Before:
MALABA CJ,
In
Chambers
On
1 March 2018 the applicants filed a chamber application for leave for
direct access to the Constitutional Court in terms of r 21(2) of
the Constitutional Court Rules SI 61 of 2016 (“the Rules”).
The first and second applicants are political parties represented by
the third and fourth applicants
respectively.
The fifth applicant is a political activist. He is not a member of
any of the political parties. It is not explained in the papers why
the political parties were joined with him in the making of the
application.
From
an affidavit of service deposed to by the fourth applicant, service
of the application was effected on all the respondents on 2 March
2018. The fourth respondent filed the notice of opposition on
12 March 2018. The hearing of the matter was set down for 24 May
2018 at 11:00 am. The notices of set down of the matter for
hearing were sent out on 14 May 2018. On that day the applicants
filed what they called a notice of withdrawal of the application. The
parties had been directed to file heads of argument by not later than
4 pm on 18 May 2018. The fourth respondent had filed heads
of argument on 17 May 2018.
On
17 May 2018 the fourth applicant in no uncertain terms
disclaimed the notice of withdrawal which was filed with the
registrar on 14 May 2018. Speaking on behalf of all the
applicants, through an article published in a local newspaper, she
made serious allegations of improper conduct against the registry
staff at the Constitutional Court. The allegations were that the
officials had colluded with state security agents and caused the
papers relating to the case to disappear. The allegations were made
despite the fact that the matter was still on the Court's roll
pending hearing on 24 May 2018. The Court had not at any time
indicated a change in the scheduled hearing of the case.
On
23 May 2018 the registrar received a letter written on behalf of
the first applicant confirming that the application had been
withdrawn “to allow individuals to pursue their interests
independently”.
On
the day of the hearing of the matter, all the applicants were in
default. There was also no appearance for the first, second, third
and fifth respondents. Satisfied that all the parties had been served
with the notice of set down, the Court proceeded to hear submissions
from counsel for the fourth respondent, who asked the Court to look
into the merits of the application. After hearing submissions on
behalf of the fourth respondent, judgment was reserved.
FACTUAL
BACKGROUND
The
main application the applicants intended to place before the Court
was premised on the interpretation of the circumstances of the
termination of the fifth respondent's presidency. The applicants
accept that the presidency came to an end as a result of the written
notice of resignation from office addressed to the Speaker of the
National Assembly by the fifth respondent on 21 November 2017.
According
to the applicants, the resignation from office by the former
President was a direct result of the military action of 14 November
2017, known as “Operation Restore Legacy”. The applicants allege
that it was the presence of military vehicles in the streets of
Harare between 14 and 21 November 2017 that caused the former
President to resign from office. Their contention was that the
resignation was not a result of exercise of free will.
The
applicants were also of the view that the impeachment proceedings
commenced by the joint sitting of the Senate and the National
Assembly for removal of the former President from office were not in
accordance with the Constitution. They said the impeachment process
was intended to aid and abet takeover of power by the military. The
contention was that the events connected with the transfer of state
power following the resignation of the former President, including
assumption by the first respondent of the office of President, were
constitutionally invalid.
The
relief sought in the main application would be by an order in the
following terms:
“AFTER
READING DOCUMENTS FILED OF RECORD
IT
IS HEREBY ORDERED THAT:
-
The
deployment of the third respondent by the second respondent or any
of his subordinates in pursuance of orders issued by the second
respondent in the streets of Harare and other places in Zimbabwe
including the Zimbabwe Broadcasting Corporation, the fifth
respondent's residence and other key government sites on the 14
and 15 November 2017 was unlawful and is in contravention of the
Constitution of the Republic of Zimbabwe.
-
That
the forced takeover of the state of Zimbabwe by the third respondent
as announced by same through a broadcast on Zimbabwe Broadcasting
Corporation on the 15th
November 2017 is unlawful and in contravention of the Constitution
of the Republic of Zimbabwe.
-
That
any further or subsequent actions taken by any of the second and
third respondents in pursuance of their objectives here stated or
not and the installation of the first respondent as President and
all such following actions in forming a government are
unconstitutional and not in the spirit of the Constitution of
Zimbabwe.
-
That
the current government headed by the first respondent cannot preside
over the forthcoming elections or continue any other day in office
considering the unlawfulness and unconstitutionality of their
actions but that such occupation of government by the above
mentioned be set aside and the Constitutional Court order the
formation of a Transitional Authority by all political players in
Zimbabwe with equal participation for a given period of time to lead
the country into elections having addressed the pertinent issues of
electoral reforms and patronage appointments in strategic
institutions of governance which has always been a thorny issue in
the country.
-
That
such Transitional Authority as
appointed
should last for an adequate period of time to address the issues
above and such period to be between twelve and twenty-four months.
-
That
the fourth respondent failed to perform its duties in terms of sec
119 of the Constitution of -
i. Protecting
the Constitution and promoting democratic governance,
ii. Ensuring
that the provisions of the Constitution are upheld and all
institutions and agencies of government at every level act
constitutionally and in the national interests – in that it:
-
Did
not challenge the actions of the army in November 2017 and beyond
that
-
Participated
and allowed the swearing in of the First respondent as President.
