Rules of Construction or Interpretation re: Approach iro Dies Induciae, Time Limits and the Reckoning of Time

HH27-08 : EDSON NYAMAPFENI vs CONSTITUENCY REGISTRAR MBERENGWA EAST and ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE and DOUGLAS MOMBESHORA and CLEVER KUGOTI
Ruled By: UCHENA J

The appellant and the fourth and fifth respondents are aspiring Parliamentary candidates. The appellant's nomination papers were rejected while those of the fourth and fifth respondents were accepted by the first respondent.The second respondent is the Electoral Commission responsible for conducting elections in Zimbabwe. The third respondent is the Minister ...

The second respondent is the Electoral Commission responsible for conducting elections in Zimbabwe. The third respondent is the Minister responsible for the administration of the Electoral Act [Chapter 2:13] and the Zimbabwe Electoral Commission Act [Chapter 2:12], herein after called the Electoral Act, and the Zimbabwe Electoral Commission Act.

The brief facts leading to this appeal are;

That the appellant lodged his nomination papers with the first respondent who rejected them because seven of the appellant's nominators' names could not be found on the voters roll. He is aggrieved because his nominators were registered voters who had, according to certificates of registration attached to the appeal, registered between the 15th November 2007 and 13th February 2008.

The dates of their registration explains why their names are not on the voters roll.

This, however, does not disentitle a nominator from nominating a candidate as the proviso to section 46(1)(a) of the Electoral Act [Chapter 2:13] entitles the aspiring candidate to prove his nominator's eligibility by producing their voters registration certificates.

The appellant, believing his nomination to have been unfairly rejected, appealed to this court on the 20th February 2008. The Nomination Court had rejected his papers on the 15th February 2008.

Counsel for the second respondent raised two points in limine -

(a)...,.

(b) That the appellant's appeal was noted out of time....,.

In respect of the second point in limine, counsel for the second respondent submitted that an appeal in terms of section 46(19)(b) of the Electoral Act [Chapter 2:13] must be lodged with the Electoral Court within four days of the rejection of the appellant's nomination.

He said, in this case, the appeal should have been lodged by the 19th February 2008.

He based his interpretation of section 46(19)(c) of the Electoral Act and on section 33(2), (3) and (4) of the Interpretation Act [Chapter 1:01] hereinafter referred to as the Interpretation Act.

In his response, counsel for the appellant submitted that the appeal was lodged in time as Saturdays and Sundays should not be included in the reckoning of time. He referred the Court to Order 1 Rule 4A of the High Court Rules.

He, in the alternative, submitted that the ordinary meaning of a day excludes Saturdays, Sundays and public holidays.

Counsel for the second respondent, in response, submitted that the ordinary meaning of a 'day' includes Saturdays, Sundays, and public holidays, as a 'day' means a day and cannot exclude other days.

I agree with counsel for the second respondent's construction as it accords with the literal meaning of the word 'day'. That is why the name of each day of the week ends with the suffix “day”. That construction is supported by case law.

In the case of Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC)…, GUBBAY JA said;

“Rule 30(a) lays down that where leave to appeal is not necessary, as in this case, an appeal is properly entered by serving Notice of Appeal 'within twenty-one days of the day of the judgment appealed against'.

Does the period include 'none-business' days?

There is no doubt that it does.

First, the ordinary meaning of the word 'days' embraces both business and none-business days. If it were intended to exclude non-business days it would have been a simple matter to have used the expression 'twenty-one business days.'”

In the case of Kombayi v Berkhout 1988 (1) ZLR 53 (SC)…, KORSAH JA, referring with approval to Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC) said:

“This court has repeated ad nauseum that the calculation of time for lodging of appeals was based on ordinary days and not court days.”

Words in a statute should be interpreted in accordance with the definition usually found in the definition or interpretation section of that statute. In the absence of a definition for the words to be interpreted one has to look to the Interpretation Act for assistance in interpreting words in a statute.

In relying on the aforementioned, one can also invoke the general rules of interpretation provided it would not be inconsistent with the definition provided in the Act or the Interpretation Act.

Section 2 of the Interpretation Act [Chapter 1:01] provides as follows:-

“(1) The provisions of this Act shall extend and apply to every enactment as defined in this Act, including this Act, which was in force in Zimbabwe immediately before the 1st November 1962, or thereafter comes into force in Zimbabwe, except in so far as any such provisions -

(a) Are inconsistent with the intention or object of such enactment;

(b) Would give to any word, expression, or provision of such an enactment an interpretation inconsistent with the context; or

(c) Are in such enactment declared not applicable thereto.

(2) Nothing in this Act shall exclude the application to any enactment of any rule of construction applicable thereto and not inconsistent with this Act.”

The word “enactment” is defined in section 3 of the Interpretation Act, and means -

(a) “any Act;

(b) Any statute included in the revised edition of the laws of Zimbabwe prepared under an Act.”

There is no doubt that the Electoral Act falls under this definition and should therefore be construed according to the provisions of the Interpretation Act as the words “day” or “days” are not defined under the Electoral Act.

Counsel for the appellant's submission that the time should be reckoned in terms of the High Court rules could have been premised on the provisions of section 165(4) of the Electoral Act which provides as follows -

“Until rules of court for the Electoral Court are made in terms of this section, the rules of the High Court shall apply, with such modifications as appear to the Electoral Court to be necessary, with respect to election petitions and other matters over which the Electoral Court has jurisdiction.”

It is true that this court can rely on High court rules, but, the issue to be determined is whether or not the provisions of Rule 4A extend to time limits prescribed in an Act of Parliament.

Rule 4A of the High Court Rules provides as follows -

“Unless a contrary intention appears, where anything is required by these rules, or in any order of the court, to be done within a particular number of days or hours, a Saturday, Sunday, or public holiday shall not be reckoned as part of such period.”

The key words in Rule 4A are “where anything is required by these rules or in any order of the court to be done within a particular number of days.”

This means the Rule applies to anything required to be done by any rule in the High Court rules or an order of the court. It does not extend to situations not provided for by the Rules or court orders.

It therefore does not assist in the construction of section 46(19)(c) of the Electoral Act, which is not a provision of the High Court rules, but a provision of the Electoral Act.

In this case, the words 'day' or 'days' are not defined in the Electoral Act. They are, however, provided for in section 33 of the Interpretation Act, which provides as follows:-

“1. Words in an enactment relating to time, and references therein to a point of time, shall be construed as relating to standard time as used in Zimbabwe, that is to say, two hours in advance of Greenwich Mean Time.

2. Where in an enactment a period of time is expressed to begin on, or to be reckoned from, a particular day, that day shall not be included in the period.

3. Where in an enactment a period of time is expressed to end on, or to be reckoned to, a particular day, that day shall be included in the period.

4. Where the time limited by an enactment for the doing of any thing expires or falls upon a Saturday, a Sunday or a public holiday, the time so limited shall extend to and the thing may be done on the first following day that is not a Saturday, a Sunday or a public holiday.”

The clear meaning of section 33(1) to (4) of the Interpretation Act is as follows:

(i) Subsection one spells out that section 33 defines any reference to time in any enactment in Zimbabwe.

(ii) Sub-section two excludes the day on which the event triggering the reckoning of time occurred, meaning the reckoning of time starts from the next day.

(iii) Subsection three includes the last day of the stated period in the reckoning of time.

(iv) Sub section four extends the period if the last day falls on a Saturday, a Sunday, or a public holiday, to the next day which is not a Saturday, a Sunday, or a public holiday.

The inclusion of sub-section four, and its providing for extension if the period expires on a Saturday, a Sunday or a public holiday means Saturdays, Sundays, and public holidays are included in the reckoning of time.

This interpretation is confirmed in the case of Makuwaza v National Railways of Zimbabwe 1997 (2) ZLR 453 (S)…, where McNALLY JA said:

“It was conceded on the understanding that the period from 10 May to 26 May was less than fourteen days if one excludes Saturdays, Sundays, and public holidays.

That may be so, but, on what basis does one exclude those days?

The Interpretation Act [Chapter 1:01] does not allow it. The Labour Relations (Settlement of Disputes) Regulations (S.I.30 of 1993) do not authorize it.

It is only permitted in matters before the High Court and Supreme Court because the Rules of those courts specifically say so (Rule 4A and Rule 1 respectively).”

See also Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC)…,.

When the provisions of section 46(19)(c) of the Electoral Act are construed in terms of section 33 of the Interpretation Act, it becomes clear that the day on which the appellant is advised of the rejection of his nomination papers is not included. The reckoning of the four day period starts on the following day and ends on the fourth day - if the fourth day falls on a day other than a Saturday, a Sunday, or a public holiday.

If the fourth day falls on a Saturday, a Sunday, or a public holiday, the period then expires on the following day which is not a Saturday, a Sunday, or a public holiday.

The ordinary meaning of a “day” includes all days.

If the legislature had intended the period to only include business days they would have said so.

The provisions of section 33 of the Interpretation Act are consistent with the provisions of section 46(19)(c) of the Electoral Act.

The interpretation in terms of section 33 of the Interpretation Act is also consistent with the contextual meaning of section 46(19)(c) of the Electoral Act [Chapter 2:13] which provides as follows -

“If no appeal, in terms of paragraph (b), is lodged within four days after the receipt of notice of the decision of the nomination officer, the right of appeal of the candidate shall lapse and the decision of the nomination officer shall be final.”

Section 46(19)(b) of the Electoral Act [Chapter 2:13] provides that the decision of a judge of the Electoral Court is final as it shall not be the subject of an appeal.

The Nomination Court sits to nominate candidates for an election on a date already announced. In this case, the elections will be held on the 29th March 2008. The noting of an appeal, and its hearing, are therefore set within the urgency dictated by the count down towards the election date. Ballot papers must be prepared after the determination of the appeal as the appellant's name must appear on the ballot papers if his appeal is upheld.

That, in my view, explains why the reckoning of time should include Saturdays, Sundays, and public holidays.

In this case, the four day period excludes the 15th February 2008 when the appellant was advised of the rejection of his nomination. It starts on Saturday 16 February and ends on Tuesday 19 February 2008.

As the last day is a business day there is no room for extension.

It must also be stated that the Electoral Court is a creature of statute. Its jurisdiction is restricted to what is provided in the Electoral Act - which does not provide for condonation. It therefore cannot condone the appellant's failure to comply with the provisions of section 46(19)(c) of the Electoral Act.

Electoral cases under the amended Electoral Act call for careful reading on the part of legal practitioners handling these cases.

The appellant and his lawyers could have genuinely believed that the period excluded weekends. There will therefore be no order of costs against the appellant.

In the result, the appellants appeal is dismissed with no order as to costs.

SC07-17 : CHRIS STYLIANOU and FRED DRIVER AND SONS (PVT) LTD and D.R. HENDRY (PVT) LTD vs MOSES MUBITA AND 25 OTHERS
Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

This is an appeal against the entire judgment of the Labour Court sitting at Bulawayo, handed down on 18 January 2010. After reading documents filed of record and hearing counsel, we made the following order:“IT IS ORDERED:1. The appeal be and is hereby allowed.2. There shall be no order as ...

“IT IS ORDERED:

1. The appeal be and is hereby allowed.

2. There shall be no order as to costs.

3. The judgment of the Labour Court, in cases No. LC/URG/MT/25/08 and LC/MT/37/08 be and is hereby set aside and substituted with the following:

'(i) The urgent chamber application by the respondents be and is hereby struck off the roll.

(ii) The urgent chamber application by the applicants be and is hereby struck off the roll.

(iii) The retrenchment agreement entered into between the parties and approved by the Retrenchment Board be and is hereby upheld.

(iv) There shall be no order as to costs.'”

This judgment contains the reasons for the order.

Before I consider the merits of the appeal, it is pertinent to address two procedural issues arising from the papers before the court:

(i) Firstly, it was noted, that, the notice of appeal was filed eighteen days after leave to appeal was granted by this court, instead of the fifteen days required by Rule 5(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

However, upon inquiry, counsel for the appellant submitted, that, no hearing for the application for leave to appeal was held since the application was granted on the basis of the papers before the judge in question. The parties only got to hear of the order on a later date.

It is, in my view, important to point out in this respect, that, when an order is made in chambers following a determination of the matter on the papers before the judge, and in the absence of the parties, the Registrar should promptly notify the parties of the order.

This is particularly so, since the dies induciae for any subsequent filing of papers in the matter would start to run from the date of the order, not the date on which the order was served or came to the notice of the parties concerned.

In casu, it was the court's view that since the appellants could not be faulted for the delay in noting the appeal, such late noting could properly be condoned.

SC48-18 : THANDEKILE ZULU vs ZB FINANCIAL HOLDINGS (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA, HLATSHWAYO JA, GUVAVA JA and UCHENA JA

This is an appeal against the entire judgment delivered..., in the Labour Court at Harare on 31 May 2013.

The facts of this matter are common cause. The appellant was employed as a Clerk by the respondent from 2 September 1991 to 31 October 2009. In January 2009, the appellant fell ill and was granted paid sick leave from 22 January 2009 to 8 February 2009. Thereafter, the leave was extended by 15 days covering the period from 10 February 2009 to 24 February 2009. The appellant then submitted another sick leave application for an indefinite period from 24 February 2009 onwards. By August 2009, the appellant had not yet reported to work, and, upon enquiry by the respondent, she produced a letter from her medical doctor which confirmed his advice to her to take bed rest from February 2009 onwards.

Come October 2009, the appellant had still failed to report for work, and, upon enquiry, she indicated that she was not feeling well and was unsure as to when she would return to work. As at 30 October 2009, the appellant's cumulative period of absence amounted to 251 days. By letter dated 2 December 2009, the respondent unilaterally terminated the appellant's employment with effect from 31 October 2009.

The termination was in terms of section 14(4) of the Labour Act.

The appellant challenged the dismissal as unfair and in contravention of section 14(4) of the Labour Act. The matter went before a labour officer who issued a certificate of no settlement and referred it for arbitration. The arbitrator upheld the respondent's claim that the matter had prescribed, but, nonetheless, held that the dismissal was in terms of section 14(4) of the Labour Act, and, therefore, it was lawful.

Aggrieved by this decision, the appellant appealed to the Labour Court against the decision of the arbitrator. At the hearing in the Labour Court, the respondent's attorney conceded that the matter had not prescribed.

The issue that remained for determination by the court was the interpretation of section 14(4) of the Labour Act.

The court interpreted a period of one year to mean one calendar year and dismissed the appellant's appeal on the basis that she had exceeded the prescribed number of sick leave days. The appellant appealed to this Court on the following grounds:

1. The Labour Court erred in law in its interpretation of the phrase “any one-year period of service”, under section 14(4) of the Labour Act [Chapter 28:01], to refer to a calendar year and in holding that any interpretation of the phrase based on the employee's employment anniversary date would lead to an absurdity.

Whereas, the correct interpretation of the phrase that accords with social justice at the workplace and principles of fair dismissal includes computation based on the employee's anniversary date; use of the calendar year, in fact, potentially results in an absurdity of breaking up the continuous period of sick leave by calendar year demarcations which are not provided in the Labour Act and that potentially leads to gross prejudice to the interests of the employer by unduly extending the sick leave.

2. The court a quo, and Arbitrator Kabasa, erred in law by mis-interpreting section 14(4) of the Labour Act [Chapter 28:01] so as to grant an employer unfettered authority to automatically terminate the contract of employment on the expiry of the 180 sick leave days, as a consequence thereof, the court a quo and the arbitrator wrongfully failed to consider the appellant's submission that despite the expiry of any 180 days of sick leave, the dismissal was still unfair because of the failure by the employer to consult her on whether continued employment was possible and that she had sought, and believed was granted, unpaid sick leave. Given that the illness arose out of pregnancy complications and miscarriages, such failure was a gross misdirection as employees are protected from unfair discrimination on the basis of pregnancy and gender.

From the papers, it appears that the two issues arising from this appeal are;

(i) Whether the court a quo erred in its interpretation of section 14(4) of the Labour Act [Chapter 28:01]; and

(ii) Whether or not an employer has an unfettered right to terminate employment under section 14(4) of the Labour Act [Chapter 28:01].

I shall consider them in turn below.

1. Whether the court a quo erred in its interpretation of section 14(4) of the Labour Act

It was contended, for the appellant, that the court a quo mis-interpreted section 14(4) of the Labour Act [Chapter 28:01]. The provision is couched as follows:

“If, during any one year period of service, the period or aggregate periods of sick leave exceed -

(a) Ninety days' sick leave on full pay; or

(b) Subject to subsection (3), one hundred and eighty days' sick leave on full and half pay;

The employer may terminate the employment of the employee concerned.”

