Review re: Constitutional Proceedings

Appealed
CC11-18 : LYTTON INVESTMENTS (PRIVATE) LIMITED vs STANDARD CHARTERED BANK ZIMBABWE LIMITED and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ

The Court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied; (i) The first is that the applicant must state facts or grounds, in the founding affidavit, the consideration of which would lead to the finding that it is in ...

The Court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice.

Two factors have to be satisfied;

(i) The first is that the applicant must state facts or grounds, in the founding affidavit, the consideration of which would lead to the finding that it is in the interests of justice to have the constitutional matter placed before the Court directly instead of it being heard and determined by a lower court with concurrent jurisdiction.

(ii) The second factor is that the applicant must set out, in the founding affidavit, facts or grounds that show that the main application has prospects of success should direct access be granted.

The facts must show that there is a real likelihood of the Court finding that the Supreme Court infringed the applicant's right to judicial protection. The Supreme Court must have failed to act in accordance with the requirements of the law governing the proceedings or prescribing the rights and obligations subject to determination. The failure to act lawfully would have to be shown to have disabled the court from making a decision on the non-constitutional issue.

The theory of constitutional review of a decision of the Supreme Court in a case involving a non-constitutional matter is based on the principle of loss of rights in such proceedings because of the court's failure to act in terms of the law thereby producing an irrational decision. There must, therefore, be proof of the failure to comply with the law.

The failure must be shown to have produced an arbitrary decision.

Arbitrariness and inconsistencies threaten the claim to judicial authority. The remedy under section 85(1) of the Constitution is not for the protection of fundamental rights and freedoms in the abstract. Concrete review requires that there be clear and sufficient evidence of the facts on the basis of which allegations of infringements of fundamental rights or freedoms are made.

The Court has to take into account the comity due to the Supreme Court by virtue of its status in the hierarchy of courts in the legal system. It would not be in the interests of justice to have the constitutional question, whether the decision of the Supreme Court in a case involving a non-constitutional matter has infringed fundamental rights of an applicant, determined by the High Court.

The Supreme Court exercises appellate jurisdiction over decisions of the High Court.

On the other hand, the Court hears and determines constitutional matters only and is the highest court on those matters. The remedy provided for under section 85(1) of the Constitution demonstrates the versatility of the system for the protection of fundamental rights and freedoms as it allows for both centralised and diffused constitutional review.

It would be in the interests of justice to have the question whether the decision of the Supreme Court has violated the fundamental rights of the applicant to equal protection of the law and to a fair hearing heard directly by the Court as a court of first and final instance.

It would not be in the interests of justice to grant direct access to the Court when the matter has no prospects of success. Consideration of the grounds on which the application for direct access and the intended substantive application are based leads to the finding that the main application would have no prospects of success if direct access was granted.

There is no allegation of breach of the principle of fairness, which is the essence of judicial protection of the right to equal protection of the law. The founding affidavit does not say that the Supreme Court failed to determine the non-constitutional matter because it failed to take into account factors it was required to consider by the law governing the conduct of the proceedings and determination of the non-constitutional matter. There is no mention of the law that governed the conduct of the proceedings or prescribed the rights and obligations in dispute.

Compliance with the requirements constituting the objective standard applicable in similar cases is the basis of the guarantee of the right to equal protection of the law the applicant would have been entitled to enjoy.

The case sought to be brought directly to the Court is that the Supreme Court reached a wrong decision on the non-Constitutional matter.

That the applicant seeks to attack the validity of the decision of the Supreme Court on the ground that it is “outrageously wrong” is clear from the founding affidavits. The relief sought is an order setting aside the decision which upheld the decision of the High Court and no other.

It is necessary to look closely at the legal effect of such an approach in the context of deciding whether there are prospects of success, in the main application, if direct access was granted. In deciding whether the case presented is reviewable, the Court takes into account the law that declares a decision of the Supreme Court, on a non-constitutional matter, final and un-appealable.

A litigant who approaches the Court, in terms of section 85(1) of the Constitution, alleging an infringement of a fundamental right or freedom by the Supreme Court would have to allege and prove that, in the exercise of its jurisdiction, the Court would not be involved in the examination and determination of the non-constitutional issue which was before that court on appeal.

The determination of such an issue is reserved exclusively for the Supreme Court by the Constitution.

Section 169(1) of the Constitution, which covers the jurisdiction of the Supreme Court, provides:

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

The principle that the Supreme Court is the final court in all non-constitutional matters is given effect to by section 26 of the Supreme Court Act [Chapter 7:13]. The section provides:

“26 Finality of decisions of Supreme Court

(1) There shall be no appeal from any judgment or order of the Supreme Court.

(2) The Supreme Court shall not be bound by any of its own judgments, rulings or opinions nor by those of any of its predecessors.”

The principles that emerge from section 169(1) of the Constitution, as read with section 26 of the Supreme Court Act [Chapter 7:13] are clear.

A decision of the Supreme Court, on any non-constitutional matter in an appeal is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling, or opinion on a non constitutional matter.

The onus is on the applicant to allege and prove that the decision in question is not a decision on the non-Constitutional matter.

The applicant misconceived the effect of the principle of finality of decisions of the Supreme Court on non-constitutional matters enshrined in section 169(1) of the Constitution, as read with section 26(1) of the Supreme Court Act [Chapter 7:13]. It believed that the purpose of the principle was to protect “correct” decisions of the Supreme Court. According to the applicant, “wrong” or “outrageously wrong” decisions of the Supreme Court are an infringement of the fundamental right to equal protection of the law.

The contention is that section 85(1) of the Constitution provides an aggrieved litigant with the remedy for the redress of such an infringement.

The reasoning is flawed because it starts from the premise that there can be “correct” and “wrong” decisions of the Supreme Court on non-constitutional matters.

What is clear is that the purpose of the principle of finality of decisions of the Supreme Court on all non-constitutional matters is to bring to an end the litigation on the non-constitutional matters. A decision of the Supreme Court on a non-constitutional matter is part of the litigation process. The decision is therefore correct because it is final. It is not final because it is correct.

The correctness of the decision, at law, is determined by the legal status of finality. The question of the wrongness of the decision would not arise. There cannot be a wrong decision of the Supreme Court on a non-constitutional matter. A decision declared by the Constitution to be final and binding cannot, at the same time, be open to challenge on the ground that it violates the fundamental right to the equal protection of the law.

The law of finality of decisions of the Supreme Court, on non-constitutional matters, applies to all litigants equally, whether they become winners or losers in the litigation process. The declaration of finality of a decision of the Supreme Court, on a non-constitutional matter, is itself a protection of the law. Once a decision is as a matter of fact a decision of the Supreme Court, on a non-constitutional matter, no inquiry into its legal effect can arise. There would be no proof of infringement of a fundamental right or freedom as a juristic fact. It is enough for the purposes of the protection of finality and therefore correctness that the decision is on a non-constitutional matter.

In the absence of a higher court to say so, a decision of the Supreme Court, on a non-constitutional matter, cannot be said to be wrong. In Williams and Anor v Msipha and Ors 2010 (2) ZLR 552 (S)…, the Supreme Court said:

“A wrong judicial decision does not violate the fundamental right to the protection of the law guaranteed to a litigant because an appeal procedure is usually available as a remedy for the correction of the decision. Where there is no appeal procedure there cannot be said to be a wrong judicial decision because only an Appeal Court has the right to say that a judicial decision is wrong.

See Maharaj v AG of Trinidad & Tobago (No.2) (PC) [1979] AC 385 at 399 D–H; Boordman v Attorney General [1996] 2 LRC 196 at 205i–206b.”…,.

In Lane and Fey NNO v Dabelstein and Ors 2001 (2) SA 1187 (CC) [4], the Constitutional Court of South Africa held:

“Even if the [Supreme Court of Appeal] erred in its assessment of the facts, that would not constitute the denial of the ['right to a fair trial and to fair justice']. The Constitution does not and could hardly ensure that litigants are protected against wrong decisions. On the assumption that section 34 of the Constitution does indeed embrace that right, it would be the fairness and not the correctness of the court proceedings to which litigants would be entitled.”

It is at the stage of the consideration of the application for leave for direct access that the Court or Judge has to determine the question whether the validity of the decision of the Supreme Court is being raised as a genuine constitutional issue.

A principle has developed out of the consideration of applications seeking to attack final decisions of the Supreme Court on the ground that they violate the right to equal protection of the law. The applications have invariably been dismissed on the ground that they are appeals disguised as applications for constitutional review. In that way, the integrity of the jurisdiction of the Court, on constitutional matters, and that of the Supreme Court, on non-constitutional matters, is preserved.

In Prosecutor General Zimbabwe v Telecel Zimbabwe (Pvt) Ltd 2015 (2) ZLR 422 (CC), GWAUNZA JCC…, said at 428C-F:

“The court thus effectively affirmed the finality of the Supreme Court judgment on a matter that was not determined by that court as a constitutional issue. By that token, the matter was not one that fell into the category of those over which the Constitutional Court had jurisdiction. As already stated, these are matters that are properly brought to the Constitutional Court. I find the authority cited above to be eminently apposite in casu. This is because while the applicant did not specifically state so in his application, in reality, the matter was an appeal brought to this Court under the guise of an application. This is abundantly evident from the relief that is outlined in his draft order. It is even more evident from his summary of the background to the intended application, as already indicated. He indicated that he wished to approach this Court 'for an order setting aside the Supreme Court judgment on the basis that it interferes with the independence of his office, and, as such, it is ultra vires provisions of s260 of the Constitution of Zimbabwe…,.'

Like in the case referred to above, the issue that I have underlined, and others that the applicant sought to bring before this Court, similarly 'arose' after the Supreme Court judgment was pronounced. They could not have been, and in fact were not, raised before the Supreme Court, and, needless to say, not determined by it as constitutional matters. The issues therefore did not meet the requirement for inclusion into 'matters over which the Constitutional Court has jurisdiction.'

On the basis of the authority cited above, and upon a proper interpretation of the relevant provisions alluded to in this context, the judgment of the Supreme Court on these matters, which the applicant sought to have reversed, was final and definitive. It is a decision that may not be interfered with by this Court.”…,.

See also Matamisa v Mutare City Council (Attorney-General Intervening) 1998 (2) ZLR 439 (S)…,.

In Prosecutor General Zimbabwe v Telecel Zimbabwe (Pvt) Ltd 2015 (2) ZLR 422 (CC), the Court emphasised the need for parties wishing to apply to it directly for appropriate relief to do so upon establishing a proper basis for such an approach. That would insulate the Court against a potential flood of undeserving cases at the instance of parties who may be disgruntled with decisions of lower courts - including the Supreme Court.

As long as the remedy for the perceived violation of the right to equal protection of the law involves the Court in considering the non-constitutional matters as the means of vindicating that right, the Court would be doing what it has no power to do. An un-authorised means cannot be justified by a legitimate end. It matters not that the remedy is presented in the form of a review procedure under section 85(1) of the Constitution. It is, in substance, an appeal disguised as an application for constitutional review.

Counsel for the first respondent submitted that this case is different from a situation where the Supreme Court, in its conduct of an appeal, as opposed to the judgment it renders at the end, commits a violation of the Constitution. He gave, as an example, a case where the Supreme Court decided that it would not hear one party's legal practitioner on account of his race. In such a case, there would be failure of jurisdiction. The decision would not be a result of an objective assessment of the facts in issue. It would flow directly from the violation of the party's fundamental rights not to be discriminated against and to equal protection of the law.

The decision in the case referred to by counsel for the first respondent would be a means of satisfying the personal racial prejudices of the members of the Supreme Court who would have substituted them for the purposes of the Constitution. The decision would be untenable and therefore objectively arbitrary. In other words, there would be no judicial decision on the non-constitutional matter.

A decision which is shown not to be on a non-constitutional matter when it should be would not be in conformity with the Constitution.

In the founding affidavits supporting the application for direct access and the main application, the applicant accepts that the judgment appealed against from the High Court was to the effect that a party with a case pending in a court cannot make an application for leave to institute a class action on the same cause without withdrawing the pending case.

The question whether a party in a case pending in a court can apply for leave to institute a class action on the same cause without withdrawing the pending case was the only issue for determination. It was a question of law. The High Court agreed with the respondent on the question. It dismissed the application. The appeal to the Supreme Court was on the ground that the High Court misdirected itself on the question of law. After hearing oral submissions on behalf of both parties, the Supreme Court dismissed the appeal and upheld the decision of the High Court.

