MAKARAU JCC:
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.
Background
We summarise the facts giving rise to this application from the two applications that were filed in the High Court under case numbers HC2128/21 and HC2166/21, respectively. The facts are not complex.
The facts of this application coalesce, and relevantly so, around 15 May 2021 when the Chief Justice, Judge Malaba, reached the age of seventy. A few days before that date, on 7 May 2021 to be precise, the Constitution of Zimbabwe Amendment (No.2) Act (No.2 of 2021) came into force.
Among other provisions, it amended section 186 of the Constitution to provide for the tenure of judges in the following terms:
“(1) The Chief Justice and the Deputy Chief Justice hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire unless before they attain that age they elect to continue in office for an additional five years;
Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.
(2) Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years; but
(a) They must retire earlier if they reach the age of seventy unless, before they attain that age, they elect to continue in office for an additional five years:
Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.
(b) After the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment.
(3) Judges of the Supreme Court hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional five years:
Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.
(4) Notwithstanding subsection (7) of section 328, the provisions of subsections (1), (2) and (3) of this section shall apply to the continuation in office of the Chief Justice, the Deputy Chief Justice, Judges of the Constitutional Court and Judges of the Supreme Court.”
Acting in accordance with the provisions of section 186 of the Constitution, as amended, the Chief Justice exercised the option to extend his tenure of office beyond the age of seventy for an additional five years.
By letter dated 11 May 2021, the seventh respondent, the President, accepted a medical report as to the mental and physical fitness of the Chief justice to continue in office.
The third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Mutanda) respondents formed the firm view, that, the seventh respondent (the President), by accepting the medical report, that the Chief Justice was mentally and physically fit to so continue in office, had subverted the correct constitutional position.
They filed the two applications in the High Court that we have detailed above, challenging the continuation in office of the Chief Justice for an additional five years beyond 15 May 2021.
In his application, the third respondent (Musa Kika), in addition to the Chief Justice, cited as respondents all the judges of the Supreme Court and some judges of the High Court.
At the time of the filing of the application, the five judges of this Court, other than the Chief Justice and the Deputy Chief Justice, were Supreme Court judges, acting as Supreme Court judges and were cited as such. Substantive appointments to this Court were made subsequent to the filing of the applications a quo but before the hearing of this application.
Whilst materially and correctly so, the third respondent (Musa Kika) averred in his application, that, the Chief Justice had opted to exercise the option introduced by the amendment, no such averment was made in respect of any or all of the other judges who were cited as respondents under case number HC2128/21.
We revert to this fact in detail later.
The primary relief sought in the applications a quo was a declaration that the amendment to the Constitution, in section 186, did not apply to the Chief Justice and the judges cited as respondents. Specifically, it was claimed, that, the amendment did not have any force and effect on the tenure of the Chief Justice and the cited judges as such an interpretation would fall foul of the provisions of section 328(7) of the Constitution.
Section 328(7) of the Constitution provides that:
“(7) Notwithstanding any other provision of this section, an amendment to a term–limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”
The two applications, both brought urgently, were opposed on truncated dies induciae in accordance with the terms of a case management meeting order to which all the parties agreed.
At the end of the hearing of the applications, as indicated above, 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.”
The respondents a quo, including the judges of this Court, were aggrieved by the order.
Under separate and different covers, they filed notices of appeal in the Supreme Court challenging the correctness of the decision.
It is not necessary that we set out the grounds of appeal of each appellant in full. As and when it is it necessary to do so, we shall advert to the notices of appeal.
The applicant, strongly believing, that, the effect of the first part of the order was to declare constitutionally invalid the letter of 11 May which constituted the legal authority for the Chief Justice to continue in office, filed this application in terms of section 175(3) of the Constitution.
As indicated above, he sought the setting aside of the entire order.
This he did notwithstanding, that, on its mere reading, the High Court order did not in any way refer to the conduct of the seventh respondent (the President) as constitutionally invalid.
We observe, at this stage, that, the interpretation of the High Court order by the applicant in this regard was conceded as correct by the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondent's counsel during the hearing of the application.
We shall advert to this concession in detail in due course.
The Application in terms of section 175(3) of the Constitution
It is common cause that the applicant was not a party to either of the two applications that were determined by the High Court. He brought this application in the first instance. In the application, he alleged that he is an adult Zimbabwean who is asserting his right to access this Court directly to defend and protect the Constitution.
Arguing that the state of affairs in the country following the issuance of the High Court order was undesirable as there should never, in any jurisdiction, be doubt as to who the Chief Justice is, the applicant made two basic contentions:
(i) Firstly, he contended, that, the juristic act by the seventh respondent (the President) of accepting a medical report as to the mental and physical fitness of the Chief Justice to remain in office for an additional five years, after attaining age seventy, was valid and the High Court orders purporting to hold such as constitutionally invalid had to be set aside.
(ii) Secondly, he contended, that, section 328(7) of the Constitution, relied upon by the third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents as precluding the amendment of the Constitution from applying to the Chief Justice and other sitting judges was not applicable as section 186(4) of the Constitution was the applicable section.
