ZIYAMBI
JCC:
[1]
By reason of an allegation by the applicant of a breach of his fundamental
right enshrined in s 56(1) of the Constitution, this application gained direct
access to the Constitutional Court (“the Court”) through the front door, which
is s 85 (1) of the Constitution of
Zimbabwe Amendment (No. 20) Act 2013 (“the Constitution”).
THE APPLICATION
[2]
The applicant averred that he is a Member of Parliament for Lobengula
Constituency in Bulawayo (having been so elected in the harmonised elections
held on 31 July 2013) and residing in Bulawayo.
He charges the respondents, and in particular the first respondent who
is the Minister responsible for issues of local Government, with a violation of
s 267 of the Constitution. This is because of their alleged failure to bring
about the enactment of such an Act of Parliament as would give effect to the
provisions of Chapters 2 and 14 of the Constitution of
Zimbabwe thus bringing into operation devolution in Zimbabwe.
He alleges that the failure of the
respondents, since 1 August 2013 when the full Constitution took effect, to
bring a draft Bill before Parliament for enactment constitutes a breach of ss 2 and 5 of the Constitution. He therefore seeks the following relief:
“IT IS ORDERED THAT:
1. The
respondents' failure, to enact the law covered and as envisaged in Chapter 14 of the Constitution, in
particular Sections 267 (2), 273 (4) and 270 (2) of the Constitution of
Zimbabwe, is a breach of the Constitution of Zimbabwe.
2. The
failure by the respondents, to enact the laws necessary to operationalize Chapter 14 in so far as it relates to
Provincial Governance is a violation of
the applicant's right to equal protection and benefit of the law as defined by Article 56 (1) of the Constitution.
3. The
respondents must bring before Parliament such a Bill or Bills as covered by Sections 273 (4), 267 (2) and Section 270 (2) of the Constitution of
Zimbabwe within 45 days from the date of issuance of this order by the Court.
4. That
respondents jointly and severally each paying the other to be absolved pays
costs of suit.”
I
note here that s 273(4) does not exist. Section 273 in subs (1) and (2) makes
provision relating to the establishment and functions of provincial and
metropolitan councils and for the filling of vacancies therein.
[3]
The application is opposed by the respondents.
The first respondent denied any neglect in bringing the Bill before
Parliament. He annexed to his opposing
affidavit a draft Bill which he termed a working draft. He explained that legislation of such importance
cannot be hurriedly placed before Parliament and that he is still in the
process of carrying out the necessary consultations with the various entities
as prescribed by s 267 (2) (b) of the Constitution.
The
respondents also contend that the applicant has not, save for a mere statement
alleging an infringement of his right conferred by s 56 (1) of the Constitution,
to equal protection and benefit of the law, demonstrated how that right has
been infringed by the respondents. Nor
has the applicant adduced any evidence to substantiate his allegation that “the
State is limping” because there are no metropolitan and provincial councils as
provided for in s5 of the Constitution.
It is further contended by the respondents
that the second respondent's responsibility for bringing legislation before
Parliament extends only to those matters which fall under his portfolio and that
the bill envisaged by s 267 is not one
of those matters.
In
any event, so averred the respondents, a reasonable period was required within
which to produce the legislation in question and it could not be hurried
through within the period of 45 days suggested by the applicant. It was submitted that the application was
devoid of merit and ought to be dismissed with costs.
LOCUS
STANDI
[4] The applicant states his standing to
bring this application as follows:
”9.1
I believe that as an ordinary citizen and more importantly as a Member of
Parliament, I have a right to bring this application before this Honourable
Court. The issue of devolution is key and central in the part of the country I
come from and in the Constituency I represent. I was chosen to represent my
Constituency which expects me to serve in the Bulawayo Metropolitan Council and
represent their interests. I want to serve in this important institution so
that it can perform and execute its developmental roles as defined by the
Constitution.
9.2
Moreover, I believe that any citizen
has and should have a general right to bring any application before this Honourable
Court where the government of the day or any other Constitutional body is
disobeying or disrespecting or not enforcing or implementing any mandatory
provision of the Constitution. This right exists and should exist whether or
not that breach or omission is outside Chapter
4, of the Constitution of Zimbabwe. Put in simple terms, a citizen's right
to approach this Honourable Court cannot and should not be restricted to a
complaint founded on breach of the declaration of rights that are set out in Chapter 4 of the Constitution of
Zimbabwe.