To say that the decision of the Supreme Court is “outrageously wrong” is a clever way of avoiding having to say that the Supreme Court misdirected itself. It is a subjective allegation that lacks merit. A thing is not necessarily what it is as per the words used to describe it. It is what it is as per its substance. The decision, the validity of which the applicant wants brought directly for determination by the Court on the allegation that it has infringed its fundamental rights to equal protection of the law and to a fair hearing, is the same decision that dismissed the appeal and upheld the judgment of the High Court. In other words, the Supreme Court reached the same decision on the non-constitutional issue as the High Court.

It is clear that had the Supreme Court found in its favour the applicant would not have made the allegations of infringement of its rights.

The allegation by the applicant that, in the course of delivering the judgment ex tempore the Supreme Court said that the High Court had considered the merits of the case, is a mere red herring designed to divert attention from the fact that the application sought to be placed before the Court, in terms of section 85(1) of the Constitution, is a disguised appeal against the decision of the Supreme Court.

The utterance the Supreme Court may have made is not a decision. There is only one decision which the applicant seeks to have set aside through the procedure under section 85(1) of the Constitution. The effect of the decision is the dismissal of the appeal and confirmation of the decision of the High Court on a non-constitutional issue. Such a decision cannot be evidence of a violation of a fundamental human right or freedom. It was a question not arising under the Constitution.

There is no suggestion anywhere in the founding affidavits that the Supreme Court failed to act in terms of any law governing appeal proceedings generally. To say that the Supreme Court “completely misconstrued” the appeal is not to say that it did not apply its mind to the grounds of appeal. It is simply a disguised and exaggerated way of saying the Supreme Court misdirected itself in the consideration of the grounds of appeal and came to a wrong decision.

There was no issue on the nature, content and scope of the question that was before the Supreme Court for determination. It was not said what construction the Supreme Court was required to put on the question before it. To say an Appellate Court “completely misconstrued” an appeal without reference to any procedural and substantive standard does not take the allegation beyond the making of it. No principle of procedural law is alleged to have been violated by the Supreme Court in the conduct of the proceedings or in decision-making. The application in respect of which direct access to the Court is sought is a disguised appeal against the effects of the decision of the Supreme Court on a non-constitutional matter. Rushesha and Ors v Dera and Ors CC24-17.

One of the fundamental aspects of the rule of law is the principle of legal certainty. This principle requires that no party to a proceeding shall be entitled to request the review of a final judgment solely for the purposes of obtaining a rehearing and a new determination of the case.

There are no prospects of the main application succeeding should leave for direct access to the Court be granted. It would not be in the interests of justice to grant leave for direct access where there are no prospects of success.

DISPOSITION

In the result, the following order is made:

“The application is dismissed with costs.”

View Appeal
CC09-19 : SIMON SHONHAYI DENHERE vs MUTSA DENHERE (nee MARANGE) and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ and GWAUNZA DJC and BERE JCC

The South African courts have also stated that the Constitution does not ensure protection of litigants against wrong decisions. In the case of Lane and Fey NNO v Dabelstein and Others 2001 (2) SA 1187 (CC) [4] the court held: “Even if the [Supreme Court of Appeal] erred in its assessment of the facts, that would not constitute the denial of the ...

CC02-20 : JOSEPH CHANI vs JUSTICE HLEKANI MWAYERA and MICHAEL MUGABE and MUSUTAMI CHIFAMUNA and NATIONAL PROSECUTING AUTHORITY
Ruled By: MALABA CJ

This is a chamber application for an order of leave for direct access to the Constitutional Court (“the Court”) in terms of section 167(5) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”), as read with Rule21(2) of the Constitutional Court Rules S.I.61/2016 (“the Rules”).FACTUAL BACKGROUNDAt the conclusion ...

FACTUAL BACKGROUND

At the conclusion of his trial in the High Court, the applicant was convicted of murder, as defined in section 47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] (“the Criminal Law Code”). The first respondent presided over the trial. The applicant was sentenced to eighteen years imprisonment. He is dissatisfied with the manner in which his case was investigated prior to the trial.

The facts of the case are as follows.

The applicant was the second-in-command of the security forces tasked with the duty of protecting Chiadzwa Diamond Mine. It is averred that on 23 September 2011 four brothers were arrested in one of the “diamond fields”. They were detained in an open wire enclosure under police and army guard while awaiting transportation to the court in Mutare.

At 22:00 hours of the same day one of the brothers (hereinafter referred to as “the deceased”) was found dead, lying face down in the enclosure. As a result, the Zimbabwe Republic Police, Marange Criminal Investigations Department, attended the sudden death scene. Investigations were carried out by the third respondent. The applicant said that the third respondent transported the body of the deceased to the Mutare Hospital mortuary for a post-mortem to be carried out to establish the cause of death.

It is the applicant's case that the Zimbabwe Republic Police sent the “sudden death docket” to the second respondent, who was the prosecutor in the criminal trial, instead of transmitting the same to the resident magistrate for assessment, purportedly in terms of the Inquests Act [Chapter 7:07] (“the Inquests Act”). It is contended that the second respondent, not being authorised to process a sudden death docket, violated the applicant's right to a fair trial. The applicant submits that his prosecution before the High Court was instituted on a defective charge because the inquest proceedings had not been conducted in a manner that complied with the Inquests Act.

The applicant further avers that during the trial the State was afforded the opportunity to lead evidence from thirteen witnesses - yet he was allowed to call only one witness.

It is against this background that the applicant alleges that sections 68(1) and 69(1) of the Constitution were violated.

Section 68(1) of the Constitution provides as follows:

“68 Right to administrative justice

(1) Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.”

Section 69(1) of the Constitution guarantees the right to a fair trial. The section provides:

“69 Right to a fair hearing

(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.”

It is on the basis of the alleged failures by the second, the third, and the fourth respondents to observe pre-trial procedures that the applicant is of the view that the aforementioned constitutional provisions were violated.

The application for an order for direct access was opposed by the second and the fourth respondents (“the respondents”).

The respondents raised a preliminary point, in their opposing affidavit, to the effect that the application was not properly before the Court, as the applicant's affidavit reveals only a narration of a myriad of administrative actions he is aggrieved with. It was further contended that the applicant does not demonstrate how his rights have been infringed.

On the merits, it was contended, by the respondents, that inquests are held only to establish the identity of the deceased and whether he or she died of natural causes or death was a result of an unlawful act perpetrated by another person. It was argued that the provisions of the Inquests Act were not relevant to the proceedings before the trial court. They averred that the alleged irregularities should have been raised with the Supreme Court when the appeal was heard.

Consequently, the respondents prayed that the application be dismissed....,.

The findings by the trial Judge, whether correct or not, do not result in the infringement of any constitutional rights of the applicant.

The Court, in Williams and Another v Msipha N.O. and Others 2010 (2) ZLR 552 (S) put the matter beyond any doubt. It held…, that:

“The Constitution guarantees to any person the fundamental right to the protection under a legal system that is fair but not infallible.

Judicial officers, like all human beings, can commit errors of judgment. It is not against the wrongfulness of a judicial decision that the Constitution guarantees protection. A wrong judicial decision does not violate the fundamental right to the protection of the law guaranteed to a litigant because an appeal procedure is usually available as a remedy for the correction of the decision. Where there is no appeal procedure, there cannot be said to be a wrong judicial decision because only an Appeal Court has the right to say that a judicial decision is wrong.”…,.

If the applicant was aggrieved by the admission of, or refusal to admit, any evidence, as reflected by his founding affidavit, he ought to have articulated his grievances through the appeal procedure.

It has not been disputed by the applicant that the irregularities complained of were neither raised in nor dealt with by the Supreme Court.

Strangely, the applicant did not even make mention of the fact that the matter went on appeal to the Supreme Court (Joseph Chani v S SC43-17). It is only through the respondents' opposing papers that the Court was made aware of the fact that the matter was dismissed on appeal.

The fact that the applicant lost the non-constitutional case in the Supreme Court is fatal to the application. The Constitutional Court cannot inquire into the final decision of the Supreme Court.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18…, the Court said:

“A decision of the Supreme Court on any non-constitutional matter in an appeal is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling or opinion on a non-constitutional matter. The onus is on the applicant to allege and prove that the decision in question is not a decision on the non-constitutional matter.”

CC05-19 : MISHECK MUZA vs REGGY SARUCHERA (as liquidator of J.W. Jaggers Wholesalers PL) and PRICE TRUST and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS
Ruled By: MALABA CJ and PATEL JCC and GUVAVA JCC

The applicant approached the Constitutional Court (“the Court”) in terms of Rule 32(2) of the Constitutional Court Rules, 2016 (“the Rules”) seeking leave to appeal against an order of the Supreme Court (“the court a quo”) which was couched as follows: “WHEREUPON, after reading documents filed of record, IT IS ORDERED THAT: The appeal having been withdrawn, the appeal be and is hereby dismissed with ...

“WHEREUPON, after reading documents filed of record,

IT IS ORDERED THAT:

The appeal having been withdrawn, the appeal be and is hereby dismissed with no order as to costs.”…,.

The facts leading to the application are as follows.

The applicant owned an immovable property which was sold to the second respondent by the first respondent. It is averred that the property was subsequently transferred into the second respondent's name by the fourth respondent at the instance of the first respondent. The applicant was aggrieved by the sale and transfer of the property and approached the High Court seeking an order setting them aside.

The applicant's case, in the High Court, was that the sale and transfer of the property was driven by unfairness, impartiality and lack of independence. The High Court did not find in his favour. The applicant noted an appeal against the decision to the court a quo. On the day of the hearing of the appeal, the court a quo issued the order set out at the beginning of the judgment. It is against the order that the applicant seeks leave to appeal to the Court.

In his founding affidavit, the applicant contended that the court a quo infringed his right to a fair hearing by acting as if it had no power to reverse an illegal transfer of a property. The applicant alleged that the court a quo had not acted impartially. He said the court a quo acted unfairly when it failed to set aside the transfer of the property when it had been made aware that there was a court action to stop the transfer of the property. He alleged, further, that the court a quo ignored evidence to the effect that “Court officers manipulated processes by misleading a High Court Judge that culminated in the appellant being evicted from the property in question.”

According to the applicant, the court a quo had to call the respondents to account for what he said was criminal behaviour. Failure to do so showed lack of independence on the part of the court a quo.

The applicant also alleged that he withdrew the appeal as a result of pressure put on him by the court a quo.

In his notice of opposition, the first respondent stated that he sold the property in question to a properly regulated Trust and the sale of the property was above board. The first respondent denied the allegation that a caveat had been placed on the property to prevent it from being sold. The first respondent prayed that the application be dismissed with costs on the higher scale because he had been put out of pocket by defending the applicant's claims.

In its opposing affidavit, the second respondent contended that the applicant voluntarily withdrew the notice of appeal because it was fatally defective, in that the relief sought differed materially from the relief sought in the High Court. The second respondent averred that the applicant was given time to make submissions to the court a quo hence his right to a fair trial was not violated. It contended that the intended appeal would serve no purpose as the property in question had already been transferred into the second respondent's name.

Counsel for the first respondent submitted that an application for leave to appeal may be brought in terms of Rule 32(2) of the Rules only where a party is aggrieved by a decision of a subordinate court on a constitutional matter. She submitted that, since the applicant had withdrawn the appeal, there was no determination of the court a quo which could be the subject of an appeal to the Court. Counsel for the first respondent further submitted that the applicant had failed to satisfy Rule 32(3)(c) of the Rules, which requires that in an application of this nature one has to attach a clear and concise statement as to the constitutional matter that had been raised in the subordinate court. She prayed that the application be dismissed with costs on the higher scale as no constitutional issues had been brought before the Court. She was of the view that the application was frivolous and vexatious.

Counsel for the second respondent submitted that it was important to take note of the legal effects of a withdrawal. He submitted that the withdrawal of a matter is the end of it and no appeal can be made attacking that withdrawal. In the absence of a judgment of the court a quo, there was no basis on which the decision on whether the requirements of the procedure of an application for leave to appeal have been met could be made. He also argued that no constitutional issues were raised and determined by the court a quo.

In reply, the applicant insisted that he be granted leave to appeal despite the concession that there was no judgment to appeal against. The applicant also submitted that he could not have raised any constitutional issues in the High Court or the court a quo because no constitutional issues had arisen at the time that the hearing of the dispute was playing out in either of the two courts.

DETERMINATION OF THE ISSUES

WHETHER IT IS IN THE INTERESTS OF JUSTICE TO GRANT THE APPLICANT LEAVE TO APPEAL

In terms of section 167(5)(b) of the Constitution of Zimbabwe Amendment (No.20) Act, 2013 (“the Constitution”), the Rules must allow a person, when it is in the interests of justice and with or without leave of the Court, to appeal directly to the Court from any other court.

Rule 32(2) and (3) of the Rules give effect to section 167(5)(b) of the Constitution. It provides as follows:

“Leave to appeal

32. (1)…,.