-
It
allowed the swearing in of army personnel into Ministerial positions
against army not serving in civilian institutions.
-
It
allowed without challenging the illegal and unconstitutional change
of government by the first respondent, the second respondent and
itself the fourth respondent represented by its head.
7. There
is no order of costs.”
The
question of the lawfulness of the military action of 14 and 15
November 2017 was determined by the High Court. In the case of
Sibanda & Anor v President of the Republic of Zimbabwe N.O. &
Ors HC 1082/17, the High Court on 24 November 2017 made
the following order:
“WHEREUPON,
after
reading documents filed of record, and hearing counsel
IT
IS ORDERED BY CONSENT THAT:
-
The
actions of the Defence Forces of Zimbabwe in intervening to stop the
take-over of the first respondent's constitutional functions by
those around him are constitutionally permissible and lawful in
terms of section 212 of the Constitution of Zimbabwe in that:
a. They
arrest the first respondent's abdication of constitutional
function, and
b. They
ensure that non-elected individuals do not exercise executive
functions which can only be exercised by elected constitutional
functionaries.
IT
IS CONSEQUENTLY ORDERED THAT:
-
The
actions of the Defence Forces being constitutionally valid, the
second respondent has the right to take all such measures and
undertake all such acts as will bring the desired end to its
intervention.”
The
applicants cannot seek to have the question of the constitutionality
of the military action enquired into by the Court whilst the order of
the High Court determining the same issue is extant.
In
opposing the application, the fourth respondent took as a point
in limine
the fact that the applicants had failed to comply with the
requirements of r 21(3) (a) and (c) of the Rules. The rule
requires that an application for direct access should state the
grounds on which it is alleged that it is in the interests of justice
that an order for direct access be granted. An application for direct
access must also indicate whether the matter can be dealt with by the
Court without hearing of oral evidence. If the matter cannot be dealt
with without hearing oral evidence, the applicant must show how such
evidence would be adduced and any conflict of facts resolved. The
point on the failure by the applicants to indicate whether the matter
could be dealt with without hearing of oral evidence was taken in the
light of the applicants' allegation that the impeachment process
was commenced at the behest of the military.
On
the merits, the fourth respondent contended that the main application
had no prospects of success because it was based on the allegation
that the former President's resignation from office was not
voluntary. The fourth respondent said that the applicants did not
deny the fact that the contents of the written notice of resignation
and the signature of the former President on the document provided
incontrovertible evidence of
the
exercise by him of free will in electing to resign from office. He
averred that the resignation from office by the former President was
in terms of s 96(1) of the Constitution.
The
fourth respondent said the resignation from office by the former
President created a vacancy in the office of President. In terms of
para 14(4)(b) of the Sixth Schedule to the Constitution, the
vacancy in the office of President had to be filled by a nominee of
the political party which the former President represented when he
stood for election. ZANU-PF is the political party the former
President represented when he stood for election. It notified the
Speaker
of
the name of the first respondent as its nominee within ninety days
after the vacancy occurred in the office of President. The
notification was in terms of para 14(5) of the Sixth Schedule.
The fourth respondent said that the filling of the office of
President by the first respondent following the resignation from
office by the fifth respondent was constitutional. The first
respondent assumed office as President after taking the oath of
President in terms of s 94 of the Constitution.
The
fourth respondent averred that the impeachment process began when the
Senate and the National Assembly held a joint sitting to entertain
and debate a motion in terms of which charges of serious misconduct,
intentional failure to obey, uphold or defend the Constitution, and
wilful violation of the Constitution were levelled against the former
President. He denied the allegation that the joint sitting of the
Senate and the National Assembly was at the behest of the military.
He contended that Members of Parliament exercised the power vested in
the two Houses by s 97(1) of the Constitution.
At
the hearing of the application Mr
Chihambakwe
invited the Court to consider the applicants' conduct in the case.
He argued that the application was frivolous and vexatious. The
applicants must have realised the futility of founding the relief
sought in the main application on the allegation that the former
President signed the written notice
of
resignation from office under duress. Without supporting evidence
from the latter, the applicants must have known that they would not
be able to prove the allegation. He said that the applicants “abused
court process for political reasons”.
Mr Chihambakwe
argued that there was lack of seriousness on the part of the
applicants in the making of the application. He said any reasonable
person would have appreciated the fact that the application could not
produce an order for the establishment of a Transitional Authority if
the resignation of the former President was declared
unconstitutional. The status
quo ante
the resignation would have had to be restored. He argued that a
litigant who abuses court process by pursuing a frivolous and
vexatious cause should be punished with an order of costs on a legal
practitioner and own client scale. He prayed for the dismissal of the
application for an order for direct access to the Court with costs on
the punitive scale.