The appellant's counsel submitted that the phrase 'one year period of service' ought to be construed to mean a period of twelve months calculated from the date on which the appellant commenced employment with the respondent, that is, a period running from 2 September to 1 September the following year, or 'anniversary date/period'; while the court a quo interpreted the phrase to mean “a calendar year”; and a third meaning of “a period of twelve months” is another possible literal meaning of the phrase.

The rules of statutory interpretation dictate that the words of a statute shall be given their ordinary grammatical meaning unless doing so leads to an absurdity. In the case of Venter v Rex 1907 TS 910, INNES CJ said the following…,:

“It appears to me that the principle we should adopt may be expressed somewhat in this way:

That, when to give plain words of a statute their ordinary meaning would lead to absurdity so glaring that it could never have been contemplated by the legislature, or where it could lead to a result contrary to the intention of the legislature, as shown by the context or by such other consideration as this court is justified in taking into account, the court may depart from the ordinary effect of the words to the extent necessary to remove the absurdity and to give effect to the true intention of the legislature.”

This approach was followed by McNALLY JA in Chegutu Municipality v Manyara 1996 (1) ZLR 262 (S)…, where he said:

“There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to, as LORD WENSLEYDALE said in Grey v Pearson (1857) 10 ER 1216 at 1234;

'Unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified as to avoid that absurdity and inconsistency - but no further.'”

But what if the literal interpretation, the grammatical or ordinary sense of the words, yields two or more meanings - which literal meaning is to be preferred?

For, there can conceivably be more than one grammatical meaning of words, as this case clearly demonstrates: a “year” literally could mean “a period of 12 months” or “an anniversary period” or “a calendar year” – all with different computational consequences.

In my view, the 'absurdity' or 'repugnance' principle may be applied to select a literal meaning that does not lead to “some absurdity or some repugnance or inconsistency with the rest of the instrument”. In other words, the 'absurdity or repugnancy' principle, while ordinarily applied vertically to justify a departure from the literal meaning, may, in my view, be deployed horizontally, in specific circumstances, to facilitate a selection of the most appropriate among competing literal meanings.

The Collins Dictionary of the English Language (1979) defines “year” as;

“1. A period of time, the calendar year, containing 365 days or in a leap year 366 days…, and is reckoned from January 1 to December 31.

2. A period of twelve months from any specified date…,.”

Thus, this definition encompasses all the three possible meanings indicated above.

In casu, the literal interpretation of the provision, as suggested by the appellant, to mean 12 months calculated from each employee's anniversary date of engagement, does lead to an absurdity. This means that the respondent, in the present case, would be forced to reinstate an employee who spent 251 days away from work, a period which is outside the statutory limit of 180 days. Such wildly unreasonable result can never have been the intention of the legislature. There is also the added administrative inconvenience of having to calculate the sick leave days based on each employee's anniversary date of engagement and the consequent inconsistencies from one employee to the other. There is, therefore, adequate reasons for discarding the “anniversary year” literal meaning as suggested by the appellant.

The interpretation given to the phrase by the court a quo also leads to an absurdity. It interpreted a period of one year to mean one calendar year, i.e. 1 January to December 31, and that certainly would create an absurd situation. For instance, if an employee falls sick on 1 July and takes their 180 days of sick leave on full and half pay till 31 December, he or she would still be entitled to apply for sick leave again on 1 January the following year because they would have entered another sick leave cycle. The number of days that the employee would thus spend on sick leave would amount to a period of one year or 365/366 days – a period more than twice the statutory 180 days, and, certainly, a situation which could never have been intended by the legislature.

The most appropriate interpretation of the phrase, in my view, should be drawn from section 33(6)(d) of the Interpretation Act [Chapter 1:01] which states that in any enactment, a reference without qualification to a year shall be construed as a reference to a period of twelve months.

It logically follows that the year in section 14(4) of the Labour Act [Chapter 28:01] means a period of twelve months from the date on which the employee fell sick.

In this case, the appellant's sick leave cycle commenced on 22 January 2009 and would end on 21 January the following year. This interpretation is in line with the intention of the legislature to give each employee one hundred and eighty days of sick leave. The appellant clearly exceeded the number of days an employee is entitled to because she was on sick leave for two hundred and fifty-one days instead of one hundred and eighty days.

I therefore find that the court a quo erred in its interpretation of 'one year period' under section 14(4) of the Labour Act [Chapter 28:01].

Although the appellant's preferred interpretation has been found to be leading to as much absurdity as the respondent's, she must be viewed as having been successful in challenging the interpretation adopted a quo, and, thus, successful on the point in the appeal.

HB129-11 : (1) DAKTYL AUTOMATIVE PL HC234/08 and (2) MATABELELAND HAULIERS PL HC1388/08 vs MATABELELAND [HAULIERS] PL and DOWOOD SERVICES PL and DAVID LUWO and DAKTYL AUTOMATIVE PL
Ruled By: NDOU J

In terms of section 33(6)(c) of the Interpretation Act [Chapter 1:10] a month is as it stands in the calendar e.g. 1 December to 31 December 2008.In the circumstances, no month begins from the middle of the month and ends in the middle of another. A calendar month runs from ...

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

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

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

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

(iii) Whether security for costs was provided; and

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

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

The brief facts were these:

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

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

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

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

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

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

The first respondent received the petition on 19 May 2008.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE FACTS

The brief facts in this matter are as follows:

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

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

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

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

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

This was not done.

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

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

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

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

Counsel for the second respondent submitted that the petitioner is non-suited for lodging the petition outside the 14-day period. He computed the period from 31 March 2008, the date on which the second respondent was declared the winner.

Counsel for the petitioner, on the other hand, contended that the petition was not filed out of time.

He contended, in his heads of argument, that the second respondent had not shown that the result of the election had been notified in terms of the Electoral Act [Chapter 2:13] hereinafter referred to as the Act. He based this argument on the provisions of section 67 and 68 of the Electoral Act.

In his view, the effect of these provisions is to establish the date on which the winner is officially declared as such in an election of this kind.

This argument was made despite the petitioner's averment, in his founding affidavit, that the second respondent was duly declared the winner on 31 March 2008.

Clearly, on the basis of this averment, his line of argument was unsustainable.

The 14 day period for the presentation of a petition is set out in sub-section (2) of section 168 of the Electoral Act. It reads:

“(2) An election petition shall be presented within fourteen days after the end of the period of the election to which it relates:
Provided that, if the return or election is questioned upon an allegation of an illegal practice, the petition may be presented, if the election petition specifically alleges a payment of money or some other act to have been made or done since that day by the member or an agent of the member or with the privity of the member or his or her chief election agent in pursuance or in furtherance of the illegal practice alleged in the petition, at any time within thirty days after the day of such payment or other act.

[Subsection amended by section 79 of Act 17 of 2007].”

The phrase 'period of the election' is defined in section 4, the interpretation section of the Electoral Act, as:

“election period” or “period of an election” means —

(b) In the case of a general election for the purpose of electing Members of Parliament, the period between the calling of the election and the declaration of the result of the poll for the last constituency in terms of section 66(1).”

I concentrate on the 14-day period in this judgment because the petitioner has not sought to rely on the proviso which allows the filing of an election petition within 30 days from the date on which an illegal practice, as defined in Part XX of the Electoral Act, occurs. The illegal practice must have occurred after the declaration of the result in the last constituency to which that election relates.

In his founding affidavit, in paragraphs 36 and 37, the petitioner pleaded intimidatory practice rather than illegal practice.

The 14-day period commences to run on the day following the declaration of the result of the poll for the last constituency in terms of section 66(1) of the Electoral Act and not on the date on which the result is notified as submitted by counsel for the petitioner who relied on the wording of that section before it was amended by the Electoral Law Amendment Act No.17 of 2007.

While the notification of the results to the Chief Elections Officer, and the subsequent notification to the Clerk of Parliament, and the gazetting of the winner are important processes, the overriding consideration, for our purposes, is the declaration made by the Constituency Elections Officer of the winning candidate in the last constituency for a House of Assembly seat.

It is that date which is synonymous with the declaration of the result for the last constituency of the election to which it relates.

The election to which it relates, in my view, would be for the House of Assembly and not for the Senate, even though both are elections for Members of Parliament.

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

The 14 day period for the petitioner would expire on Friday, 18 April 2008. This was a public holiday. The two days that followed were a Saturday and a Sunday. The date which followed these was Monday, 21 April 2008.

In terms of section 33(4) of the Interpretation Act [Chapter 1:01], the 14-day period would expire on 21 April 2008: see Nyamapfeni v The Constituency Registrar Mberengwa East & 4 Others HH27-08; Ellis & Another v Maceys Stores Ltd 1983 (2) ZLR 17 (SC); and Kombayi v Berkhout 1988 (1) ZLR 53 (SC).

The petitioner filed his petition on 16 April 2008. He, therefore, did so timeously.

The effect of the information in the document that was produced by counsel for the first respondent was to dispose of the first issue in favour of the petitioner and against the second respondent.

HH20-08 : DANIEL SHUMBA vs CONSTITUENCY REGISTRAR, MR MUSHANGWE and CHAIRMAN OF ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

The appellant was an aspiring Presidential candidate in the 29 March 2008 harmonized elections. On the 15th of February 2008, he presented his nomination papers to the first respondent who refused to accept them.

He alleges that he arrived at the Nomination Court at around quarter to four while another aspiring candidate, Advocate Justin Chihota, was being attended to. He approached the first respondent who told him to await his turn as he the first respondent was attending to another candidate.

He alleges that in spite of his having been asked to await his turn he was eventually told that he could not be attended to as the Nomination Court had closed at 16:00 hours.

It was contented, on his behalf, that the first respondent's conduct was contrary to the provisions of the Electoral Act [Chapter 2:13] herein after called the Electoral Act.

The first respondent is the Constituency Registrar, who presided over the Nomination Court for Presidential candidates. The second respondent is the Chairman of the Zimbabwe Electoral Commission, which oversees the conducting of elections in Zimbabwe.

Before the hearing of the appeal, counsel for the respondents raised a point in limine.

He submitted that the appeal was out of time as it was lodged after the four days prescribed by section 46(19)(c) of the Electoral Act.

Section 46(19)(c) of the Electoral Act [Chapter 2:13] provides as follows:-

“If no appeal in terms of paragraph (b) is lodged within four days after the receipt of notice of the decision of the Nomination Officer, the right of appeal of the candidate shall lapse and the decision of the Nomination Officer shall be final.”

Counsel for the respondents referred to this court's decision in the case of Edson Nyamapfeni v The Zimbabwe Electoral Commission and 3 Others E/P 7/08, in which I held that the time within which an appeal should be noted is reckoned from the second day after the day on which the candidate's nomination is rejected, and that the period includes Saturdays and Sundays.

In Heads of Argument prepared by Mr Samkange, but argued in chambers by Mr Chinyama, it was contented that the filing of the urgent application which was dismissed by GUVAVA J interrupted the running of prescription and the four days prescribed by section 46(19)(c) of the Electoral Act only started running on the 21st February 2008, the day GUVAVA J dismissed that application.

The Heads of Argument do not indicate which section of the Prescription Act [Chapter 8:11], hereinafter called the Prescription Act, the appellant is relying on.

A reading of the Prescription Act leaves no doubt that only Part IV would apply to prescription through the lapsing of time periods prescribed in statutes. Sections 13(1)(a) and (b) and 14 refers.

The appellant's counsel's argument is not consistent with the provisions of section 19(2) and (3) of the Prescription Act which provides for judicial interruption of prescription as follows:-

“(2) The running of prescription, shall, subject to subsection (3), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.

(3) Unless the debtor acknowledges liability, the interruption of prescription, in terms of subsection (2), shall lapse and the running of prescription shall not be deemed to have been interrupted, if the creditor:-

(a) Does not successfully prosecute his claim under the process in question to final judgment; or

(b) Successfully prosecutes his claim under the process in question to final judgment, but abandons the judgment or the judgment is set aside.”

It is clear, from subsection (2), that the service of process interrupts prescription. That is, however, subject to subsection (3) which makes the confirmation of such interruption subject to:-

(1) The debtor acknowledging liability in which case the proceedings need not result in a final judgement in the creditors favour; or

(2) The creditor successfully prosecuting his claim to final judgment - which means the creditor should win the case.

If the above does not happen, as was the case in the application which was dismissed by GUVAVA J, prescription is not interrupted.

In this case, the respondents, who are the debtors, did not, in the application proceedings, acknowledge that the appellant, then applicant's nomination papers had been incorrectly refused. On the contrary, the respondents successfully raised points in limine which led to the dismissal of the appellant's application.

Success was therefore not on the appellant's side; yet, that is what could have interrupted the running of prescription against him.

Therefore, since the appellant did not succeed to final judgement in his favour in the application proceedings, and the respondents did not concede that he should have been nominated, the interruption of prescription by service of the application lapsed, and the running of prescription is not deemed to have been interrupted.

The appellant's claim, that the running of prescription against the four day period was interrupted, could only have succeeded if he had succeeded in the application proceedings to final judgment.

I therefore find that the period during which the appeal should have been lodged lapsed on the 19th February 2008 two days before this appeal was lodged.

Mr Chinyama also argued that in view of the provisions of section 165(4) of the Electoral Act and Order 1 Rule 4A of the High Court Rules, Saturdays and Sundays are not included in the reckoning of time.

Counsel for the respondents submitted that, that issue had already been decided in Edson Nyamapfeni v The Zimbabwe Electoral Commission and 3 Others E/P 7/08, and stressed that Rule 4A refers to time periods within which “anything is required by these rules or an order of court to be done.”

Mr Chinyama persisted with his argument and asked for time so that he could identify a rule in the High Court Rules which specifies time periods for the noting of appeals which is relevant to these proceedings.

An adjournment was granted after which he came back conceding that he could not find the Rule and was no longer persisting with his argument.

In Edson Nyamapfeni v The Zimbabwe Electoral Commission and 3 Others E/P 7/08, commenting on the provisions of section 165(4) of the Electoral Act and Order 1 Rule 4A of the High Court Rules, I…, said:-

“It is true that this court can rely on High Court Rules, but, the issue to be determined is whether or not the provisions of Rule 4A extend to time limits prescribed in an Act of Parliament.”

I, thereafter, commenting on Rule 4A, said:-

“The key words in Rule 4A are 'where anything is required by these rules or in any order of the court to be done within a particular number of days.'

This means the Rule applies to anything required to be done by any rule in the High Court Rules or an order of the court. It does not extend to situations not provided for by the rules or court orders. It therefore does not assist in the construction of section 46(19)(c) of the Electoral Act, which is not a provision of the High Court Rules, but a provision of the Electoral Act.”

I am therefore satisfied that Mr Chinyama has properly conceded that his argument on this point is untenable.

Counsel for the respondents sought costs on the legal practitioner and client scale against the appellant, the appearing legal practitioner, and the instructing law firm.

He submitted that the same issue has been before GUVAVA J as an urgent application instead of an appeal because of the appellant's legal practitioner's failure to correctly apply the provisions of section 46(19)(a)(b) and (c) of the Electoral Act.

In that application, the respondents raised preliminary issues on the inapplicability of the Urgent Application procedure as it is not provided for in section 46 of the Electoral Act. The appellant's legal practitioners persisted with that application until it was dismissed by GUVAVA J with costs on the legal practitioner and client scale.

Mr Chiyama did not dispute that the application was dismissed because it had not been lodged in terms of section 46(19) of the Electoral Act.

The provisions of section 46(19)(b) and (c) of the Electoral Act are clear. They provide for an appeal, not an application.

If the appellant and his legal practitioners were acting reasonably they would have withdrawn the application and immediately lodged the appeal instead of persisting with the application until it was dismissed with costs on the higher scale on the 21st February 2008.

This appeal was lodged on the day the urgent application was dismissed.

At the hearing of this case, the appellant's counsel exhibited the same unreasonable persistence in the face of clear facts that the appeal was out of time.

I am satisfied that the costs sought by counsel for the respondents should be granted.

It is therefore ordered that:-

The appellant's appeal be and is hereby dismissed with costs on the legal practitioner and client scale against the appellant, the appearing legal practitioner, and the law firm jointly and severally the one paying the others to be absolved.

HHH142-10 : ALBERT MATAPO and OTHERS vs THE STATE
Ruled By: MUSAKWA J

The applicants are seeking the dismissal of the charge for which they were committed for trial on 4 June 2008 on the basis that they were not brought to trial within six months of such committal.

The facts, as set out in counsel for the applicant's founding affidavit, are that the applicants were arrested on charges of contravening section 20 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They have been in custody since 30 May 2007. On 4 June 2008 they were served with indictment papers for trial before the High Court on 7 July 2008.

Subsequent to the committal for trial, the defence wrote to the prosecution on 5 June, 12 June, and 2 July 2008.

