IN
CHAMBERS
MALABA
CJ:
This
is a chamber application for leave for direct access to the
Constitutional Court (“the Court”) in terms of r21 of the
Constitutional Court Rules SI 61/2016 (“the Rules”). The
applicant intends to file the main application with the Court should
leave for direct access be granted.
The
matter that is intended to be placed before the Court is the
constitutional validity of a decision of the Supreme Court in a case
involving a non-constitutional issue. The allegation is that the
decision of the Supreme Court in case SC45/17 infringed the
applicant's fundamental right to equal protection of the law and
the right to a fair hearing enshrined in s56(1) and s69(2),
respectively, of the Constitution of Zimbabwe (“the Constitution”).
The
main application is intended to be made in terms of s85(1) of the
Constitution.
The
question is whether the validity of a decision of the Supreme Court
in a case involving a non-constitutional matter can be challenged on
the ground that it has infringed a fundamental right or freedom
enshrined in Chapter IV of the Constitution. Does a litigant have a
right under s 85(1) of the Constitution to approach the Court for
appropriate relief, alleging infringement of a fundamental right or
freedom by a decision of the Supreme Court in a case not involving a
constitutional matter?
The
question has arisen because s169(1) of the Constitution and s26(1) of
the Supreme Court
Act [Chapter 7:13] (“the Act”) are to the effect that a decision
of the Supreme Court on a non-constitutional matter is final and not
appealable.
The
Court holds that the remedy provided for under s 85(1) of the
Constitution is for the
protection of the fundamental rights and freedoms enshrined in
Chapter IV from infringement by the conduct of any person or body. It
can be invoked for the protection of a litigant and enforcement of a
fundamental right or freedom, where the infringement has disabled the
Supreme Court from making the decision on the non-constitutional
matter.
The
circumstances of the case show, however, that the decision of the
Supreme Court is
on the non-constitutional issue. There are no prospects of success if
leave for direct access to the Court for the hearing and
determination of the main application is granted. It is not in the
interests of justice to grant leave for direct access. The reasons
for the decision follow.
On
16 July 2015 the applicant filed an application in the High Court for
leave to institute a class action in terms of s3 of the Class Actions
Act [Chapter 8:17]. The application was dismissed on 19 January 2017.
The
applicant accepts that the judgment of the High Court was based on
the finding that the pending case it had against the first respondent
constituted a bar to the application. The only question before the
High Court was whether a party with a pending case before a court can
institute a class action on the same cause without withdrawing the
pending case. It was a question of law which the High Court answered
in the negative.
In
dismissing the application, the High Court said at pp 5-6 of
cyclostyled judgment number HH 35-17:
“Taking
such a position cannot be correct because the applicant herein is the
one that instituted the earlier proceedings to protect its interests.
It should have occurred to the applicant that it is not the only one
in this predicament and not proceeded on its own. Alternatively,
withdrawal of proceedings may have been ideal if it then intended to
apply for class action. The applicant is the driver of that process.
The applicant has to decide what it is it wants. The applicant's
initial case is in limbo whilst it chases other persons' interests.
Indeed, the law allows the good and concerned to institute class
actions but, given the applicant's circumstances, it is not the
court's view that the applicant can be allowed another bite at the
cherry. It seems the applicant by making this application wants to
draw others to its cause. This in other words would be an attempt at
joinder proceedings via the back door. The courts cannot be clogged
by matters by the same entity pertaining to the same respondent on a
similar matter where a decision can clarify an issue and put (an) end
to the legal point. The applicant's case pertaining to breach of
contract by the respondent is still before the court. In my view, the
decision that the court will make will be binding in similar cases
where the facts point to breach of contract arising out of failure to
provide loan amounts agreed to despite paying the requisite facility
fees. Thus if the applicant succeeds in its initial claim, those that
the applicant seeks to protect would derive legal benefit from the
precedence set.
It
lies within the court's discretion to grant leave sought. I am not
satisfied that the applicant's circumstances warrant the granting
of leave sought. It is due to the aforegoing reasons that leave to
institute class action is denied.”
The
applicant appealed against the judgment of the High Court on 7
February 2017.
The
Supreme Court dismissed the appeal on 11 July 2017.
The
applicant says it was “shocked” to hear the Supreme Court
conclude in an ex tempore judgment that the High Court had resolved
the application on the merits.
The
applicant accepts that the decision of the Supreme Court is on the
sole issue that was for its determination. The legal basis of its
alleged dissatisfaction with the decision is not clear.
The
applicant nonetheless states that the Supreme Court went beyond the
“mistakes of law
it is permitted to make”. According to it, the decision of the
Supreme Court is so “outrageous” that no reasonable court can
make such a decision. The complaint is that “the Supreme Court
cannot hide behind its status as a final court of appeal while making determinations
that are outrageous in their defiance of acceptable canons of legal
reasoning”. The contention is that the Supreme Court misconstrued
the appeal. In the founding affidavit the applicant avers that:
”12.
Where a court makes a determination so wrong that no reasonable
court, applying its mind to the facts and the law, could ever have
made such a determination, the right to protection of the law is
infringed.”
The
applicant states further that it is bothered by the question whether
the Supreme Court is free to make “outrageously wrong decisions”
on non-constitutional matters merely because it is the highest court
of appeal in such cases. The applicant further contends that the
Supreme Court is not supreme. It is the Constitution which is
supreme. As such, where the Supreme Court makes a decision that
infringes a fundamental right or freedom an application for redress
ought to lie to the Court under s 85(1) of the Constitution.
