Court
Application (Constitution of Zimbabwe- State Liabilities Act-
Declaration of invalidity)
MUSHORE
J:
After
what can only be described as being both an eventful but arduous
journey through the courts, applicant is now petitioning this Court
for an order declaring that s 5(2) of the State Liabilities Act
[Chapter
8:14]
is unconstitutional. Section 5 (2) of that Act provides that State
Property is immune from attachment and execution, and that in
circumstances where the State finds itself to be a judgment debtor,
any amount owed by it should be paid out from the Consolidated
Revenue Fund. Applicant contends that whilst s 5 (2) remains valid,
it is unjustly impeding him from realising an award of damages
granted in his favour by this court in matter number HC 4766/13.
The
long history of this matter speaks to the effort which the applicant
has applied to arrive at this day. The facts are these.
The
applicant was wrongly arrested on allegations of theft on 16 February
2008 from a person known as Andre Nsaka Nsaka. He was formally
charged and tried for theft and subsequently acquitted of the charge
of theft on 18 February 2013. After his arrest, the Police seized two
of his vehicles, and cash in the amount of USD78,000-00 and
ZWD46,135,000,000-00. Unfortunately after his acquittal the Police
unprocedurally released the seized property to Andre Nsaka Nsaka. The
Police eventually released the motor vehicles to applicant, but
failed to reimburse applicant his cash. That was when the applicant
began seeking recourse through the civil courts. He then sued the
Co-Minister of Home Affairs; the Commissioner General of the Police;
the Officer in Charge of C.I.D suspects (Harare Central Police) and a
Detective Inspector Mukambi for the re-imbursements of the cash which
had yet to be returned to him and his efforts were rewarded when he
successfully obtained a default judgment from this Court on 18
February 2015 in case number H.C4766/13. The court ordered the
defendants to reimburse applicant his money.
After
the applicant succeeded in obtaining an order for the payment of
US$78,900-00 the defendants jointly applied for that order to be
rescinded in matter HC35001/15. However after filing that
application, all of those defendants failed to prosecute it. The
applicant was thus forced to ensure that the application for
rescission was disposed of which he did by filing an application for
dismissal of the rescission application under case number HC4942/15.
On 30 June 2015, Justice Tsanga
dismissed the respondents' application for rescission for want of
prosecution and awarded costs in applicant's favour on a legal
practitioner and client scale.
It
would appear that the respondents had also applied for a permanent
stay of execution pending finalisation of their application for
rescission. Once again the applicant was forced to instruct his
lawyers to ensure that that application for a stay of execution was
disposed of; and this time the applicant wrote to the respondents'
lawyers and requested them to set that matter down for hearing. The
respondents responded by withdrawing their application for a
permanent stay of execution on 2 October 2015.
Oddly
the respondents then made an application challenging the dismissal of
their application for rescission in case number HC7065/15. Once again
the applicant took it upon himself to instruct his lawyers to press
for a set down date. Upon receiving applicant's request, once again
the respondents withdrew this application on 2 October 2015.
In
February 2013, the respondents had challenged the default judgment
granted in HC4766/13 on appeal to the Supreme Court. However, the
Supreme Court threw out the respondents' appeal.
On
9 October 2015, the applicant's attorneys then addressed a letter
of demand to the respondents. They enclosed their trust account
details. In response to the letter of demand, on 26 October 2015, the
Commissioner General of the Police addressed a letter to the
applicant advising him that the Permanent Secretary in their Ministry
had granted authority to pay the sum awarded 'subject
to treasury concurrence'.
On 16 November 2015 the Director of Legal Affairs in the Police wrote
to The Permanent Secretary of Home Affairs confirming the
authorisation of payment of applicant's legal costs in the sum of
US$10,500-00 which were reasonable according to them. After
telephonic follow ups were done by the applicant's legal
practitioners, the Director of Legal Services (Police) wrote to the
applicant's attorneys citing s5(2) of the State Liabilities Act
[Chapter
8:14]
and informing the applicant that:
“all
that the Defendants had to do was to cause to be paid out of the
Consolidated Revenue Fund….'
And that is exactly what we have done and have always kept you
informed so that you may properly advise your client.
We
are therefore surprised by the tone of your correspondence and to
avoid any misunderstandings between the office of the Commissioner
General of Police and his officers and yourselves, we have decided
that any future communication be done through our legal practitioners
of record, being the Civil Division of the Attorney General's
Office.”
