The applicant is a Member of Parliament representing the Mutare Central Constituency. He filed this application, essentially, in terms of section 167(2)(d) of the Constitution of Zimbabwe, 2013 (hereafter 'the Constitution') albeit with passing references to section 85 of the Constitution. In fact, in his answering affidavit, the applicant made it abundantly clear that the application was indeed solely in terms of section 167(2)(d) of the Constitution.
Thus, any references to section 85 of the Constitution shall be taken merely as means to bolster the principal cause of action, and not as a separate cause of action.
Initially, the applicant sought an order in the terms set out below:
“IT IS HEREBY DECLARED THAT:
1. The passage of Constitutional Amendment Bill (No.1) of 2017 in Parliament on the 4th of May 2021 be and is hereby set aside on the basis that the bill had lapsed in July of 2018 and therefore its passage was in breach of section 147 of the Constitution of Zimbabwe:
Therefore:
(i) The actions of Parliament, in passing Constitutional Amendment Bill No.1 of 2017, are in breach of the provisions of section 147 of the Constitution of Zimbabwe.
(ii) The actions of the President of the Republic of Zimbabwe, in assenting to Constitutional Amendment Bill No.1, are in breach of section 147 of the Constitution of Zimbabwe.
(iii) Constitutional Amendment No.1 Act of 2017, gazetted on the 7th of September 2017, be and is hereby set aside.
2. That, the judgment of the Constitutional Court, in the case of Innocent Gonese & Jessie Majome v The Speaker of Parliament & Others CC04-20, directing that part of the disposition of the Constitutional Court directing Senate passes Constitutional Amendment Bill No.1, within 180 days from the declaration of invalidity, be and is hereby declared to be a nullity in breach of section 147 of the Constitution of Zimbabwe.
3. 2nd Respondent must pay cost (sic) of suit.”
I have deliberately used the word “initially” for reasons that will shortly become apparent.
FACTUAL BACKGROUND
The application relates to the enactment of Constitution of Zimbabwe Amendment (No.1) Act 2017. The relevant facts are all common cause:
On 25 July 2017, the National Assembly passed Constitutional Amendment (No.1) Bill 2017. Thereafter, on 1 August 2017, the Senate purported to pass the same Bill. On 7 September 2017, the President assented to the Bill. The Bill was published in the Government Gazette, promulgated as law, and thereafter became known as Constitution of Zimbabwe Amendment (No.1) Act, 2017.
It is crucial to note, that, a few days prior to the President's assent, the applicant, and a fellow Member of Parliament, had filed an application, under case number CCZ57/17, in terms of section 167(2)(d) of the Constitution, alleging that the second respondent had failed to fulfil a constitutional obligation.
Subsequent to the promulgation of Constitution of Zimbabwe Amendment (No.1) Act 2017, the applicant, together with his fellow Member of Parliament aforesaid, filed another constitutional application, under case number CCZ58/17, on 13 September 2017. They alleged that the second respondent had failed to fulfil a constitutional obligation by its passing of a constitutional bill in the absence of a two-thirds majority as required by section 328 of the Constitution.
The applications under CCZ57/17 and CCZ58/17 were consolidated and heard on 31 January 2018. After hearing the parties submissions in respect of those applications, this Court reserved its judgment.
Pending the delivery of the judgment, the country underwent harmonised general elections on 30 July 2018. Thus, Parliament stood dissolved at midnight on 29 July 2018, the day before the first polling day of the general election in terms of section 143 of the Constitution.
On 31 March 2020, this Court passed judgment in respect of the applications under CCZ57/17 and CCZ58/17. That is, the judgment of Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 (hereafter referred to as 'CC04-20').
The operative part of that judgment reads as follows:
“1. It is declared that the passing of Constitutional Amendment Bill (No.1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of section 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House. Constitutional Amendment Bill (No.1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).
Accordingly, the following order is made –
(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside for the reason that a two-thirds majority vote was not reached in that House.
(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017 in paragraph (1) shall become final.