In the first two letters, they sought to be furnished with documentation and witnesses' statements. In the last letter, they were reminding the prosecution of the delay in being furnished with witnesses' statements and the difficulties defence counsel experienced in accessing the applicants in order to prepare their Defence Outline.

There were no replies to those letters.

On the date of trial, the matter could not be heard as the defence persisted with its complaints. The Defence Outline was later filed on 11 July 2008. On the other hand, the State was notified of the defence's intention to raise a constitutional challenge against the charge that was preferred against the applicants.

On 5 August 2008, the constitutional issue was argued before HLATSHWAYO J who reserved judgment. Judgment was handed down on 18 November 2008 whereupon the matter was referred to the Supreme Court. The Supreme Court handed down its decision, in which it dismissed the application, on 7 December 2009.

Following the Supreme Court decision, the applicants' counsel personally attended at the offices of the Attorney-General where he requested that the matter be set down during the First Term of 2010. He was advised that it was not possible to set the matter down during that term.

In March 2010, the defence was notified of the setting down of the matter for 21 June 2010.

During the course of the applicants' incarceration, several applications for bail have been made. There was also an attempt to re-indict the applicants at the Magistrates Court a week before 21 June 2010. This was successfully resisted by the defence.

In his heads of argument, counsel for the applicants submitted, that, in terms of section 66 of the Criminal Procedure and Evidence Act [Chapter 9:07] the Attorney General is dominus litis in respect of cases he decides to prosecute. In this respect, a matter may be set down for trial even a year in advance.

He further submitted, that, in terms of section 160(2) of the Criminal Procedure and Evidence Act, an accused who has been committed for trial but not tried within six months is entitled to have his case dismissed. He also submitted that the provision in question is meant to protect an accused person from lengthy incarceration before he is brought to trial. The period in question should be six calendar months calculated in terms of the Interpretation Act [Chapter 1:01].

Counsel for the applicants further submitted that the reckoning of time is between the time the accused persons were indicted and the trial date. That period should exclude the time the Constitutional application was awaiting determination by the Supreme Court. That is the only time the applicants were not available for trial as the trial could not be set down whilst the Constitutional application was still pending.

The State did not file an opposing affidavit.

I must also point out that despite the State having been directed to file a response to the application by 28 June 2010 what were only filed were the State's submissions on the day of hearing.

The court was made to understand that the officer who previously attended to this matter was ill-disposed. However, that does not absolve the State from its obligations.

At the end of the day, one cannot say the matter was opposed in the manner expected of a contested application because effectively all the averments that were made against the State in the applicants' founding affidavit went unanswered save for issues of law that were addressed in the submissions.

In its written response, the State, in essence, raised two aspects regarding the delay in the matter:

(i) Firstly, it is contended that the calculation of the period within which accused persons should have been brought to trial should take into account the times the High Court was on vacation. In this respect, it was submitted that the High Court was on vacation between 29 November 2009 and 12 January 2010 as well as between 1 April and 10 May 2010. The two vacations are taken as a period that was beyond the control of the Attorney General as no trial could be heard during those periods.

Allied to this submission is the contention that the six months that entitle a dismissal of the case must run uninterrupted. In this respect, counsel for the State cited the case of Garikai Mukuze and Another v S whose correct citation is 2005 (1) ZLR 6 (H).

(ii) The other contention is that State witnesses had to be secured first before the case was set down for trial.

It was also submitted, that, between 29 March and 3 April 2010, a suspect was arrested on allegations of abetting the applicants in their attempt to escape from custody. This necessitated a delay as the matter had to be investigated. In this respect, the suspect was tried and convicted on 8 April 2010.

Section 160 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that:

“(1) Except as is otherwise expressly provided in this Act as to the postponement or adjournment of a trial, every person committed for trial or sentence whom the Attorney-General has decided to prosecute before the High Court shall be brought to trial on such date as may be determined by the Attorney General:

Provided that the High Court may, on application by the accused and on good cause shown by him, order that the trial shall take place on an earlier date than that determined by the Attorney General.

(2) If a person referred to in subsection (1) is not brought to trial after the expiry of six months from the date of his committal for trial, his case shall be dismissed:

Provided that any period during which such person is, through circumstances beyond the control of the Attorney-General, not available to stand trial shall not be included as part of the period of six months referred to in this subsection.”

It is clear from a reading of the above provision that the prerogative of setting down a criminal matter for trial is that of the Attorney General. The only time an accused person may be granted an earlier date is upon application before the court.

Subsection (2) does not provide for the reckoning of the six months period.

Under such circumstances, one has to have recourse to the Interpretation Act [Chapter 1:01]. In this respect, section 33(6) of the Interpretation Act provides that:

“In an enactment —

(a)…,.;

(b)…,.;

(c) A reference to a month shall be construed as a reference to a calendar month;

(d)…,.”

Since the Interpretation Act does not define a calendar month, the Shorter Oxford English Dictionary defines it as:

“One of the twelve months into which the year is divided according to the calendar; also the space of time from any date (e.g. the 17th) of any month to the corresponding date (the 17th) of the next, as opposed to a lunar month of 4 weeks.”

Taking the above definition, in computing time in the present matter, the court will take the date in any particular month to a corresponding date to any other month.

Counsel for the State submitted that a calendar month is the beginning of the month to the end of that month.

If one were to use that method, it would present problems with any dates that fall between the beginning and the end of a particular month. It would leave such periods unaccounted for, which, in my view, was not the intention of the legislature when section 33(6) of the Interpretation Act was enacted.

The committal of an accused person for trial before the High Court occurs when the Attorney General serves a written notice on a magistrate in terms of section 66(1) of the Criminal Procedure and Evidence Act. This is because in terms of section 65 of the Criminal Procedure and Evidence Act no accused person shall be tried in the High Court unless he or she has been committed for trial by a magistrate for the offence charged in the indictment.

On committal, it is a requirement that the accused person be served with a list of witnesses the State intends to call plus a summary of the evidence of each witness sufficient to inform the accused of all the material facts upon which the State relies.

However, in practice, the State invariably furnishes the accused with copies of the witnesses' statements and any other relevant documents recovered, recorded, or compiled during the course of investigations.

The effect of committal is that an accused person is detained in prison in terms of section 66(2) of the Criminal Procedure and Evidence Act.

Counsel for the State argued that the period of six months must be uninterrupted, and, in his written submissions, he referred to the case of Garikai Mukuze and Another v S 2005 (1) ZLR 6 (H) in which he quoted the remarks of UCHENA J when he commented on section 160 of the Criminal Procedure and Evidence Act.

This case was a precursor to another decision of this court reported in 2005 (1) ZLR 79 (H) which involved the same accused persons.

In the first matter, the accused persons had filed a court application in which they sought the dismissal of the case against them in terms of section 160(2) of the Criminal Procedure and Evidence Act. Although they had been committed for trial, their matter had subsequently been set down for trial in the Magistrates Court. Although UCHENA J did not order a dismissal, on the basis that a proper inquiry needed to be conducted regarding the delay in prosecuting the matter, this is what the learned judge had to say in respect of the proviso to section 160 of the Criminal Procedure and Evidence Act …,:

“The proviso to section 160(2) and section 160(3) provides for circumstances which interrupt the lapse of the six months period.

If the six months period lapses without interruption then, the accused is entitled to a dismissal of his case.

It must, however, be noted that this can only be done when the court is satisfied there is no such interruption. This should be after hearing the reasons why the case did not get to trial within the stipulated period.

In my view, dismissal cannot be ordered after a cursory inquiry based on the applicant's affidavits without affidavits from the investigating officer and the prosecutor who handled the case, or an admission by the State that there are valid reasons why the accused's case should be dismissed…,.”

When the same matter had been reinstated before the High Court, and an application was made before the Criminal Court, the facts were that the accused persons had been remanded in custody in 2002. They were subsequently indicted for trial whose date was set for 31 May 2004.

Initially, trial failed to commence on account of the absence of State witnesses and pro deo counsel for one of the accused. Later, the trial failed to proceed because one pro deo counsel had been excused from the case and the trial prosecutor was not in attendance. The matter failed to proceed on another date in October 2004.

Although MAVANGIRA J accepted that the absence of defence counsel was a factor beyond the control of the Attorney-General, she also held that the unexplained absence of the trial prosecutor would be visited on the Attorney General. Commenting on section 160 of the Criminal Procedure and Evidence Act she had this to say…,:

“I thus find that section 160(2) is meant to protect accused persons from being unreasonably kept under committal for trial for longer than six months when the trial has failed to take place during that period. It is also, in my view, meant to ensure that the Attorney General ensures that trials of accused persons committed for trial are expeditiously conducted.

There must be a balancing of the interests of society vis a vis the interests of the accused person.

Indeed, our Constitution recognizes the right of an accused person to be afforded a fair hearing within a reasonable time. In my view, section 160(2) was enacted in that spirit and against such backdrop. But section 160(2) does not entitle the applicants to a discharge or acquittal nor does it relate to the running of prescription. It merely relates to the release from committal.”

In the present matter, I hold that from the time the applicants were committed for trial, on 4 June 2008, the six months within which they should have been brought to trial immediately commenced to run.

Between that date and when the Constitutional application was heard, the matter could not be tried because the defence had not been furnished with certain documents which were listed or described in correspondence addressed to the prosecution. The prosecution did not reply to the correspondence save that the requested witnesses' statements were availed a few days before the date of trial.

In my view, the period between committal and the hearing of the Constitutional application should be counted as part of the six months within which the applicants should have been tried. This is because the Attorney General cannot be heard to argue that those were circumstances beyond his control.

The two cases I have referred did not deal with the issue of reckoning of six months or the effect of interruption of that period.

In my view, the remarks by UCHENA J do not mean the six months must run un-interrupted and that any period preceding such interruption must be discounted. I say so because there would not have been the need for the proviso to subsection (2).

What it means, then, is that, if the aggregate period between an accused's committal and date of trial exceeds six months, even though interrupted by some other circumstances which are beyond the control of the Attorney-General, he is entitled to a dismissal.

I am fortified in my view by a phrase in the proviso, viz “not available to stand trial.”

When an accused person is committed for trial, he automatically becomes available for trial. The only time he is not available for trial would be, for example, if he is too ill or when the trial process is interrupted by some other process like an application for referral of a Constitutional issue to the Supreme Court.

Even when the State contends that, at some stage, investigations had to be conducted in relation to a suspect who attempted to facilitate the applicants' escape from custody, it cannot be said they were not available to stand trial. In any event, the interruption amounted to only a few days and would thus be inconsequential.

In the same vein, I am not persuaded that the fact that the High Court was on vacation on two occasions cited by the State constitutes a circumstance beyond the control of the Attorney General.

This is because it cannot be said the applicants were not available to stand trial.

Whichever way you consider it, the argument that the court vacation interrupts the reckoning of time is dissipated when one takes into account the definition of a calendar month.

I did not hear the State attempt to explain why the case could not be set down for trial during the First Term of 2010. It would not have required the High Court not being on vacation to set down a matter within six months that are required by section 160 of the Criminal Procedure and Evidence Act [Chapter 9:07].

In light of the foregoing, it is ordered that the case against the applicants be and is hereby dismissed.

SC19-21 : CHEVHU HOUSING CO-OPERATIVE SOCIETY LIMITED AND OTHERS vs CREST BREEDERS INTERNATIONAL (PVT) LTD AND MINISTER OF LANDS AND RURAL SETTLEMENTS
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

The appellants are nine cooperative societies which have been dishing out residential Stands at a piece of land known as Saturday Retreat Estate (the land) for quite some time. The land is held by the first respondent by Deed of Transfer number 4035/86 and was acquired by the Government of Zimbabwe for urban development by Acquisition of Land Order dated 20 March 2014.

Following the acquisition, the second respondent herein, who is the acquiring authority, filed an application against the first respondent in the Administrative Court (the court a quo) for confirmation of the compulsory acquisition order.

The matter was settled between the parties as a result of which a consent order was issued by the court a quo on 13 January 2015.

The consent order confirmed the compulsory acquisition and made provision for compensation due to the first respondent in terms of the agreement of the parties therein.

Almost five years after the consent order was granted in the matter involving the two respondents, the appellants approached the court a quo seeking a rescission of that judgment in terms of Rule 449 of the High Court of Zimbabwe Rules, 1971.

The basis of the rescission of judgment application was that the judgment was granted either in error or fraudulently in the absence of the appellants.

Before the court a quo, the first respondent raised a number of points in limine, namely;

(i) That the application was filed out of time without seeking condonation for the delay;

(ii) That the appellants lacked locus standi in judicio to seek a rescission of an agreement in which they were not a party; and

(iii) That there was no fraudulent misrepresentation in the grant of the consent order.

By judgment delivered on 6 March 2020, the court a quo upheld the preliminary points. This appeal is against that judgment of the court a quo.

This Court finds that the appeal is completely devoid of merit. It ought to be dismissed with costs.

BACKGROUND

By Government Gazette Extraordinary published on 7 September 2001, a preliminary notice in terms of section 5(1) of the Land Acquisition Act [Chapter 20:10], of the intent to acquire the land for resettlement purposes, was issued.

Subsequent to that, the acquisition for resettlement was not pursued, presumably upon a realisation that the land was earmarked for urban settlement.

Notwithstanding that, the appellants later occupied the land and started parcelling out residential Stands to their members. Their case is that they were offered the land for that purpose by the Government as it was by then State land given that a preliminary notice of intent to acquire the land had been published in 2001.

As I have said, it was not until 20 March 2014 that the Government commenced the process of the lawful compulsory acquisition of the land for urban development.

On that date, the second respondent issued an acquisition of land order. As required by law, the second respondent brought an application before the court a quo, under case number LA6/14, for confirmation of the compulsory acquisition and compensation to the first respondent.

The proceedings in the court a quo led to the signing of a settlement between the first and second respondents, on 18 December 2014, which was incorporated in the consent order sought to be rescinded. The Order reads:

“BY CONSENT IT IS ORDERED THAT:

1. The compulsory acquisition of the immovable property, being the remaining extent of Saturday Retreat Estate situated in the District of Salisbury measuring One Thousand and Fifty Seven comma three eight one (1,057,3810) hectares held under Deed of Transfer 4035/1986 (“the Property”) by the respondent be and is hereby confirmed.

2. The respondent is entitled to full compensation for the compulsory acquisition of its urban land.

3. The manner of compensation shall be as set out in the Memorandum of Agreement entered into between the Government of Zimbabwe and the respondent, dated 18 December 2014, a copy of which is annexed to this order as Annexure A.

3.1 The respondent be and is hereby allocated the unoccupied portion of the property measuring 401 hectares.

3.2 The respondent is hereby appointed the sole and exclusive developer of the property defined in the Deed of Settlement measuring 401 hectares.

3.3 The terms and conditions of such appointment shall be governed by the Agreement entered into between Government of Zimbabwe, represented by the Ministry of Local Government and Urban Development, and the respondent, a copy of which is annexed to this order as Annexure A.

4. The Government of Zimbabwe shall sign all such documents, pass all such instruments, give such instructions, and do all things necessary to give effect to this Court order.

5. There shall be no order as to costs.”

Following the consent order, the Deed of Transfer, in terms of which the first respondent held the land, was endorsed on 18 December 2015 to the effect that it now vests in the President.

It is common cause that the appellants became aware of the grant of the court order sought to be rescinded as far back as 2015. The application for rescission of judgement was only filed on 13 December 2019, about 4 years later, without seeking condonation.

PROCEEDINGS A QUO

Before the court a quo, the appellants' case was that the court a quo was misled into granting the consent order and therefore granted the order in error.

The error was in the sense that the first respondent was not the owner of the land in question, it having been acquired by the Government in 2001, and, following such acquisition, it was allocated to the appellants.

Further, the appellants have an interest in the land and had to be consulted before the consent order was granted.

In addition, the appellants contended that the consent order was fraudulently obtained in the sense that the first respondent fraudulently misrepresented to the second respondent, and the court, that, it had entered into agreements with them in terms of which the occupants agreed to pay $4 per square metre of land occupied by them. According to the appellants no such agreements were entered into.

The first respondent's case before the court a quo was that the application for rescission of judgment was filed out of time without seeking condonation at the time they had become aware of the consent order and had thus been complicit for years.

Further, the first respondent took the view that the appellants did not have locus standi to contest an agreement entered into in settlement of an application for confirmation of compulsory acquisition of urban land and compensation thereof.

As they lay a claim through the Government, the appellants could not possibly be cited in proceedings brought in the process of acquisition.

Regarding the agreement relating to payment for the land occupied by the appellants' members, the first respondent insisted that indeed it had agreements with individual occupiers. The appellants had been in illegal occupation of the land which was only lawfully acquired in 2014. The first respondent maintained that it had separate arrangements with some of the occupiers who are paying for the land directly to it.

