Employment Contract re: Transfer or Secondment of Employees iro Acting Role, Interim Contractual Lacuna & Quantum Meruit

SC200-97 : MUWENGA vs PTC
Ruled By: GUBBAY CJ, KORSAH JA and MUCECHETERE JA

This is an appeal against the decision of the Labour Relations Tribunal, brought under section 92(2) of the Labour Relations Act [Chapter 28:01] ("the Act"), in which it was held, that, the omission of the respondent ("the PTC") to promote the appellant to the post of superintendent did not amount to an unfair labour practice.

The factual background giving rise to the dispute, and upon which the question of law has been debated before this court, was succinctly outlined by the learned Chairman in his judgment. It may be restated as follows:

On 10 October 1984, the PTC invited applications for the post of Telephone Superintendent at its Gateway exchange in Gweru. Four such posts were to be filled by the lateral transfer of serving superintendents, or, if not available, by promotion from the grade of supervisor. The respondent was a Supervisor.

He applied.

After undergoing a two week training course, in April 1985, the appellant, and one Mahachi, a fellow Supervisor, were transferred, permanently, to Gateway Exchange with effect from 28 June 1985.

In April 1986, the appellant, and Mahachi, having by then acted for nine months, wrote to the Regional Telecommunications Manager requesting that they be appointed superintendents, as the two substantive posts at Gateway Exchange had not been filled. The immediate response to their veiled complaint was to offer them the choice of remaining in an acting capacity or being relieved of their positions.

Both resolved to continue as Acting Superintendents.

During February 1987, the appellant, and Mahachi, raised with the Senior Superintendent, Gweru, their concern at still awaiting substantive appointments; but to no avail. New posts, vacancies, and re-gradings were under freeze pending a review of the PTC's establishment.

Later that year, when the freeze was lifted, an exercise was undertaken by the PTC to fill the vacant substantive posts of superintendent at Gateway Exchange. Candidates were required to have attained five "O" level passes, including english language and mathematics, in the General Certificate of Education examination. There were no applicants with the stated qualification.

Neither the appellant, nor Mahachi, had obtained an "O" level pass in mathematics.

In January 1988, the Promotions Board of the PTC requested, and was granted, a waiver of the mathematics requirement for the post of Superintendent. The appellant, and Mahachi, thus qualified for promotion.

In the event, it was Mahachi, alone, who was appointed. The appellant was not, because, at that point in time, he was under investigation on charges of misconduct.

In September 1990, the PTC decided to advertise several posts, one of which was for a Superintendent at Gateway Exchange. The notice issued by it stated, explicitly, that, "O" level passes in english language and mathematics were required of the applicants.

The appellant applied, notwithstanding that he still lacked the mathematics qualification.

A supervisor from Harare Main Exchange also applied. He happened to satisfy the educational requirements: and so, it was he who secured the appointment.

Shortly, thereafter, on 5 February 1991, the appellant was informed, that, as a superintendent had now been appointed to Gateway Exchange, he was no longer needed to act in that capacity and was to be transferred back to Harare Main Exchange as a supervisor.

This was indeed a bitter pill for the appellant to swallow.

He had acted as superintendent at Gateway Exchange for a period of five years and seven months and was not prepared to comply meekly with the instruction that he revert to the grade of Supervisor. He immediately referred what he believed to be an unfair labour practice to a Labour Relations officer in terms of section 93(1) of the Labour Relations Act [Chapter 28:01]. A hearing was convened on 8 February 1991. The Labour Relations officer came to the conclusion that:

"The person who was appointed to fill the vacant post at Gateway Exchange was eligible for the post in terms of the Postmaster General's Circular No.8 of 1986, and in terms of the vacancy notice No.45 of 1990; the PTC acted within the parameters of its laid down policy, and, it was thus not guilty of an unfair labour practice in this regard."

Thereafter followed appeals to the Regional Hearing Officer and from him to the Labour Relations Board.

Section 8 of the Labour Relations Act specifies those acts or omissions which constitute an unfair labour practice by an employer.

Under section 10 of the Labour Relations Act, the Minister of Public Service, Labour and Social Welfare is empowered to prescribe, by statutory instrument, acts and omissions which constitute unfair labour practices and may vary, amend of repeal any such notice. Initially, such provision was made by the Minister in the Third Schedule to the Labour Relations (General) Regulations 1985 (S.I.368 of 1985); and, more recently, in the Second Schedule to the Labour Relations (Settlement of Disputes) Regulations 1993 (S.I.30 of 1993).

Those, then, are the particular acts or omissions deemed to be unfair labour practices which a Labour Relations Officer is mandated, by section 93 of the Labour Relations Act, to deal with.

It was not in contention, and rightly so, that the omission by the PTC to promote the appellant to the post of Superintendent, despite his long and good service when acting in that capacity, was one of the unfair labour practices specified in the legislation.

Nonetheless, the argument advanced was that the PTC had created a situation which caused the appellant to legitimately expect that he would be promoted to the post in which he was acting. The landmark judgment of CORBETT CJ in Administrator, Transvaal & Ors v Traub & Ors 1989 (4) SA 731 (A) was prayed in aid.

In the above cited decision…, the learned Chief Justice elaborated upon the doctrine of legitimate expectation in these words:

"There are many cases where one can visualise in this sphere: where an adherence to the formula of 'liberty, property, and existing rights' would fail to provide a legal remedy when the facts cry out for one, and would result in a decision which appeared to have been arrived at by a procedure which was clearly unfair being immune from review. The law should, in such cases, be made to reach out and come to the aid of persons prejudicially affected.

At the same time, whereas the concepts of liberty, property, and existing rights are reasonably well defined, that of legitimate expectation is not.

Like public policy, unless carefully handled, it could become an unruly horse: and, in working out, incrementally, on the facts of each case, where the doctrine of legitimate expectation applies and where it does not, the courts will, no doubt, bear in mind the need, from time to time, to apply the curb. A reasonable balance must be maintained between the need to protect the individual from decisions unfairly arrived at by public authority (and by certain domestic tribunals) and the contrary desirability of avoiding undue judicial interference in their administration."

