MAKARAU JCC:
This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by the President as unconstitutional. This it allegedly did in the first of its two parts.
Background
We summarise the facts giving rise to this application from the two applications that were filed in the High Court under case numbers HC2128/21 and HC2166/21, respectively. The facts are not complex.
The facts of this application coalesce, and relevantly so, around 15 May 2021 when the Chief Justice, Judge Malaba, reached the age of seventy. A few days before that date, on 7 May 2021 to be precise, the Constitution of Zimbabwe Amendment (No.2) Act (No.2 of 2021) came into force.
Among other provisions, it amended section 186 of the Constitution to provide for the tenure of judges in the following terms:
“(1) The Chief Justice and the Deputy Chief Justice hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire unless before they attain that age they elect to continue in office for an additional five years;
Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.
(2) Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years; but
(a) They must retire earlier if they reach the age of seventy unless, before they attain that age, they elect to continue in office for an additional five years:
Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.
(b) After the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment.
(3) Judges of the Supreme Court hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional five years:
Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.
(4) Notwithstanding subsection (7) of section 328, the provisions of subsections (1), (2) and (3) of this section shall apply to the continuation in office of the Chief Justice, the Deputy Chief Justice, Judges of the Constitutional Court and Judges of the Supreme Court.”
Acting in accordance with the provisions of section 186 of the Constitution, as amended, the Chief Justice exercised the option to extend his tenure of office beyond the age of seventy for an additional five years.
By letter dated 11 May 2021, the seventh respondent, the President, accepted a medical report as to the mental and physical fitness of the Chief justice to continue in office.
The third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Mutanda) respondents formed the firm view, that, the seventh respondent (the President), by accepting the medical report, that the Chief Justice was mentally and physically fit to so continue in office, had subverted the correct constitutional position.
They filed the two applications in the High Court that we have detailed above, challenging the continuation in office of the Chief Justice for an additional five years beyond 15 May 2021.
In his application, the third respondent (Musa Kika), in addition to the Chief Justice, cited as respondents all the judges of the Supreme Court and some judges of the High Court.
At the time of the filing of the application, the five judges of this Court, other than the Chief Justice and the Deputy Chief Justice, were Supreme Court judges, acting as Supreme Court judges and were cited as such. Substantive appointments to this Court were made subsequent to the filing of the applications a quo but before the hearing of this application.
Whilst materially and correctly so, the third respondent (Musa Kika) averred in his application, that, the Chief Justice had opted to exercise the option introduced by the amendment, no such averment was made in respect of any or all of the other judges who were cited as respondents under case number HC2128/21.
We revert to this fact in detail later.
The primary relief sought in the applications a quo was a declaration that the amendment to the Constitution, in section 186, did not apply to the Chief Justice and the judges cited as respondents. Specifically, it was claimed, that, the amendment did not have any force and effect on the tenure of the Chief Justice and the cited judges as such an interpretation would fall foul of the provisions of section 328(7) of the Constitution.
Section 328(7) of the Constitution provides that:
“(7) Notwithstanding any other provision of this section, an amendment to a term–limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”
The two applications, both brought urgently, were opposed on truncated dies induciae in accordance with the terms of a case management meeting order to which all the parties agreed.
At the end of the hearing of the applications, as indicated above, the court a quo issued a singular order in the following terms:
“IT IS DECLARED THAT:
1. The second respondent in HC2128/21 who is also the second respondent in HC2166/21 ceased to hold the office of the Chief Justice of Zimbabwe and judge by operation of law on 15 May 2021 at 4:00 hours.
2. The extension of the length of time in the office of the judge beyond the age of seventy provided for in section 186 of the Constitution does not apply to the second to fourteenth and eighteenth respondents.
3. There shall be no order as to costs.”
The respondents a quo, including the judges of this Court, were aggrieved by the order.
Under separate and different covers, they filed notices of appeal in the Supreme Court challenging the correctness of the decision.