(2) A litigant who is aggrieved by the decision of a subordinate court on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the decision, file with the Registrar an application for leave to appeal and shall serve a copy of the application on the other parties to the case in question, citing them as respondents.

(3) An application in terms of subrule (2) shall be signed by the applicant or his or her legal practitioner and shall contain or have attached to it –

(a) The draft notice of appeal; and

(b) The decision against which an appeal is brought and the grounds upon which such decision is disputed; and

(c) A statement setting out clearly and concisely the constitutional matter raised in the decision and any other issues, including issues that are alleged to be connected with a decision on the constitutional matter; and

(d) Such supplementary information or submissions as the applicant considers should be brought to the attention of the Court.”…,.

Section 167(1)(b) of the Constitution makes it clear that the jurisdiction of the Court is limited to deciding only constitutional matters and issues connected with decisions on constitutional matters. It is the highest court in all constitutional matters.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18…, the Court said:

“The Court is a specialised institution, specifically constituted as a Constitutional Court with the narrow jurisdiction of hearing and determining constitutional matters only. It is the supreme guardian of the Constitution and uses the text of the Constitution as its yardstick to assure its true narrative force. It uses constitutional review predominantly, albeit not exclusively, in the exercise of its jurisdiction.”

The applicant sought to enforce his right of access to the Court by filing an application for leave to appeal against a non-existent decision of the court a quo. The court a quo did not make any decision, the substance and effect of which threatened violation of a provision of the Constitution.

The purpose of the right of appeal granted to a person under Rule 32(2), the procedure of an application for leave to appeal provided therein, and the contents of the application required under Rule 32(3)(c) of the Rules are premised on the existence of a decision by a subordinate court on a constitutional matter.

The purpose of the Rules is to ensure proper exercise of jurisdiction by the Court. The matter that gives rise to the need for the Court to exercise its jurisdiction must be a constitutional matter decided by the subordinate court.

The object of the exercise of jurisdiction by the Court is always the protection, promotion and enforcement of the supremacy of the Constitution. Where there is no decision by a subordinate court to justify the allegation of actual or threatened violation of a constitutional provision, the Court would have no cause for the exercise of its jurisdiction.

There has to be proof of a decision which was made by the subordinate court. That decision has to be on a constitutional matter. Where proceedings in the subordinate court were terminated by a withdrawal of a cause of action, there cannot be a decision of the subordinate court to be appealed against. There is a decision of the person who instituted the proceedings to terminate them.

In The Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni CC08-17, the Court…, said:

“…, there must have been a constitutional matter raised in the subordinate court by the determination of which the dispute between the parties was resolved by that court. If the subordinate court had no constitutional matter before it to hear and determine, no grounds of appeal can lie to the Constitutional Court as a litigant cannot allege that the subordinate court misdirected itself in respect of a matter it was never called upon to decide for the purposes of the resolution of the dispute between the parties….,.

There ought to have been a need for the subordinate court to interpret, protect or enforce the Constitution in the resolution of the issue or issues raised by the parties. The constitutional question must have been properly raised in the court below. Thus, the issue must be presented before the court of first instance and raised again at or at least be passed upon by the Supreme Court, if one was taken.

For an applicant to succeed in an application of this nature, he or she must show that the constitutional issue raised in the court a quo is one which the determination by the court was necessary for the disposition of the dispute between the parties. In other words, the decision on the constitutional matter must have been so inextricably linked to the disposition of the controversy between the parties that the success or failure of the relief sought was dependent on it.”…,.

The decision to withdraw a matter from a court's roll is a personal one, contrary to the allegation by the applicant that the court a quo withdrew the matter on his behalf….,.

DISPOSITION

The application is dismissed with no order as to costs.

CC10-17 : ROBERT CHIITE and SEVEN OTHERS vs THE TRUSTEES OF THE LEONARD CHESHIRE HOMES ZIMBABWE CENTRAL TRUST
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC, MAVANGIRA JCC and BHUNU JCC

Section 169(1) of the Constitution provides that the Supreme Court is the final court of appeal for Zimbabwe except in matters over which the Constitutional Court has jurisdiction. The respondents are the Trustees of the Leonard Cheshire Homes Central Trust established by a Notarial Deed of Trust on 2 April 1981. The mandate of the ...

Section 169(1) of the Constitution provides that the Supreme Court is the final court of appeal for Zimbabwe except in matters over which the Constitutional Court has jurisdiction.

The respondents are the Trustees of the Leonard Cheshire Homes Central Trust established by a Notarial Deed of Trust on 2 April 1981. The mandate of the Trust, as appears from the Deed of Trust, is to provide homes, shelter, care to and rehabilitation of persons with permanent physical disabilities. The respondents administer, on behalf of the Trust, a property known as Number 85 Baines Avenue, Harare, commonly known as Masterson Cheshire Home.

The appellants, who are all persons with permanent physical disabilities, are occupants of the said property. They benefitted from the main objective of the Trust. They have been occupants of the property for a long period having been admitted into the home in the 1990s. Over the years, relations between the appellants and the respondents soured to the extent that on 2 August 2004 the Trustees instituted proceedings in the High Court for an order for the eviction of the appellants. The allegations were that the appellants were illegally leasing out the home to third parties and pocketing the rentals. The actions of the appellants created conditions of significant wear and damage to the property. They prevented the respondents from accessing the property for inspection and carrying out of repairs.

The appellants opposed the action for an order for their eviction.

The High Court ruled against the respondents on the ground that their terms of office had expired at the time the decisions to evict the appellants from the premises were made. The learned Judge took the view that the question of the expiry of the tenures of office of the Trustees had a bearing on the question of the validity of the decisions that were made in respect of the closure of the Home on 30 November 1999 and 26 July 2004. He held that the decision made by the Trustees on 26 July 2004, to evict the appellants, was invalid. The respondents' case was dismissed with costs.

The respondents appealed to the Supreme Court, which overturned the High Court judgment on the basis that the High Court had erred in finding that the terms of the Trustees had expired. As a result, the Supreme Court confirmed the legality of the eviction notices and upheld the eviction of the appellants from Number 85 Baines Avenue.

It must be noted that in all the proceedings before the High Court and the Supreme Court, no constitutional issue was raised by any of the parties. The matters that constituted the grounds of appeal which the Supreme Court had to determine, and determined, are set out at pages 7 to 8 of the cyclostyled judgment no. SC24-15:

“1. That the court a quo misdirected itself in finding that the issue whether the appellants had exceeded their five year terms in terms of Clause 5(c) of the Deed of Trust was a question of law as opposed to an issue of fact.

2. The court a quo further fundamentally misdirected itself in allowing the respondents to raise the new issue which was not pleaded in their pleadings with the first witness for the appellant. The court a quo therefore erred in over-ruling the appellant's objection to the respondents' raising of a new defence at the trial.

3. The court a quo further misdirected itself in finding that the appellant had the onus to prove that the Trustees had not exceeded their five year terms and were therefore entitled to make a resolution for the ejectment of the respondents thereby making the appellant liable to prove the respondents' new defence.

4. The court a quo further erred in making findings of fact on the question of whether the Trustees had exceeded the five-year term limit in terms of the Deed of Trust based on complete and inconclusive evidence led by the parties thereby contradicting an earlier finding that the issue was a point of law.

5. The court a quo further misdirected itself in failing to find that the respondents had abandoned and not proved their pleaded defence, that is that upon being accepted as beneficiaries to the Trust, they were promised to live at the premises in issue, No. 85 Baines Avenue, Harare for life or for as long as they wished.

6. In the event therefore, the court a quo erred in dismissing the appellants' claim.”

Aggrieved by the decision of the Supreme Court, the appellants approached this Court. The purported grounds of appeal were couched as follows:

“1. The judgment of the court a quo is in breach of the provisions of section 56(1) of the Constitution of Zimbabwe, for the following reasons:

(a) It countenances the eviction of the appellants who are personae miserabiles at the suit of nameless and faceless individuals who have no connection to the Trust in whose effective names the proceedings were effectively brought.

(a) A fortiori the judgment has led to the total failure of justice.”

At the hearing of the matter, counsel for the appellants argued that the judgment of the Supreme Court was erroneous in that it was based on what he described as “suppositions.” It was his submission that the judgment was a violation of the appellants' right to equal protection of the law enshrined in section 56(1) of the Constitution.

Counsel for the appellants' line of reasoning was difficult to follow.

He persistently avoided answering the simple question whether the Supreme Court was faced with a constitutional issue when it determined the appeal against the judgment of the High Court.

Counsel for the respondents argued that no constitutional issue had been raised before the Supreme Court. He argued that it would not be in the interest of justice for the Court to entertain argument on matters over which the Constitution has provided in clear and unambiguous language that the Supreme Court is the final court of appeal.

The Court is in agreement with counsel for the respondents that no constitutional issue was raised by the grounds of appeal determined by the Supreme Court. In Nyamande & Anor v ZUVA Petroleum CC08-15, ZIYAMBI JCC, writing for the full Bench of the Constitutional Court, said…,:

“…, a right of appeal could only arise where the Supreme Court makes a decision on a constitutional matter…,.

Since no constitutional issue was determined by the Supreme Court, no appeal can lie against its decision.”

What the Court has before it are disgruntled litigants who have attempted to try and obtain redress under the guise of an appeal on a constitutional matter. Their criticism of the judgment of the Supreme Court set out in what purports to be grounds of appeal is no more than a raging discontent over the factual findings of the Supreme Court. The grievances of the losers in the Supreme Court have all the hallmarks of a mere dissatisfaction with the factual findings by that Court.

See De Lacy & Anor v South African Post Office 2011 (A) BCLR 905 (CC), MOSENEKE DCJ…,.

It was for these reasons that an order was made in the following terms:

“1. The matter be and is hereby dismissed with costs on a legal practitioner and own client scale.”

CC09-20 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MALABA CJ

This is a chamber application for leave to appeal to the Constitutional Court (“the Court”) against a decision of the Supreme Court (“the court a quo”) in terms of Rule 32(2) of the Constitutional Court Rules S.I.61 of 2016 (“the Rules”), as read with section 167(5)(b) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”).

The Court holds that it is not in the interests of justice that the applicant be granted leave to appeal against the decision of the court a quo because no constitutional matter arose or was raised in the decision of the court a quo. Consequently, the application has no merit and cannot succeed. The reasons for the decision are set out below.

FACTUAL BACKGROUND

In February 2015 the applicant was charged in the Magistrates' Court at Bulawayo with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). The background to the charge is that the applicant was the legal practitioner representing one Lungisani Sibanda (“Lungisani”), who was serving a seven-year prison sentence at Khami Maximum Prison for the offence of car theft. After a failed attempt was made to obtain liberty for Lungisani Sibanda, it was alleged that the applicant obtained a fake warrant of liberation misrepresenting that Lungisani had been granted bail pending appeal. It was alleged that the fake warrant of liberation was given to Lungisani's sister Lilian. She was the one to present the fake warrant of liberation of her brother from prison to the relevant authorities. In the statement she gave to the police, Lilian implicated the applicant.

After a full trial, the applicant was convicted of the offence and sentenced to forty-eight months' imprisonment, of which twelve months were suspended for five years on conditions of good behaviour.

Dissatisfied with the decision of the trial court, the applicant noted an appeal against both conviction and sentence to the High Court on the following grounds:

“Ad conviction

1. The learned magistrate in the court a quo erred, at law, in holding that Absolom Hlupo's evidence was admissible as against his co-accused, who, in this case, was the appellant.

2. The learned magistrate erred in holding that the Warrant of Liberation was fake when no evidence was led from the Clerk of Criminal Court's office in the Provincial Magistrates Court, that no record existed thereat where such bail had been granted warranting the Clerk of Criminal Court's stamp to be used.

3. The learned magistrate erred, at law, in holding that the call history regarding the cellphone was admissible as evidence against the appellant without considering, at all, the veracity, authenticity, and reliability of such evidence. A fortiori, the learned magistrate erred at law in holding that such evidence was admissible when it also clearly infringed on the appellant's constitutional rights and was obtained using a secondary legislation that is not supreme to the Constitution of Zimbabwe. Such evidence, in any event, had not been tendered in terms of the law.

4. The learned magistrate erred in accepting and considering Lilian Tapera's evidence admissible when she testified without being cautioned in terms of the law.

5. The learned magistrate further erred in seeking to have Lilian Tapera's evidence corroborated when, in the first place, it had been taken outside the purview of the law, had clear contradictions, prevarications (sic) and could not be relied upon. Despite this, the learned magistrate held that she had acquitted herself very well totally ignoring the aforesaid.