9.3
Besides, to the extent that I have in
fact alleged a breach of a fundamental right, I have a right to approach this
Honourable Court as I hereby do in terms of Section 85 of the Constitution of Zimbabwe. Section 85 (1) (a) and (d),
being the specific legs that I bring this application should it be
restricted to the narrow question of breach of declaration of the rights
defined in Chapter 4 of the Constitution of Zimbabwe.”
[5]
The applicant's stance is thus twofold. Firstly,
he, as a Member of Parliament is automatically entitled to be a member of the
Bulawayo Metropolitan Province. By
virtue of s 269(1) (c) all members of the National Assembly whose
constituencies fall within the Metropolitan Province concerned, are automatic
members of the Metropolitan Council. Thus
his constitutional right as bestowed by s 269 has been denied by the
respondents' failure to enact the legislation in question. More
specifically, the applicant has been denied the “responsibility and duty for
the social and economic development activities in the province. This includes the right to co-ordinate and
implement governmental programs in the province, the right to plan and
implement measures for the conservation, implementation and management of
natural resources in the province and of course the right to promote tourism in
the province”. Accordingly, so the
applicant avers, he has the right to approach this Court for the constitutional
mandamus sought in the draft order
because the respondents are in breach of “not only the provisions of Chapter 14
by default, but are acting against the concept of a paradismic state as defined
and captured in s 8 of the Constitution”.
[6] The
second ground on which he bases his locus
standi is that in denying him the benefit of Chapter 14 of the Constitution,
the respondents are “in fact breaching not only Article 56(1) of the
Constitution in so far as it protects the applicant but also denigrating the
supremacy of the Constitution.” At p 7
of the application he avers:
“In
any event, to the extent that Provincial governance as covered by Chapter 14
(of the Constitution) is a right and
expectation given to me and other citizens by law, the respondents by their inaction, are
denying me equal protection and benefit of the law. This therefore means that their inactions are
in breach of my constitutional right to equal protection and benefit of the law
as defined by s 56(1) of the Constitution of Zimbabwe.
I
would therefore pray that this honourable court must respectfully compel the
respondents to respect my right covered under 56(1) of the Constitution, by
obliging the same to gazette and bring before Parliament a Bill as covered by
the aforesaid sections 267 and 273(1) of the Constitution of Zimbabwe. This is
the second leg and basis of my constitutional application to this Honourable
Court”.
[7] In terms of s 85 of the Constitution certain
persons may approach a court directly for the vindication of a fundamental
right allegedly infringed or likely to be infringed. It provides as follows:
“85 Enforcement of
fundamental human rights and freedoms
(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.
(2)
The
fact that a person has contravened a law does not debar them from approaching a
court for relief under subsection (1).
(3)
The
rules of every court must provide for the procedure to be followed in cases
where relief is sought under subsection (1), and those rules must ensure that:
(a)
the
right to approach the court under subsection (1) is fully facilitated;
(b)
formalities
relating to the proceedings, including their commencement, are kept to a
minimum;
(c)
the
court, while observing the rules of natural justice, is not unreasonably
restricted by procedural technicalities; and
(d)
a
person with particular expertise may, with the leave of the court, appear as a
friend of the court.
(4)
The
absence of rules referred to in subsection (3) does not limit the right to
commence proceedings under subsection (1) and to have the case heard and
determined by a court.”
The
submission by the respondents in their heads of argument that at the time of
the hearing the applicant was no longer a Member of Parliament is common cause.
I agree with the submission on behalf of the respondents that the applicant
could not found his locus standi on
his former status as a Member of Parliament.
The applicant however faces a more serious hurdle. The right allegedly infringed is not a
fundamental right enshrined in Chapter 4 of the Constitution. Accordingly, an approach in terms of s 85 to
vindicate the alleged infringement of ss 267, 270 and 273 is not available to
the applicant.
I
find no merit in the applicant's averment in para 9.2 of his founding affidavit
(quoted above)
that anyone should be allowed to bring any constitutional application before
this Court. To allow this totally
unrestricted approach would be a violation of the Constitution which has
restricted the direct approach to the vindication of fundamental rights and has itself outlined
other methods
of approach to this Court. Thus, to use the words of the applicant, 'the first
leg' on which the application is based cannot stand.