2. The applicants allegation, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.
3. The applicants allegation, that a two-thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.
4. There is no order as to costs.”
For reasons that are not pertinent to the present application, the Senate failed to conduct another vote within the period that was set out in paragraph 1(b) of the judgment under CC04-20.
As a result, the first and second respondents, and the Speaker of the National Assembly, implored this Court, by application, to extend the period that had been set out for conducting a second vote under case number CCZ11/20. The application was heard on 10 November 2020 and judgment was reserved.
On 25 February 2021, judgment was delivered in that application as the judgment of President of the Senate & Ors v Gonese & Ors CC01-21 (hereafter referred to as 'CC01-21'). The order passed in CC01-21 reads:
“Accordingly, I make the following order:
1. The application is granted.
2. The period referred to in para (b) of the order handed down on 31 March 2020 is extended by a further ninety days from the date of this order.
3. Each party shall bear its own costs.”
I digress briefly to foreshadow that I will advert to more comprehensively later in this judgment.
In view of the above order, the Senate conducted another vote on the Constitutional Amendment (No.1) Bill of 2017.
On 4 May 2021, it passed the Constitutional Amendment Bill (No.1).
The applicant contends, that, the passage of the Bill in the manner aforesaid, on 4 May 2021, is unconstitutional.
He principally considers the second and third respondents to have failed to fulfil constitutional obligations in the passage of the Bill contrary to the provisions of section 147 of the Constitution.
The applicant also considers the impugned conduct of the respondents to have been accentuated by the simultaneous violation of his rights under section 56(1) of the Constitution.
However, this last contention does not appear to have been persisted in with much vigour and conviction considering that the applicant stated, unambiguously, that, his application was solely in terms of section 167(2)(d) of the Constitution. In fact, the amicus considers this as the applicant's “fringe” contention.
At any rate, in my view, there would be no need to invoke section 56(1) of the Constitution where the cause of action is one of failure to fulfil a constitutional obligation as that situation is specifically provided for sufficiently in section 167(2)(d) of the Constitution, and requires no additional colouring through such invocation: compare Central African Building Society v Stone & Ors SC15-21.
All the respondents opposed the application.
They deny that their conduct, in the passage of Constitutional Amendment (No.1) Bill of 2017, was in violation of section 147 of the Constitution. Instead, they contend, that, their actions are predicated on a valid order of this Court handed down under CC04-20. They also maintain that none of the applicant's rights was violated by their conduct....,.
APPLICANT'S SUBMISSIONS
On 15 March, the parties then advanced their oral submissions in respect of the application.
Counsel for the applicant stated, that, the critical issue for determination was whether the passage of Constitution of Zimbabwe Amendment (No.1) Act of 2017, on 4 May 2021, breached section 147 of the Constitution.
To him, the crucial thing was to assess the status of the Bill as of 29 July 2018, which is the date on which Parliament stood dissolved.
The date the judgment of this Court, in Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 was delivered was immaterial.
Citing decisions of this Court and the Supreme Court, counsel for the applicant stated, that, the order of this Court in CC04-20 merely confirmed the invalidity of Constitution of Zimbabwe Amendment (No.1) Act, which occurred in August 2017 when that Act was purportedly passed. It was, therefore, not a licence for the Senate to violate section 147 of the Constitution.
Accordingly, he submitted, that, Constitution Amendment (No.1) Bill lapsed when Parliament was dissolved on 29 July 2018.
In respect of the allegations that the applicant's constitutional rights were violated by the conduct of the respondents, counsel for the applicant submitted, that, section 56(1) of the Constitution does not qualify the nature of protection afforded by the section. In his view, the subsection had the same meaning as the equivalent provision under the previous Constitution of Zimbabwe.
Regarding the relief sought by the applicant, counsel for the applicant emphasised that the applicant simply sought a declaration that the passage of Constitution of Zimbabwe Amendment (No.1) Act, on 5 May 2021, was in breach of section 147 of the Constitution.
He formally abandoned the second paragraph of the applicant's draft order set out above.
He added, that, should the Court grant the declaratory relief sought, the order should not have retrospective effect.
Counsel for the applicant also abandoned his preliminary challenges to the authorities of the deponents to the first and second as well as the third respondent's opposing affidavits.