Section
85(1) of the Constitution provides:
“85
Enforcement of fundamental human rights and freedoms
(1)
Any of the following persons, namely —
(a)
any person acting in their own interests;
(b)
any person acting on behalf of another person who cannot act for
themselves;
(c)
any person acting as a member, or in the interests, of a group or
class of persons;
(d)
any person acting in the public interest;
(e)
any association acting in the interests of its members;
is
entitled to approach a court, alleging that a fundamental right or
freedom enshrined in this Chapter has been, is being or is likely to
be infringed, and the court may grant appropriate relief, including a
declaration of rights and an award of compensation.”
The
relief sought in the main application intended to be filed should
leave for direct access be granted is of an order in the terms that:
“IT
IS DECLARED:
1.
That the applicant's right to equal protection of the law enshrined
in section 56(1) of the Constitution of Zimbabwe was infringed by the
Supreme Court of Zimbabwe, sitting at Harare on 11 July, 2017 in the
matter of Lytton Investments (Pvt) Ltd v Standard Chartered Bank
Zimbabwe Limited, SC45/17 in that the Supreme Court completely
misconstrued the appeal before it.
2.
That the applicant's right to a fair hearing enshrined in section
69(2) of the Constitution of Zimbabwe was infringed by the Supreme
Court of Zimbabwe, sitting at Harare on 11 July, 2017 in the matter
of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe
Limited, SC45/17 in that the Supreme Court completely misconstrued
the appeal before it.
ACCORDINGLY,
IT IS ORDERED:
3.
That the judgment of the Supreme Court in SC45/17 be and is hereby
declared null and void and of no force and effect and is set aside.
That the Registrar of the Supreme Court be and is hereby directed to
set down for hearing, before a differently constituted panel of
judges, the appeal in SC 45/17.”
The
applicant accepts that the judgment of the Supreme Court cannot be
appealed against. The founding affidavit states in part:
“There
is no other remedy. This is because the Supreme Court is the final
court of appeal in matters not raising constitutional issues. There
was no constitutional matter in SC45/17. So there is no room for
appeal.”
The
applicant did not attempt to show that the utterances made by the
Supreme Court show that it failed to act in terms of the objective
standards prescribed by the procedural and substantive laws governing
the proceedings before the court. There was nothing in the founding
affidavit in support of the application for direct access suggesting
that because of the alleged utterances the Supreme Court disabled
itself from making a decision on the non-constitutional matter.
The
words used by the applicant in the founding affidavits in support of
the main application intended to be filed with the court and the
application for leave for direct access show that the applicant is
disgruntled with the decision of the Supreme Court. The reason is
that the appeal upheld the decision of the High Court on the
non-constitutional matter before it.
The
application for direct access is opposed by the first respondent.
The
first respondent argued that it is in the interests of justice to
have finality to litigation of disputes brought on appeal to the
Supreme Court. The contention was that the Court should not be turned
into a third tier Appellate Court. It further argued that the
applicant was afforded a chance to be heard by the Supreme Court.
There is no basis for the claim of an infringement of the right to a
fair hearing.
The
first respondent avers that the decision of the Supreme Court is
constitutional and did not breach any of the fundamental rights the
applicant alleges it infringed. The contention is
that whatever language the applicant chooses to express its grievance
against the judgment it does not alter the fact that the Supreme
Court upheld the decision of the High Court on a non-constitutional
matter.
The
fact of the filing of the application for leave for direct access and
reference to the main application intended to be filed show that the
applicant believes that it has a right under s85(1) of the
Constitution to approach the Court for appropriate relief, alleging
that the decision of the Supreme Court infringed its fundamental
right to equal protection of the law and to a fair hearing.
Consideration
of the relevant constitutional provisions supports the view that the
validity of a decision of the Supreme Court in proceedings involving
non-constitutional matters may be challenged on the ground that it
has infringed a fundamental right or freedom enshrined in Chapter IV
of the Constitution. The basis of the right of a party to the
proceedings to challenge the validity of a decision of the Supreme
Court in the circumstances is the Constitution itself. The right
given to a litigant under s85(1) of the Constitution to approach the
Court for appropriate relief on the allegation stated is correlative
to the constitutional obligation imposed on the Supreme Court as a
body exercising public authority.
The
Constitution provides in s2(1) that any law, practice, custom or
conduct inconsistent with it is invalid to the extent of the
inconsistency.
Conduct
is inconsistent with the Constitution when it violates any of its
operative provisions.
Considering
that the Constitution is the supreme law of the land, it follows that
any conduct, including a decision of the Supreme Court, which has the
effect of infringing a fundamental right or freedom enshrined in
Chapter IV of the Constitution would be inconsistent with the
Constitution and therefore invalid. The broad statement of principle
recognises acceptable limitations to derogable fundamental rights and
freedoms to achieve legitimate objectives.
Respect
for fundamental rights and freedoms is one of the foundational values
and principles
set out in s3 of the Constitution. It is a foundational value, which
must be upheld by any body exercising public authority. Section 3 of
the Constitution sets out the objective principles which underscore
the importance of fundamental human rights and freedoms and the
mechanisms for their protection in the exercise of power under public
or private law. What is done in terms of the provisions of the
Constitution is supposed to uphold and give effect to the
foundational values and principles of the Constitution.
Section
44 of the Constitution makes specific provision for the protection of
fundamental rights and freedoms enshrined in Chapter IV. It provides
that 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 fundamental rights and
freedoms set out in Chapter IV. The obligation carries with it the
duty not to infringe the fundamental rights or freedoms concerned.