It is not necessary that we set out the grounds of appeal of each appellant in full. As and when it is it necessary to do so, we shall advert to the notices of appeal.
The applicant, strongly believing, that, the effect of the first part of the order was to declare constitutionally invalid the letter of 11 May which constituted the legal authority for the Chief Justice to continue in office, filed this application in terms of section 175(3) of the Constitution.
As indicated above, he sought the setting aside of the entire order.
This he did notwithstanding, that, on its mere reading, the High Court order did not in any way refer to the conduct of the seventh respondent (the President) as constitutionally invalid.
We observe, at this stage, that, the interpretation of the High Court order by the applicant in this regard was conceded as correct by the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondent's counsel during the hearing of the application.
We shall advert to this concession in detail in due course.
The Application in terms of section 175(3) of the Constitution
It is common cause that the applicant was not a party to either of the two applications that were determined by the High Court. He brought this application in the first instance. In the application, he alleged that he is an adult Zimbabwean who is asserting his right to access this Court directly to defend and protect the Constitution.
Arguing that the state of affairs in the country following the issuance of the High Court order was undesirable as there should never, in any jurisdiction, be doubt as to who the Chief Justice is, the applicant made two basic contentions:
(i) Firstly, he contended, that, the juristic act by the seventh respondent (the President) of accepting a medical report as to the mental and physical fitness of the Chief Justice to remain in office for an additional five years, after attaining age seventy, was valid and the High Court orders purporting to hold such as constitutionally invalid had to be set aside.
(ii) Secondly, he contended, that, section 328(7) of the Constitution, relied upon by the third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents as precluding the amendment of the Constitution from applying to the Chief Justice and other sitting judges was not applicable as section 186(4) of the Constitution was the applicable section.
The third, fourth, and fifth respondents opposed the application.
The first (Minister of Justice, Legal and Parliamentary Affairs), second (Judicial Service Commission), sixth (Attorney General) and seventh (the President) respondents were content to keep a watching brief during the hearing of the application.
The third respondent (Musa Kika) opposed the application on the basis of a sole preliminary point. It was his position that this court should refrain from exercising jurisdiction in the matter.
Put differently, it was his position, edified during the proceedings by an oral application, that, this Court should recuse itself. In his view, since the second part of the High Court order declared that the judges of this and the Supreme Court could not extend their respective terms of office beyond the age of seventy, the order under scrutiny in the confirmation proceedings affects the judges of this Court directly.
In this regard, he was keen to highlight and place it on record, that, the judges of this Court had not only participated in the proceedings before the High Court but had since filed a notice of appeal against the High Court order.
It was therefore the mainstay of his exception and position, that, the judges of this Court were completely non-suited to hear this application on account of their positions as active litigants who were already seeking the vacation of the High Court order by way of appeal.
In his further view, the determination of the application by this Court, as constituted, would, in the circumstance of the matter, implicate a breach of the common law principle nemo judex in sua causa.
In opposing the application, the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents raised a number of issues:
(i) Firstly, they challenged the competence of this Court to determine the application. They also sought the recusal of the entire bench of this Court on the same ground that the third respondent (Musa Kika) had relied upon.
(ii) Secondly, and before a competently constituted Court, the fourth respondent took issue with the locus standi of the applicant to bring the application in the manner that he did. In essence, it was the fourth respondent's position that the applicant, not having obtained any rights under the High Court order, could not purport to challenge the order.
(iii) Thirdly, and regarding the merits of the matter, the fourth respondent challenged the procedural steps taken and leading to the acceptance by the seventh respondent (the President) of a medical report as to the mental and physical fitness of the Chief Justice to continue in office for an additional five years after his seventieth birthday.
Thus, broadly speaking, the application raised for determination three distinct issues. The second issue would only become relevant and fall for determination if the respondents were not successful on the first issue and the third issue would only require determination if the respondents failed on the second issue.