FINDINGS A QUO

The court a quo found that the delay of almost 5 years in bringing the application was too long, and, as such, condonation should have been sought giving an acceptable explanation for failure to act expeditiously.

It found, further, that there was need for relative certainty and finality in litigation.

On the aspect of the alleged fraudulent misrepresentation to obtain the consent order, the court a quo found that none had been proved in court.

Regarding the appellants' locus standi, it was the court a quo's finding that none of the appellants were privy to the agreement entered into between the first and second respondents. As such, they had no legal standing to seek a rescission of an agreement they were not party to.

As I have already stated, the court a quo upheld the points in limine.

THE APPEAL

The appellants were aggrieved by the judgment of the court a quo and noted an appeal to this Court on four grounds of appeal. They are:

1. The learned judge a quo erred at law in failure to dispose of the first point in limine by the first respondent.

2. The learned judge a quo erred at law in holding that the appellants lacked locus standi to apply for rescission of the judgment granted by the court on 13 January 2015.

3. The Honourable Court erred at law, in so far as it may be taken to have upheld the first point in limine, in holding that there was need for the appellants to apply for condonation of the late noting of the application for rescission and that the appellant failed to prove fraud.

4. The honourable lower court erred at law in allowing a judgment obtained through fraudulent means to stand.

The grounds of appeal are inelegantly crafted, they are repetitive and lack clarity and conciseness required by the Rules.

Be that as it may, only two issues for determination on appeal arise from them. They are:

1. Whether there was a need for the appellants to seek condonation before filing the rescission of judgment application in terms of Rule 449 of the High Court Rules....,.

WHETHER CONDONATION SHOULD HAVE BEEN SOUGHT

Counsel for the appellants submitted that the judgment of the court a quo is not clear whether condonation was necessary or not.

He submitted that Rule 449 does not fix any time-frame for bringing the application. To that extent, there was no need to seek condonation as it could not be said that the application was out of time.

Per contra, counsel for the first respondent submitted that the mere fact that Rule 449 contains no time frame for the filing of an application made under it is not a licence for bringing the application anytime without seeking condonation.

I agree.

There appears to exist a misconception among legal practitioners that Rule 449 provides a gas station for all those who have failed to act timeously to re-fuel and breathe life into a cause that has run its course.

It was never the intention of the framers of the Rules that there must exist a remedy for eternity.

The policy of the law is that there should be legal certainty and finality in the relationship of parties after the lapse of a certain period of time. It is for that reason that society is intolerant to stale claims, generally, as a result of which a party that fails to enforce a right timeously, or within a reasonable time, loses the right altogether: see Ndebele v Ncube 1992 (1) ZLR 288 (S)…,.; John Conrad Trust v The Federation of Kushanda Pre-Schools Trust & Ors HH503-15…,.

It ought to be appreciated that Rule 449 provides for discretionary relief to be granted or refused in the exercise of discretion by a judge or court.

The case of Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S) is authority for the proposition that the court may, in the exercise of its discretion, dismiss an application made in terms of Rule 449 by reason of the inordinate delay in bringing it. At pp365H-366D this Court said:

“Even if the learned judge was wrong in deciding that the judgment granted by MTAMBANENGWE J was not erroneously sought or obtained, I consider that he was justified, in the exercise of his discretion, in dismissing the application by reason of the inordinate lapse of time. After all, Rule 449 is 'a procedural step designed to correct, expeditiously, an obviously wrong judgment or order': per ERASMUS J in Bakoven's case supra at 471E-F: see also Firestone South Africa (Pty) Ltd v Genticuro AG supra at 306H.

In First National Bank of Southern Africa Ltd v Van Rensburg NO & Ors; In re First National Bank of Southern Africa Ltd v Jurgens & Ors 1994 (1) SA 677 (T) ELOFF JP (with whom VAN DER WALT and PREISS JJ concurred) stressed the important need to proceed rapidly in applications of this nature. He said at 681E-G:

'It is in the interest of justice that there should be relative certainty and finality as soon as possible concerning the scope and effect of orders of court.

Persons affected by such orders should be entitled, within a reasonable time after the issue thereof, to know that the last word has been spoken on the subject.

The power created by Rule 42(1) is discretionary (see Tshivhase Royal Council & Anor v Tshivhase & Anor, Tshivhase & Anor v Tshivhase & Anor 1992 (4) SA 852(A) at 862 in fine – 863A) and it would be a proper exercise of that discretion to say that, even if the appellant proved that Rule 42(1) applied, it should not be heard to complain after the lapse of a reasonable time. A reasonable time in this case is substantially less than the three years referred to.'

I respectfully agree with these observations.”…,.

In my view, Rule 449 is not an open cheque to bring an application for rescission, even where it applies, at any time in the life of a person.

It is an expeditious remedy which should be deployed rapidly the moment the party seeking to rely on it becomes aware of the existence of the order.

Where, for some reason, the application is not so made, an acceptable explanation must be rendered for failure to act timeously. Such an explanation can only be made in an application for condonation.

The court a quo cannot be faulted for upholding that preliminary point.

View Appeal
HMA13-19 : CONCILIA CHINANZVAVANA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: MAFUSIRE J

Section 251(1) of the Constitution of Zimbabwe says:

“For a period of ten years after the effective date, there is a commission to be known as the National Peace and Reconciliation Commission consisting of –”

The rest is not immediately relevant.

The applicant is a Member of Parliament for the House of Assembly on the ticket of the Movement for Democratic Change–Alliance party (MDC-A), the largest opposition political party in Zimbabwe by number of followers - at least from the results of the last general election on 30 July 2018. She wants the court to pronounce that the intention of the framers of the Constitution, as expressed in section 251(1) above, was that the life of the National Peace and Reconciliation Commission (“the NPRC” or simply “the Commission”) once established “…, after the effective date…,” would be, at the very least, ten years. Otherwise, she says, there is nothing in that section limiting the existence of the Commission to just ten years.

For her cause, the applicant has brought to court the top echelons of the Executive arm of the Government of Zimbabwe comprising the President; his Vice, to whom the administration of the National Peace and Reconciliation Commission (Commission) is assigned; the Minister of Justice, who, among other roles, doubles up as leader of Government business in Parliament; and the Attorney General of Zimbabwe, who, among other things, is the chief legal adviser.

It being the subject of the suit, the National Peace and Reconciliation Commission (NPRC) is also a party.

At first brush, there can be nothing awkward or problematic with what section 251(1) of the Constitution is saying. The provision is recognizing that there is an effective date, for this is clearly defined in section 332 of the Constitution. It is naming a certain Commission that should be there for a fixed period after the effective date. It names that Commission as being the National Peace and Reconciliation Commission (NPRC). It defines that period as ten years. In other words, and looking at it superficially, the National Peace and Reconciliation Commission (Commission) exists for ten years after the effective date.

But, apparently the position is not altogether that obvious.

To begin with, the section does not expressly tell when exactly the National Peace and Reconciliation Commission (Commission) is established. It starts by simply recognising it as a fait accompli, a thing that has already happened after the effective date. The hidden problem comes out more in the open when one considers the exact nature of the relief sought by the applicant. According to her draft order:

“1. The National Peace and Reconciliation Commission, established in terms of section 251 of the Constitution, shall have tenure of life of ten years which are deemed to have commenced on the 5th of January 2018 when the National Peace and Reconciliation Act became law.

2. It is declared that the ten year life and tenure of the National Peace and Reconciliation Commission shall deem to run from the 5th of January 2018.

3. The 1st Respondent pays costs of suit.”

Thus, to the applicant, the ten year period should be counted from 5 January 2018.

That should be deemed the effective date because, she says, that is when the operation of the National Peace and Reconciliation Commission (Commission) became effective, when the enabling legislation, the National Peace and Reconciliation Act [Chapter 10:32] (“the enabling Act”) was gazetted. That is when, according to her, the Commission became operational, when, among other things, the commissioners were sworn in; the secretariat appointed; the funding for the Commission's operations provided for; the manner of its operations spelt out; and so on.

The respondents have opposed the application on one single ground that they have stuck to from beginning to end.

At the beginning, they took the point as a preliminary objection, or point in limine, and filed no further defence on the merits. According to them, the National Peace and Reconciliation Commission (Commission) automatically ceases to exist ten years after the effective date.

Section 332 of the Constitution defines “effective date” as the date when the Constitution came wholly into operation as contemplated by section 3(2) of the Sixth Schedule to the Constitution.

In terms of section 3(2) of this Schedule, the rest of the Constitution came wholly into operation on the day on which the President elected in the first election (after the promulgation of the Constitution) assumed office. The former President, Mr Robert Gabriel Mugabe, assumed office after that election in August 2013.

On all this, the parties are ad idem, save for a minor discrepancy on the exact date former President Mugabe assumed office in August 2013: the applicant saying 18 August, and the respondents saying 22 August.

In fact, it was 22 August.

The respondents argument is that the court cannot do what the applicant wants it to do. What the applicant wants done is to have the court declare that the effective date referred to by section 251(1) of the Constitution is 5 January 2018, and that therefore the National Peace and Reconciliation Commission (Commission) lasts until 4 January 2028....,.

Little or nothing of the extensive allegations in the applicant's founding and answering affidavits was challenged.

In summary, the applicant's case was that the Constitution was a negotiated document during that period in history from 2008 when government power in Zimbabwe was shared among the then leaders of the then three dominant political parties: the Zimbabwe African National Union–Patriotic Front (ZANU-PF), then led by Mr Mugabe; and the two MDC formations, one led by Mr Morgan Richard Tsvangirai and the other by Professor Arthur Mutambara. It was called a Government of National Unity (GNU) whose mid-wife was the then South African President, Mr Thabo Mbeki, through some framework called the Global Political Agreement (GPA).

The applicant explains, that, the constitutional-making process was an extensive and protracted effort which involved several other abortive initiatives, including the one led by the then Chief Justice of Zimbabwe, the late Mr Godfrey Chidyausiku, and the other led by representatives from ZANU-PF and the MDC, Messrs Patrick Chinamasa and Welshman Ncube respectively.

Procedures set out in the Global Political Agreement (GPA) involved outreach programmes to all parts of the country to gather the views of the populace on the various thematic areas. The setting up of some kind of Commission or body to investigate certain conflicts, like the disturbances that rocked Matabeleland and Midlands Provinces from about 1982 to 1987, commonly referred to as “Gukurahundi” – much along the lines of the South African Truth and Reconciliation Commission chaired by the Anglican Archbishop Desmond Tutu – was one such thematic chapter.

The applicant alleges, that, among other issues, the setting up of a peace and reconciliation commission became so emotive and contentious that it threatened to derail the whole constitutional making process. At the core was the unflinching objection by ZANU-PF for its setting up, which was equally matched by the resolute determination by the MDC formations for its establishment. The applicant says, that, from the outreach programmes, the idea of setting up such a body garnered 51% support, and sat at number six in terms of popularity after issues of electoral reform; human rights; anti-corruption; media; and land.

To break the deadlock, the applicant says a compromise was reached.

Among other things, the National Peace and Reconciliation Commission (NPRC) would be set up with some kind of truncated mandate in terms of time frames. It would only have a life span of ten years and would only investigate post 2013 conflicts. She says that that explains why section 251(1) of the Constitution is worded the way it is.

In her narrative, the applicant adverts to the violence that flared up in this country in 2008 following a general election, the first results of which produced no outright presidential winner between Mr Mugabe and Mr Tsvangirai, leading to a re-run that was eventually won by Mr Mugabe amid bitter contest when Mr Tsvangirai had pulled out of the race citing excessive violence against members of his party.

She says she and her entire family suffered severely in that violence.

She was abducted by State agents together with several other members of her party. She was detained for fifty-five days during which she and her fellow abductees were kept blindfolded for most of the time and were subjected to severe torture, and to inhuman and degrading treatment.

The applicant says several members of her party were brutally murdered or they simply disappeared. They remain unaccounted for to this day.

She and her colleagues were eventually handed over to the police. However, plans to prosecute them for subversion collapsed after one of the abductees, Ms Jestina Mukoko, won a permanent reprieve from the Supreme Court given the illegal pre-prosecution conduct of the State: see Mukoko v Attorney General 2012 (1) ZLR 321 (S).

Counsel for the applicant argues, that, the National Peace and Reconciliation Commission (NPRC) is such an important constitutional body whose functions should not be restricted beyond what the Constitution already does. He argues that the respondents have, by design, rendered the Commission impotent and have purported to proscribe its operations by severely limiting its life span. They waited a staggering five years before giving the Commission its wings.

It was only made operational on 5 January 2018 when the enabling Act became law: yet, post conflict investigation is so critical to heal wounds, given the history of violence in Zimbabwe which is traced from the first war of liberation in the 1890s, called the First Chimurenga; the second war of liberation in the 1970s, called the Second Chimurenga; Gukurahundi; and all the other subsequent periods of violence, particularly at general election times.

The only serious contest to the applicant's factual averments on the history and birth of the National Peace and Reconciliation Commission (NPRC), something said “from the Bar” by counsel for the respondents, is that the respondents did not exactly wait five years before setting up the Commission. He says by 17 July 2016 the first chairperson of the Commission had already been appointed. His name was Mr Cyril Ndebele. Unfortunately, he died seven months after appointment.

Counsel for the respondents agrees that the current National Peace and Reconciliation Commission (NPRC), led by Mr Selo Nare, a retired Judge of the Labour Court, only became operational after 5 January 2018 following the promulgation of the enabling Act.

Counsel for the respondents basic argument is that whatever might have happened, under no circumstances can the life of the National Peace and Reconciliation Commission (NPRC) extend beyond ten years after the effective date. To do so will be to do violence to a clear constitutional provision. He further argues, that, the respondents did comply with their obligations in terms of section 251(1) of the Constitution in that within a period of ten years from the effective date they managed to incept the NPRC.

He says all that the section implores the respondents to do is to ensure that the National Peace and Reconciliation Commission (NPRC) is set up within the ten year period.

So, the issue before me, putting it simply, is, what is the meaning of section 251(1) of the Constitution in relation to the life of the National Peace and Reconciliation Commission (NPRC)? Can this Commission exist after 21 August 2023, being the ten years after the effective date? Or can it exist up to 21 August 2028 being the ten years after the enabling Act was gazetted? Can it not even exist in perpetuity after 22 August 2013, the effective date?

What exactly did the framers of the Constitution mean?

To answer the above questions I have invoked the relevant techniques of statutory interpretation as they apply to constitutional provisions. Ideally, the various canons of construction should return the same result. But, invariably, they return conflicting answers. When that happens, the court does not throw its hands in the air in despair. It gets down to work. It sets out to unravel the hidden meaning. DENNING LJ…, said in Seaford Court Estates Ltd v Asher [1949] 2 All ER 155 (CA)…,:

“Whenever a statute comes up for consideration it must be remembered, that, it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament…,

Quoted with approval in S v Aitken 1992 (2) ZLR 84 (S) at 89A–D.

The language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature.”

A constitutional instrument is sui generis.

It calls for principles of interpretation of its own and suitable to its character: see Minister of Home Affairs (Bermuda) & Anor v Fisher & Anor [1980] AC 319…,; [1979] 3 All ER 21 (PC)…,. But, in general, the principles governing the interpretation of a Constitution are basically no different from those governing the interpretation of any other legislation: see Hewlett v Minister of Finance & Anor 1981 ZLR 571 (S)…,.

There are a number of guides to statutory interpretation or 'canons of construction'. The law has not yet authoritatively established any complete hierarchy among them: see Tzu-Tsai Cheng v Governor of Pentonville Prison [1973] 2 All ER 204…,. However, the 'golden rule' of statutory interpretation is universally the first and most elementary rule of construction.

The 'Golden Rule' of Construction

According to this technique, except in technical legislation, it is to be assumed that the words in a statute are used in their ordinary and natural meaning. Nothing is to be added unless the words are at variance with the clear intention of the legislature as gathered from the statute itself or they render a manifest absurdity or some repugnance. If that be the case, the language may be varied or modified. Otherwise, it is a strong thing to read into a piece of legislation words which are not there, and, in the absence of clear necessity, it is a wrong thing to do: see Thompson v Goold & Co [1910] AC 409…,.

Of the golden rule of statutory interpretation, McNALLY JA put it this way in Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S):

“There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to…, 'unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further.”

See also Zimbabwe Revenue Authority & Anor v Murowa Diamonds (Pvt) Ltd 2009 (2) ZLR 213 (S)…,.

Applying the golden rule to section 251(1) of the Constitution, I do not find it saying the life of the National Peace and Reconciliation Commission (NPRC) is ten years from the effective date.

Counsel for the applicant emphasises that the preposition used in that section is 'after' not 'from'. The section says “for a period of ten years after the effective date…,.” It does not say “for a period of ten years from the effective date…,.”

