The court did not hear argument on the merits of this
application, but determined it on
the preliminary point of whether or not the matter had been properly brought
before the Constitutional Court. At
the end of the hearing the court issued the following order:-
“The application be and is hereby dismissed with costs on
the legal practitioner and client scale.”
It indicated that the full reasons for this order would
follow in due course.
These are they.
At the hearing of this matter, counsel for the applicant…,
was asked to address the court on the basis upon which the matter had been
brought before the court in view of the following;
(i) According to its Notice, the application was brought
directly to this court, purportedly in terms of section 167(1) and 176 of the
Constitution and not section 85(1) or other constitutional provisions that
provide for such direct approach;
(ii) It was neither an appeal against the judgment of the
Supreme Court, nor was it referred by that court in terms of section 175(4) of the constitution; and
(iii) The matters that he wished the court to determine
were neither raised before, nor determined by the Supreme Court, as
constitutional issues.
In short, the court wished to hear from the applicant
whether he had established a basis for approaching the Constitutional Court
with the application in question.
Counsel for the applicant conceded all the three points
raised by the court. He further conceded that the papers before the Supreme
Court did not properly challenge the constitutionality of sections 13 and 16 of
the Criminal Procedure and Evidence Act [Chapter 9:01]. Doing so would have
entitled the applicant to either appeal to this Court, if the Supreme Court had
ruled against him, or seek a referral of the matter to this Court in terms of setion
175(4)) of the Constitution. He also conceded that, consequently, the
application had “no leg to stand on,” as it were….,.
Despite not having filed any heads of argument, Mr Uriri,
the amicus curiae, was allowed to briefly address the court.
He emphasised the need for parties wishing to apply
directly to the Constitutional Court, to do so only upon establishing a proper
basis for such an approach. This would insulate the court against a potential
flood of undeserving cases at the instance of parties who may be disgruntled at
decisions of lower courts, including the Supreme Court.
Even though this matter was not heard on the merits, I
consider it necessary nevertheless to set out the backdrop to the order that
the court issued. This necessitates a cursory look at some of the papers
presented before the court.
The applicant aptly summarised the background to this
application as follows in its heads of argument;
“1. On 28 January 2014, the Supreme Court handed down its
judgment in the matter of Telecel Zimbabwe (Pvt) Ltd v Attorney General SC01-14.
The judgment directed and ordered the Attorney General (as he then was) to
issue a certificate Nolle Prosequi to Telecel Zimbabwe (Pvt) Ltd. Dissatisfied
with the judgment, the applicant approached the Constitutional Court for an
order setting aside the Supreme Court judgment on the basis that same (sic)
interferes with the independence of his office and as such it is ultra vires
provisions of s 260 of the Constitution of Zimbabwe.”
Section 260 of the Constitution provides as follows:-
“260 Independence of
Prosecutor General
(1) Subject to this Constitution, the Prosecutor General -
(a) Is independent and is not subject to the direction or
control of anyone; and
(b) Must exercise his or her functions impartially and
without fear, favour, prejudice or bias.
(2) The Prosecutor-General must formulate and publicly
disclose the general principles by which he or she decides whether and how to
institute criminal proceedings.”
The order of the Supreme Court that the applicant sought to
impugn was to the following effect:
“1. The decision by the respondent (applicant in casu) to
refuse to grant a certificate nolle prosequi to the applicant be and is hereby
set aside.
2. The respondent is directed and ordered, within 5 days of
the date of this order, to issue a certificate to the applicant (respondent)
that he declines to prosecute the fraud charge at the public instance.
3. The respondent shall pay the costs of this application.”
The applicant explained the nature of the application in
paragraph 3 of his founding affidavit:-
“3. This is an application calculated at upholding the
independence of my office as guaranteed by s 260 of the Constitution of
Zimbabwe. This Honourable Court is implored to exercise its inherent
jurisdiction and powers in terms of s 167(1) and 176 of the Constitution and
declare as follows:-…,.”
The declaratory orders that he wished to seek before this
Court are outlined in his draft order and included the following:
“Whereupon, after reading documents filed of record and
hearing counsel, it is hereby ordered as follows:-
(1)…,.
(2)…,.
(3)…,.
(4) The order of the Supreme Court in the matter between
Telecel Zimbabwe (Private) Limited v Attorney-General No. SC01-14 be and is
hereby set aside.”
For the reasons outlined below, the court found that
counsel for the applicant properly made the concessions referred to.