(i) The first issue was whether this Court should recuse itself;
(ii) If the Court did not recuse itself, the second issue would be whether the applicant had locus standi to bring the application under section 175(3) of the Constitution; and
(iii) Finally, if he did have the requisite standing, whether the application had merit.
After hearing submissions from counsel on the first issue, this Court dismissed the application for its recusal on the turn and indicated that full reasons would be availed in the main judgment.
We now set these out.
The Application for Recusal
The third, fourth and fifth respondents (Musa Kika, Young Lawyers Association of Zimbabwe and Frederick Charles Mutanda) applied for this Court, in its entirety, to recuse itself. In making the application, they relied solely on the fact, that, the third respondent had cited all the judges of this Court as respondents in the application before the High Court.
We again pause to note, that, whilst the third, fourth and fifth respondents went further to point out that judgment was given against all the judges of this Court, who subsequently caused a notice of appeal to be noted on their behalf, these and other averments in the same vein are of no independent legal import. They all stem from the fact, that, the judges were cited as respondents before the High Court and all ensuing proceedings depend for their validity on that fact.
It stands to reason, that, if the citation of the judges was legally inept, nothing valid would flow from it.
The observations that we make above apply with equal force to the argument that was advanced on behalf of the fourth and fifth respondents, erroneous as it was, that, due to the order that was granted against them, the judges of this Court are disenfranchised from exercising the right to extend their respective tenures of office.
We say erroneous because the order that was granted by the High Court was against the judges of this Court in their acting and not in their substantive capacities as judges of this Court.
The same applies to the further argument by the fourth and fifth respondents, that, the application before this Court must be seen as pre-empting the Supreme Court decision in that the draft order in the present application seeks to achieve, in essence, that which the judges of this Court seek to achieve in their notice of appeal before the Supreme Court.
The Law of Recusal
The law of recusal is entrenched in this jurisdiction. It is settled. It has found expression in many words, some of which reflect approval of decisions of other jurisdictions. It is the law against bias, and, where, after investigation, it is established that the judicial officer or decision maker was biased, the ensuing decision is afflicted and must be vacated.
Thus, the law of recusal is an expression, at a very general level, of the principle, that, justice must not only be done but must appear to have been done. This is so because justice is rooted in confidence and confidence is destroyed when right thinking people go away thinking that the court was biased or conflicted.
It is in keeping with this general principle, that, at all times, courts must conduct their affairs in such a way that the court's open-mindedness, its impartiality, and fairness are manifest to all those who follow the proceedings and review the outcome.
This Court has recognized this broad principle in the case of Konson v S CC07-15 where it referred with approval to the remarks of TROLLIP AJA in S v Rall 1982 (1) SA 828, who, in dealing with the limit to which a court can go in questioning an accused person during a criminal trial, had this to say in part:
“…,. The judge must ensure that 'justice is done'. It is equally important, I think, that he should ensure that justice is seen to be done. After all, that is a fundamental principle of our law and public policy. He should, therefore, so conduct the trial that his open-mindedness, his impartiality, and his fairness are manifest to all those who are concerned in the trial and its outcome - especially the accused: see, for example, S v Wood 1964 (3) SA 103 (O) at 105G; Rondalia Versekeringskorporasie van SA Bpk v Lira 1971 (2) SA 586 (A) at 589G; Solomon and Anor NNO v De Waal 1972 (1) SA 575 (A) at 580H.
The judge should, consequently, refrain from questioning any witness, or the accused, in such a way, that, because of its frequency, length, timing, form, tone, content or otherwise conveys or is likely to convey the opposite impression: (cf Greenfield Manufacturers (Temba) (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd 1976 (2) SA 565 (A) at 570E-F; Jones v National Coal Board (1957) 2 All ER 155 (CA) at 159F.”
As correctly submitted by counsel for the respondents, the law of recusal also finds expression in our supreme law, where it is part and parcel of the bundle of rights that make up the right to a fair hearing as guaranteed in section 69 of the Constitution.