The extension of the principle of natural justice, as enunciated in Administrator, Transvaal & Ors v Traub & Ors 1989 (4) SA 731 (A) has been accepted by this court: see Health Professions Council v McGown 1994 (2) ZLR 329 (S)…,.; Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 776 (S).

Even if it be assumed (without in any way deciding the point), that, it was permissible for the Labour Relations Officer to accept the appellant's reference, albeit falling outside those definitive acts or omissions specified as constituting unfair labour practices, the particular facts seem to me to exclude a finding that the appellant had a tangible natural law right to be promoted to the post of Superintendent.

Most importantly, at the date the appellant was appointed an Acting Superintendent it must have been known to him that he lacked the necessary academic level in mathematics to secure the substantive post. It was only because there was no qualified applicants that the requirement for an "O" level pass in mathematics was waived in 1988. Hence Mahachi was promoted.

But, for the pending investigation, the probability is that the appellant would have been appointed as well, since there remained a vacancy at Gateway Exchange.

Colloquially speaking, that was a "one off" situation.

The waiver of mathematics was dictated by the prevailing circumstances. It was not to be a permanent relaxation: and, when, in September 1990, the PTC advertised the vacancy at Gateway Exchange, an "O" level pass in mathematics was once more a pre-requisite. The appellant had the experience but not the academic qualification.

How could he, therefore, legitimately or reasonably expect to obtain the appointment?

The decision not to promote him, in my opinion, was not one unfairly arrived at.

If the PTC had again waived the requirement of mathematics, the appellant's position might have been different. However, it is unnecessary to decide the outcome.

I would merely emphasise, as cautioned by CORBETT CJ, that, the need to avoid undue judicial interference in the administration of public authorities must always be placed in the balance.

Indeed, it could be submitted, with some persuasion, that, the promotion of an employee is a privilege left to the discretion of the employer, to be conferred when deemed fit. It is not a right that an employee is entitled to claim unless, of course, his contract of employment so provides.

For the aforegoing reasons, I would dismiss the appeal with costs.

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

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

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

(Nedlaw was the Corporation's holding company).

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

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

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

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

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

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

Thereafter, events developed as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I will deal with them in turn....,.

(C) ACTING ALLOWANCE

The main argument put forward by the Corporation was that the claim for an acting allowance was not a dispute under the Labour Regulations Act. At best, it is a civil claim which should be bought in a Civil Court.

It seems to me that there is a great deal of merit in this argument.

Unless Mr Moyana can found his claim for an acting allowance squarely on some basis cognisable by the Labour Relations Act 1985, then, it is not a matter for determination under the Labour Relations Act.

His contract of employment makes no provision for acting allowances. In fact, it makes it clear that the salary structure in the Group is particularly flexible.

Compare the explicit provisions of section 19 of S.I.325 of1979 which deals with acting allowances in the Public Service.

There is thus no contractual basis upon which the claim may be founded.

The statute itself makes no specific provision about acting allowances, nor is there any other statutory provision in terms of which a "rate for the job" is laid down which is applicable to the facts of this case.

It has not been suggested, that, the failure by the Corporation to pay an acting allowance amounted to an "unfair labour practice" as defined in the Labour Relations Act, nor have I been able to find, in section 8 of the Labour Relations Act, or in the Third Schedule to the Regulations (S.I, 368 of 1985) anything which would indicate that failure to pay an acting allowance in these circumstances is an unfair labour practice.

Accordingly, the provisions of section 111(2)(b) of the Labour Relations Act, which begin with the words "in the case of an unfair labour practice involving a failure or delay to pay or grant anything due to an employee…," are not applicable.

I guard against saying that Mr Moyana has a claim under the Civil Law. All that I would say is that if he has a claim based in some way upon a quantum meruit, as counsel for the appellant suggested, such a claim should be brought before the Civil Court.

View Appeal
SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

It should be stressed, that, in terms of section 12 of the Labour Act, every person who performs work for any other person and is entitled to receive remuneration in respect of such work shall be deemed to be under a contract of employment with that other person, whether such ...

SC12-21 : TOBACCO PROCESSORS ZIMBABWE (PRIVATE) LIMITED vs TONGOONA MUTASA and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and CHATUKUTA AJA

This is an appeal against the whole judgment of the Labour Court upholding the National Employment Council - Tobacco Grievance and Disciplinary Committee's (NEC GDC Committee) finding that the appellant tacitly renewed the respondents' contracts of employment.FACTUAL BACKGROUNDThe following facts are common cause. The respondents were employed by the appellant ...

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

After hearing the parties on 9 March 2018, the court was of the unanimous view that the appeal was devoid of any merit and accordingly ordered as follows:“The appeal be and is hereby dismissed with costs. Full reasons will be available in due course.”The following are the reasons:BACKGROUND FACTSThe appellant ...

After hearing the parties on 9 March 2018, the court was of the unanimous view that the appeal was devoid of any merit and accordingly ordered as follows:

“The appeal be and is hereby dismissed with costs. Full reasons will be available in due course.”

The following are the reasons:

BACKGROUND FACTS

The appellant was employed by the respondent as a Human Resources Superintendent on 1 November 2006. He was based at the Head Office in Harare. In February 2009 he was transferred to Renco Mine. His contract of employment provided for, amongst other things, locality allowance, leave bonus, and a company vehicle which was to be fuelled and maintained by the company.

In February 2009, as happened nationwide, the respondent shifted from the use of the Zimbabwean dollar to the United States dollar when the Zimbabwean dollar became moribund.

On 19 February 2009, the respondent wrote a letter to the appellant notifying him, that, following the adoption of the United States dollar, his salary would be US$4,147=43 per month.

The letter was silent on allowances.