DETERMINATION
OF THE ISSUES
WHETHER
THE WITHDRAWAL OF THE MATTER WAS VALID
The
case of Meda
v Sibanda and Ors 2016
(2) ZLR 232 (CC) is authority for the principle that a party cannot
withdraw at will a matter that has been set down for hearing. The
party intending to withdraw the matter must obtain the consent of the
other party and the leave of the Court. The purported withdrawal
would otherwise have no legal effect.
Rule 53(2)
of the Rules gives effect to the principle by providing as follows:
“53.
Withdrawal
(2)
A person instituting any proceedings may, at any time before the
matter has been set down and thereafter, by consent of the parties or
leave of the Court, withdraw such proceedings, in either of which
event he or she shall deliver a notice of withdrawal and shall embody
in such notice an undertaking to pay costs.”
Rule 53(2)
is subject to provisions of the Constitution. One such provision is
s 93(3), which has been interpreted to mean that once a petition
or application challenging the validity of an election of a President
or Vice President has been lodged with the Constitutional Court it
cannot be withdrawn.
In
the Meda
case supra
at 234F-235B
the
Court
said:
“While
parties may at any time before a matter is set down, withdraw a
matter, with a tender of costs, the same does not hold true for a
matter that has already been set down for hearing. Once a matter is
set down, withdrawal is not there for the taking.
The
applicable principles are set out in DE Van Loggerenberg and E
Bertelsmann Erasmus:
Superior
Court Practice (2nd
edn, Juta & Co Ltd, Cape Town, 2015) at p B1-304. A
person who has instituted proceedings is entitled to withdraw such
proceedings without the other party's concurrence and without leave
of the court at any time before the matter is set down.
The proceedings are those in which there is lis
between the parties, one of whom seeks redress or the enforcement of
rights against the other. …
Once
a matter has been set down for hearing it is not competent for a
party who has instituted such proceedings to withdraw them without
either the consent of all the parties or the leave of the court.
In
the absence of such consent or leave, a purported notice of
withdrawal will be invalid.
The
court has a discretion whether or not to grant such leave upon
application.
The question of injustice to the other parties is germane to the
exercise of the court's discretion. It is, however, not ordinarily
the function of the court to force a person to proceed with an action
against his will or to investigate the reasons for abandoning or
wishing to abandon one
- see Abramacos
v Abramacos
1953 (4) SA 474 (SR); Pearson
& Hutton NNO v Hitseroth
1967 (3) 591 (E) at 593D, 594H; Protea
Assurance Co Ltd v Gamlase
1971(1) SA 460 (E) at 465G; Huggins
v Ryan NO
1978 (1) SA 216 (R) at 218D; Franco
Vignazia Enterprises (Pty) Ltd v Berry
1983 (2) SA 290 (C) at 295H;Levy
v Levy
1991(3) SA 614 (A) at 620B; Herbstein & Van Winsen 'The
Civil Practice of the High Courts and Supreme Court of Appeal of
South Africa'
(5 ed) p 750.” (my emphasis)
The
applicants took the view that the filing of a notice of withdrawal
after a matter had been set down for hearing had the effect of
terminating the proceedings before the Court. They were wrong. The
act of setting the matter down for hearing puts it under the control
of the Court. A party who files a notice of withdrawal without the
consent of the other parties or the leave of the Court after the
matter has been set down and fails to attend at the hearing runs the
risk of being found in default. The Court can, as happened in this
case, exercise its discretion and proceed to hear submissions from
the party who is before it on the day of the hearing.
WHETHER
IT IS IN THE INTERESTS OF JUSTICE THAT THE APPLICATION FOR DIRECT
ACCESS BE GRANTED
An
application for direct access is regulated by the Rules. An applicant
has to satisfy all the requirements of the Rules. The Court found
that the applicants failed to comply with the Rules in this regard.
There has to be actual compliance with the contents of the provisions
of the applicable rule. It is not a question of mere formality.
Direct access to the Constitutional Court is an extraordinary
procedure granted in deserving cases that meet the requirements
prescribed by the relevant rules of the Court.
Rule 21(3)
of the Rules prescribes what must be contained in an application of
this nature. It provides as follows:
“(3)
An application in terms of subrule (2) shall be filed with the
Registrar and served on all parties with a direct or substantial
interest in the relief claimed and shall set out —
(a)
the grounds on which it is contended that it is in the interests of
justice that an order for direct access be granted; and
(b) the
nature of the relief sought and the grounds upon which such relief is
based; and
(c) whether
the matter can be dealt with by the Court without the hearing of oral
evidence or, if it cannot, how such evidence should be adduced and
any conflict of facts resolved.”
The
importance of the requirement that an applicant should show that it
is in the interests of justice that the application be granted has
been explained by Currie I and de Waal J in “The
Bill of Rights Handbook”
(6th
ed, Juta & Co (Pty) Ltd 2013) at p 128. The learned authors
said:
“Direct
access is an extraordinary procedure that has been granted by the
Constitutional Court in only a handful of cases. … The
Constitutional Court is the highest court on all constitutional
matters. If constitutional matters could be brought directly to it as
a matter of course, the Constitutional Court could be called upon to
deal with disputed facts on which evidence might be necessary, to
decide constitutional issues which are not decisive of the litigation
and which might prove to be of purely academic interest, and to hear
cases without the benefit of the views of other courts having
constitutional jurisdiction. Moreover, … it is not ordinarily in
the interests of justice for a court to sit as a court of first and
last instance, in which matters are decided without there being any
possibility of appealing against the decision given.”