1. Direct approach to
the Constitutional Court
The applicant sought to bring this application before the
Court, in terms of section 167(1(a) as read with section 176 of the
constitution. A closer look at these two provisions suggests that he could not
have properly done so.
Section 167(1) provides as follows:-
“167 Jurisdiction of
Constitutional Court
(1) The Constitutional Court -
(a) Is the highest court in all constitutional matters and
its decisions on those matters bind all other courts.
(b) Decides only constitutional matters and issues
connected with decisions on constitutional matters, in particular, references
and applications under s 131(8)(b) and paragraph 9(2) of the Fifth Schedule;
and
(c) Makes the final decision whether a matter is a
constitutional matter or whether an issue is connected with a decision on a
constitutional matter.”
Section 176 provides as follows:-
“176 Inherent powers of Constitutional Court, Supreme Court and High
Court
The Constitutional Court, the Supreme Court and the High
Court have inherent power to protect and regulate their own process and to
develop the common law or the customary law, taking into account the interests
of justice and the provisions of this Constitution.”…,.
As is evident from a reading of section 167(1), all that it
does is state that the Constitutional Court is the highest (and final) court in
all constitutional matters, and that it decides such matters only.
“All constitutional matters,” in my view, refers to matters
properly brought before this Court in accordance with the Constitution.
Except for the specific instances stipulated in section 167(1)(b)
and section 167(2)(b,(c) and (d), section 167 does not elaborate as to who, on
what conditions, or how, a party may approach the court for it to exercise the
jurisdiction conferred upon it by that provision. These details are to be found
in other provisions of the Constitution. Thus, section 167(1), apart from the
paragraphs mentioned, does not confer on anyone the right to approach the
Constitutional Court directly, even if they have, or perceive themselves to
have, a constitutional matter needing the court's determination.
In order to give full effect to section 167(1), in relation
to any constitutional matter sought to be brought before the court, the
provision must be read in conjunction with the various provisions that do
confer a right to approach the Constitutional Court directly or indirectly
through another process.
Section 176…, is not one of such provisions.
Thus, the applicant's attempt to file this application in
terms of this section is based on a mis-apprehension of the meaning and effect
of section 167(1).
Direct applications to the Constitutional Court are to be
made only in terms of the provisions referred to above, as well as in
terms of and as provided for in section 85(1). The specialised nature of the
applications referred to in section 167(1)(b) and section 167(2)(b,(c) and
(d), however, makes these provisions irrelevant to this case.
Therefore, the only way the applicant could have validly
brought an application directly to this court would have been in terms of section
85(1).
As conceded by his counsel, the applicant did not do so,
but sought to rely on the two provisions mentioned.
Section 85 is entitled “Enforcement of fundamental human rights and freedoms” and stipulates as follows in
its subsection (1);
“85(1) Any of the following persons, namely -
(a) Any person acting in their own interests;
(b) Any person acting on behalf of another person who
cannot act for themselves;
(c) Any person acting as a member, or in the interests, of
a group or class of persons;
(d) Any person acting in the public interest;
(e) Any association acting in the interests of its members;
is entitled to approach a court, alleging that a
fundamental right or freedom enshrined in this Chapter has been, is being or is
likely to be infringed, and the court may grant appropriate relief,
including a declaration of rights and an award of compensation.”…,.
What is clearly evident from this provision is that the
relief sought and to be granted by the court in terms of this section must
relate to fundamental rights and freedoms enshrined in the relevant Chapter -
and nothing else. Such relief may include a declaration of the rights said to
have been or about to be violated. The
applicant did not allege that the right he alleges was violated by the Supreme
Court was an enshrined fundamental right.
The applicant also sought to rely on section 176 of the Constitution
in an attempt to bring the application within the jurisdictional parameters of
the Constitutional Court. His position seems to be that the inherent power
conferred on the court by this section should have been invoked in his favour,
and specifically to allow his application to be brought directly to this Court.
This Court, being a creature of statute, can only operate
within the confines of its Constitutional mandate.
It is evident that section 176 confers inherent powers on
the court to do the various acts listed therein. However, what the section does
not do is vest the court with the power to arrogate to itself jurisdictional
authority that reaches outside and beyond the limits imposed in the
Constitution. In other words, the court, in the exercise of the powers
conferred on it in this section, is restricted to the ambit of its constitutionally
mandated jurisdiction. The words “taking
into account the provisions of this Constitution,” in my view, put this fact beyond any doubt. This
is thus not a section that can be read together with section 167(1)(a) in order
to avail to litigants the right of direct access to the Constitutional Court.