On 21 March 2009, through an office memorandum, all the respondent's employees were notified of the changes in their salaries and allowances. The memorandum provided, that, the respondent had implemented salary scales based on regional 'SADC' rates for employees in all grades. Consequently, transport and meals allowances, together with leave bonus payable when employees proceeded on annual leave, were to fall away with effect from 1 March 2009 for all employees in Grade 10 and above. Transport and meals allowances were also removed for employees in Grade 10 and above.

The respondent further indicated that the employees would be kept abreast of further changes.

Following the adoption of the United States dollar, the appellant was being paid a globular salary without any allowances. The respondent did not provide the appellant with the motor vehicle, but, rather, supplied him with fuel and paid for the maintenance of his personal car.

This was regardless of the fact that the respondent's contract of employment stated that he was entitled to allowances and a motor vehicle maintained by the company.

In June 2014, the appellant raised a complaint of unfair labour practice with the Labour Officer. He demanded payment of the following:

1. Outstanding locality allowance for the period from February 2009, when he was transferred to Renco Mine, up to the time when he made the complaint in June 2014;

2. Leave bonus from 2009 to 2013; and

3. Mileage for use of his personal motor vehicle from 1 March 2007 up to the time of the making of the claim.

At conciliation, the parties failed to reach a settlement and the matter was referred to arbitration.

Before the arbitrator, the appellant argued, that, he was entitled to payment of outstanding locality allowances and leave bonus and to a motor vehicle coupled with its maintenance and repairs. The appellant had been using his personal vehicle for the respondent's business as the respondent had failed to provide the motor vehicle. For this reason, he claimed compensation on the mileage of his vehicle on the same basis as if it was on hire to the respondent.

The appellant also contended, that, the respondent had unilaterally varied the contents of the contract of employment.

The respondent raised a preliminary point.

It was to the effect, that, in the event that the appellant's contract was found to have been violated, the appellant's claims had prescribed in terms of section 94(1)(b) of the Labour Act [Chapter 28:01] (herein after referred to as 'the Act').

The respondent also argued, that, none of the respondent's contractual benefits were being violated.

The arbitrator dismissed the preliminary point.

In his award, he made the finding, that, all the claims made by the appellant had been sustained. He thus ordered the respondent to pay the sum of US$197,563 for compensation as had been claimed by the appellant. This was to be paid in two equal monthly instalments of US$98,781=50 with the final payment being paid not later than 1 October 2014.

APPEAL TO THE LABOUR COURT

Dissatisfied with the arbitrator's ruling and award, the respondent appealed to the Labour Court.

A number of grounds of appeal were raised. The court a quo summarized them to amount to:

1. That prescription applied to the claims and those claims that were older than two years had prescribed in terms of section 94(2) of the Labour Act [Chapter 28:01].

2. That the contract of employment was varied by the office memorandum, and by conduct, and that the arbitrator therefore erred at law in his interpretation of the facts.

3. That, there was no prejudice to the employee's remuneration as occasioned by the new method of payment.

4. That, the arbitrator had grossly misdirected himself in the relevant findings of fact so much as to amount to a misdirection at law.

After hearing the parties, the Labour Court allowed the appeal and set aside the arbitral award.

The Labour Court accepted the argument presented by the respondent. It came to the conclusion, that, once an infraction has occurred, and becomes known by the affected party, it prescribes if it is not actioned within two years from the date when the dispute first arose.

The court ruled, that, all the outstanding claims that were more than two years when the claim was instituted by the appellant had prescribed.

On whether or not there was unilateral variation of the contract, the Labour Court found, that, the contract had been unilaterally varied by the respondent.

In its judgment, the Labour Court stated, that, although there was unilateral variation of the contract by the respondent - for five years the appellant received his salary without any complaint. By so doing, the appellant, who was a human resources practitioner, had demonstrated, by conduct, that he accepted the new salary structures.

As a result, the allowances claimed by the respondent were no longer claimable as there was now a new contract in existence.

The Labour Court further found no merit in the appellant's claim which was based on the contention that he had been hiring out his personal motor vehicle to the respondent.

The court a quo found, that, there was no standing agreement between the parties to that effect, and, therefore, to say that the appellant had hired out his vehicle to the respondent would amount to overstretching the contract.

THIS APPEAL

The appellant was aggrieved by the judgment of the court a quo and appealed against its decision on the following grounds:

1. The Labour Court fundamentally misdirected itself on a question of law in failing to find that the claims of the Appellant had not prescribed, they being claims arising from unfair labour practices of a continuing nature covered by section 94(2) of the Labour Act.

2. The Labour Court further erred on a question of law in finding that the contract of employment between the Appellant and the Respondent had been varied such that the appellant would not be paid the claimed allowances.

3. The Labour Court further erred in law in failing to award the Appellant compensation in respect of the usage of his motor vehicle for the business purposes of the respondent.

At the beginning of the hearing, counsel for the appellant indicated that he was abandoning the third ground of appeal which related to the issue of the motor vehicle.

Notably, this ground formed the bulk of the appellant's claim. He therefore restricted his argument to the first two grounds which relate to the claims for outstanding locality allowance and leave bonus.

SUBMISSIONS ON APPEAL

Counsel for the appellant's contention was that the Labour Court erred in ruling that the appellant's claims had prescribed and he placed reliance on section 94(2) of the Labour Act.

He argued, that, the unfair labour practice commenced in March 2009 and continued until the matter was brought to the attention of the Labour Officer and to the Labour Court.

The gravamen of his argument is that the dispute was of a continuous nature, and, therefore, on the basis of section 94(2) of the Labour Act, no prescription could run.

He further contended, that, the appellant's rights, conferred by the Labour Act, were “frozen” during the period of his employment. Therefore, any infractions of these rights could only be actioned after termination of the employment relationship.

On variation of the contract of employment, the contention was that the introduction and operation of multi-currencies, in February 2009, did not operate to vary the contracts of employment in any way.

The respondent remained indebted in respect of the appellant's allowances.

Secondly, the memorandum issued in March 2009 was a unilateral act by one party to a contract of employment and did not have the effect of validly taking away vested rights.