I agree.

Counsel for the respondents argument, that the National Peace and Reconciliation Commission (Commission) can only exist for ten years after the effective date would probably make sense if it was “from” not “after” that the section uses.

With 'from' the clock would have started to tick from 22 August 2013.

“From” is a preposition depicting, among other things, the point in time at which a particular process, event, or activity starts. That point in time is determinate. It is definite. It is fixed.

But “after” is not. It is indeterminate. It is unfixed.

If the National Peace and Reconciliation Commission (Commission) was effectively established five years, or even three years after the effective date, and if counsel for the respondents insists that there was nothing wrong with that, then, the respondents argument, taken to its logical conclusion, could mean that, they could well have waited nine years and eleven months. They could simply incept the Commission on the eve of the expiry of the ten year period. They would still have complied.

That brings me to the second canon of construction relevant to this case. It is the presumption against anomaly or absurdity.

Presumption against Anomaly or Absurdity

By this technique, the courts adopt a construction agreeable to justice and reason. There is a presumption, that, in enacting a law, no unreasonable result is intended. If there is some construction available other than that leading to an unreasonable result, it is the one to be preferred. The reason, as GUBBAY CJ put it in S v Aitken 1992 (2) ZLR 84 (S)…, is:

“For, to stand aside where the object and intention of the enactment are clear would be to allow it, contrary to good sense, to be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law.”

So, if the date the National Peace and Reconciliation Commission (Commission) was effectively established is 5 January 2018, or, according to counsel for the respondents, 7 July 2016, and, if, according to the respondents, the Commission must not exist beyond ten years after the effective date, the result could be a monstrous absurdity. As noted above, the respondents could wait nine years and eleven months before incepting the Commission and still claim to have complied.

Plainly that is wrong.

Plainly, the reference to ten years, in section 251(1) of the Constitution, is to the life of the National Peace and Reconciliation Commission (Commission) rather than the length of time given the respondents to establish it.

That the reference to ten years is in regards to the life of the National Peace and Reconciliation Commission (Commission) rather than the time given for its establishment becomes clearer if regard is had to the other provisions of the Constitution.

When interpreting an unclear provision, it is permissible for a court to go outside it and consider the entire document: see Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S).

In this regard, section 324 of the Constitution provides, that, all Constitutional obligations must be performed diligently and without delay.

Counsel for the respondents had no choice but to concede, that, for the Government to have waited five years, or, on his construction, three years, before incepting the National Peace and Reconciliation Commission (Commission), cannot pass the diligence and without delay test.

Furthermore, by section 252 of the Constitution, a whole range of daunting responsibilities are fostered upon the National Peace and Reconciliation Commission (NPRC). They include:

(i) Ensuring post conflict justice, healing, and reconciliation;

(ii) Developing and implementing programmes to promote national healing, unity, and cohesion in the country; and

(iii) Bringing about national reconciliation.

Zimbabwe has been blighted by conflict before and after independence. Its peoples are severely polarised. In a nutshell, the mandate of the National Peace and Reconciliation Commission (NPRC) is to inculcate and nurture a culture of tolerance, peace, love, and harmony. Each of the functions assigned to it by the Constitution requires lots of time to accomplish. It is even doubtful whether ten years are enough.

But, to put the issue beyond doubt I go on to consider the next canon of construction.

Purposive and Generous Construction

This canon of construction calls for a broad and generous approach. The aim is to identify the core values underpinning the rights enshrined in a Constitution and promote its whole purpose. It avoids a narrow, artificial, rigid, and pedantic interpretation. It eschews the “austerity of tabulated legalism”: see Rattigan & Ors v Chief Immigration Officer & Ors 1994 (2) ZLR 54 (S).

Of the purposive and generous approach to Constitutional interpretation SACHS J, in S v Mhlungu & Ors 1995 (3) SA 867 (CC), and quoting LORD DENNING, said…,:

“All it means is that the Judges do not go by the literal meaning of the words or by the grammatical structure of the sentence. They go by the design or purpose which lies behind it. When they come upon a situation which is to their minds within the spirit, but not the letter, of the legislation, they solve the problem by looking at the design and purpose of the legislature – at the effect it was sought to achieve. They then interpret the legislation so as to produce the desired effect.”…,.

Unlike the old Constitution, which was negotiated in Britain, at Lancaster House, in 1979, to stop the war of liberation and grant Zimbabwe independence, the current Constitution is home grown.

Quite regrettably, since 1982, Zimbabwe has suffered, and continues to suffer, conflict - especially at election time.

The current Constitution came into force in 2013. It was an attempt to break with the past which was characterized by intense violence and suffering. Its aim and aspiration is to establish an egalitarian society. It is laden with the values of equality, peace, unity, democracy, and justice. These are summarised in the preamble.

Of a preamble to a Constitution, SACHS J says it should not be dismissed as “a mere aspirational and throat-clearing exercise of little interpretative value. It connects up, reinforces, and underlies all of the text that follows. It helps to establish the basic design of the Constitution and indicate its fundamental purpose:” see S v Mhlungu & Ors 1995 (3) SA 867 (CC)…,.

The establishment of the National Peace and Reconciliation Commission (NPRC), and the mandate given it in section 252 of the Constitution, should be viewed from this angle.

It is undoubtedly one of the most important independent commissions established under Chapter 12.

There are four others, namely, the Zimbabwe Electoral Commission; the Zimbabwe Human Rights Commission; the Zimbabwe Gender Commission; and the Zimbabwe Media Commission.

Yet, unlike its siblings, the National Peace and Reconciliation Commission (NPRC) is the only one with some proscription as to time.

But, its mandate, in section 252 of the Constitution, is so broad in terms of time and scope.

The first of these functions is to ensure post-conflict justice, healing, and reconciliation. Conflict happens all the time. It can happen anytime and anywhere. It needs to be investigated and remedial measures taken to avoid recurrence.

This judgment is written against a background of deplorable violence on 1 August 2018, a day after the general election on 30 July 2018 in which six people died. This tragic event led to the establishment by the second respondent herein (President of the Republic of Zimbabwe) of a Commission of Enquiry, chaired by the South African ex President, Mr Kgalema Petrus Motlanthe.

As if that was not enough, the hearing of this case is happening against a background of further violence that flared up from 15 January 2019 and in which an unknown number of people died.

All this is massive work for the National Peace and Reconciliation Commission (NPRC) - not to mention the other episodes of violence in the past.

The considerable foresight of the framers of our Constitution, in setting up the National Peace and Reconciliation Commission (NPRC) and bestowing upon it broad-based functions so as to safeguard our nascent democracy, and, inter alia, develop strategies to bring about national unity, healing, peace, justice, reconciliation, and facilitate dialogue among political parties, as provided for in section 252 of the Constitution, should not unnecessarily be impeded by the 'austerity of tabulated legalism' in Constitutional interpretation, or the need to accommodate parochial sectarian interests.

On the contrary, the interpretation of section 251 of the Constitution, should, unapologetically, be so wide as to give maximum support to the values and ethos of the Constitution, such that, among other things, the reference to ten years must be read so as to mean the minimum period of life of the National Peace and Reconciliation Commission (NPRC) rather than the end of it from the effective date.

The same result flows from a consideration of the next canon of construction.

Construction according to historical setting and the 'mischief' rule

According to this canon of construction, first is ascertained the general situation, or, rather, the historical setting against which the Constitution was framed. Secondly, is ascertained the 'mischief' or the particular situation for which a remedy was being provided.

In casu, the historical setting against which, and the mischief for which the current Constitution was promulgated and the National Peace and Reconciliation Commission (NPRC) was set up, are self-evident from the applicant's affidavit - which the respondents have not contested in any material respect.

It is a historical fact, that, since independence, Zimbabwe has lurched from one episode of violence and conflict to another. Some of these episodes stick out quite notoriously, like Gukurahundi from 1982 to 1987. It only ended with the Unity Accord between the then two dominant political parties, ZANU-PF, then led by Mr Mugabe, and the Patriotic Front–Zimbabwe African People's Union (PF-ZAPU), then led by the former Vice-President of Zimbabwe, the late Mr Joshua Mqabuko Nyongolo Nkomo.

The other notorious episode of violence was immediately after the Presidential election in March 2008 as already explained above. The applicant says she and her family were some of the victims of that violence.

Mr Mugabe's installation, as President of the Republic, was bitterly contested. This led to the Government of National Unity (GNU), one of whose task was to motivate, sponsor, and craft a broad based Constitution to foster peace, unity, justice, reconciliation, and democracy, among other values. The result was the current Constitution that gave birth to, among others, the National Peace and Reconciliation Commission (NPRC).

The preamble to the Constitution crisply captures the 'mischief' for which the framers were providing a solution. It says, in part:

“We, the people of Zimbabwe, United by our common desire for freedom, justice, and equality…,. Recognising the need to entrench democracy, good, transparent, and accountable governance, and the rule of law, Reaffirming our commitment to upholding and defending fundamental human rights and freedoms,…, Cherishing freedom, equality, peace, justice, tolerance,…, Resolve, by the tenets of this Constitution, to commit ourselves to build a united, just, and prosperous nation, founded on values of transparency, equality, freedom, fairness, honesty, and the dignity of hard work,…,.”

The Chapter 12 independent Commissions, of which the National Peace and Reconciliation Commission (NPRC) is one, are demonstrably some of the strategies to attain and protect the rich values espoused by the Constitution. This is unambiguously spelt out in section 233 of the Constitution. On the list of objectives of those Commissions are the following:

(i) To support and entrench human rights and democracy;

(ii) To protect the sovereignty and interests of the people;

(iii) To promote transparency and accountability in public institutions;

(iv) To ensure the observance of democratic values and principles;

(v) To ensure that injustices are remedied.

Among other obligations, Government must provide adequate funding for these Commissions (section 325(1)(a)). It and all its institutions and agencies at every level must assist them through legislative and other measures (section 235(2))…,.

Therefore, given that the respondents gazetted the enabling Act for the National Peace and Reconciliation Commission (NPRC), and appointed its staff, only midway through the ten year period after the effective date, it cannot be argued, rationally, that section 324 of the Constitution was complied with. This is the provision that requires diligent and timeous performance of Constitutional obligations.

In short, there was a serious breach of a Constitutional obligation by the respondents.

Conclusion

The application of all the canons of construction considered above returns the same result. It is my conclusion, that, the reference to ten years, in section 251(1) of the Constitution, is in relation to the life of the National Peace and Reconciliation Commission (NPRC), after its establishment after the effective date, and not the period within which it must be established.

Unquestionably, it must have been established immediately after, or as soon as practicable, after the effective date in line with section 324 of the Constitution.

In the result, except for the prayer for costs, there is nothing wrong or irregular in the nature, form, or substance of the relief sought by the applicant.

But with costs, it is now established practice to make no award in public interest litigation, which this case by all means is.

Accordingly, the following order is hereby granted:

1. The National Peace and Reconciliation Commission, that is established in terms of section 251 of the Constitution, shall have tenure of life of ten years deemed to have commenced on 5 January 2018 with the gazetting as law of the National Peace and Reconciliation Act [Chapter 10:32].

2. There shall be no order as to costs.

HH586-15 : TEMBA MLISWA vs THE CHAIRPERSON (ZEC) and ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: UCHENA J

The applicant is an independent candidate for the Hurungwe West By-Election scheduled for 10 June 2015. He, by ordinary application, applied for an order suspending the holding of elections in Hurungwe West on 10 June 2015 due to alleged violence and intimidation.

In the alternative, he seeks orders compelling the first (Chairperson, Zimbabwe Electoral Commission), second (Zimbabwe Electoral Commission), fourth (Ignatious Chombo), and sixth to tenth respondents (Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau) to make statements through fliers and radio correcting the impression created by the third to tenth respondents (ZANU-PF, Ignatious Chombo, Keith Guzha, Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau) about how voters in the constituency shall go to the polls and vote on 10 June 2015.

The first respondent is the Chairperson of the Zimbabwe Electoral Commission to whom the applicant complained, by letters dated 12 and 14 May 2015, about the violence and intimidation which was being unleashed in Hurungwe West by the third to tenth respondents (ZANU-PF, Ignatious Chombo, Keith Guzha, Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau).

The second respondent is the Zimbabwe Electoral Commission.

The third respondent is Zimbabwe African National Union (Patriotic Front) ZANU-PF, a political party which fielded the fifth respondent (Keith Guzha) for the Hurungwe West by-election.

The fourth respondent (Ignatious Chombo) is the Secretary for Administration for the third respondent who is being sued in his personal capacity for inciting violence and intimidation in Hurungwe West Constituency.

The fifth respondent (Keith Guzha) is a contestant fielded by the third respondent for election as a Member of Parliament for Hurungwe West in the 10 June by-elections.

The sixth to tenth respondents (Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau) are traditional leaders who the applicant alleges have been tasked with the role of systematically heading their subjects to polling stations and monitoring how they will vote to identify those who will vote for the applicant.

The eleventh respondent is the President of Zimbabwe, cited in his official capacity as the official responsible for proclaiming dates for elections.

As already said, the applicant applied, by ordinary application, for the above mentioned orders.

He, in that application, sought to have the application set down for the fifth of June 2015 even though he only served the application on the sixth to tenth respondents on 6 June 2015. It was served on the first, second, third, and fourth respondents on 2 June 2015. The Registrar set it down for 8 June 2015. Most of the respondents were served with notices of set down on 8 June 2015.

On 8 June, the respondents counsel raised three preliminary issues:

Counsel for the third and fifth respondents raised a preliminary issue on his clients being entitled to the dies induciae permitted in terms of the Rule the applicant used to file his application.

Counsel for the first and second respondents raised a preliminary issue on whether or not this court has jurisdiction to hear the applicant's application.

Counsel for the fourth and sixth to eleventh respondents raised a preliminary issue alleging that the fourth respondent had been incorrectly cited in his personal capacity.

I, after hearing submissions from the parties, postponed the case to 9 June 2015, when I ruled in favour of the third and fifth respondents preliminary issue and dismissed the first, second and fourth respondents preliminary issues.

I indicated that my reasons for judgment would follow, these are they.

Dies Induciae

In his submission, counsel for the third and fifth respondents argued, that, the applicant consciously chose the procedure through which he brought his application to this Court. That procedure determines the time frames within which the respondents are expected to file their responses.

He submitted, that, where an applicant files an ordinary application in terms of Rule 231(3) of the High Court Rules 1971, which the applicant used, a respondent is, in terms of Rule 232, entitled to file his response within not less than 10 days, exclusive of the day of service, plus one day for every additional 200 kilometres or part thereof where the place of service is more than 200 kilometres from the court where the application is to be heard.

He submitted, that, the application has been prematurely set down as the dies induciae has not yet lapsed and the third and fifth respondents are entitled to file their responses within the time permitted by the Rules.

Counsel for the applicant, instead of relying on the procedure in the High Court Rules which the applicant used in filing the application, and invoking corrective measures, sought to expedite the hearing of the application by invoking the provisions of Rule 31 of the Electoral Court's Rules S.I.74A of 1995.

Rule 31 of the Electoral Court Rules SI74A of 1995 provides as follows;

“The Registrar, and all parties, to any stated case, petition, appeal or application referred to in these rules shall take all steps necessary to ensure that the matter is dealt with as quickly as possible.”

He submitted, that, the applicant gave the respondents three days to respond in view of the provisions of Rule 31 of the Electoral Court Rules S.I.74A of 1995.

This submission is not consistent with what the applicant said in his founding affidavit, on p10 para 12, where he said;

“I have given the respondents three days to respond. This is a modification of the rules of the High Court as contemplated in section 164(4).”

Counsel for the third and fifth respondents, in response, submitted, that, Rule 31 of the Electoral Court Rules SI74A of 1995 is not applicable to the present application as it is not one of the applications mentioned in those Rules.

He analysed the applications covered by the 1995 Electoral Court Rules and demonstrated how those rules do not apply to the applicant's application.

He further submitted, that, the applicant cannot unilaterally decide on the dies induciae especially after choosing the ordinary application procedure instead of using the urgent application procedure in terms of which an applicant can, in terms of the proviso to Rule 232 of the High Court Rules, specify a shorter dies induciae if the court “on good cause shown, agrees to such shorter period.”

He further submitted, that, the applicant should have applied by urgent chamber application accompanied by a certificate of urgency in terms of Rule 244 of the High Court Rules.

The need to hear electoral cases urgently is not in dispute. I accept that such cases should be heard as soon as possible, but, an applicant has to follow the correct procedures to achieve that objective.

It does not assist the smooth and efficient administration of justice, for an applicant to apply for remedies on the 11th hour, and for his legal practitioners to choose a wrong procedure, and, thereafter, expect the court to extricate them from their chosen timing and procedure, without their doing what the law of procedure requires them to do to achieve that objective.