RESPONDENTS CASE BEFORE THIS COURT
Counsel for the first and second respondents indicated, that, he was persisting with the preliminary points that he raised:
(i) Firstly, he submitted, that, the Court had no jurisdiction as the applicant had improperly joined the President of the Senate to the President and Parliament in an application under section 167(2)(d) contrary to the judgment of this Court in Mliswa v Parliament of the Republic of Zimbabwe CC02-21.
(ii) Secondly, he submitted, that, the applicant had no cause of action because the conduct of the respondents was in compliance with an order of this Court.
On the merits, counsel for the first and second respondents stated, that, the retrospective application of the order passed in CC04-20 was limited. Further, the Court had the power to limit the retrospective application in terms of section 175(6)(b) of the Constitution. Therefore, the provisions of section 147 could not have been breached, so his submissions went.
Counsel for the third respondent also put up ardent opposition to the application.
Essentially, he took three points in response to counsel for the applicant's submissions. He prefaced those points by stating that there are three broad steps in the enactment of a law. These are:
(i) The consideration of a Bill by the National Assembly;
(ii) The consideration of the same Bill by the Senate;
(iii) The President's assent to the Bill as the last step;
Counsel for the third respondent's first point was, that, the Presidential assent to the Bill, in 2017, was not set aside by this Court. Therefore, there was no failure by the third respondent to “re-gazette” the Bill as the applicant had pleaded.
His second point was that when Parliament was dissolved, in July 2018, there was no Constitution Amendment (No.1) Bill. It had become an Act. This meant, that, the declaration by this Court could not have affected the status of that Act as it had limited retrospective effect.
Counsel for the third respondent's third point was, that, section 147 of the Constitution does not impose an obligation on the third respondent. In the absence of such, there cannot be a constitutional obligation that the third respondent breached.
All the respondents prayed for the dismissal of the application.
AMICUS CURIAE'S SUBMISSIONS
Mr Zhuwarara, the amicus curiae, made submissions last.
His first submission was, that, the moment the applicant adverted to violations in terms of section 85 of the Constitution, he was obliged to allege that a fundamental right was infringed and to seek relief that is consistent with Chapter 4 of the Constitution. He further submitted, that, the applicant failed to base his relief on Chapter 4 of the Constitution and that ought to be the end of the matter.
On the merits of the application, the amicus submitted, that, judgments of the Constitutional Court are final. On this basis, the judgment in CC04-20 could not be revisited.
While agreeing that the Constitutional Court cannot pass unconstitutional judgments, he stated that this was not the situation in casu.
Proceeding from this point, he added, that, in terms of section 175(6)(b) of the Constitution, this Court passes corrective orders. For this reason, the order of this Court, and the subsequent passage of the Bill by the Senate, did not violate the Constitution.
Mr Zhuwarara concluded his submissions by stating, that, the applicant's rights, in section 56 of the Constitution, could not have been violated because the applicant failed to identify a similarly positioned person who was afforded a favour....,.
ISSUE ARISING FOR DETERMINATION
The foremost issue arising for determination is whether or not the Constitution of Zimbabwe Amendment (No.1) Act 2017 was an Act of Parliament when Parliament was dissolved in 2018.
In resolving this issue, one must accept, that, even though the applicant abandoned the part of his draft relief that would have nullified the decision of this Court in CC04–20, which abandonment suggests that he no longer wishes to impugn that decision, the determination of this issue is inexorably tied to it.
By no stretch of ingenuity can the applicant circumvent that decision in order to succeed in this application.
Thus, the resolution of the main issue, perforce, demands one to also relate to the order in CC04-20, in my view.
All the applicant's other contentions and claims are ultimately premised on this plank; whether it is the President's alleged failure to “re-gazette” the 'Bill' or Parliament voting on a “lapsed Bill” or the alleged failure by both Parliament and the President to discharge Constitutional obligations ostensibly imposed by section 147 of the Constitution.
It is perhaps opportune at this juncture to dispose of the section 147 of the Constitution contentions.