[8] In so far as the applicant alleges an
infringement of his fundamental right enshrined in Chapter 4 of the
Constitution, he may, in the absence of the rules referred to in s 85(3), be
permitted to access this Court directly. On this basis he has, prima facie, the locus standi to bring his application in terms of s 85 (1) (a). But he cannot, as he has sought to do, act in
his own interest as well as the public interest. This point was emphasized in Loveness Mudzuri & Anor v Minister
Of Justice, Legal & Parliamentary Affairs N.O & 2 Ors
where MALABA DCJ, delivering the judgment of the Court, held that an applicant
should confine himself to one of the capacities set out in s 85 (1). At p 8 of the judgment the learned judge said:
“What
is in issue is the capacity in which the applicants act in claiming the right
to approach the court on the allegations they have made. In claiming locus standi under s 85(1) of the Constitution, a person should act
in one capacity in approaching a court and not act in two or more capacities in
one proceeding”
And
at page 9:
“The
rule requires that the person claiming the right to approach the court must
show on the facts that he or she seeks to vindicate his or her own interest
adversely affected by an infringement of a fundamental right or freedom. The infringement must be in relation to
himself or herself as the victim or there must be harm or injury to his or her
own interests arising directly from the infringement of a fundamental right or
freedom of another person. In other
words the person must have a direct relationship with the cause of action.”
[9]
As to his approach in terms of s 85(1)(d),
it is clear that the applicant has made no case for the public interest apart from a bare averment that he has approached the Court in terms of s 85
(1)(a) and (d). Accordingly, the only
question properly before the Court for determination, and which I deal with
hereunder, is whether there has been an infringement of the applicant's
fundamental right enshrined in s 56(1) to equal protection and benefit of the
law.
INFRINGEMENT OF SECTION 56(1)
[10]
Section 56(1) of the Constitution provides:
“56
Equality and non-discrimination
(1)
All persons are
equal before the law and have the right to equal protection and benefit of the
law.”
The
right guaranteed under s 56 (1) is that of equality of all persons before the law
and the right to receive the same protection and benefit afforded by the law to
persons in a similar position. It
envisages a law which provides equal protection and benefit for the persons
affected by it. It includes the right not to be subjected to treatment to which
others in a similar position are not subjected. In order to found his reliance
on this provision the applicant must show that by virtue of the application of a
law he has been the recipient of unequal treatment or protection that is to say
that certain persons have been afforded some protection or benefit by a law, which
protection or benefit he has not been afforded; or that persons in the same (or
similar) position as himself have been treated in a manner different from the
treatment meted out to him and that he is entitled to the same or equal
treatment as those persons.
In Van der Walt v Metcash Trading Limited (CCT37/01) [2002] ZACC 4;
2002 (4) SA 317; 2002 (5) BCLR 454 where reliance on the provisions of s 9(1)
of the Constitution of South Africa (which is identical in its terms to s 56(1)
of the Constitution) depended solely on the inequality of outcome of two
applications to the Supreme Court of Appeal, the Constitutional Court described
the right as follows:
”It
is clear that the provision means that all persons in a similar position must
be afforded the same right to access the courts and to the same fair and just
procedures with regard to such access.”
And in Sarrahwitz v Martiz N.O. & Anor
(CCT93/14) [2015] ZACC 14; 2015 (4) SA 491 (CC); 2015 (8) BCLR 925 (CC), the same Court said:
“This subsection guarantees everyone the right to equal protection and benefit of the law.
The concept of “equal protection
and benefit of the law” suggests
that purchasers who are equally vulnerable must enjoy the same legal endowments
irrespective of their method of payment”.
[11] Clearly the guarantee provided by s 56(1)
is that of equality under the law. The
applicant has made no allegation of unequal treatment or differentiation. He has not shown that he was denied
protection of the law while others in his position have been afforded such protection.
He has presented the Court with no evidence
that he has been denied equal protection and benefit of the law. The failure by the respondents to enact the
legislation contended for has not been shown to discriminate against him in
favour of others. In short, the
applicant has come nowhere near to establishing that his right enshrined in s 56(1)
of the Constitution has been infringed. He is therefore not entitled to a remedy.