The third, fourth, and fifth respondents opposed the application.
The first (Minister of Justice, Legal and Parliamentary Affairs), second (Judicial Service Commission), sixth (Attorney General) and seventh (the President) respondents were content to keep a watching brief during the hearing of the application.
The third respondent (Musa Kika) opposed the application on the basis of a sole preliminary point. It was his position that this court should refrain from exercising jurisdiction in the matter.
Put differently, it was his position, edified during the proceedings by an oral application, that, this Court should recuse itself. In his view, since the second part of the High Court order declared that the judges of this and the Supreme Court could not extend their respective terms of office beyond the age of seventy, the order under scrutiny in the confirmation proceedings affects the judges of this Court directly.
In this regard, he was keen to highlight and place it on record, that, the judges of this Court had not only participated in the proceedings before the High Court but had since filed a notice of appeal against the High Court order.
It was therefore the mainstay of his exception and position, that, the judges of this Court were completely non-suited to hear this application on account of their positions as active litigants who were already seeking the vacation of the High Court order by way of appeal.
In his further view, the determination of the application by this Court, as constituted, would, in the circumstance of the matter, implicate a breach of the common law principle nemo judex in sua causa.
In opposing the application, the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents raised a number of issues:
(i) Firstly, they challenged the competence of this Court to determine the application. They also sought the recusal of the entire bench of this Court on the same ground that the third respondent (Musa Kika) had relied upon.
(ii) Secondly, and before a competently constituted Court, the fourth respondent took issue with the locus standi of the applicant to bring the application in the manner that he did. In essence, it was the fourth respondent's position that the applicant, not having obtained any rights under the High Court order, could not purport to challenge the order.
(iii) Thirdly, and regarding the merits of the matter, the fourth respondent challenged the procedural steps taken and leading to the acceptance by the seventh respondent (the President) of a medical report as to the mental and physical fitness of the Chief Justice to continue in office for an additional five years after his seventieth birthday.
Thus, broadly speaking, the application raised for determination three distinct issues. The second issue would only become relevant and fall for determination if the respondents were not successful on the first issue and the third issue would only require determination if the respondents failed on the second issue.
(i) The first issue was whether this Court should recuse itself;
(ii) If the Court did not recuse itself, the second issue would be whether the applicant had locus standi to bring the application under section 175(3) of the Constitution; and
(iii) Finally, if he did have the requisite standing, whether the application had merit....,.
PATEL JCC: It is pertinent, at this juncture, before addressing the substance of the matter, to make an observation concerning the conduct of the third respondent (Musa Kika).
Even though he was primarily instrumental in initiating the proceedings a quo, he deliberately chose not to address any issue other than that of recusal; either in his opposing affidavit or in his heads of argument.
Equally curiously, at the end of the proceedings on the question of recusal, he and his counsel elected not to appear in any further proceedings before the Court. In the event, the matter proceeded in the absence of the third respondent and without the benefit of his submissions on the substantive merits of the matter.
The relief sought by the applicant in this matter is essentially threefold:
(i) The first is a declaratur to the effect that paragraphs 1 and 2 of the operative part of the High Court judgment No.264-21, handed down on 15 May 2021, are orders of constitutional invalidity within the contemplation of section 175(1) of the Constitution.
(ii) The second is a further declarator to the effect, that, the aforesaid High Court orders have no force unless confirmed by this Court.
(iii) Lastly, the applicant seeks a substantive order declining to confirm and setting aside the impugned High Court orders.
My learned sister, MAKARAU JCC, in addressing the application for recusal, has earlier outlined the broad issues raised by this application. Having regard to the averments contained in the affidavits filed by the parties and the arguments presented before us, the specific issues that now arise for determination in this matter are as follows:
(i) Whether the applicant has the requisite locus standi to institute this application.
(ii) The effect of the failure by the applicant in the proceedings a quo (i.e. the third respondent herein) to seek and obtain leave to sue all the judges that were cited as respondents in that matter.
(iii) Whether the orders of the court a quo are orders of constitutional invalidity requiring the confirmation of this Court.
(iv) The correctness of the judgment of the court a quo -
(a) In its interpretation of sections 186 and 328 of the Constitution; and
(b) As regards the alleged violation of the right to equal protection of the law and the right of access to the courts.
(v) Whether this Court should decline to confirm and accordingly set aside the orders granted by the court a quo.
I propose to address and determine the foregoing issues ad seriatim....,.
Orders of Constitutional Invalidity Requiring Confirmation
As already stated, the court a quo issued two declaratory orders:
(i) The first declared, that, the second respondent (the Chief Justice) ceased to hold that office by operation of law.
(ii) The second declared, that, the extension of office beyond the age of 70 years, provided for in section 186 of the Constitution, does not apply to the second to the fourteenth and the eighteenth respondents (the senior judges).
The question that arises for determination is whether or not these declarators amount to orders concerning constitutional invalidity within the meaning of section 175(1) of the Constitution requiring the confirmation of this Court in terms of section 175(3) of the Constitution.