Section 165(4) of the Electoral Act provides for the use of High Court Rules as follows;

“(4) Until rules of court for the Electoral Court are made in terms of this section, the rules of the High Court shall apply, with such modifications as appear to the Electoral Court to be necessary, with respect to election petitions and other matters over which the Electoral Court has jurisdiction.”

Section 165(4) of the Electoral Act makes it clear that modifications of the High Court rules must “appear to the Electoral Court” to “be necessary.” This means, an applicant cannot unilaterally decide that issue, but has to first convince the court of the necessity of the modification.

The applicant did not do so.

He, while using the procedure which gives the respondents the longest dies induciae, unilaterally modified the Rule to reduce that period.

In my view, the applicant should have simply applied by urgent application, which, in terms of Rule 244, allows a judge to call parties to make submissions on the issue of urgency.

Rule 244 of the High Court Rules reads;

“244. Where a chamber application is accompanied by a certificate from a legal practitioner in terms of paragraph (b) of subrule (2) of Rule 242 to the effect that the matter is urgent, giving reasons for its urgency, the registrar shall immediately submit it to a judge, who shall consider the papers forthwith.

Provided, that, before granting or refusing the order sought, the judge may direct that any interested person be invited to make representations, in such manner and within such time as the judge may direct, as to whether the application should be treated as urgent.”…,.

Rule 244 of the High Court Rules makes it clear that urgency has to be determined by a judge after hearing the parties submissions on it.

In this case, it was not possible to determine that issue within an ordinary application in terms of Rule 232, to which Rule 244 does not apply.

It is for these reasons why the third and fifth respondents insistence on the dies induciae provided for in Rule 232 cannot be interfered with, unless the applicant invokes remedial remedies to enable the hearing of its application without having to wait for the expiry of the dies induciae he trapped himself into.

The applicant's application must, therefore, be removed from the roll.

SC21-18 : EASTER MZITE (as Executrix Dative Estate Late Chemayi Joseph Mtize) vs DAMAFALLS INVESTMENTS (PVT) LTD and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA

Rule 30 of the Supreme Court Rules 1964 requires, that, where leave to appeal is not necessary the aggrieved party must appeal to this court within 15 days of the date of judgment.

HH670-15 : THE SHERIFF OF THE HIGH COURT vs NOMVUYO MADZIRO and ANESUISHE MADZIRO and RUVARASHE MADZIRO and CBZ BANK LIMITED
Ruled By: MATANDA-MOYO J

When a court order provides a time limit within which to do something, I am of the view, that, such time limits ought to be followed. Failure to comply with such time limits lead to lapsing of the rights conferred therein.The law helps those who are awake and not the ...

CC14-20 : HILTON CHIRONGA and RASHID MAHIYA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HOME AFFAIRS and MINISTER OF DEFENCE and GOVERNMENT OF ZIMBABWE
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATHSWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

One of the crucial elements of the new constitutional dispension 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 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. Left unchecked, those clothed with State authority, or public power, may quite often find the temptation to abuse such powers irresistible, as Lord Acton famously remarked:

“Power tends to corrupt, and absolute power corrupts absolutely!”

John Emerich Dalberg-Acton, 1st Baron Acton, coined the proverbial saying in 1857 using similar ideas expressed by several of his contemporaries. The fuller expression reads:

“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you super-add the tendency of the certainty of corruption by authority.”

Mechanisms to oversee how public power and State authority is exercised by those so entrusted must be tightened and strengthened. More importantly, if such mechanisms are by command of the supreme law of the land, the Constitution, they must be put in place within a reasonable time to actualise the Constitution as a living document.

To this end, the State, its organs, and functionaries cannot, without consequence, be allowed to adopt a lackadaisical attitude, at the expense of the public interest, in bringing into operation institutions and mechanisms commanded by the supreme law: see the case of Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC)…,.

However, this case also illustrates the need, on the part of the litigants, to move away from old fashioned Private Law habits when it comes to Constitutional Law litigation. While constitutional litigation may entail the vindication of a private right, it differs from Private Law litigation in that over and above that it seeks to entrench legality and the deepening of the constitutional order for the benefit of the broader public.

This is why it has been said that:

“Where a matter concerns the constitutionality of a law…, the need for certainty may require the court to decide the matter irrespective of whether or not the party advancing the challenge had standing:” MAX du PLESSIS et al 'Constitutional Litigation' Juta, 2013 quoting the South African cases of Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC)…, and South African Liquor Traders Association v Chairperson, Gauteng Liquor Board 2006 (8) BCLR 901 (CC)…,.

This application seeks to enforce the enactment of the law envisioned in section 210 of the Constitution to provide for “an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.”

It also seeks a declarator that the respondents have breached the Constitution by failing to enact such a law timeously after the coming into operation of the new Constitution and a mandamus for the respondents to gazette the Bill envisioned in section 210 of the Constitution thereof within forty-five days.

At the time of hearing of the application, a period of two years and four, five months had lapsed from the time of coming into operation of the rest of the Constitution, on 22 August 2013, when the President-elect, under the Constitution, assumed office. That delay, of less than two and a half years, might not have been sufficient to satisfy a finding of violation of the Constitution and the application might have failed on that score, with a period of, say, three being deemed to be the sufficient one.

However, post-hearing, intimations or overtures that the matter might be settled by consent of the parties were made necessitating the holding of three Court-presided meetings of the parties over time on the basis that both sides were agreed that the envisaged legislation had to be enacted; and, indeed, both sides agreed that the application was essentially not opposed, but differed slightly on the appropriate timelines for the enactment of the law.

Herein lies the nub of this matter.

Had the constitutional legality principle been put above all else, the application could have been granted immediately with immense public benefit. However, the Private Law litigation habit of “winner takes all” of wanting the other side to be declared a violator of the Constitution stood in the way as did the attitude on the other side of not wanting to make any move unless so ordered.

Had the Court appreciated, then, how deeply entrenched these arcane positions were, relics of Private Law litigation habits, a different approach could have been adopted of immediately issuing the order, with reasons to follow.

It is regretted that this approach was not followed.

FACTUAL BACKGROUND

The applicants are citizens of Zimbabwe who have taken it upon themselves to see to it that the respondents adhere to the constitutionally-created obligations imposed on them by section 210 of the Constitution.

The applicants submit, that, the respondents have done nothing to fulfil their constitutional obligations clearly outlined in the supreme law.

Section 210 of the Constitution requires the enactment of a law to provide for an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.

The applicants aver, that, it has been over two years since the inception of the Constitution and the Act required, in terms of section 210 of the Constitution, has not been put in place.

It is further the applicant's contention, that, the failure by the respondents to enact the law, in terms of section 210 of the Constitution, is a breach of the Constitution. The right to equal protection of the law, under section 56(1) of the Constitution, is under threat, according to the applicants, due to failure or delay in enacting the law directed by section 210 of the Constitution.

The application is opposed.

The respondents submit, that, the law-making process cannot be carried out overnight. The respondents further submitted, that, they are working on making sure that the Act is in place and filed of record a working document they are allegedly focused on as a roadmap towards the eventual enactment of the law in question.

The timeline within which the Act envisaged by section 210 of the Constitution should be enacted sits at the heart of this application.

The applicants, in their final submission to this Court, are seeking the following relief:

1. The respondents failure, to enact the law provided for in terms of section 210 of the Constitution of Zimbabwe, is in breach of the Constitution of Zimbabwe.

2. The failure by the respondents, to enact the law to bring into effect section 210 of the Constitution of Zimbabwe, is a violation of the applicant's right to equal protection and benefit of the law as defined by section 56(1) of the Constitution.

3. The respondents must gazette the Bill envisaged by section 210 of the Constitution of Zimbabwe within 45 days from the date of this order.

4. The respondents, jointly and severally, each paying the other to be absolved pay costs of suit.

ISSUES

The first question this Court is seized with is whether or not the applicants have locus standi to bring this matter before this Court. This question shall be disposed of first before delving into questions arising from the merits of the application.

On the merits of the application, three questions arise and they are the following:

(1) Whether or not the respondent's delay in enacting the law, provided for in terms of section 210 of the Constitution of Zimbabwe, constitutes an unreasonable delay in fulfilling constitutional obligations in terms the Constitution of Zimbabwe.

(2) Whether or not the requirements for a mandamus have been satisfied to order the respondents to gazette the Bill envisaged by section 210 of the Constitution of Zimbabwe within forty five days from the date of this order.

The aforementioned questions, on merit, will be disposed of separately hereunder after addressing preliminary and standing issues....,.

RESPONDENTS NOTICE OF OPPOSITION

There is no real objection by the respondents to the applicants claim.

The respondents objection, in varying language, is to the effect, that, there has not been a violation of the applicants rights by the respondents. The respondents argument is that the gazetting of the Bill envisaged by section 210 of the Constitution takes time and that due diligence requires the process not to be rushed.

Therefore, the respondents, in substance, are not opposed to the gazetting of the Bill.

If anything, they affirm the need to honour constitutionally created obligations such as section 210 of the Constitution.

On the other hand, the applicants insist on the need for prompt adherence to constitutionally-created obligations by the respondents in line with the Constitution. This means the enactment and promulgation, by the respondents, of the Act envisioned by section 210 of the Constitution within a reasonable time....,.

WHETHER THE DELAY IN ENACTING THE LAW IS UNREASONABLE

Section 210 of the Constitution, quoted verbatim, reads as follows:

“210 Independent Complaints Mechanisms

An Act of Parliament must provide an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.”

The section is in clear and unambiguous language, couched in peremptory language.

The provision of an effective and independent mechanism for receiving and investigating complaints from members of the of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct, must be empowered by an Act of Parliament.

Section 210 of the Constitution does not specify the timeframe within which the Act must be enacted and promulgated. Section 324 of the Constitution, however, requires that all constitutional obligations must be performed diligently and without delay.

The South African Constitution contains a similar provision which was subject to interpretation in the case of Minister of Justice and Constitutional Development v Chonco and Others 2010 (4) SA 82 (CC). The South African Constitutional Court, in interpreting the equivalent to section 324 of the Zimbabwe Constitution, had this to say:

“…,. good governance and social trust are premised, at least partly, on reasonable responsive decision making.”…,.

Reasonable and responsive decision making is therefore what is contemplated in section 324 of the Constitution. The question arising is whether a reasonable time frame has been exceeded since the inception of the Constitution.

Section 210 of the Constitution came into effect on the day the President elected, under the Constitution in the first elections, assumed office: see paragraph 32 of the Sixth Schedule of the Constitution.

The President of the Republic of Zimbabwe assumed office on 22 August 2013. If one is to calculate the time, from 22 August to date of filing of this application, on 15 October 2015, a period of twenty seven months two weeks had elapsed, or slightly over two years; and, if the time taken into reckoning is the hearing date, then, as already noted, the period would be less than two years and a half – hardly sufficient to support a finding of undue delay.

However, one must be alive to the fact, that, up to date, more than seven years later, the Act in question has not been enacted.

The Constitution is clear on the point, that, all constitutional obligations must be performed diligently and without delay. In answering the question whether or not the respondents have failed in discharging their constitutional obligation without delay, regard must be had to the process of the origination of Bills.

Public Bills generally go through preliminary stages before they are brought to Parliament. The responsible Minister first presents proposals to cabinet. Once cabinet is satisfied that the proposals are in line with Government policy, the responsible Minister is directed to prepare a draft Bill along agreed lines. The Legal Drafting Department in the Attorney General's office prepares a draft Bill for consideration by the Cabinet Committee on Legislation. Once the Bill has been approved by Cabinet it is then published in the Government Gazette, about fourteen days before its introduction in Parliament.

The process described above relates only to Bills introduced by members of the Executive.

Private members Bills have to be brought in by motion. If that motion is approved by the House, the Bill is then printed and introduced in Parliament.

One should also note that a Bill can also be introduced in Parliament by a Minister responsible for a particular Ministry.

The first respondent is one such Minister who may introduce a Bill in Parliament.

The Bill envisaged in section 210 of the Constitution has not yet been introduced in Parliament, let alone gazetted. What has been filed of record is what the respondents term a “working document” which ex facie are notes on the alignment of laws to the Constitution focusing on section 210 of the Constitution.

Although the process of how proposals become Bills is largely shrouded in secrecy, L. MADHUKU 'Introduction to Zimbabwean Law' enumerates stages of a Bill before it is gazetted and introduced in Parliament. The stages are stated hereunder:

“1. Cabinet makes a policy decision that a certain law is to be made.

2. The decision is communicated to the relevant government department by the relevant Minister. It must, in turn, prepare a set of detailed principles to govern the legislation.

3. These principles are sent to the Cabinet Committee on Legislation (CCL). This is a sub-committee of cabinet tasked with supervising legislative drafting. Its function is to debate and approve the principles in the light of policy spelt out by the full cabinet.

4. From the Cabinet Committee on Legislation (CCL), the principles are sent to the Attorney General's Office, where a drafts-person is appointed and assigned the role of drafting the piece of legislation. He or she must work in constant consultation with the relevant Government department.

5. When the department is satisfied with the draft, it sends a draft Bill, together with an accompanying memorandum, to the Cabinet Committee on Legislation (CCL), which must scrutinize it in light of the principles and the policy articulated by the full cabinet.

6. After approval by the Cabinet Committee on Legislation (CCL), the Bill may either be sent to the full cabinet, in case of important or controversial Bill, or to Parliament, if the CCL has been mandated to follow that route.”

Subsequently to the above noted stages, the Bill is then introduced to Parliament by the relevant minister after it is gazetted.

Paragraph 3(c) of the Fifth Schedule to the Constitution mentions who may introduce a Bill to Parliament. The section provides that:

“Any Vice-President, Minister or Deputy Minister may introduce into motion for debate in or present any petition to either the Senate or the National Assembly.”

After the introduction of the Bill to Parliament, the Constitution and Standing Rules and Orders of Parliament provides the procedure to be followed until a Bill is assented to by the President to become law. Paragraph 5 of the Fifth Schedule of the Constitution sets out how the transmission of Bills between Houses happens after their introduction to Parliament.

What is pertinent to note is that the process, starting from when a Bill is introduced in Parliament, is beyond the control of the respondents. The respondents do not have powers to control what happens in Parliament.

It is the lack of diligence during the pre-Bill stage that the applicants take issue with.

Although the Constitution is silent on the exact timelines within which the Act envisaged in section 210 of the Constitution should be enacted, the same Constitution requires all constitutional obligations to be performed diligently and without delay.

A period of over seven years has passed since the coming into force of the Constitution.

That period of time, in my view, exceeds reasonable time within which the respondents should have discharged their constitutional obligation. Good governance and social trust are premised, at least, partly, on reasonable, responsive, and forthright decision making.

The crafting of section 210 of the Constitution is peremptory.

The Constitution is the conscience of the nation and the courts are its guardians or custodians: see case of South African Revenue Authority v Commissioner for Conciliation, Mediation and Arbitration and Others [2016] ZACC 38.

On this Court's shoulder rests the very important responsibility of holding our constitutional democracy together and giving hope to all our people that their constitutional aspirations will be realised and protected.

Whilst the court remains alive to the fact that coming up with Bills or legislation does not happen overnight, one can take judicial notice of the shortest timelines within which a Bill can take from its formulation to it becoming an Act. The Labour Amendment Act of 2015, for example, took less than thirty days from its formulation to its promulgation.

The respondents failure, to present a Bill before Parliament for a period in excess of seven years therefore constitutes an unreasonable delay.

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

IntroductionThis judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.Both ...

Introduction

This judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.

Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.

Both applications are opposed by some of the respondents.

Opposing papers, answering affidavits, and heads of argument were filed following a case management meeting with the parties representatives at which the dates for filing the papers were set by consent.

In case no. HC2128/21 the applicant, a legal practitioner and director of the Zimbabwe Human Rights NGO Forum, cited the Minister of Justice, Legal and Parliamentary Affairs, and all the judges of the Constitutional Court and Supreme Court as well as some of the judges of the High Court, on the basis that they are acting judges of the Supreme Court or have been called upon to act as such.

The judges were cited in official capacities.

The Judicial Service Commission (JSC) was joined in the proceedings, at its instance, at the case management conference.

In HC2166/21 the respondents cited are the Judicial Service Commission (JSC), the Chief Justice of Zimbabwe, Honourable Luke Malaba N.O. and the Attorney General N.O. The applicants in that case are Young Lawyers Association of Zimbabwe and Frederick Charles Moses Mutanda, a liberation war veteran.

Background

On 7 May 2021, the Constitution of Zimbabwe Amendment (No.2) Act 2021 became law after being assented to by the President. The contentious aspects of the Amendment Act which are the subject of the instant applications are found in its section 13.

That section repealed section 186 of the Constitution 2013 and substituted it with a new section 186.