I am in agreement with the submissions of the respondents, that, section 147 of the Constitution does not impose any obligations upon Parliament or the President. It only provides for the fate of Bills, motions, petitions, and other business which might be pending before the dissolution of Parliament. It does not require Parliament or the President to do anything. It takes effect by operation of law. It is thus applicable to any person, be it a Minister, President, member of Parliament, member of the general public who might have business or a petition pending before Parliament.
It simply declares that such business lapses, without imposing any obligation on anyone.
But, even more significantly, to found exclusive jurisdiction in terms of section 167(2)(d) of the Constitution, the conduct complained of must not only be clearly identified but it must be a duty specifically imposed on Parliament or the President: see, for example, Von Abo v Government of the Republic of South Africa 2009 (2) SA 526.
Furthermore, the obligation concerned must not be one shared by various other stakeholders such as is apparent in section 147 of the Constitution, if at all that section imposes any duties; which it has been shown above it does not.
In Economic Freedom Fighters v Speaker of the National Assembly & Ors 2016 ZACC 11, the South African Constitutional Court stated:
“An alleged breach of a constitutional obligation must relate to an obligation that is specifically imposed on the President or Parliament. An obligation shared with other organs of State will always fail the section 167(4)(e) test…,.” (equivalent to our section 167(2)(d)).
In this case, the applicant has attacked Parliament, the President, and even this Court for allegedly breaching section 147 of the Constitution.
He cannot, therefore, invoke section 167(2)(d) of the Constitution in a matter impugning the conduct of the legislature, the executive, and even the judiciary for breach of section 147 of the Constitution.
WHETHER THE CONSTITUTIONAL AMENDMENT BILL (NO. 1) 2017 HAD BECOME AN ACT OF PARLIAMENT WHEN PARLIAMENT WAS DISSOLVED
The applicant argues, that, Constitutional Amendment Bill (No.1) of 2017 lapsed upon the dissolution of Parliament in July 2018, and anchors this contention on section 147 of the Constitution. That section reads:
“147 Lapsing of Bills, motions, petitions and other business on dissolution of Parliament
On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition, and other business lapses.”
Any constitutional or statutory provision is dependent on the existence of specific juridical facts before it can come into operation.
For section 147 of the Constitution to be invoked and set off any particular legal effect on Bills, specific juridical facts must be found to exist. These are:
(i) Parliament must have been dissolved.
(ii) There must have been proceedings before it. In its widest sense, the term 'proceedings' includes matters connected with, or ancillary to, the formal transaction of business in Parliament: see Smith v Mutasa 1989 (3) ZLR 183 (S)…, and also ERSKINE MAY's Treatise on the Law, Privileges and Usages of Parliament, 25th Ed, 2019…,.
(iii) The proceedings must have been pending at the time of dissolution.
(iv) There must have been a Bill. Section 332 of the Constitution states that “Constitutional Bill” means a Bill, which, if enacted, would have the effect of amending any of the provisions of the Constitution.
The status of the Bill in question must first be assessed at the time Parliament was dissolved. This is the only way that one can tell whether the Bill lapsed when Parliament was dissolved.
Turning to the necessary facts which trigger the application of section 147 of the Constitution.
All the parties are in agreement, that, Parliament was dissolved. However, I find that there were no pending proceedings in respect of Constitutional Amendment Bill (No.1) of 2017 at the time of dissolution nor was that Bill still in existence as such.
That Bill had become law; Constitution of Zimbabwe Amendment (No.1) Act (Act 10 of 2017).
The applicant accepts this fact.
The respondents also accept that the Bill became law on 7 September 2017 - prior to the dissolution of Parliament.
In the absence of the necessary facts envisaged by section 147 of the Constitution, Constitutional Amendment Bill (No.1) could not have lapsed since it was no longer pending. There also could not have been any proceedings in respect of that Bill.
Suffice to mention, that, the question of the validity of the resultant Constitution of Zimbabwe Amendment (No.1) Act does not arise at the point of dissolution of Parliament. This is because, upon the dissolution of Parliament, that Act was presumed to be constitutional and valid: see In Re: Prosecutor-General of Zimbabwe on his Constitutional Independence and Protection from Direction and Control 2017 (1) ZLR (CC)…,.