Counsel for the respondent submitted, that, the rights accorded by the Labour Act are not “frozen” as there are remedies provided by the Labour Act for any infraction of the rights. He described the appellant's contention as “judicial heresy.”

Counsel for the respondent further submitted that section 94 of the Labour Act must be read together with section 8 of the same Act.

Section 94 of the Labour Act limits itself to unfair labour practices and these the appellant had not been able to identify. For this reason, he submitted, the protection of section 94 of the Labour Act was not available to the appellant.

The kind of infractions that the appellant complained about are infractions that gave him a full and competent cause of action within a period of two years. He submitted that the appellant's suggestion, that the two year period must be counted starting from after the end of the employment relationship, is not worthy of any notice due to its frivolity.

ISSUES FOR DETERMINATION

The issues for determination by this court are:

1....,.

2. Whether or not the contract of employment had been varied....,.

Whether or not the contract of employment was varied

The question must of necessity, therefore, be answered whether or not the contract was in fact varied unilaterally.

The appellant submitted, that, the change in currency, following the adoption of the use of the United States dollars, did not alter the contract of employment. He further contended that he was still entitled to the car loan, as per the contract of employment, which was operative during the time when the Zimbabwean dollar was in use.

Counsel for the respondent, on the other hand, submitted that the local dollar contract could not have had its terms transposed into the US Dollar period. It was his contention, that, in order to successfully advance the contention that there had been variation of the contract, the appellant had to first identify the contract expressed in United States Dollars, set out its terms and then show how it was unlawfully varied by the respondent.

As already mentioned earlier, the respondent issued out an internal memorandum, on 21 March 2009, following the adoption of the United States dollar currency.

This memorandum had the effect of altering the appellant's contract of employment.

Following the memorandum, the appellant, who was the Human Resources Officer, accepted his new salary in terms of the memorandum. He was receiving a salary in terms of the memorandum, and, for the five years, he never raised any complaint nor did he challenge the new salary scale.

It is trite, that, consent can either be express or implied.

In the case of Smith v Hughes LR 6 QB 597…, it was stated that:

“If, whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party, upon that belief, enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms.”

For five years, the respondent accepted a salary, in terms of a memorandum which had no provision for any allowances. By such conduct, he accepted the variation of the terms of his contract of employment.

If he genuinely felt that the memorandum breached his contractual rights, he ought not to have accepted the salaries and ought to have mounted his challenge at the pertinent time or within the permitted period.

In the absence of any challenge to the variation of the contract, it is clear, that, after variation of the contract of employment, there was acquiescence by the appellant.

If there was acceptance of the variation, as there was, there was no claim to be prescribed.

It follows, that, by his conduct, the appellant impliedly consented to the variation of his contract.

In such circumstances, he could not claim any benefits flowing out of the contract that had been varied.

The court a quo thus correctly found, that, the contract of employment was varied with the consent of the appellant, and, therefore, the allowances claimed by the appellant were no longer claimable under the contract ushered in by the memorandum.

It is for these reasons that we found that the appeal had no merit and proceeded to grant the order that we did as recorded at the beginning of this judgment.

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

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 ...

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....,.

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.”...,.

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....,.

It is 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....,.

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.

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.

Preliminarv Issues and Obiections

The parties raised preliminary issues and objections:...,.

No Leave Sought to Sue Sitting Judqes

The respondents rely on Rule 18 of the High Court Rules, RGN 1047/1971 for the objection, that, the failure to obtain the leave of the court to sue the judges renders the proceedings fatally defective.

That Rule provides as follows:

"No summons or other civil process of the court may be sued out against the President or against any of the judges of the High Court without the leave of the court granted on court application being made for that purpose."

A document which initiates application proceedings is not "civil process" save for the purposes of Order 5 Rule 1.

That is the reason why, in terms of Rule 18 of the High Court Rules, leave to sue out process is sought by way of court application. lf a court application was “process" there would be the absurdity that one would then require the leave of court to institute the court application provided for in Rule 18 since the affected judge would have to be cited in that application. Rule 18 falls under Order 3 which deals with summons matters.

In Order 32, which deals with applications, there is no provision which is similar to Rule 18.

So, clearly, Rule 18 of the High Court Rules is not of general application to all proceedings irrespective of how they are instituted.

Further, the applications in casu were made in terms of section 85 of the Constitution 2013. There is no requirement for such leave to be granted in an application made in terms of that section.

Further and, in any event, the second to eighteenth respondents are cited in their official capacities. They have not filed opposing papers challenging their citation without leave.

ln any case, even if they had done so, and the court had found that such leave was required, the effect of that finding would not have been to nullify the entire proceedings.

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

Introduction

Background

“IT IS DECLARED THAT:

IT IS CONSEQUENTLY ORDERED THAT:

“IT IS DECLARED THAT:

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.

HHH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J

“Much ado about nothing.”; 'Storm in a tea cup.'

One cannot find a better phrase to aptly describe the comedy of errors displayed by the National Prosecuting Authority, and, in particular, its Acting Prosecutor General.

An important and serious case involving a high ranking Government and Constitutional appointee in the stead of the Prosecutor General, who is the head of the National Prosecuting Authority, albeit on suspension, was reduced to a huge fuss over a trifle.

Incidentally, William Shakespeare, the great English poet, play-writer, and actor was the author of both comedies 'Much Ado About Nothing' and 'Comedy of Errors.'

The trifle, of course, is the recusal of the judge, myself, from presiding over the accused's trial.

I do not, however, suggest that an application for recusal of a judge is trivia. It arises from the right to a fair hearing by an impartial and independent tribunal.

The trivia arises from the fact, that, it is a simple procedural application which does not go to the resolution of the merits of a case and ought not to derail or delay the due administration of justice.

Ordinarily, an application for recusal of a judicial officer from presiding over a matter placed before him is a routine procedure. Such applications seldom take the form of protracted argument as obtained in this case.