The
constitutional obligation to protect fundamental rights and freedoms
in its general application
binds the Supreme Court in the exercise of judicial power in a case
involving non-constitutional matters. Respect for and protection of
fundamental rights and freedoms is everyone's duty. In other words,
fundamental human rights and freedoms are not just defenses against
State authority. They are also objective values and principles to be
adhered to as acceptable standards of behaviour in social, economic
and political relations.
Section
45(1) of the Constitution puts the matter of the obligation on the
Supreme Court to respect and protect fundamental rights and freedoms
enshrined in Chapter IV in the context of the performance of its
judicial function in the type of cases under discussion beyond any
doubt. It expressly provides that Chapter IV “binds the State and
all executive, legislative and judicial institutions and agencies of
Government at all levels”. Conduct which is an expression of a
claim to public authority must be lawful. The decision of the Supreme
Court must be lawful in the sense that it must be a decision on a
non-constitutional matter.
The
law of constitutional jurisdiction is contained in the specific
provisions of the Constitution. According to this law, the
constitutional jurisdiction aims to ensure the supremacy of the
Constitution, the rule of law and protection of the fundamental human
rights and freedoms, amongst other values and principles set out in
s3 of the Constitution.
For
the protection of the fundamental rights and freedoms and enforcement
of the corresponding obligations to respect, protect, promote and
fulfil them, the Constitution established identifiable remedies. It
gave power to the courts, particularly the Constitutional Court, the
Supreme Court and the High Court, to hear and determine
constitutional matters. They include allegations of infringement of
fundamental rights and freedoms.
The
definition of a “constitutional matter” is that it is a matter
involving an issue, the determination
of which requires the interpretation, protection or enforcement of
the Constitution. The nature and scope of the jurisdiction is not
defined by reference to the subject, the validity of which would be
challenged. It is defined in terms of the obligation to protect and
enforce the Constitution. The reason is that the subject the validity
of which is challenged is the cause of the invocation of the
mechanisms designed for the protection and enforcement of the
foundational values and principles on which the Constitution and its
order are based.
The
Court is a specialised institution, specifically constituted as a
Constitutional Court with the narrow jurisdiction of hearing and
determining constitutional matters only. It is the supreme guardian
of the Constitution and uses the text of the Constitution as its
yardstick to assure its true narrative force. It uses constitutional
review predominantly, albeit not exclusively, in the exercise of its
jurisdiction.
The
specialisation of constitutional review is intended –
(a)
to strengthen the protection of fundamental human rights and
freedoms;
(b)
to ensure the supremacy of the Constitution;
(c)
to promote a modern and rational constitutional adjudication; and
(d)
to favour an active constitutional decision-making process.
The
Constitution gives any person who alleges infringement of a
fundamental human right
or freedom which adversely affected or affects his or her or its
interests or the public interest
the right to approach a court for appropriate relief.
The
remedy of individual constitutional complaint enshrined in s85(1) of
the Constitution for the protection and enforcement of all of the
fundamental rights and freedoms is a simple and prompt procedural
remedy. The essence of the remedy is the allegation of infringement
of a fundamental right or freedom. The existence of fundamental human
rights and freedoms influenced the choice of the procedure for their
enforcement.
The
right of access to the remedy created under s 85(1) of the
Constitution is given to and
reserved for a person who alleges that a fundamental right or freedom
has been, is being or is likely to be infringed. The remedy is a
means carefully designed for the achievement of the constitutional
objective of ensuring respect for the foundational values and
principles of the supremacy of the Constitution, the rule of law and
the fundamental rights and freedoms enshrined in Chapter IV of the
Constitution.
The
individual constitutional complaint against infringement of
fundamental rights and freedoms
is a procedure for constitutional review that is separate from but
additional and complementary
to the other constitutional remedies. These include referrals under
s175(4) of the Constitution; confirmation of orders of invalidity
under s175(3) of the Constitution; and the applications specified
under ss 167(1)(b) and 167(2)(b), (c) and (d) of the Constitution.
The Constitution gives a comprehensive idea of justice.
The
scope of the right to approach the Court for appropriate relief under
s 85(1) of the Constitution is not limited by specific objects
against which the allegations of infringement of a fundamental right
or freedom can be made. A constitutional complaint provided for under
s85(1) of the Constitution can be lodged against any act of public
authority. A decision of the Supreme Court in a case involving a
non-constitutional issue would fall within the category of acts, the
constitutional validity of which may be challenged on the grounds
prescribed under s85(1) of the Constitution.
The
Supreme Court is under the obligation, as the custodian of the
Constitution, to protect fundamental rights and freedoms. It does so
by enforcing through appropriate adjudicatory
processes the obligations borne by others when exercising power under
public or private law. It is itself under the constitutional
obligation not to violate fundamental rights or freedoms when
performing judicial functions in cases involving non-constitutional
issues. In other words, the protection of the exercise of
jurisdiction in non-constitutional matters is subject to due
compliance with the obligation to protect fundamental rights or
freedoms, the infringement of which would disable the Supreme Court
from making a decision on the non-constitutional issue.
A
party to a case involving a non-constitutional matter may approach
the High Court or the Constitutional Court, alleging that the
decision of the Supreme Court in those proceedings infringed his or
her or its fundamental right or freedom and move the court for
appropriate relief. The party has the right to make the allegation of
infringement of his or her or its fundamental right or freedom.