Counsel for the applicant submits, that, this question must be answered in the affirmative and that the orders made a quo have no effect unless confirmed by this Court.
The nature of a judgment is not determined by its characterisation but by its dictates and effects. One must look at its substance and true nature and not at its form.
The court a quo stated, that, the purported extension of office of the incumbent Chief Justice remains a nullity and was void ab initio.
In effect, the court found, that, the election to continue in office made by the Chief Justice, as approved in writing by the President, was invalid. The court also found, albeit indirectly, that section 186(4) of the Constitution was invalid and ineffective.
The effect of both orders was to render invalid the conduct of the President as well as that of Parliament.
There was clearly a declaration of invalidity within the meaning of section 175(1) of the Constitution and it requires confirmation under section 175(3) of the Constitution.
In response, counsel for the fourth and fifth respondents concedes, that, the orders of the court a quo declared the conduct of the President and Parliament to be invalid without directly citing them.
Mr Zhuwarara notes, that, this concession on behalf of the fourth and fifth respondents is correct.
One must look to the reasons and orders of the court a quo to determine the effect of their substance.
These orders invalidated the decision of the President to allow the extension of office of the incumbent Chief Justice as well as the conduct of Parliament in enacting section 186 of the Constitution.
They are therefore subject to confirmation by this Court.
There can be no doubt, that, in terms of section 175(1) of the Constitution, the High Court, as a subordinate court, is perfectly competent to make an order of constitutional invalidity. However, any such order will have no force or effect unless it is confirmed by this Court.
This is because section 167(3) and section 175(1) of the Constitution explicitly declare, that, an order of constitutional invalidity made by another court has no force before and unless that order is confirmed by the Constitutional Court.
Section 167(3) of the Constitution also makes it clear, that, this Court makes the final decision as to whether an Act of Parliament or conduct of the President or Parliament is constitutional.
Sections 175(1) and 167(3) of the Constitution serve distinct yet harmonious purposes, emphasising the express oversight of this Court over orders of constitutional invalidity made by subordinate courts: see Makamure v Minister of Public Service, Labour and Social Welfare & Anor CC01-20…,.
Thus, section 175(3) of the Constitution vests in this Court the exclusive competence to preside over confirmation proceedings, in which proceedings the Court makes the final determination as to whether any law or conduct of the President or Parliament is consistent or inconsistent with the Constitution.
Turning to the two orders made by the court a quo, it will be seen, that, they contain no direct reference to the concept of constitutional invalidity.
Nevertheless, it is a settled principle of law, that, the true nature of a court order is a matter of substance and not form.
Thus, to determine whether an order is an order of constitutional invalidity, one must look to the substance of the order: see President of the Republic of South Africa v SARFU 1999 (2) SA 14 (CC); Eke v Parsons 2015 (2) BCLR 1319 (CC).
A closer reading of the orders in casu, and their substance, shows the following:
The first order declares, that, the incumbent Chief Justice ceased to hold that office by operation of law.
The inescapable effect of that order was to declare as invalid the conduct of the President, as per his letter of 11 May 2021, which conduct validated the extension of tenure of the Chief Justice.
As a result, the court a quo, in substance, held that the conduct of the President was invalid as being contrary to the provisions of the Constitution.
Turning to the second order, by holding that section 186 of the Constitution did not apply to all the judges who were cited as respondents, the court a quo effectively declared that section 186(4) of the Constitution was invalid.
The provisions of section 186 of the Constitution give the judges in question the option to elect to retire upon reaching the age of 70 years or to continue in office until they reach the age of 75 years.
The court a quo arrived at the decision, that, the election to extend tenure did not apply to sitting judges upon its finding that Parliament had amended a term limit provision and thereby violated the provisions of section 328(7) of the Constitution.
There can be no doubt, that, the judgment of the court a quo made, in effect, a finding of constitutional invalidity of the conduct of Parliament in enacting section 186 of the Constitution in violation of section 328(7) of the Constitution.
By doing so, it also rendered otiose the provisions and purpose of section 186(4) of the Constitution.
The substance and effect of the orders in casu are unquestionably tantamount to orders of constitutional invalidity within the contemplation of section 175(1) of the Constitution.
As was spelt out in S v Chokuramba CC10-19, only the Constitutional Court has the final say concerning the constitutionality or otherwise of any law or conduct of the President or Parliament.
To the extent that the court a quo effectively invalidated section 186(4) of the Constitution, as well as the conduct of the President and Parliament, the final authority to confirm or vary the orders of that court rests with this Court.
Moreover, the involvement of the Constitutional Court in the process of determining the constitutionality of any law or conduct of the President or Parliament, through confirmation proceedings, is mandatory.
There can therefore be no doubt, that, this Court is properly seized with the matter insofar as it pertains to questions of constitutional invalidity. Inasmuch as the matter is within its exclusive jurisdiction, the Constitutional Court cannot renounce or abdicate its constitutional duty.
To sum up, the impugned orders of the court a quo constitute orders concerning constitutional invalidity as contemplated in section 175(1) of the Constitution and they are therefore subject to confirmation or variation in accordance with section 175(3) of the Constitution.