Usually, where parties are legally represented, counsel will discuss the concerns of the party who seeks to have the judicial officer recuse himself/herself beforehand. It should never be a hide and seek game. The party with concerns may, in the process of their discussion, disclose such matters unknown to the other party as would inform the other party of the reasons why he or she believes that a particular judicial officer should not handle the matter.

Normally, counsel will then make a courtesy call upon the judicial officer concerned and the party seeking the recusal will advise the judicial officer of the concerns of his or her client.

The judicial officer may, at that stage, find that the concerns raised ground good cause for recusal. In such a case, the judicial officer will simply agree to the recusal and cause the matter to be allocated to another judicial officer.

The issue, in other words, is dealt with administratively.

Where the judicial officer is not inclined to recuse himself or herself because there is, in his or her opinion, no just cause for the recusal, he or she will direct that formal application is made in open court upon the matter being called. The judicial officer will then make a determination on the application.

Applications for recusal of the judicial officer, where formal application is necessary, are, under the ordinary course of procedure, dealt with summarily.

The judicial officer will pronounce his or her recusal or refuse the motion at the end of argument so that proceedings are not delayed further over who should preside over them.

Regrettably, in this case, I had to reserve judgment because of the conduct of the National Prosecuting Authority and its Acting Prosecutor General; the latter being the culprit or spoiler who sought to throw a monkey wrench in the works, or, put simply, who conducted himself in a manner which was inimical, pernicious, or detrimental to the smooth conduct of proceedings in this matter.

The bungling by the Acting Prosecutor General and his seeming disdain or disrespect for the authority of the court, or myself, necessitated the need to cause a transcription of the proceedings to be prepared for posterity and reference.

Background

The accused person is facing six (6) counts of Criminal Abuse of Duty as a Public Officer as defined in section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In the alternative, he faces six (6) counts of defeating or obstructing the course of justice in contravention of section 184(1)(b) of the Criminal Law (Codification and Reform) Act.

On 16 November 2016, the accused person was indicted to the High Court for his trial by the Provincial Magistrate in terms of the relevant provisions of sections 65 and 66 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The indictment papers were prepared by or on behalf of the Acting Prosecutor General who signed them.

The Acting Prosecutor General was obliged, in terms of section 66(7) of the Criminal Procedure and Evidence Act to, and did, lodge copies of the indictment papers whose service he caused to be made upon the accused person.

Once indicted or committed to the High Court for trial, the case became deemed as pending trial before this court.

The trial date was fixed as 13 February 2017 by the Acting Prosecutor-General.

It is necessary, at this stage, to note, that, administratively, at the High Court Harare, the National Prosecuting Authority has three criminal trial court rooms allocated to it. There is also another court which exclusively deals with bail applications. There are also two Criminal Appeals Courts devoted to dealing with Criminal Appeals.

These six (6) courts are created for discharge of the prosecutorial mandate of the National Prosecuting Authority as set out in section 258 of the Constitution of Zimbabwe (2013) as read with section 12 of the National Prosecuting Authority Act [Chapter 7:20] and for disposing of bail applications and appeals.

My judgment, however, focuses on the criminal trial courts.

To state the obvious, the criminal trial courts are court A, B and D.

Administratively, the National Prosecuting Authority is the one which sets down its cases in the said courts.

The National Prosecuting Authority prepares the court roll or cause list each High Court term. The National Prosecuting Authority's set down office is based at and operates from its offices.

The question then arises: “How does a judge become seized with a criminal trial?”

The procedure is, that, the administrative head of the High Court, through divisional heads, simply assigns a judge to a particular court for a certain period. A duty roster is prepared and does not depend upon the cases set down by the National Prosecuting Authority in a particular court.

The duty roster is not a secret document, and the National Prosecuting Authority knows before the beginning of each court term as to which judge will be presiding in each of the criminal trial courts.

I have set out the above administrative process to show that the National Prosecuting Authority knew long before the trial date of the accused person that the judge who was presiding in Court A, in which the case was enrolled, was myself.

It was not as if a judge, myself, was specifically assigned by the court administration to deal with the case in casu.

It will therefore be apparent, when I deal with the merits of the recusal application, that, the Acting Prosecutor General must have known who the presiding judge in Court A, in the first term of 2017, was.

By not seeking the recusal of the judge from presiding over the case before the set down, it meant that the National Prosecuting Authority, and its Acting Prosecutor-General, did not have any qualms with the judge whose background and past connection with the National Prosecuting Authority, and the accused, were matters within their peculiar knowledge and largely public knowledge because the fact of the judge having been a past board member of the National Prosecuting Authority was public knowledge. The appointment to the Board was gazetted in the Government Gazette.

It should also be noted, that, the existence of the National Prosecuting Authority Board derives from section 259(10) of the Constitution as read with section 8 of the National Prosecuting Authority Act.

The judge, as is common cause, and, upon a reading of the National Prosecuting Authority Act, was a ministerial appointee who did not owe his appointment to the Prosecutor General or any member of the National Prosecuting Authority as listed in section 4 of the National Prosecuting Act.

The judge, therefore, did not owe any allegiance to the Prosecutor-General but to the National Prosecuting Authority and the State.

Admittedly, whilst the Prosecutor General was, and is, the Board Chairperson of the National Prosecuting Authority, he has no power to appoint or dismiss a Board member.

The relationship between the judge, as a Board member, has to be considered as professional where the duties of Non-Executive Board members are clearly spelt out in the Constitution and the National Prosecuting Authority Act.

In particular, in the exercise of its mandate, the Board would, and was, guided by section 260(1) of the Constitution which guarantees the independence of the Prosecutor General in exercising his or her functions.

Section 259(10) of the Constitution is clear, that, the function of the Board is to employ persons who will assist the Prosecutor General in discharging that office's sanctions.

Section 6 of the National Prosecuting Authority Act reinforces the independence of the Prosecutor General from being subject to the Board.

In short, the Board superintends the human capital side of the National Prosecuting Authority - except for the Prosecutor General.