Upon gathering that section 186 of the Constitution, introduced by the Amendment, would apply to the second to eighteenth respondents (Luke Malaba, Elizabeth Gwaunza, Paddington Garwe, Rita Makarau, Anne-Mary Gowora, Ben Hlatshwayo, Bharat Patel, Antonia Guvava, Susan Mavangira, Chinembiri Energy Bhunu, Tendai Uchena, Nicholas Mathonsi, Charles Hungwe, Felistus Chatukuta, Alfas Chitakunye, Samuel Kudya and Lavender Makoni) the applicants instituted the two applications. The applicant in Case No. HC2128/21 seeks the following relief:

“IT IS DECLARED THAT:

1. In accordance with provisions of sections 186(1)(a) and 186(2) (of the Constitution of Zimbabwe 2013) in their original form and notwithstanding provisions of Constitutional Amendment Number 2, second to eighteenth respondents hold office they reach the age of seventy years, whereupon they must, by operation of law, retire.

2.The attempt to subvert the position encapsulated in the "original" section 186(1)(a) and 186(2) of the Constitution of Zimbabwe 2013 is contrary to law and therefore in breach of applicant's right to the protection of the law as set out in section 56(1) of the Constitution of Zimbabwe 2013.

IT IS CONSEQUENTLY ORDERED THAT:

3. LUKE MALABA, must or did, at midnight on 15 May 2021, cease to hold the office of CHIEF JUSTICE OF ZIMBABWE.

4. Any action, conduct, or deed of LUKE MALABA post the 15th of May 2021, purportedly as CHIEF JUSTICE OF ZIMBABWE, is null and void and of no effect.

5. ln accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, ELIZABETH GWAUNZA became/becomes the ACTING CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive CHIEF JUSTICE OF ZIMBABWE is appointed.

6. In accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, PADDINGTON GARWE became/becomes the ACTING DEPUTY CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive DEPUTY CHIEF JUSTICE OF ZIMBABWE is appointed.

7.There shall be no order as to costs."

During argument, counsel for the applicant abandoned the relief sought in paragraph 6 of the draft order and moved that the draft be amended accordingly.

We point out, that, notwithstanding the statement suggesting that what is being sought in paragraphs 3-7 of the draft order is consequential relief, the relief is clearly in the form of a declaration.

The second to eighteenth respondents did not file opposing papers.

They will therefore be taken not to have opposed the application: see Prosser & 35 Others v Ziscosteel Company Ltd HH201-93 and Panganai and 20 Others v Kadir & Sons (Pvt) Ltd HH26-95.

We do not accept the submission by their counsel that they oppose the application without filing opposing papers. This is because the directions issued on 12 May 2021 required the respondents to file opposing papers if they were opposing the application. Their grounds of opposition would have to be contained in the opposing affidavits.

ln Case No. HC2166/21 the applicant sought declaratory relief as follows:

“IT IS DECLARED THAT:

1. The first respondent (Judicial Service Commission) in failing to activate the provisions of section 180 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 and/or the provisions of section 180 of the Constitution of Zimbabwe as amended by Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) diligently and without delay violated section 324 of the Constitution of Zimbabwe as amended.

2. The second respondent (Chief Justice Luke Malaba) cannot, by virtue of section 328(7) of the Constitution of Zimbabwe, as amended, benefit from the term limit extension as introduced by an amendment of section 186 by the Constitution of Zimbabwe Amendment (No.2) Act 2021.

3. As a consequence of 2 above, the second respondent shall vacate office as the Chief Justice of Zimbabwe on (sic) midnight of 15 May 2021.

4. Any action, conduct, act, or deed of second respondent post the 15th of May 2021, purportedly as Chief Justice of Zimbabwe, is null and void and of no force or effect.

5. Any attempt to continue in office by second Respondent as Chief Justice of Zimbabwe and/or any continuation in office by second respondent, purportedly as Chief Justice of Zimbabwe, violates applicants right of access to a court of law established by law and applicants right to protection of the law in accordance with section 69(4) and section 56(1) of the Constitution 2013 as amended.

6. The second respondent, in any event, can no longer be a judge of the Constitutional Court for more than 15 years in violation of section 186(1) of the Constitution 2013 as amended.

7. ln the alternative, section 14 of the Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) is invalid for violating section 56(3) of the Constitution 2013 and is accordingly struck down.

8. There shall be no order as to costs."

The relief set out in the first paragraph was not persisted with as it was predicated upon a misreading of the Constitutional provisions pertaining to the appointment of a Chief Justice in Zimbabwe.

The applicants were under the mistaken belief that the first respondent, the Judicial Service Commission (JSC) had the mandate to call for candidates to participate in an interview.

Section 180 of the Constitution provides that the Chief Justice is appointed by the President after consultation with the Judicial Service Commission (JSC).

The relief sought in paragraphs 2, 3, 4 and 5 is the same one being sought by the applicant in HC2128/21 save for the reference to section 69(4) of the Constitution.

The relief sought in paragraph 6 of the draft order was abandoned during argument. Also, the applicant did not make any submissions in support of the alternative relief being sought in paragraph 7 of the draft order.

We take it that this relief, seeking the declaration of invalidity in respect of section 13 (which was incorrectly referred to as section 14) of the Constitution of Zimbabwe Amendment (No.2) Act 2021, is not being persisted with....,.

The Dispute on the Merits

This dispute stands to be resolved on the effect of section 186 of the Constitution of Zimbabwe as introduced by the Constitution of Zimbabwe Amendment (No.2) Act 2021 in light of the provisions of section 328 of the Constitution 2013.

The new section 186 of the Constitution provides -

“186 Tenure of Office of Judges

(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 70 years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional 5 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 15 years, but —

(a) They must retire earlier if they reach the age of 70 years, unless, before they attain that age, they elect to continue in office for an additional 5 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 the mental and physical fitness of the judge 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 70 years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional 5 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 the mental and physical fitness of the judge 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, Deputy Chief Justice, judges of the Constitutional Court and judges of the Supreme Court.

(5) Judges of the High Court, and any other judges, hold office from the date of their assumption of office until they reach the age of 70 years, when they must retire.

(6) A person may be appointed as a judge of the Supreme Court, the High Court, or any other court, for a fixed term, but, if a person is so appointed, other than in an acting capacity, he or she ceases to be a judge on reaching the age of 75 years (in the case of a judge of the Supreme Court) or 70 years (in the case of a judge of the High Court or any other court) even if the term of his or her appointment has not expired.

(7) Even though a judge has resigned or reached the age of retirement, or, in the case of a judge of the Constitutional Court, 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 proceedings commenced before him or her while he or she was a judge.

(8) A judge may resign from his or her office at any time by written notice to the President given through the Judicial Service Commission.

(9) The office of a judge must not be abolished during his or her tenure of office.”

Its effect is to extend the retirement age of the Chief Justice, Deputy Chief Justice, and judges of the Constitutional and Supreme Court as will be dealt with in due course.

Section 328 of the Constitution 2013 reads as follows:

“(1) In this section —

'Constitutional Bill' means a Bill that seeks to amend this Constitution;

'Term-limit provision' means a provision of this Constitution which limits the length of time that a person may hold or occupy a public office.

(2) An Act of Parliament that amends this Constitution must do so in express terms.

(3) A Constitutional Bill may not be presented in the Senate or the National Assembly in terms of section 131 unless the Speaker has given at least 90 days notice in the Gazette of the precise terms of the Bill.

(4) Immediately after the Speaker has given notice of a Constitutional Bill, in terms of subsection (3), Parliament must invite members of the public to express their views on the proposed Bill in public meetings, and through written submissions, and must convene meetings and provide facilities to enable the public to do so.

(5) A Constitutional Bill must be passed, at its last reading in the National Assembly and the Senate, by the affirmative votes of two thirds of the membership of each House.

(6) Where a Constitutional Bill seeks to amend any provision of Chapter 4 or Chapter 16 —

(a) Within 3 months after it has been passed by the National Assembly and the Senate in accordance with subsection (5), it must be submitted to a national referendum; and

(b) If it is approved by a majority of the voters voting at the referendum, the Speaker of the National Assembly must cause it to be submitted without delay to the President, who must assent to and sign it forthwith.

(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.

(8) Subsections (6) and (7) must not both be amended in the same Constitutional Bill nor may amendments to both those subsections be put to the people in the same referendum.

(9) This section may be amended only by following the procedures set out in subsections (3), (4), (5) and (6) as if this section were contained in Chapter 4.

(10) When a Constitutional Bill is presented to the President for assent and signature, it must be accompanied by —

(a) A certificate from the Speaker, that, at its final vote in the National Assembly, the Bill received the affirmative votes of at least two-thirds of the membership of the Assembly; and

(b) A certificate from the President of the Senate, that, at its final vote in the Senate, the Bill received the affirmative votes of at least two thirds of the membership of the Senate.”

We draw particular attention to the provisions of section 328(7) of the Constitution because this matter revolves around its relationship with section 186 of the Constitution, and the effect of that relationship on the tenure of office of the Honourable Justice Luke Malaba and the other judges who are cited as respondents in Case No. HC2128/21.

The Applicants and Respondents Contentions

The applicants case is summarized in paragraphs 61-65 of the founding affidavit in HC2128/21 and paragraphs 17-21 of the founding affidavit in HC2166/21.

It is that the second respondent and the other persons cited who occupy the offices of judges of the Constitutional Court and Supreme Court cannot remain in office beyond the age of 70 years notwithstanding the provisions of section 186 of the Constitution as substituted by the Constitution of Zimbabwe Amendment (No.2) Act 2021.

The essence of the respondents case is that section 186 of the Constitution did not affect the term-limit or tenure of the judges of the Constitutional and Supreme Courts, and is therefore not affected by the provisions of section 328(7) of the Constitution.

ln other words, what has to be decided in casu is whether the 2nd to 18th respondents retire upon reaching the age of 70 years or are entitled to elect to continue in office for an additional five years until they reach the age of 75 years.

This issue can only be resolved by interpretation of sections 186 and 328(7) of the Constitution.

It is important to give an overview of the principles of interpretation which apply to constitutional provisions in general insofar as these have a bearing on how these two sections should be understood.

The Approach to Constitutional Interpretation

According to IAIN CURRIE & JOHAN de WAAL 'The Bill of Rights Handbook' 6th ed…., "Constitutional interpretation is the process of determining the meaning of a constitutional provision."

Thus, interpreting a Constitution entails giving "meaning" which we understand in its wide sense, to the provisions of a Constitution. An interpretation that does not give effect to the purpose of the provision does not give meaning to it; see Judicial Service Commission v Zibani & Others SC68-17; 2017 (2) ZLR 114.

The textual provisions of the Constitution under consideration are the starting point, but, they should not be considered and interpreted piecemeal or in isolation.

We therefore do not agree with the submission by counsel for the first respondent, that, the cases of Natal Joint Municipal Pension Fund v Enduhreni Municipality 2012 (4) SA 593 and Zambezi Gas (Pvt) Ltd v NR Barber (Pvt) Ltd & Anor SC03-20 introduce a new and different paradigm to the interpretation of Constitutional provisions.

The textual provisions must be construed contextually having regard to the Constitution as a whole; see Matatiele Municipality v President of the Republic of South Africa 2007 (6) SA 477.

The preferred approach is the 'generous' and 'purposive' interpretation that gives expression to the underlying values of the Constitution, as was held in S v Makwanyane 1995 (3) SA 391.

Section 46(1) of the Constitution 2013 provides as follows:

“(1) When interpreting this Chapter (read 'Constitution'), a court, tribunal, forum, or body —

(a) Must give full effect to the rights and freedoms enshrined in this Chapter;

(b) Must promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom, and, in particular, the values and principles set out in section three;

(c) Must take into account international law and all treaties and conventions to which Zimbabwe is a party;

(d) Must pay due regard to all the provisions of this Constitution, in particular, the principles and objectives set out in Chapter 2; and

(e) May consider relevant foreign law;”

The starting point is to appreciate, that, in Zimbabwe, the Constitution is the supreme law. This fundamental tenet of democracy is enshrined as a rule and as one of the values and principles upon which the nation of Zimbabwe is founded.

Section 2 of the Constitution 2013 provides as follows:

“2. Supremacy of Constitution

(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.”

Section 3 of the Constitution 2013 states the following, among other things:

“3. Founding Values and Principles

(1) Zimbabwe is founded on respect for the following values and principles —

(a) Supremacy of the Constitution;

(b) The rule of law;

(c) Fundamental human rights and freedoms;

(d)…,.;

(e)…,.;

(f)….,.;

(g)…,.;

(h) Good governance;

(i)…,.;

(2) The principles of good governance, which bind the State and all institutions and agencies of government at every level, include -

(a)…,.;

(b)…,.;

(c)…,.;

(d)…,.;

(e) Observance of the principle of separation of powers;

(f) Respect for the people of Zimbabwe, from whom the authority to govern is derived;

(g) Transparency, justice, accountability and responsiveness;

(h)…,.;”

See also section 331 of the Constitution 2013, which provides as follows:

“Section 46 applies, with any necessary changes, to the interpretation of this Constitution apart from Chapter 4.”

The essence of the constitutional supremacy doctrine, as distinct from parliamentary sovereignty, is that the Constitution is the litmus test, the ultimate measure, by which the validity of any law, practice, custom or conduct is assessed.

This aspect distinguishes constitutional supremacy from parliamentary supremacy or parliamentary sovereignty. Where the latter system obtains, Parliament is supreme, and, any law that it passes cannot have its content questioned for validity.

Zimbabwe is a constitutional democracy in which the Constitution is supreme, and not a parliamentary democracy in which Parliament is supreme; see Judicial Service Commission v Zibani & Others SC68-17; 2017 (2) ZLR 114.

The principle of separation of powers, which is explicitly provided for in section 3 of the Constitution, and guaranteed by the architecture of our Constitution, has in it, that, among the three arms of the State, the judiciary has the primary duty to interpret the law; see In Re: Prosecutor-General of Zimbabwe on his Constitutional lndependence and Protection from Direction and Control CC13- 17; 17 (1) ZLR 107.

Therefore, the exercise of determining what section 186 of the Constitution means in light of the provisions of section 328(7) of the Constitution falls squarely within the mandate of the courts.

The principles which are encapsulated in the principle of good governance demand a new and different way of doing things from what may have been done in the past, hence the special mention of transparency, justice, accountability and responsiveness.

This is the context in which the entrenchment of section 328(7) of the Constitution must be understood.

The provision's purpose is, among the other important considerations, to ensure, that, a person who holds or occupies public office does so for a limited time, to prevent turning persons into institutions thereby compromising on the precepts enjoined in section 3 of the Constitution.

It is also to ensure that a person who occupies or holds public office does not influence changes in the law in order to entrench his or her occupation of the public office by extending the length of time that he or she remains in that office.

With particular reference to judicial officers, entrenchment of provisions relating to terms of office for incumbents ensures confidence in the judiciary by dispelling any suspicion that favours are being extended to them, contrary to the provisions of the Constitution, that would undermine the independence of the judiciary.

As was held in the case of Justice Alliance of South Africa v President of the Republic of South Africa & Others: Freedom Under Law v President of the Republic of South Africa and Others; Centre for Applied Legal Studies and Another v President of the Republic of South Africa and Others 2011 (5) SA 388:

"ln approaching this question, it must be borne in mind, that, the extension of a term of office, particularly one conferred by the Executive or Parliament, may be seen as a benefit. The judge or judges upon whom the benefit is conferred may be seen as favoured by it….,. The power of extension, in section 176(1), must, therefore, on general principle, be construed so far as is possible to minimize 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."

Public confidence in the independence of the judiciary would be severely undermined if there was a belief, or even suspicion, that the judiciary, or members thereof, are, like nocturnal spooks acting under cover of darkness, knocking on the doors of the Executive and Legislative arms of Government begging or lobbying for extension of their terms of office.

This is the reason why there is need for certainty regarding the tenure of office of judicial officers in order to dispel any thinking that if they behave in a certain way they might get the benefit of favourable constitutional amendments.

In order to guard against subtraction from the founding values and principles, including the independence of the judiciary, the court must embrace substantive reasoning, an interpretive model which gives substance to those values and principles, and eschew legal sophistry which would result in narrowing down the meaning of these values.

Further, the entrenchment ensures, that, if there is any change in the Constitution, the effect of which is to extend the length of time that a person may hold or occupy public office, such a change in the in law must be subjected to the rigorous processes in section 328 of the Constitution - which include a referendum.

We point out, that, section 328 of the Constitution does not stop the legislature from amending the Constitution by extending term limits in general.

If the changes in the Constitution do not have the effect of extending the length of time that the incumbent may hold office, they do not have to go through the rigorous processes required by section 328 of the Constitution. However, if the effect of such amendments is to extend the length of time that a person holds or occupies public office, then, they must be subjected to those entrenched processes.