(my
underlining)
They
also attached a copy of their letter to The Director of Finance
(Police) dated the 30th
October 2015 as proof that they (Director Legal Services Police) had
done their part to facilitate the payment to the applicant. Still, no
payment was forthcoming to the applicant.
It
was then that the applicant tried a different tack and wrote directly
to the Minister of Finance in a letter dated 2nd
December 2015 stating:
“The
long and short of the above documents is that, the Defendants have
been ordered have discharged their part, that is, by
causing to be paid out of the Consolidated Revenue Fund
which fund is administered by yourselves hence our appeal to you. Our
understanding from the attached correspondences is that, the duty to
pay is on your shoulders. Put differently, if
our client is not paid his money it is because your office would have
withheld its authority. In which case your conduct would be
contemptuous of the order granted by this Honourable Court.
…Please
note that we are under strict instructions to apply for contempt of
court against your Ministry as well as to approach the Constitutional
Court to have section 5(2) of the State Liabilities Act to be
declared unconstitutional…………In the event that we proceed
against you, kindly take this letter as our notice to you in terms of
section 6 of the State Liabilities Act [Chapter
8:16]”
(my
underling)
Having
received no response to this letter, the applicant's attorneys also
wrote to the Permanent Secretary of Finance in which letter they
effectively repeated the contents of their previous letter and
informed the Permanent Secretary that in addition to the cash sums
due to applicant, the interest due to the applicant was in the amount
of US$11,835-00 calculated from 25th
January 2013 up to 25th
January 2016. The following excerpt from the letter explains the
bureaucratic stumbling blocks which applicant had encountered:
“the
last communication from the Police reasonably made us believe that
they (the Police) had caused the Minister of Finance to release our
client's money; see their letter to us dated 26 November 2015. On
the strength of that, we then approached the Minister of Finance
since we thought that they were sitting on the request from the
police and from your office. See our letter to the Minister of
Finance dated 2nd
December 2015. Unfortunately the Minister of Finance could not favour
us with a response. This prompted us to approach the Accountant
General (ex-Chequer) one Mr Zvandasara and the Head of Budget a Mr
Churu. These two officials categorically denied ever receiving
communication concerning the above matter let alone the request to
pay our client. Further to that, they indicated that, they do not
have an obligation, in the absence of your instructions, to pay us
since we did not sue them. This came as a surprise to ourselves and
our client considering that they
had sought permission from the Minister of Finance to have that
amount released and paid to yourselves for onward transmission to us”
(my
underlining)
In
the letter, applicant's attorneys also informed the Minister of
their intention to make the current application in the event that
they did not receive a response within seven days of their letter. It
appears that this letter had the desired effect of prompting a
response from the Secretary of Home Affairs who acknowledged receipt
in a letter dated 4th
February 2016 and intimated that:
“all
payments made by any Government institution require several processes
such as Treasury Concurrence as they are prerequisite to payments
processes. At present the Ministry has initiated the required
processes and will advise you on the progress made within a
reasonable time.”
(my
underlining)
After
another demand by the applicant on 19 February 2016, the Secretary
for Home Affairs wrote to the applicant's attorneys stating that
'all necessary arrangements have been made to request and pay the
amount due to your client as granted by the court'.
After
a further two warnings from the applicant's attorneys, the
applicant finally approached the High Court for a mandamus
in which he cited the Minister of Home Affairs only and which he they
obtained from this Court on 16 May 2016 in matter number HC4261/16.
The Mandamus
Order compelled the Minister of Home Affairs to comply with the court
order given by Honourable Justice Musakwa
on 18 February 2015. Costs were ordered against the respondents once
again on a punitive scale.
The
applicant's attorneys furnished the respondents with the court
order attached to their letter dated 7th
June 2016 and in which letter they politely urged the respondents to
comply with the mandamus
order
to avoid being in contempt of court.
Having
received no response, the applicant's attorneys applied for and
were issued with a writ of execution. They furnished the Sheriff to
serve their writ. The Sheriff of the High Court wrote a letter to the
applicant on 15 October 2016 expressing reluctance on the part of the
Sheriff's office to serve the writ on the respondents because of
the immunity from execution which the respondents enjoyed in by
virtue of s5(2) of the State Liabilities Act [Chapter
8:16]
{hereinafter referred to as s5 (2) for ease of reference}.
