enabling him to vote freely and in secret. As a result, the Ballot Act 1872, which introduced a secret system of voting, was enacted in order to meet that demand.

The Act required that Parliamentary and Municipal elections be by secret ballot. Subsequently, when this country became a colony of Great Britain the secret ballot system was introduced in the country.

In my view, the object sought to be achieved by the secret ballot system in Great Britain is the same as the object sought to be achieved by the Standing Order. That object is fundamental to the policy of the Standing Order.

Was the object sought to be achieved by the Standing Order achieved in the election of the Speaker?

In my view, there can be no doubt whatsoever that the answer to that question is in the affirmative.

All the two hundred and eight Members of Parliament ("MPs") present marked their ballot papers in the secrecy of the polling booths. Each MP was protected against intimidation and victimization, and was enabled to vote freely and in secret for the candidate of his or her choice, without fearing that other people would know for which candidate he or she had voted.

Some MPs emerged from the polling booths with their ballot papers folded, whilst others emerged from the polling booths not having folded their ballot papers. However, there was no evidence suggesting that any MP who had wanted to keep his or her ballot paper folded at all times outside the polling booth had been prevented from doing so. In addition, no MP ever complained to the Clerk of Parliament that he or she had been compelled to display his or her marked ballot paper to any other person.

However, assuming that it is correct that the six MPs who displayed their marked ballot papers did not comply with the Standing Order, the object sought to be achieved by the Standing Order was, nevertheless, not defeated or frustrated by the non-compliance complained of.

Of the two hundred and eight MPs who voted, only six (i.e. about 2.9 percent of the total) displayed their marked ballot papers before depositing them in the ballot boxes, whilst two hundred and two (i.e. about 97.1 percent of the total) voted in accordance with the provisions of the Standing Order.

Quite clearly, the degree of non-compliance was insignificant, whereas the degree of compliance was nearly one hundred percent.

In the circumstances, as the object sought to be achieved by the Standing Order was achieved and not defeated or frustrated by the non-compliance complained of, and, as the degree of the alleged non-compliance was insignificant, it follows that the Standing Order was complied with in the election of the Speaker.

Finally, I would like to comment on section 177 of the Electoral Act [Chapter 2:13] ("section 177 of the Act"). It reads as follows:

"An election shall be set aside by the Electoral Court by reason of any mistake or non-compliance with the provisions of this Act if, and, only if, it appears to the Electoral Court that –

(a) The election was not conducted in accordance with the principles laid down in this Act; and

(b) Such mistake or non-compliance did affect the result of the election."

Section 177 of the Electoral Act has its origin in the Ballot Act 1872 ("the Ballot Act"), which introduced the secret ballot system in Britain. Section 13 of the Ballot Act provided as follows:

"No election shall be declared invalid by reason of a non-compliance with the rules contained in the First Schedule to this Act if it appears to the tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of this Act, and that such non-compliance or mistake did not affect the result of the election."

Subsequently, section 13 of the Ballot Act was reproduced, in almost identical language, by the Legislature of the Colony of Southern Rhodesia, in the Electoral Act 1928. Section 60 of that Act read as follows:

"No election shall be set aside by the court by reason of any mistake or non-compliance with the provisions of this Chapter, if it appears to the court that the election was conducted in accordance with the principles laid down in this Chapter, and that such mistake or non-compliance did not affect the result of the election."

Thereafter, section 60 of the Electoral Act 1928, was reproduced, in almost identical terms, in every Electoral Act enacted in this country, as can be seen from the following provisions –

1. Section 85 of the Electoral Act 1938;
2. Section 85 of the Electoral Act [Chapter 2];
3. Section 88 of the Electoral Act 1951;
4. Section 182 of the Electoral Act 1969;
5. Section 156 of the Electoral Act 1979;
6. Section 38 of the Electoral Amendment Act 1987;
7. Section 142 of the Electoral Act 1990;
8. Section 149 of the Electoral Act [Chapter 2:01]; and
9. Section 177 of the Electoral Act [Chapter 2:13].

Thus, the principle that an election will not be set aside by the court for non-compliance with the provisions of the electoral law if the election was conducted in accordance with the principles of the electoral law, and the non-compliance did not affect the result of the election, is well-established and has been part of the electoral law of this country for at least eighty-two years.

It is based on common sense, for there would be no good reason for setting aside an election on the basis of an irregularity which did not affect the result of the election.

However, as I have already determined that the election of the Speaker was conducted in accordance with the principles of the Standing Order, and, as it was common cause that the non-compliance complained of did not affect the result of the election, the only remaining issue for me to determine is whether the principle that the court would not set aside an election on the basis of an irregularity which did not affect the result of the election, applies to the election of the Speaker.

I have no doubt in my mind that it does. In fact, there is no logical reason whatsoever why it should not apply.

In my view, the fact that the Standing Order does not state the principle is of no significance. The principle is based on common sense, and common sense dictates that if an irregularity does not affect the result of the election, it cannot form a basis for the nullification of the election.

In addition, when the Standing Order was drafted, Parliament must have been aware that the principle had been part of the electoral law of this country for a very long time, and must have felt that there was no need to include in the Standing Order an obvious principle based on common sense. In any event, one would not expect the sort of details which usually appear in a statute to be set out in a Standing Order.

Finally, I would like to comment on the following statement in the majority judgment:

"It is unacceptable that Parliament should seek to salvage a shambolic and chaotic election of a Speaker through the doctrine of substantial compliance."

In my view, the description of the election as "shambolic and chaotic" is not borne out by the finding made by the learned Judge in the court a quo, which was as follows:

"As regards the conduct of the election in casu, generally, the papers before the Court evince several conflicts of fact as to what transpired at the time. The applicants' assertions that the proceedings were brazenly unruly are squarely rebutted by the averments of the first respondent. In this situation, the approach to be adopted was explained by GUBBAY JA (as he then was) in Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S) at 339, as follows:

'It is, I think, well established that in motion proceedings a court should endeavour to resolve the dispute raised in affidavits without the hearing of evidence. It must take a robust and common sense approach and not an over fastidious one; always provided that it is convinced that there is no real possibility of any resolution doing an injustice to the other party concerned. Consequently, there is a heavy onus upon an applicant seeking relief in motion proceedings, without the calling of evidence, where there is a bona fide and not merely an illusory dispute of fact.'

Having regard to the overall scenario prevailing in the House on the day in question, it seems reasonably clear that the election proceedings under review were not conducted in an ideal manner. Nevertheless, despite the imperfections alluded to above, it cannot be said that the process was so disorderly as to be utterly chaotic. On the contrary, all the Members in the House were duly called upon to vote and were able to cast their votes in the polling booths provided.

Taking into account the usual volatility associated with the conduct of Parliamentary business generally, I am inclined to take the robust view that the election proceedings, as a whole, were sufficiently regulated to enable the election to take place to a satisfactory conclusion."…,.

In any event, as the appellants elected to proceed by way of motion proceedings in the court a quo, any disputes of fact between the parties had to be resolved in favour of the respondents: see Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

In this regard, it is pertinent to note that the allegation that the election was chaotic was denied by the respondents.

Accordingly, I would dismiss the appeal with costs.

View Appeal
SC54-18 : CITY OF HARARE vs FARAI MUSHORIWA
Ruled By: PATEL JA, UCHENA JA and ZIYAMBI AJA

There are four clear rules of interpretation that emerge from Kruse v Johnson [1898] 2 QB 91; (i) Firstly, because of the representative nature of municipal bodies and the delegated authority that they administer, by-laws enacted by such bodies ought to be benevolently construed and supported if possible; (ii) Secondly, it is to be presumed that such by-laws ...

There are four clear rules of interpretation that emerge from Kruse v Johnson [1898] 2 QB 91;

(i) Firstly, because of the representative nature of municipal bodies and the delegated authority that they administer, by-laws enacted by such bodies ought to be benevolently construed and supported if possible;

(ii) Secondly, it is to be presumed that such by-laws will be reasonably administered by the authority responsible for administering them;

(iii) Thirdly, courts of law should exercise great caution in questioning the validity of by-laws and should be slow to strike them down as being invalid on the ground of unreasonableness; and

(iv) Fourthly, where the criterion of reasonableness is to be applied to any by-law, it should only be condemned if it is objectively found to be grossly unreasonable....,.

As regards the need to exercise benevolence in the construction and application of by-laws, it was observed by COZENS-HARDY MR in the case of Williams v Weston-super-Mare UDC (No.2) (1910) 103 LT 9..., that the courts:

“Ought to assume, and assume strongly, that the local authority is exercising their duty honestly and doing their best for the benefit of the locality; they being entrusted by Parliament with powers for that express purpose.”…,.

It is also apposite to heed the remarks of MURRAY CJ in R v Jeremiah 1956 (1) SA 8 (SR)…,.:

“It might be contended, as counsel suggested, that the problem of dealing with these cases of unavoidable or justifiable 'standing or waiting' can be solved by relying on the discretion of the administrators of the bye-law to avoid the extreme and unreasonable results of a literal construction of the by-law by refraining from enforcing it by prosecution in these cases of hardship. This has, however been decided in Amoils v Johannesburg City Council, 1943 T.P.D. 386 at p.390, not to be the proper solution. The duty of the Court, according to that decision, is to endeavour, in its duty to give a benevolent interpretation to the by-laws of a local authority by upholding them as far as is possible (vide Kruse v Johnson, supra; R v Pretoria Timber Co. (Pty) Ltd & Another 1950 (3) SA 163 at p.170 (A.D.)), to ascertain if there are not two reasonably possible interpretations of the by-law.

If there are two, and one of them produces, while the other avoids, unreasonable and harsh results, then the bye-law will be upheld by giving it the second construction. Needless to say, if the by-law is incapable of any construction, other than that which produces unreasonable results, it cannot be saved and must be held to be ultra vires.”

HB151-16 : CHRISTOPER MABHUNU vs THE COMMISSIONER GENERAL OF POLICE
Ruled By: MAKONESE J

It is clear that the Police uncoded rules were essentially crafted for the purposes of enforcing police discipline in the Zimbabwe Republic Police. These rules do not replace the Police Act. They compliment the Police Act.

View Appeal
HH311-18 : SERGEANT KHAUYEZA (F048677J) vs THE TRIAL OFFICER (Superintendent J. Mandizha) and THE COMMISSIONER GENERAL OF POLICE
Ruled By: CHIWESHE JP and CHAREWA J

The applicant's proposition that subsidiary legislation overrides an Act of Parliament is, in my view, also incorrect. Rather, the law is that any subsidiary legislation which is inconsistent with an enactment is invalid to the extent of such inconsistency. Therefore, in so far as the Police Standing Orders are inconsistent with the Police Act, they are ultra ...

Appealed
SC66-20 : BREASTPLATE SERVICE (PRIVATE) LIMITED vs CAMBRIA AFRICA PLC
Ruled By: GWAUNZA DCJ, PATEL JA and MAKONI JA

It is trite that subsidiary or subordinate legislation cannot override or purport to alter, whether expressly or impliedly, anything contained in its parent or enabling statute, or indeed in any other Act of Parliament. This proposition is so axiomatic that it requires no case law or other learned authority to ...

HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA
Ruled By: KUDYA J

At the management meeting that was held on 21 May 2008, three preliminary issues were referred to trial. They were framed as follows:1. Whether the petition is out of time, and, if so, whether this is fatal to the petition.2. Whether the failure to file security for costs timeously renders ...

At the management meeting that was held on 21 May 2008, three preliminary issues were referred to trial. They were framed as follows:

1. Whether the petition is out of time, and, if so, whether this is fatal to the petition.

2. Whether the failure to file security for costs timeously renders the petition void.

3. Whether the first respondent was properly joined as a party.

THE FACTS

The brief facts in this matter are as follows:

On 29 March 2008, the harmonized Presidential, Parliamentary and Council elections were held in Zimbabwe. Hillary Simbarashe, the petitioner, stood as an independent candidate for the House of Assembly seat in the Mutoko North constituency. The elections were run and conducted by the Zimbabwe Electoral Commission, the first respondent. Mabel Chinomona, the second respondent, of the Zimbabwe African National Union (Patriotic Front) ZANU (PF) was one of the candidates who battled it out with the petitioner. On 31 March 2008, she was declared the winner.

The petitioner was unhappy with the pre-election and post-election environment as well as the manner in which the election was conducted. Accordingly, he lodged the present petition with the Registrar on 16 April 2008.

The date of service was not disclosed, but, the second respondent filed her opposing papers on 15 May 2008. She, amongst other things, raised the first two preliminary issues referred for trial.

The first respondent opposed the petition on the basis of misjoinder, hence the third issue.

When I set down the matter for hearing, I directed the parties to furnish me, at the hearing, with information from the Zimbabwe Electoral Commission indicating the date on which the result in the last constituency for election to the House of Assembly was announced by the Constituency Election Officer for that constituency.

This was not done.

I, however, proceeded to hear the matter on the understanding that I would deliver this judgment after that information had been availed. It was only provided by counsel for the first respondent in the morning of 6 June 2008.

He produced a document which has three columns. The first column indicates the province in which the House of Assembly seat is found, the second indicates the constituency, and the last the date on which the V23 Form was signed by the Constituency Elections Officer. The signature is appended on the date on which the Constituency Elections Officer declares the winning candidate. The last V23 Form was signed on 4 April 2008 for the Kariba constituency.

The parties were therefore agreed that the declaration of the result in the last constituency was made on 4 April 2008....,.

3. Whether the first respondent was properly joined as a party

Counsel for the first respondent objected to the citation of the first respondent in the petition. He relied on the definition of respondent found in Part XXIII in section 166 of the Electoral Act [Chapter 2:13]. The section reads as follows:

“166 Interpretation in Part XXIII

In this Part —

'respondent' means the President, a Member of Parliament or Councillor whose election or qualification for holding the office is complained of in an election petition.