Correctness of Judgment of Court a Quo
The determination of this matter on its merits hinges upon the correctness of the judgment a quo:
(i) Firstly, in its interpretation of section 186 and section 328 of the Constitution; and
(ii) Secondly, in its findings on the alleged violation of the right to equal protection of the law and the right of access to the courts.
As regards the first aspect, the court a quo found, that, sections 186 and 328 of the Constitution were not in conflict, but, must be read together and with the Constitution as a whole.
The court concluded, that, section 186 of the Constitution was a term limit provision and that it had the effect of extending the length of time that a person may hold office as a judge of the Constitutional Court and the Supreme Court. The court reasoned, that, tenure has to do with term of office and term of office has to do with time. Both fixed term and age-based term have to do with time, and, therefore, the inescapable conclusion is that varying retirement age amounts to varying a term limit.
With reference to section 186(4) of the Constitution, the court found that its explicit reference to section 328(7) of the Constitution would be rendered superfluous or nugatory if it is found that section 186 is not a term limit provision.
The court also relied on the decision in Justice Alliance of South Africa v President of the Republic of South Africa & Others 2011 (5) SA 388 (CC)…, as confirming that age is an indifferent criterion which can and does define and can be used to extend a term of office, as was the case with section 186 of the Constitution.
In reading section 186(4) together with section 328(7) of the Constitution, the court concluded, that, the former does not apply to judges of the Constitutional Court and Supreme Court who held office before the amendment of section 186 of the Constitution. Section 186(4) must therefore be understood as being applicable to persons who are appointed to those judicial offices subsequent to the amendment.
As regards the right to equal protection of the law, the court held, that, the continued occupation of office by the incumbent Chief Justice, after he had turned 70 years old, violated the applicants right as enshrined in section 56(1) of the Constitution. The applicants were entitled to the protection and benefit of the law in the sense of having public office occupied in accordance with and not in violation of the provisions of the Constitution.
As for the right of access to the courts, it was observed, that, the rule of law affords the right to litigate before an impartial and independent court. If judicial officers have their age limit extended contrary to the express provisions of the Constitution, which prevent incumbents from having their terms of office extended for them while they are in office, questions will reasonably abound as to the extent to which the courts can be independent.
Additionally, the election of a judge to continue in office is subject to acceptance by the President and this has the effect of subjecting the term of office, or its extension, to the control of the Executive.
Consequently, the court held, that, if any extension of office is afforded to the judges in question, then, there would be a violation of the applicants right as protected by section 69(3) of the Constitution.
The current section 186 of the Constitution, which replaced its precursor in its entirety, was introduced by section 13 of the Constitution of Zimbabwe Amendment (No.2) Act (No.2 of 2021) promulgated in May 2021.
Subsections (1), (2) and (3) provide that the Chief Justice, Deputy Chief Justice, and judges of the Constitutional Court and Supreme Court hold office until they reach the age of 70 years when they must retire, unless, before they attain that age, they elect to continue in office for an additional 5 years.
Subsection (2), which deals with judges of the Constitutional Court, is somewhat different in that those judges are appointed for a non-renewable term of not more than 15 years, but, they must retire earlier if they reach the age of 70 years, unless they elect to continue in office for a further 5 years.
Under all three subsections, the election to continue in office is subject to the acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to the mental and physical fitness of the judges concerned to continue in office.
Subsection (4), the seemingly controversial provision, stipulates that subsections (1), (2) and (3) shall apply to the continuation in office of the judges referred to in those subsections, notwithstanding the provisions of subsection (7) of section 328 of the Constitution.
Subsection (5) provides, that, judges of the High Court, and all other judges, hold office until they reach the age of 70 years, when they must retire.
Subsection (6) enables the appointment of judges for a fixed term, but, stipulates that such judges cease to hold office upon reaching the age of retirement, even if their term of appointment has not expired.
Subsection (7) provides for a judge to continue in office, even though he or she has reached the age of retirement or reached the end of his or her term of office, for the purpose of dealing with any proceedings commenced while he or she was a judge.
Subsection (8) enables a judge to resign from office at any time.
Lastly, subsection (9) declares, that, the office of a judge must not be abolished during his or her tenure of office.
Section 328 of the Constitution governs the manner in and conditions under which the Constitution may be amended.
By virtue of section 328(6) of the Constitution, where a Constitutional Bill seeks to amend any provision of Chapter 4 or Chapter 16, it must be submitted to a national referendum for approval.
Section 328(7) of the Constitution stipulates that “an amendment to a term-limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”
The phrase 'term limit provision' is defined in section 328(1) of the Constitution to mean “a provision of this Constitution which limits the length of time that a person may hold or occupy a public office.”
Section 328(8) of the Constitution states, that, subsections (6) and (7) must not be amended in the same Bill and that amendments to both those subsections may not be subjected to the same referendum.
Lastly, section 328(9) of the Constitution provides, that, section 328 may be amended only by following the procedures set out in subsections (3), (4), (5) and (6), as if section 328 were contained in Chapter 4.