This
was when the applicant made the current application for s5(2) of the
State Liabilities Act to be invalidated on the grounds that it is
unconstitutional; with the Minister of Justice and the
Attorney-General being added as respondents.
Section
5 (2) of the State Liabilities Act reads as follows:
“Section
5(2)
5.
No execution or attachment to be issued, but nominal defendant or
respondent authorised to pay the sum awarded.
(1)
In subsection (3) -
“judgment
debtor” means a person who under any order of any court, is liable
to pay money to any other person, and “judgment creditor” shall
be construed accordingly.
(2)
Subject to this section, no execution or attachment or process in the
nature thereof shall be issued the defendant or respondent in any
action or
proceedings
referred to in section two
or against any property of the State, but the nominal defendant or
respondents' may cause to be paid out of the Consolidated Revenue
Fund such sum of money as may, by judgment or order of the court, be
awarded to the plaintiff, the applicant or the petitioner, as the
case may be”.
In
the present matter, the applicant believes that the respondents are
indifferent to the rights which he ought to enjoy and which are
guaranteed to him by the Constitution of Zimbabwe. He believes that
whilst s5(2) remains valid, his constitutionally guaranteed rights
are being infringed. The following is a point form summary of
applicant's submissions in support of his contention that the
respondents are unconstitutionally encroaching on his fundamentally
protected rights and freedoms.
1.
The Constitution provides for the enforcement of fundamental human
rights and freedoms per
section 85 of the Constitution:
“85.
Enforcement of fundamental human rights and freedoms
(1)
Any of the following persons, namely-
(a)
any person acting in their own interests;
(b)……………….
(c)…………..
(d)……………
(e)………………
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”
(My emphasis)
2.
Applicant submits that section 5(2) is unconstitutional in that
despite the Constitution providing for equality before the law, the
section under scrutiny places the respondents in inequitable
superiority to other persons, and all other bodies and institutions.
He
submits that the Constitution does not recognise that there should be
such a distinction or that the rights of a certain class of persons
be preferred over another class of persons and that that is certainly
not the intention behind the guaranteed right in s 56 of the
Constitution:
“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.”
3.
In addition he cites other provisions of the Constitution which he
believes deem s5(2) to be unconstitutional. Those are as follows:
Section
44 imposes a duty to respect the Declaration of Rights pari
pasu
on both the State and person without limitation.
“44
Duty to respect fundamental human rights and freedoms.
The
State and every person, including juristic persons, and every
institution and agency of the government at every level must respect,
protect, promote and fulfil the rights and freedoms set out in this
Chapter.”
Section
45 provides a 'for the avoidance of doubt' emphasis of this duty.
“45
Application of Chapter 4
(1)
This Chapter binds the State and all executive, legislative and
judicial institutions of government at every level.”
4.
Section 164(3) provides for compliance with court orders without
limitation.
“164
Independence of the Judiciary
(1)
………..
(2)
……………
(3)
An
order or decision of a court binds the State and all persons and
governmental institutions and agencies to which it applies, and must
be obeyed by them”
5.
Applicant has also stressed that the respondents, like any other
litigants are constitutionally bound to obey court orders, per
s164(3) of the Constitution, and that the court is mandated to ensure
compliance thereto without favour or prejudice:
“164
Independence of the Judiciary
(1)
the courts are independent and are subject only to this Constitution
and the law, which
they must apply impartially, expeditiously and without fear, favour
or prejudice”.
(my
underlining)
6.
The Constitution specifically requires the respondents who are State
representatives to protect the democratic functions and processes of
the courts and ensure compliance with the provisions in the
Constitution.
“164
cont'd
(1)
The independence, impartiality
and effectiveness of the courts are central to the rule of law and
democratic governance, and therefore -
(a)
neither the State nor any institution or agency of the government at
any level, and no other person, may interfere with the functioning of
the courts;
(b)
the State, through legislative and other measures must assist and
protect the courts to ensure their independence, impartiality,
dignity, accessibility and effectiveness and to ensure that they
comply with the principles set out in section 165”.
7.
Furthermore, he complains that the respondents have denied him access
to information and that none of the respondents have been forthcoming
with proof that they were indeed processing his claim despite their
constant assurances. To that end he submits that the respondents have
breached his constitutionally guarded right to information provided
for in section 62 of the Constitution which reads:
“62.