It is common cause, that, Constitution of Zimbabwe Amendment (No.1) Act was subsequently nullified by this Court on 30 March 2020.
That order obviously does bear upon the status of the Bill at the time Parliament was dissolved.
Therefore, one must look at the terms of the order in CC04-20 to find out whether that order had the effect of returning the Bill to its status quo ante rendering it susceptible to the provisions of section 147 of the Constitution.
THE IMPORT OF THE ORDER IN CC04-20
Until the passage of the order in CC04-20, no person could have disregarded Constitution of Zimbabwe Amendment (No.1) of 2017. That Act, as already stated, was presumed to be constitutional and valid.
Pertinently, after declaring the passage of Constitutional Amendment Bill (No.1) of 2017 to have been inconsistent with section 328(5) of the Constitution, this Court went further to set out the point at which the declaration of invalidity would take effect:
“The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).”
The above excerpt from the order in CC04-20 entertains one interpretation only.
The invalidity of the Constitution of Zimbabwe Amendment (No.1) Act took effect from the date of the order – 31 March 2020.
Thus, despite the subsequent declaration of invalidity, the Bill was not susceptible to the effect of section 147 of the Constitution, on 29 July 2018, because it was an Act at that date. Its invalidity takes effect in accordance with the order of this Court above.
However, the constitutionality of the above order is, in fact, what the applicant is challenging.
But, that order was made in terms of a provision of our Constitution.
Section 175(6) of the Constitution provides for the powers of courts to make orders in constitutional matters. It reads:
“(6) When deciding a constitutional matter within its jurisdiction, a court may —
(a) Declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency;
(b) Make any order that is just and equitable, including an order limiting the retrospective effect of the declaration of invalidity and an order suspending, conditionally or unconditionally, the declaration of invalidity for any period to allow the competent authority to correct the defect.”
On a close reading of the above provision, one notes, that, a court may only declare a law or conduct to be invalid to the extent of its inconsistency with the Constitution, and no more. A court must preserve all the constitutional parts of any law or conduct and only cut out the unconstitutional part.
By way of analogy, and without restricting or qualifying the import of a court's power to declare a law or conduct to be inconsistent with the Constitution to the extent of its inconsistency, section 175(6)(a) of the Constitution is comparable to the power of severance accorded to courts in contract law.
This is known as the blue pencil rule.
The common law blue pencil rule allows a court to sever an unenforceable portion of a contract so as to preserve the remaining enforceable portion of that contract: see TBIC Investments (Pvt) Ltd & Anor v Mangenje & Ors 2018 (1) ZLR 137 (S)…,.
The purpose of the blue pencil rule is to ensure, that, the valid portions of a contract that the parties sought to have enforced are not invalidated by reason of other void portions of the contract.
So, too, are the powers of a court under section 175(6)(a) of the Constitution intended to ensure that this Court saves the portions of laws and conduct that were validly enacted or performed.
Mr Zhuwarara, as amicus curiae, correctly submitted, that, this Court passes corrective orders under section 175(6)(b) of the Constitution.
As already noted, the section does give the Court discretion, where it is just and equitable, to suspend a declaration of invalidity, conditionally or unconditionally, for any period to allow the competent authority to correct the defect.
The corrective or remedial power exercised by the Court is not incompatible with the object of section 147 of the Constitution nor any other provision of the Constitution at large. It permits this Court to curtail the retrospective effect of an order of invalidity as it did in CC04-20.
An order made in terms of section 175(6)(b) of the Constitution is, by the Constitution's own architecture, constitutional — provided that it is just and equitable.
The formative opinion on the utility of section 175(6)(b) of the Constitution was set out in M & Anor v Minister of Justice, Legal & Parliamentary Affairs 2016 (2) ZLR 45 (CC); CC12-15…,.
This Court held, that, an exercise of the power bestowed by section 175(6)(b) of the Constitution is done with the appreciation of “the immense disruption that a retrospective declaration of invalidity may cause on the persons who conducted themselves on the basis that the legislation was valid.”