The critical question that arises for determination in casu is whether the court a quo correctly analysed the provisions of section 186 (as amended) and section 328 of the Constitution in arriving at the conclusion that there is no meaningful legal difference between age limits and term limits.
Counsel for the applicant submits, that, subsections (1), (2) and (3) of section 186 of the Constitution extend the age limit of retirement to 75 years but do not extend any term limit as envisaged in section 328(7) of the Constitution. Thus, the term of 15 years prescribed in section 186(2) is a term limit but is subject to the age limit of 70 or 75 years. Parliament did not extend any term limit but only amended the age limit. A term of office is different from the conditions to which it is subjected.
Counsel for the fourth and fifth respondents accepts, that, there is a difference between an age limit and a term limit.
However, he relies upon Justice Alliance of South Africa v President of the Republic of South Africa & Others 2011 (5) SA 388 (CC) to support the judgment of the court a quo.
As regards section 186(4) of the Constitution, he submits, that, it attempts to amend section 328(7) and refers to section 332 of the Constitution which defines the word “amend” very broadly to include 'vary, alter, modify, add to, delete or adapt'. Section 186(4) modifies and amends section 328(7) and is therefore subject to approval by a referendum in accordance with section 328(6) of the Constitution.
Counsel for the applicant counters, that, section 186(4) creates a non obstante clause, and, if there is any inconsistency between section 186(4) and section 328(7), then, it is section 186(4) that prevails.
In any event, so he submits, section 186(4) does not amend section 328(7) but operates to supersede its provisions in relation to the application and effect of section 186.
In arriving at its decision, the court a quo appears to have relied fairly heavily on the judgment in Justice Alliance of South Africa v President of the Republic of South Africa & Others 2011 (5) SA 388 (CC). In particular, it cited the following passages, at paras 75 and 91 respectively:
“…,. It must be borne in mind, that, the extension a term of office, particularly one conferred by the Executive or by Parliament, may be seen as a benefit. The judge or judges upon whom the benefit is conferred may be seen as favoured by it. While it is true…, that the possibility of far-fetched perceptions should not dominate the interpretive process, it is not unreasonable for the public to assume, that, extension may operate as a favour that may influence those judges seeking it.
The power of extension in section 176(1) must therefore, on general principle, be construed so far as possible to minimise the risk that its conferral could be seen as impairing the precious-won institutional attribute of impartiality and the public confidence that goes with it.” [para 75]…,.
“It follows, that, in exercising the power to extend the term of office of a Constitutional Court judge, Parliament may not single out the Chief Justice.
The provision does not allow any member of the category of Constitutional Court judge to be singled out, whether on the basis of individual characteristic, idiosyncratic feature or the incumbency of office.
Age is an indifferent criterion that may be applied in extending the term of office of a Constitutional Court judge.
Age is an attribute that everyone attains.
Previous judicial service is another criterion that may be indifferently applied to all the judges of this Court.
The Act provides, that, a Constitutional Court judge whose 12-year term of office expires before he or she has completed 15 years active service as a judge must, subject to attaining the age of 75 years, serve for 15 years in this Court.” [para 91]…,.
In order to assess the relevance and import of these passages, it is necessary to contextualise the decision of the Constitutional Court of South Africa.
The application before the court arose from a decision by the President of that country to extend the term of office of the Chief Justice for 5 years. The three applicants in the matter challenged the constitutionality of the law that authorised the process by which the term of office of the Chief Justice was extended, and, if the law was found to be valid, they put in issue the constitutional validity of the conduct of the President in the process of extending that term of office. The governing constitutional provision, section 176(1), stipulated as follows:
“A Constitutional Court judge holds office for a non-renewable term of 12 years or until he or she attains the age of 70, whichever occurs first, except where an Act of Parliament extends the term of office of a Constitutional Court judge.”…,.
Section 4 of the relevant Act, the Judges Remuneration and Conditions of Employment Act 2001, provided that a Constitutional Court judge, whose 12 year term of office expired or who reached the age of 70 years before completing 15 years active service, must continue in office until the completion of 15 years active service or until that judge attained the age of 75 years, whichever occurred the sooner.
Section 8(a) of the Act permitted the further extension of the term of office of the Chief Justice exclusively.
It allowed a Chief Justice, whose 12 year term of office was to expire, and who would have completed 15 years active service, to remain as the Chief Justice at the request of and for a period determined by the President.
The court noted, at para 92, that, section 4 of the Act entailed, that, to receive a full judicial pension on retirement, a judge must have completed at least 15 years active service, subject to attaining the age of 75 and to a minimum 12 year term in the Constitutional Court.
However, it was unanimously found, that, section 8(a) of the Act was inconsistent with section 176(1) of the Constitution and was therefore invalid. The court opined as follows, at paragraphs 93 to 94:
“Unlike the criteria of age and service, the offices of Chief Justice and Deputy Chief Justice, are, by definition, singular and person-specific. They can, at any one time, be filled, respectively, by only one incumbent. Section 176(1) does not permit the holders of these offices to be singled out individually for extension by virtue of their incumbency of office. For this purpose, the holders of these offices are merely judges of this Court. Their terms, if they are to be extended, must be extended uniformly with those of the other members of the Court.” [para 93]…,.