It
is imperative for an applicant for an order for leave for direct
access to indicate that it is in the interests of justice that an
order for direct access be granted. Where the affidavit does not
satisfy the requirement, the application has no basis. Rule 21(3)(a)
requires that the founding affidavit should have regard to the
matters that show why the interests of justice would be served if an
order for direct access is granted. Mr
Chihambakwe correctly
pointed out that
the
applicants' founding affidavit was wanting in that regard. The
applicants did not provide the factual foundation on which the Court
could make its decision whether the application, if granted, would be
in the interest of justice. There was therefore no compliance with
r 21(3)(a).
Rule
21(8) goes on to provide as follows:
“(8)
In determining whether or not it is in the interest of justice for a
matter to be brought directly to the Court, the Court or Judge may,
in addition to any other relevant consideration, take the following
into account —
(a) the
prospects of success if direct access is granted;
(b) whether
the applicant has any other remedy available to him or her;
(c) whether
there are disputes of fact in the matter.”
After
considering all the circumstances of the case, the Court came to the
decision that the application had no prospects of success. Du
Plessis M, Penfold G and Brickhill J, “Constitutional
Litigation”
(1 ed,
Juta & Co Ltd, Cape Town, 2013) at p 89, explain the
requirement that there be prospects of success in an application for
direct access. They say:
“Another
relevant consideration in deciding on direct-access applications is
the prospects of success of a claim. This
inquiry inevitably involves a degree of delving into the merits of
the case and is in many respects similar to the inquiry that is
conducted in relation to an appeal. … An applicant for direct
access must make out at least a prima facie
case on the merits of the matter. … Of course, predictably, the
court will not be inclined to grant direct access to an applicant who
is unlikely to be successful on the substantive issues raised as to
do so would waste judicial resources.
It should be also borne in mind that reasonable prospects of success
are necessary for direct access to be granted but that good prospects
are not, in themselves, a sufficient basis to be granted direct
access.” (my emphasis)
As
indicated earlier, the main application hinges on three issues. The
first is whether the former President's resignation was done under
duress. The second is whether the impeachment process
against
him was instituted at the behest of the military. In particular, the
applicants alleged that the impeachment proceedings were a direct
result of “Operation Restore Legacy”. The third issue is whether
the assumption by the first respondent of the office of President was
unconstitutional. The applicants failed to make out a prima facie
case on the merits of each of the issues.
The
applicants made assertions of the facts which the fourth respondent
denied. Consistent with the general rule that the person who makes an
affirmative assertion of facts which are not self-evident must prove
them, the onus was on the applicants to prove the facts they
asserted. Nyahondo v Hokonya and Ors 1997 (2) ZLR 457
(S) at 459. The Court turns to show that the applicants had no
factual basis for the allegations they made on each issue.
WHETHER
THE FORMER PRESIDENT'S RESIGNATION WAS DONE UNDER DURESS
The
Constitution provides for situations in which a presidency may be
brought to an end. Ordinarily, a presidency must last for a period of
five years from the time an elected President is sworn in and assumes
office to the time he or she is re-elected and sworn in or a new
President is elected and sworn in. Under the Constitution, a
presidency can, however, be brought to an end before the expiry of
the period of five years by death, resignation or removal from office
of the President through the impeachment process.
It
is common cause that the former President resigned from the office of
President at a time when impeachment proceedings for his removal from
office were underway. The question raised by the application is
whether the resignation was coerced out of the former President
against his will.
Section 96(1)
of the Constitution provides for a situation where a presidency may
be brought to an end by resignation. The Constitution envisages a
freely and voluntarily tendered resignation for the termination of
the presidency to be valid. In other words, the resignation must be a
free expression of the will of the President to bring his or her
presidency to an end.
Section 96(1)
of the Constitution provides as follows:
“96
Resignation of President or Vice-President
(1) The
President may resign his or her office by written notice to the
Speaker,
who must give public notice of the resignation as soon as it is
possible to do so and in any event within twenty-four hours.” (my
emphasis)
In
compliance with the Constitution, the former President gave written
notice of his resignation from office to the Speaker of the National
Assembly, who is also the Head of Parliament. The written notice of
resignation reads:
“21
November, 2017
The
Honourable Jacob Mudenda,
NOTICE
OF RESIGNATION AS PRESIDENT OF THE REPUBLIC OF ZIMBABWE IN TERMS OF
THE PROVISIONS OF SECTION 96(1) OF THE CONSTITUTION OF ZIMBABWE
AMENDMENT (NO. 20)
2013
Following
my verbal communication with the Speaker of the National Assembly,
Advocate Jacob Mudenda, at 1353 HRS, 21st November
2017, intimating my intention to resign as the President of the
Republic of Zimbabwe, I,
Robert Gabriel Mugabe, in terms of Section 96(1)
of the Constitution of Zimbabwe, hereby formally tender my
resignation as the President of the Republic of Zimbabwe with
immediate effect.