In
view of this conclusion the issue of a mandamus
becomes irrelevant. However, since
the point was argued before us, I make the following remarks.
THE APPLICATION FOR A MANDAMUS
[12]
The applicant claims that the failure by the respondents to enact the law
envisaged in s 267 of the Constitution is a breach of the Constitution for
which he is entitled to approach this Court seeking a mandamus.
Section 264 (1) of the
Constitution provides:
“264 Devolution of
governmental powers and responsibilities
(1)
Whenever
appropriate, governmental powers and responsibilities must be devolved to
provincial and metropolitan councils and local authorities which are competent
to carry out those responsibilities efficiently and effectively.”
Section 267 (1) lists the Provinces of
Zimbabwe and subs (2) provides;
(1)
An
Act of Parliament—
(a) must provide for the division of provinces
into districts; and
(b) may provide for the alteration of provincial
and district boundaries;
after consultation with the Zimbabwe
Electoral Commission and the people in the provinces and districts concerned.”
Undoubtedly,
it is within the powers of a court before which a constitutional matter is
argued to grant, in an appropriate case, a mandatory interdict or mandamus. I have already concluded that
since the complaint does not relate to the breach of a fundamental right, the
applicant is not entitled to approach the Court in terms of s 85. However, even assuming the applicant was
properly before the Court, he has not made out a case for the mandamus that he seeks.
[13] While not necessarily bound by them,
the Court is generally guided by common law principles relating to
interdicts. Thus in order to prove his
entitlement to a mandamus in this
case, the applicant would be required to meet the requirements for the grant of
a final interdict. These are:
-
A clear right;
-
An injury actually committed or reasonably
apprehended; and
-
The absence of a similar protection by any
other remedy.
[14] It was submitted by the respondents
that the applicant had not satisfied these requirements. I agree. In
terms of s 264(1), the division of the provinces into districts is to take
place whenever appropriate. The section is not cast in mandatory
terms. The State has been given a
constitutional mandate to decide when it is appropriate and it is not for the
applicant to make that decision. Reading
all provisions as a whole, as one must in interpreting the Constitution, that
decision is a prerequisite to s 267.
Once that decision has been made, it can only be implemented by an Act
of Parliament after consultations with Zimbabwe Electoral Commission and the
persons affected by the proposed change.
While
it is true that the Metropolitan Councils form one of the tiers in the order of
Government as set out in the Constitution it is also true that no
time limits have been set by the Constitution for the devolution of power to
the authorities listed therein. Consequently it can safely be said that s 264
contemplates that compliance with its dictates be effected within a reasonable
time.
[15]
The applicant maintained that the process required little time and indeed 45
days was suggested as the time within which the enactment should be gazetted
and placed before Parliament for consideration.
However, on behalf of the respondents it was submitted that work is
taking place on the proposed bill and that included consultations with various
stakeholders especially those mentioned in s 267. It was submitted that an
enactment of this nature could not be hurriedly done in the time suggested by
the applicant.
DISPOSITION
[16] According to the applicant, although
the Constitution was signed into law by the President of Zimbabwe on 15 May
2013, the full document only 'became law after the general election of 31 July
2013 on 1 August 2013'. This application
was brought on 25 March, 2014 less than 12 months after the coming into effect
of the Constitution. No evidence on which
the issue of reasonableness could be determined was placed before the Court in
the applicant's founding affidavit. The Court would, therefore, have been
unable because of the lack of evidence before it, to make a decision on whether
or not the respondents had failed within a reasonable time to enact the
legislation referred to in s 267 and the applicant would, for the same reason,
have failed to establish an infringement of a clear right entitling him to a mandamus.
[17]
It follows from the above that the application is totally devoid of merit. However, in keeping with the general practice
not to award costs in constitutional matters, no award of costs is made.
[18] The application is,
for the above reasons, dismissed.
CHIDYAUSIKU CJ: I agree
GWAUNZA JCC: I agree
GARWE JCC: I agree
GOWORA JCC: I agree
HLATSHWAYO JCC: I agree
PATEL JCC: I agree
GUVAVA JCC: I agree
MAVANGIRA AJCC: I agree
Tendai Biti Law, applicant's
legal practitioners
Civil Division of the Attorney –General's
Office, 3rd respondent's legal practitioners