The
allegation made under s85(1) of the Constitution that a decision of
the Supreme Court has infringed the fundamental right or freedom of
the complainant in a case involving a non-constitutional issue raises
a constitutional matter. It does not mean that fundamental human
rights are not implicated in a case involving a non-constitutional
issue. They are. The difference is that infringement of a fundamental
right or freedom is not alleged as the direct cause of action in a
case involving a non-constitutional matter. The matter in dispute
which gives rise to the application under s85(1) of the Constitution
is the alleged infringement of a fundamental right or freedom by the
decision of the Supreme Court in a case involving a
non-constitutional matter.
The
only restrictive condition to the exercise of the right, apart from
issues of locus standi, is that direct access to the Court would have
to satisfy the admissibility requirements prescribed under r21 of the
Rules. Rule 21 of the Rules requires that direct access to the Court
in terms of the procedure prescribed under s85(1) of the Constitution
should be with leave of the Court or Judge. Accessibility of the
Court is limited to cases where direct access is in the interests of
justice.
Rule
21(3) of the Rules requires that an application for leave for direct
access to the Court must show that it is in the interests of justice
for the matter to be brought directly. The rule provides that for the
purpose of meeting the test the application should set out the
following:
“(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.”
Rule
8 of the Rules provides that in determining whether or not it is in
the interests 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.”
The
purpose of the admissibility requirements prescribed under r21(3) and
r21(8) of the
Rules is to ensure that only well-founded challenges to the
constitutional validity of decisions
of the Supreme Court in cases involving non-constitutional matters
are brought directly
to the Court.
The
obligation on the Court to protect and enforce the Constitution
includes the duty to give effect to remedies designed for the
protection and enforcement of the fundamental human rights and
freedoms enshrined in Chapter IV. There is no doubt that in terms of
the Constitution the Court has the power to protect fundamental human
rights and freedoms. The power to hear and determine a cause followed
by the granting of an appropriate relief presupposes that those who
have the causes falling within the jurisdiction of the Court have the
right to approach the Court with their causes to be heard and
determined.
Section
85(1) of the Constitution deliberately narrows the category of
potential litigants to those persons who allege that a fundamental
human right or freedom enshrined in Chapter IV has been, is being or
is likely to be infringed. The process inevitably involves
adversarial litigation.
The
recognition of the existence of the remedy under s85(1) of the
Constitution against decisions of the Supreme Court, in cases
involving non-constitutional matters, does not open floodgates to
cases alleging infringement of fundamental rights or freedoms by the
Supreme Court. The filtering mechanism for leave for direct access
effectively prevents abuse of the remedy.
The
rules requiring leave for direct access ensure that the power of
constitutional review is exercised by the Court in reviewable cases
only.
The
case law of the Court on the subject already supports the proposition
advanced by Mr Madhuku that the remedy under s85(1) of the
Constitution is available for the protection of fundamental rights
and freedoms against infringement by decisions of the Supreme Court
in cases involving non-constitutional matters.
The
case of Martin v Attorney-General 1993 (1) ZLR 153 (S) is authority
for the general principle that a party to proceedings can approach
the Court for appropriate relief on the allegation that the decision
of the lower court violated his or her or its fundamental right to
the equal protection of the law.
The
relevance of the case lies in the fact that it shows the existence of
a remedy in the former Constitution involving the exercise of
original jurisdiction by the Supreme Court sitting as a
Constitutional Court to protect and enforce fundamental rights and
freedoms against infringement by judicial decisions.
See
also: Catholic Commission for Justice and Peace v Attorney-General
and Ors 1993 (1) ZLR 242 (S) at 250G-251A.
In
Matamisa v Mutare City Council (Attorney-General Intervening) 1998
(2) ZLR 439 (S)
the Supreme Court, sitting as a Constitutional Court, proceeded on
the basis that a party to proceedings could approach the Court
directly in terms of s18(1) of the former Constitution, alleging that
a decision of the Supreme Court violated his or her or its
fundamental right to the protection of the law. The Court accepted
that it had original jurisdiction to hear and determine such an
application. Upon consideration of the merits of the case, the Court
held that the application was in reality a disguised appeal against a
final judgment of the Supreme Court.
In
Williams and Anor v Msipha and Ors 2010 (2) ZLR 552 (S) the Supreme
Court, sitting as a Constitutional Court, acknowledged the fact that
a party may challenge the constitutional validity of a judicial
decision on the ground that it infringed his or her or its fundamental
right to the protection of the law, enshrined in s18(1) of the former
Constitution. The Supreme Court said:
“The
Constitution guarantees to any person the fundamental right to the
protection under a legal system that is fair but not infallible.
Judicial officers, like all human beings, can commit errors of
judgment. It is not against the wrongfulness of a judicial decision
that the Constitution guarantees protection. …
It
is the failure by the judicial officer to comply with the
requirements of the protection provided by the law of the fundamental
human right or freedom which results in the violation or likelihood
of violation of the right or freedom against which the Constitution
guarantees to the litigant the right to the protection of the law. It
is, therefore, important in every case of an alleged violation by a
judicial officer of a fundamental human right or freedom to
understand what it is that the judicial officer was required by the
law to do and what he did, in order to decide whether there was
failure of judicial protection which caused a violation of the
fundamental human right or freedom concerned.” (my emphasis)
In
Prosecutor General Zimbabwe v Telecel Zimbabwe (Pvt) Ltd 2015 (2) ZLR
422 (CC) the applicant sought to approach the Court in terms of ss
167(1) and 176 of the Constitution. He sought an order setting aside
a judgment of the Supreme Court directing him to issue a certificate
of nolle prosequi to Telecel Zimbabwe (Pvt) Ltd.
No
constitutional matter had been raised before the Supreme Court. The
applicant approached the Court because he was dissatisfied with the
judgment. He did not approach the Court in terms of s85(1) of the
Constitution.