The law provides, in section 69(2) of the Constitution, that, in the determination of their civil rights and obligations, every person has a right to a fair, speedy, and public hearing within a reasonable time before an independent and impartial court.
It is self-evident, that, at the heart of the principle of recusal is the need to protect the right to a fair hearing, which, in turn, lies at the heart of the rule of law. Put differently, an application for recusal is invariably an allegation that the litigant's right to a fair hearing, as constitutionally guaranteed, is under threat of violation.
The law of recusal therefore seeks to re-assert the independence and impartiality of the court that is demanded by section 69 of the Constitution. It further seeks to enhance the notion of even handedness, the universal standard that is required from all those who dispense justice.
It then presents itself to us, that, conceptually, an application for recusal is largely an exchange between the court and the litigant who is apprehensive that his or her right to a fair hearing is under threat. There is hardly room or comfort for that matter, and self-evidently so, for the adversary litigant to fight in the corner of the court and show, by way of submissions or evidence, that the court is not biased towards it or does not have some interest in the matter: see Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Company (Pvt) Ltd 2001 (1) ZLR 226…,.
Having made the observation, we remain grateful for the submissions that were made on behalf of the applicant.
But, the above is not all.
The law of recusal is not concerned solely with the rights of the apprehensive litigant. It is concerned with the fairness of the hearing in its totality.
It therefore stands to reason, that, the law of recusal, and the guarantees in section 69(2) of the Constitution, require some degree of reciprocity of fairness and good faith from the apprehensive litigant. In other words, a litigant alleging a violation of his or her right to a fair trial must not have created or contributed to the dire circumstances that he or she finds himself or herself in.
Put differently, the application for recusal must be brought on genuine grounds and must not be contrived merely for the purposes of embarrassing the court.
But, above all, the apprehensive litigant must bring the application for recusal on tenable positions at law. The application must be based on sound and sustainable positions at both the adjectival and the substantive law.
Analysis
Applying the law then to the facts of this matter:
Firstly, it is common cause in casu, that, the third respondent did not give any prior notice that he intended to sue all the judges of this Court as is required by the Rules of the High Court 1971.
Thus, Rule 18 of the High Court Rules was not complied with.
This is a procedural rule that is not dependent on the cause of action intended to be brought. Its purpose is not only to give the judge concerned notice of the intended suit, but, to also act as a sieve. It has a gate-keeping function that keeps unmeritorious suits out of court.
We deal with this aspect in greater detail later in the judgment.
Secondly, it is further common cause, that, the third respondent did not, and correctly so, allege that any of the judges of this Court, in their respective capacities as Acting Constitutional Court judges, or as substantive judges of this Court for that matter, had exercised the option, as had the Chief Justice, to continue in office for an additional five years after they each attained the age of seventy.
Perchance, for a myriad of reasons, some of the judges may not exercise the option.
Clearly, there was no evidence placed before the High Court that one or more of the judges had an intention of so doing at the time the application a quo was filed.
A necessary and material averment to complete the cause of action against the judges, other than the Chief Justice, was therefore missing.
Thus, whilst the cause of action against the Chief Justice may have been complete, it was not in respect of the other judges - even for the declaration of any future or contingent rights of the judges.
In the absence of a sustainable cause of action against the judges, the citing of the judges and the order sought against them was not only unwarranted but was also incompetent and undeserved.
Thirdly, we observe, common cause as it is, that, although the two applications a quo were brought on a certificate of urgency, such urgency was not demonstrated regarding the issuance of the second part of the order.
The third respondent made no averment in his application that the judges had indicated, by word or by deed, that they were about to exercise the option to remain in office for an additional five years at the same time that the Chief Justice did, or immediately thereafter.
It was clearly not the position of the third respondent a quo that the harm sought to be cured or arrested by the second part of the order a quo was imminent or needed the urgent attention of the court.