6. The learned magistrate erred in holding that Lilian Tapera's evidence was adequately corroborated by Joyce Sibanda and Richard Bhebhe's evidence totally ignoring, in the process, the glaring inconsistencies in her evidence and also between her evidence and that of these two witnesses.

7. The learned magistrate erred in holding that the envelope which Lilian Tapera saw at the appellant's office was one and the same envelope which was then delivered at Khami Prison and from which a Warrant of Liberation was discovered, and, on 23 December 2014, not on 24 December 2014 as appeared in the charge.

8. The learned magistrate further erred in holding that appellant's visit to Lilian Tapera's house was the reason why the said witness then gave a different statement at CID Frauds totally ignoring many factors that proved that such a finding was inconsistent with Lilian's own behaviour, her own evidence, and that of her mother, Joyce Sibanda, and the appellant.

9. The learned magistrate erred, at law, in totally disregarding the appellant's evidence which was most probable and accusing him of taking his legal role to the witness stand, and, in the process, ignoring the fact that he stood firmly and gave his evidence clearly.

Ad sentence

The learned magistrate's sentence was excessive and harsh to the extent that it induced a sense of shock in light of:

(a) The grounds of appeal highlighted above.

(b) Its inconsistency with the factors highlighted in mitigation i.e. the appellant's personal circumstances and that no prejudice was suffered.

(c) The fact that it basically amounted to paying lip service to the mitigating factors.”

The High Court found no merit in the appeal against conviction. It was dismissed.

The appeal against sentence succeeded.

The High Court held that the sentence was unduly harsh and excessive. It noted that the applicant was a young lawyer who was at the inception of his career. It was of the view that, in passing sentence, his immaturity as a lawyer had to be considered. As a result, the applicant's sentence was reduced from forty-eight months to thirty-six months' imprisonment, twelve months of which were suspended for five years on condition that the applicant did not within that period commit an offence involving dishonesty for which upon conviction he was sentenced to imprisonment without the option of a fine.

Still aggrieved, the applicant noted an appeal against the confirmation of his conviction to the court a quo.

In his grounds of appeal, he argued that the High Court erred in accepting the evidence of the two witnesses who testified that the Warrant of Liberation was fake, as such evidence was not in conformity with the law regulating the authenticity of public documents. He further argued that the High Court erred in failing to regard Lilian Tapera as an accomplice witness. The argument was also made that the High Court erred in dismissing the applicant's challenge against the admissibility of the call history of his cellphone. Lastly, it was argued that the High Court erred by failing to rule against the admissibility of the confession by the appellant's co-accused in convicting the applicant.

The court a quo was of the view that the warrant of liberation was fake beyond a reasonable doubt and that the evidence adduced put this fact beyond any doubt. As regards the issue whether Lilian Tapera was an accomplice witness or not, the court a quo held that the High Court was correct in finding that she was not an accomplice, as there was no evidence that she participated in the generation and presentation of the fake warrant of liberation. Further, the court a quo found that the call history from the applicant's cell phone could be used as evidence against him because his objections to its use in the trial court were not substantiated, and that, in any event, he had consented to it being adduced as evidence.

It was the court a quo's finding that, in terms of section 259 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the “CPEA”), the confession of one Hlupo could not be used against the applicant. As such, it was held that the trial court erred in admitting the confession into evidence against the applicant. However, the court a quo found that, even excluding the confession, there was sufficient evidence against the applicant to prove beyond a reasonable doubt that he had committed fraud in contravention of section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The appeal was accordingly dismissed.

On 19 February 2019 the applicant filed the present application for leave to appeal in terms of Rule 32(2) of the Rules, as read with section 167(5)(b) of the Constitution. He alleged that his right to equal protection and benefit of the law in terms of section 56(1) of the Constitution was violated by the court a quo when it upheld the authenticity of the call records.

The applicant further alleged that his right to a fair trial, as enshrined in section 69(1) of the Constitution, was violated by the court a quo. The allegation was that the applicant's right to challenge evidence was violated because he was not given the opportunity to “cross-examine the person who informed Lungile Moyo that the warrant was fake.”

The applicant also averred that his right under section 70(1)(k) of the Constitution, not to be convicted of an act that was not an offence when it took place, was violated. He alleged that if investigations were still to be completed, the delivery of the warrant of liberation was not an offence at the time of the trial.

It was also the applicant's allegation that his right to be presumed innocent, in terms of section 70(1)(a) of the Constitution, was infringed upon by the court a quo. The applicant challenged the finding by the court a quo to the effect that “that the provincial court had issued a warrant was not only remote but fanciful.”

The application was opposed by the respondent.

Its argument was that the findings of the court a quo were correct because the evidence proved beyond a reasonable doubt that the warrant of liberation was fake. It was further denied that there were any infringements of the applicant's constitutional rights. Therefore, no constitutional issues arose for determination. It was prayed that the application be dismissed.

APPLICATION OF THE LAW TO THE FACTS

In terms of section 167(5)(b) of the Constitution, the Constitutional Court Rules must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court, to appeal directly to the Constitutional Court from any other court. Rule 32 of the Rules gives effect to section 167(5)(b) of the Constitution. It provides, in relevant part, as follows:

“32. Leave to appeal

(1)…,.

(2) A litigant who is aggrieved by the decision of a subordinate court, on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the decision, file with the Registrar an application for leave to appeal and shall serve a copy of the application on the other parties to the case in question, citing them as respondents.”…,.

Section 167(1)(b) of the Constitution makes it clear that the jurisdiction of the Constitutional Court is limited to deciding only constitutional matters and issues connected with decisions on constitutional matters. It is the highest court in all constitutional matters.

The case of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18 is instructive with regards to the specialized jurisdiction of the Constitutional Court. At p9 of the cyclostyled judgment the Court said:

“The Court is a specialised institution, specifically constituted as a Constitutional Court, with the narrow jurisdiction of hearing and determining constitutional matters only. It is the supreme guardian of the Constitution and uses the text of the Constitution as its yardstick to assure its true narrative force. It uses constitutional review predominantly, albeit not exclusively, in the exercise of its jurisdiction.”

In Muza v Saruchera and Ors CC05-19 the Court noted that the purpose of the right of appeal granted to a person under Rule 32(2) of the Constitutional Court Rules, the procedure of an application for leave to appeal provided therein, and the contents of the application required under Rule 32(3)(c) of the Rules, are premised on the existence of a decision by a subordinate court on a constitutional matter.

The purpose of the Constitutional Court Rules is to ensure proper exercise of jurisdiction by the Constitutional Court.

The matter that gives rise to the need for the Constitutional Court to exercise its jurisdiction must be a constitutional matter decided by the subordinate court.

In Sadziwani v Natpak and Ors CC15-19 the Court emphasised the need for protecting its jurisdiction and process from abuse. It stated the following…,:

“Jurisdiction is the power or competence of a court to adjudicate on, determine and dispose of a matter.

In this regard, the Court is a creature of the Constitution. The principle of constitutional supremacy, as enshrined in section 2 of the Constitution, guarantees that the Court only exercises jurisdiction over matters which are specifically set out in terms of section 167, as read with section 332, of the Constitution.

The principle also ensures that the jurisdiction of the Court, as the highest court on constitutional matters and connected issues, cannot be ousted by legislation.

The Court's power to adjudicate on constitutional matters ought to be construed as a means by which life can be given to the objectives set out in section 3 of the Constitution. The Court, as the highest and most authoritative tribunal in constitutional matters, is tasked with the responsibility of safeguarding the values and objectives of the Constitution. It is charged with the duty of ensuring that these objectives are realised and given effect to. Thus, it is imperative that the Court is not unduly saddled with cases that have no bearing on the interpretation, enforcement or protection of the Constitution.

It is incumbent upon the Court to guard its jurisdiction jealously and eliminate the abuse of its powers. The integrity of the Court is of utmost importance and it ought to be protected.

The deliberately narrow jurisdiction of the Court is meant to shield it from abuse and ensure that it only adjudicates upon that which it is constitutionally mandated to adjudicate on.”

The object of the exercise of jurisdiction by the Court is always the protection, promotion and enforcement of the supremacy of the Constitution. Where there is no decision by a subordinate court to justify the allegation of actual or threatened violation of a constitutional provision, the Constitutional Court will have no cause for the exercise of its jurisdiction.

Section 332 of the Constitution defines a constitutional matter as “a matter in which there is an issue involving the interpretation, protection or enforcement of this Constitution.”

It is the applicant's case that the decision of the court a quo violated his right to equal protection and benefit of the law, enshrined in section 56(1) of the Constitution, when it upheld the authenticity of the call records and upheld the reliance of the trial court upon them.

With regards to the admissibility of the call history as evidence against the applicant, the court a quo held the following at paragraphs 46-49 of the cyclostyled judgment in Tungamirai Nyengera v The State SC67-18:

“The record indicates that the issue that was before the court a quo is whether or not the call histories were admissible.

The appellant contended that they were not as the evidence 'clearly infringed on the appellant's constitutional rights, and were obtained using secondary legislation that is not supreme to the Constitution of Zimbabwe.'

Clearly, there is no merit in this ground.

The right to privacy given in the Constitution is derogable and the law under which the call history was ordered by the Magistrates' Court is an example of one such derogation.

The rules governing the admissibility of documentary evidence in criminal trials are aimed at ensuring a fair trial through the elimination of any potential prejudice to an accused person, who is clearly the weaker of the two adversaries involved in a criminal trial.

All these rules, however, yield and fall by the wayside when an accused person consents to the production of documents tendered by the State.

Before the trial court, the appellant consented to the production of the call histories without any demur. There was therefore no issue before that court regarding the admissibility of the call histories.”

The court a quo dismissed the applicant's argument regarding the call history because the applicant had consented to the production of the records at his trial. The finding by the court a quo was a finding of fact, which was made after an assessment of the laws of evidence.

Where an accused person consents to the adduction of incriminating evidence, he cannot turn around and challenge a conviction which was secured based on that evidence.

In coming to this conclusion, the court a quo did not decide a constitutional matter because there was no need to interpret, enforce or protect the Constitution in order to come to the conclusion that the call history was admissible as evidence against the applicant. As such, the applicant's argument in this regard ought to fail.

The applicant also argued that his right to a fair trial, as enshrined in section 69(1) of the Constitution, was violated.

In this regard, he asserted that his right to challenge evidence was impinged upon because the evidence of one Lungile Moyo was at odds with section 253 of the Criminal Procedure and Evidence Act, in that he was not given the opportunity to “cross-examine the person who informed Lungile Moyo that the warrant was fake.”

The position of the law is that a purely factual matter does not amount to a constitutional issue.

In S v Boesak 2001 (1) SA 912 (CC), LANGA DP put this position beyond doubt when he stated the following…,:

“A challenge to a decision of the SCA, on the basis only that it is wrong on the facts, is not a constitutional matter.

In the context of section 167(3) of the Constitution the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot in itself be a constitutional matter. Otherwise, all criminal cases would be constitutional matters, and the distinction drawn in the Constitution between the jurisdiction of this Court and that of the SCA would be illusory.

There is a need for finality in criminal matters.

The structure of the Constitution suggests clearly that finality should be achieved by the SCA unless a constitutional matter arises.

Disagreement with the SCA's assessment of the facts is not sufficient to constitute a breach of the right to a fair trial.

An applicant for leave to appeal against the decision of the SCA must necessarily have had an appeal or review as contemplated by section 35(3)(o) of the Constitution. Unless there is some separate constitutional issue raised therefore, no constitutional right is engaged when an appellant merely disputes the findings of fact made by the SCA.”

As a result, the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt is not, for the reasons given above, a constitutional matter.

The applicant also averred that his right under section 70(1)(k) of the Constitution, not to be convicted of an act that was not an offence when it took place, was violated.

He alleged that if investigations were still to be completed, the delivery of the warrant of liberation was not an offence at the time of the trial.

It is common cause that the applicant was charged with and convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is also common cause that the Criminal Law (Codification and Reform) Act was in force at the time the applicant's trial commenced. The allegation that the conduct for which the applicant was convicted was not an offence at the time of his trial was not made in seriousness and must be dismissed.

The applicant further advanced the argument that the finding by the court a quo that the warrant of liberation was fake infringed his right to be presumed innocent until proven guilty, as enshrined in section 70(1)(a) of the Constitution.

This finding by the court a quo is also alleged to be a violation of section 165(1)(a) of the Constitution, which guarantees that justice must be done to all irrespective of status.

The applicant further argued that section 70(1)(a) of the Constitution must be read together with section 18(1) of the Criminal Law (Codification and Reform) Act. Section 18(1) of the Criminal Law (Codification and Reform) Act provides:

“18 Degree and burden of proof in criminal cases

(1) Subject to subsection (2), no person shall be held to be guilty of a crime in terms of this Code or any other enactment unless each essential element of the crime is proved beyond a reasonable doubt.”