My
decision to resign is voluntary on my part,
and arises from my concern for the welfare of the People of Zimbabwe,
and my desire to ensure a smooth, peaceful and non-violent transfer
of power that underpins national security, peace and sustainability.
Kindly
give public notice of my resignation as soon as possible, as required
by Section 96(1) of the Constitution of Zimbabwe.
(signed)
ROBERT
GABRIEL MUGABE
President
of the Republic of Zimbabwe
The
Honourable Jacob Mudenda
Speaker
of the National Assembly
Parliament
of Zimbabwe” (italics emphasis my own)
The
Speaker gave public notice of the resignation through General Notice
652 of 2017 within twenty-four hours of receiving the written notice,
as required by s 96(1) of the Constitution. The General Notice
was published in a Government
Gazette Extraordinary
on 22 November 2017. It reads as follows:
“General
Notice 652 of 2017.
CONSTITUTION
OF ZIMBABWE
___________
Notice
of Resignation as President of the Republic of Zimbabwe in terms of
the provisions of section 96(1) of the Constitution of Zimbabwe
Amendment (No. 20) 2013.
____________
IT
is hereby notified that I, Advocate Jacob Francis Mudenda, Speaker of
the National Assembly, on Tuesday the 21st
of November, 2017, received a written notification from His
Excellency the President, Robert Gabriel Mugabe, in terms of
section 96(1) of the Constitution, that he has resigned as
President of the Republic of Zimbabwe with immediate effect.
ADVOCATE
JACOB FRANCIS MUDENDA,
22-11-2017 Speaker
of the National Assembly.”
The
former President's written notice of resignation speaks for itself.
It sets the context in which it was written. The former President
candidly reveals the fact that he had communication with the Speaker
at 1353 hours. In the communication, the former President expressed
to the Speaker his desire to resign from the office of President. The
Speaker must have advised the former President that for the
resignation to have the legal effect of bringing his presidency to an
end, it had to be communicated to him by means of a written notice.
That is a specific requirement of the form a constitutionally valid
resignation from office by a President has to take. A written notice
of resignation addressed to the Speaker and signed by the President,
on the face of it, meets the first requirement of constitutional
validity.
The
written notice, which was signed by the former President, in which he
communicated his resignation from office, was received by the Speaker
later that day at 1750 hours. The sequence of events shows
willingness on the part of the former President to ensure that the
end of his presidency was in conformity
with the Constitution. The contents of the written notice show that
the former President was aware of the fact that his resignation from
office had to conform with the procedural and substantive
requirements of the provisions of s 96(1) of the Constitution to
have the desired legal effect. Specific reference is made in the
written notice to what is the only
provision of the Constitution in terms of which the validity of a
resignation by a President from office must be established.
Resignation
from office is an expression of a peculiarly personal decision.
Absent credible evidence to the contrary, resignation from office is
evidence of the exercise of free will. A written notice of
resignation addressed to the Speaker and signed by the President
raises the presumption that it is a free and voluntary resignation.
One
does not ordinarily append one's signature to a document the
contents of which do not represent one's interests. The signature
is in itself evidence, in the absence of anything of stronger
probative value to the contrary, of the fact that the contents of the
document express the true intention of the signatory. In the
circumstances, the author of the written notice of resignation would
carry the evidential burden of proving that he or she signed the
written notice under duress.
What
the former President said in the written notice of resignation is the
best evidence available of the state of his mind at the time. He said
he was free to express his will to resign. Not only does the former
President declare in the written notice that he made the decision to
bring his presidency to an end voluntarily, he gives reasons for
doing so in clear and unambiguous language. He said he was motivated
by the desire “to ensure a smooth, peaceful and non-violent
transfer of power that underpins national security, peace and
sustainability”. There is no doubt that the former President
ensured that his resignation from office was in strict compliance
with the letter and spirit of the provisions of s 96(1) of the
Constitution.
The
applicants seek to impugn the constitutionality of the former
President's resignation by alleging, without any evidence, that he
resigned under duress. However, the fact that the former President
freely and voluntarily chose to act constitutionally in bringing his
presidency to an end, thereby ensuring a smooth and peaceful transfer
of power, attests to an application of the mind to the consequences
of his action.
In
the absence of any allegation and evidence by the signatory of having
signed the document under duress, a court would not even find it
necessary to enquire into the credibility or otherwise of allegations
of the document having been signed under duress being made by a third
party who was not present at the time the document was signed.
The
written notice of resignation was received by the Speaker at
1750 hours. The debate of the motion for the removal of the
President was underway. The timing of the service of the written
notice is proof of a deliberate decision by the former President to
end his presidency by resignation rather than
suffer the disgrace of removal from office by impeachment.