Access to information
(1)
Every Zimbabwean citizen or permanent resident, including juristic
persons and the Zimbabwean media, has the right of access to any
information held by the State or by any institution or agency of
government at any level, in so far as the information is required in
the interests of public accountability.
(2)
Every person, including the Zimbabwean media…………….
(3)
Every person has the right to the correction of information, or the
deletion of untrue, erroneous or misleading information, which is
held by the State or any institution or agency of the government at
any level, and which relates to that person”
The
respondents are opposing the application arguing that s5(2) is not
unconstitutional and is in fact necessary and justifiable and is in
the public interest.
The
respondents believe that s86(3) of the Constitution supports s5(2) as
being a law of General application, which permits a limiting of
applicant's fundamental rights and freedoms and that to that extent
they have not fallen foul of the law.
“86
Limitation of rights and freedoms
(2)
The fundamental rights and freedoms set out in this Chapter may be
limited only in terms of a law of general application and to the
extent that the limitation is fair reasonable and necessary in a
democratic society based on openness, justice, human dignity,
equality and freedom and taking into account all relevant factors,
including -
(a)
the nature of the right or freedom concerned;
(b)
the purpose of the limitation, in particular whether it is necessary
in the interests of defence, public safety, public order, public
morality, public health, regional or town planning or the general
public interest;
(c)
the nature and the extent of the limitation;
(d)
the need to ensure that the enjoyment of right and freedoms by any
person does not prejudice the rights and freedoms of others;
(e)
the
relationship between the limitation and its purpose, in particular
whether it imposes greater restrictions on the rights and freedom
concerned than are necessary to achieve its purpose;
(f)
whether there are less restrictive means of achieving the purpose or
the limitation”
The
respondents contend that:
1.
Section 5 (2) is in fact necessary in the interests of the public
because if State assets could be executed then chaos would ensue and
disruption to essential services, such as ambulances will occur; {s
86 (2) (b) (supra)}
2.
That applicant ought to resort to other legal remedies to enforce
payment such as obtaining a contempt of court order or obtaining a
garnishee order against income accruing to the State; {s 86 (2) (f)
(supra)}
3.
They are not reluctant to pay, but that there are procedures which
need to be followed first in terms of the Public Finance Management
Act [Cap 22:19] and Treasury instructions because they are the
relevant procedures for payment of court ordered debts.
4.
If government assets become executable the country may experience
difficulties due to the current dire economic environment.
IS
THE LIMITATION JUSTIFIABLE?
Section
86(2) of the Constitution {supra}
provides guidelines to aid the courts in determining whether or not
the limitation is justifiable to the extent of allowing the law of
general application to override the constitutionally guaranteed
rights and freedoms which it encroaches.
Section
5(2) is worded almost exactly the same as section 3 of the South
African State Liabilities Act 20 of 1957 which was declared invalid
in the case of Nyathi
v
MEC
for Department
of
Health, Gauteng
2008 (5) SA (CC).
The
facts and issues in the Nyathi
case
when compared to the facts and issues in
casu
bear a striking similarity. At page 101 in the judgment in Nyathi,
Madala
J explained the roots of such an immunity from execution clause from
an historical perspective. He stressed that the limitation was
out-dated.
“[17]
This legislation is in line and compatible with the doctrine of
parliamentary supremacy……..
[18]
The Act is a relic of a legal regime which was pre-constitutional and
placed the State above the law; a State that operated from the
premise that 'the King can do no wrong'. That state of affairs
ensured that the State, and by a parity of reasoning its officials,
could not be held accountable for their actions”
The
law has since developed. There are parameters for addressing this
issue in s86(2) of the Constitution in addition to common law tests.
Proportionality.
The
test of proportionality is an expanded juristic translation of the
factors which are found in s86(2). It is apposite in providing
guidelines for determining the validity of a limitation even in the
face of an existing or potential collision with guaranteed
constitutional rights. It balances out the list of considerations
itemised in our s86 in a way that makes for a common sense
determination of whether the limitations can be said to be
justifiable in a democratic society.
Proportionality
is applied in circumstances such as this on the basic premise that
the State can sometimes successfully establish legal cause to
encroach an individual's rights which are protected and held dear
by the Constitution.
At
the outset, it occurs to me that broadly speaking s5(2) is
disproportionately biased in favour of the State as it deems the
State to be a judgment debtor with privileges. Nevertheless the
doctrine exists in our law and is one which I am obliged to defer to.