As already found, the findings of the court a quo, regarding the authenticity of the warrant of liberation, are within the realm of the law of evidence, particularly the assessment thereof, and do not give rise to a constitutional issue.

A decision as to the sufficiency of evidence that is required to sustain a conviction in a criminal prosecution does not ordinarily involve the interpretation or application of any provision of the Constitution. Neither does it involve the application of a law inconsistent with the Constitution, or have any other connection with the Constitution that would make that decision a constitutional matter.

The Constitution must be involved in some way before such a finding can be said to raise a constitutional issue within the jurisdiction of the Court. The fact that there was no constitutional matter that was raised before and determined by the court a quo cannot be meaningfully disputed. The applicant was merely aggrieved by the non-constitutional findings of the court a quo and this means that the jurisdiction of the Constitutional Court is not triggered in the circumstances.

In De Lacy and Anor v South African Post Office [2011] ZACC 17…, the Constitutional Court of South Africa held as follows regarding an applicant's dissatisfaction with the factual findings of a lower court:

“Then, the essence of their contention was that the Supreme Court of Appeal should have held that indirect intent was sufficient to render an organ of State vicariously liable for the wrongs of its employees and that on the evidence they had established that the Post Office's employees had acted with indirect intent to defraud.

That was the applicants' constitutional focus.

And yet the bulk of its papers were devoted to an exhaustive critique of the factual findings of the Supreme Court of Appeal. Their grievance had all the hallmarks of a mere dis-satisfaction with factual findings.

The Post Office opposed the application. On 9 July 2009, this Court dismissed it for lack of prospects of success.”…,.

See also Chiite and Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust CC10-17.

Consequent to the above, the issue relating to the hierarchy of courts, in non-constitutional, matters arises. In this regard, section 169(1) of the Constitution is paramount. It provides as follows:

“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.”

In Rushesha and Ors v Dera and Ors CC24-17 GWAUNZA JCC…, interpreted this provision in the following manner:

“The import of this provision needs no elaboration. Only where the Supreme Court determines a constitutional issue, may one appeal to this Court for a final determination. Because the Supreme Court in this matter did not determine any constitutional issue, the decision it rendered was final and not appealable.”

Section 26(1) of the Supreme Court Act [Chapter 7:13] reaffirms the above position. It states:

“26 Finality of decisions of Supreme Court

(1) There shall be no appeal from any judgment or order of the Supreme Court.”

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18, the Constitutional Court held that the principles that emerge from section 169(1) of the Constitution, as read with section 26 of the Supreme Court Act, are clear. At p22 of the cyclostyled judgment, the Court said:

“A decision of the Supreme Court, on any non-constitutional matter in an appeal, is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling or opinion on a non-constitutional matter.

The onus is on the applicant to allege and prove that the decision in question is not a decision on the non-constitutional matter.”

There was no constitutional issue raised before and determined by the court a quo. The dismissal of the appeal by the court a quo remains final. It cannot be appealed against. As such, the application has no merit and it ought to be dismissed.

DISPOSITION

The application is dismissed with no order as to costs.

CC02-21 : TEMBA MLISWA vs PARLIAMENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE AJCC, MAKARAU AJCC, GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

BackgroundThe applicant is a duly elected Member of Parliament for the Norton Constituency. On 24 June 2020, during an ordinary sitting of the National Assembly over which the Speaker of Parliament was presiding, he was removed from Parliament and suspended for six consecutive sittings for allegedly behaving in a violent ...

Background

The applicant is a duly elected Member of Parliament for the Norton Constituency. On 24 June 2020, during an ordinary sitting of the National Assembly over which the Speaker of Parliament was presiding, he was removed from Parliament and suspended for six consecutive sittings for allegedly behaving in a violent and grossly disorderly manner.

The expulsion and suspension were ordered by the Speaker of Parliament (“the Speaker”).

Aggrieved by the expulsion and suspension, the applicant filed this application on 20 July 2020. The application, brought specifically in terms of section 167(2(d) of the Constitution, alleged that the respondent had failed to fulfil a constitutional obligation to ensure compliance with its Standing Orders.

In particular, the applicant sought to demonstrate how the expulsion was inconsistent with the procedures and the powers granted to the Speaker by the Standing Orders and in terms of which the Speaker purportedly acted.

The applicant further denied having been disorderly as alleged or at all. He also challenged the propriety and validity of the punishment that was meted out to him on the basis that he was not afforded the right to be heard before he was punished.

The application was opposed with the respondent's opposing affidavit being deposed to by the Speaker.

In addition to opposing the matter on the merits, the respondent raised five preliminary points.

Not necessarily in the same order in which the points were raised in the opposing affidavit, the respondent;

(i) Challenged the jurisdiction of this Court;

(ii) The validity of the application itself, by alleging that it was fatally defective for want of compliance with the rules of the court; and

(iii) The efficacy of the relief sought which it alleged was moot since the applicant had already served the punishment by the time of the filing of the application.

(iv) The respondent also challenged the non-joinder of the Speaker which it alleged was fatal to the application; and

(v) Finally, it requested that this Court withholds its jurisdiction as the matter was pending before the High Court where similar relief had been sought under case no. HC3367/2020.

Regarding the merits of the application, the respondent contended, in the main, that, the applicant had indeed behaved in a disorderly manner and that the punishment meted out to him was appropriate and in accordance with the powers granted to the Speaker by the Standing Orders. The respondent specifically denied, that, the Speaker had exceeded his authority and powers as alleged in the application or at all.

The Issue

As stated above, the respondent raised the issue of the jurisdiction of this Court as one of its preliminary points. This it however did in direct response to the allegation that the applicant had not been afforded the right to be heard before he was punished.

In response to this specific allegation, the respondent contended, that, the applicant ought to have approached the High Court on review, challenging the procedure leading to his punishment. It was thus the position of the respondent, erroneously held in my view, that, since the High Court also enjoyed review jurisdiction in the matter, the jurisdiction of this Court was not triggered.

Whilst nothing turns on this point, I wish to note, in passing, that, this Court enjoys concurrent jurisdiction with other courts in constitutional matters. The coincidence of jurisdiction with the other courts does not oust the jurisdiction of this court.

The position may be contrasted with instances where this court has been granted exclusive jurisdiction. In those instances, naturally, it is the jurisdiction of the other courts that is ousted even if the matter is, technically, a constitutional matter.

Without necessarily accepting as correct the basis upon which the respondent challenged its jurisdiction in the matter, the court, was, on its own accord, concerned with whether its jurisdiction had been triggered at all by the averments made in the application taken in their totality.

It therefore raised the issue for preliminary argument.

The specific question put to both parties for the preliminary address was whether the applicant had chosen the appropriate forum and remedy for the vindication of his alleged injury.

Therefore, the sole issue that fell for determination in this preliminary ruling was whether the conduct complained of by the applicant was conduct signifying failure by the respondent to fulfil a constitutional obligation.

The Submissions

In the main, counsel for the applicant submitted, that, by failing to follow the provisions of its own Standing Orders, the respondent had failed to uphold the rule of law and had acted without due process.

To buttress his submissions in this regard, counsel relied heavily on the principles of constitutional supremacy and accountability and on which he expended the bulk of his time and energy.

Regarding the jurisdiction of this Court, counsel submitted, that, this court had jurisdiction as the respondent had a constitutional obligation which it breached “through its Speaker”.

It was thus his argument, that, the Speaker and the respondent were inseparable and that once he was in the House, the Speaker represented the respondent. On that basis, he invited us to find, as a fact, that, the expulsion and suspension of the applicant was conduct by the respondent “through its Speaker”.

Counsel for the respondent, in turn, submitted, that, the application was not properly before the court as the conduct complained of was not that of the respondent.

It was his argument, that, the Speaker is separate and distinct from the respondent.

In support of this argument, counsel maintained the respondent's position, once again erroneously held in my view, to the effect, that, the Speaker ought to have been cited as a co-respondent in this application as he was the decision maker in the instance and it is his conduct that allegedly violated the provisions of the Standing Orders.

The Law

That the power granted to the courts by the new Constitution, to hold public officers accountable to the Constitution, marks a clear departure from the State power sharing arrangement provided for under the repealed Constitution, and the jurisprudence that emerged under that order is now commonplace.

Our constitutional order has evolved from one where the conduct of those wielding public power was predominantly immune to judicial review, insulated and shielded from such by the strict application of the doctrine of separation of powers, to one where the conduct of all public affairs must measure up to the constitutional imperatives under the watchful eye of the judiciary, which, in turn, is also obliged to always venerate the Constitution.

Commenting on the new constitutional order, PATEL JA, in Judicial Service Commission v Zibani & Others SC68-17 had this to say:

“It is axiomatic that Zimbabwe is a constitutional in contradistinction to a parliamentary democracy: see Biti & Anor v Minister of Justice, Legal and Parliamentary Affairs & Anor 2002 (1) ZLR 177 (S) at 190A-B. This fundamental principle and its concomitant legal ramifications are codified in section 2 of the Constitution as follows:

(1) This Constitution is the supreme law of Zimbabwe, and, any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of government at every level, and must be fulfilled by them.”

Adding a building block onto the now settled jurisprudence on the new Constitutional dispensation, HLATSHWAYO JCC, in Chironga and Another v Minister of Justice, Legal and Parliamentary Affairs and Others CC14-20 opens his judgment by noting that:

“One of the crucial elements of the new constitutional dispensation, ushered in by the 2013 Constitution, is to make a decisive break from turning a blind eye to constitutional obligations. To achieve this goal, the drafters of the Zimbabwean Constitution Amendment No.20 Act 2013 (“the Constitution”) adopted the rule of law and the supremacy of the Constitution as some of the core founding values and principles of our constitutional democracy. For this reason, public office bearers ignore their constitutional obligations at their own peril.”

The above remarks are ample evidence, if any is needed, that, the doctrines of constitutional supremacy and accountability, under the new Constitution, have been fully embraced by this Court and underpin the jurisprudence that is emerging therefrom.

Detailed and spirited submissions by counsel for the applicant on these principles, whilst necessary to establish the baseline from which all other arguments in the matter would be considered, were thus as effective as preaching to the clergy.

Similarly, this Court has also accepted and holds as the correct position at law, that, the respondent has an obligation to protect the Constitution and to promote democratic governance in Zimbabwe.

It accepts, that, the respondent has the obligation to uphold, among others, the rule of law and supremacy of the Constitution - two of the founding values and principles set out in the Constitution.

In Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20, MALABA CJ noted…, that, there are provisions in the Constitution that impose obligations on the respondent as directly enforceable law. In his words:

“There are provisions of the Constitution which impose obligations on Parliament. The Constitutional provisions impose the obligations on Parliament as directly enforceable law.

Section 119 of the Constitution imposes an obligation on Parliament to protect the Constitution and promote democratic governance in Zimbabwe. The obligation imposed on Parliament, by section 328(5) of the Constitution, is that it must not pass a Constitutional Bill at the last reading in the National Assembly and the Senate except by affirmative votes of two-thirds of the membership of each House.”

As stated above, the submissions by counsel for the applicant on the supremacy of the Constitution and the transition from non-accountability to full accountability, under the Constitution, by all wielders of public power, whilst correct, do not go anywhere near addressing the issue that arises in this matter.

The issue that arises is whether the respondent acted at all or omitted to act, and, in so doing, failed to fulfil an obligation imposed upon it by the Constitution as envisioned by section 167(2)(d) of the Constitution.

The power granted to this Court “to determine whether Parliament or the President has failed to fulfil a constitutional obligation” is a specific and deliberate mechanism introduced into the procedures of this Court to ensure that Parliament, and the President, fulfil their respective constitutional obligations.

It is necessarily granted, in clear and unambiguous terms, to constitute the vehicle only through which the supremacy of the Constitution can be fully realised and the provisions of section 2(2) of the Constitution fulfilled in respect of Parliament and the President.

It sets the tone for the exercise of constitutional jurisdiction by the other courts over all other wielders of State power. The mechanism is therefore a deliberate attenuation of the applicability of the doctrine of separation of powers among the organs of State.

For the effective and smooth functioning of the State, the comity that must exist between the judiciary and the other organs of State must, as before, act to restrain this Court from using its special jurisdiction save in strict compliance with the section.

Quite apart from the comity considerations, the ambit of the court's jurisdiction, under section 167(2)(d) of the Constitution, is procedurally limited by the requirements of the cause of action that is created by the section.

These are clear cut. They are:

(i) An identified constitutional obligation; and

(ii) Conduct or an omission by the respondent signifying a failure to fulfil the obligation.

The two requirements are not consecutives but are concomitants, both of which must be alleged and proved.