The
proceedings before the joint sitting of the Senate and the National
Assembly would not have influenced the former President to resign if
he considered them to be unconstitutional or unlikely to lead to his
removal from office. At the time the impeachment process began, the
military action had obviously not removed the former President from
office. What is clear from the written notice of resignation is that
the former President was free to choose not to resign from office at
the time he did. He could have decided to remain in office and await
the humiliation of being removed from office by the impeachment
process. The state of freedom to choose how the presidency was to end
is a right the former President enjoyed under the Constitution.
The
relief the applicants intended to seek from the Constitutional Court
in the main application shows lack of seriousness in the raising of
the allegation of unconstitutionality of the former President's
resignation from office. Whilst contending that the resignation had
no legal effect because it was done under duress, the applicants did
not seek that it be set aside nor that the status quo ante be
restored. They did not want the former President back in office.
The
applicants wanted the Constitutional Court to order that a
Transitional Authority comprising all political players, presumably
including themselves, be appointed to exercise the powers of
government for a minimum period of twelve months. They cannot want to
have their cake whilst eating it at the
same time. If, upon review, the resignation of the former President
was found to have been inconsistent with the requirements of s 96(1)
of the Constitution, it would have had to be declared
unconstitutional. The legal effect of the declaration of
constitutional invalidity would be that the resignation would
be taken as having not occurred. The former President would have had
to remain in office. No Transitional Authority could be formed on the
basis of a resignation in breach of the
provisions of s 96(1) of the Constitution. The Constitution has
specific provisions on how a vacancy in the office of President
created by resignation must be filled.
WHETHER
THE IMPEACHMENT PROCEEDINGS WERE AT THE BEHEST OF THE MILITARY
Linked
to the former President's resignation are the impeachment
proceedings that were convened against him. It is common cause that
the fourth respondent notified the former President of the
impeachment proceedings. The fourth respondent produced a copy of
the Hansard,
which is
the
official record of the proceedings that took place on 21 November
2017. It is proof that the impeachment proceedings were conducted in
accordance with constitutional requirements.
Section 97
of the Constitution provides for the procedure to be followed when
the Senate and the National Assembly resolve to impeach a President.
It reads:
“97
Removal of President or Vice-President from office
(1)
The Senate and the National Assembly, by a joint resolution passed by
at least one-half of their total membership, may resolve that the
question whether or not the President or a Vice-President should be
removed from office for —
(a) serious
misconduct;
(b) failure
to obey, uphold or defend this Constitution;
(c) wilful
violation of this Constitution; or
(d) inability
to perform the functions of the office because of physical or mental
incapacity;
should
be investigated in terms of this section.
(2)
Upon the passing of a resolution in terms of subsection (1), the
Committee on Standing Rules and Orders must appoint a joint committee
of the Senate and the National Assembly consisting of nine members
reflecting the political composition of Parliament, to investigate
the removal from office of the President or Vice-President, as the
case may be.
(3)
If —
(a) the
joint committee appointed in terms of subsection (2) recommends
the removal from office of the President or Vice-President; and
(b) the
Senate and the National Assembly, by a joint resolution passed by at
least two-thirds of their total membership, resolve that the
President or Vice-President, as the case may be, should be removed
from office;
the
President or Vice-President thereupon ceases to hold office.”
Under
the Constitution, only the two Houses of Parliament, when constituted
into a joint sitting, are vested with the power to impeach a
President for the purpose of removing him or her from office. Whilst
Parliament has the power of impeachment, it is not under a duty to
impeach a President. It has a wide leeway to decide whether and when
to institute the impeachment process. Impeachment is a dangerous
political process, to be embarked on as a last
resort and in clear cases. A failed impeachment process may have
serious divisive effects. A successful removal of a President from
office by impeachment visits the former President and the nation with
disgrace.
Impeachment
is, however, a democratic weapon against serious misconduct,
intentional failure to obey, uphold or defend the Constitution,
wilful violation of the Constitution, and inability to perform the
functions of the office of President due to physical or mental
incapacity. In clear cases, the personal and national disgrace
resulting from the removal of a President from office through the
impeachment process are a price worth paying.
The
Hansard
indicates
that on Tuesday, 21 November 2017, at 1630 hrs, there was a
joint sitting of the Senate and the National Assembly at the Harare
International Conference Centre. A member from the ruling party moved
a motion for the resolution of the question whether or not the
removal of the President from office for the reasons specified in
s 97(1) of the Constitution should be investigated. The mover of
the motion set out details of the acts and omissions the former
President was alleged to be guilty of. The motion was supported by
two members of the ruling party. Two members of the opposition rose
to support the motion. A proportional representation member also
supported the motion. The debate was on-going when at 1750 hrs
the impeachment process was interrupted by service on the Speaker of
the written notice of resignation from the former President.
Members
of Parliament had to decide at this stage of the process whether the
acts and omissions with which the former President was being charged
in the motion would, if proved at the investigation stage, constitute
the grounds for removal of a President from office listed under
s 97(1) of the Constitution.