[Definition substituted by section 78 of Act 17 of 2007].”

He invoked the maxim expressio unius est exclusio alterius in aid of his objection.

According to FRANCIS BENNION, in his book Statutory Interpretation, Butterworths, 1988…, the expression means “to express one thing is to exclude another.”

In full, FRANCIS BENNION, in his book Statutory Interpretation, Butterworths 1988 states thus:

“The maxim expressio unius est exclusio alterius (to express one thing is to exclude another) is an aspect of the principle expressum facit cessare tacitum known in short as the expressio unius principle; it is applied where a statutory proposition might have covered a number of matters but in fact mentions only some of them. Unless these are mentioned merely as examples or ex abundanti cautela, or for some other sufficient reason, the rest are taken to be excluded from the proposition.

The expressio unius principle is also applied where a formula which itself may or may not include a certain class is accompanied by words of extension naming only some members of that class. The remaining members of that class are then taken to be excluded.

Again, the principle may apply where an item is mentioned in relation to one matter but not in relation to another matter equally eligible.”

Counsel for the first respondent submitted that the legislature deliberately defined respondent in the Electoral Act so as to exclude the first respondent in circumstances where it should automatically have been included by virtue of its overarching role in running and conducting elections. It did not desire that the first respondent be made a party in electoral petitions. He advanced six reasons upon which he based his contention that the exclusion was deliberate.

Counsel for the petitioner, on the other hand, submitted that the first respondent was properly cited because it is an interested party which bears the responsibility to give effect to the order of the Court. He based his submission on the common law principle of joinder and relied on Tsvangirai v Mugabe and The Electoral Supervisory Commission HH109-05.

Counsel for the petitioner referred to Merchant Shipping Provisions Lowe v Dorling 1906 (2) KB 772…,; Blackburn v Flavelle 1881 6 APP CAS 628; Dettman v Goldfain & Another 1975 (3) SA 385; and Terblanche v SA Eagle Insurance Company Ltd 1983 (2) SA 501 (N) and cautioned the Court against the application of the principle in a manner that would result in grave injustice.

In his oral submissions, counsel for the petitioner indicated that the grave miscarriage of justice that would occur would be the failure by first respondent to obey any court order arising from the petition if it was not cited, and, secondly, that the petition would be hamstrung and compromised by a failure to call the evidence from any of the officials of the first respondent who are implicated in electoral malpractice.

I agree with counsel for the first respondent that the six reasons he advanced demonstrate the full force of the expressio unius principle at play in the present matter.

With the full knowledge of the first respondent's mandate in election matters, the legislature;

(i) Firstly, in section 166 of the Electoral Act, did not include it as a respondent, obviously in a bid to guarantee its neutrality in the conduct of elections.

(ii) Secondly, the first respondent is excluded from the protective ambit of section 168(3).

(iii) Thirdly, in section 171(3)(b)(ii), it mandated the Electoral Court to certify its determination to, amongst others, the first respondent, which, in itself, would be an anomalous method of alerting a respondent who is before it of its decision. In fact, the other persons who are notified are not respondents but public officials.

(iv) Fourthly, in section 171(a) and (b), the first respondent may be made to pay costs or a portion thereof for the culpable conduct of its officials, an obvious fate that befalls any losing or maligned respondent.

(v) Fifthly, in section 158 as read with section 171(4)(b) any person alleged to have committed an electoral malpractice may be called to vindicate his or her name before such a finding is made against him or her.

These legislative provisions were put in place to emphasize the fact that the first respondent could not be a party to proceedings that relate to petitions in terms of Part XXIII of the Electoral Act.

In any event, “means” is the operative word in section 166 of the Electoral Act.

It carries a different import from such words as “includes”. It is peremptory in nature. Again, one resorts to the formulation in Movement for Democratic Change & Anor v Mudede NO & Others 2000 (2) ZLR 152 (SC).

The parties who can be cited as respondents are indicated.

The legislature was aware that the first respondent was in charge of elections. The aim and object of defining respondent in this limited fashion appears from the very nature of an election petition. It is a challenge against the actions of the winning candidate before, during and after an election. In other words, at the center of an election petition is the winning candidate. It is designed to impugn or vindicate the winner's acts of commission and omission against the benchmarks set out in section 3 of the Electoral Act.

Section 167 of the Electoral Act outlines the causes of action in an election petition. These are;

(i) The absence of qualification;
(ii) Disqualification;
(iii) Electoral malpractice;
(iv) Irregularity; or
(v) Any other cause whatsoever.

The first two grounds arise directly from the candidate. Electoral malpractice and irregularity may arise from the actions or omissions of the candidate, his chief election agent, his election agent or of any other person.

Part XXI, in sections 155, 156 and 157 of the Electoral Act deals with how an Electoral Court may determine petitions.

It makes the winner liable for his or her own actions; for the actions of his or her chief election agent; for the actions of his or her agent; or for the actions of any person done with his or her knowledge and consent or approval or the approval and consent of his agents.

Once an electoral malpractice is found to have been committed, with the knowledge and consent or approval of the winner or of his agents, and that malpractice materially affected the election, it renders that election void and triggers the holding of a new election.

The effect is that the first respondent is obliged to hold a new election. This is by operation of law. The first respondent does not necessarily require a citation in an election petition to carry out this statutory mandate.

In addition, section 158 of the Electoral Act [Chapter 2:13] gives the Electoral Court the power to call a person who is implicated in electoral malpractice to testify in a bid to vindicate his or her name. Officials of the respondent and those seconded from the Public Service are not exempt from such a summons.

What emerges from this Part of the Electoral Act is that an election is set aside for the electoral malpractice committed by the candidate whether personally or through his agents, or by any other person with his knowledge and consent or approval.

The first respondent is not a candidate in such an election.

All it has to do is to await the order of the court declaring an election valid or void. There is no reason for it to be joined in as a party. No prejudice will arise to either candidate or to the first respondent if it is not cited. There is therefore no logical reason for citing it.

My finding is in consonance with that of MFALILA J in Pio v Smith 1986 (3) SA 145…, which I quote in full for its clarity. He stated that:

“Issue 2: Whether the petitioner must be non-suited for failing to join the presiding officer, the returning officer, and the Registrar-General as parties in these proceedings

I will not dwell at length on this issue because I agree with counsel for the petitioner that the point raised therein has no merit.

The petitioner cannot be non-suited for failing to do that which is not provided for or required by the statute. The question of the State officials or the State being condemned unheard does not arise, because, first, if one of the allegations is irregularities committed by State officials, these can always be called as witnesses; secondly, when it comes to the question of costs, the statute provides machinery for the State to be heard. There was therefore no duty on the petitioner to join any of the election officials; indeed had he done so and cited them a successful application to have them struck out could have been made, for even under section 164 of the Act, the Chief Justice has made no rules which could have provided for this.

For theses reasons, I answer the second issue in the negative and say that the petitioner cannot be non-suited for failing to join the presiding officer, the returning officer, and the Registrar-General as parties in these proceedings.”

While the nature of the application was different to the present one on the facts, MFALILA J underscored the point, that, an institution in the shoes of the first respondent could not be cited in an election petition.

I was referred to Tsvangirai v Mugabe and The Electoral Supervisory Commission HH109-05 as authority for the proposition that the first respondent was properly cited.

HLATSHWAYO J…, based his decision for approving the citation of the predecessor to the first respondent in that case on the common law rule of the presence of a direct and substantial interest and Rules 85, 86 and 87 of the High Court Rules.

The only difficulty I have with reference to the common law is that an election petition is unknown to common law, per MALABA JA in Hove v Gumbo SC143-04…,.

Further, it does not appear to me that the Rules of the High Court would supercede the definition of respondent set out in section 166 of the Electoral Act.

HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION
Ruled By: KUDYA J

At the management meeting held on 21 May 2005, four preliminary issues were referred to trial. These were;

(i) Whether or not the petition was served on time;

(ii) Whether there was proper service on the second respondent;

(iii) Whether security for costs was provided; and

(iv) Whether or not the second respondent was properly joined to the petition.

At the hearing, on noticing that the petition had been lodged with the Registrar of this Court on 15 April 2008, I raised the further issue of whether it was presented within the time limits set out in section 168(2) of the Electoral Act [Chapter 2:13], hereinafter called the Act.

The brief facts were these:

Tsitsi Veronica Muzenda, the petitioner, of the Zimbabwe African National Union (Patriotic Front) ZANU (PF) party, stood as a Senatorial candidate for the Gweru-Chirumanzu senatorial constituency during the harmonized elections held in Zimbabwe on 29 March 2008. She competed for office with Patrick Kombayi, the first respondent, of the Movement for Democratic Change-Tsvangirai party MDC-T. The election was run and conducted by the Zimbabwe Electoral Commission, the second respondent.

The petitioner became aware that the first respondent had won the seat on 5 April 2008 and filed the petition on 15 April 2008.

It was served on 6 May 2008, by the Deputy Sheriff, at Harvest House, the headquarters of the first respondent's political party. The return of service indicates that a court application was served on one Muzuva, a security officer, who accepted service on behalf of the first respondent.

Another copy was served on the second respondent at its place of business on the same day.

The petition did not show that security for costs had been furnished. The first respondent was not served with any recognizance.

Counsel for the petitioner was to advise the Court, from the bar, in argument, that the security for costs was paid in the sum set by the Registrar, and, out of an abundance of caution, recognizance entered at the same time on 23 April 2008.

The first respondent received the petition on 19 May 2008.

The petitioner provided minimal facts of the events that triggered the application. She did not provide the date on which the first respondent was declared the winner by the Constituency Election Officer in terms of section 66(1) of the Electoral Act. She referred to a recount of votes but did not provide any details on the date it was held and its outcome. Some of the facts that appear in her heads of argument were not pleaded in her founding affidavit.

The duty to present an election petition is cast on the losing candidate by section 167 of Electoral Act [Chapter 2:13].

Its format and period of presentation are set out in section 168 of the Electoral Act.

It has to be presented within 14 days after the date on which the declaration of the result in the last constituency for Senatorial elections is made.

The duty is placed by the Electoral Act on the petitioner to establish this fact. It is this fact alone which triggers this legal right for her. Failure by her to establish it would be fatal to her case for the reason that she would have failed to bring her self into the protective ambit of the Electoral Act.

The facts alleged in the affidavit deal with corrupt practices which occurred before and during the election but not after the elections.

It is only illegal practice, as defined, that occurred after the announcement by the Constituency Elections Officer in the last constituency that triggers the 30-day notice period from the date of the alleged illegal practice that is provided in the proviso to section 168(2) of the Electoral Act. The petitioner could only bring her petition within the 14 day period.

I, however, requested that the information that is required to initiate the petition be provided by the second respondent.

At the hearing counsel for the second respondent produced a document from the second respondent which showed that the declaration of the last result in a House of Assembly constituency had been made on 4 April 2008 for the Kariba constituency.

Counsel for the first respondent, correctly in my view, abandoned argument on whether or not the petition had been filed on time.

I accept his reasoning, that, if the result for the House of Assembly seat was announced in Kariba on 4 April 2008, it was unlikely that the result for the Senatorial constituency, which incorporated the Kariba constituency, would have been declared earlier given its size.

The effect of 4 April was that in terms of section 33(4) of the Interpretation Act [Chapter 1:01] the petitioner had at least until 21 April 2008 to present her petition as the 14-day period would have ended on 18 April, a public holiday, which was followed by a Saturday and Sunday: see Nyamapfeni v The Constituency Registrar for Mberengwa East & Others HH27-08 and the cases cited therein.

In casu, the petition, having been filed on 15 April 2008, was presented on time. The issue that I raised, therefore, falls away....,.

3. Whether the second respondent was properly joined as a party

Counsel for the second respondent objected to the citation of the second respondent in the petition. He relied on the definition of respondent found in Part XXIII in section 166 of the Electoral Act [Chapter 2:13]. The section reads as follows:

“166 Interpretation in Part XXIII

In this Part —

“'respondent' means the President, a Member of Parliament or Councillor whose election or qualification for holding the office is complained of in an election petition.
[Definition substituted by section 78 of Act 17 of 2007].”

He invoked the maxim expressio unius est exclusio alterius in aid of his objection.

According to FRANCIS BENNION in his book Statutory Interpretation, Butterworths, 1988…, the expression means “to express one thing is to exclude another.”

Counsel for the second respondent submitted that the legislature deliberately defined respondent in the Electoral Act so as to exclude the second respondent in circumstances where it would automatically have been included by virtue of its overarching role in running and conducting elections. He advanced six reasons upon which he based his submission that the exclusion was deliberate.

Counsel for the petitioner, on the other hand submitted that the second respondent was properly cited because it is an interested party which is charged with the responsibility of giving effect to the order of court. He based his submission on the common law principle of joinder and relied on Tsvangirai v Mugabe and The Electoral Supervisory Commission HH109-05.

He contended that the second respondent would have no obligation to give effect to the determination of Court arising from proceedings in which it did not participate.

He further argued that grave injustice would visit the petitioner if the second respondent's officials, who are implicated in electoral malpractice, are not called to testify.

He seemed to believe that they could only testify if the second respondent was cited as a respondent.

I am persuaded by the six reasons that were advanced by counsel for the second respondent. They clearly demonstrate that the legislature deliberately excluded the citation of the Zimbabwe Electoral Commission as a respondent in electoral petitions brought under Part XXXIII of the Electoral Act.

With the full knowledge of the second respondent's mandate in election matters, the legislature;

(i) Firstly, in section 166 of the Electoral Act did not include it as a respondent, obviously in a bid to guarantee its neutrality in the conduct of elections.

(ii) Secondly, the second respondent is excluded from the protective ambit of section 168(3).

