Section 251(1) of the Constitution of Zimbabwe says:“For a period of ten years after the effective date, there is a commission to be known as the National Peace and Reconciliation Commission consisting of –”The rest is not immediately relevant.The applicant is a Member of Parliament for the House of Assembly ...
Section 251(1) of the Constitution of Zimbabwe says:
“For a period of ten years after the effective date, there is a commission to be known as the National Peace and Reconciliation Commission consisting of –”
The rest is not immediately relevant.
The applicant is a Member of Parliament for the House of Assembly on the ticket of the Movement for Democratic Change–Alliance party (MDC-A), the largest opposition political party in Zimbabwe by number of followers - at least from the results of the last general election on 30 July 2018. She wants the court to pronounce that the intention of the framers of the Constitution, as expressed in section 251(1) above, was that the life of the National Peace and Reconciliation Commission (“the NPRC” or simply “the Commission”) once established “…, after the effective date…,” would be, at the very least, ten years. Otherwise, she says, there is nothing in that section limiting the existence of the Commission to just ten years.
For her cause, the applicant has brought to court the top echelons of the Executive arm of the Government of Zimbabwe comprising the President; his Vice, to whom the administration of the National Peace and Reconciliation Commission (Commission) is assigned; the Minister of Justice, who, among other roles, doubles up as leader of Government business in Parliament; and the Attorney General of Zimbabwe, who, among other things, is the chief legal adviser.
It being the subject of the suit, the National Peace and Reconciliation Commission (NPRC) is also a party.
At first brush, there can be nothing awkward or problematic with what section 251(1) of the Constitution is saying. The provision is recognizing that there is an effective date, for this is clearly defined in section 332 of the Constitution. It is naming a certain Commission that should be there for a fixed period after the effective date. It names that Commission as being the National Peace and Reconciliation Commission (NPRC). It defines that period as ten years. In other words, and looking at it superficially, the National Peace and Reconciliation Commission (Commission) exists for ten years after the effective date.
But, apparently the position is not altogether that obvious.
To begin with, the section does not expressly tell when exactly the National Peace and Reconciliation Commission (Commission) is established. It starts by simply recognising it as a fait accompli, a thing that has already happened after the effective date. The hidden problem comes out more in the open when one considers the exact nature of the relief sought by the applicant. According to her draft order:
“1. The National Peace and Reconciliation Commission, established in terms of section 251 of the Constitution, shall have tenure of life of ten years which are deemed to have commenced on the 5th of January 2018 when the National Peace and Reconciliation Act became law.
2. It is declared that the ten year life and tenure of the National Peace and Reconciliation Commission shall deem to run from the 5th of January 2018.
3. The 1st Respondent pays costs of suit.”
Thus, to the applicant, the ten year period should be counted from 5 January 2018.
That should be deemed the effective date because, she says, that is when the operation of the National Peace and Reconciliation Commission (Commission) became effective, when the enabling legislation, the National Peace and Reconciliation Act [Chapter 10:32] (“the enabling Act”) was gazetted. That is when, according to her, the Commission became operational, when, among other things, the commissioners were sworn in; the secretariat appointed; the funding for the Commission's operations provided for; the manner of its operations spelt out; and so on.
The respondents have opposed the application on one single ground that they have stuck to from beginning to end.
At the beginning, they took the point as a preliminary objection, or point in limine, and filed no further defence on the merits. According to them, the National Peace and Reconciliation Commission (Commission) automatically ceases to exist ten years after the effective date.
Section 332 of the Constitution defines “effective date” as the date when the Constitution came wholly into operation as contemplated by section 3(2) of the Sixth Schedule to the Constitution.
In terms of section 3(2) of this Schedule, the rest of the Constitution came wholly into operation on the day on which the President elected in the first election (after the promulgation of the Constitution) assumed office. The former President, Mr Robert Gabriel Mugabe, assumed office after that election in August 2013.
On all this, the parties are ad idem, save for a minor discrepancy on the exact date former President Mugabe assumed office in August 2013: the applicant saying 18 August, and the respondents saying 22 August.
In fact, it was 22 August.
The respondents argument is that the court cannot do what the applicant wants it to do. What the applicant wants done is to have the court declare that the effective date referred to by section 251(1) of the Constitution is 5 January 2018, and that therefore the National Peace and Reconciliation Commission (Commission) lasts until 4 January 2028.
The respondents say that that will amount to the court amending the Constitution “by the back door”. It is unheard of. Only Parliament, not the court, gets to amend the Constitution in terms of the procedure set out in section 328 of the Constitution.
In the answering affidavit, the applicant denounces the respondents conduct of just raising the point in limine and refraining from pleading to the merits altogether. To her that is arrogance.
I was persuaded.
The point in limine was the entire case before me. I considered that it was bogus.
By avoiding the merits altogether, the respondents were in effect pleading in instalments.