I note, that, the purpose of section 175(6)(b) of our Constitution is remarkably similar to section 172(1)(b) of the South African Constitution, even though the two provisions are not worded in the exactly the same manner. The South African equivalent reads as follows:
“Powers of courts in constitutional matters
172(1) When deciding a constitutional matter within its power, a court —
(a) Must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and
(b) May make any order that is just and equitable, including —
(i) An order limiting the retrospective effect of the declaration of invalidity; and
(ii) An order suspending the declaration of invalidity for any period, and on any conditions, to allow the competent authority to correct the defect.”
In this light, MADLANGA J, writing for the majority in the South African case of Corruption Watch NPC & Ors v President of the Republic of South Africa & Ors [2018] ZACC 23…, concluded:
“There is no pre-ordained consequence that must flow from our declarations of constitutional invalidity. In terms of section 172(1)(b) of the Constitution, we may make any order that is just and equitable. The operative word 'any' is as wide as it sounds. Wide though this jurisdiction may be, it is not unbridled. It is bounded by the very two factors stipulated in the section – justice and equity. This Court has laid down certain principles in charting the path on the exercise of discretion to determine a just and equitable remedy.”
Dealing with the effect of Article 25(1)(a) of the Namibian Constitution, which is the equivalent of our section 175(6)(b), DAMASEB DCJ, in CRAN v Telecom Namibia Ltd & Ors NASC 18/2018 concluded, that, the Article in question:
“…, empowers the court to suspend the order of invalidity to afford the legislature the opportunity to correct the defect identified by the court. During the period of suspension, the implicated provision continues to have the full force of the law.”
Given the wide jurisdiction that the Court has in making orders in terms of section 175(6)(b) of the Constitution, it has invoked its power in several instances other than in CC04-20.
For instance, in Democratic Assembly for Restoration and Empowerment & Ors v Saunyama & Ors CC09-18…, the Court suspended the order of invalidity of a law to enable the competent authorities to attend to the defects, while in Zimbabwe Law Officers Association & Anor v National Prosecuting Authority & Ors CC01-19, the Court suspended, conditionally, its order declaring the engagement of members of security services in the National Prosecuting Authority as unconstitutional to avoid paralysing its operations.
The progressive implementation of the rule of law would be greatly undermined without section 175(6) of the Constitution.
When one considers the endless list of circumstances over which declarations of unconstitutionality could possibly be passed, the potentially disruptive effects of such declarations can become overwhelming.
Acts that were believed to be legal today would suddenly be illegal and invalidated. People who had legitimately enjoyed certain rights could suddenly lose them. Those who were in credit before a declaration of invalidity could suddenly become debtors. Couples who were legally married to each other for years would suddenly be deemed to be living 'in sin'.
Thus, section 175(6) of the Constitution is inserted into our Constitution to ensure just and orderly enforcement of the Constitution. It prevents the winding back of hands of time beyond our capacity to cope with the retrospective effects of declarations of unconstitutionality.
The Canadian case of Re Manitoba Language Rights 1985 CanLII 33 (SCC); [1985] 1 SCR 721 exemplifies the far-reaching effects that orders of invalidity carry.
The brief facts of that case are that the Governor in Council referred questions to the Supreme Court of Canada relating to language rights under the Manitoba Act 1870 and the Constitutional Act 1867. The two Acts provided, that, the use of both the English and French languages in the Acts of the Parliament of Canada and of the Legislatures of Quebec and Manitoba was mandatory.
The Supreme Court of Canada found, that, statutes that were not printed and published in both the English and French languages were invalid by reason of section 23 of the Manitoba Act 1870. The result of the finding of invalidity was that statutes that were enacted in close to a century prior to the declaration were invalid. Consequently, the Court deemed them temporarily valid.
Relying on the de facto doctrine, being a doctrine of necessity, the Court held…, as follows:
“The application of the de facto doctrine is, however, limited to validating acts which are taken under invalid authority: it does not validate the authority under which the acts took place. In other words, the doctrine does not give effect to unconstitutional laws.