(iii) Thirdly, in section171(3)(b)(ii) it mandated the Electoral Court to certify its determination to, amongst others, the second respondent, which, in itself, would be an anomalous method of alerting a respondent who is before it of its decision. In fact, the other persons who are notified are not respondents but public officials.

(iii) Fourthly, in section 171(a) and (b) the second respondent may be made to pay costs, or a portion thereof, for the culpable conduct of its officials, an obvious fate that befalls any losing or maligned respondent.

(iv) Fifthly, in section 158 as read with section 171(4)(b) any person alleged to have committed an electoral malpractice may be called to vindicate his or her name before such a finding is made against him or her.

In any event, “means” is the operative word in section 166 of the Electoral Act. It carries a different import from such words as “includes”. It is peremptory in nature.

I find that the force of reasoning in Movement for Democratic Change & Anor v Mudede N.O. & Others 2000 (2) ZLR 152 (S) is such that in defining respondent, in section 166 of the Electoral Act, the legislature intended to demonstrate, beyond doubt, the centrality of the winning candidate in election petitions.

The challenge is to him or her. His conduct is impugned in terms of section 167 of the Electoral Act and measured against the principles set out in section 3 of the Electoral Act.

Sections 155 to 157 make the winner liable for the acts of commission or omission that he or his agents or any other person commits with his or their knowledge and consent or approval.

A finding that the election was tainted to such an extent, as would materially affect its outcome, triggers, by operation of law, the holding of a new election.

The second respondent does not have the authority, luxury, or inclination to decline to hold such an election in those circumstances.

I therefore discern of no conceivable reason, in either law or logic, why the second respondent should be cited as a respondent under Part XXXIII of the Electoral Act.

MFALILA J was of the same view, at page 166E-H, in Pio v Smith 1986 (2) ZLR 12 (SC). He held that the predecessor functionaries of the second respondent could not be cited as a respondent under the then prevailing Electoral Act.

The reliance placed by counsel for the petitioner on Tsvangirai v Mugabe and The Electoral Supervisory Commission HH109-05, as authority for the proposition that the first respondent was properly cited, was misplaced.

HLATSHWAYO J…, based his decision for approving the joinder of the Electoral Supervisory Commission, the predecessor of the second respondent, on the common law principle of locus standi and Rules 85, 86 and 87 of the High Court Rules.

The only difficulty I have with reference to the common law is that an election petition is unknown to common law: see Hove v Gumbo SC143-04…,.

Further, it does not appear to me that the Rules of the High Court would supercede the definition of respondent set out in section 166 of the Electoral Act.

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: TSANGA J

On 21 July 2015, I registered an arbitral award in favour of the applicant which was in the following terms:

“It is ordered that;

1. The arbitration award attached hereto, and granted in favour of the applicant on the 29th of October 2014, be and is hereby registered as an order of this Honourable Court.

2. The respondent be and is hereby ordered to pay the applicant $11,448=88 plus interest of 5% per annum from the date of the arbitral award up to the date of full payment.

3. Respondent shall pay costs of this application at a higher scale if it opposes the application but if it does not oppose the application each party to bear its own costs.”

The respondent has appealed against the registration of the award and has asked for my written reasons for registration.

A summary of the case is in order.

The applicant obtained an arbitral award in his favour for unfair dismissal. He was dismissed for tarnishing the image of the Zimbabwe Manpower Development Fund (ZIMDEF) by failing to pay his personal debts and drawing public attention by being pursued by the Messenger of Court at his workplace.

His conduct was deemed, by the employer, to be inconsistent with the conditions of his employment.

He disputed being guilty of misconduct on the basis that these were private debts and the charges stretched too far and were unfair.

The Messenger of Court had threatened to attach the employer's property and had disrupted business.

The arbitrator's finding was that the failure to repay debts did not justify disciplinary proceedings. The arbitrator's view was that allowing the charges to stand would set a bad precedent for labour relations.

The arbitrator who did the calculations of what was due to the applicant, who was different from the original arbitrator, ordered that he be paid $11,448=88 plus interest at 5% per annum from the date of the arbitral award to the date of full payment.

The applicant sought registration of the award in order to compel the respondent to comply with the award.

The respondent had opposed the registration in the initial instance, on the grounds that there was a pending application for interim relief in the Labour Court and that the Labour Court should be given an opportunity to make a ruling on the application for interim relief pending before it. It was argued that registration would render the Labour Court application nugatory.

It was also argued, by the respondents, that a litigant who has taken advantage of the procedure to seek interim relief would suffer the very harm from he had sought protection.

In addition, the respondent also highlighted, in its application, that it had a general appeal pending on the matter in the Labour Court besides its interim application.

At the hearing of this opposed application, on 21 July 2015, the applicant drew attention to the fact that the pending application for stay of execution pending appeal, upon which the respondent had resisted registration on the basis that it would be rendered nugatory, had since been heard and dismissed on 17 April 2015 under LC/H/349/14. As such, it was the applicant's argument that there was no basis upon which to refuse to grant registration.

The applicant further argued that the respondent's standpoint, that to register the award would be against public policy, also lacked merit.

The respondent, on the other hand, acknowledged dismissal of the application for interim relief but emphasized that it had filed an application for leave to appeal the dismissal of its application for interim relief. As a result of this pending application for leave to appeal, it was argued that I should not register the award.

Furthermore, it was the respondent's argument that the main appeal on the award had yet to be heard.

In addition, it was maintained that to register the award would be against public policy on the basis that the manner in which the calculation of the award had been done would result in tax avoidance.

At the same time, the respondent was adamant that the process that had been initiated in the Labour Court, in terms of the challenge to the arbitral award, should certainly not be ignored.

The applicant, however, resisted the respondent's argument that registering the award would be against public policy on the basis that, as this was a labour matter, Article 34 and 36 of the Uncitral Model Law set out in the Schedule to the Arbitration Act [Chapter 7:15] was not applicable.

This was said to be because the Arbitration Act and its provisions apply to matters referred to compulsory arbitration in terms of section 98(2) of the Labour Act. Reliance for this viewpoint was placed on the case of Samudzimu v Dairibord 2010 (1) ZLR 357 (H).

More significantly, the respondent put forward the argument that gone are the days when this court could argue that it cannot interfere with a labour matter as it has now been constitutionally as a court of original jurisdiction.

It was emphasised that this court therefore had jurisdiction to determine a labour matter.

Authority for this standpoint was placed on the case of Confederation of Zimbabwe Industries v Rita Marque HH125-15 whereby MATHONSI J held that section 171(1)(a) of the Constitution of Zimbabwe had reinstated the jurisdiction of the High Court in labour matters which had been ousted by section 89(6) of the Labour Act [Chapter 28:01].

Section 89(6) of the Labour Act essentially provides that no court, other than the Labour Court, shall have jurisdiction to hear and determine labour matters - which include applications and appeals.

Section 171(1)(a) of the Constitution, which is argued to have altered this position, provides that “the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.”

Jurisdiction of a court essentially refers to the authority that a court has to hear and determine a dispute that is brought before it. This is in distinction to the court's “inherent power” to do something as dealt with by section 176 of our Constitution.

In terms of this section, the Constitutional Court, the Supreme Court, and the High Court all have inherent powers “to protect and regulate their own process and to develop the common law or customary law taking into account the interests of justice and the provisions of this Constitution.”

Such inherent powers can thus be inherent procedural powers or inherent substantive powers and are exercised on the premise that the court in question already has jurisdiction in the first place.

Thus, regulation of process, as exhorted by section 176 of the Constitution, would be largely an exercise of inherent procedural powers; while development of common law and customary law, as per section 176 of the Constitution, would be largely an exercise of inherent substantive powers.

The respondent's argument was founded on the jurisdictional authority of the High Court, in terms of section 171(a) of the Constitution, to hear and determine a civil matter, in this instance, a labour dispute.

It was against the backdrop of the jurisdictional argument that I formulated the decision to grant the order of registration.

I took into consideration the argument advanced by the respondent, that, this court is now fully empowered to hear such labour matters as a court of original jurisdiction.

As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) of the Constitution does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force, that, in reality, places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court “jurisdiction over labour matters as conferred by an Act of Parliament.”

The applicable Act of Parliament, in labour matters, is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction, in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
Ruled By: GOWORA JA, PATEL JA and UCHENA JA

What is a General Notice?A General Notice is a public notice published in the Government Gazette. A General Notice is in the same category as a statutory instrument. It is subsidiary legislation. It, therefore, has the force and effect of law.It can also be viewed as a document that has ...

SC140-21 : MBCA BANK (PRIVATE) LIMITED (Now known as Nedbank Zimbabwe Limited) vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GUVAVA JA, UCHENA JA and MAKONI JA

This is an appeal against the whole judgment of the Special Court for Income Tax Appeals, dated 28 November 2019, upholding the respondent's amended assessment of tax against the appellant.FACTSThe facts of the case can be summarised as follows;The appellant is a registered Bank in Zimbabwe. It is also a ...

This is an appeal against the whole judgment of the Special Court for Income Tax Appeals, dated 28 November 2019, upholding the respondent's amended assessment of tax against the appellant.

FACTS

The facts of the case can be summarised as follows;

The appellant is a registered Bank in Zimbabwe. It is also a subsidiary of MBCA Holdings Limited a local holding company, which, in turn, is a subsidiary of Nedbank Limited (Nedbank) a South African company.

The respondent is an authority established in terms of the Revenue Authority Act [Chapter 23:11]. It is responsible for assessing, collecting, and enforcing payment of taxes to the State.

On 5 June 2012, the appellant filed its income tax self-assessment with the respondent for the tax year ending 31 December 2011.

On 27 June 2012, the respondent's Commissioner of Investigations and International Affairs launched a tax review of the appellant's operations for the period spanning January 2009 to May 2012.

The exercise resulted in the respondent issuing amended manual notices of assessment for Income Tax numbers 203324818 and 20324821 for the tax years 2010 and 2011 respectively.

The amended notice of assessment in respect of the 2010 tax year was subsequently withdrawn, whilst the amended assessment in respect of the 2011 tax year resulted in additional tax and penalties amounting to US$944,614=80.

The appellant objected to the amendment for the tax year ending 31 December 2011.

The respondent dismissed the objection after which the appellant appealed to the Special Court for Income Tax Appeals (the court a quo).

The issue before the court a quo was the validity of the amended assessment of Income Tax number 20324821, for the 2011 tax year.

The respondent disallowed the appellant's deductions pertaining to “expenditure incurred on general administration and management” in terms of section 16(1)(r) of the Income Tax Act [Chapter 23:06] and debts written off by the appellant in its income tax self assessment as “bad debts” in terms of section 15(2)(a) as read with section 15(2)(g) of the Income Tax Act.

It was established before the court a quo, that, the appellant is a subsidiary of MBCA Holdings Limited a local holding company, which, in turn, is a subsidiary of Nedbank Limited (Nedbank) a South African company.

In terms of section 143(1)(b) of the then Companies Act [Chapter 24:03] the appellant was deemed to be a subsidiary of Nedbank (South Africa).

During the 2011 tax year, Nedbank (South Africa) met several expenses on behalf of the appellant including travelling costs, telecommunications costs, and postage and freight costs. It also rendered services such as Group technology infrastructure and operation support services, system support service for the Africa Banking and e-commerce, strategic planning assistance, and risk advisory service assistance.

The appellant subsequently paid Nedbank (South Africa) for the incurred expenses and accounted for all the payments made thereto, including reimbursement, payment for services rendered, and general and specific administration costs through a single ledger account headed “Operating Costs”.

The respondent's amended assessment was based on its treatment of all the payments made to Nedbank (South Africa) by the appellant as general administration and management costs.

The respondent disallowed all amounts in excess of limits set in terms of section 16(1)(r)(ii) of the Income Tax Act.

In respect of bad debts, the respondent's position was that bad debts could only be claimed in terms of section 15(2)(g) of the Income Tax Act and that the debts written off as “bad debts” by the appellant, for the 2011 income tax year, failed to meet the criteria established in terms section 15(2)(g) of the Income Tax Act.

PROCEEDINGS BEFORE THE COURT A QUO

In proceedings before the court a quo, the appellant submitted, that, general costs and not specific costs fell under the purview of section 16(1)(r) of the Income Tax Act, while the respondent adopted the contrary view, that, section 16(1)(r) of the Income Tax Act did not differentiate between general and specific costs, but, rather, gave effect to all costs incurred by a subsidiary company to its holding company as general administration and management expenses which were deductible in terms of the formula provided by section 16(1)(r)(i)and (ii) of the Income Tax Act.

In determining the appeal, the court a quo held, that, section 16(1)(r) of the Income Tax Act constituted an anti-tax avoidance measure against a local taxpayer by limiting its allowable deductions in respect of general administration and management expenses incurred by a foreign holding company.

It held, that, the provisions were enacted by the legislature to prevent local subsidiary companies and their foreign holding companies from colluding to overload expenses on the local entity whilst simultaneously reducing its Zimbabwean tax liability and increasing the foreign entity's profits.

In respect of all the payments made by the appellant to Nedbank (South Africa), the court a quo held that section 16(1)(r) as read with section 26(2) of the Income Tax Act was applicable.

The appellant was therefore confined to the prescribed deductible income limits provided for in section 16(1)(r)(ii) of the Income Tax Act.

In view of the foregoing, the court a quo determined, that, the expenses deducted by the appellant in favour of Nedbank (South Africa) fell into the category of “expenditure on general administration and management” in terms of section 16(1)(r) of the Income Tax Act.

The court a quo took into consideration the Shorter Oxford English Dictionary definition of the term 'administration' and 'management' respectively, and determined that the former related to “the act of administering, management” and the latter to “the act or manner of managing, administrative skill.”

The court a quo was, however, of the view, that, the definitions were not the determinant factors of the issue, as “all of the appellant's contracted functions (were) headlined as management of sorts” in the appellant's accounting books.