In
S
v Makwanyane
1995 (3) SA 391, (CC) Chaskalson
P, (rendering the principle judgment of the court), gave an
explanation on the doctrine thus:
“The
limitation of constitutional rights for the purpose that is
reasonable and necessary in a democratic society involves the
weighing up of competing values, and ultimately an assessment based
on proportionality….. The fact that different rights have different
implications for democracy as in the case of our Constitution, for an
open and democratic society based upon 'freedom and equality'
means that there is no absolute standard which can be laid down for
determining reasonableness and necessity. Principles can be
established, but the application of those principles to particular
circumstances can only be done on a case by case basis. This is
inherent in the requirement of proportionality, which calls for the
balancing of different interests. In the balancing process the
relevant considerations will include the nature of the right that is
limited and the importance of that purpose to such a society; the
extent of the limitation and, particularly where the limitation has
to be necessary, whether the desired ends could reasonably be
achieved through other means less damaging to the right in question”
See
also: S
v
Williams
1995 (3) SA 632 (CC) (at para 104).
The
formulation in S
v
Bhulwana
1996 (1) SA 388 (CC), in my view, provides a far more practical way
of approaching proportionality. At para 18 the South African
Constitutional Court put it this way:
“……the
court places the purposes, effects and importance of the infringing
legislation on one side of the scales and the nature and effect of
the infringement caused by the legislation on the other. The more
substantial the inroad into fundamental rights, the more persuasive
the grounds for justification must be”.
Whether
the limitation imposed by section 5 (2) can weather the
proportionality test?
Before
I begin the process of weighing up infringement of applicant's
rights versus the justification made by the respondents, I need to
mention the special obligation which exists and which is placed upon
the respondents and specifically prescribed for in the Constitution.
I take judicial notice of the constitutional provisions which
emphasise the need for judicial impartiality and the independence of
the Judiciary in a democratic state.
Section
164(2) of the Constitution as aforementioned emphasises the necessity
of State organs to assist in ensuring that the courts are not being
undermined and that the dignity, and independence of the judiciary is
preserved. To that end it seems to me that that special obligation
ought to be considered in a determination because obviously the
independence of the judiciary should never be compromised to any
extent because of the State deliberately failing to carry out their
obligations to assist persons to enforce their rights. In De
Lange
v Smuts
NO
& Ors
1998 (3) SA 785e Ackerman
J stated that:
“In
a constitutional democratic State, which ours certainly is, and under
the rule of law …… citizens as well as non-citizens are entitled
to rely upon the State for the protection and enforcement of their
rights. The State therefore assumes the obligation of assisting such
persons to enforce their rights, including the enforcement of their
civil claims against debtors”.
In
Mjeni
v Minister
of Health and Welfare, Eastern Cape
2000 (4) SA 446, JAFTA J derided the eroding of the right of access
to the courts brought upon by deliberate non-compliance of court
orders by the State as presenting “an illusion” to the
constitutional right of access to the courts.
The
respondents contend that their constitutional duty to ensure 'public
order and safety, override the applicant's desire to attach and
execute State property. They believe that “chaos and confusion”
will ensue if applicant was to be allowed to proceed with execution
of State assets. Counsel for the respondent submitted that if
ambulances were to be attached in order that the applicant's claim
is met, then State health services would be disrupted.
No
explanation was proffered by the respondents as to how or why an
ambulance would be put forth for seizure, or why a specific sector of
Government should be exposed to the consequences of any attachments
of State assets. There was no attempt by the respondents to establish
a nexus
in that regard. I got the sense that perhaps the rather fantastical
and dramatic statements from the respondents were an attempt to set
up the likelihood of theatrically ominous consequences in the event
that s5(2) was declared invalid.
However,
the submission was disconcertingly vague in its content and example.
Equally it made no sense against the backdrop that respondents had
repeatedly re-assured applicant that his claim had been approved for
payment from the Consolidated Revenue Fund. According to the
respondents, all that remained was for them to obtain treasury
approval for the payment itself.
Further,
from the record and the submissions made, respondents did not advert
to any attempts they might possibly have made to pursue and push
through the required processes which should have resulted in a
release of the money to applicant. The point thus made by the
respondents was founded on respondents' mere say-so. Nevertheless
their point did little to persuade me that their interests in the
present matter have a bearing on public order and public safety.