The issue of the relationship between the Board and the Prosecutor General has to be ventilated, in summary, because, as will become apparent in this judgment, the Acting Prosecutor General raised it as a ground for recusal of the judge, noting that the judge had been a Board member of the National Prosecuting Authority with the accused as Chairperson in his capacity as Prosecutor General.

In other words, the Acting Prosecutor General's view was that the statutory professional relationship between the Prosecutor-General and the judge, as Board member, was good ground for the judge to recuse himself from presiding over the present case.

It is also important to note, at this stage, that, whilst the judge was appointed Board member of the National Prosecuting Authority in or about December 2014, the indictment against the accused person relates to the period 20 October 2009 to 3 June 2010, in respect of the first five (5) counts, and to 29 January 2016 in respect of the sixth or last count.

The judge was not a Board member during the periods mentioned in the indictment.

The National Prosecuting Authority Act was gazetted on 11 July 2014. The Board and National Prosecuting Authority was not in existence by June 2010.

The judge had long been appointed to the High Court bench, on 7 September 2015, by the time the allegations against the accused person of 29 November 2016, in count 6, occurred.

These considerations would have been relevant, and played in the mind of the judge in considering whether he saw or felt cause to unilaterally recuse himself from presiding over the case.

The facts alluded to above were within the knowledge of the National Prosecuting Authority, and, hopefully, its Acting Prosecutor General, before the accused's trial date.

Any other relationship which the judge may have had in interacting with the National Prosecuting Authority and its Prosecutor General, when the judge was still a practising legal practitioner, would have been known by that office.

The question which begs for an answer is: why the National Prosecuting Authority was content to have the judge sit in the matter and only make a turn round after the hearing of the case had commenced and certain orders and directives given.

Is it because the National Prosecuting Authority was expecting a pre-conceived result and became apprehensive that its expectations may flounder?

The timing of the application cannot escape speculation or conjecture as to whether or not it was well meaning and devoid of other extraneous considerations other than the pursuit of fair, just, impartial, and transparent justice deliverance.

Events of 13 February 2017

On the morning of 13 February 2017, the lead prosecutor, Mr Chingwinyiso, made a courtesy call in the judge's chambers with two of his assistant prosecutors and the accused's counsel, Mr Mukweva.

After introducing themselves, I asked the prosecuting team if they were ready to proceed and if the defence team was also ready to proceed.

I was advised that the defence had served the prosecution with an application in court that morning and that the prosecution had not been made aware, beforehand, of this application.

I directed that whatever application it was should be dealt with in court.

I was advised that the lead defence counsel, Advocate Thabani Mpofu, could not come to chambers as he was arranging to postpone another matter.

The rest of what then transpired thereafter is captured on record and the same has been transcribed.

It will be noted, that, I proceeded to court without any hint by the prosecuting team, whatsoever, that my presiding over the trial was an issue.

When the case was called, and after counsel introduced themselves, Mr Mukweva, for the accused person, formally advised the court that Advocate Thabani Mpofu, whom he had instructed to represent the accused person, was still tied up in another court in a civil matter.

The court allowed the defence a brief adjournment for defence counsel to find out the position with Advocate Mpofu on his availability. The court also asked Mr Mukweva whether the trial would be proceeding.

He indicated that the defence intended to make an application which had been prepared and served on the prosecution team in court. He submitted that the application had been served late because counsel prepared it late. Mr Mukweva indicated, that, the application would be made by Advocate Mpofu.

State counsel, Mr Chigwinyiso, raised his objections to how the defence had sought to serve the application in court. He indicated that the application could not be considered as having been served without a return of service in the form of the stamp of the National Prosecuting Authority to evidence that it had been received.

Mr Chigwinyiso sought a deferment of the case to the following day.

The court was not inclined to postpone the case before it was put in the picture of what exactly the application was about and before the issue of the availability of Advocate Mpofu was dealt with.

Before adjourning the case, the court asked counsel whether the application had been filed because there was no copy of the same on record.

Mr Mukweva indicated that he had just had the application issued by the Registrar and had brought all stamped copies to court.

I did not consider that this was proper because the Registrar should have retained the copies of the application for the record.

I directed Mr Mukweva to let the court have copies of the application and he handed, over the Bar, a photocopy of the application on which the name of the accused was inscribed in long hand in the name citation with the originally typed name cancelled on the first page headed: 'Application for Constitutional Relief'.

The next page was the accused's affidavit and there was no alteration to the citation of the parties names.

The next document was the draft order and the typed name “Martin Dinha” in the heading was cancelled and the cancellation initiated or signed for. The accused's name was substituted in long hand where the typed name 'Martin Dinha' had been cancelled.

The court adjourned the case to 11:15am to allow time for State and defence counsels to discuss the application and agree a way forward.

The adjournment of 30 minutes would also afford the court time to read through the application and for Advocate Mpofu to avail himself.

The court also advised counsel that it did not want to let the case be bogged down in “unnecessary technicalities.”

Defence counsel was also ordered to prepare sufficient copies of the application for the court.

When the court resumed, Advocate Mpofu apologized for his delayed attendance and for not timeously placing his intended application before the court and served the State timeously.

He also apologised for the mix up in the name of the accused on the cover of the application.

He handed, over the Bar, a corrected copy of the application.

The substance and content of the application was the same as the one handed over by Mr Mukweva prior to the adjournment.

Advocate Mpofu further submitted, that, the State and defence counsels had liaised over the application and agreed that it be made the following day at 11:30am with the State counsels having undertaken to file their response by 10:00am.

I directed Advocate Mpofu to place on record what the gist of the application was because the court needed to appraise witnesses, and other interested parties, who sat in the court room, of the reason for postponing the matter.

To simply state, that, the case was being postponed for purposes of making an undisclosed application as to its nature or purport would not have been sufficient or proper.

Advocate Mpofu then submitted, that, he would be making an application supported by the accused's affidavit to declare the prosecution of the accused void on account of certain provisions of the Constitution and for alternative relief that the prosecution be stayed pending determination of the constitutional process underway whereby His Excellency, the President of Zimbabwe had invoked the provisions of section 187 of the Constitution.