It held, that, the pertinent issue for consideration was the proper definition of the word 'general' which definition was held to pertain to “all or most of the parts of the whole, completely or approximately universal within implied limits.”

After determining the issue of deductible income in terms of section 16(1)(r) of the Income Tax Act, the court a quo considered whether or not the bad debts claimed by the appellant were allowable deductions in terms of section 15(2)(g) of the Income Tax Act.

The bad debts claimed by the appellant, in its 2011 tax assessment, pertained to the sum of US$2,250,365=17 being unsatisfied loans due to the appellant from its four Bulawayo-based corporate clients.

The respondent was not satisfied, that, the debts written-off by the appellant constituted bad debts in terms of section 15(2)(g) of the Income Tax Act.

The appellant contended, that, loss sustained and written off by a banking institution or money-lending business (such as itself) from loans, constituted a deductible loss as contemplated in section 15(2)(a) of the Income Tax Act.

The appellant argued, that, bad debts in the case of banking institutions and money-lending institutions come into existence by operation of law as contained in paragraphs 20, 22, 24 and 25 of the Banking Regulations 2000, SI205 of 2000 (the Regulations).

The appellant wrote off the four unsatisfied loans in terms of paragraph 22(e) of the Banking Regulations 2000, S.I.205 of 2000, at the lapse of 360 days, which, it argued, placed them in the ambit of section 15(2)(a) of the Income Tax Act.

The court a quo held, that, a past due date loan could not be categorised as a loss when the loan was well secured and/or where legal action to satisfy the loan has commenced. It held that a loan could be classified as a loss when it is established that it can no longer be recovered.

It was established, that, the appellant had not commenced legal proceedings against its first borrower when the debt was written off.

It was therefore held, that, the appellant had failed to discharge the onus upon it to prove, on a balance of probabilities, that the loan was not recoverable at the time that the loss was declared.

In respect of the appellant's remaining three borrowers, it was established, that, their matters were under legal proceedings, wherein the respondent had secured judgments against the borrowers but had only partially recovered the total amount due to it. Sureties for the three borrowers had not yet been sued.

The court a quo held, that, the appellant had failed to establish, on a balance of probabilities, that the debts written off were unrecoverable and constituted a loss.

It held, that, the appellant had failed to establish loss as provided for in terms of paragraph 22(e) of the Banking Regulations 2000, S.I.205 of 2000 or debt in terms of section 15(2)(g) of the Income Tax Act, thus precluding the appellant from claiming income tax deductions thereon.

The court a quo therefore dismissed the appellant's appeal.

Aggrieved by the decision of the court a quo, the appellant noted an appeal to this Court on the following grounds:

GROUNDS OF APPEAL

“1. The court a quo erred in finding that there is no distinction between the expenditure incurred on general administration and management as contemplated by section 16(1)(r) of the Income Tax Act [Chapter 23:06] and remuneration for reimbursement of specific services or expenses paid by a subsidiary to a holding company.

2. The court a quo erred in finding that the disputed expenses constituted expenditure on general administration and management as contemplated by section 16(1)(r) of the Income Tax Act and were properly disallowed.

3. The court a quo erred in finding that bad debts written off by a commercial bank (specifically in terms of the Banking Regulations SI205/2000) cannot constitute expenses incurred for the purpose of trade or in the production of income as contemplated by section 15(2)(a) of the Income Tax Act.

4. The court a quo erred in finding that the disputed debts could not be categorized as losses in terms of paragraph 22(e) of the Banking Regulations.

5. Alternatively, the court a quo erred in finding, that, the disputed debts were not bad debts and therefore deductible from the appellant's income in terms of section 15(2)(g) of the Income Tax Act.”

The appeal raises two issues for determination:

1. Whether or not the court a quo erred in determining that there was no distinction between general costs, as provided for in section 16(1)(r) of the Income Tax Act, and specific costs incurred by a subsidiary in favour of its foreign holding company.

2. Whether or not the court a quo erred in finding that the disputed debts were improperly written off as bad debts and therefore not deductible from the appellant's income in terms of section 15(2)(a) or section 15(2)(g) of the Income Tax Act.

SUBMISSIONS MADE BY THE PARTIES

Counsel for the appellant submitted, that, the court a quo did not make a finding on the nature of the services, but, rather, the recipient of the services. He further submitted, that, the nature of the expenses was not distinguished as that is not in the judgment of the court a quo.

On the deductibility of bad debts, he argued, that, as per Salisbury Board of Executors Ltd v Commissioner of Taxes 1941 SR 147, such deductions depended on whether the losses are in the course of the business of banking or money lending.

He contended, that, debts written off constitute losses of a revenue nature.

Counsel for the appellant submitted, that, section 15(2)(a) and (g) of the Income Tax Act are distinct and it was difficult to see which one the court a quo was using between the two.

He asserted, that, section 15(2)(a) of the Income Tax Act applied primarily to and regulates a situation where there is a secondary consideration. He contended, that, in terms of section 15(2)(a), all that needs to be proved is that bad debts were written off. Counsel for the appellant argued, that, the criterion in the banking regulation was met bringing the claim in the purview of section 15(2)(a) and not (g) of the Income Tax Act.

Counsel for the respondent submitted, that, the judgment of the court a quo is correct.

He argued, that, when interpreting any statute, the context is a major consideration as indicated in Zambezi Gas (Pvt) Limited v N R Barber (Pvt) Limited & Anor SC03-20.

Counsel for the respondent submitted, that, the appellant and Nedbank (South Africa) are related parties.

He further argued, that, the agreement between the parties stated that the services were general.

He contended, that, the heading thereon is management support agreement between the appellant and Nedbank (South Africa) and that the nature of the services is clear from the agreement itself.

Counsel for the respondent argued, that, the purpose of section 16(1)(a) of the Income Tax Act is not to distinguish between general and specific costs.

He submitted, that, a specific service may be paid for in an exercise of rendering general and administrative services. He further submitted, that, in any event, the appellant's witness stated, that, all expenses can be labelled under specific expenses.

Concerning the issue of bad debts, counsel for the respondent submitted, that, Salisbury Board of Executors Ltd v Commissioner of Taxes 1941 SR 147 is not relevant in this case as section 15(2)(g) of the Income Tax Act was not in existence in its current form at the time of the (1941) judgment.

He argued, that, the thrust of the respondent's submission is that there were no actual losses incurred.

He further argued, that, in 2011, the appellant held security which was sufficient to cover the debts and that it was its duty, in terms of section 15(2)(g) of the Income Tax Act, to be satisfied that the debts were bad.

Counsel for the respondent contended, that, the discretion of the Commissioner was properly exercised.

In response, counsel for the appellant submitted, that, the respondent was attempting to use the agreement to blanket all expenses as general when there is a clear distinction in the provision of services.

Concerning the issue of bad debts, he argued, that, the main consideration was that it was a loss incurred in the course of trade.

APPLICATION OF THE LAW TO THE FACTS

2. Whether or not the court a quo erred in finding that the disputed debts were improperly written off as bad debts and therefore not deductible from the appellant's income in terms of section 15(2)(a) or section 15(2)(g) of the Income Tax Act

The court a quo upheld the decision of the respondent that the disputed debts were improperly written off as bad debts as the appellant had collateral security in respect of each debt. The evidence placed before the court a quo establish that each debt was secured by a mortgage bond over immovable property and sureties.

It held, that, the appellant had failed to produce any documents justifying the need to write-off the debts and that the Commissioner had properly disallowed the deductions of bad debts.

Counsel for the appellant relied on the decision in Salisbury Board of Executors Ltd v Commissioner of Taxes 1941 SR 147, where it was held, that, such deductions depended on whether the losses are in the course of the business of banking or money-lending.

The court a quo held, that, the issue before that court was not on the interpretation of section 15(2)(g) of the Income Tax Act but was an obiter statement hesitantly made in passing.

A reading of the case confirms the court a quo's observation.

Commenting on the effect of Salisbury Board of Executors Ltd v Commissioner of Taxes 1941 SR 147, counsel for the respondent said it was an irrelevant precedent as the case was considering the statute as it then was and not as it now is.

I agree with his submission.

A statute which has been amended should be interpreted according to its current wording.

An interpretation given to it before an amendment which substantially altered the law is not binding precedent.

In this case, section 15(2)(g) of the Income Tax Act was amended and substituted by Act 10 of 2009 and now reads as follows:

“(g) The amount of any debts due to the taxpayer, to the extent to which they are proved to the satisfaction of the Commissioner to be bad, if such amount is included in the current year of assessment or was included in any previous year of assessment in the taxpayer's income either in terms of this Act or a previous law;
[Paragraph substituted by Act 10 of 2009].”

The section must be read together with the Banking Regulations SI205 of 2000 which also came into force long after the 1941 decision.

These changes must therefore be taken into account in interpreting the amended law.

I therefore agree with the court a quo, that, Salisbury Board of Executors Ltd v Commissioner of Taxes 1941 SR 147 is not a reliable precedent, and had no binding effect on the court a quo.

The purpose of amending a law is to bring into effect the legislature's current intention.

The legislature's new intention must prevail over its former intention.

Reference to the former law must be construed to mean the law which was in existence immediately before the amendment and subsection of section 15(2)(g) of the Income Tax Act by Act 10 of 2009. It does not mean the law as it was in 1941 as the 1941 provision and those which followed it were rendered inoperative by the coming into force of the 2009 amendment.

Section 15(2)(a) of the Income Tax Act provides for deductions which can be made by a taxpayer as follows:

“(2) The deductions allowed shall be —

(a) Expenditure and losses to the extent to which they are incurred for the purposes of trade or in the production of the income except to the extent to which they are expenditure or losses of a capital nature;”

The provisions of section 15(2)(a) of the Income Tax Act provide, in general, for deductions of expenditure and losses incurred for the purposes of trade which can be deducted to the extent to which they are expenditure or losses of a capital nature.

It is apparent, that, section 15(2)(a) is of general application. Its provisions are subordinated to those of section 15(2)(g) which provides for the circumstances under which the deduction of losses can be allowed.

Section 15(2)(g) of the Income Tax Act, which provides for the circumstances under which bad debts can be deducted, provides as follows:

“(2) The deductions allowed shall be —

(g) The amount of any debts due to the taxpayer to the extent to which they are proved to the satisfaction of the Commissioner to be bad, if such amount is included in the current year of assessment or was included in any previous year of assessment in the taxpayer's income either in terms of this Act or a previous law;”...,.

Section 15(2)(g) of the Income Tax Act should be read together with section 22(e) and 24 of the Banking Regulations, 2000 SI205 of 2000; but, what is apparent from the reading of section 15(2)(g) of the Income Tax Act is that the loss must be proved to the satisfaction of the Commissioner to be a bad debt.

It therefore will not be granted on the say so of the tax payer to be a bad debt.

The taxpayer has to prove to the Commissioner that it is a bad debt. If the Commissioner is not satisfied that it is a bad debt, he is, at law, entitled to disallow the deduction.

Section 22(e) of the Banking Regulations 2000, SI205/2000 reads as follows:

“22 For the purpose of this Part, every banking institution shall classify all assets according to the following gradations -

(a)…,. n/a

(b)…,. n/a

(c)…,. n/a

(d)…,. n/a

(e) 'loss' if the asset in question -

(i) Is past due for more than 360 days, unless such asset is well secured and legal action has actually commenced which is expected to result in the timely realisation of the collateral or enforcement of any guarantee relating to the asset; or

(ii)...,. n/a

(iii) Is otherwise considered uncollectable or of such little value that its continuance as an asset is not warranted:

Provided that a loss classification shall not preclude the possibility of recovering the asset or securing a salvage value for it.”...,.

Section 22 of the Banking Act clearly states, that, the purpose of the gradations is for the classification of a banking institution's assets. This means they remain assets of the bank as section 22 ends by saying: “Provided that a loss classification shall not preclude the possibility of recovering the asset or securing a salvage value for it.”

This means mere classification as a 'loss' does not prove an irrecoverable loss of the asset.

The Commissioner will, in such circumstances, be justified in disallowing the deduction, if he is not satisfied that such a 'loss' is a bad debt.

The taxpayer must therefore prove, to the satisfaction of the Commissioner, that, the debt is no longer recoverable.

It is not enough to merely deduct it as a bad debt without attaching proof that it is no longer recoverable.

Section 24 of the Banking Regulations 2000, S.I.205/2000 provides as follows:

“A loan or asset graded 'loss' shall be immediately written off, whether or not the banking institution intends or is in the process of attempting to recover the loan or asset.”...,.

This again proves the inconclusiveness of the gradations, as an asset can be written off even if the Bank intends or is in the process of attempting to recover it.

The Commissioner cannot be expected to be satisfied that such a 'loss' constitutes a bad debt.

The law requires the Commissioner to be satisfied that the debt is indeed a bad debt in terms of section 15(2)(g) of the Income Tax Act before allowing deductions to be made.

The Commissioner should therefore carefully assess the alleged bad debts for him to be satisfied that they have been properly claimed in terms of the law. If he is reasonably and justifiably not satisfied, the law allows him to refuse to allow the deduction of the alleged bad debts.

A perusal of the record establishes, that, in respect of each borrower, the appellant had indeed not exhausted its rights against sureties and was receiving payments from the borrowers during the period of litigation.

It was, therefore, not legally correct for such debts to be deducted as bad debts whilst they could still be recovered from the sureties and while the borrowers were making further payments.

Commenting on the status of the four borrowers whose debts the appellant had written off as bad debts and deducted in its self-assessment of 2011, the court a quo said:

“The appellant declared the losses on 29 April 2011. At that time, it was the mortgagee of the encumbered property, which belonged to a third party and not the first borrower. That property had been independently valued by valuators engaged by appellant a year before, on 11 February 2010, at US$1.1 million.

The appellant did not conduct another independent valuation before declaring the loss.