The
Court dismissed the application because the applicant had failed to
establish the basis on which he sought to approach it directly,
seeking an order setting aside a Supreme Court judgment on a
non-constitutional matter. One of the preliminary points on which the
application was dismissed was that it was not brought in terms of
“s85(1) or other constitutional
provisions that provide for such direct approach”.
At
p426B-C of the judgment GWAUNZA JCC (as she then was) said:
“Direct
applications to the Constitutional Court are to be made only in terms
of the provisions referred to above, as well as in terms of and as
provided for in s85(1). The specialised nature of the applications
referred to in s167(1)(b) and s167(2)(b), (c) and (d), however, makes
these provisions irrelevant to this case.
Therefore,
the only way the applicant could have validly brought an application
directly to this Court would have been in terms of s85(1). As
conceded by his counsel, the applicant did not do so, but sought to
rely on the two provisions mentioned.”
After
quoting s85(1) of the Constitution, HER LADYSHIP went on to say:
“What
is clearly evident from this provision is that the relief sought and
to be granted by the court in terms of this section must relate to
fundamental rights and freedoms enshrined in the relevant Chapter,
and nothing else. Such relief may include a declaration of the rights
said to have been or about to be violated. The applicant did not
allege that the right he alleges was violated by the Supreme Court
was an enshrined fundamental right.”
The
authorities show that the question whether a decision of the Supreme
Court in a case involving a non-constitutional issue has violated or
is violating a fundamental right or freedom enshrined in Chapter IV
of the Constitution is a matter falling within the original jurisdiction
of the Court. The question can be brought directly to the Court for
determination in terms of s85(1) of the Constitution when doing so is
in the interests of justice.
The
question whether direct access is in the interests of justice arises
because the same question can be placed before a lower court sharing
concurrent jurisdiction with the Court.
The
fact that upon consideration of the merits an applicant fails to
satisfy the requirements for leave for direct access to the Court
does not mean that he or she or it had no right to approach the
Court, alleging that the decision of the Supreme Court has violated
his or her or its fundamental right or freedom. The right to approach
the Court is a constitutional right, not dependent on the strength of
the merits of the application.
Recognition
of the availability of the remedy under s85(1) of the Constitution
against a decision of the Supreme Court which allegedly violated or
is violating a fundamental right or freedom gives effect to the inner
unity of the values forming the basis of the constitutional order
characteristic of a democratic society. The principle of finality
enshrined in s169(1) of the Constitution, as read with s26 of the
Act, does not protect a decision of the Supreme Court from
constitutional review when the allegation is that it has violated or
is violating a fundamental right or freedom and direct access to the
Court is in the interests of justice. To hold otherwise would
undermine the supremacy of the Constitution and the rule of law as
foundational values and principles of the constitutional order.
The
fact that a decision of the Supreme Court is the subject the validity
of which is challenged cannot be a reason for claiming that a party
cannot approach the Court in terms of s85(1) of the Constitution,
alleging that the decision has violated or is violating his or her or
its fundamental right or freedom. The cause of action is the alleged
infringement of the fundamental right or freedom which the Court is
under the constitutional obligation to protect.
There
is no exclusion of decisions of the Supreme Court in cases involving
non-constitutional issues from the individual constitutional
complaint system enshrined in s85(1) of the Constitution.
Constitutional rights conferred without express limitation should not
be cut down by reading implicit limitations into them.
What
is of importance is not the nature of the object against which the
complaint of constitutional invalidity is made. It is the kind of
effect the matter is alleged to have had or to be having on the
fundamental right or freedom concerned that determines the cause of
action. In other words, the determinant juristic fact is the alleged
infringement on the fundamental right or freedom as the prohibited
effect, as opposed to the effect of promotion of the right or freedom
concerned. So the decision of the Supreme Court becomes a subject of
the exercise of the right to approach the Court for relief in terms
of s85(1) of the Constitution by reason of the allegation that it has
infringed or is infringing a fundamental right or freedom enshrined
in Chapter IV of the Constitution.
It
is important to emphasise the fact that the right to approach the
Court, the procedure to be followed, and the grounds on which the
right is to be exercised, are provided for by the Constitution
itself.
The
Constitution itself has restricted the right to approach the Court
directly under s85(1) of the Constitution to the vindication of
fundamental rights or freedoms, no matter the source of the
infringement of the right or freedom concerned. The Constitution
binds the Court to recognise the right and its exercise in the manner
prescribed, provided the requirements for leave for direct access are
met. To take no notice of the right would be a breach
by the Court of its obligation to protect fundamental rights and
freedoms enshrined in Chapter IV of the Constitution.
Section
85(1) of the Constitution enables the Court to perform its obligation
under the Constitution. It gives effect to the principle of
accountability in terms of which where there is an allegation of
infringement of a fundamental right or freedom the judicial process
is available to investigate the complaint and redress the
infringement if proved.
It
is clear from the consideration of the objective for the
establishment of the remedy under s85(1) of the Constitution that the
possibility of an individual having direct access to the Court for
the protection of fundamental rights and freedoms is consistent with
the general spirit of the Constitution, which strongly affirms the
central role of human dignity and fundamental rights and freedoms.
Mr
Madhuku took the view that in an application for direct access all
one needed to do was
to allege the violation of a constitutional right. The applicant
asserted that the mere alleging of infringement of a constitutional
right means a constitutional matter has been raised for
jurisdictional purposes.