In terms of Rule 232 and Rule 233 of the High Court Rules, the respondents have ten days, from the date an application is served upon them, to file their notice of opposition together with one or more opposition affidavits. They are barred if they fail to comply.
So I took the respondents to task on why they had pleaded that way.
Counsel for the respondents argued, that, pleading in the manner the respondents had done was permissible. He referred to a case, the name and citation of which he said he could not remember. He said the respondents in that case had pleaded in exactly the same way the respondents herein had done, avoiding the merits altogether and only taking a point in limine which they argued all the way on appeal to the Supreme Court - and succeeding for that matter.
I deprecated the respondents conduct.
The objection to pleading in instalments had been raised as early as the applicant's answering affidavit. The respondents had not replied. On his part, counsel for the respondents seemed ill-prepared. He was relying on an indeterminate case authority.
The matter had to be postponed.
I dismissed the respondents preliminary objection on the ground that the issue they were raising was in fact the substance of the whole case before me.
The applicant was not asking the court to amend the Constitution. She was asking the court to interpret section 251(1) of the Constitution. Courts do this all the time. From time to time they are called upon to interpret pieces of legislation which someone may consider vague, meaningless, or the like.
In casu, the applicant was asking for nothing unusual.
So, to mark my displeasure for the way the respondents had pleaded, I ordered them to pay the wasted costs on an attorney and client scale. I gave them leave to file their notice of opposition in terms of the time frame counsel had mutually agreed upon.
Pleading 'in instalments' as it were, that is, only taking a preliminary objection or point in limine and refraining from pleading to the merits unless the objection is dismissed, is not provided for in the Rules of Court.
The Rules of Court contemplate a situation where the respondents have one bite of the cherry. They plead all their defences and technical objections within the prescribed ten days. Only in exceptional circumstances may they do what the respondents in casu have done.
In the case of Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (S), in which exactly the same situation happened, GUBBAY CJ said…,:
“It is true that such cases as Bader & Anor v Weston & Anor 1967 (1) SA 134 (C) at 136E–G; Governing Body of the Winterberg Agricultural High School v President of the Eastern Cape & Ors [1996] 3 All SA 71E at 77E–I; and Valentino Globe BV v Phillips & Anor 1998 (3) SA 775 (SCA) at 779I–780B, lay down, as a general rule of procedure, that a respondent who wishes to raise a preliminary issue against an application should file an affidavit on the merits of the matter within the normal time limits prescribed by the rules of court.
In other words, a respondent is at risk in relying solely upon a preliminary point.
But, the rule is not rigid or inflexible: see Standard Bank of South Africa Ltd v RTS Technique and Planning (Pty) Ltd & Ors 1992 (1) SA 432 (T) at 442A–E.
Situations may arise where the procedure of merely taking a preliminary point is unexceptionable. To my mind, the present is just such a situation”…,.
It turned out, that, the case authority counsel for the respondents had wanted to rely on was that of The President of Zimbabwe, Robert Gabriel Mugabe & Ors v Tsvangirai SC21-17.
He was right to say, that, in that case, the respondents only took a preliminary objection and refrained from dealing with the merits.
In the High Court, the preliminary point was dismissed. The respondents were given leave to file their response on the merits. However, they appealed to the Supreme Court against the dismissal of their point in limine. The appeal succeeded. The preliminary objection was upheld.
However, the Supreme Court did not deal with the question whether or not the respondents had been right to simply take a technical objection and leave the merits for another day. Even the High Court had not dealt with the point either, only noting, in passing, that the respondents had yet to file their papers on the merits…,.
Therefore, the correct position, on whether a respondent can take a preliminary objection and refrain from dealing with the merits until the preliminary point has been determined is as set out…,above.
In casu, there was nothing “unexceptionable” in the preliminary point that the respondents were raising. Raising it to block the consideration of the case on the merits was vexatious.
Every case depends on its own facts.
In the present case, it was very clear that all that was sought by the applicant was a judicial pronouncement of the meaning of section 251(1) of the Constitution in relation to the tenure of the National Peace and Reconciliation Commission (NPRC).
In reality, what the respondents sought to do by mounting the preliminary objection in the form they did was to impugn the consequences of the court's pronouncement, if it were to agree with the applicant, rather than its inherent power to interpret legislative provisions.
Viewed from this angle the objection became even more absurd.
As SACHS J, of the South African Constitutional Court, would put it, in S v Mhlungu & Ors 1995 (3) SA 867 (CC):
“The rights and values promoted by a Constitution are fundamental to the judges role as defenders of the Constitution. They link up directly with the oath the judges take, which is to uphold and protect the Constitution and the fundamental rights entrenched therein.”
“Only the most compelling language would justify a departure from such a clear responsibility:” at p912.
The respondents eventually filed their affidavit on the merits.