We know, from the letter written by NSSA on 23 February 2011, that independent valuers engaged by NSSA between 11 February and 23 March 2011 had valued the property at US$2.7m.

The pleadings and the evidence of the Head of Credit never did explain why the appellant never sought satisfaction of the loan from that property and other properties encumbered by unlimited guarantees such as the amalgamated contiguous building guaranteed by LB (Pvt) Ltd, which, according to the letter of the borrower's managing director of 2 April 2009, was unencumbered....,

The Head of Credit did not produce any evidence of the valuations done in 2011 either by an independent valuer or by a desktop valuer. He did not intimate that any such evidence was availed to the investigators or the Commissioner.

I have already highlighted the weaknesses in the evidence provided by the appellant in respect of the first borrower. Those findings apply with equal force in the consideration of the satisfaction issue. I am not satisfied that there was an unlikelihood of realization of the securities held by the appellant against the debt of the first borrower.

In regards to the second borrower, the security would have been sufficient to meet its indebtedness had it been executed in 2011.

The debt went 360 days past due in July 2010. The Head of Credit was wont to say, ad nauseum, that properties were overvalued in 2009 when the United States dollar was introduced into the multicurrency monetary basket in Zimbabwe and progressively fell in nominal terms in subsequent years.

Apparently, the trend was debunked by the residential property that secured the second borrower's debt for it was sold by the Sheriff, in 2015, for US$57,500 and the surety complained that the price was too low.

I agree with Mr Magwaliba that the property could have been worth much more in 2011. It would have been able to cover the second borrower's debt.

The appellant wrongly considered the debt bad. The Commissioner properly disallowed it from the appellant's 2011 income tax return.

In respect of the third borrower, the debt went 360 days past due in May 2010. The security was disposed of in the Sheriff's sale in execution in November for US$35,000, an amount which was greater than the debt owing but which the Sheriff considered too low such that he invoked the private treaty route.

The reasoning adopted in the second borrower's case applies with equal force to the present matter.

I am satisfied that the value of the security would have most likely covered the debt that was considered bad by the appellant in the 2011 tax year. The Commissioner correctly disallowed it from the appellant's 2011 income tax return.

Lastly, the debt of the fourth borrower went 360 days past due in March 2010. The debt had increased to US$26,225=78 from the original amount of US$20,000 by the time judgment was taken in 2011.

The property was valued at US$31,250 at the time the facility was availed to the fourth borrower.

The property attracted the highest bid of US$7,000 at the Sheriff's sale in execution conducted in March 2015, a price, which, at the date of hearing of this appeal, was still awaiting the Sheriff's confirmation.

The appellant did not produce any valuation evidence which would have tended to justify the partial write off of the debt. The appellant failed to show, on a balance of probabilities, that the security was inadequate to cover the outstanding debt in 2011.

I am not satisfied that the security was inadequate to cover the outstanding amount.

The Commissioner correctly disallowed the deduction claimed in respect of the fourth borrower in the appellant's 2011 income tax return.”

When legal proceedings were instituted, the second borrower owed the appellant US$40,000. During the contested action, the second borrower made intermittent payments of US$17,191=13. The mortgaged property was sold at US$57,500 at the Sheriff's sale - a price much higher than the amount owed.

The third borrower owed US$26,677=27. The mortgaged property was sold for US$35,000 at the Sheriff's sale - again a price much higher than the amount owed.

The fourth borrower had been placed under liquidation. The appellants argue that that rendered the debt a bad debt.

This is not correct as a debt can be recovered even if a company is under liquidation subject to certain conditions.

A debt can only be rendered irrecoverable when the company has wound up and closed.

In Allied Bank Ltd v Dengu & Anor SC52-16, this Court remarked as follows:

“The court was not persuaded by Mr Matinenga's submissions. Section 213 of the Companies Act provides as follows;

'In a winding up by the court —

(a) No action or proceeding shall be proceeded with or commenced against the company except by leave of the court and subject to such terms as the court may impose;

(b) Any attachment or execution put in force against the assets of the company after the commencement of the winding up shall be void;

(c) Every disposition of the property, including rights of action of the company and every transfer of shares or alteration in the status of its members, made after the commencement of the winding up, shall, unless the court otherwise orders, be void.'

What can be noted from the above section is that where the company is a defendant, no action can be proceeded with or commenced against the company without leave of the court.

This section states, that, the only circumstance in which the leave of the court is required 'to proceed' or 'to continue' with the proceeding is where the company that fell under liquidation during the proceedings, is a defendant/respondent.”…,.

In light of the above, it is clear that a company under liquidation can be sued subject to being granted leave to do so by the court.

It is my view, that, if sureties have not yet been sued, a debt cannot be classified as a bad debt.

The court a quo was therefore correct when it held, that, there was still a possibility of recovering the appellant's money from the borrower. The appellant should therefore not have passively rendered it a bad debt.

The appellant had to join the queue of other creditors and could only treat it as a bad debt if all this had been exhausted.

Over and above the fourth borrowers ability to liquidate its debt through sureties and payments to creditors by a company under liquidation, the appellant had, during litigation, received intermittent payments of US$13,123=55 from the borrower....,.

The court a quo took into consideration the facts of each borrower's debt and correctly held, that, the security provided for each debt, plus the value of the properties mortgaged for each debt, did not prove that the debts were unrecoverable.

It correctly dismissed the appellant's appeal.

There is no merit in the appellant's appeal. In respect of costs, there is no reason why they should not follow the result.

It is accordingly ordered as follows:

'The appeal be and is hereby dismissed with costs.'

HH412-21 : ZIMBABWE LEAF TOBACCO vs KEVIN COOKE
Ruled By: DUBE J

It is a fundamental rule of law that the purpose of subsidiary legislation is to supplement primary legislation. Subsidiary legislation must not be ultra vires the enabling Act. Subsidiary legislation must not conflict with, run counter to, or replace enabling legislation.

Appealed
SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

This is an appeal against the judgment of the High Court handed down on 4 May 2018.

The appellant had, before that court, sought a declarator that the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations 2016 published as Statutory Instrument 117/2017 were null and void and of no force or effect.

The appellant had also sought an order declaring the enabling Act, the Presidential Powers (Temporary Measures) Act [Chapter 10:20] to be inconsistent with the Constitution of Zimbabwe, and, as a consequence, the striking down of that Act.

In the alternative, the appellant sought a declaratur that section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] is inconsistent with the Constitution and that the same be struck down.

After hearing argument from both parties, the High Court dismissed the application with costs. It is against that order that the appellant has now appealed to this Court.

BACKGROUND FACTS

The Presidential Powers (Temporary Measures) Act [Chapter 10:20] (“the Act”) provides as follows in section 2 thereof:

“2. Making of Urgent Regulations

(1) When it appears to the President that:

(a) A situation has arisen, or is likely to arise, which needs to be dealt with urgently in the interest of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest; and

(b) The situation cannot adequately be dealt with in terms of any other law; and

(c) Because of the urgency, it is inexpedient to await the passage through Parliament of an Act dealing with the situation; then, subject to the Constitution and this Act, the President may make such regulations as he considers will deal with the situation.

(2) Regulations made in terms of subsection (1) may provide for any matter or thing for which Parliament can make provision in an Act:

Provided that…,. (not relevant).”…,.

Section 5 of the Presidential Powers (Temporary Measures) Act provides:

“Regulations made in terms of section two shall, to the extent of any inconsistency, prevail over any other law to the contrary, apart from regulations that have been made and are in force in terms of the Emergency Powers Act [Chapter 11:04].”

Acting in accordance with the above provisions of the Presidential Powers (Temporary Measures) Act, the President of the Republic of Zimbabwe, who is the respondent in this matter, published, on 15 September 2017, in the Government Gazette Extraordinary, the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, SI117 of 2017 (“the Regulations”). The Regulations sought to amend certain sections of, and the Schedule to, the Electoral Act [Chapter 2:13].

On 20 October 2017, the applicant filed a court application seeking the declarators referred to and an order setting aside both the Presidential Powers (Temporary Measures) Act [Chapter 10:20] and the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117 of 2017.

THE APPELLANT'S CASE A QUO

In his founding affidavit in the court a quo, the appellant, as applicant, stated as follows:

The Presidential Powers (Temporary Measures) Act is unconstitutional because it gives the President of the Republic of Zimbabwe the power to enact Regulations which override existing Acts of Parliament. Nowhere in the Constitution is the President given the power to make law as provided for in the Presidential Powers (Temporary Measures) Act.

Although section 116 of the Constitution states that the Legislature of Zimbabwe consists of Parliament and the President, it is clear that the President is involved only to the extent stipulated in Chapter 6 as read with the Fifth Schedule to the Constitution.

Section 134 of the Constitution makes it clear that Parliament may, in an Act of Parliament, delegate the power to make statutory instruments within the scope of and for purposes laid out in the Presidential Powers (Temporary Measures) Act but in no uncertain terms prohibits the delegation of Parliament's primary law making function.

It was never the intention that delegated legislation could have the effect of altering an existing Act of Parliament.

In terms of section 5 of the Presidential Powers (Temporary Measures) Act, the President has sweeping powers to make laws that transcend existing Acts of Parliament.

For that reason, the applicant sought an order striking down both the Presidential Powers (Temporary Measures) Act [Chapter 10:20] and the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, SI117/2017.

THE RESPONDENT'S CASE A QUO

In his opposing affidavit, the respondent stated as follows:

The provisions of the Electoral Act amended by the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117/2017 had not envisaged the use of the biometric voter registration system which requires voters to have fingerprints and photographs taken in addition to filling in forms.

The President accepted, that, in terms of section 2 of the Presidential Powers (Temporary Measures) Act, he can enact laws, but, submitted that any Regulations he makes are subject to scrutiny by Parliament which can resolve either to have them amended or repealed.

Further, and in any event, section 110 of the Constitution gives him the power conferred by the Constitution, an Act of Parliament, or other law, to enable him to exercise his functions as Head of State.

The reference to “other law” includes provisions of the common law, customary law, and international law in force in Zimbabwe.

Under the common law, the President has always enjoyed prerogative powers which entitle him to promulgate temporary legislation in urgent situations. Those prerogative powers have not been abolished under the Constitution and consequently remain at his disposal.

DETERMINATION OF THE COURT A QUO

In its determination, the court a quo found, that, in invoking his powers under the Presidential Powers (Temporary Measures) Act, the respondent was not abusing the law-making function conferred upon him by the Act.

The new voters roll could not properly be covered by a law which Parliament would have introduced, debated, and passed into law without interfering with the requisite time lines of the 2018 harmonised elections.

The court a quo accepted, that, the question whether or not the Presidential Powers (Temporary Measures) Act is legal depends on the interpretation of the Constitution.

It found, that, the President's “necessary and unavoidable intrusion into the function of Parliament” is evident from a reading of section 86 of the Constitution.

It further found that “it is only the President who has the power to limit, through the Act, the people of Zimbabwe's fundamental rights and freedoms which are contained in the Constitution”.

The court also found that “because the President's law making power exists in the Act, the drafters of the Constitution did not include it in section 134 of the Constitution” and that “because his powers, as stated in section 86(2)(b) of the Constitution, relate to the limitation of the people of Zimbabwe's fundamental rights and freedoms in certain unforeseen circumstances, he could not effectively exercise the same under section 134 of the Constitution.”

The court consequently dismissed the application with costs.

PROCEEDINGS BEFORE THIS COURT

Unhappy with the dismissal of his application by the court a quo, the appellant noted an appeal to this Court. His grounds of appeal are that:

“1.1 The court a quo erred as a question of law, in upholding the validity of the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations 2016 published in Statutory Instrument 117/2017.

1.2 A fortiori, the court a quo erred in holding that the President could make law.

1.3 In addition, the court a quo erred in failing to hold that the Presidential Powers (Temporary Measures) Act [Chapter 10:20] was an unlawful delegation of legislative power and was therefore ultra vires the Constitution of Zimbabwe.

1.4 In the alternative, the court a quo failed to uphold that section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] was null and void and of no force and effect to the fact that it permitted the making of laws overlooking Parliament.”…,.

In his prayer, he seeks an order setting aside the order of the court a quo, and, in its place, an order granting the relief he had sought before the court a quo.

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In his submissions, the appellant states as follows:

Section 86 of the Constitution is just a limitation clause and does not allow the President to limit rights or to be the person who curtails the rights of persons. Section 86 of the Constitution only relates to a law of general application made and passed by Parliament and not by an individual.

The Presidential Powers (Temporary Measures) Act [Chapter 10:20], that is the subject of this appeal, amounts to Parliament outsourcing its original law-making powers.

The function of the President, under section 110 of the Constitution, is not to make law, but, merely to assent to a Bill, and, if he does not agree, to refer the Bill to the Constitutional Court for an opinion on its constitutionality.

He further argues, that, there is a difference between delegating authority to make subordinate legislation within the framework of a statute under which the delegation is made, and assigning primary law making power to another body.

In this case “the President is even higher than Parliament because he can amend what Parliament has done.”

On the remedy, the appellant submits, that, an order should be issued nullifying the Presidential Powers (Temporary Measures) Act [Chapter 10:20].

However, since the retrospective declaration of invalidity might produce significant disruption in the voter registration exercise, the court should make an order that limits the retrospective effect of any such declaration.

He makes it clear, that, he has no difficulty with the substance of the amendments and that the gravamen of his displeasure is the manner in which they were effected.

RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

In his heads of argument, the President states, that, whilst he does not entirely agree with the reasoning of the court a quo, he agrees with the order made.

He submits, as he did before the court a quo, that, the Presidential prerogative is a power that attaches to the President by virtue of his office, and that, under the common law, he has always enjoyed prerogative powers which entitle him to promulgate temporary legislation in urgent situations. Those prerogative powers were never abolished but are now codified under the Presidential Powers (Temporary Measures) Act.

The reference to “other law” in section 110(1) of the Constitution includes, by necessity, the provisions of the common law in force in this country.

Lastly, he maintains, that, as the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117/2017 have to be laid before Parliament for approval, this shows that Parliament, essentially, still retains its primary lawmaking power.

In the course of considering the possible disposition of this matter, a question of law arose, namely, whether the appellant could properly appeal to this Court against a determination of constitutional validity by the court a quo.

Being an important issue that could be dispositive of this matter, and in light of the fact that neither party had hitherto addressed the court on it, this Court asked both parties to file supplementary submissions within a given time frame.

This the parties proceeded to do.

APPELLANT'S SUPPLEMENTARY SUBMISSIONS

In his supplementary heads of argument, the appellant has submitted, that, where the High Court, as in this case, issues an order of constitutional validity, that determination is subject to an ordinary appeal to this Court. Where, however, the same court issues an order of constitutional invalidity, then, that order must be referred to the Constitutional Court in terms of section 175 of the Constitution.

In other words, in the former case, there is no obligation that the order of constitutional validity be referred to the Constitutional Court for confirmation.

The appellant further submitted, that, in terms of section 43 of the High Court Act [Chapter 7:06], the Supreme Court has an obligation to hear and determine all appeals from the High Court of Zimbabwe, whether in the exercise of its original or appellate jurisdiction.

Further, in terms of section 21 of the Supreme Court Act, the Supreme Court has jurisdiction to hear and determine an appeal in any civil case from the judgment of any court or tribunal from which, in terms of any other enactment, an appeal lies to the Supreme Court.

In terms of section 22 of the Supreme Court Act, the Supreme Court shall have the power to confirm, vary, amend or set aside the judgment appealed against or give such judgment as the case may require.

There is, therefore, nothing in the High Court Act or Supreme Court Act, so the appellant argues, that takes away the power of the Supreme Court to entertain an appeal from the High Court. The only limitation is in respect of an order of Constitutional invalidity which must be confirmed by the Constitutional Court before it has any effect.

The appellant has further submitted, that, in light of the wording of section 175(3) of the Constitution, any interested person has a right to appeal or apply directly to the Constitutional Court to confirm or vary the order of constitutional validity.

Subsection (3) of section 175 of the Constitution refers to a court order made in terms of subsection (1) of that section, which subsection provides for an order of constitutional invalidity. The reference, in subsection (3), to an order concerning constitutional validity in terms of subsection (1) restricts the meaning of subsection (3) to orders of constitutional invalidity only.

In other words, the right to appeal to the Constitutional Court is restricted by the fact that such a right only applies to an order of constitutional invalidity provided for in subsection (1).

Further, Rule 31 of the Constitutional Court Rules refers to an order of constitutional invalidity and not an order of constitutional validity. The express mention of orders of constitutional invalidity excludes orders of constitutional validity.

In the event that the Supreme Court declares a law to be invalid, then, that order has to be confirmed by the Constitutional Court.

RESPONDENT'S SUPPLEMENTARY SUBMISSIONS

The respondent does not accept the appellant's submissions in this regard and submits that the Supreme Court has no jurisdiction to hear and determine such an appeal, because, in terms of section 175(1) of the Constitution only the Constitutional Court is empowered to confirm or vary an order concerning constitutional validity by any court.

Subsection (3) of section 175 of the Constitution refers to an order concerning constitutional validity by a court in terms of subsection (1). If subsection (1) and (3) of section 175 are read together, it becomes apparent that section 175 of the Constitution refers not only to orders of constitutional invalidity but also orders of constitutional validity.

Only the Constitutional Court is empowered to confirm or vary an order of Constitutional invalidity.

The Supreme Court would be unable to sufficiently deal with the issue of constitutional validity or invalidity of any law and is not in a position to vary or confirm any order concerning constitutional validity of any law. Although the Supreme Court is the final court in non-constitutional matters, it cannot usurp the powers of the Constitutional Court in this regard.

ISSUE(S) ARISING FOR DETERMINATION

From the foregoing, it seems to me that two broad issues arise for determination before this Court:

(i) The first is whether an order of constitutional validity by the High Court can be appealed against to the Supreme Court rather than directly to the Constitutional Court.

(ii) The second is whether the Presidential Powers (Temporary Measures) Act is consistent with the Constitution of Zimbabwe.

I proceed to deal with these two issues in turn.

The question whether an order of constitutional validity is appealable to the Supreme Court is one of interpretation. To determine the question there is need to look at the provisions of the Constitution that have a bearing on this issue.

One must, I think, start with section 167(3) of the Constitution which states as follows:

“(3) The Constitutional Court makes the final decision whether an Act of Parliament or conduct of the President or Parliament is constitutional and must confirm any order of constitutional invalidity made by another court before that order has any force.”

Section 169(1) of the Constitution, in turn, provides:

“169 JURISDICTION OF SUPREME COURT

(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.”

This is then followed by section 175 of the Constitution which provides, in relevant part, as follows:

“175 POWERS OF COURTS IN CONSTITUTIONAL MATTERS

(1) Where a court makes an order concerning the constitutional invalidity of any law or any conduct of the President or Parliament, the order has no force unless it is confirmed by the Constitutional Court.

(2)…,. (Not relevant)

(3) Any person with a sufficient interest may appeal or apply, directly to the Constitutional Court to confirm or vary an order concerning constitutional validity by a court in terms of subsection (1).

(4)…,. (Not relevant)

(5) An Act of Parliament or rules of court must provide for the reference to the Constitutional Court of an order concerning constitutional invalidity made in terms of subsection (1) by a court other than the Constitutional Court.”

CONSTITUTIONAL INTERPRETATION

In Mawarire v Mugabe & Ors 2013 (1) ZLR 469, the Constitutional Court of Zimbabwe remarked as follows…,:

“In general, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of statutes.

One must look to the words actually used and deduce what they mean within the context in which they appear: see Hewlett v Minister of Finance 1981 ZLR 571 (S) at 580.

If the words used are precise and unambiguous, then, no more is necessary than to expound them in their natural and ordinary sense: see The Sussex Peerage (1843-1845) 65 RR 11 at 55.

In essence, it is necessary to have regard to the words used and not to depart from their literal and grammatical meaning unless this leads to such an absurdity that the Legislature could not have contemplated it.”

Constitutional interpretation, however, often requires more than simply according words their literal or ordinary grammatical meaning. Various decided cases have also stressed the need for a generous and purposive interpretation to give expression to the underlying values of the Constitution.

In S v Makwanyane 1995 6 BCLR 665 (CC) the Constitutional Court of South Africa also stated, that, the provisions of the Constitution should not be construed in isolation but in their context.

It is permissible to have regard to the purpose and background of the legislation.

The court cited with approval remarks in Jaga v Donges N.O. and Another 1950 (4) SA 653 A…, that:

“Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context.

But, it may be useful to stress two points in relation to the application of this principle.

The first is that 'the context' as here used is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background.”

A further consideration in the interpretation of a statute is that the legislature is presumed not to intend an absurdity, ambiguity, or repugnancy to arise out of the grammatical and ordinary meaning of the words it uses in an enactment.

Therefore, in order to ascertain the true purpose and intent of the legislature, regard is to be had, not only to the literal meaning of the words, but, also to their practical effect.

In this respect, the words in question must be capable of an interpretation that is consistent with the rest of the instrument in which the words appear.

In interpreting the provisions of the Constitution, it is, as stated, necessary to adopt a broad and generous approach and also to ensure that all the relevant provisions on the subject are considered.

As stated in Attorney-General v Dow (1992) BLR 119 (CA)…,:

“…, the very nature of a Constitution requires that a broad and generous approach be adopted in the interpretation of its provisions; that all the relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the Constitution.”

Indeed, section 46 of our Constitution, which deals with the interpretation of Chapter 4, makes it clear, that, such interpretation must pay due regard to all the provisions of the Constitution, and, in particular, the principles and objectives set out in Chapter 2.

Section 331 of the Constitution, in turn, provides that section 46 of the Constitution applies, with any necessary changes, to the interpretation of the rest of the Constitution.

APPEAL AGAINST AN ORDER OF CONSTITUTIONAL VALIDITY – TO WHICH COURT DOES IT LIE

The Constitutional Court Rules 2016, in Rule 21, make provision for the matters that do not require the leave of the court. These include “appeals in terms of section 175(3) of the Constitution, against an order concerning the constitutional validity or invalidity of any law.”

It is apparent that the framers of the Rules considered that even an order of constitutional validity could be the subject of an appeal directly to the Constitutional Court and that leave to appeal was not necessary in such a case.

One must, I think, accept that the ordinary literal and grammatical interpretation of section 175(1) of the Constitution is that an order concerning the Constitutional invalidity of any law has no force or effect unless confirmed by the Constitutional Court. In my view, such an interpretation is in accord with section 169(3) of the Constitution which makes it clear that the Constitutional Court must confirm any order of constitutional invalidity made by another court before that order has any force.

The real question, as already noted, is: which court should hear and determine an appeal against an order of constitutional validity?

The Constitution has not, itself, stated to which court such an appeal shall lie.

It should also be accepted, that, in general, appeals from the High Court lie with the Supreme Court.

Section 169(3) of the Constitution, however, makes it abundantly clear, that, the Constitutional Court makes the final decision whether an Act of Parliament is constitutional.

It does not state that the Constitutional Court only makes the final decision on whether an Act of Parliament is invalid.

The clear intention that comes out from a careful reading of that section is that it is the Constitutional Court that makes the final decision on whether an Act of Parliament is constitutional or not. That means the Constitutional Court makes the final decision whether an Act of Parliament is valid or not.

In the event that an order of constitutional invalidity is made by a lower court, such an order has no effect until the Constitutional Court has confirmed such invalidity.

Section 175(3) of the Constitution provides, that, an interested person may appeal or apply directly to the Constitutional Court to confirm or vary an order concerning constitutional validity by a court in terms of subsection (1).

Whilst the subsection refers to subsection (1), it also refers to “an order concerning constitutional validity” – and not only constitutional invalidity.

An order concerning constitutional validity is exactly that. It is not limited to orders concerning constitutional invalidity only.

Taken together, therefore, sections 169(3) and 175(3) of the Constitution simply mean that an order of constitutional validity or invalidity may be appealed against directly to the Constitutional Court.

Bearing in mind that only the Constitutional Court makes the final decision on the validity of an Act of Parliament, it could not have been the intention of the legislature that an order concerning constitutional validity be the subject of an appeal to the Supreme Court in the normal way for the reason that the Supreme Court does not make the final decision on whether or not an Act of Parliament is valid.

Only the Constitutional Court has that jurisdiction.

In any event, the submission that an appeal against an order of constitutional validity should lie to the Supreme Court and not the Constitutional Court would result in a patent absurdity.

The Supreme Court is an Appellate Court and does not, itself, deal with matters at first instance. It does not itself declare, at first instance, an Act of Parliament to be valid or invalid.

Its powers, in terms of section 22 of the Supreme Court Act, are to confirm, vary, amend, or substitute the order appealed against. If it amends the order of the lower court, that amended order becomes the order of the lower court. Similarly, where it substitutes an order, that order becomes the order of the lower court.

In this case, the High court made an order that the impugned Act, the Presidential Powers (Temporary Measures) Act, was valid and constitutional.

The appellant wants this order set aside and replaced with an order declaring the Presidential Powers (Temporary Measures) Act unconstitutional.

Assuming, arguendo, that the Supreme Court were to agree with the appellant and grant the order substituting the order of the court a quo with one of constitutional invalidity, the Supreme Court would not itself have the power to refer the order to the Constitutional Court for confirmation. The order substituting the judgment of the High Court with one of invalidity would become a judgment of the High Court itself, to be actioned by that court.

The record would have to be returned to the High Court.

The High Court would, thereafter, refer the order of constitutional invalidity to the Constitutional Court for confirmation.

Such a process would be convoluted and unnecessary. An appeal from an order of constitutional validity directly to the Constitutional Court would resolve the issue of validity or invalidity once and for all.

Subsection (3) of section 175 of the Constitution could have been more elegantly worded to obviate possible confusion as to its interpretation.

It is garbled. Its gibberish.

Taking into account their ordinary signification, the words used in the subsection create uncertainty as to the real intention of the Legislature as regards appeals against orders concerning constitutional validity, which, no doubt, would include both orders of constitutional validity and invalidity.

One can understand a situation where a person with sufficient interest applies directly to the Constitutional Court to confirm an order of constitutional invalidity so that the order has force. It is, however, difficult to imagine an interested person appealing directly to the Constitutional Court to confirm an order, presumably made in its favour.

An interested person would, surely, appeal directly to the Constitutional Court to have an order either of constitutional validity or invalidity set aside and substituted with one to the contrary.

In the final analysis, however, it seems to me that the intention of the legislature was that appeals against both constitutional validity and invalidity be determined by the Constitutional Court, which has the jurisdiction to make the final decision in this regard.

Consequently, the appeal noted to this Court is invalid, and, for that reason, the matter ought to be struck off the roll.

For the sake of clarity, it must be stressed, that, it is the order of constitutional validity or invalidity which may be appealed directly to the Constitutional Court for that court “to confirm or vary” the order.

The right to appeal directly to the Constitutional Court does not apply to orders made in respect of other constitutional matters in which the Constitutional Court exercises concurrent jurisdiction with the other courts established under the Constitution.

In view of the above conclusion, it becomes unnecessary to consider the issue whether or not the Presidential Powers (Temporary Measures) Act is constitutional or not.

COSTS

The question whether an appeal lies to the Supreme Court from an order of constitutional validity is one that has hitherto not come before this Court. It is a question that was, at worst, moot.

In the circumstances, an order that each party bears its own costs would appear to me to be the most appropriate.

DISPOSITION

The order of constitutional validity should have been the subject of an appeal directly to the Constitutional Court and not to this Court. The appeal filed with this Court is, therefore, irregular and a nullity. The matter ought therefore to be struck off the roll.

In the result, the following order is made:

The matter is struck off the roll with each party paying its own costs.

View Appeal
HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MANGOTA J

This is an ordinary opposed application which the applicant turned into an urgent one. He did so through a letter which he addressed to the Registrar of this court. The letter is dated 20 February 2018. It reads, in part, as follows:“2. As you will be aware, the application, among ...

“2. As you will be aware, the application, among other things, seeks to challenge the constitutionality of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] amended to Electoral Act Regulations 2016 published in Statutory Instrument 117/2017.

3. As you are aware of, the regulations we (sic) enacted on 15 September 2017 and therefore they will naturally expire by 15 March 2017.

4. In order to avoid a situation where arguments will be academic on aspects of the regulations, and given the fact that both parties have filed heads of argument in this matter, we seek that the matter be determined urgently.”…,.

It is evident, from the foregoing, that, the applicant was rushing against time.

However, the application was, in my view, not urgent. It was more of self-created urgency than it was urgent in the sense which the rules of court contemplate.

The Regulations were published on 15 September 2017. The applicant did not apply, as he should have done, shortly after the publication of the Regulations. He only filed his application some thirty-five (35) days after the event. He filed it on 20 October 2017. He did not explain the cause of the delay.

The form which he employed showed, that, the application should not have been enrolled on applications which fall under Rule 244 of the High Court Rules 1971. It did not have a certificate from a legal practitioner. It did not give reasons for its urgency. It was filed under Form 29 instead of under Form 29B of the rules of this court.

Urgency was, therefore, created by the applicant himself.

He suddenly became aware of the date of the expiration of the Regulations. He, accordingly, requested the Registrar to draw the court's attention to his predicament, and, in the process, he moved the court to hear the application before the period of the expiration of the Regulations.

The applicant used the Regulations as his point of entry into the substance of the application.

The application has less business with the Regulations. It, in fact, has more business with the constitutionality or otherwise of the Presidential Powers (Temporary Measures) Act [Chapter 10.20].

Paragraph 2 of the applicant's letter of 20 February 2018 is relevant in the mentioned regard.

He states, in the same, that, the application seeks to challenge the constitutionality of the Presidential Powers (Temporary Measures) Act [Chapter 10:20]. This, in my view, is the thrust of the application.

The applicant describes himself as a Zimbabwean scholar, businessman, and human rights activist. He says he has a direct interest in issues which relate to the rule of law, constitutionalism, democracy, and Zimbabwe's electoral process.

I mention in passing, that, human rights activism and constitutionalism took root in Zimbabwe in the late 1980s and early 1990s. Many non-governmental organisations sprouted through the length and breadth of the country. Activists who fell into, and continue to remain in, this very important field of work brought the Government of the day to account for its conduct in such areas as the due observance of the rule of law, people's fundamental rights, democracy, and elections.

Persons of the mind of the applicant remain a thorn in the eyes of Government.

They made, and continue to make, it to remain on course. They criticized, and continue to criticize, the conduct of Ministers of Government and their Ministries. They, in short, remain a constant cause of concern to the three pillars of the State: namely, the executive, the judiciary, and the legislature. They worried, and continue to worry, the politicians especially those whose functions fall under the executive organ of the State.

Human rights activists are, therefore, a sine qua non aspect of any democratic order.

They make every effort to point out, as well as speak against, such deviant behaviour as corruption, inertia, unconstitutionalism and/or the absence of democratic principles. Their continued existence in a society is a most welcome development which governments the world over are encouraged to embrace and not ignore.

When such activists, as the applicant, request members of the executive to jump, the ideal situation is that the latter should not question why they are being asked to jump. The only question which they can, and should, ask is how high they should jump.

It is, therefore, in the context of the above stated matters, that this application would be considered as well as determined.

The applicant, it has already been stated, falls into the category of the above described group of persons. He lays stiff criticism on the continued existence of the Presidential Powers (Temporary Measures) Act.

He insists that the Presidential Powers (Temporary Measures) Act serves no meaningful purpose in an independent and democratic Zimbabwe. He advocates the strengthening, as well as the observance, of constitutional provisions which, he says, protect and advance the people's fundamental rights and freedoms. He lays emphasis on matters which relate to the rule of law, democracy, constitutionalism, and/or the doctrine of separation of powers amongst the three pillars of the State.

The thrust of the applicant's argument is that the Presidential Powers (Temporary Measures) Act is ultra vires the Constitution of Zimbabwe.

He submits that the President has abused the Presidential Powers (Temporary Measures) Act as and when he pleased.

The Presidential Powers (Temporary Measures) Act, he argues, allows the President to make law by decree as opposed to having the same made by Parliament which, in terms of the Constitution, is the law–making authority in Zimbabwe.

He insists that the Presidential Powers (Temporary Measures) Act must be struck off the country's statute books because its provisions are not consistent with those of the Constitution of Zimbabwe.

The application which is before me is unique.

It is unique in the sense, that, it is the first of its kind to test the constitutionality or otherwise of the Presidential Powers (Temporary Measures) Act after the coming into existence of the Constitution of Zimbabwe Amendment [No.20] Act of 2013.

The Presidential Powers (Temporary Measures) Act was promulgated in 1986. It survived all applications, and they were many, of the present nature. It did so largely because of some provision of the 1979 Constitution which provision ensured its continued existence in the country's statute books. That provision, it was argued, does not exist in the new Constitution which replaced the old one.

It follows, from the foregoing, that, case authorities which dealt with the continued existence or otherwise of the Presidential Powers (Temporary Measures) Act will not be of much assistance towards the determination of this application. The decisions were, no doubt, anchored upon the provision which ensured the retention of the Presidential Powers (Temporary Measures) Act.

The current application will, in the result, be decided on what, in my view, is the correct interpretation of the new Constitutional provisions.

It will be decided on the basis of provisions which define the role and functions of such State actors as the President, Parliament, and the Judiciary of an independent and democratic society such as the one in which we live.

I have already stated, in some part of this judgment, that, the applicant used the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017, as his point of entry into the application.

He criticizes the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017 which the President published on 15 September 2017. He says these are null, void, and of no force or effect.

He submits, that, only Parliament can make law in Zimbabwe. He insists that the President cannot do so.

He criticizes section 2(2) of the Presidential Powers (Temporary Measures) Act which he says purports to give to the President power to change, or over-ride, an Act of Parliament.

He states, that, the President's conduct, of publicizing the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017 is ultra vires the Act. He, therefore, moved the court to declare:

(a) The Presidential Powers (Temporary Measures) Act to be ultra vires the Constitution of Zimbabwe; or alternatively

(b) Section 2(2) of the Presidential Powers (Temporary Measures) Act a nullity; and

(c) The President's actions, of publishing the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017 to be ultra vires the Act.

He, in short, moved the court to make the declarations and set aside the Presidential Powers (Temporary Measures) Act as well as the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117/2017 which flow from the same.

The respondent is the President of the Republic of Zimbabwe. He opposes the application.

He states, that, the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117/2017, which he published, were necessitated by the biometric voter registration exercise which the country adopted in preparation for the July/August 2018 election. He says everyone who was on the old voters roll was expected to register through the newly adopted voter registration system.

He avers that he did not act outside the law.

Section 2(2) of the Presidential Powers (Temporary Measures) Act, he says, confers authority upon him to publish the Regulations as he did.

He submits that he did not go beyond the powers which the Constitution of Zimbabwe confers upon him. He drew my attention to his executive functions which are contained in section 110(1) of the Constitution.

He denies that his conduct, in publishing the Regulations, violated the Presidential Powers (Temporary Measures) Act or the Constitution.

He submits that, under the common law, he has always enjoyed prerogative powers which allowed him to make temporary legislation in urgent situations. He states that the current Constitution did not abolish his prerogative powers.

He insists that the Presidential Powers (Temporary Measures) Act conferred power on him to make law in the general public interest. He avers that the Act recognizes Parliament's law-making function. He denies that the Act confers sweeping powers upon him.

He moved the court to dismiss the application with costs.

The application was well-researched, well-argued, as well as presented.

It drew my attention to a number of important case authorities which, in a large measure, addressed the concerns of the applicant.

It cited six cases of the South African Constitutional Court, four case authorities from the courts of the United States of America, four cases which the Privy Council decided, and two case authorities which the Supreme Court of India decided, among others.

The cited cases brought to the fore such pertinent matters as the supremacy of a country's Constitution, the doctrine of separation of powers, rule of law, and issues which pertain to procedural and/or substantive legality by such State actors as the respondent in casu.

The cases were, no doubt, rich, informative, thoroughly persuasive, as well as educative.

That having have been said, sight must not, however, be lost of the fact that each case to which the applicant drew my attention was decided in context. The decision was not plucked from thin air and placed on paper. It was based on the country's Constitution and other pieces of legislation which were relevant to the case. The court was, in each case, interpreting the law as it existed in its jurisdiction as measured against the facts of the matter which was then before it.

I mention, at this stage, that, the facts of the cases to which the applicant drew my attention remain unknown to me. I also state that the Constitutions and other pieces of legislation which influenced the decision of the court in each cited case were not availed to me. My attention was only drawn to the important dicta which the courts pronounced in each case.

The above stated matters make it hard, if not impossible, for me to go along with the decided case authorities. That is so notwithstanding their persuasive value. I cannot, in other words, conclude that what the court in America, or India, or South Africa pronounced should apply to the case which is before me.

Judicial work does not work in a vacuum. It operates upon a set of rules, chief among which is a country's Constitution and any legislation which is relevant to a case which is being decided. It interprets the law as it exists in a country's Constitution and other law. It interprets those against a certain set of stated matters.

The current application will, therefore, be decided in the context of the Constitution of Zimbabwe Amendment (No.20) Act of 2013 as read with the Presidential Powers (Temporary Measures) Act [Chapter 10:20] [“the Act”] and matters which relate to the two pieces of legislation.

Amongst such matters is the birth of a new voters roll which the President made mention of in his opposition to the application.

The President made law when he published the 2017 Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117/2017. He rested his law-making conduct on section 2 of the Presidential Powers (Temporary Measures) Act.

The section allows him to make law, albeit of a temporary nature, in certain circumstances of urgency.

The section reads, in the relevant portion, as follows:

“2. Making of Urgent Regulations

(1) When it appears to the President that:

(a) A situation has arisen or is likely to arise which needs to be dealt with urgently in the interests of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest; and

(b) The situation cannot adequately be dealt with in terms of any other law; and

(c) Because of the urgency, it is inexpedient to await the passage through Parliament of an Act dealing with the situation; then, subject to this Constitution and this Act, the President may make such regulations as he considers will deal with the situation.”

It is evident, from the above-cited portion of the section, that, the President's discretion to make Regulations is only exercisable by him in the interests of the people of Zimbabwe as a whole. He does not exercise the discretion in the interests of a section of the population of the country. The use of the word 'public' which appears in the various facets for which the discretion is exercised says it all.

The President did not publish the Regulations for the fun of it.

He did not, as the applicant alleges, make an effort to abuse the law making function which the Presidential Powers (Temporary Measures) Act confers upon him. He states, and correctly so, that the advent of the biometric voter registration exercise which Zimbabwe contemplated to put into place made it necessary for him to act as he did.

His contention, with which l agree, was that the advent of a new voters roll could not properly be covered by a law which Parliament would have introduced, debated, and passed into law without interfering with the times-lines of the forthcoming 2018 harmonised election. It was, according to him, out of necessity and urgency that he published the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017.

He insists, and l agree, that the preparation of the new voters roll, as measured against the July/ August 2018 election, was not an event but process.

The background of the matter which relates to the publication of the Regulations is relevant.

I take judicial notice of the fact, that, for a considerable length of time in the past, the people of Zimbabwe urged Government to:

(i) Do away with the old voters roll which they said contained a lot of inconsistencies as well as unnecessary features;

(ii) Replace it with a new voters roll which was more credible than the old one. A voters roll which was credible in terms of voter population, its density in a particular area, and detail;

(iii) Remove the voters roll from the office of the Registrar-General and place it within the domain of the Zimbabwe Electoral Commission.

It is my view that the applicant, and others of a like mind, were at the forefront of the stated matter.

He made a statement to an equal effect in his founding affidavit. He and other human rights activists urged and encouraged Government to address their abovementioned concerns. They insisted that its attention to the same would render the forthcoming July/August 2018 election more credible than otherwise.

The President, as Head of State and Government, heeded the call of the people of Zimbabwe.

He remained alive to the fact, that, whatever was to be achieved in response to the people's concerns was to be supported by some law. He, therefore, published the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017 which, in his view, would take the place of the law which Parliament was constrained to make within the time which preceded the election.

That the President complied with the procedural legality of the Presidential Powers (Temporary Measures) Act requires little, if any, debate.

He, as the applicant stated, published the Regulations. He published them on 15 September 2017. He did so after he had notified the people of Zimbabwe of his intention to publish the same. He, in the mentioned regard, made substantial compliance with section 3 of the Presidential Powers (Temporary Measures) Act.

It cannot, in view of the above stated matter, be suggested that the President's conduct, in publishing the Regulations, was ultra vires the Presidential Powers (Temporary Measures) Act. He published them in terms of an existing law. The law conferred upon him the power to act as he did. He followed the procedural aspects of that law to the letter and spirit.

His conduct was above reproach. It was, and it remains, valid.

I have already stated, in the foregoing portions of this judgment, that, the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017 are not the subject of this application.

The subject, from the perspective of the applicant, is the Presidential Powers (Temporary Measures) Act itself.

If the Regulations were the issue, the applicant would have invoked section 3(1)(b) of the Presidential Powers (Temporary Measures) Act as read with subsection (2) of the same. He would, in other words, have objected to the publication of the Regulations when the President made his intention known to him, and others, through the Government Gazette Extraordinary, Volume XCV No.61.

The fact that the applicant did not object to the publication of the Regulations, at the time that the President's intention appeared in the Gazette, shows his real intention.

The intention is that he wanted to use the Regulations, after they had been published, as his entry point into criticizing the substance of the Presidential Powers (Temporary Measures) Act.

The observed matter, therefore, takes the discourse to the substantive legality or otherwise of the Presidential Powers (Temporary Measures) Act.

Whether or not the Presidential Powers (Temporary Measures) Act is substantively legal depends on the provisions, if any, of the Constitution which relate to it. This, in a nutshell, refers to the constitutionality or otherwise of the Presidential Powers (Temporary Measures) Act.

The question which we should ask and answer centres on whether or not the law-making function of the President, as conferred upon him by the Presidential Powers (Temporary Measures) Act violates the Constitution of Zimbabwe.

The same question, put differently, would read: did Parliament act within or without the Constitution when it conferred some of its law-making function in the Presidential Powers (Temporary Measures) Act to the President?

Succinctly and boldly stated, the same question reads: Is the Presidential Powers (Temporary Measures) Act in compliance with the Constitution of Zimbabwe (No.20) Act of 2013 (“the Constitution”)?

The legislative authority of Zimbabwe is reposed in the Legislature. This comprises Parliament and the President acting in accordance with this Chapter.

Sections 116, 117 and subsections (2), (3), 5(a), 6(a) and (b), 7(a), 8(a) and (b), (9) and (10) of section 131 of the Constitution of Zimbabwe spell out the complimentary roles which Parliament and the President play in Zimbabwe's law-making process. They check and balance each other's work. The one cannot make law without the input of the other and vice-versa.

The fact that the President can, in terms of section 131(8)(b) of the Constitution as read with subsection (9) of the section, refer a Bill to the Constitutional Court for advice on its constitutionality shows that the judiciary is, to some extent, involved in the law-making process. It ensures that all Bills which Parliament and the President pass into law must comply with the Constitution of Zimbabwe.

The checks and balances which exist in section 131 of the Constitution also exist in section 4 of the Presidential Powers (Temporary Measures) Act.

The President does not, therefore, have sweeping powers as the applicant alleges.

The Regulations which he makes are, as of necessity, subject to Parliamentary review and/or scrutiny. It is within the domain of Parliament to resolve that any Regulations which have been laid before it be either amended or even repealed. Once such a resolution has been made, the President has no option but to comply with the resolution of Parliament.

It follows from the foregoing, therefore, that, complete separation of powers of the three organs of the State, i.e the Executive, the Legislature and the Judiciary, is a myth. It is not achievable in the context of the Constitution of Zimbabwe.

I, in the mentioned regard, associate myself fully with the views which the Constitutional Court of South Africa was pleased to express in Ex parte Chairperson of the Constitutional Assembly: In Re: Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744. It stated…, as follows:

“There is, however, no universal model of separation of powers, and, in democratic systems of government in which checks and balances result in the imposition of restraints by one branch of government upon another, there is no separation that is absolute….,.

The principle of separation of powers, on the one hand, recognizes the functional independence of branches of government. On the other hand, the principle of checks and balances focuses on the desirability of ensuring that the constitutional order, as a totality, prevents the branches of government from usurping power from one another. In this sense, it anticipates the necessary and unavoidable intrusion of one branch into the terrain of another. No constitutional scheme can reflect a complete separation of powers: The scheme is always one of partial separation.”…,.

The President's necessary and unavoidable intrusion into the function of Parliament is evident from a reading of section 86 of the Constitution. The section deals with the limitation of the people of Zimbabwe's fundamental rights and freedoms. It reads, in part, as follows:

“86 Limitation of Rights and Freedoms

(1) The fundamental rights and freedoms set out in this chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons.

(2) The fundamental rights and freedoms set out in this chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including -

(a)…,.;

(b) The purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town, planning or the general public interest….,.”…,.

The question which begs the answer is: who/which authority has the power to limit the people of Zimbabwe's fundamental rights and freedoms when any of the matters which are stated in section 86(2)(b) of the Constitution has arisen or is about to occur?

The applicant does not mention the person or authority who/which, in terms of a law of general application, can limit the people's rights and freedoms.

The limitation, no doubt, has far-reaching consequences. It relates to matters which, if left unattended, adversely affect a considerable portion of Zimbabwe's population - if not the people of Zimbabwe as a whole.

The President says the Presidential Powers (Temporary Measures) Act and the Constitution confers upon him that power to deal with any of the matters which are stated in section 86(2)(b) of the Constitution when such have arisen or are about to occur.

He states, in casu, that, it was in the interest of the general public of Zimbabwe that he made the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017.

That the general public interest was real as opposed to having been fanciful requires no debate. That was so, given the people's outcry for a new voters roll which had to replace the old one with which they were not satisfied.

Parliament could not make law within the time which remained to deal with the situation which was then at hand. Whatever process which pertained to the introduction into the country of a new voters roll required some law to be in place before it could be embarked upon.

The President, therefore, made that law in line with his law-making function as was provided for in the Presidential Powers (Temporary Measures) Act and the Constitution.

The verbatim repetition of section 86(2)(b) of the Constitution in section 2(1)(a) of the Presidential Powers (Temporary Measures) Act confirms the Constitution's recognition of the Presidential Powers (Temporary Measures) Act.

The stated matter confirms further, that, it is only the President who has the power to limit, through the Presidential Powers (Temporary Measures) Act, the people of Zimbabwe's fundamental rights and freedoms which are contained in the Constitution. Those can be limited when certain undesirable occurrences have arisen or are about to arise.

The President limits them in the interests of Zimbabwe's public good.

The drafters of the Constitution were, in my view, alive to the existence of the Presidential Powers (Temporary Measures) Act.

They crafted section 134 of the Constitution to confer power on Ministers of Government and such statutory bodies as the Zimbabwe Electoral Commission to make subsidiary legislation. They state, in the section, that, the legislation which these make should not go outside the enabling Act which establishes their law-making function.

Because the President's law-making power exists in the Presidential Powers (Temporary Measures) Act, the drafters of the Constitution did not include it in section 134 of the Constitution.

Because his powers, as stated in section 86(2)(b) of the Constitution, relate to limitation of the people of Zimbabwe's fundamental rights and freedoms in certain unforeseen circumstances, he could not effectively exercise the same under section 134 of the Constitution.

Paragraphs (b), (c) and (d) of the section would have disenabled him from effectively dealing with situations of disastrous consequences which he has to address in his capacity of Head of State and Government when such arise.

It was for the mentioned reasons, if for no other, that the Presidential Powers (Temporary Measures) Act conferred upon him power to deal with any situation which, in his view, would work against Zimbabwe's public interest in an adverse manner.

Section 5 of the Presidential Powers (Temporary Measures) Act accords to him the leeway to deal with the situation which would have arisen or is about to occur in a very effective as well as conclusive manner.

It allows him to override an Act of Parliament where such is necessary in the interests of the public good of Zimbabwe.

It makes little, if any, sense for the applicant to suggest that Ministers, whom the President appoints into cabinet, can make subsidiary legislations under section 134 of the Constitution and the appointing authority himself cannot.

The applicant's reading of section 134 of the Constitution is misplaced.

He overlooks the fact, that, its application relates to the making of law by Ministers of Government and statutory bodies. He remains oblivious to the fact, that, the President's law-making function is not covered under the section but under the Presidential Powers (Temporary Measures) Act and the Constitution.

The President states, and I agree, that, section 110(1) of the Constitution confers upon him the power to make law. It reads:

“(1) The President has the powers conferred by this Constitution and by any Act of Parliament or other law including those necessary to exercise the functions of Head of State.”…,.

It is his status, as Head of State and Government, which allows him to limit the people of Zimbabwe's fundamental rights and freedoms when a need to do so arises or is about to occur.

He will be complying with his duties as the President of Zimbabwe in the mentioned regard.

He will be, as is stated in section 90(2)(a) of the Constitution, promoting unity and peace for the benefit and well-being of the people of Zimbabwe.

It is evident, from the foregoing, that:

(a) The conduct of the President was not ultra vires the Presidential Powers (Temporary Measures) Act;

(b) The Regulations which he published were procedurally and substantively compliant with the law under which they were made; and

(c) The Presidential Powers (Temporary Measures) Act is not ultra-vires the Constitution of Zimbabwe.

The applicant, in my view, confused the President's ordinary law-making function, as it is stated in Chapter 6 of the Constitution, with his law making function as it exists in the Presidential Powers (Temporary Measures) Act as read with sections 86 and 110 of the Constitution.

He sought to do away with the President's law-making power as it is contained in the Presidential Powers (Temporary Measures) Act.

The Presidential Powers (Temporary Measures) Act, it has already been observed, is in complete harmony with the Constitution.

The application constituted an interesting exercise of the mind. It was more academic than it was real. It was devoid of merit. It cannot, therefore, stand.

The applicant did not prove his case on a balance of probabilities. The application is, accordingly, dismissed with costs.

HMT58-19 : EVANS MULAUZI vs RUSAPE TOWN COUNCIL and SOLOMON GABAZA and TARISAI MANZONZO
Ruled By: MWAYERA J and MUZENDA J

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SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

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HH311-18 : SERGEANT KHAUYEZA (F048677J) vs THE TRIAL OFFICER (Superintendent J. Mandizha) and THE COMMISSIONER GENERAL OF POLICE
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SC66-20 : BREASTPLATE SERVICE (PRIVATE) LIMITED vs CAMBRIA AFRICA PLC
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HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA
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HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION
Ruled By: KUDYA J

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: TSANGA J

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
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SC140-21 : MBCA BANK (PRIVATE) LIMITED (Now known as Nedbank Zimbabwe Limited) vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GUVAVA JA, UCHENA JA and MAKONI JA

HH412-21 : ZIMBABWE LEAF TOBACCO vs KEVIN COOKE
Ruled By: DUBE J

Appealed
SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

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HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MANGOTA J

HMT58-19 : EVANS MULAUZI vs RUSAPE TOWN COUNCIL and SOLOMON GABAZA and TARISAI MANZONZO
Ruled By: MWAYERA J and MUZENDA J

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Rules of Construction or Interpretation re: Subsidiary and Delegated Legislation

SC00-89 : ART CORPORATION LTD vs MOYANA Ruled By: GUBBAY JA, McNALLY JA and MANYARARA JA

Appealed SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

View Appeal SC54-18 : CITY OF HARARE vs FARAI MUSHORIWA Ruled By: PATEL JA, UCHENA JA and ZIYAMBI AJA

HB151-16 : CHRISTOPER MABHUNU vs THE COMMISSIONER GENERAL OF POLICE Ruled By: MAKONESE J

View Appeal HH311-18 : SERGEANT KHAUYEZA (F048677J) vs THE TRIAL OFFICER (Superintendent J. Mandizha) and THE COMMISSIONER GENERAL OF POLICE Ruled By: CHIWESHE JP and CHAREWA J

Appealed SC66-20 : BREASTPLATE SERVICE (PRIVATE) LIMITED vs CAMBRIA AFRICA PLC Ruled By: GWAUNZA DCJ, PATEL JA and MAKONI JA

HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA Ruled By: KUDYA J

HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION Ruled By: KUDYA J

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND Ruled By: TSANGA J

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION Ruled By: GOWORA JA, PATEL JA and UCHENA JA

SC140-21 : MBCA BANK (PRIVATE) LIMITED (Now known as Nedbank Zimbabwe Limited) vs ZIMBABWE REVENUE AUTHORITY Ruled By: GUVAVA JA, UCHENA JA and MAKONI JA

HH412-21 : ZIMBABWE LEAF TOBACCO vs KEVIN COOKE Ruled By: DUBE J

Appealed SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

View Appeal HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE Ruled By: MANGOTA J

HMT58-19 : EVANS MULAUZI vs RUSAPE TOWN COUNCIL and SOLOMON GABAZA and TARISAI MANZONZO Ruled By: MWAYERA J and MUZENDA J

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SC00-89 : ART CORPORATION LTD vs MOYANA
Ruled By: GUBBAY JA, McNALLY JA and MANYARARA JA

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

View Appeal
SC54-18 : CITY OF HARARE vs FARAI MUSHORIWA
Ruled By: PATEL JA, UCHENA JA and ZIYAMBI AJA

HB151-16 : CHRISTOPER MABHUNU vs THE COMMISSIONER GENERAL OF POLICE
Ruled By: MAKONESE J

View Appeal
HH311-18 : SERGEANT KHAUYEZA (F048677J) vs THE TRIAL OFFICER (Superintendent J. Mandizha) and THE COMMISSIONER GENERAL OF POLICE
Ruled By: CHIWESHE JP and CHAREWA J

Appealed
SC66-20 : BREASTPLATE SERVICE (PRIVATE) LIMITED vs CAMBRIA AFRICA PLC
Ruled By: GWAUNZA DCJ, PATEL JA and MAKONI JA

HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA
Ruled By: KUDYA J

HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION
Ruled By: KUDYA J

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: TSANGA J

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
Ruled By: GOWORA JA, PATEL JA and UCHENA JA

SC140-21 : MBCA BANK (PRIVATE) LIMITED (Now known as Nedbank Zimbabwe Limited) vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GUVAVA JA, UCHENA JA and MAKONI JA

HH412-21 : ZIMBABWE LEAF TOBACCO vs KEVIN COOKE
Ruled By: DUBE J

Appealed
SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

View Appeal
HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MANGOTA J

HMT58-19 : EVANS MULAUZI vs RUSAPE TOWN COUNCIL and SOLOMON GABAZA and TARISAI MANZONZO
Ruled By: MWAYERA J and MUZENDA J