Mr
Madhuku buttressed the contention by reference to Meda v Sibanda &
Ors 2016 (2) ZLR 232 (CC) where at p 236B the Court said:
“It
is clear from a reading of s85(1) of the Constitution that a person
approaching the Court in terms of the section only has to allege an
infringement of a fundamental human right for the Court to be seized
with the matter. The purpose of the section is to allow litigants as
much freedom of access to courts on questions of violation of
fundamental human rights and freedoms with minimal technicalities.”
The
institution of an application for leave for direct access to the
Court presumes that there is a constitutional matter over which the
Court has concurrent jurisdiction with a lower court. The purpose of
the application would be to show that it is in the interests of
justice that the constitutional matter concerned be heard and
determined by the Court directly as the court of first and final
instance.
The
parties proceeded on the basis of the existence of the constitutional
question, which is
whether the decision of the Supreme Court in the case involving the
non-constitutional matter infringed the applicant's fundamental
rights to equal protection of the law and to a fair hearing.
The
Court turns to determine the question whether the applicant has shown
that direct access to it is in the interests of justice.
Two
factors have to be satisfied.
The
first is that the applicant must state facts or grounds in the
founding affidavit, the consideration of which would lead to the
finding that it is in the interests of justice to have the
constitutional matter placed before the Court directly, instead of it
being heard and determined by a lower court with concurrent
jurisdiction.
The
second factor is that the applicant must set out in the founding
affidavit facts or grounds that show that the main application has
prospects of success should direct access be granted.
The
facts must show that there is a real likelihood of the Court finding
that the Supreme Court infringed the applicant's right to judicial
protection. The Supreme Court must have failed to act in accordance
with the requirements of the law governing the proceedings or
prescribing the rights and obligations subject to determination. The
failure to act lawfully would have to be shown to have disabled the
court from making a decision on the non-constitutional issue.
The
theory of constitutional review of a decision of the Supreme Court in
a case involving a non-constitutional matter is based on the
principle of loss of rights in such proceedings because of the
court's failure to act in terms of the law, thereby producing an irrational
decision. There must, therefore, be proof of the failure to comply
with the law. The failure must be shown to have produced an arbitrary
decision.
Arbitrariness
and inconsistencies threaten the claim to judicial authority. The
remedy under s85(1) of the Constitution is not for the protection of
fundamental rights and freedoms in the abstract. Concrete review
requires that there be clear and sufficient evidence of the facts on
the basis of which allegations of infringements of fundamental rights
or freedoms are made.
The
Court has to take into account the comity due to the Supreme Court by
virtue of its status in the hierarchy of courts in the legal system.
It would not be in the interests of justice to have the
constitutional question whether the decision of the Supreme Court in
a case involving a non-constitutional matter has infringed
fundamental rights of an applicant determined by the High Court. The
Supreme Court exercises appellate jurisdiction over decisions of the
High Court. On the other hand, the Court hears and determines
constitutional matters only and is the highest court on those
matters. The remedy provided for under s 85(1) of the Constitution
demonstrates the versatility of the system for the protection of
fundamental rights and freedoms, as it allows for both centralised
and diffused constitutional review.
It
would be in the interests of justice to have the question whether the
decision of the Supreme Court has violated the fundamental rights of
the applicant to equal protection of the law and to a fair hearing
heard directly by the Court as a court of first and final instance.
It
would not be in the interests of justice to grant direct access to
the Court when the matter has no prospects of success. Consideration
of the grounds on which the application for direct access and the
intended substantive application are based leads to the finding that
the main application would have no prospects of success if direct
access was granted.
There
is no allegation of breach of the principle of fairness, which is the
essence of judicial protection of the right to equal protection of
the law. The founding affidavit does not say that the Supreme Court
failed to determine the non-constitutional matter because it failed
to take into account factors it was required to consider by the law
governing the conduct of the proceedings and determination of the
non-constitutional matter. There is no mention of the law that
governed the conduct of the proceedings or prescribed the rights and
obligations in dispute.
Compliance
with the requirements constituting the objective standard applicable
in similar cases is the basis of the guarantee of the right to equal
protection of the law the applicant would have been entitled to
enjoy.
The
case sought to be brought directly to the Court is that the Supreme
Court reached a wrong decision on the non-constitutional matter.
That
the applicant seeks to attack the validity of the decision of the
Supreme Court on the ground that it is “outrageously wrong” is
clear from the founding affidavits. The relief sought is an order
setting aside the decision which upheld the decision of the High
Court and no other.
It
is necessary to look closely at the legal effect of such an approach
in the context of deciding whether there are prospects of success in
the main application if direct access was granted. In deciding
whether the case presented is reviewable, the Court takes into
account the law that declares a decision of the Supreme Court on a
non-constitutional matter final and unappealable.
A
litigant who approaches the Court in terms of s85(1) of the
Constitution alleging an infringement
of a fundamental right or freedom by the Supreme Court would have to
allege and prove that, in the exercise of its jurisdiction, the Court
would not be involved in the examination and determination of the
non-constitutional issue which was before that court on appeal.
The
determination of such an issue is reserved exclusively for the
Supreme Court by the Constitution.
Section
169(1) of the Constitution, which covers the jurisdiction of the
Supreme Court, provides:
“The
Supreme Court is the final court of appeal for Zimbabwe, except in
matters over which the Constitutional Court has jurisdiction.”
The
principle that the Supreme Court is the final court in all
non-constitutional matters is given effect to by s 26 of the Act. The
section provides:
“26
Finality of decisions of Supreme Court
(1)
There shall be no appeal from any judgment or order of the Supreme
Court.
(2)
The Supreme Court shall not be bound by any of its own judgments,
rulings or opinions nor by those of any of its predecessors.”