“To create a special category for the extension of the term of office of the Chief Justice or Deputy Chief Justice would be, in each case, to single out one judge. It would be to single out a member of this Court on the basis of incumbency of an office that is irrelevant to the delineation of the members of this Court in section 176(1). This, section 176(1) does not license.” [para 94]…,.
In the event, the court declared section 8(a) of the Act, and the decision of the President, to be inconsistent with the Constitution and therefore invalid. The court further held the consequent extension of the term of office of the Chief Justice to be of no force and effect.
As is evident from the above-cited passages, which I have deliberately quoted in extenso, the principal issue for determination in Justice Alliance of South Africa v President of the Republic of South Africa & Others 2011 (5) SA 388 (CC) was markedly different from the issue that this Court is called upon to adjudicate.
In that case, the question to be decided was whether the statutory provision under scrutiny could validly single out the Chief Justice for extension of office at the behest of the President.
The court found, that, the Constitution did not allow Parliament to single out the Chief Justice, or the Deputy Chief Justice, and that their terms of office, if they were to be extended, had to be extended uniformly with those of the other judges of the court.
What was found to be objectionable was the unconstitutional differentiation for the purpose of extension of office.
While age and length of service were indifferent criteria that could validly be applied in extending the term of office of judges, incumbency of a particular office was not a constitutionally permissible attribute for that purpose.
My reading of Justice Alliance of South Africa v President of the Republic of South Africa & Others 2011 (5) SA 388 (CC) evinces nothing to support the conclusion arrived at by the court a quo, to wit, that there is no critical difference between age limits and term limits in evaluating the proper inter-relationship between section 186 and section 328 of the Constitution.
The court appears to have selectively decontextualized and mis-applied the passages that it cited from Justice Alliance of South Africa v President of the Republic of South Africa & Others 2011 (5) SA 388 (CC) in order to bolster its own conclusion.
In interpreting the Constitution, as is the case with any other legislative enactment, it is necessary to have regard to the words used and to deduce from them what the particular word, phrase, or section to be deciphered means.
In doing so, one must take into account the overall context in which it appears.
Moreover, all relevant provisions that bear on the subject for interpretation must be considered together and as a whole, so as to give effect to the objective of the Constitution, having regard to the nature and scope of the rights, interests, and duties that form the subject matter of the provisions to be construed: see Hewlett v Minister of Finance & Anor 1981 ZLR 571 (S); Tsvangirai v Mugabe & Ors CC20-17.
Turning to section 328(7) of the Constitution, the language used in that subsection is relatively unambiguous as to the objective that it seeks to achieve.
It precludes the application of any amendment to a term-limit provision “the effect of which is to extend the length of time that a person may hold or occupy any public office” in relation to any person who held or occupied that office at any time before the amendment came into effect.
A 'term limit provision' as defined in section 328(1) of the Constitution, as one which “limits the length of time that a person may hold or occupy a public office.”
As regards section 186 of the Constitution, a detailed analysis of that section reveals the recognition, throughout its provisions, of a specific distinction between various ages of retirement, on the one hand, and non-renewable or fixed terms of office on the other.
Thus, subsections (1), (2), (3) and (5) prescribe “the age of seventy years” as being the standard age of retirement for the Chief Justice, Deputy Chief Justice, judges of the Constitutional Court, Supreme Court, and High Court and any other judges.
In contrast, subsection (2) specifically provides for the appointment of judges of the Constitutional Court “for a non-renewable term of not more than fifteen years.” It also provides for the option of their appointment to the Supreme Court or the High Court “after the completion of their term.”
Subsection (6) enables the appointment of judges of the Supreme Court, High Court, or any other court “for a fixed term” subject to the cessation of their office upon reaching “the age of seventy-five years…, or seventy years” even if “the term of [their] appointment has not expired.”
Finally, subsection (7) stipulates, that, even though a judge “has resigned or reached the age of retirement” or “reached the end of his or her term of office” he or she may continue to sit as a judge for the purpose of dealing with any prior uncompleted proceedings.
As I understand the foregoing provisions, taken in their plain and grammatical sense, they draw a clear distinction between tenure of judicial office as delineated by specific ages of retirement and tenure as defined by fixed or non-renewable terms of office.
In certain instances, viz. in subsections (2) and (6), the two forms of tenure are combined so as to give precedence to the prescribed age of retirement over the fixed term of office.
In any event, the intention underlying all of these provisions, as I perceive it, is to differentiate rather than assimilate the criteria to be applied in determining judicial tenure of office.
The crisp question to be determined is this: What is the meaning to be ascribed to a “term-limit provision” in the context of section 328(7) of the Constitution vis-a-vis the provisions of section 186 of the Constitution as amended?
The definition of that phrase, in section 328(1) of the Constitution, would suggest, that, it refers to the limitation of a specific “length of time” as opposed to the non-specific effluxion of time.