The
applicants did not suggest that what happened at the International
Conference Centre were not impeachment
proceedings. They accepted that a joint sitting of the Senate and the
National Assembly was convened and a motion moved charging the former
President with acts and omissions which, if proved, would constitute
the grounds for removal from office. They did not seek to impugn the
accuracy and correctness of the record of proceedings in the nature
of the debates by Members across the political divide who supported
the motion for a resolution that the question of the removal of the
President from office be investigated.
Failure
by the applicants to allege any inconsistency between the conduct of
the proceedings and the requirements of s 97(1) of the
Constitution shows that they had no basis on which the
constitutionality of the impeachment proceedings could be impugned.
The joint sitting of the Senate and the National Assembly does not
only have the power to decide when impeachment proceedings commence,
it controls the advancement of the process towards the realisation of
its objective. It does so through compliance with the procedural and
substantive requirements of s 97 of the Constitution.
Had
the former President not stopped the impeachment process from going
through each of the four stages prescribed by s 97 of the
Constitution by tendering his resignation from office, he would have
been given an opportunity to be heard on the charges levelled against
him at the investigation stage. The fact that the former President
tendered his resignation at a time when the impeachment process was
underway suggests that he carefully considered the chances of
surviving the process and concluded that his removal from office was
the inevitable outcome.
WAS
THE ASSUMPTION BY THE FIRST RESPONDENT OF THE OFFICE OF PRESIDENT
UNCONSTITUTIONAL?
The
allegation that the assumption by the first respondent of the office
of President was unconstitutional could only be made on the
assumption that the resignation from office by the former President
was invalid. That assumption was wrong. All the evidence shows that
the former President's resignation was in conformity with the
provisions of the Constitution.
The
legal effect of the resignation was the creation of a vacancy in the
office of President. Paragraph 14(4)(b) of the Sixth Schedule to
the Constitution provides that a vacancy in the office of President
created by the resignation of a President who has been elected in a
general election must be filled by a nominee of the political party
which the President represented when he or she stood for election.
Paragraph 14(5)
of the Sixth Schedule provides that the political party which is
entitled to nominate a person to fill the vacancy in the office of
President must notify the Speaker of the nominee's name within
ninety days after the vacancy occurred in the office of President.
The Constitution goes on to provide that the nominee assumes office
as President after taking the oath of President in terms of s 94,
which oath the nominee must take within forty-eight hours after the
Speaker was notified of his or her name.
It
is common cause that the assumption by the first respondent of the
office of President was in accordance with the procedural and
substantive requirements of paras 14(4)(b) and 14(5) of the
Sixth Schedule to the Constitution. A vacancy in the office of
President occurred as a result of the resignation by the former
incumbent.
ZANU
(PF), which is the political party the former President represented
when he stood for election, nominated the first respondent as the
person to assume the office of President. The Speaker was notified of
the first respondent's name as the nominee to fill the vacancy in
the office of President within the prescribed period of ninety days
after the vacancy occurred in the office of President.
The
first respondent took the oath of President within the requisite
forty-eight hours after the Speaker was notified of his name. As a
result of strict compliance with all the procedural and substantive
requirements of a constitutionally valid assumption of the office of
President left vacant by reason of resignation in terms of s 96(1)
of the Constitution, the first respondent assumed office as
President. The question of the constitutionality of the assumption by
the first respondent of the office of President cannot arise from
these self-evident facts.
COSTS
The
general principle by which the Court is guided on the question of
costs is that generally no costs are awarded in constitutional
matters. As is clear from the proviso to r 55(1) of the Rules on
costs, the general principle is subject to the overriding principle
to the effect that the award of costs is a matter within the
discretion of the court to be exercised judicially, taking into
account the circumstances of each case.
In
the exercise of discretion, courts usually do not order costs against
an unsuccessful private party who seeks to vindicate constitutional
rights against the State or to protect and enforce the Constitution
in the public interest. The rationale for the approach is that orders
of costs in such circumstances might have a
chilling effect on potential litigants in the same category as
the unsuccessful litigant. As the approach is part of the exercise of
discretion, a court may, in appropriate circumstances, order that
an unsuccessful private party pay costs in a constitutional
case.
The
circumstances that may influence a court to exercise its discretion
and order an unsuccessful private party to pay costs in a
constitutional case include institution of frivolous or vexatious
proceedings. Conduct in the proceedings is a factor a court is
entitled to take into account in deciding whether to award costs
against an unsuccessful litigant. The test is that the award of costs
should be just when regard is had to the facts and circumstances of
the case. It would not be in the interests of the administration of
justice to encourage litigants to believe that they are free to
institute constitutional proceedings challenging the
constitutionality of State action on spurious grounds. Awards of
costs against unsuccessful litigants, in appropriate constitutional
litigation cases, are a necessary means for the protection of the
integrity of the judicial process and maintenance of public
confidence in it.