In Doctors for Life International v Speaker of The National Assembly & Ors 2006 (6) SA 416 (CC), NCOBO J…, observed, that, a claimant who seeks, under the South African Constitution, to vindicate a constitutional right by impugning the conduct of a State functionary must identify the functionary and impugned conduct with reasonable precision.

To plead one's case with precision is a rule of procedure that I believe also applies with equal force to all applications brought under section 167(2)(d) of the Constitution.

I shall revert to this point below.

The special jurisdiction, not being inherent, cannot be invoked over all persons and over all constitutional matters.

In particular, it being a special vehicle to hold the other two organs of State accountable, the exclusive jurisdiction of this Court cannot be invoked to inquire into the conduct of other State agencies who are not Parliament or the President.

For these other actors, common law causes of action abound and the jurisdiction of this Court over such matters is shared with the other courts in the land as stated in passing above.

Put differently, the only permissible respondents under an application in terms of section 167(2)(d) of the Constitution are Parliament or the President.

Therefore, and limiting myself to the facts of this matter, the special jurisdiction cannot be invoked to determine whether the conduct of the Speaker, for instance, was a failure to fulfil a constitutional obligation.

On the basis of the above, I wish to comment, once again, in passing, that, it is impermissible to join another party as respondent to an application brought under section 167(2)(d) of the Constitution as submitted and suggested by counsel for the respondent.

CC03-21 : PRAYMORE MAKANDA vs MAGISTRATE SANDE N.O. and MAGISTRATE KADYE N.O. and MAGISTRATE NDIRAYA N.O. and THE STATE
Ruled By: GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

This is an application for direct access to the Constitutional Court made in terms of section 167(5)(a) of the Constitution of Zimbabwe. The allegation is that the conduct of the respondents violated the applicant's fundamental rights as enshrined in sections 69(1) and 70(1)(d),(e) and (f) of the Constitution.The BackgroundThe brief ...

The Background

The brief facts of the matter are as follows:

In 2017, the applicant was arraigned before the magistrates court at Harare facing charges of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Three separate trials were held before the first, second, and third respondents and he was convicted and sentenced to three separate terms of imprisonment.

It is the applicant's allegation, that, during the conduct of the trial proceedings, the first and second respondents violated his right to legal representation because they did not advise him of that right at the commencement of the trial.

This is alleged to be a violation of section 70(1)(d), (e) and (f) of the Constitution.

In the same respect, it is also alleged, that, the first and second respondents “failed to take heed to the laws governing the commencement of criminal trials” and therefore violated section 163A(1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP&E Act).

It is further alleged, that, such conduct infringed the applicant's right to a fair trial as entrenched in section 69(1) of the Constitution.

As regards the third respondent, it is averred, that, the magistrate did advise the applicant of his right to legal representation in terms of section 191 of the Criminal Procedure and Evidence Act, but, then failed to make an enquiry as to whether or not the applicant had understood those provisions.

This is said to have led to unfair proceedings in violation of sections 69(1) and 70(1)(d),(e) and (f) of the Constitution.

Allegations are also made against the fourth respondent in that it failed to assist the applicant in protecting his fundamental rights as aforementioned.

Consequent to these alleged violations, the applicant has approached this Court for relief.

The application is opposed by the fourth respondent.

It contends, that, the applicant has not demonstrated, that, it is in the interests of justice that he be granted direct access to the court. It is also argued, that, the mere reference to constitutional provisions does not mean that a constitutional matter has been raised.

It is important to note, that, the fourth respondent concedes that the proceedings before the first, second, and third respondents were irregular, but, nevertheless, avers that competent relief could have been granted by the High Court or the Supreme Court thus obviating the need to approach the court directly.

In fact, it is alleged that the applicant has since approached the High Court for relief under Case No. HC7066/20.

It is prayed that the application be dismissed as it is without merit....,.

Irregularities before the Magistrates Court

There is a further disconcerting aspect of this matter that we think it necessary to comment upon before it is disposed of.

This relates to the mandatory provisions of sections 163A and 191 of the Criminal Procedure and Evidence Act [Chapter 9:07] (CP&E Act) which enjoin the courts, in criminal cases, to advise accused persons of their right to legal representation at the commencement of criminal trials.

The nub of the applicant's case is that the first and second respondents violated this crucial procedural requirement and thereby denied him the right to proper legal representation.

As for the third respondent, it is averred, that, he did advise the applicant of this right but then failed to make the further enquiry as to whether or not the applicant had understood the import of the governing provisions.

The fourth respondent quite correctly concedes, that, in the trials before the first and second respondents there was no compliance with section 163A of the Criminal Procedure and Evidence Act (CP&E Act). The State also concedes, that, the third respondent failed to record the exchange with the applicant pertaining to his right to legal representation and his comprehension or otherwise thereof.

It is openly acknowledged by counsel for the fourth respondent, that, these omissions, on the part of the first, second, and third respondents, constituted gross irregularities.

Nevertheless, the State appears to have displayed a dogged reluctance to take heed of these irregularities or the applicant's justifiable grievances in that regard.

Regrettably, unlike the High Court and the Supreme Court, this Court is not presently endowed with any statutory powers of review that might be invoked and exercised mero motu to address or redress these patent irregularities.

Nevertheless, we think it necessary, in the interests of justice, to bring them to the attention of the Judge President to enable him to refer the matter to a judge of the High Court for review.

The Registrar of this Court is accordingly directed to submit a copy of this judgment to the Judge President for appropriate action to be taken.

Appealed
CC01-20 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, MAKONI JCC and BERE JCC

The Constitutional Court, as the highest court in constitutional matters, is endowed with the power to review orders of constitutional invalidity made by lower courts in order to control declarations of constitutional invalidity made against the highest organs of State: see Pharmaceutical Manufacturers Association of South Africa and Anor: In ...

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021.The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by the President ...

This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021.

The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by the President as unconstitutional. This it allegedly did in the first of its two parts....,.

The court a quo issued a singular order in the following terms:

“IT IS DECLARED THAT:

1. The second respondent in HC2128/21 who is also the second respondent in HC2166/21 ceased to hold the office of the Chief Justice of Zimbabwe and judge by operation of law on 15 May 2021 at 4:00 hours.

2. The extension of the length of time in the office of the judge beyond the age of seventy provided for in section 186 of the Constitution does not apply to the second to fourteenth and eighteenth respondents.

3. There shall be no order as to costs.”...,.

What must be borne in mind is that the respective positions and contentions of the parties, in confirmation proceedings, do not constitute any valid limitation to the wide and relatively unfettered review jurisdiction conferred upon this Court by the provisions of section 175 of the Constitution.

As was appositely observed in S v Chokuramba CC10-19, confirmation proceedings require this Court to conduct a thorough investigation of the matter at hand “irrespective of the finding of constitutional invalidity by the lower court and the attitude of the parties.”…,.

This is because “the involvement of the Constitutional Court in the process of determination of the constitutionality of the law or the conduct of the President or Parliament through confirmation proceedings is mandatory.”…,.

In exercising its jurisdiction under section 175(3) of the Constitution, the Constitutional Court is not confined to purely procedural or preliminary issues that may arise for determination. In confirmation proceedings, the Constitutional Court is duty-bound to adjudicate all the relevant issues. These include not only the procedural propriety of the proceedings a quo, but, also, more importantly, the juridical correctness of the substantive findings of the subordinate court....,.

The applicant, in his heads of argument, submits, that, an application under section 175(3) of the Constitution, to vary an order, necessarily includes an application not to confirm an order of constitutional invalidity. He relies upon the case of Mfundo Mlilo v President of the Republic of Zimbabwe SC179-20 as authority for that proposition.

Section 175(1) of the Constitution provides, that, an order concerning the constitutional invalidity of any law or any conduct of the President or Parliament has no force unless it is confirmed by this Court.

Section 175(3) of the Constitution enables any person with a sufficient interest to apply to this Court to confirm or vary an order of constitutional invalidity made by any court in terms of section 175(1).

As was made clear in S v Chokuramba CC10-19…, in proceedings pertaining to constitutional invalidity, this Court is not bound by the subordinate court's order of invalidity.

Pursuant to a full review as to the correctness of that decision, the Court may either confirm or vary it, taking into account all the relevant facts and the applicable law. Having regard to the provisions of section 175 of the Constitution, taken as a whole, what is necessarily incidental to this review is the power to refuse to confirm the order a quo, and, where it is appropriate to do so, to set it aside.

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

The test for challenging a judgment of the Supreme Court was established in the case of Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited Anor CC11-18 as follows:“The facts must show, that, there is a real likelihood of the Court finding that the Supreme Court infringed ...

CC04-22 : JOANAH MAMOMBE and CECILIA CHIMBIRU vs FAITH MUSHURE N.O. and THE STATE
Ruled By: MAKARAU JCC

This is an urgent application for an order staying certain unterminated criminal proceedings against the applicants.

The proceedings are underway before the first respondent, a Regional Magistrate.

The applicants seek to stay the proceedings pending determination of two applications that they filed with this Court for direct access.

If successful in the applications for direct access, the applicants intend to file an application in terms of section 85(1) of the Constitution, allegedly for the enforcement of their fundamental rights and/or freedoms.

Background

As stated above, the applicants are jointly appearing before the first respondent. They stand accused of publishing or communicating false statements that are prejudicial to the State in contravention of section 31(a)(i) of the Criminal Law (Codification and Reform) Act [Chapter 9.23]. The charge has two other alternatives whose particulars are not material in the determination of this application.

At the commencement of their trial, the applicants requested that certain constitutional questions be referred to this Court in terms of section 175(4) of the Constitution.

The request was dismissed and the trial of the matter commenced.

In dismissing the request, the first respondent formed the view, that, the request was not bona fide but was generally marked by a lack of seriousness.

Dissatisfied with the refusal of their request, the applicants filed two applications to this Court seeking the leave of the court to approach it directly. In these applications, filed on 12 April 2022, the applicants contend, in the main, that, the refusal of their request by the first respondent to refer the matter to this Court violates their rights to protection of the law.

Arguing that they have no alternative remedy to approaching this Court directly, the applicants further contend, that, it is in the interests of justice that this Court considers the questions that they had requested the first respondent to refer to this Court.

In the request for referral, the applicants had raised the constitutionality of section 31(a)(i) and (iii) of the Criminal Law (Codification and Reform) Act [Chapter 9.23], under which they are being charged and tried.

They also sought to challenge the admissibility, as evidence against them, of the statements that they had given to the police at some stage during the investigation of the matter. They alleged that such statements were forcefully extracted from them.

They further contended, that, their trial has received wide adverse media coverage which has compromised their rights to a fair trial.

On 26 April 2022, the applicants filed this urgent application in which, as stated above, they seek an order staying the criminal proceedings against them before the first respondent, pending determination of the applications for direct access.

The applicants have not simultaneously with, or alternatively to the urgent application before me, filed an application seeking directions that the applications for direct access be heard urgently or that such be summarily disposed of in terms of Rule 21 of the Constitutional Court Rules.

They appear content to simply apply for a stay of the ongoing proceedings before the first respondent pending determination of their applications for direct access.

This manner of proceeding has, and deservedly so, given rise to the perception and argument by the second respondent, that, the applicants are merely bent on delaying the finalisation of the criminal trial that is before the first respondent.

The urgent application was opposed by the second respondent.

As a preliminary point, the respondent argued, that, an application to postpone the hearing of the matter could have been made before the trial court under sections 165 and 166 of the Criminal Procedure and Evidence Act [Chapter 9.07].

Regarding the merits of the application, the second respondent argued, that, the inherent jurisdiction conferred upon this Court, to regulate its own processes, does not entail a power to regulate the criminal proceedings before the first respondent.

In the final analysis, the respondent argued that the matter is not urgent.

At the hearing of the application, I requested the parties to address me on whether this Court has jurisdiction to grant the relief that the applicants are seeking.

This was so because, in my view, the preliminary issue that falls for determination in this application is whether this Court, before it determines the applications for direct access, has the requisite jurisdiction to interfere with the unterminated proceedings before the first respondent.

The Law

In a long line of cases from this jurisdiction and elsewhere, the admonition is repeatedly sounded and explained, that superior courts should be very slow in interfering with the unterminated proceedings of lower courts.

The exception is made for cases where there is a gross irregularity or a wrong decision by the lower court that will seriously prejudice the rights of a litigant or accused person and which irregularity or wrong decision cannot be corrected by any other means: see Attorney-General v Makamba 2005 (2) ZLR 54 (S); Rasher v Minister of Justice 1930 TPD 810; Ginsberg v Additional Magistrate of Cape Town 1933 CPD 357; Walhaus v Additional Magistrate, Johanesburg & Anor 1959 (3) SA 113 (A); Masedza & Others v Magistrate, Rusape and Others 1998 (1) ZLR 36 (H); Mantzaris v University of Durban-Westville & Others (2000) 10 BLLR 1203 LC; Rose v S HH71-02; Mutumwa and Anor v S HH104-08; Chikusvu v Magistrate Mahwe HH100-15; Chawira and Others v Minister, Justice, Legal and Parliamentary Affairs and Ors CC03-17 and Shava v Magomere HB100-17.