Section 328 of the Constitution has not been repealed by the Constitutional Amendment. It must therefore be given effect.

Interpretation of Section 186 and 328(7) of the Constitution

It is an established principle that sections of the Constitution must not be read in isolation but must be read together, and in the context of the whole text, in order to give effect to the purpose and objective of the Constitution: see Tsvangirai M v Mugabe R, Z.E.C. & 2 ORS CC20-17; (2) ZLR 1 (CC) per MALABA DCJ…,.

In this case, the two sections are not in conflict, but, must be read together and with the Constitution as a whole.

Section 328 of the Constitution, which deals with amendment of the Constitution, entrenches certain provisions. This entrenchment is by requiring, in addition to the usual procedure for passing an amendment to the Constitution, that, such amendments be submitted to a referendum and get approval from a majority of the voters voting at the referendum.

One such provision which is entrenched is section 328(7) of the Constitution, which, as recited above, 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 Constitution of Zimbabwe Amendment (No.2) Act 2021 amends section 186 of the Constitution through its section 13.

Section 332 of the Constitution 2013 defines the term 'amend' to include "vary, alter, modify, add to, delete or adapt."

In this instance, the existing section 186 of the Constitution was repealed and substituted with a new section 186.

This is an amendment.

In order to determine whether or not the amendment is one that falls within the ambit of section 328(7) of the Constitution, two requirements must be satisfied, namely –

(a) It must be an amendment to a term-limit; and

(b) It must have the effect of extending the length of time that a person may hold or occupy a public office.

'Effect' simply means result, consequence, or impact - irrespective of the expressed purpose of the amendment.

Once it satisfies these two requirements, then, such an amendment is excluded from applying to "any person who held or occupied that office, or an equivalent office, at any time before the amendment."

The reference to an 'equivalent office' is no doubt meant to deal with a situation where an amendment might seek to rename or reconfigure what is essentially the same office in order to escape the consequences of section 328(7) of the Constitution, thereby extending a person's stay in office.

There can be no question that judges occupy public office.

There was debate as to whether section 186 of the Constitution is a term limit provision which has the effect of extending the length of time that the second respondent, and the other judges of the Constitutional Court and Supreme Court, may hold or occupy office.

The respondents contended that it was not a term-limit provision.

The submission was that the only term limit which is contained in section 186 of the Constitution is one that is contained in subsection (2), which states that:

"Judges of the Constitutional Court are appointed for a non-renewable term of no more than fifteen years."

Their argument was that the retirement age stipulated does not limit the term of office of the judges. This argument means that judges of the Supreme Court and High Court have no term limit.

That argument is not sustainable.

Section 328(1) of the Constitution 2013 defines 'term-limit provision' to mean "a provision of this Constitution which limits the length of time that a person may hold or occupy a public office."

We therefore come to the conclusion, that, section 186 of the Constitution is a term limit provision and that it has the effect of extending the length of time that a person may hold the office of judge of the Constitutional Court and Supreme Court.

It increases the retirement age of the judges of these courts from the original 70 to 75 years.

The fact that this extension of the tenure of office is subject to election by the concerned judge, and acceptance by the President, after consultation with the Judicial Service Commission, and production of a medical report, does not change its nature as an extension of a term limit.

In respect of the judge of the Constitutional Court, the term limit is based on two dimensions, namely;

(i) The period of 15 years which is provided in section 186 of the Constitution; and

(ii) The age of the affected judge.

It is clear that whichever of these two (2) occurs first terminates the tenure of the judge. This is what is generally referred to as a hybrid tenure arrangement.

There are thus three types of valid tenure arrangements in use, generally, the world over:

(i) Life limits (when one dies);

(ii) Age limits (when one reaches a specified retirement age); and

(iii) Fixed term Iimits (when a specified period of service is reached).

These three tenure arrangements are contained in section 186 of the Constitution of Zimbabwe. Tenure has to do with term of office; term of office has to do with time. Both fixed term (fixed time), and age-based term (age-based time), have to do with time. Time is the underlying factor in both of them.

Therefore, the inescapable conclusion is that varying retirement age is varying term limits.

ln respect of Supreme Court judges, the tenure of office is defined by age only. Thus, for instance, a Constitutional Court judge who is aged 70 years at the time of his or her appointment has his or her term limited to only five years. That term limit is defined by his or her age. He or she must retire upon turning seventy-five years after serving for only five years. On the other hand, a judge of the same court who is fifty years old at the time of his or her appointment has his or her term defined by the period of fifteen years. The judge retires from the Constitutional Court at the age of sixty-five years.

On the other hand, a judge of the Supreme Court, under the new amendment, retires at the age of seventy-five years irrespective of how many years he has served on that Bench.

That section 186 of the Constitution is a term limit provision, and that it is concerned with extending the length of time that judges of the Constitutional Court and the Supreme Court hold or occupy public office, is also evident from the provisions of section 186(4) of the Constitution. This provision explicitly refers to section 328(7) of the Constitution. This reference to section 328(7) would be rendered superfluous or nugatory if, as suggested by the respondents, it is found that section 186 is not a term-limit provision.

The respondents have not suggested why the legislature would engage in a superfluous exercise, especially in light of the presumption against superfluity in the interpretation of statutes.

Also, in the affidavits filed in this court, the respondents referred to its effect as extending the term of office.

See paragraphs 25.4(b) and (c) of the 19th respondent's opposing affidavit in HC2128/21.

The submission made on behalf of the respondents reads the reference to the fifteen years in isolation from the rest of subsection (2) of section 186 of the Constitution.

That is the approach to interpretation which must be discarded.

The case Justice Alliance of South Africa v President of the Republic of South Africa & Others: Freedom Under Law v President of the Republic of South Africa and Others; Centre for Applied Legal Studies and Another v President of the Republic of South Africa and Others 2011 (5) SA 388 which has been referred to by both the applicants and respondents also confirms that age can, and does, indeed define and can be used to extend a term of office, as has happened following the enactment of section 186 of the Constitution:

"lt 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…,. Age is an indifferent criterion that may be applied in extending the term of office of a Constitutional Court Judge.”…,.

Section 186(4) and section 328(7) of the Constitution can be read together.

In our conclusion, section 186(4) of the Constitution does not apply to the person of the second respondent and the other persons who were judges of the Constitutional Court prior to the amendment. It also does not apply to the persons who were judges of the Supreme Court. This is because these are persons who fall within the ambit of section 328(7) of the Constitution in that they held or occupied the public office prior to and at the time of the amendment of the Constitution.

Consistent with the hallowed principle of interpretation which avoids an interpretation which results in a conflict in constitutional provisions, we come to the conclusion, that, section 186(4) of the Constitution does not apply to the judges of the Constitutional Court and Supreme Court who held office before the amendment.

There is no confusion which results from the wording of section 186(4) of the Constitution.

It says that the section shall apply to the continuation in office of the Chief Justice, Deputy Chief Justice, judges of the Constitutional Court and judges of the Supreme Court. This means it would apply to the continuation of the mentioned public officer other than those who were judges before the amendment.

The provision mentions offices rather than the persons occupying them; section 186(4) of the Constitution must therefore be understood as applicable to persons who are appointed to the named offices subsequent to the amendment. It does not mention 'persons' and does not state that the persons who were in office prior to the amendment would benefit from it.

If it did so, this would put it in conflict with the express provisions of section 328(4) of the Constitution and its constitutionality would be in question given that it was not submitted to a national referendum.

On the other hand, an interpretation that excuses the persons who held public office as judges of the Constitutional and Supreme Courts, prior to the amendment, from the ambit of section 328(7) of the Constitution, would reduce the Constitution to a wooden iron, because any person who already holds or occupies public office can easily cause their term of office to be lengthened by enactment of a provision similar to section 186(4) of the Constitution thereby perpetuating the mischief which was meant to be addressed by the entrenchment of section 328 of the Constitution.

The Status of Honourable Justice Malaba

It is common cause that the Honourable Justice Malaba is the only judge of the Constitutional Court who has turned 70. At the time that the applications were filed, he had not turned 70. He turned 70 years old on 15 May 2021.

The applications were filed following indications that he might or would benefit from the new section 186 of the Constitution by having his tenure of office extended by another 5 years.

The respondents, in their opposing affidavits, have referred to a letter dated 11th May 2021, by which his tenure was to be extended with effect from 16 May 2021.

In view of the conclusion we have reached, Honourable Justice Luke Malaba ceased to be a judge of the Constitutional Court and Supreme Court (at 0000 hours on 15 May 2021) when he turned 70 years. Equally, he ceased to be the Chief Justice of the Republic of Zimbabwe at that time.

Nothing tums on the letter of 11 May 2021; when it was written, that was the same day that the application was filed. The letter of 11 May 2021 was intended to take effect only on 16 May 2021, on which date the then incumbent would have ceased to be a judge some twenty-four hours earlier.

An absurd situation, which neither the Executive nor the Legislature would have intended, would have resulted whereby the country would be without a Chief Justice for the period of 24 hours, between 0000hours on 15 May 2021 and 0000 hours on 16 May 2021.

There would have been nothing to extend since he would have ceased to be a judge and Chief Justice of Zimbabwe.

Thus, any purported extension of the second respondent's occupation of the office of judge or Chief Justice remains a nullity because there was nothing to extend once he ceased to be a judge at the inception of 15 May 2021. This is so whether the extension is said to have been constituted by his election to remain in office or by the letter of 11 May 2021.

The celebrated statement in the case of MacFoy v United Africa Co. Ltd [1961] I AER 1169 decidedly seals the effect of that letter:

''If an act is void, then it is, in law, a nullity. It is not only bad, but incurably bad….,. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. lt will collapse."

ln the case of Muchakata v Netherburn Mine 1996 (1) ZLR 153 the Supreme Court of Zimbabwe (per KORSAH JA) said that if an act is void ab initio it is "void at all times and for all purposes. It does not matter when and by whom the issue of its validity is raised; nothing can depend on it."

In making these observations, we are mindful of the fact, that, the two applications were not based on the letter of 11 May 2021. That letter was produced in opposing papers.

Our conclusion is that the letter does not affect the conclusions which we have reached based upon an interpretation of the constitutional provisions considered above.

The Position of the other Judges of the Constitutional Court and Supreme Court

The effect of the conclusion reached above is that the persons who occupied the positions of judges of the Constitutional and Supreme Courts, prior to the amendment, cannot have their term in office extended beyond the age of 70 years based on section 186 of the Constitution as presently worded. This is because they held or occupied the concerned office before the amendment introduced by section 13 of the Constitution of Zimbabwe Amendment (No.2) Act 2021.

We point out, however, that, acting judges, be they in the Constitutional Court or Supreme Court, are not affected by the provisions of section 328(7) as read with section 186 of the Constitution 2013.

These include the 4th to 14th and the 18th respondents in so far as they have been acting Constitutional Court judges as well as the 15th, 16th and 17th respondents in case no. HC2128/21 in so far as they are substantive High Court judges who have been acting as Constitutional Court and/or Supreme Court judges.

There is no extension to the length of their term in office since they are just acting judges.

SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT
Ruled By: MATHONSI JA

In Harare Wetlands Trust v Minister of Environment Tourism Ors SC141–20, this Court made the point that the use of the word “within” in a provision relative to time signifies that the provision is peremptory.

SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT
Ruled By: MATHONSI JA

While Rule 11(2) of the Supreme Court Rules requires proof of service to be filed, it does not fix a time frame for such filing....,.Considering that Rule 11 of the Supreme Court Rules 2018 is silent on the timeframe for the filing of a certificate of service, it must be ...

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Rules of Construction or Interpretation re: Approach iro Dies Induciae, Time Limits and the Reckoning of Time

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HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT
Ruled By: MATHONSI JA

SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT
Ruled By: MATHONSI JA

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Law Portal Zimbabwe

Rules of Construction or Interpretation re: Approach iro Dies Induciae, Time Limits and the Reckoning of Time

HH27-08 : EDSON NYAMAPFENI vs CONSTITUENCY REGISTRAR MBERENGWA EAST and ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE and DOUGLAS MOMBESHORA and CLEVER KUGOTI Ruled By: UCHENA J

SC07-17 : CHRIS STYLIANOU and FRED DRIVER AND SONS (PVT) LTD and D.R. HENDRY (PVT) LTD vs MOSES MUBITA AND 25 OTHERS Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

SC48-18 : THANDEKILE ZULU vs ZB FINANCIAL HOLDINGS (PRIVATE) LIMITED Ruled By: ZIYAMBI JA, GARWE JA, HLATSHWAYO JA, GUVAVA JA and UCHENA JA

HB129-11 : (1) DAKTYL AUTOMATIVE PL HC234/08 and (2) MATABELELAND HAULIERS PL HC1388/08 vs MATABELELAND [HAULIERS] PL and DOWOOD SERVICES PL and DAVID LUWO and DAKTYL AUTOMATIVE PL Ruled By: NDOU J

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

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

HH20-08 : DANIEL SHUMBA vs CONSTITUENCY REGISTRAR, MR MUSHANGWE and CHAIRMAN OF ZIMBABWE ELECTORAL COMMISSION Ruled By: UCHENA J

HHH142-10 : ALBERT MATAPO and OTHERS vs THE STATE Ruled By: MUSAKWA J

SC19-21 : CHEVHU HOUSING CO-OPERATIVE SOCIETY LIMITED AND OTHERS vs CREST BREEDERS INTERNATIONAL (PVT) LTD AND MINISTER OF LANDS AND RURAL SETTLEMENTS Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

View Appeal HMA13-19 : CONCILIA CHINANZVAVANA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and OTHERS Ruled By: MAFUSIRE J

HH586-15 : TEMBA MLISWA vs THE CHAIRPERSON (ZEC) and ZIMBABWE ELECTORAL COMMISSION and OTHERS Ruled By: UCHENA J

SC21-18 : EASTER MZITE (as Executrix Dative Estate Late Chemayi Joseph Mtize) vs DAMAFALLS INVESTMENTS (PVT) LTD and MASTER OF THE HIGH COURT Ruled By: BHUNU JA

HH670-15 : THE SHERIFF OF THE HIGH COURT vs NOMVUYO MADZIRO and ANESUISHE MADZIRO and RUVARASHE MADZIRO and CBZ BANK LIMITED Ruled By: MATANDA-MOYO J

View Appeal HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS Ruled By: ZHOU J, CHAREWA J and MUSHORE J

SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT Ruled By: MATHONSI JA

SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT Ruled By: MATHONSI JA

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Zimbabwe

HH27-08 : EDSON NYAMAPFENI vs CONSTITUENCY REGISTRAR MBERENGWA EAST and ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE and DOUGLAS MOMBESHORA and CLEVER KUGOTI
Ruled By: UCHENA J

SC07-17 : CHRIS STYLIANOU and FRED DRIVER AND SONS (PVT) LTD and D.R. HENDRY (PVT) LTD vs MOSES MUBITA AND 25 OTHERS
Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

SC48-18 : THANDEKILE ZULU vs ZB FINANCIAL HOLDINGS (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA, HLATSHWAYO JA, GUVAVA JA and UCHENA JA

HB129-11 : (1) DAKTYL AUTOMATIVE PL HC234/08 and (2) MATABELELAND HAULIERS PL HC1388/08 vs MATABELELAND [HAULIERS] PL and DOWOOD SERVICES PL and DAVID LUWO and DAKTYL AUTOMATIVE PL
Ruled By: NDOU J

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

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

HH20-08 : DANIEL SHUMBA vs CONSTITUENCY REGISTRAR, MR MUSHANGWE and CHAIRMAN OF ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

HHH142-10 : ALBERT MATAPO and OTHERS vs THE STATE
Ruled By: MUSAKWA J

SC19-21 : CHEVHU HOUSING CO-OPERATIVE SOCIETY LIMITED AND OTHERS vs CREST BREEDERS INTERNATIONAL (PVT) LTD AND MINISTER OF LANDS AND RURAL SETTLEMENTS
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

View Appeal
HMA13-19 : CONCILIA CHINANZVAVANA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: MAFUSIRE J

HH586-15 : TEMBA MLISWA vs THE CHAIRPERSON (ZEC) and ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: UCHENA J

SC21-18 : EASTER MZITE (as Executrix Dative Estate Late Chemayi Joseph Mtize) vs DAMAFALLS INVESTMENTS (PVT) LTD and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA

HH670-15 : THE SHERIFF OF THE HIGH COURT vs NOMVUYO MADZIRO and ANESUISHE MADZIRO and RUVARASHE MADZIRO and CBZ BANK LIMITED
Ruled By: MATANDA-MOYO J

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT
Ruled By: MATHONSI JA

SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT
Ruled By: MATHONSI JA