The
principles that emerge from s 169(1) of the Constitution, as read
with s 26 of the Act,
are clear. A decision of the Supreme Court on any non-constitutional
matter in an appeal is final and binding on the parties and all
courts except the Supreme Court itself. No court has power to alter
the decision of the Supreme Court on a non-constitutional matter.
Only the Supreme Court can depart from or overrule its previous
decision, ruling or opinion on a non constitutional matter.
The
onus is on the applicant to allege and prove that the decision in
question is not a decision on the non-constitutional matter.
The
applicant misconceived the effect of the principle of finality of
decisions of the Supreme Court on non-constitutional matters
enshrined in s169(1) of the Constitution, as read with s 26(1) of the
Act. It believed that the purpose of the principle was to protect
“correct” decisions of the Supreme Court. According to the
applicant, “wrong” or “outrageously wrong” decisions of the
Supreme Court are an infringement of the fundamental right to equal
protection of the law.
The
contention is that s85(1) of the Constitution provides an aggrieved
litigant with the remedy for the redress of such an infringement.
The
reasoning is flawed because it starts from the premise that there can
be “correct” and “wrong” decisions of the Supreme Court on
non-constitutional matters.
What
is clear is that the purpose of the principle of finality of
decisions of the Supreme Court on all non-constitutional matters is
to bring to an end the litigation on the non constitutional
matters. A decision of the Supreme Court on a non-constitutional
matter is part of the litigation process. The decision is therefore
correct because it is final. It is not final because it is correct.
The
correctness of the decision at law is determined by the legal status
of finality. The question of the wrongness of the decision would not
arise. There cannot be a wrong decision of the Supreme Court on a
non-constitutional matter. A decision declared by the Constitution to
be final and binding cannot at the same time be open to challenge on
the ground that it violates the fundamental right to the equal
protection of the law.
The
law of finality of decisions of the Supreme Court on
non-constitutional matters applies to all litigants equally, whether
they become winners or losers in the litigation process. The
declaration of finality of a decision of the Supreme Court on a
non-constitutional matter is itself a protection of the law. Once a
decision is as a matter of fact a decision of the Supreme Court on a
non-constitutional matter, no inquiry into its legal effect can
arise. There would be no proof of infringement of a fundamental right
or freedom as a juristic fact. It is enough for the purposes of the
protection of finality and therefore correctness that the decision is
on a non-constitutional matter.
In
the absence of a higher court to say so, a decision of the Supreme
Court on a non constitutional
matter cannot be said to be wrong. In Williams and Anor v Msipha NO
and Ors supra at 567C the Supreme Court said:
“A
wrong judicial decision does not violate the fundamental right to the
protection of the law guaranteed to a litigant because an appeal
procedure is usually available as a remedy for the correction of the
decision. Where there is no appeal procedure there cannot be said to
be a wrong judicial decision because only an appeal court has the
right to say that a judicial decision is wrong. See Maharaj v A G of
Trinidad & Tobago (No. 2) (PC) [1979] AC 385 at 399 D–H;
Boordman v Attorney General [1996] 2 LRC 196 at 205i–206b.” (my
emphasis)
In
Lane and Fey NNO v Dabelstein and Ors 2001 (2) SA 1187 (CC) [4] the
Constitutional Court of South Africa held:
“Even
if the [Supreme Court of Appeal] erred in its assessment of the
facts, that would not constitute the denial of the ['right to a
fair trial and to fair justice']. The Constitution does not and
could hardly ensure that litigants are protected against wrong
decisions. On the assumption that section 34 of the Constitution does
indeed embrace that right, it would be the fairness and not the
correctness of the court proceedings to which litigants would be
entitled.”
It
is at the stage of the consideration of the application for leave for
direct access that the
Court or Judge has to determine the question whether the validity of
the decision of the Supreme Court is being raised as a genuine
constitutional issue.
A
principle has developed out of the consideration of applications
seeking to attack final decisions of the Supreme Court on the ground
that they violate the right to equal protection of the law. The
applications have invariably been dismissed on the ground that they
are appeals disguised as applications for constitutional review. In
that way, the integrity of the jurisdiction of the Court on
constitutional matters and that of the Supreme Court on
non-constitutional matters is preserved.
In
the Prosecutor General case supra GWAUNZA JCC (as she then was) said
at 428C-F:
“The
court thus effectively affirmed the finality of the Supreme Court
judgment on a matter that was not determined by that court as a
constitutional issue. By that token, the matter was not one that fell
into the category of those over which the Constitutional Court had
jurisdiction. As already stated, these are matters that are properly
brought to the Constitutional Court.
I
find the authority cited above to be eminently apposite in casu. This
is because while the applicant did not specifically state so in his
application, in reality the matter was an appeal brought to this
Court under the guise of an application. This is abundantly evident
from the relief that is outlined in his draft order. It is even more
evident from his summary of the background to the intended
application, as already indicated. He indicated that he wished to
approach this Court 'for an order setting aside the Supreme Court
judgment on the basis that it interferes with the independence of his
office and as such it is ultra vires provisions of s260 of the
Constitution of Zimbabwe …'. Like in the case referred to above,
the issue that I have underlined, and others that the applicant
sought to bring before this Court, similarly 'arose' after the
Supreme Court judgment was pronounced. They could not have been, and
in fact were not, raised before the Supreme Court and, needless to
say, not determined by it as constitutional matters. The issues
therefore did not meet the requirement for inclusion into 'matters
over which the Constitutional Court has jurisdiction'.