Section 187 of the Constitution aforesaid deals with the removal from office of judges and applies to the Prosecutor General.

In response, Mr Chigwinyiso introduced a fourth member of his prosecuting team, a Mr Timothy Makoni.

He acknowledged, that, the defence had filed an amended application but submitted, that, what was before the court were just papers because he could not agree that the State had been served with the application until such time that a copy of the application had been served at the offices of the National Prosecuting Authority and its date stamp franked thereon.

He submitted, that, once this formality had been followed, the prosecution would then be able to respond accordingly - possibly by 10:00am.

I asked Mr Chigwinyiso whether, in essence, he was submitting that the State needed time to consider the application.

Mr Chigwinyiso submitted, that, even if the prosecution and the court were in possession of the application, there was still no application until the same had been franked by the National Prosecuting Authority at their offices.

Herein started the comedy of errors, the much ado about nothing or storm in a tea cup.

I ruled that the court did not see any logic in his reasoning and insistence that the application could only be treated as being properly before the court if it was served on the offices of the National Prosecuting Authority and its magic date-stamp franked on it.

I ruled, perhaps to the chagrin of the prosecuting team, that, it had been served with the application and was expected to respond to it and that it would assist the court if a written response was similarly filed.

The court was not referred to any Rule in criminal procedure which requires that a written application objecting to an indictment being tried can only be deemed proper if it has been served at the offices of the National Prosecuting Authority and its stamp franked on the copy served upon the Authority.

Applications to quash an indictment, as was sought in the main by the accused, are made before the accused pleads.

The law, and, in any event, logic and common sense dictates that the State is given reasonable notice of such application.

Sections 170, 171, 178 and 179 of the Criminal Procedure and Evidence Act are instructive.

It just defies logic for the State counsel to admit, that, he has been handed a copy of a filed application but will not recognize it as such until a copy thereof has been served at his Head Office.

Such attitude was farcical.

Notwithstanding the attitude of the prosecutors, I asked whether, in view of the nature of the application, they were content with being given until 10:00am to file a response or they needed more time.

Mr Chigwinyiso then suggested that the State be given until 2:15pm the following day to file its response.

I then agreed to grant the indulgence to 2:15pm.

I then asked the Prosecution team whether there were any witnesses to be warned.

Witnesses Messrs Mabahwama, Uladi, Dube, Sergeant Shumba, Mutsonziwa, and Hove were called into court.

I explained the deliberations which had gone on, the late filing of the defence application, the need for the State to respond in writing thereto, the nature of the application, and the agreement by the State and defence counsel to defer the hearing to the next day.

I confirmed with Mr Chigwinyiso that he could advise the witnesses to avail themselves at short notice.

It was agreed that the witness be discharged from attendance until called, after the determination of the application.

As regards the accused person, the record will indicate that I then said:

“Stand up P.G. I am postponing this case, by consent, to 2:15 tomorrow and you are ordered to appear at that time. Thank you all.”

In referring to the accused person as PG (Prosecutor General) I did not realize, nor anticipate, as I was later to discover, that, I had annoyed or irritated the Acting Prosecutor General to whom the reference was reported.

The developments which followed can only be described, as I have indicated, as a big fuss over a trifle.

The Acting Prosecutor General, perhaps determined to guard his territory of power, decided that the judge, myself, should recuse myself from the case.

It is very important to point out, that, recusals of a judicial officer are an everyday occurrence and occur as part of the judicial function.

But, how did the prosecution go about it?

Events of 14 February 2017

In the morning of 14 February 2017, my administrative head, the Judge President, called me to his chambers.

He handed me a copy of a letter addressed to him by the Acting Prosecutor General. It was copied to the Registrar and to the accused's legal practitioners.

The Judge President advised, that, he was passing on the letter to me because, as the presiding judge, I had to singularly decide on the issues raised and that his passing over the letter to me was all that he considered proper to do.

For the avoidance of doubt, the contents of the letter was as follows (and it is reproduced here because it was not a confidential communication as will be apparent):

“Monday, 13 February 2017

The accused was indicted for trial commencing on 13 February 2017. Prosecution counsel and the accused's instructing legal practitioners appeared in chambers before the learned Justice T H Chitapi, the judge assigned the matter, for a courtesy, and to inform him as to the readiness of the parties to proceed.

The learned judge was informed that the State was ready to proceed and had its witnesses present to testify but had not been furnished with the accused's Defence Outline despite the fact that the accused was indeed already for trial on 16 November 2016.

The accused's instructing legal practitioner informed the learned judge that no Defence Outline had been prepared but the defence intended to make an application and was awaiting the arrival of instructed counsel, Mr Thabani Mpofu.

The judge adjourned the matter to 11:15 hours.

Shortly before the matter was called in court, the defence produced a document which 'purported' to be an application.

'Purported' because the document does not in the least comply with the rules of court regarding form, substance, and manner of service of court applications.

Furthermore, the face of the so called 'Application for Constitutional Relief” shows that it was a page prepared for a certain Martin Dinha.

The said Dinha's particulars are scratched out in pen and substituted with Johannes Tomana.

Attached to it is an affidavit of the accused and a purported draft order also drawn presumably from an application filed in respect of the said Marin Dinha whose particulars are scratched out and the accused's particulars handwritten in.

After hearing submissions, the court ordered the State to file a written response to the application by 11:45 on 14 February 2017.

During the proceedings, captured on tape, the learned judge repeatedly referred to the accused as 'Prosecutor General.'

I am of opinion that the learned judge has improperly conducted himself and the proceedings.

First of all, Mr Tomana was suspended by H.E. The President of the Republic of Zimbabwe, Cde Robert Gabriel Mugabe on 7 July 2016. Simultaneously, the President appointed and swore in Advocate Ray H Goba as Acting Prosecutor General.

It follows that Mr Tomana, the accused, is not in office and accordingly not 'the Prosecutor General.' In other words, the office/position is occupied by Adv Ray H Goba.