Fourthly, there is a discernible disconnect between the manner in which the judges were cited and the relief that was sought against them. Whilst the judges of this Court were cited nomine officio as Supreme Court judges, albeit acting as Constitutional Court judges, the relief sought was claimed against them personally and individually. Indeed, the order sought has since followed them individually and collectively to this Court.
Furthermore, we emphasise the point, that, at the time when the orders a quo were handed down, i.e. on 15 May 2021, five of the judges of this Court were substantive judges of the Supreme Court while acting as judges of the Constitutional Court. Subsequently, they were appointed as substantive judges of this Court on 20 May 2021, after section 186 of the Constitution was amended and after the above-mentioned orders were handed down.
Consequently, as of that date, the judgment and orders a quo would have ceased to have been applicable to or binding upon them in their personal capacities. There was therefore no legitimate basis for seeking their recusal in the present matter as their personal rights and interests, then or in the future, could no longer have been in issue.
Finally, and, in any event, an interpretation of section 186 of the Constitution in a suit against the Chief Justice alone would have been binding on all other similarly circumstanced judges.
This is a trite position at law.
The relief sought a quo was an interpretation of the Constitution which is binding on all persons as it is a declaration of what the law is. There was thus no need to cite, in addition to the Chief Justice, the judges of this Court, or any other judge for that matter, in the application a quo.
On the basis of the above, we venture to suggest, that, the legally inelegant citation of the judges a quo, and the subsequent application for the recusal of this entire Bench on the basis of such, was not made in good faith but merely to place this court in an exceedingly embarrassing position.
We find, therefore, that, the citing of the judges of this Court, a quo, was both procedurally and substantively maladroit.
Because of the number of procedural and substantive law lapses and errors that were attendant upon it, such citing cannot be a basis for the recusal of the judges of this Court.
The recusal of this Court cannot be granted on the basis of an untenable legal position.
To seek the recusal of the entire court on an untenable legal position is synonymous with seeking the recusal on no grounds at all.
It makes the application frivolous.
We further observe in this regard, that, when questioned as to which persons should properly constitute the Bench to hear the merits of this matter, in the event that all the incumbent judges of the Constitutional Court and Supreme Court were to recuse themselves, and which authority could be called upon to legitimately appoint such persons to that Bench, both counsel for the respondents were studiously unable to enlighten the Court with any meaningful answers to those very pertinent questions.
In Bernert v Absa Bank 2011 (3) SA 92 (CC), NGCOBO CJ repeated the position earlier on taken by that court in President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC), that, the judicial function, together with the oath of office that judges subscribe to, creates a presumption of impartiality in favour of the Constitutional Court.
By the same reasoning as emerges from the South African cases, there is a presumption of impartiality in favour of this Court, for we do carry out similar judicial functions and subscribe to a similar oath.
It is our finding, that, in casu, the presumption that this Court is impartial was not displaced.
Had the application for recusal been validly taken, we may have proceeded to determine whether the common law doctrine of necessity, an exception to the nemo judex in sua causa principle, was of any application.
It is not necessary that we encumber this judgment with a discussion of the principle and its applicability in this jurisdiction. Suffice it to say, that, where it is applicable, it operates to obviate a situation of administrative or judicial paralysis where no person other than the biased decision maker can make a decision in the matter.
For the above reasons, we dismissed the application for recusal.
PATEL JCC: It is pertinent, at this juncture, before addressing the substance of the matter, to make an observation concerning the conduct of the third respondent (Musa Kika).
Even though he was primarily instrumental in initiating the proceedings a quo, he deliberately chose not to address any issue other than that of recusal; either in his opposing affidavit or in his heads of argument.
Equally curiously, at the end of the proceedings on the question of recusal, he and his counsel elected not to appear in any further proceedings before the Court. In the event, the matter proceeded in the absence of the third respondent and without the benefit of his submissions on the substantive merits of the matter.