Secondly,
respondents submitted that s5(2) ought to remain valid because
applicant had other remedies available at his disposal.
The
respondents fleetingly suggested that the applicant ought to go the
route of obtaining a garnishee order; or a contempt of court order.
It
is clear that the second respondent is in and continues to be in
contempt of court. The suggestion being made is obviously intended to
delay matters perhaps because respondents wish to avoid reimbursing
applicant altogether. The respondents' proposal for a garnishee
order flies in the face of the respondents' special obligation
which I have referred to already. The respondents continued
obstructiveness is in defiance of that special duty. A mandamus
order was granted against them on 16 May 2016. They have chosen to
ignore it thereby ignoring the strict and unambiguous language of
s164(2). By their conduct, they have denounced the applicant's
fundamental right to equal protection before the law (s56) and acted
contrary to the applicant's fundamental rights and freedoms.
It
is without sense for the first and second respondents to make a
choice to ignore the peremptory provisions of the Constitution and
then decide what the applicant ought to do to enforce his rights. The
Police erroneously gave away property and cash belonging to the
applicant. It is outrageous that the respondents can make casual
suggestions to the applicant about how he ought to force them to
reimburse him his own cash, particularly in circumstances that the
payment has been approved and only awaits authorisation. At present
the respondents have been and are continuing to be in contempt of
court.
It
is to that end that it is my considered view that the respondents
consider themselves to be immune to legal consequence by virtue of
the validity of s5(2). It would be dangerous for this court to
endorse their wrongful actions and justifications by accepting that
their justifications have merit, which they do not.
Further,
they are defiant in suggesting that the applicant has the option of
obtaining a garnishee order against income accruing to the State.
This is in obvious contradiction of their submission that it is their
duty to preserve State assets. There is no substantial difference
between property owned by the State and moneys owed to the State.
They are both assets with the latter being intangible and the former
tangible. The respondents are positively refusing to obey court
orders and in the process wilfully and deliberately obstructing the
processes of the court. Clearly, they regard themselves as being
above the law.
Thirdly,
the respondents make some befuddled references to the Public Finance
Management Act [Chapter
22:19].
According to them there are some procedures laid out in that
legislation which prevent them from immediate compliance with the
court order. This contention is not reasonable and is not a
satisfactory excuse. It is not for the court or the applicant to
become immersed in the procedures which the respondents have to
follow to obtain a release of applicant's funds. All that concerns
the court are the reasons why the respondents have not followed up a
release of the funds from the Consolidated Revenue Fund and none so
far have been of persuasive value.
Court
intervention has now become necessary without which the respondents
will no doubt comfortably remain in contempt of court.
In
Mjeni
v
Minister of Health and Welfare, Eastern Cape {supra}
Jafta
J said:
“A
deliberate non-compliance or disobedience of a court order by the
State through its officials amounts to a breach of [a] constitutional
duty [imposed by s165 of our Constitution]. Such conduct impacts
negatively upon the dignity and the effectiveness of the courts.
…………
The
constitutional right of access to courts would remain an illusion
unless orders made by the courts are capable of being enforced by
those in whose favour such orders were made. The process of
adjudication and the resolution of disputes in courts of law is not
an end in itself but only a means thereto; the end being the
enforcement of rights or obligations defined in the court order. To a
great extent section 3 of Act 20 of 1957 {immunity from execution
clause} encroached upon that enforcement of rights against the State
by judgment creditors”.
It
is a matter of fact that applicant's constitutional rights continue
to be encroached and that such infringement has not been justified by
the respondents' reasons. The immunity from execution which has
been extended to the respondents by virtue of s5(2) carries with it a
corresponding responsibility on the respondents to assist and not
impede justice delivery. If s5(2) is being used to frustrate justice
as is clearly the case in the present matter; then s5(2) is not
justifiable in a democratic society based upon openness, justice,
fairness, human dignity, equality and freedom. Thus proportionally
the respondents' justifications are neither reasonable nor
necessary and in fact are destructive of applicant's rights; which
rights I have elaborated upon above.
RIGHTS
WHICH CANNOT BE LIMITED WHATSOEVER.
Further
the applicant has, in my view, an unassailable case to obtain the
declaratur
he seeks by the fact that his rights to dignity and access to the
courts are not subject to the test of proportionality.
As
a matter of both fact and law, any encroachment of those rights is a
constitutional infringement without the need for an enquiry into the
degree to which applicant's right may have been affected.