If that is correct, it would follow, that, age, as a variable criterion, does not fix any specific length of time for holding or occupying public office, but, determines tenure by reference to the varying ages of the incumbents concerned.
This would lead to the conclusion, which I take to be correct, that, term limits, as envisaged in section 328 of the Constitution, are specifically provided for in section 186 in only two distinct instances:
(i) The first is section 186(2) which stipulates, that, judges of the Constitutional Court are appointed “for a non-renewable term of not more than fifteen years”; and
(ii) The second is section 186(6) which enables the appointment of a judge of the Supreme Court, High Court, or any other court “for a fixed term”.
In these two instances, the prescribed term limits cannot be extended so as to apply to sitting incumbents without contravening the provisions of section 328(7) of the Constitution.
Conversely, the option to continue in office for an additional 5 years, after reaching the mandated retirement age of 70 years, as contemplated in subsections (1), (2) and (3) of section 186, does not constitute the extension of any term limit.
The court a quo did not differentiate between age limits and term limits, and conflated them by ascribing a generalised meaning to term limit provisions. Consequently, it mis-interpreted and misapplied the concept of a term limit in the context of judicial tenure under the provisions of section 186 of the Constitution.
The new section 186, in subsections (1), (2) and (3), operated to amend only the previously stipulated age limit for retirement, from 70 to 75 years. It did not have the effect of amending or extending the non-renewable term limit of 15 years specified in section 186(2) or the fixed term limits envisaged in section 186(6) of the Constitution.
I am fortified in this conclusion by having regard to the dictionary definitions of the words 'term' and 'period'.
A 'term' is defined as “a fixed or limited period for which something, for example, office, imprisonment or investment, lasts or is intended to last” while a 'period' is defined to mean “a particular length or portion of time”.
In the light of these definitions, a term is a period of time, which is ordinarily measured by using a particular unit of time, and which has a known beginning and a determinable end.
Age, being a variable attribute depending upon the age of a person at any given time, does not and cannot denote any particular length or portion of time.
To illustrate this point, in a situation where two individuals, one aged 60 and the other aged 65, both enter into the same public office at the same time and are required to retire upon attaining the age of 70, the latter would be obliged to retire 5 years earlier than the former. This clearly negates the concept that an age limit constitutes a specific and determinate length of time or term limit for measuring tenure of office.
Thus, a provision that prescribes an age limit for the holding or occupation of a particular office is not a “term-limit provision” within the meaning of subsections (1) and (7) of section 328 of the Constitution.
Any other interpretation would be contrary to the ordinary and grammatical meaning of the phrase “term limit”.
By way of contrast, the Constitution abounds with a myriad of provisions that unquestionably constitute specific term limit provisions within the parameters of section 328 of the Constitution:
First and foremost, there is section 95(2) which expressly stipulates, that, the term of office of the President is 5 years and coterminous with the life of Parliament.
Then there is section 197 which provides that an Act of Parliament may limit the terms of office of chief executive officers or heads of government-controlled entities and public enterprises owned or wholly controlled by the State.
Again, in terms of section 205(2), the term of office of a Permanent Secretary is a period of up to 5 years and is renewable once only.
As regards the Defence Forces, section 216(3) states, that, the Commanders of the Defence Forces and their services are appointed for a term of not more than 5 years, up to a maximum of two terms.
With reference to the Police Service, the Intelligence Services, and the Prisons and Correctional Service, section 221(2), section 226(2) and section 229(2) provide, that, the respective heads of these services are appointed for a 5-year term which may be renewed once only.
Next, there is section 238(5), which stipulates that members of the Zimbabwe Electoral Commission are appointed for a 6-year term and may be re-appointed for one such further term.
Similarly, by virtue of section 259(4), the term of office of the Prosecutor-General is a period of 6 years and is renewable for one further such term.
Finally, section 310(3) provides, that, the term of office of the Auditor-General is a period of not more than 6 years, up to one or more periods not exceeding 12 years.
As is self-evident, the tenure of all of the aforementioned public offices is undoubtedly subject to a specific “term-limit provision” within the meaning of section 328(1) of the Constitution.
Consequently, an amendment to any such provision, the effect of which is to extend the length of time that a person may hold or occupy the public office in question, falls squarely within the ambit of section 328(7) of the Constitution.
Therefore, by dint of the restriction imposed by section 328(7) of the Constitution, such amendment does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment came into force and effect.
I now turn to consider the apparently problematic provisions of section 186(4) of the Constitution.
In its consideration of this subsection, and its relationship with section 328(7) of the Constitution, the court a quo quite correctly found, that, the former was not superfluous, particularly in the light of the presumption against superfluity in the interpretation of statutes. It also correctly opted to apply the hallowed principle of interpretation which avoids any conflict in constitutional provisions.
It accordingly read section 186(4) and section 328(7) together to arrive at the conclusion, that, section 186(4) did not apply to sitting incumbents of the judicial offices referred to in subsections (1), (2), and (3) of section 186 and that it must be understood as being applicable only to persons who are appointed to those judicial offices subsequent to the amendment of section 186.