It recognizes and gives effect only to the justified expectations of those who have relied upon the acts of those administering the invalid laws and to the existence and efficacy of public and private bodies corporate, though irregularly or illegally organized.
Thus, the de facto doctrine will save those rights, obligations and other effects which have arisen out of actions performed pursuant to invalid Acts of the Manitoba Legislature by public and private bodies corporate, courts, judges, persons exercising statutory powers and public officials. Such rights, obligations and other effects are, and will always be, enforceable and unassailable.”
Therefore, in light of the above authorities, and, upon examination on the powers of this Court in terms of section 175(6) of the Constitution, I am both compelled and bound to restate, without saying anything further, that, the order in CC04-20 was validly passed as it accords with justice and equity.
FINALITY OF CC04-20
The amicus curiae advanced submissions on the finality of the order in CC04-20 that this Court is mandated to take into account.
Both the statutes governing this Court's operations, and judicial precedent, confirm that our decisions are final.
First is section 167(1) of the Constitution, which sets the Constitutional Court as the highest and final court in constitutional matters. Then, section 5(3) of the Constitutional Court Act [Chapter 7:22] entrenches the finality of our decisions. It provides:
“(3) Subject to section 22(2), there shall be no appeal from any judgment of the Court.
(4) The Court shall not be bound by any of its own judgments, rulings, or opinions nor by the judgments or opinions of its predecessors.”
I draw attention to the apposite remarks of MAKARAU JCC in President of the Senate & Ors v Gonese & Ors CC01–21. She stated the following:
“A decision of the Constitutional Court, on a constitutional matter, is final. No court has power to alter the decision of the Court. Only this Court can depart from its previous decisions, rulings, or opinions. I venture to add for emphasis, that, only this Court, in a future and appropriate constitutional matter, may overrule or depart from its previous order. This application is not such a case where the court can overrule or depart from its previous order.”
The position reached in Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor CC11-18…, is relevant to the facts of this case.
A decision is “correct because it is final. It is not final because it is correct”.
See also Williams & Anor v Msipha NO & Ors 2010 (2) ZLR 552 (S)…,.
The applicant is mistaken, that, the correctness of the decision in CC04-20 is determinative of its finality.
A decision is final because the law says it is final.
The subjective views of a litigant, or any other person, on the correctness or otherwise of a decision are irrelevant in determining the finality of a decision. For this reason, the courts, in Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor CC11-18 and Williams & Anor v Msipha N.O. & Ors 2010 (2) ZLR 552 (S) concluded, that, where a decision is final, it cannot be said to be incorrect because only an Appeal Court has the right to say a decision is correct or not.
However, this Court may depart from its reasoning in a subsequent case.
This is why the Court is not bound by any of its own judgments, rulings, or opinions in terms of section 5(4) of the Constitutional Court Act.
The possibility that this Court may depart from reasoning or a decision reached before does not entitle a litigant to seek to rely on the purportedly correct position on the basis that the decision was incorrect.
As already stated, the finality of a previous decision is not conditional on its correctness.
Therefore, once a decision has been passed, it is final. The litigants, and the Court, must live with it. It is not easily open to any subsequent challenge - although its reasoning may later be departed from.
The principle of stare decisis et non quieta movere, it would seem, operates as strongly horizontally as it does vertically.
It may be tempting to believe, that, the conclusion I make in this case is at variance with the decision that was reached in CC01-21.
In that case, all the Judges agree, that, the judgment in CC04-20 was final. They also agree that it could not be impugned.
There is, however, a difference of dispute between the instant case and the case in CC01-21.
In CC01-21, the preliminary point raised necessitated a determination of whether or not it was competent for this Court to extend the period within which the Senate could conduct another vote on the Bill. The Court had to determine whether the Bill lapsed in September 2020, after the expiry of the 180 days that had been afforded to the Senate to conduct another vote.
Quite differently, in casu, the dispute relates to whether or not the Bill lapsed upon the dissolution of Parliament in July 2018.
Thus, the judgment in CC01-21 actually affirms the position reached herein, that, the question of whether the Bill lapsed in 2018 is beyond the competency of this Court to enquire into it since the judgment in CC04-20 is final.