The
applicant contends that contrary to the provisions of s86(3) the
respondents' actions and their reliance on the immunity from
execution afforded to them by virtue of s5(2) have caused him to be
denied justice and that his access to the courts has been
overstepped. Section 86(3) provides as follows:
Section
86(3):
“No
law may limit the following rights enshrined in this Chapter, and no
person may violate them -
(a)
the right to life, except to the extent specified in section 48;
(b)
the
right to human dignity;
(c)
the right not to be tortured or subjected to cruel, inhuman or
degrading treatment or punishment;
(d)
the right not to be placed in slavery or servitude;
(e)
the
right to a fair trial;
(f)
the right to obtain an order of habeas corpus as provided in section
50(7)(a).”
(my
emphasis)
There
can be no application of the exceptions to the right to dignity and
the right to a fair trial. These are iron clad. Any competing
legislation or contradictory legislation is rendered unconstitutional
so far as these rights have been encroached upon as has been
complained of in the current case. Thus on that basis alone and
speaking of the present matter, the respondents actions are
unconstitutional.
THE
COURT'S CONSTITUTIONALLY ORDERED POWER.
It
is my considered view that a court should never shirk its
responsibility in doing all that is necessary in making judicial law.
In Poindexter
v Greenhow
114 US 270 (885), (cited in the Nyathi
case) the following observation was made with respect to State
immunity and a democratic government at p 291;
“of
what point are written constitutions whose bill of right for the
security of individual liberty have been written, too often, with the
blood of martyrs shed upon the battlefield and the scaffold, if their
limitations and restraints upon power may be overpassed with impunity
by the very agencies created to appoint and guard, defend and enforce
them; and that too, with the sacred authority of law, not only
compelling obedience, but entitled to respect? And how else can these
principles of individual liberty and rights be maintained, if, when
violated, the judicial tribunals are forbidden to force penalties
upon individual offendors, who are the instruments of wrong, wherever
they interpose the shield of the State? The doctrine is not to be
tolerated.
The
whole frame and scheme of the political institutions of this country,
State and Federal, protest against it. It is the doctrine of
absolutism, pure, simple and naked.”
I
have identified that s5(2) is destructive of important rights which
the Declaration of Rights speaks to and represents. If those rights
are impeded, the Declaration of Rights implementation is severely
impeded. In a constitutional democracy, the authority and
effectiveness of a Constitution is determined by the authority and
effectiveness of the courts.
UNIVERSAL
EFFECT
Proportionality
is objective, with each matter being adjudicated on its own merits.
Even though the courts (as stated by CHASKALSON P in the Makanyane
case) deal with each matter on a case by case basis, the relief
sought in this matter will, if granted, have wide reaching and
national consequences. To that end it is important for me to stress
that my determination in the current matter is not limited to the
poor justification given by the respondents. I am alive to the fact
that if indeed I were to grant applicant the declaratory relief he is
after; that that decision will have far-reaching consequences which
will be brought to bear in the national scheme of things.
The
effect of any pronouncement which I may make thus will have a
universal effect, and it is because of that that I have made my
researches for guidance in the situation I find myself in. In
Registrar
General, Zimbabwe
v Chirwa
1993 (4) SA 272 (ZSC) the full bench held:
“A
judgement determining a person's nationality by a court of
competent jurisdiction (in
casu
a judgment of the High Court of Zimbabwe declaring the respondent to
be a citizen of Zimbabwe) relates to a matter of status and is
accordingly a judgment in
rem,
conclusive and binding against the whole world…..
There
is a leg of thought which has gained considerable momentum which
formed the view that where a statute which is invalid by virtue of
its inconsistency with the Constitution, even before a dispute is
presented to the courts for a ruling on invalidity, prior to such a
declaration, the legislation is ex
facie
valid, but objectively invalid. If and when it is declared invalid by
the court, that does not alter that piece of legislation's
objective invalidity prior to such a declaration. The declaration of
invalidity by the court is an order as to the status of the thing. So
when a court makes that pronouncement the court merely declares an
invalid, then it is a judgment in
rem
(against the thing) which judgment becomes res
judicata
and therefore binding against the whole world.”