On
the basis of the authority cited above, and upon a proper
interpretation of the relevant provisions alluded to in this context,
the judgment of the Supreme Court on these matters, which the
applicant sought to have reversed, was final and definitive. It is a
decision that may not be interfered with by this Court.” (my
emphasis)
See
also Matamisa's case supra at 442G-443B.
In
the Prosecutor-General's case supra the Court emphasised the need
for parties wishing to apply to it directly for appropriate relief to
do so upon establishing a proper basis for such an approach. That
would insulate the Court against a potential flood of undeserving
cases at the instance of parties who may be disgruntled with
decisions of lower courts, including the Supreme Court.
As
long as the remedy for the perceived violation of the right to equal
protection of the law involves the Court in considering the
non-constitutional matters as the means of vindicating that right,
the Court would be doing what it has no power to do. An unauthorised
means cannot be justified by a legitimate end. It matters not that
the remedy is presented in the form of a review procedure under
s85(1) of the Constitution. It is in substance an appeal disguised as
an application for constitutional review.
Mr
Tivadar submitted that this case is different from a situation where
the Supreme Court in its conduct of an appeal, as opposed to the
judgment it renders at the end, commits a violation
of the Constitution. He gave as an example a case where the Supreme
Court decided that it would not hear one party's legal practitioner
on account of his race. In such a case there would be failure of
jurisdiction. The decision would not be a result of an objective
assessment of the facts in issue. It would flow directly from the
violation of the party's fundamental rights not to be discriminated
against and to equal protection of the law.
The
decision in the case referred to by Mr Tivadar would be a means of
satisfying the personal racial prejudices of the members of the
Supreme Court who would have substituted them for the purposes of the
Constitution. The decision would be untenable and therefore
objectively arbitrary. In other words, there would be no judicial
decision on the non-constitutional matter.
A
decision which is shown not to be on a non-constitutional matter when
it should be would not be in conformity with the Constitution.
In
the founding affidavits supporting the application for direct access
and the main application, the applicant accepts that the judgment
appealed against from the High Court was to the effect that a party
with a case pending in a court cannot make an application for leave
to institute a class action on the same cause without withdrawing the
pending case.
The
question whether a party in a case pending in a court can apply for
leave to institute a class action on the same cause without
withdrawing the pending case was the only issue for determination. It
was a question of law. The High Court agreed with the respondent on
the question. It dismissed the application. The appeal to the Supreme
Court was on the ground that the High Court misdirected itself on the
question of law. After hearing oral submissions on behalf of both
parties, the Supreme Court dismissed the appeal and upheld the
decision of the High Court.
To
say that the decision of the Supreme Court is “outrageously wrong”
is a clever way of avoiding having to say that the Supreme Court
misdirected itself. It is a subjective allegation that lacks merit. A
thing is not necessarily what it is as per the words used to describe
it. It is what it is as per its substance. The decision, the validity
of which the applicant wants brought directly for determination by
the Court on the allegation that it has infringed its fundamental
rights to equal protection of the law and to a fair hearing, is the
same decision that dismissed the appeal and upheld the judgment of
the High Court. In other words, the Supreme Court reached the same
decision on the non-constitutional issue as the High Court.
It
is clear that had the Supreme Court found in its favour the applicant
would not have made the allegations of infringement of its rights.
The
allegation by the applicant that in the course of delivering the
judgment ex tempore the
Supreme Court said that the High Court had considered the merits of
the case is a mere red herring designed to divert attention from the
fact that the application sought to be placed before the Court in
terms of s85(1) of the Constitution is a disguised appeal against the
decision of the Supreme Court.
The
utterance the Supreme Court may have made is not a decision. There is
only one decision which the applicant seeks to have set aside through
the procedure under s85(1) of the Constitution. The effect of the
decision is the dismissal of the appeal and confirmation of the
decision of the High Court on a non-constitutional issue. Such a
decision cannot be evidence of a violation of a fundamental human
right or freedom. It was a question not arising under the
Constitution.
There
is no suggestion anywhere in the founding affidavits that the Supreme
Court failed to act in terms of any law governing appeal proceedings
generally. To say that the Supreme Court “completely misconstrued”
the appeal is not to say that it did not apply its mind to the
grounds of appeal. It is simply a disguised and exaggerated way of
saying the Supreme Court misdirected itself in the consideration of
the grounds of appeal and came to a wrong decision.
There
was no issue on the nature, content and scope of the question that
was before the Supreme Court for determination. It was not said what
construction the Supreme Court was required to put on the question
before it. To say an appellate court “completely misconstrued” an
appeal without reference to any procedural and substantive standard
does not take the allegation beyond the making of it. No principle of
procedural law is alleged to have been violated by the Supreme Court
in the conduct of the proceedings or in decision-making. The
application in respect of which direct access to the Court is sought
is a disguised appeal against the effects of the decision of the
Supreme Court on a non-constitutional matter. Rushesha and Ors v Dera
and Ors CCZ 24/17.
One
of the fundamental aspects of the rule of law is the principle of
legal certainty. This principle
requires that no party to a proceeding shall be entitled to request
the review of a final judgment solely for the purposes of obtaining a
rehearing and a new determination of the case.
There
are no prospects of the main application succeeding should leave for
direct access to the Court be granted. It would not be in the
interests of justice to grant leave for direct access where there are
no prospects of success.
DISPOSITION
In
the result, the following order is made:
“The
application is dismissed with costs.”
Mundia
and Mudhara Legal Practitioners, applicant's legal practitioners
Gill,
Godlonton and Gerrans, first respondent's legal practitioners