Accordingly, any reference to the accused as Prosecutor General is grossly improper and fails to distinguish between the person and the Constitutional office.

The learned judge's conduct may reasonably be perceived as improper deference to the accused likely to taint his judgment in dealing with the matter.

It is common knowledge that the learned judge previously served on the Board of the National Prosecuting Authority under the chairmanship of the accused before his appointment to the bench.

This may help explain the learned judge's conduct during the hearing; the improper deference to the accused; and improper indulgencies granted to him.

For these reasons, I fear that the proper administration of justice is likely to be prejudiced if Justice Chitapi is to continue presiding over the matter. The public's perception of justice is likely to be diminished in regard this prosecution.

I accordingly, and with the greatest respect to the learned judge, submit that he is singularly unqualified to preside over this matter.

I would wish my concerns to be brought confidentially to his attention in order for him to apply his mind to the matter, to make an appropriate decision, and avoid a formal application in court.

The Honourable Judge President…,.

Advocate Ray H. Goba, Acting Prosecutor General.”...,.

The Acting Prosecutor General was of the view, that, his position was being undermined by the reference to the accused person as Prosecutor General.

He felt that the correct reference should have been to refer to the accused person by the word “Accused”.

The Acting Prosecutor General reasoned, in the letter, that, the person on trial “Mr Tomana” was on suspension and therefore not in office. He considered that it was improper to refer to the accused person as “Prosecutor General.”

It is not necessary to waste time debating such a flimsy and legally unsound argument.

The accused person on trial was the Prosecutor General of Zimbabwe, albeit, on suspension pending the conclusion of a Constitutional process instituted by the State President, as appointing authority, to determine whether the Prosecutor-General should be removed from office.

The process of the removal from office of the Prosecutor General, during his or her tenure of office, follows the same procedure as that of the removal of judges from office. This is provided for in section 259(7) as read with section 187 of the Constitution.

Until his removal from office, the accused person remained the Prosecutor General, and, any reference to him as such was therefore proper.

A judge on suspension, and on trial, for example, remains a judge until removed from office.

To refer to a person on trial by name or official designation should, in fact, be adopted by the courts.

As a passing comment, I have always referred to persons appearing before me by their names and titles - be they accused persons or witnesses. Persons appearing in court should feel at home because the courts are created for the people.

In terms of section 162 of the Constitution, judicial authority derives from the people of Zimbabwe.

There is no justification to demean the person on trial by referring to such person as 'Accused' as opposed to by his name.

Anyone who has sat in a court that I preside will know that I refer to persons, be they on trial, witnesses, or counsel by their names and/or titles as a show of respect.

Calling persons by their names, in court, should not be an issue which impacts negatively on justice dispensation.

William Shakespeare in his works, Romeo & Juliet, wrote:

“Whats in a name? That which we call a rose by any other name would smell as sweet.”

The Acting Prosecutor General was of the view, that, referring to the accused on trial by his official title showed deference to him and that such reference had the potential to cloud the judge's impartiality.

He reasoned, that, because he was appointed and sworn by the President, as Acting Prosecutor General, addressing the accused person as Prosecutor General was “grossly improper and failed to distinguish between the person and the Constitutional office.”

I have already indicated, that, the accused person, who was appearing before the court, was the appointed Prosecutor General - albeit on suspension.

How a reference to him by his proper designation could be said to be “grossly improper” is baseless in law, logic, and common sense....,.

The Acting Prosecutor General, in his founding affidavit, repeated the same objection made in his letter, that, the judge improperly referred to the accused person as “Prosecutor General”.

He went a step further to indicate, that, the judge had used the word “Honourable” Prosecutor General.

In his view, the correct reference should have been to simply refer to the accused person as “ACCUSED”.

He reasoned, that, the title, Prosecutor General, could only be “legally” resumed or used to describe the accused person once his suspension has been removed.

I have already dealt with the argument and ruled, that, since the accused person had only been suspended from carrying out his duties, such suspension did not suspend his appointment but the discharge of his duties.

Simply put, it would be correct for a bystander to remark that: “The Prosecutor General of Zimbabwe is on suspension and that an Acting Prosecutor General was appointed to discharge the duties of the Prosecutor General until the latter's fate has been decided.”

How the Acting Prosecutor General reasoned, that, there was a breach of court etiquette by calling the accused person by the title of his office defies logic.

This case concerns the Prosecutor General who was indicted for trial after being charged for criminal transgressions. The prosecuting team knew that it was leading the prosecution of the Prosecutor-General.

To reason, that, the team felt compromised and placed in an invidious position by the use of the words 'Prosecutor General' in reference to the accused person, is to raise a bluff or ruse - if not a red herring....,.

Perhaps, the Acting Prosecutor General felt that the reference aforesaid undermined his authority.

If that be so, that was his subjective opinion which would not affect the objective perception of the facts.

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SC200-97 : MUWENGA vs PTC
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SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

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CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
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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

HHH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J

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Law Portal Zimbabwe

Employment Contract re: Transfer or Secondment of Employees iro Acting Role, Interim Contractual Lacuna & Quantum Meruit

SC200-97 : MUWENGA vs PTC Ruled By: GUBBAY CJ, KORSAH JA and MUCECHETERE JA

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

View Appeal SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

SC12-21 : TOBACCO PROCESSORS ZIMBABWE (PRIVATE) LIMITED vs TONGOONA MUTASA and OTHERS Ruled By: MAVANGIRA JA, MAKONI JA and CHATUKUTA AJA

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

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

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

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

HHH531-17 : STATE vs JOHANNES TOMANA Ruled By: CHITAPI J

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Law Portal
Zimbabwe

SC200-97 : MUWENGA vs PTC
Ruled By: GUBBAY CJ, KORSAH JA and MUCECHETERE JA

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

View Appeal
SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

SC12-21 : TOBACCO PROCESSORS ZIMBABWE (PRIVATE) LIMITED vs TONGOONA MUTASA and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and CHATUKUTA AJA

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

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

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

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

HHH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J