In
Affordable
Medicines Trust and Others
v Minister
of Health and Others 2006
(3) SA 247 (CC) the Constitutional Court of South Africa at
296H–297E held:
“[138]
The
award of costs is a matter which is within the discretion of the
court considering the issue of costs. It is a discretion that must be
exercised judicially having regard to all the relevant
considerations. One such consideration is the general rule in
constitutional litigation that an unsuccessful litigant ought not to
be ordered to pay costs. The rationale for this rule is that an award
of costs might have a chilling effect on the litigants who might wish
to vindicate their constitutional rights. But this is not an
inflexible rule. There may be circumstances that justify departure
from this rule such as where the litigation is frivolous or
vexatious. There may be conduct on the part of the litigant that
deserves censure by the court which may influence the court to order
an unsuccessful litigant to pay costs. The ultimate goal is to do
that which is just having regard to the facts and circumstances of
the case.
In Motsepe
v
Commissioner
for Inland Revenue
[1997 2 SA 898 (CC)], this Court articulated the rule as follows:
'[O]ne
should be cautious in awarding costs against litigants who seek to
enforce their constitutional right against the State, particularly
where the constitutionality of the statutory provision is attacked,
lest such orders have an unduly inhibiting or “chilling” effect
on other potential litigants in this category. This
cautious approach cannot, however, be allowed to develop into an
inflexible rule so that litigants are induced into believing that
they are free to challenge the constitutionality of statutory
provisions in this Court, no matter how spurious the grounds for
doing so may be or how remote the possibility that this Court will
grant them access. This can neither be in the interests of the
administration of justice nor fair to those who are forced to oppose
such attacks.'”
(my emphasis)
In
De
Lacy and Another
v South
African Post Office 2011
(9) BCLR 905 (CC) the principle that an award of costs is a matter
within the discretion of a court and that a court may depart from the
general principle that an unsuccessful litigant is not ordered to pay
costs in constitutional litigation was again stated. It was said:
“An
award of costs is a matter which lies in the discretion of a court.
The discretion is exercised judicially and with regard to all
circumstances relevant to the determination of costs. The standard
developed by this Court, to be used in the enquiry, is whether it is
just and equitable to make a particular costs order. We have also
said that where an unsuccessful litigant had sued a state organ with
a view to vindicate a protection afforded by the Constitution, the
litigant should not ordinarily be ordered to pay costs. That however
is not an inflexible rule.
A
court may depart from this general rule if it is just and equitable
to do so. This may be the case where the unsuccessful litigant is
shown to have acted with improper motive, or has abused court
process; has conducted the case in a vexatious manner; has not
properly adhered to the rules of court; has made sustained and
unwarranted attacks on other litigants or witnesses or judicial
officers concerned or has not pursued the claim in good faith.
This limited catalogue is not intended to be exhaustive in as much as
what may be an appropriate costs order, even in constitutional
litigation, and may be conditioned by the circumstances of the case.”
(my emphasis)
The
above authorities show that costs would be awarded in constitutional
litigation in any of the following circumstances -
i. Where
the litigation is conducted in a frivolous or vexatious manner;
ii. Where
the litigation amounts to an abuse of court process;
iii. Where
the litigation is motivated by improper motive;
iv. Where
there is non-compliance with the rules of court;
v. Where
unwarranted attacks are made on other litigants, witnesses or
judicial officials; or
vi. Where
the claim is pursued with mala
fides.
The
list is not exhaustive as cost orders must be made on a case by case
basis if there is to be justice in constitutional litigation.
The
applicants made an application for leave for direct access without
compliance with the Rules of Court. They sought relief in respect of
an application they intended to place before the Constitutional Court
when the relief they sought in that application was groundless. They
must have known that the relief they sought could not be granted on
the allegations they made. They made a frivolous application.
The
litigation amounted to abuse of court process. The applicants made
malicious allegations of improper conduct against officials in the
registry of the Constitutional Court, accusing them of colluding with
state security agents to make documents relating to their application
disappear. They knew that the allegations were false. They conducted
themselves in this manner to attract publicity for political reasons.
Although
the applicants are unsuccessful private parties in a constitutional
case, their conduct justifies an award of costs against them.
Mr Chihambakwe
argued
that costs on a legal practitioner and client scale should be ordered
against the applicants. In the opposing affidavit and the heads of
argument, the fourth respondent prayed for the dismissal of the
application with costs. There was no prayer for an order of costs on
the punitive scale.
Rule 55(2)
of the Rules provides that if the Court or the Judge considers that
the conduct of a party has been such as to warrant an order of costs
on a legal practitioner and client scale the Court or the Judge may
order the party to pay such costs. Rule 55(4) provides that
before making such an order the Court or the Judge shall give the
party concerned an opportunity to make representations as to whether
or not the order should be made. The applicants were not given the
opportunity to make representations whether or not the order of costs
on a legal practitioner and client scale should be made.
DISPOSITION
In
the result it is ordered that -
“1. The
application for direct access to the Court be and is hereby
dismissed.
2. The
applicants are to pay the fourth respondent's costs jointly and
severally the
one paying the others to be absolved.”
Chihambakwe
Mutizwa & Partners, fourth
respondent's legal practitioners