The applicant's papers, therefore, did not demonstrate a
constitutional basis for the direct approach that he sought to adopt in
bringing the application before this court. To that extent, the concession made
for him that the application 'had no leg to stand on' was validly made.
Neither a referral nor
an appeal
In relation to the referral to this court that the
applicant concedes was not requested from the court a quo, the relevant provision
is section 175 which deals with the powers of courts in Constitutional matters.
It specifically provides, in section 175(4), that;
“If a Constitutional matter arises in any proceedings
before a court, the person presiding over that court may, and if so requested
by any party to the proceedings, must refer the matter to the Constitutional
Court unless he or she considers the request merely frivolous or vexatious.”
Because no constitutional matter was raised in the Supreme
Court, and none was referred, this provision is not relevant to the matter at
hand.
With regard to an appeal, the applicant correctly conceded
that, on the face of it, the issues that he sought this Court to determine were
also not brought before it as an appeal against the decision of the Supreme
Court. However, because he sought to impugn a decision of that court, it is
pertinent to quote section 169 of the Constitution, which reads as follows:-
“169 Jurisdiction of
Supreme Court
(1) The Supreme Court is the final court of appeal for
Zimbabwe, except in matters over which the Constitutional Court has
jurisdiction.”…,.
My reading of section 169(1) suggests that while the
Supreme Court can make a decision on a constitutional matter, such decision is
not final, since only the Constitutional Court can make a final decision on
that matter in terms of section 167(1)(a.
In other words, an appeal lies to the Constitutional Court
against an order of the Supreme Court only on a constitutional matter
determined by it.
Another type of appeal to the Constitutional Court could be
one in terms of section 175(3).
This is a position that this Court confirmed in its recent
decision in the case of Don Nyamande & Anor v Zuva Petroleum CC08-15. ZIYAMBI CCJ stated as follows;
“In my view, such a right (of appeal) may be read into s
175(3) of the Constitution which applies where an order of constitutional
invalidity of any law has been made by a court. Failing that, a right of appeal
could only arise where the Supreme Court makes a decision on a constitutional
matter.
Since no constitutional case was determined by the Supreme
Court, no appeal can lie against its decision.”
In that case, the applicants, who had not raised a
constitutional issue before the Supreme Court, sought leave to appeal against
its decision, purportedly (and erroneously) in terms of section 167(5) of the Constitution.
The application was dismissed with the court correctly holding as follows:-
“Section 167(5) relates to rules of procedure regulating
the manner of approach to this Court on appeal from lower courts. It does
not confer a right to appeal to the Constitutional Court on a litigant who has
no right of appeal.”…,.
The court thus effectively affirmed the finality of the
Supreme Court judgment on a matter that was not determined by that court as a
constitutional issue. By that token, the matter was not one that fell into the
category of those over which the Constitutional Court had jurisdiction. As
already stated, these are matters that are properly brought to the
Constitutional Court.
I find the dicta cited above to be eminently apposite in
casu.
This is because while the applicant did not specifically
state so in his application, in reality, the matter was an appeal brought to
this Court under the guise of an application. This is abundantly evident from
the relief that is outlined in his draft order. It is even more evident from
his summary of the background to the intended application, as already
indicated. He indicated that he wished to approach this Court;
“For an order setting aside the Supreme Court judgment on
the basis that it interferes with the independence of his office and, as
such, it is ultra vires provisions of s 260 of the Constitution of Zimbabwe…,.”
Like in the case referred to above, the issue that I have
underlined, and others that the applicant sought to bring before this Court,
similarly 'arose' after the Supreme Court judgment was pronounced. They could
not have been, and, in fact, were not, raised before the Supreme Court and
needless to say, not determined by it as constitutional matters. The issues
therefore did not meet the requirement for inclusion into “matters over which
the Constitutional Court has jurisdiction.”
On the basis of the authority cited above, and upon a
proper interpretation of the relevant provisions alluded to in this context,
the judgment of the Supreme Court on these matters, which the applicant sought
to have reversed, was final and definitive. It is a decision that may not be
interfered with by this Court.
Thus, in as much as the application failed to meet the test
for a direct approach to this Court, it meets the same fate in relation to any
notion (expressed or implied) of an appeal against the decision of the Supreme
Court….,.
It was for the reasons outlined in this judgment
that the Court dismissed the application with costs on the legal practitioner
and client scale.