With great respect, I am constrained by fundamental principles of legislative interpretation to reject the conclusion arrived at by the court a quo.
I fully agree that different parts of the Constitution should, to the extent that it is possible to do so, be harmoniously construed so as to avoid any conflict between them. However, it is also an established canon of construction, that, every legislative enactment must be construed, unless otherwise expressed or necessarily implied, as one that is “always speaking”.
In other words, the enactment must be construed and applied to all persons and circumstances that it governs, whether past, present or future, in order to give effect to the enactment according to its true spirit, intent, and meaning.
This time-honoured common law rule of interpretation is firmly codified in section 11 of the Interpretation Act [Chapter 1:01].
What this means, in the context of subsection (4) of section 186 of the Constitution, is that the provisions of subsections (1), (2) and (3) apply to the continuation in office of all the judicial officers referred to in those subsections, including those judges who were incumbents of their respective offices before section 186 was amended.
The plain wording of section 186(4) of the Constitution makes it unambiguously clear that its scope of coverage cannot be confined to apply to only those judges who assume the offices in question after the amendment.
This interpretation of section 186(4) of the Constitution does not, in my view, give rise to any inconsistency, absurdity, or superfluity.
The only possible interpretive difficulty that might arise relates to the application of the non-obstante clause in section 186(4) of the Constitution, i.e. “notwithstanding subsection (7) of section 328.”
In this regard, I do not agree with the submission by counsel for the fourth and fifth respondents, that, this clause modifies and amends section 328(7) of the Constitution. Nor do I accept the contention by counsel for the applicant that it operates to supersede section 328(7), for that would result in a glaring conflict between the provisions of section 186 and those of section 328.
Rather, I am inclined to construe subsection (4) of section 186 as having been inserted in order to clarify and reinforce the position that subsections (1), (2) and (3), in their amended form, do not constitute amendments to any term-limit provision.
And that being the case, they remain applicable to the continuation in office of the incumbent judgesidentified in subsection (4).
This harmonised interpretation gives full meaning and substance to section 186(4), without occasioning any infringement of section 328(7) and the restrictions on continuation in public office that its provisions are designed to impose.
I accordingly conclude, that, the provisions of section 186, taken in their totality, do not operate to amend any term limit provision as contemplated by section 328 of the Constitution.
The reasoning and judgment of the court a quo to the contrary are insupportable and must therefore be vacated.
I now turn to deal with the alleged violation of the right to equal protection of the law and the right of access to the courts.
The court a quo upheld the contentions of the third respondent in this regard and consequently found, that, section 186 of the Constitution, as amended, had the effect of violating the fundamental rights in question.
Section 56(1) of the Constitution declares that:
“All persons are equal before the law and have the right to equal protection and benefit of the law.”
Section 69(3) provides that:
“Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.”
As regards section 56(1) of the Constitution, the court a quo opined, that, this section is wider in its scope than the equivalent section 18 in the former Constitution. This, so it reasoned, is because it qualifies the protection and benefit of the law by the use of the word “equal”.
Again, with the greatest of respect, this reasoning is fatally flawed.
The use of the word 'equal' does indeed qualify the protection and benefit of the law, but, it does so by restricting rather than broadening the scope of section 56(1) of the Constitution.
What this provision means is that all persons in a similar position must be afforded equality before the law and the same protection and benefit of the law.
As was lucidly enunciated in Nkomo v Minister of Local Government, Rural and Urban Development & Ors 2016 (1) ZLR 113 (CC)…,:
“The right guaranteed under section 56(1) is that of equality of all persons before the law and the right to receive the same protection and benefit afforded by the law to persons in a similar position. It envisages a law which provides equal protection and benefit for the persons affected by it. It includes the right not to be subjected to treatment to which others in a similar position are not subjected.
In order to found his reliance on this provision, the applicant must show, that, by virtue of the application of a law, he has been the recipient of unequal treatment or protection, that is to say, that, certain persons have been afforded some protection or benefit by a law, which protection or benefit he has not been afforded; or that persons in the same (or similar) position as himself have been treated in a manner different from the treatment meted out to him and that he is entitled to the same or equal treatment as those persons.”
In essence, section 56(1) of the Constitution is a non-discrimination clause that guarantees equality under the law.
The applicant a quo (the third respondent in casu) did not make any allegation of unequal treatment or differentiation. He did not demonstrate that he was denied the protection of the law, while others similarly positioned were afforded such protection. He failed to show, that, the enactment or amendment of section 186 of the Constitution operated to discriminate against him in favour of others in the same or similar position.
He thereby failed to establish that he had been denied equal protection and benefit of the law.
In the event, he entirely failed to establish any infringement of the rights guaranteed by section 56(1) of the Constitution.
It follows, that, the court a quo misdirected itself in disregarding the third respondent's failure to demonstrate any unequal treatment or differentiation between him and other similarly positioned persons. Consequently, the court erred in holding, that, the continued occupation of office by the incumbent Chief Justice, after he had turned 70 years old, violated the third respondent's rights as enshrined in section 56(1) of the Constitution.