What
has been referred to as one of these most powerful statements of
constitutional supremacy was given by Ackermann
J in Ferreira
v Levin
NO;
Vryenhoek
v Powell
1996 (1) SA 984 (CC);1996 (1) BCLR 1 is as follows:
“The
court's order does not invalidate the law; it merely declares it to
be invalid. It is very seldom patent, and in most cases is disputed,
that pre-constitutional laws, are inconsistent with the provisions of
the Constitution. It is one of this court's functions to determine
and pronounce on the invalidity of laws, including Act of Parliament.
This does not detract from the reality that pre-existing laws either
remain valid or became invalid upon the provisions of the
Constitution coming into operation. In this sense laws are
objectively valid or invalid depending on whether they are or are not
inconsistent with the Constitution. The fact that a dispute
concerning inconsistency may only be decided years afterwards, does
not affect the objective nature of the invalidity. The
issue of whether a law is valid or not does not in theory therefore
depend on whether, at the moment when the issue is being considered,
a particular person's rights are threatened or infringed by the
offending law or not”.
(my
underlining)
Thus
even in circumstances where in a particular case the rights which
cannot be limited per
s86(3) have not been cited by a party and are therefore not under
determination in that particular case, they are still
unconstitutional because the exemption from limitation is law.
It
is my view that if I make a pronouncement on the invalidity of s5(2)
in the present matter; in effect all that I would be doing is
rendering s5(2) with a status I deem has to be pronounced.
In
casu
and with those rights having been placed under my scrutiny, I am
persuaded that there is a need for a declaration of
unconstitutionally by the simple fact that applicant's rights of
access to the courts and rights to dignity which applicant ought to
enjoy unhindered by any limitation whatsoever, were encroached upon
by the respondents who felt cause to hide behind the immunity of
execution status. Thus in accordance with the Constitution, the
respondents are disentitled from pleading immunity regarding those
rights which the legislature deems to be sacrosanct.
On
an application of the proportionality test with respect to the other
rights such as equality before the law, I do not find there to be any
legitimate reason which justifies the legislation complained about
being spared the declaratur
sought
given the spurious reasons given by the respondents. I have made the
observation that the respondents deliberately obstructed the court
processes and positively ignored court orders under cover of the
immunity. In fact in these very proceedings they continued misleading
applicant as to their desire to pay him without being forthcoming
once again about when they would honour their court mandated
obligations. For what protection can the courts afford any person if
even contempt of court orders are ignored as though they are
meaningless pieces of paper because there is a law in existence which
has the ability to shield one party from another?
CONCLUSION
The
Nyathi
case {supra}
is on all fours with the present matter.
In
the Nyathi
case the Constitutional Court of South Africa, (by a majority
judgment of six) confirmed a High Court order declaring the immunity
from execution limitation clause in the South African State
Liabilities Act invalid. I wholly associate myself with the judgment
and its ruling. The ruling in the Nyathi
case was given in default; and awarded without a mandamus
order hanging over the State's head as is the case in the present
matter. The High Court in the Nyathi
case found no difficulty in intervening and the South African
Constitutional Court confirmed that the declaratur
was correctly granted.
In
casu,
the applicant is already armed with a mandamus
order which was granted in 2015 and has not been of any use to the
applicant which is an unacceptable reality. Other than simply not
pushing for the authorisation, no compelling interest has been proved
which would persuade me to see things in the way that the respondents
see things. Although they referred to s86(2)(b) {acting in the public
interests} they offered no proof of such interest.
Furthermore,
because it is a factual reality that s5(2) will never withstand a
contest between its justifiability and the strictly guarded rights
which are wholly not negotiable (per s86(3) of the Constitution; then
s5(2) is unconstitutional.
It
is my conclusion that s5(2) is not justifiable in a democratic
society based upon openness, justice, human dignity, equality and
freedom. The respondents have failed to justify their position even
though they made an unremarkable reference attempt to cite s86(2) as
their reason for fairness.
In
the result, I order as follows:
“IT
IS DECLARED THAT
1.
Section 5 (2) of the State Liabilities Act [Chapter
8:14]
be and is hereby declared to be inconsistent with the Constitution of
the Republic of Zimbabwe; and is therefore invalid.
2.
The matter is referred to the Constitutional Court in terms of
section 175(1) of the Constitution of Zimbabwe, for confirmation or
otherwise.
3.
1st
and 2nd
Respondents are ordered to pay the applicant's costs.”
Mahuni
and Mutatu Attorneys,
applicant's legal practitioners
Civil
Division of the Attorney General's Office, respondents'
legal practitioners