The above admonition is sounded to a superior court that has inherent or legislatively-conferred review powers over the proceedings or decisions of the lower court.

It is meant to guide the approach to be taken by such a court.

This is so because the power to interfere with the unterminated proceedings of a lower court either permanently, or as affording interlocutory relief, is nothing but an exercise of review jurisdiction by the superior court over the proceedings or decisions of the lower court.

The authorities clearly establish the position at law, that, proceedings in a lower court or its decision are only interfered with if there is a gross irregularity in the proceedings or the interlocutory decision is clearly wrong.

Both instances, respectively, encompass the common law review grounds of gross irregularity in the proceedings and/or gross unreasonableness in the decision.

By established practice of the courts, it is thus accepted, that, the existence of these two grounds of review may, in appropriate circumstances, justify a superior court of competent jurisdiction interfering with the ongoing proceedings of a lower court.

This Court decides only constitutional matters and issues connected with decisions on constitutional matters. It is not a court of inherent jurisdiction and thus lacks inherent review powers over lower courts.

The Court, however, has legislatively-conferred review powers. These are set out in section 19 of the Constitutional Court Act [Chapter 7.22].

Whilst fairly wide, the review powers of this Court are, correspondingly and in conformity with the Constitution, limited in scope to constitutional matters only.

Section 19 of the Constitutional Court Act thus provides:

“19 Review Powers

(1) Subject to this section, the court and every Judge shall have, in constitutional matters, the power to review the proceedings and decisions of the Supreme Court, the High Court, and all other subordinate courts, tribunals, and administrative authorities.

(2) The power, jurisdiction, and authority conferred by subs (1) may be exercised whenever it comes to the notice of the court or a Judge that an irregularity has occurred in any proceedings or in the making of any decision, notwithstanding that such proceedings are, or such decision is, not the subject of an appeal or application to the court.

(3) Nothing in this section shall be construed as conferring upon any person any right to institute any review in the first instance before the court or a Judge, and provision may be made in rules of court, and a Judge may give directions, specifying that any class of review or any particular review shall be instituted before, or shall be referred or remitted to the Supreme Court, the High Court or the Labour Court, as the case may be, for determination.”…,.

If it is accepted, which it must, that, this Court lacks inherent jurisdiction to review the proceedings and decisions of lower courts in non-constitutional matters, it stands to reason, that, this Court must be dead slow in interfering with the unterminated proceedings of any lower court and proceed only after it is satisfied that there is a constitutional matter arising in the matter.

Put differently, the review jurisdiction of this Court is only triggered and engaged after this Court has satisfied itself that the matter involved is a constitutional matter.

I venture to suggest, that, where the matter is intended to be brought before this Court, as a court of first instance, as in casu, this Court must only proceed to interfere with the unterminated proceedings of a lower court where it intends, in the interests of justice, to grant direct access in the matter and determine the matter itself.

Put differently, this Court must only interfere with un-terminated proceedings in the lower courts where it has jurisdiction in the matter.

If it were to proceed in any other manner, this Court would run the risk of rushing in and interfering with unterminated proceedings in a lower court, that, on final analysis, turn out to have been on a non-constitutional matter.

In such an instance, the interference by this Court would lack legitimacy as having been made in breach of the Constitution that confines the jurisdiction of this Court only to constitutional matters and decisions in issues involving a constitutional matter.

Analysis

In this application, it is common cause, that, the applicants have filed two applications for direct access. The applications are yet to be determined. This, in turn, means that this Court has not yet determined that the two applications raise constitutional matters that will engage its jurisdiction.

The submission was made by counsel for the applicants, that, the urgent application before me seeks to protect the integrity of whatever decision this Court will make in the applications for direct access.

It was thus submitted, that, on that basis alone, this Court has the jurisdiction to stay the proceedings in the magistrates courts.

I am unable to agree.

The submission would have been cogent and dispositive if the two applications pending before the Constitutional Court were on constitutional matters.

They are not.

An application for leave to access the court directly, as its name suggests, is an indulgence craved for a constitutional matter to be placed before the court directly. It prepares and paves the way for the filing of a constitutional matter proper.

Whilst it is an issue in connection with a constitutional matter, in terms of section 167(1)(b) of the Constitution, it is itself not the constitutional matter.

This is so because its determination does not entail the interpretation or protection of the Constitution. Its determination is an exercise of the court's discretion, in the interests of justice, to establish whether the court's jurisdiction is triggered and engaged in accordance with the law and established practice.

Further, the determination of an application for direct access by this Court is not, in my view, an exercise of the inherent power of this Court to protect and regulate its own processes as submitted by counsel for the second respondent.

The determination of such an application serves to confirm or deny the presence of a constitutional matter, which, in the interests of justice, this Court must determine as a court of first and final instance.

Thus, it stands to reason, that, before an application for leave to access the court directly is granted, there is no constitutional matter before the court. Absent a constitutional matter before the court, its review jurisdiction, as contemplated in the application before me, cannot be triggered.

Counsel for the applicants drew my attention to the case of Moyo v Chacha and Others CC15-17.

In that matter, this court stayed the proceedings of the magistrates court pending determination of an application on a constitutional matter that had been filed before it.

In a somewhat terse ruling, the Court was persuaded, that, there were gross irregularities attendant upon the process that had been invoked against the applicant. In its own words:

“The papers before the court clearly reveal that there is a real possibility that due process was not complied with in the handling of this matter. In the light of that, the concession by the Prosecutor General is based on sound legal considerations in this matter.

Quite clearly, a definitive decision on whether or not there was failure of due process in the handling of this matter can only be determined by the Constitutional Court, as opposed to a Judge sitting in Chambers. It is for the Constitutional Court, if it so finds that there were procedural failures of due process in this matter, to decide what remedies are available to the applicant.”

I however find the above case to be of marginal relevance to the application before me.

The facts of the application before me are to be distinguished from the facts in Moyo v Chacha and Others CC15-17. As stated above, in that case, the substantive constitutional application was pending before this Court, unlike in casu.

It therefore presents itself clearly to me, that, an application for leave to access this court directly is precisely what its name suggests. It seeks leave to place the constitutional matter before the court. It is itself not the constitutional matter, and, until it is granted, the constitutional matter is not before the Court and the review jurisdiction of this Court is neither triggered nor engaged.

The mere filing of an application for leave to access this Court directly is insufficient to confer jurisdiction upon this Court to interfere with the unterminated proceedings of the magistrates courts. It does not afford the applicants the proverbial foot in the door that they had hoped for.

It is therefore my finding, that, I do not have jurisdiction to interfere with the unterminated proceedings that are before the first respondent.

In view of this finding, I am unable to proceed any further, and, in particular, I am unable to determine the issues of urgency or the availability of alternative remedies to the applicants, points that the second respondent raised in opposition to the application.

Disposition

Regarding costs, there is no justification that I depart from the general position not to make an order as to costs in favour of any of the parties in an application of this nature.

In the result, I make the following order:

The application is dismissed with no order as to costs.

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

This is an application for leave to appeal against a decision of the Supreme Court handed down on 25 November 2021.

Holding that there was no proper appeal before it, the Supreme Court struck from its roll the appeal that the applicant had noted against a judgment of the High Court.

Using its review powers, the Supreme Court proceeded to set aside the proceedings of the High Court. In doing so, it held that the High Court did not have the requisite jurisdiction to determine the matter as it did or at all.

It is this order that the applicant intends to appeal against, with leave.

Background

The applicant was arrested by the police on 23 November 2017. He is facing one count of contravening the Prevention of Corruption Act [Chapter 9.16], and one count each of contravening sections 174(1)(a) and 126 of the Criminal Law (Codification and Reform) Act [Chapter 9.23]. These relate to abuse of office as a public officer and fraud respectively. He is appearing before the Magistrates Court.

Prior to his arrest by the police, the applicant alleges that he was unlawfully arrested by the military police, in particular, seven men in military uniform and armed with assault rifles. He further alleges that these seven men, in military uniforms, armed with assault rifles, blindfolded him and took him to an unknown place where they forcibly held and interrogated him for nine days.

Thereafter, the applicant was formally arrested by the police.

Upon being arraigned before a magistrate, the applicant pleaded with the court not to be placed on remand for the alleged offences as his arrest was unlawful.

In essence, he was seeking, as consequential relief, a permanent stay of his prosecution on the three charges.

In this regard, he contended that his arrest, for the purposes of the law, had commenced when he was arrested by the unknown military personnel, agents of the State and that such arrest was patently unconstitutional as he was not brought before a court within the forty-eight hours stipulated in the law.

The arrest and torture of the applicant by the men in military uniform was not challenged by the first and second respondents before the magistrate or in any proceedings thereafter.

In arguing that the applicant's rights had been duly observed upon his arrest, the first and second respondents confined their submissions to the events that unfolded after the formal arrest of the applicant by the police.

Ruling on the unlawful arrest and torture of the applicant, the trial magistrate found, that, the applicant had failed to prove that the seven men in military uniform, and armed with assault rifles, were agents of the State. After further finding that his subsequent arrest by the police was procedural, the trial magistrate placed the applicant on remand, denied him bail, and remanded him in custody.

The applicant was, in due course, granted bail by the High Court.

In doing so, the High Court expressed its disquiet over the failure by the trial magistrate to properly investigate the alleged infringements of the applicant's rights and freedoms.

The trial of the applicant commenced.

Whilst it was underway, the applicant approached the High Court, under section 85(1) of the Constitution, once again seeking a permanent stay of the criminal proceedings against him on the basis that his rights and freedoms had been infringed as detailed above.

At the hearing of the matter before the High Court, the issue of the jurisdiction of that court to determine the matter during the pendency of the criminal trial before the Magistrates Court arose.

The High Court dismissed the contention that it did not have the requisite jurisdiction to determine the matter.

It nevertheless went on to dismiss the matter on the basis, that, the torture of the applicant was for no apparent reason in that it had not elicited any evidence or confession from the applicant. Being gratuitous, the torture of the applicant by the military was, at law, not a sound basis for permanently staying the criminal proceedings against him, the High Court went on to rule.

Dissatisfied with the dismissal of his application by the High Court, the applicant noted an appeal to the Supreme Court. It is not necessary that I set out the grounds of the appeal. This is so, because, in its decision, the Supreme Court neither determined nor adverted to these grounds.

It is however pertinent to record, that, the finding by the High Court, that it had jurisdiction in the matter, was not appealed or cross-appealed against.

Mero motu, the Supreme Court raised the issue.

It thereafter properly invited the parties to make additional submissions addressing the legal position governing the jurisdiction of the High Court in the matter.

It was the view of the Supreme Court, and correctly so, that, the provisions of section 175(4) of the Constitution were integral to the appeal that was before it, and, in particular, on the issue it had raised with the parties.

This is the provision that details the procedure to be adopted when a constitutional matter arises during any court proceedings.

The Supreme Court was keenly alive to the pending criminal proceedings before the Magistrate's Court, and during which proceedings the constitutional question of the legal redress of the applicant's unlawful arrest and torture had arisen.

Consequently, the Supreme Court found, that, by approaching the High Court during the pendency of the proceedings before the Magistrates Courts, the applicant had contradicted the precepts of certainty of process as articulated by this Court in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC).

I advert to this point in greater detail below.

In the final analysis, the Supreme Court held, that, the ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) applied in full force to the facts before it. It also made the following four observations:

1. That, the Magistrates Court had vantage over the High Court in that it had heard evidence on the matter whereas the High Court was relying on an affidavit;

2. That, the Magistrates Court had jurisdiction in the matter;

3. That, the proceedings before the High Court had the potential to disrupt the proceedings in the Magistrates Court; and

4. That, the approach to the High Court was novel and was not supported by an elaborate procedure as the one set out in the rules of the Constitutional Court.

As a result, the decision by the High Court was found, rather euphemistically, to have been made on no sound jurisdictional basis and was accordingly set aside. In short, the Supreme Court held, that, the High Court had no jurisdiction in the matter.

The Intended Appeal

In the event that he is successful in the application for leave, the applicant intends to appeal against the decision of the Supreme Court on the following three grounds:

“1. The court a quo misdirected itself in not finding, that, the fact that the High Court is a 'superior court of record' under section 170 of the Constitution prohibited the Supreme Court from regarding the High Court as one of the 'inferior courts of justice' referred to in section 25 of the Supreme Court Act [Chapter 7.13].

2. The court a quo misdirected itself and erred in law in applying the precepts set out in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) to take away the jurisdiction of the High Court to determine the appellant's application brought to it under section 85 of the Constitution, notwithstanding the pendency of criminal proceedings in the magistrates court.

3. The court a quo erred and misdirected itself in not finding, that, once the High Court, rightly or wrongly, assumed jurisdiction and determined on the merits, an application under section 85 of the Constitution, the resultant judgment could not be a nullity.”

The broad issue that falls for determination in this application is whether it is in the interests of justice that the applicant be granted leave to appeal to this Court against the order of the Supreme Court.

The narrow and more specific issue is whether the decision of the Supreme Court was on a constitutional issue that was clearly articulated, and, additionally, whether the intended appeal enjoys prospects of success.

I define the issues narrowly in this fashion following the requirements of the law governing the determination of applications for leave to appeal to this Court.

The Law

The law that governs applications for leave to appeal to this Court is settled and appears in a line of cases that remain undisturbed since the adoption of the Constitution.

A judge or court determining such an application must be satisfied that the matter raised in the intended appeal is a constitutional matter that has been clearly and concisely set out. This is so because this Court, being a specialized court, only enjoys jurisdiction in constitutional matters.

Further, the judge or court must be satisfied, that, the constitutional matter enjoys prospects of success on appeal.

This, in turn, serves to reserve the jurisdiction of this Court only to deserving cases.

See Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC); Muza v Saruchera CC05-19; Bonnview Estate (Pvt) Ltd v Zimbabwe Platinum Mine (Private) Limited & Ministry of Lands and Rural Resettlement CC06-19; Mbatha v National Foods CC06-21; and Konjana v Nduna CC09-21.

Applications for leave to appeal to this Court are made in terms of Rule 32 of the Constitutional Court Rules 2016.

I note, in passing, that, Rule 32 does not, as does its counterpart Rule 21(8), which deals with applications for direct access to this Court, set out the factors to be considered as being in the interests of justice.

Therefore, in assessing whether or not it is in the interests of justice to grant an application for leave to appeal, the practice of this Court has been guided by the past decisions of this Court as set out in the authorities referred to above.

Regarding prospects of success, the practice has been to look for more than an arguable case.

Prospects of success are established if, on appeal, this Court is likely to reverse the finding of the lower court or to materially change the order a quo.

Analysis

I find that the intended appeal will raise a constitutional matter.

This is the issue of the jurisdiction of the High Court in an application brought in terms of section 85(1) of the Constitution for the enforcement of a fundamental right or freedom during the pendency of other court proceedings.

Section 85(1) of the Constitution is the provision that confers the requisite constitutional jurisdiction on courts to enforce a fundamental right or freedom. Conversely, it is the provision that guarantees the right of all persons to access a court for the enforcement of fundamental rights and freedoms.

The issue of the jurisdiction of the High Court, in the circumstances of this matter, will entail an interpretation of the right of access to a court as provided for in section 85(1) of the Constitution and whether it is to be enjoyed in all circumstances, at all times, and without any impediment.

It is, without a doubt, a constitutional matter.

I draw confidence in my finding above from the fact, that, the determination of whether or not this Court had jurisdiction in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) was, unavoidably and correctly so, regarded by this Court as a constitutional matter.

That matter similarly involved an interpretation of section 85(1) of the Constitution.

Indeed, the facts in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC), to a large extent, mirror the facts of the intended appeal.

In both instances, the applicants approached another court for the purported enforcement of their fundamental rights and freedoms during the pendency of other proceedings.

The applicant having cleared the first hurdle, I now turn to consider whether the issues raised in the intended appeal have any prospects of success....,.

The first ground of appeal raises the issue of the review jurisdiction of the Supreme Court over the proceedings and decisions of the High Court.

It is the appellant's contention, that, the High Court is a “superior court of record” under section 170 of the Constitution and that this in turn prohibits the Supreme Court from regarding it as one of the “inferior courts of justice” referred to in section 25 of the Supreme Court Act [Chapter 7.13].

As correctly noted by the applicant, section 170 of the Constitution provides that the High Court is a superior court of record.

The term “superior court of record” is however not defined in the Constitution.

Counsel for the applicant relied on the remarks by the Supreme Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) where the court held, that, the High Court was not an inferior court as contemplated by section 25 of the Supreme Court of Zimbabwe Act.

Whilst this decision has not been specifically overruled subsequently, it has been studiously and routinely ignored by the Supreme Court itself.

Quite apart from the fact that the Supreme Court is not bound by its own decisions, this is one decision that is well known in the jurisdiction for the fact that it has been ignored more times than it has been applied.

For the purposes of determining this application, it is not necessary that I debate and determine the stare decisis effect of Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) generally or seek to reconcile it with the numerous later decisions of the Supreme Court that have clearly gone against it.

This is so because it is my considered view, that, this application, and the intended appeal, turn and fall by the way side on the basis of the second issue raised by the applicant.

In the second ground of the intended appeal, the applicant contends that “the court a quo misdirected itself and erred in law in applying the precepts set out in Chihava & Ors v Principal Magistrate & Anor…, to take away the jurisdiction of the High Court to determine the appellant's application brought to it under section 85 of the Constitution, notwithstanding the pendency of criminal proceedings in the Magistrates Court.”

I cite in the contention the first ground of the intended appeal in full.

That the decision of the Supreme Court was squarely based on the ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is not in dispute.

The ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC), correctly understood, has a fairly broad and far-reaching impact on the right of persons to access a court in terms of section 85(1) of the Constitution for the enforcement of fundamental rights and freedoms in circumstances where section 175(4) of the Constitution can also, and should, consequently apply.

I understand the ratio decidendi of the case to lay down the legal proposition, unequivocally and without exception, that, any person who is appearing before any court and intending to raise and rely on any alleged violation of their fundamental rights or freedoms for any relief, must invoke the provisions of section 175(4) of the Constitution or forever lose their right to claim relief for such violations.

Put differently, Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) holds, that, the right of any person to access a court, in terms of section 85(1) of the Constitution, if that person is already a party to proceedings before another court, is completely negated and the constitutional jurisdiction of all other courts is ousted.

I pause to note, that, this negation of the right to access other courts or the complete ouster of the jurisdiction of other courts, other than the court wherein the proceedings are underway, is not a mere rule of practice and procedure which, in the interests of justice, may be departed from.

It is an interpretation of the Constitution by this Court.

It therefore forms part of the body of the Constitutional Law of this jurisdiction on access to the courts to enforce a fundamental right or freedom.

In consequence of the above, the broad position of the law then becomes, that, where a person is already before a court in any proceedings, an approach to any other court, in terms of section 85(1) of the Constitution, for the enforcement of a fundamental right or freedom, outside the provisions of section 175(4) of the Constitution, is legally incompetent.

It begets a nullity for want of jurisdiction.

The other court so approached is stripped of its constitutional jurisdiction under section 85(1) by the availability of the procedure under section 175(4).

The above interpretation of the Constitution, by implication, rightly or wrongly, also supersedes and overrules the common law position that grants the High Court inherent jurisdiction over all persons and all matters.

It would appear that the legal position that I have outlined above, unduly restrictive on the right to access courts for the enforcement of fundamental rights and freedoms as it seems to be, is the position that obtained under the repealed Constitution.

It was the settled position under that Constitution, that, any constitutional issues arising in a lower court, during the course of any proceedings, had to be referred to this Court in terms of section 24(2) and could not be brought, pursuant to section 24(3), as a fresh cause of action under section 24(1): see Jesse v Attorney-General 1999 (1) ZLR 121 (S)…,.

Notwithstanding the adoption of the current Constitution, the position of the law remains unchanged.

Section 175(4) of the Constitution is the equivalent of section 24(2) of the repealed Constitution whilst section 85(1) is the current version of section 24(1), albeit improved.

That, the two provisions are located in different chapters of the Constitution detracts not from their effect and import as interpreted by this Court.

If I have correctly understood its ratio decidendi, then, Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is authority for the simple proposition, that, where any person is before any court on any non-constitutional matter, but intends to seek redress for the alleged breach of his or her fundamental rights and/or freedoms arising in connection with that matter, he or she must raise the alleged breach before that court and invoke the provisions of section 175(4) of the Constitution if he or she intends to have the matter determined by this Court.

The party may also petition that court directly for any appropriate relief.

The net effect of this position is, that, any purported approach to another court, in terms of section 85(1) of the Constitution, under the circumstances, is not only impermissible but is a nullity as the constitutional jurisdiction of all other courts, the High Court included, is not only arrested but is lost by operation of law.

The import of the decision in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is thus not only to render section 175(4) of the Constitution as regulating access to the Constitutional Court on issues arising during proceedings before any court, as argued by counsel for the applicant, but to render section 85(1) of the Constitution redundant and of no force and effect where proceedings involving the applicant are pending before a court.

On the basis of the above, I must reject the argument by counsel for the applicant, that, section 85(1) of the Constitution creates unimpeded access to the High Court.

It does not always do so.

It only does so where there are no pending proceedings before any other court to which the applicant is a party.

In casu, the applicant was appearing before the Magistrates Court where he correctly raised the allegations of the breach of his fundamental rights. By the mere fact that he was appearing before the Magistrate's Court where he was obliged to raise such allegations, the constitutional jurisdiction of all other courts, under section 85(1) of the Constitution, the High Court, and this Court included, was thereby extinguished and lost.

This is the import of the ratio in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) which the Supreme Court correctly applied.

The ratio of Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC), however, does not extinguish the right of the applicant to access this Court under section 85(1) of the Constitution, alleging that a lower court has wrongfully refused a request for a referral made under section 175(4) of the Constitution.

The cause of action in that matter will be the refusal by the lower court to refer the matter to this Court and not the alleged violation of the fundamental rights or freedoms giving rise to the referral.

It is therefore my finding, that, the applicant enjoys no prospects of success on the second ground of the intended appeal. It is most unlikely that this Court will reverse the order of the Supreme Court and find, instead, that, the High Court enjoyed jurisdiction, inherent or otherwise, in the matter.

By parity of reasoning, the third ground of the intended appeal falls by the wayside.

The assumption of jurisdiction by the High Court, in the circumstances of this matter, was erroneous and grievously so. It begot nothing that can be salvaged. Once it is accepted that the High Court did not have any jurisdiction in the matter that concludes the inquiry. Its proceedings fall away automatically by operation of law.

There is thus no possibility, in the circumstances of this matter, that, this court will find, as contended by the applicant, that “the court a quo erred and misdirected itself in not finding that once the High Court, rightly or wrongly, assumed jurisdiction and determined on the merits, an application under section 85 of the Constitution, the resultant judgment could not be a nullity.”

Disposition

The applicant has no prospect of success on its main contention that the High Court had jurisdiction in the matter that was placed before it. Accordingly, his application for leave to appeal cannot succeed.

Regarding costs, I see no justification for making an award of costs in this matter.

In the result, I make the following order:

The application is dismissed with no order as to costs.

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CC11-18 : LYTTON INVESTMENTS (PRIVATE) LIMITED vs STANDARD CHARTERED BANK ZIMBABWE LIMITED and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ

View Appeal
CC09-19 : SIMON SHONHAYI DENHERE vs MUTSA DENHERE (nee MARANGE) and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ and GWAUNZA DJC and BERE JCC

CC02-20 : JOSEPH CHANI vs JUSTICE HLEKANI MWAYERA and MICHAEL MUGABE and MUSUTAMI CHIFAMUNA and NATIONAL PROSECUTING AUTHORITY
Ruled By: MALABA CJ

CC05-19 : MISHECK MUZA vs REGGY SARUCHERA (as liquidator of J.W. Jaggers Wholesalers PL) and PRICE TRUST and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS
Ruled By: MALABA CJ and PATEL JCC and GUVAVA JCC

CC10-17 : ROBERT CHIITE and SEVEN OTHERS vs THE TRUSTEES OF THE LEONARD CHESHIRE HOMES ZIMBABWE CENTRAL TRUST
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC, MAVANGIRA JCC and BHUNU JCC

CC09-20 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MALABA CJ

CC02-21 : TEMBA MLISWA vs PARLIAMENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE AJCC, MAKARAU AJCC, GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

CC03-21 : PRAYMORE MAKANDA vs MAGISTRATE SANDE N.O. and MAGISTRATE KADYE N.O. and MAGISTRATE NDIRAYA N.O. and THE STATE
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Appealed
CC01-20 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, MAKONI JCC and BERE JCC

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC04-22 : JOANAH MAMOMBE and CECILIA CHIMBIRU vs FAITH MUSHURE N.O. and THE STATE
Ruled By: MAKARAU JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC