The applicant is a duly registered company in terms of the laws of this country. It is in the business of importing and marketing fuel in terms of licence number 000228 issued by the respondent Ministry on the 2^nd of January 2009.

It is common cause that on the 4^th of September 2009 a consignment of 476,427 litres of diesel was imported into the country from Sasol South Africa through the Beitbridge boarder post. The diesel was delivered to Zimbabwe in train wagons to be off-loaded at NOCZIM, Beitbridge but destined for Chiredzi. The transporter was unable to off load the product on the instructions of the second respondent, a director in the first respondent's ministry.

The second respondent's functions include:

1. Managing, monitoring and reviewing all Government-initiated or sponsored liquid fuel supplies contract and all fuel safety and quality standards; and

2. Providing leadership and facilitating the strategic management process to guide the operation of the Petroleum Department and the oil industry.

The applicant's complaint is basically that the second respondent is abusing his authority and has taken the law into his own hands by placing an embargo on the product when there is no law which authorizes him to do so.

The responsible Minister in the respondent's ministry has since filed an affidavit dated 8^th October 2009 ratifying the second respondent's conduct. In that affidavit he acknowledges responsibility for his conduct in the following terms:

"4. On the 14^th September 2009 I ordered the return of substandard diesel imported by a company called BSKY because it did not meet the quality specifications that we have determined. The level of 4400ppm imported by BSKY was too high and thus unacceptable.

5. Moreso is the fact that the high sulphur content of 50ppm to 500ppm is a Regional standard that has been agreed upon by South Africa, Zimbabwe, Tanzania, Mozambique, and Malawi. This position has been approved by Cabinet.

6. This Cabinet position is known and was communicated to the oil industry leading to the setting up of the National Procurement Committee to enforce quality and prices monitoring, and, sometimes, control.

7. Soon after we liberated the importation of fuel the rule of practice in the industry to set the quality has now been breached by BSKY.

8. There is no understanding the damage that can be caused by high sulphur diesel being imported in the knowledge of the serious corrosive effect.

9. The imported diesel is hazardous to property and I believe, as Minister of the State of Zimbabwe, I have a duty flowing from the Constitution to protect our citizens and property posed by such dangers knowingly caused by a licensed company because it believes there may be a gap in the law in terms of quality level stipulation by statutory instrument.

10. I am reliably informed that the diesel is a hazardous substance therefore is limited in its use as it damages the environment.

11. I am informed, in terms of the Environmental (Hazardous Substances Pesticides and Other Toxic Substances) Regulations, 2007 such substance(s) can only be imported under notification and license from the Environmental Management Agency.

12. I am also informed that counsel for the applicant has failed to produce the same under law.

13. The licence issued by my ministry is not for the importation of the substandard fuel."

Upon placing an embargo on the fuel in dispute the ministry constituted an investigating team comprising Ministry and NOCZIM staff. The team's terms of reference were to inspect the product by way of reading documents or breaking seals and taking samples for testing. Thereafter, the team would gather information and report on the quality of fuel being imported by various companies through the Beitbridge boarder post.

In discharging its mandate, the team was supposed to work in conjunction with ZIMRA staff. ZIMRA however objected to the intended investigations particularly the breaking of seals and taking of samples pointing out that it was unlawful. With much reluctance ZIMRA management finally granted the team access to the relevant documents. The team then proceeded to discharge its mandate by restricting itself to perusing the documents without breaking the seals and analyzing samples. In its written report the investigating team made the following findings:

"Findings

(a) We found that all fuel from SASOL was of the high sulphur type (0.5/500ppm). This is far above Zimbabwe spec.

(b) All companies importing SASOL products were dumping its product on poor countries (Zambia, Zimbabwe, DRC and other countries).

(c) ZIMRA had no legal mandate to check fuel quality as there was no instrument to that effect.

(d) We have always been using high sulphur diesel in our engines, so there is no new harm that can be done now.

(e) Ministry, in collaboration with EMA and ZIMRA, to draft an instrument on fuel specifications that is legally binding.

(f) ZIMRA to act on the basis of the instrument on fuel specifications so that they deny product on entry.

(g) SASOL to be advised of Zimbabwe's required fuel specifications.

(h) BSKY fuel is released as demurrage charges may be charged to the Ministry upon losing its case.

(i) Fuel samples should be collected at destinations as companies may possibly change their paper work without changing their product quality.

OPTIONS

Option One

Stopping high product entry.

Implication of Option One

It has some legal implications as there is no instrument to that effect. This may also result in critical fuel shortage…,.

Option Two

To continue business while putting the required legislation in place.

Implications of Option Two

This will ensure a smooth change over to agreed specs without interrupting product inflow into the country."

The above report is expertly written and presented such that one cannot imagine a better report or recommendations.

What emerges quite clearly from the report is that Zimbabwe has no legal instrument which entitles the respondents, or anyone, to regulate the quality of fuel being imported into the country. This stark reality has left both the Minister and the second respondent groping in the dark for legal authority to justify what is clearly unlawful conduct.

Both the first and second respondents have conveniently made no reference to the above report in their detailed opposing affidavits. As things stand, one cannot but surmise that they have deliberately sought to steer away from the report because it is not to their liking and yet they are unable to challenge its findings. That kind of conduct smacks of a deliberate attempt to mislead the Court by silence particularly on the part of the second respondent whose function includes advising the Minister on policy issues such as these.

On the facts before me it is doubtful that the report was drawn to the Minister's attention before he endorsed the order to place an embargo on the fuel in dispute or at the time he executed his opposing affidavit.

The attempt to conceal the investigating team's report tends to confirm the applicant's allegation that the second respondent was motivated by some improper motive, malice or ill-will in placing an embargo on its fuel when its competitors were importing the same fuel without let or hindrance from the same respondents. The applicant's Managing Director makes the telling point, in paragraph 10 of the applicant's founding affidavit, when he says:

"It will also be seen from the letter from Sasol, dated 1^st October 2009, that apart from the applicant, fifteen other companies are importing the same diesel as the one imported by the applicant in this case. These other companies have been allowed to have their diesel imported into the country without any obstruction. I must point out that Redan, the largest private importer and retailer of fuel in Zimbabwe are importing the same Sasol diesel. This can be seen from the letter from Sasol mentioned above and which I attach as Annexure "E".

The letter from Sasol reads in part:

"As from the 29^th of September 2009 Sasol Oil sold approximately 1,500m³ of Diesel 5000ppm into Zimbabwe. This is to let you know that Diesel 5000ppm is also sold in Zambia and the DRC in considerable quantities. The following companies all moved diesel 500ppm into Zimbabwe for the month of September 2009: UTEC, Nettrade Marketing, Redan, FX International, Petrotrade, Tradimex, Imvuselelo, Cargo Carriers, Lydon, Lemino, Zelda, Stoner Trading, Khumbulani and Bojas."

That much is common cause as the respondents have not been able to challenge those factual dispositions.

In his opposing affidavit, the first respondent nevertheless deposed that in imposing the embargo he was exercising his Constitutional mandate to give general direction and control over his ministry and departments in terms of section 31D of the Constitution which provides that:

"(3) Subject to the provisions of this Constitution and any Act of Parliament, where any Minister has been charged with responsibility for any Ministry or department he shall exercise general direction and control over that Ministry or department, and, subject to such direction and control, any such Ministry shall be under the supervision of a Secretary."

It must be noted that the Constitutional mandate restricts the minister's authority to his ministry in so far as the section states that "…, he shall exercise general control and direction over that Ministry" and not any other Ministry.

While it is correct for the first respondent to say, as Minister, he has a Constitutional duty to exercise general direction and control over his ministry or departments, that Constitutional mandate must be exercised within the strictest confines of the law. It cannot, and must not, be used as a vehicle to act outside the strict confines of the law. The words of PROFESSOR FELTOE, in his booklet, A Guide To Administrative Law…, are instructive when he says:

"All administrative powers (other than those exercised by domestic tribunals) derive from statute and the nature and extent of those powers are to be found in the statutory provisions whereunder these powers have been granted. Such powers are not unlimited. The legislature will not give unlimited power, but, instead, it will give power for specific purpose only or subject to special procedures or with some other kinds of limits. In other words, the limits upon the power are to be discovered by examining the statutory provisions in order to determine what powers the legislature has expressly or impliedly granted. The exercise of a power by an administrative official or body will be invalid unless the official or body is authorized to exercise that power. If an administrator purports to exercise a power he does not have or acts in excess of a power he possesses, his action will be invalid on the basis that it is ultra vires."….,.

Thus, the first respondent cannot use the general powers granted to him by the Constitution to arrogate to himself specific administrative powers which have not been granted to him by the legislature.

His resort to cabinet authority and directives as justification of his unlawful conduct is equally misplaced and without merit because cabinet has no legislative authority. It is trite that laws are made in Parliament and not in Cabinet.

The first respondent also sought to argue that as a Government Minister he placed the embargo on the diesel in the public interest because it constituted a harmful substance in terms of the Environment Management Act [Chapter 20:27] as read with the Environment Management (Hazardous Substances, Pesticides and other Toxic Substances) Regulations, Statutory Instrument 12 of 2007.

In other words, the first respondent is claiming that he has authority to administer the Environmental Management Act simply because he is a Government Minister.

Section 2 of the Environment Management Act [Chapter 20:27], however, defines Minister in the following terms:

"'Minister' means the minister of Environment and Tourism or any other minister to whom the President, may, from time to time, assign the administration of this Act."

What that means is that for the purposes of administering that Act, the law does not recognize any other Minister other than the Minister of Environment and Tourism or any other Minister specifically assigned the task of administering that Act by the President.

In this case, it is common cause that the first respondent, as Minister of Energy and Power Development, he is neither the Minister of Environment and Tourism nor has he been assigned by the President the right to administer the Environment Management Act. For that reason, he cannot assign to himself the power to administer the Environment Management Act without usurping both the President and the Minister of Environment and Tourism's functions.

That being the case, the first respondent's conduct, in assuming responsibility over the Environment Management Act, without Presidential authority, was unconstitutional, and, to that extent, unlawful. In legal parlance his conduct was ultra vires the Constitution as read with the Environment Management Act [Chapter 20:27] and the Environment Management (Hazardous Substances, Pesticides and other Toxic Substances) Regulations, S.I.12 of 2007.

Looked at from a different angle, a perusal of the Constitution, the Environment Management Act [Chapter 20:27] and the Environment Management (Hazardous Substances, Pesticides and other Toxic Substances) Regulations, S.I.12 of 2007 shows that nowhere do they authorize any Minister to place an embargo on any fuel on the basis that its specifications constitute a hazardous substance or is harmful to motor vehicles. This explains why the responsible Minister, that is to say, the Minister of Environment and Tourism has wisely chosen not to interfere with the importation of the diesel in question.

Resorting to the Constitution, the Environment Management Act [Chapter 20:27] and the Environment Management (Hazardous Substances, Pesticides and other Toxic Substances) Regulations, S.I.12 of 2007 could not assist the respondents achieve their purpose considering that in the case of Minister of Justice and Law and Order and Another v Musarurwa and Others 1964 RLR 298 the Appellate Division held, per BEADLE CJ, that:

"(3) When several Acts are used together for the single purpose of producing a desired result, all the Acts must be looked at together as comprising one scheme, If, in its pith and substance, such scheme is unlawful, what was done under each Act must be regarded as having been unlawfully done."

In the same case, QU'ENET JP weighed in with the observation that:

"In exercising his powers of restriction, the Minister was not influenced by a desire to give effect to the purpose of section 50(1)(b) of the Law and Order (Maintenance) Act [Chapter 39], but by a desire to achieve a result not contemplated by the section, viz, to regulate the visits of other persons to the area of restriction. The existence of such ulterior motive invalidated the orders."

In this case, the Minister's resort to section 72 of the Environment Management Act was not motivated by a desire to advance the purpose of that section but to bar the applicant from importing the diesel in circumstances where others were importing such diesel without let or hindrance. I come to that conclusion because the section does not authorize anyone to bar the importation of such diesel. It reads:

"72 Hazardous waste

(1) The Standards and Enforcement Committee shall, in consultation with the Agency, recommend to the Board standard criteria for the classification of hazardous wastes with regard to determining —

(a) Hazardous waste;

(b) Corrosive waste;

(c) Flammable waste;

(d) Toxic waste;

(f) Radioactive waste;

(g) Any other category of waste the Board may consider necessary.

(2) The Board shall, on the recommendation of the Standards and Enforcement Committee, issue guidelines and recommend to the Minister the making of regulations for the management of each category of hazardous waste determined under subsection (1).

(3) Regulations referred to in subsection (2) may prescribe the procedure and criteria for:

(a) The control of imports and exports of toxic and hazardous chemicals and materials permitted to be so imported or exported;

(b) The distribution, storage, transportation and handling of chemicals and materials."

As can be seen, the section simply authorizes the responsible Minister to make regulations controlling the importation of hazardous waste. Diesel with a high sulphur content is however not waste. The section does not prohibit the importation of substandard fuel.

The general rule of law is that what is not prohibited is allowed. As the importation of sub-standard fuel is not prohibited by law it means its importation is legally permissible.

It follows, therefore, that the Investigating Committee and ZIMRA were absolutely correct in advising the second respondent that his conduct was unlawful.

He disregarded that sound advice at his own peril.

His conduct becomes especially malicious and objectionable if one takes into account that he singled out the applicant for victimization in circumstances where fifteen (15) others were not penalized at all and continue not to be penalized for the same alleged misdemeanor. This discriminatory conduct offends both against the Constitution and all notions of justice and fairness.

Being an adviser to the first respondent, the second respondent appears to have misled his principal by concealing and deliberately not disclosing to him the Investigating Committee's report.

That kind of conduct cannot be tolerated by these courts.

By consciously ignoring sound advice, thereby deliberately straying into the wilderness of costly illegality, the second respondent cannot cry foul when he is personally visited with adverse costs.

Granted, the second respondent was acting in the course of duty as a civil servant but while going about his duties he was not entitled to act unlawfully thereby trampling on other people's rights.

A civil servant, or any other employee for that matter, who acts unlawfully in the course of duty attracts personal liability for the simple reason that he is not employed to discharge his duties contrary to law. People must not cause harm to others under the guise of executing official duties. There is therefore no merit in the second respondent's objection to being sued in his personal capacity.

While the importation of substandard fuel is undesirable and harmful to public interest, there is absolutely nothing the respondents can do about it in the absence of the necessary legal instruments as recommended by the Investigating Committee. This is what the cherished rule of law is all about.

It is accordingly ordered that a provisional order be and is hereby granted in the following terms:

TERMS OF THE FINAL ORDER SOUGHT

Pending the final determination of this matter, Applicant is granted the following relief:

That you show cause to this Honourable Court why a final order should not be made in the following terms:

(a) That the respondents pay demurrage costs to the amount of South African R308,660=.

(b) That the respondents pay costs of suit on an attorney client scale.

INTERIM RELIEF GRANTED

Pending determination of this matter, the Applicant is granted the following relief:

(c) That the Respondents release to the Applicant diesel or its agent fuel held at Beitbridge being a total of 476,427 litres without any conditions.

(d) That the Respondents are interdicted from unlawfully frustrating or preventing Applicant from carrying out its business of trading in fuel including importing and distributing fuel in the country.

The applicant was the Attorney General for the Republic of Zimbabwe up to May 2008 when he was removed from that office.

His removal from office was publicly announced by a notice appearing in the Government Gazette of 16 May 2008. Following this, a letter was dispatched to him by the Chief Secretary to the President and Cabinet on 23 May 2008, informing him of the termination of his services as Attorney General.

Prior to the removal of the applicant from office, the respondent and two other members were appointed to form a Tribunal, as provided for in section 110(5) of the Constitution of Zimbabwe, to inquire into the question of, and make recommendations on the removal of the applicant from office for alleged misbehaviour.

My attention has not been drawn to any provision of the Constitution of Zimbabwe, or any other law, that requires the termination of the appointment of the Attorney General to be published in the Government Gazette. My own limited research into the matter reveals no such requirement. It would appear to me that the publication of the termination of the applicant's appointment was intended to give notice to the public at large that the applicant was no longer the Attorney General of the Republic, and that the public should be guided accordingly – perhaps?

It is common cause that the Tribunal recommended that the applicant be removed from office, and, after receiving this recommendation the President acted on it.

On 14 July 2008, the applicant filed this application seeking to have reviewed the decision of the Tribunal to recommend that he be removed from office for misbehaviour.

In attacking the decision of the Tribunal, the applicant alleged that it was grossly unreasonable and utterly perverse in its defiance of logic and reason that no tribunal properly addressing its mind to the facts before it and to the law, and having regard to the evidence before it could have arrived at such a decision. He further alleged that having regard to the totality of the report produced by the Tribunal, and its assessment of the evidence adduced before it, the Tribunal was biased against him. He concludes his attack on the decision of the Tribunal by alleging that the recommendation made by it to the President arose not only out of bias against him but also as a result of the consideration of improper motives.

The application was opposed.

It presents itself clearly to me, however, that where the recommendation of the Tribunal has been implemented, as required by the Constitution of Zimbabwe, then the decision of the Tribunal ceases to have any independent status, and becomes imbedded in and forms an integral and inseparable part of the action of the President.

Section 110(3) of the Constitution of Zimbabwe provides -

“Such person shall be removed from office by the President if the question of his removal from office has been referred to a tribunal appointed under subsection (5) and that tribunal has advised the President that he ought to be removed from office for inability to discharge his functions or for misbehaviour.”

In my view, the literal and grammatical meaning of section 110(3) of the Constitution of Zimbabwe is that the person to whom the section applies can only be removed from office by the President – if the President is so advised by the recommendation of the tribunal.

Thus, the President does not take any decision in the matter but is enjoined simply to implement the recommendation and advice of the tribunal to that effect. The removal of the Attorney General from office is, thus, not a decision that the President can reach mero motu or against the recommendation of the tribunal.

He cannot act without a recommendation and advice from a tribunal.

Viewed from another angle, the converse of the above is, in my view, to hold that the President cannot lawfully remove the Attorney General from office in the absence of a recommendation to that effect. Any such attempt will be unconstitutional, and, thus, unlawful.

In this opposed application, the applicants seek an order in the following terms:

“IT IS ORDERED THAT:

1. The purported appointments and entry into office as Ministers of:

SAVIOUR KASUKUWERE;

JOSEPH MADE;

WALTER MUZEMBI;

FLORA BHUKA;

SYLVESTER NGUNI;

HENRY MADZORERA;

GILES MUTSEKWA; and

SEKAI HOLLAND

are hereby declared to be null and void.

ALTERNATIVELY

1. 1^st respondent and 2^nd respondent be and are hereby directed, within seven days of the date of service of this order upon them, to prevent more than 15 ZANU PF nominees, 13 MDC-T nominees and 3 MDC- M nominees from purporting to act and carry out the functions of Ministers so that the Ministerial complement of Government does not exceed 31 persons.

2. The 1^st and 2^nd respondents are hereby ordered to publish in the Government Gazette a list of Government Ministers in the number and manner required under the Constitution.

3. Only persons included in such list shall be entitled to receipt of any emoluments or entitlements as would accrue to a Minister from the Government or carry out the functions of a Government Minister.

4. It is hereby declared that there shall not be appointed any number of Ministers above those catered for in terms of the Constitution of Zimbabwe.

5. 1^st respondent and 2^nd respondent shall pay the costs of this application.”

The facts giving rise to this application are common cause.

The composition of the executive arm of Government is governed by Schedule 8 of the Constitution of Zimbabwe….,. Article 20.1.6(5) of Schedule 8 to the Constitution of Zimbabwe provides as follows:

“There shall be thirty one (31) Ministers with fifteen (15) nominated by ZANU-PF, thirteen (13) by MDC-T and three (3) by MDC-M.”

During the month of February 2009, the first respondent, acting in consultation with the second respondent, appointed a total of 41 Government Ministers. All the 41 appointees duly took and subscribed, before the first respondent, the oaths of office and loyalty prescribed for Ministers. This number exceeds by 10 the 31 Ministers provided for in terms of Article 20.1. 6(5) of Schedule 8 to the Constitution of Zimbabwe. The third to the tenth respondents were all appointed after the 31^st appointee.  Their appointments were thus made in excess of the 31 Ministers provided for in terms of Schedule 8 to the Constitution of Zimbabwe. For that reason, the applicants aver that their appointments were unconstitutional and therefore null and void.

The respondent, the Constitutional Select Committee (COPAC), is a Parliamentary body set up in terms of the Constitution of Zimbabwe (as amended by the Constitution of Zimbabwe Amendment Number 19 of 2008) to spearhead the drafting of a new Constitution.

In terms of Section 180(2) of the Constitution, the Judicial Service Commission does the administrative work leading to the appointment of judges. In terms of the same section subsection (3), the authority to appoint the nominees selected by the Judicial Service Commission (in terms of section 180(2)) vests in the President of the Republic of Zimbabwe and the President has the final say in such appointments as he can decline to appoint any of the nominees submitted by the Judicial Service Commission. The ultimate authority to appoint judges therefore rests in the President of the Republic of Zimbabwe.

Judges are Constitutional appointees whose tenure of office is protected in terms of section 187 of the Constitution as it stipulates the grounds upon which judges can be removed from their office.

Section 187 of the Constitution states thus:-

1) A judge may be removed from office only for:

a) Inability to perform the functions of his or her office, due to mental or physical incapacity;

b) Gross incompetence;

c) Gross misconduct;

and it further states that a judge cannot be removed from office except in accordance with this section.

In terms of section 187(3) of the Constitution, judges are removed from office by the President after a due enquiry by a tribunal appointed by the President. Section 186(2) of the Constitution provides that judges are appointed from the date of assumption of office until when they reach the age of 70 years. 

In terms of Section 188(3) of the Constitution the salaries, allowances and other benefits of members of the Judiciary are a charge to the Consolidated Revenue Fund.

ATTORNEY-GENERAL'S DISCRETION

The requirements for the issuance of a certificate nolle prosequi are crisply spelt out in section 13 of the Criminal Procedure and Evidence Act [Chapter 9:07]. As was expounded by GUBBAY JA in Levy v Benatar 1987 (1) ZLR 120 (S)….:

“The private party concerned must show:

(i) Some substantial and peculiar interest;

(ii) In the issue of the trial;

(iii) Arising out of some injury;

(iv) Which he individually has suffered;

(v) In consequence of the commission of the offence.

…,.

…,.

These five requirements are in addition to the obligation to obtain from the Attorney-General a certificate of nolle prosequi, for the practice has always been for the State jealously to guard its right to prosecute offenders. See LANDSDOWN and CAMPBELL, South African Criminal Law and Procedure Vol. 5 at 120.”

Moreover, as the learned authors cited in the above passage point out…,:

“The mere possession of the attorney-general's certificate does not in itself confer an absolute right of private prosecution. In the absence of such a right the court will interdict the person proposing to prosecute privately.”

In other words, notwithstanding the possession of a certificate, the court may, in the exercise of its inherent power to prevent abuse of process, interdict a private prosecution pursuant to such certificate. This inherent power to restrain a private prosecution was emphasised by ROPER J in Solomon v Magistrate, Pretoria & Another 1950 (3) SA 603 (W)…,:

“The Court has an inherent power to prevent abuse of its process by frivolous or vexatious proceedings…, and though this power is usually asserted in connection with civil proceedings it exists, in my view, equally where the process abused is that provided for in the conduct of a private prosecution. In such a case as I have postulated, therefore, this Court would, in my opinion, by virtue of its inherent power, be entitled to set aside a criminal summons issued by its own officials or to interdict further proceedings upon it.”

This broad principle was confirmed, but with some caution, by HOEXTER JA in Phillips v Botha 1999 (2) SA 555 (SCA)…,:

“Where the Court finds an attempt made to use for ulterior purposes machinery devised for the better administration of justice it is the Court's duty to prevent such abuse. This power, however, is to be exercised with great caution and only in a clear case….,. The question is whether the private prosecution of the respondent was either instituted or thereafter conducted by the appellant for some collateral and improper purpose, such as the extortion of money, rather than with the object of having criminal justice done to an offender.”

In the more recent South African case of Singh v Minister of Justice and Constitutional Development & Another (5072/05) [2006] ZAKZHC 20, it was argued that the National Director of Public Prosecutions (the NDPP) was obliged to issue to the applicant a certificate nolle prosequi once there had been a decision that he had declined to prosecute, and that it was not necessary for a private prosecutor to prove some substantial and peculiar interest in the issue of the trial. It was held, per HOLLIS AJ, that upon a proper construction of section 7 of Act No.51 of 1977 the National Director of Public Prosecutions was not obliged to do so unless the requirements of section 7(1)(a) had been met. It was necessary for the applicant to provide a factual basis proving that he had some substantial and peculiar interest in the issue of the trial arising out of some injury which he has individually suffered in consequence of the commission of the alleged offence.

BENNION… dealing specifically with rights in relation to law and legal proceedings, opines that:

“One aspect of the principle against doubtful penalisation is that by the exercise of State power the rights of a person in relation to law and legal proceedings should not be removed or impaired, except under clear authority of law.”

In his ensuing commentary on the principle, the learned author makes the following observation…,:

“The right to bring, defend and conduct legal proceedings without unwarranted interference is a basic right of citizenship…,. While the court has control, subject to legal rules, of its own procedure, this does not authorize any ruling which abridges the basic right.”

The language of section 16(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] is categorically clear, viz. a private prosecutor must produce “a certificate signed by the Attorney-General that he has seen the statements or affidavits on which the charge is based and declines to prosecute at the public instance.” Moreover, “in every case in which the Attorney-General declines to prosecute he shall, at the request of the party intending to prosecute, grant the certificate required”.

In any event, in construing this provision, we must also have regard to the Attorney-General's constitutionally guaranteed independence and wide discretion in matters of criminal prosecution. Taking this into account, it seems to me that the exercise of his discretion vis-à-vis any intended private prosecution involves a two-stage process. The first stage is for him to decide whether or not to prosecute at the public instance. If he declines to do so, the next stage comes into play, i.e. to decide whether or not to grant the requisite certificate. In so doing, he must take into account all the relevant factors prescribed in section 13 of the Criminal Procedure and Evidence Act [Chapter 9:07], to wit, whether the private party in question “can show some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually has suffered by the commission of the offence.” If he cannot show any such interest, the Attorney-General is entitled to refuse to issue the necessary certificate. However, where the private party is able to demonstrate the required “substantial and peculiar interest” and attendant criteria, the Attorney-General is then bound to grant the certificate nolle prosequi. At that stage, his obligation to do so becomes peremptory and section 16(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] can no longer be construed as being merely permissive or directory.

This conclusion clearly does not impinge on the Attorney-General's principal discretion to prosecute or not to prosecute at the public instance. That decision is an incident of his constitutional primacy in the sphere of criminal prosecution and is generally not reviewable. Indeed, as is expressly recognized in section 20 of the Criminal Procedure and Evidence Act [Chapter 9:07], even after a private prosecution has commenced, he is entitled to apply for the proceedings to be stopped in order to institute or continue the prosecution at the public instance. However, once he has declined to prosecute and is met with a request for private prosecution by a party that satisfies the “substantial and peculiar interest” requirement of section 13 of the Criminal Procedure and Evidence Act [Chapter 9:07], he has no further discretion in the matter and is statutorily bound by section 16(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] to issue the requisite certificate.

DISPOSITION

It follows from all of the foregoing that the appellant, qua private corporation is entitled to institute a private prosecution in terms of section 13 of the Criminal Procedure and Evidence Act [Chapter 9:07]. However, this entitlement is subject to the issuance of a certificate nolle prosequi under section 16(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] upon the respondent being satisfied that the appellant meets the requirements of section 13 of the Criminal Procedure and Evidence Act [Chapter 9:07].

According to the appellant's founding affidavit in the proceedings a quo, it has incurred a massive loss in the amount of US$1,700,000= arising from the alleged fraudulent activities of its former employees. The respondent takes issue with the evidence required to establish fraud but does not dispute the nature and extent of the prejudice suffered by the appellant. On the papers, therefore, the appellant has clearly demonstrated a substantial and peculiar interest in the issue of the intended prosecution and trial arising out of an injury which it has suffered by the commission of the alleged offence.

The appellant also avers that, at the stage of bail proceedings, the evidence against the four accused persons was found to be so overwhelming as to entail the refusal of bail by the Magistrates Court. Three weeks later, charges against all four accused were withdrawn before plea on the ground of insufficient evidence. After a further three weeks, following the appellant's request to mount a private prosecution, the respondent withheld and declined to issue his certificate nolle prosequi. The reasons stated for that decision, in the respondent's letter of 23 April 2010, were that “the evidence [in the police docket] does not establish a criminal offence against the four suspects” and that it would be “contra bonos mores for me to grant my certificate in this matter.”

However, nothing was stated in the letter as to his evaluation of the nature and extent of the appellant's interest in the matter or the relationship between the alleged offence and the injury sustained by the appellant.

The appellant's grounds for seeking to review the respondent's decisions before the court a quo are essentially twofold, to wit;

(i) Gross irrationality in his assessment of the evidence in the docket; and

(ii) Misdirection at law in his application of section 16(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The locus classicus on judicial review in England is the decision of the House of Lords in Council for Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 (HL). LORD DIPLOCK…, described the grounds of review as follows:

“The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not, in course of time, add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.

By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the State is exercisable.

By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards (Inspector of Taxes) v Bairstow [1955] 3 All ER 48 [1956] AC 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. 'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review.

I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”

LORD ROSKILL…, adverted favourably to the “new nomenclature” devised by LORD DIPLOCK but adopted a slightly different approach which, in essence, retains the same classification:

“But your Lordships are vitally concerned with that branch of judicial review which is concerned with the control of executive action. This branch of public or administrative law has evolved, as with much of our law, on a case by case basis and no doubt hereafter that process will continue. Thus far this evolution has established that executive action will be the subject of judicial review on three separate grounds. The first is where the authority concerned has been guilty of an error of law in its action, as for example purporting to exercise a power which in law it does not possess. The second is where it exercises a power in so unreasonable a manner that the exercise becomes open to review on what are called, in lawyers' shorthand, Wednesbury principles (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680 [1948] 1 KB 223). The third is where it has acted contrary to what are often called 'principles of natural justice'.”

In Patriotic Front-Zimbabwe African People's Union v Minister of Justice, Legal and Parliamentary Affairs 1985 (1) ZLR 305 (SC), the question that fell for resolution was whether the courts could test the validity of anything done by the President. DUMBUTSHENA CJ…, commended the decision in the Council for Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 (HL) case as follows:

“More recently, the House of Lords laid down the grounds upon which administrative actions are subject to judicial review. These grounds appeal to me not only because they were pronounced by an eminent Law Lord, but also because they make clear the wide extent of the theatre of operation in which courts can test the validity of prerogative actions.”

The learned Chief Justice then proceeded…, to adopt and apply the grounds of review expounded by the House of Lords:

“I respectfully agree with Lord Diplock's three grounds on the reviewability of decisions taken under royal prerogative (in our case Executive prerogative), which clearly state the grounds upon which actions taken under executive prerogative can be attacked by the courts.

I have no doubt in my mind that the Electoral Act (Modification) Notice 1985 and Proclamation 2 of 1985…, are reviewable by the court on the grounds so ably stated by Lord Diplock.”

Section 26 of the High Court Act [Chapter 7:06] declares the inherent power, jurisdiction and authority vested in the High Court to review all proceedings and decisions of all inferior courts, tribunals and administrative authorities within Zimbabwe. In terms of section 28 of the High Court Act [Chapter 7:06], upon the review of any civil proceedings or decision, the High Court may, subject to any other law, set aside or correct the proceedings or decision.

The principles of judicial review enunciated by Lords DIPLOCK and ROSKILL, and subsequently adopted by DUMBUTSHENA CJ, are now codified in section 3(1)(a) of the Administrative Justice Act [Chapter 10:28].

This provision enjoins every administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person to “act lawfully, reasonably and in a fair manner.” Subsections (2) and (3) of section 4 of the Administrative Justice Act [Chapter 10:28] restate and elaborate the inherent powers of the High Court to grant relief in respect of any reviewable irregularity. These include the power to confirm or set aside the decision under review or refer the matter back to the administrative authority concerned for consideration or reconsideration. Additionally, the High Court may give such directions as it may consider necessary or desirable to achieve and ensure compliance by the administrative authority with section 3 of the Administrative Justice Act [Chapter 10:28] as well as the relevant law or empowering provision.

Dealing with the irrationality ground invoked by the appellant.

I do not think that the respondent's assessment of the evidence against the accused persons in question can properly be subjected to review. As I have already stated, that is a function that forms part of his constitutional prerogative and cannot ordinarily be questioned by the courts. Even if it were held to be reviewable, it cannot be said on the facts in casu that his decision is so irrational in its defiance of logic or accepted moral standards that no reasonable person in his position who had applied his mind to the matter could have arrived at it.

On the other hand, turning to the legality of the respondent's decision not to issue his certificate, it is clear that he has failed to exercise his statutory powers on a proper legal footing. Having declined to prosecute at the public instance, he should have considered whether or not the appellant satisfied the “substantial and peculiar interest” requirement of section 13 of the Criminal Procedure and Evidence Act [Chapter 9:07]. He did not do so but proceeded to decline his certificate nolle prosequi on the basis that there was insufficient evidence to prosecute. He consequently failed to correctly understand and give effect to the requirements of section 16(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] which regulated his decision-making power. Put differently, by withholding his certificate, he was guilty of an error of law by purporting to exercise a power which in law he did not possess. He thereby contravened his duty to act lawfully in accordance with the peremptory injunction of section 16(1). This constitutes a manifest misdirection at law rendering his decision reviewable on the ground of illegality.

It follows that the court a quo should have found in favour of the appellant on the first ground of review pleaded by it, viz; that the respondent misdirected himself at law in exercising his discretion under section 16(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].

As I have already indicated, the High Court is endowed with wide powers of review, including the power to set aside and correct the decision under review or refer the matter back for reconsideration or give directions to ensure compliance with the law. In the present matter, in light of the appellant having demonstrated its “substantial and peculiar interest in the issue of the trial” in terms of section 13 of the Criminal Procedure and Evidence Act [Chapter 9:07], no useful purpose would be served by remitting the matter to the respondent for reconsideration. The best recourse in the circumstances of this case would be to grant the relief prayed for by the appellant in the High Court.

In the result, the appeal is allowed with costs. The judgment of the court a quo is set aside and substituted with the following:

“1. The decision by the respondent to refuse to grant a certificate nolle prosequi to the applicant be and is hereby set aside.

2. The respondent is directed and ordered, within 5 days of the date of this order, to issue a certificate to the applicant that he declines to prosecute the fraud charge at the public instance.

ORIGINS OF RIGHT OF PRIVATE PROSECUTION

Before addressing the status of corporate entities in the prosecutorial context, it seems necessary to delineate the historical background to private prosecutions generally. As was recognised and restated in section 89 of the former Lancaster House Constitution:

“Subject to the provisions of any law for the time being in force in Zimbabwe relating to the application of African customary law, the law to be administered by the Supreme Court, the High Court and by any courts in Zimbabwe subordinate to the High Court shall be the law in force in the Colony of the Cape of Good Hope on 10th June, 1891, as modified by subsequent legislation having in Zimbabwe the force of law.”

According to DUGARD: South African Criminal Law and Procedure – Vol. IV Introduction to Criminal Procedure (1977)…, the Roman-Dutch law of criminal procedure and evidence remained in force at the Cape until the early 19^th century. Following various alterations to the structure of the courts in the Cape, this adjectival law was radically anglicised by Ordinance No.40 (1828) and Ordinance No.72 (1830) to form the foundations of our modern law…,. As regards the institution of prosecutions, the British Government accepted that the conditions prevailing in the Cape did not permit the unmodified adoption of the English system of private prosecution. Accordingly, the right of prosecution was vested in the Attorney-General but, where he declined to prosecute, a private individual might prosecute in respect of an injury to himself or to someone under his care…,. In principle, therefore, the law governing private prosecutions, both in Zimbabwe and in South Africa, does not originate in the Roman-Dutch law but is derived from the English common law.

In England, during the 17^th and 18^th centuries, the system of criminal procedure that prevailed was predominantly one of private prosecutions. No public official was designated as a public prosecutor, either locally or nationally, although the local justice of the peace sometimes assumed that role. In essence, private citizens were responsible for preserving the peace and maintaining law and order. Crimes were regarded as being committed, not against the State, but against a particular individual or family. Thus, the prosecution of almost all criminal offences was usually initiated and conducted by the victim or his or her relative. The distinctive feature of the common law was that it was not a privilege but the duty of the private citizen to preserve the peace and bring offenders to justice. Consequently, no authority was vested in the King to dictate if and when a private individual could institute criminal proceedings. With the passage of time, King's attorneys were appointed to intervene in matters of particular interest to the King or to initiate and conduct prosecutions in his name. This led to the origin and evolution of the so-called law officers of the Crown, vested with the specific function of advising and litigating on behalf of the King.

The late 19^th century saw the passage of the Prosecution of Offences Act 1879 which first introduced the office of Director of Public prosecutions. However, this Act did not fundamentally undermine private prosecutions, because public prosecutors enjoyed very limited authority. Again, the successor Act of 1908 did not substantially increase the powers of public prosecutors. It was only with the enactment of the Prosecution of Offences Act 1985 that England established an effective system of public prosecution through the Crown Prosecution Service.

After hearing counsel in this matter, we handed down the following order:

“It is ordered that:

1. The application be and is hereby dismissed with costs on a legal practitioner and client scale in favour of both amici curiae.

2. It is apparent from the record of these proceedings that orders were issued by the High Court in Case No. HC10203/12 and by the Supreme Court in Judgment No. SC01-14 which was confirmed by this Court in Case Number CCZ 8/14.

3. It is also apparent that the applicant has disobeyed those orders in clear contravention of section 164(3) of the Constitution of Zimbabwe.

4. In terms of section 165(1)(c) of the Constitution of Zimbabwe, this Court is obligated to uphold the rule of law and to make such orders as are necessary to achieve that purpose in accordance with its inherent jurisdiction.

5. It is accordingly ordered that:

(i) The applicant is committed to imprisonment for a period of 30 days the whole of which is suspended on condition that the applicant complies with the above orders of the High Court and the Supreme Court by issuing the requisite certificates nolle prosequi within 10 days of the date of this order.

(ii) In the event that the applicant fails to comply with this order, he shall, in his personal capacity, be barred from approaching or appearing as a legal practitioner in any court in Zimbabwe.

6. Full reasons for judgment will follow in due course.”

These are the reasons for the aforestated order.

BACKGROUND

This is an ex parte application brought by the Prosecutor-General, duly appointed in terms of the Constitution, for the determination of the question of his constitutional independence and protection from the direction and control of anyone in terms of sections 258, 259(1) and 260 of the Constitution.

It is important to put this application into perspective by looking at the background facts that explain the question to be determined by this Court.

The applicant has brought this application pursuant to orders granted by the High Court and the Supreme Court requiring him to issue certificates nolle prosequi in two matters in which he exercised his discretion not to prosecute. The first of these cases was brought as an application under Case No. HC10203/12 by one Francis Maramwidze against the Commissioner General of the Zimbabwe Republic Police and the Prosecutor-General, seeking an order directing the prosecution of one Dr Munyaradzi Kereke or, alternatively, a certificate nolle prosequi. In this matter, allegations had been made that Dr Munyaradzi Kereke had sexually assaulted a minor child whose guardian was Francis Maramwidze. On the same day, on 3 March 2014, ZHOU J granted Francis Maramwidze the alternative relief he sought by ordering the applicant to grant him a certificate nolle prosequi in terms of section 16(1) of the Criminal Procedure and Evidence Act [Chapter 9:07]. On 14 May 2014, the written reasons for judgment were delivered by the learned judge in HH208-14.

The applicant has not complied with that order given by ZHOU J as at the hearing of this application.

Francis Maramwidze brought a contempt of court application against the applicant under Case No. HC480/15 on 20 January 2015, which application is opposed by the applicant. The basis of his opposition in that matter is that the order of ZHOU J is unconstitutional as section 260 of the Constitution makes him absolutely autonomous in the discharge of his prosecutorial functions and exercise of prosecutorial discretion and that such exercise is not susceptible to judicial review. On 16 October 2014, the Supreme Court struck off an appeal by Dr Munyaradzi Kereke which sought to have the order by ZHOU J directing the issuance of the certificate nolle prosequi set aside. The applicant himself did not appeal against the order or judgment given by ZHOU J, and, even though the appeal by Dr Munyaradzi Kereke was dismissed, he has persistently refused to comply with the judgment of the High Court.

The second case involved Telecel Zimbabwe (Pvt) Ltd.

The applicant decided not to prosecute the suspects in a matter involving Telecel Zimbabwe (Pvt) Ltd, prompting it to seek a certificate nolle prosequi which was declined. A review of that decision was dismissed in the High Court on the ground that a company had no right to institute a private prosecution. Telecel Zimbabwe (Pvt) Ltd appealed against that judgment, which appeal was heard on 22 July 2013 under Civil Appeal No. SC254/11. The Supreme Court overturned the High Court decision by allowing the appeal, thereby setting aside the decision not to grant a certificate nolle prosequi, and unanimously ordered the Prosecutor-General to issue a certificate nolle prosequi to Telecel Zimbabwe (Pvt) Ltd within 5 days of the grant of its order.

Aggrieved by the Supreme Court decision under SC01-14, the applicant filed an application to this Court, purportedly brought in terms of sections 167(1) and 176 of the Constitution. He sought the setting aside of the order of the Supreme Court. On 8 October 2014, this Court dismissed the application with costs under Case No. CCZ 8-14. That judgment also confirmed the decision in SC01-14. The effect of such dismissal is that the order of the Supreme Court is still extant. The applicant has, yet again, not complied with that order.

The applicant has not complied with both orders but has approached this Court in an ex parte application to challenge the constitutionality of those orders as juxtaposed with section 260 of the Constitution. This he attempts to do without making mention of the High Court and Supreme Court cases which the present application clearly stems from….,.

It is the applicant's contention that both orders in the High Court and the Supreme Court are a direct violation of his independence. The basic argument by the applicant is that he should not be forced to issue a certificate nolle prosequi. Such absolute independence, he argues, is provided for in terms of section 260(1)(a) and (b) of the Constitution in the exercise of his duties, which are defined in section 258 as read with section 259(1). Section 260 of the Constitution, which the applicant strongly relies upon, provides as follows:

“(1) Subject to this Constitution, the Prosecutor-General -

(a) Is independent and is not subject to the direction or control of anyone; and

(b) Must exercise his or her functions impartially and without fear, favour, prejudice or bias.

(2) The Prosecutor-General must formulate and publicly disclose the general principles by which he or she decides whether and how to institute and conduct criminal proceedings.”

The applicant's constitutional mandate is to head the National Prosecuting Authority, as provided for in section 259(1) of the Constitution. The National Prosecuting Authority's functions are set out in section 258:

“There is a National Prosecuting Authority which is responsible for instituting and undertaking criminal prosecutions on behalf of the State and discharging any functions that are necessary or incidental to such prosecutions.”

The applicant argues that his reading of these sections is that, in the discharge of his prosecutorial functions and exercise of prosecutorial discretion, he is absolutely independent and not subject to the control of anyone else. He cites as examples that he is independent of the police, Cabinet, victims of offences and the courts. He contends that this independence is the core constitutional tenet that binds the office of the Prosecutor-General, that the eventual decision of whether or not to prosecute rests with the Prosecutor-General and that he should not be pressurised by anyone else. The applicant also argues that any judicial interference is against the doctrine of separation of powers and the legitimate autonomy that is conferred on the Prosecutor-General by the Constitution. He accepts only the ground of irrationality, as per the Wednesbury principles, as the basis upon which the exercise of his duties can be susceptible to judicial review. He argues that the decision to withhold a certificate nolle prosequi is a function that falls within the purview of his prosecutorial discretion and is not open to review by the courts.

There is no respondent in this matter but there is the intervention of the two amici curiae, Mr Mafukidze and Mr Warara, who urged this Court to dismiss this application as an abuse of its process.

Mr Mafukidze placed reliance on the cases of Rogers v Rogers 2008 (1) ZLR 330…, and the oft-quoted case of Smyth v Ushewokunze 1997 (2) ZLR 544 (S) to demonstrate the expectations of public prosecutors. as being dedicated to the achievement of justice and being above reproach and impartial, and to emphasise the higher standard of conduct expected of the Prosecutor-General as leader of the National Prosecuting Authority.

Mr Mafukidze contends that this application is strange in that it flows from an unlawful disobedience of two extant court orders. This is contrary to section 164(3) of the Constitution which states that an order or decision of a court binds not only the State but all persons, institutions, and agencies to whom it applies and must be obeyed by them.

It was further argued that, without a direct challenge to section 16(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], this Court must find that it is unable to determine this application on the merits. To substantiate this position, he relied on the case of ANZ (Pvt) Ltd v Minister of State for Information and Publicity 2005 (1) ZLR 222 (S)….,.

Mr Mafukidze argued that, even if the Court were to determine this application on the merits, it should fail in that prosecutorial independence is itself subject to the Constitution and the law. He urged the Court to find in favour of the constitutionality of section 16(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] which imposes a statutory duty upon the applicant to issue certificates nolle prosequi. It was also argued that the power to issue authoritative interpretations of the Constitution and the law in general lies with the courts and that any attempt to negate that power undermines the rule of law.

Moreover, the relief sought effectively outlaws private prosecutions. In addition, it would amount to a declaration finding section 16 of the Criminal Procedure and Evidence Act [Chapter 9:07] to be unconstitutional….,.

COMPLIANCE WITH THE LAW

The primary question before this Court is whether there is a law that compels the Prosecutor-General to issue certificates nolle prosequi.

In answering that question, it is important to acknowledge the well-known canons that the Constitution is the supreme law and that the rule of law is a founding principle of our nation. See section 3(b) of the Constitution.

The quintessence of the rule of law is this, and simply this, that where there is a law it must be complied with. In National Director of Public Prosecutions and Others v Freedom Under Law 2014 (4) SA 298 (SCA), the court cited the dictum of NGCOBO J in Affordable Medicines Trust & Others v Minister of Health & Others 2006 (3) SA 247 (CC)…,.:

“The exercise of public power must therefore comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law. The doctrine of legality, which is an incident of the rule of law, is one of the constitutional controls through which the exercise of public power is regulated by the Constitution.”

The Constitution itself makes the Prosecutor-General's independence subject to the Constitution and the law through the strictures of section 261(1) which states that:

“The Prosecutor-General and officers of the National Prosecuting Authority must act in accordance with this Constitution and the law.”

This is also seen in the very section 260(1) which the applicant relies upon to bolster his independence. This provision makes it crystal clear that the Prosecutor-General's independence and autonomy in the exercise of his functions and powers are “subject to this Constitution.” It follows that the applicant is enjoined at all times to observe both the Constitution and the rule of law.

At the relevant time, before sections 13 and 16 of the Criminal Procedure and Evidence Act [Chapter 9:07] were amended in 2016, it was obligatory for the Prosecutor-General to issue a certificate nolle prosequi in any case where he declined to prosecute and the party requesting the certificate was able to show some substantial and peculiar interest in the matter.

See the decision of the Supreme Court in the Telecel Zimbabwe (Pvt) Ltd case (SC01-14) referred to earlier. See also the decision of this Court in Norman Sengeredo v The State CC11-14.

There is no magic about the interpretation of sections 13 and 16 of the Criminal Procedure and Evidence Act [Chapter 9:07]. Section 16 uses the word “shall” which connotes being compelled to do as provided. Once the Prosecutor-General declines to prosecute and it is found that the private prosecutor has a substantial and peculiar interest in the matter, in terms of section 13, the former is peremptorily required to issue a certificate nolle prosequi to the latter.

Section 12(1)(d) of the National Prosecuting Authority Act [Chapter 7:20] also provides to the same effect:

“(1) The Prosecutor-General –

(a)…,.

(b)…,.

(c)…,.

(d) Shall issue certificates nolle prosequi in accordance with the Criminal Procedure and Evidence Act [Chapter 9:07], to persons intending to institute private prosecutions, where the Prosecutor-General chooses not to prosecute.”

While this law was enacted after the underlying matters had already been instituted, two things remain clear;

(i) The first is that this section merely solidifies the position already in existence in section 16 of the Criminal Procedure and Evidence Act [Chapter 9:07] to which it alludes.

(ii) Secondly, when this provision came into existence, the applicant should simply have complied with it and issued the requisite certificates nolle prosequi.

The question before this Court is not the constitutionality of section 16 as read with section 13 of the Criminal Procedure and Evidence Act [Chapter 9:07] or of section 12 of the National Prosecuting Authority Act [Chapter 7:20]. The question is whether or not there is a law that compels the applicant to issue the certificates nolle prosequi - and this question must be answered in the affirmative.

There are unambiguously crafted statutory provisions that compel him to do so and he must comply with them. The rule of law demands that a law that is in existence must be complied with. The law is an instrument for the regulation of all conduct, both public and private. The performance of his prescribed duties by the applicant is no exception. It is subject to regulation by law, i.e. the governing statutory provisions as interpreted by the courts….,.

In terms of sections 260(1) and 261(1) of the Constitution, as read with sections 13 and 16(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], the applicant's discretion is limited to the decision whether to prosecute or not. Once that decision is made, and the intended private prosecutor has satisfied the criterion of substantial and peculiar interest, he has no further discretion in the matter.

The submission by counsel for the applicant that the discretion extends to whether or not to issue a certificate nolle prosequi after the election not to prosecute is at total variance with the provisions of sections 13 and 16 of the Criminal Procedure and Evidence Act [Chapter 9:07]. There is no residual discretion which reposes in the Prosecutor-General except as provided for in those sections.

The attempt by the applicant to extend his discretion to the issuance of certificates nolle prosequi is not supported by the law….,.

There is a law which compels the issuance of certificates nolle prosequi and that law is unchallenged and valid. There is a duty upon the applicant to obey any order given pursuant to this law. That duty falls within the ambit of sections 260(1) and 261(1) of the Constitution. The applicant's independence is therefore subject to the rule of law, and, more specifically, to section 162(3) of the Constitution which places a duty upon him to obey court orders and decisions. In defiance of such clear provisions of the Constitution, which he, as a public authority, is directly and explicitly bound by, he has filed this application, more out of concern for his independence than the general framework under which such independence exists.

In any event, section 76 of the Constitution provides for the independence of the Attorney-General.  

When section 278 of the Constitution speaks to the need to appoint an independent tribunal to look into the allegations raised against the applicants; it means much more than handpicking those who constitute such a tribunal.

The qualifications of those independent members of such a tribunal must not be a subject of speculation but it remains the prerogative of the Legislature to define such qualifications.

The critical provision of the Constitution, for present scrutiny, is section 180, which provides for judicial appointments as follows:

“(1) The Chief Justice, the Deputy Chief Justice, the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.

(2) Whenever it is necessary to appoint a judge, the Judicial Service Commission must -

(a) Advertise the position;

(b) Invite the President and the public to make nominations;

(c) Conduct public interviews of prospective candidates;

(d) Prepare a list of three qualified persons as nominees for the office; and

(e) Submit the list to the President;

whereupon, subject to subsection (3), the President must appoint one of the nominees to the office concerned.

(3) If the President considers that none of the persons on the list submitted to him or her in terms of subsection (2)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned.

(4) The President must cause notice of every appointment under this section to be published in the Gazette.”

(I note that section 180 was amended in September 2017 - some seven months after the decision in this matter was handed down in February 2017…,.).

Section 235 of the Constitution provides as follows:

“235 Independence of Commissions

(1) The independent Commissions -

(a) Are independent and are not subject to the direction or control of anyone;

(b) Must act in accordance with this Constitution; and

(c) Must exercise their functions without fear, favour or prejudice; although they are accountable to Parliament for the efficient performance of their functions.

(2)…,.

(3) No person may interfere with the functioning of the independent Commissions.”…,.

Regard must also be had to the purpose of sections 235(1) and (3) of the Constitution which are, in essence, “independence clauses.”

The real purpose of the “independence clauses”, with regard to Commissions and independent offices established under the Constitution, is to provide a safeguard against undue interference with such Commissions or offices by other persons or other institutions of Government. These provisions were incorporated into the Constitution as a necessary measure to ensure that no organ of the State would usurp power from the Independent Commissions, and, in effect, direct the manner in which they operate. These Commissions are set up essentially to ensure that the fundamental rights provided in the Bill of Rights are protected and given effect to. To that end, the Commissions were entrusted with special governance mandates of critical importance. They are intended to serve as 'people's watchdogs', and, to perform this role effectively, they must operate in an environment without improper influences, fear or the promise of favour.

Section 342(1) of the Constitution provides as follows;

“342 (1) A power, jurisdiction or right conferred by this Constitution may be exercised, and a duty imposed by this Constitution must be performed, whenever it is appropriate to do so.”….,.

The first respondent is the National Prosecuting Authority (the NPA) established in terms of section 258 of the Constitution. It is the body tasked with instituting and undertaking criminal prosecutions on behalf of the State and discharging any functions necessary or incidental to such prosecutions.

This is an appeal against the decision of the High Court dismissing with costs an application made by the appellants seeking an order declaring the appointment of certain ministers of Government to be unconstitutional, and, in the alternative, an order directing the first and second respondents to act in accordance with the provisions of the Constitution….,.

FACTUAL BACKGROUND

On 15 September 2008, an agreement that came to be known as the Global Political Agreement or simply GPA was signed by, and between, the principals of the three dominant political parties in Zimbabwe. By the Constitution of Zimbabwe Amendment (No.19) Act, Act No.II of 2009, Schedule 8 was inserted as part of the transitional amendments and provisions to the former Constitution. Schedule 8, inter alia, incorporated Article 20 of the Global Political Agreement verbatim and also specifically provided that, during the subsistence of the Inter Party Political Agreement, the provisions contained in Article XX thereof were to prevail notwithstanding anything else to the contrary in the former Constitution. The former Constitution was subsequently repealed and substituted by the current Constitution in May 2013.

Article 20.1.6 of the aforesaid amendment, dealing with the composition of the Executive, provided, inter alia, that there:

“Shall be thirty–one (31) ministers; with fifteen (15) nominated by Zanu PF, thirteen (13) by MDC–T and three (3) by MDC-M.”

In terms of Article 20.1.3, it was the function of the first respondent, as President, to appoint, inter alia, ministers of Government in accordance with the agreement, and, after consultation with, inter alia, the second respondent (i.e. the Prime Minister), allocate ministerial portfolios in accordance with the agreement.

In February 2009, the first respondent appointed a total of forty one ministers in consultation with the second respondent. Of the forty-one ministers, 21 were from Zanu PF, 16 from MDC–T and 4 from MDC–M. The ministers took their verbal oaths of office and loyalty as a group after which they individually subscribed to their oaths of office and loyalty before the first respondent in turn.

It is not in dispute that a total of ten ministers subscribed to the oath of office and loyalty after the quota provided for in Article 20.1.6 had been reached. Of these ten ministers, two have not been cited in these proceedings; one having subsequently been elevated to the position of Vice-President and the other having failed to secure a parliamentary seat within three months of the appointment. This matter therefore relates to the remaining eight ministers.

It should be highlighted, at this stage, that the tenure of office of the eight ministers whose appointment forms the basis of the present proceedings came to an end “on the effective date” when the President, elected in terms of the new Constitution, assumed office in terms of that Constitution. To a large extent therefore, this judgment has been overtaken by events and may now largely be academic.

PROCEEDINGS A QUO

The appellants, as applicants, made it clear that they were bringing the application in terms of section 18(9) of the former Constitution. The first applicant stated that, as a taxpayer, he is prejudiced by such unlawful appointments, and, as a citizen of Zimbabwe, he is entitled to demand that the Constitution be respected and that the rule of law be upheld. The second applicant, on the other hand, indicated that it is a Trust established by notarial deed whose objective is to promote democracy, transparency and accountability to ensure that institutional structures and processes uphold the rights of citizens.

Both submitted that the first respondent acted unconstitutionally by appointing the ministers in question and that the second respondent also acted unlawfully by consenting to such appointments. Accordingly, they sought an order declaring the appointments to be null and void, alternatively, an order that the first and second respondents be directed to comply with the Constitution and prevent more than thirty-one ministers from being appointed, and, thereafter, to publish in the gazette a list of the ministers which complies with the Constitution.

The first and second respondents opposed the order sought. They raised a number of objections in limine;

(i) First, that the application is predicated on the right to the protection of the law which the appellants say are enshrined in section 18(9) of the former Constitution. Section 18(9) conferred the right to be afforded a hearing within a reasonable time by an independent and impartial court established by law. Accordingly, the appellants had not established the basis of the right with which they claimed to be possessed.

(ii) That the appointment of ministers of Government is an executive act that is not justiciable in terms of section 31K(1) and (2) of the former Constitution.

(iii) That the first appellant is a taxpayer by operation of the law. The fact that he is a taxpayer does not clothe him with the locus standi to bring this application. His remedy lies through Parliament which is the arm of the State which approves Government expenditure.

(iv) That the second appellant is a Trust. It does not have corporate personality although its trustees have the power to sue or be sued. The second appellant therefore lacks locus standi to bring this application.

On the merits, the respondents submitted that the 8^th Schedule to the Constitution is a political statement which is a part of a political agreement between the parties to it. The agreement has its own dispute resolution mechanisms, and, that being the position, the courts should be wary of prescribing remedies for what is a purely political matter. Further, they argued that the correct interpretation of the Article in question is that the first respondent shall appoint at least the number of ministers mentioned in Article 20.1.6. They therefore sought the dismissal of the application with costs.

In their answering affidavit, the appellants submitted that there was no evidence whether, and to what extent, the first and second respondents associated themselves with the subjective views of the deponent of the opposing affidavit, who, at the time, was the Attorney General of Zimbabwe. They further submitted that they were entitled to approach this court in terms of section 18(9) so that this court determines the existence and extent of their civil rights and obligations. They also submitted that the Rules of the High Court, and, in particular, Rule 8 permit the bringing of proceedings by trustees in the name of the Trust.

In their heads of argument filed a quo, the respondents abandoned the issue of the locus standi of the appellants as well as the issue of the mode of citation of the second appellant and conceded that Rule 8 of the High Court Rules does allow the second appellant to be cited in the way it was.

In its judgment, the court a quo came to the conclusion that the provision in question, stipulating the number of ministers to be appointed by the first respondent, was merely directory and not peremptory. Further, the court found that if the relief sought were granted, it would destabilise the Government of national unity, “cause unnecessary confusion in the body politic and prejudice the public interest at large.” The court further found that the stated intention of the legislature was to create a Government of National Unity in which the three major political parties would be represented proportionately, and, that in any event the figures stipulated under Article 20.1.6(5) had not been outrageously exceeded. Accordingly, the court dismissed the application with no order as to costs.

It is against that order that the present appeal is directed.

The respondents, on the other hand, whilst abiding by the submissions filed in the court a quo, made the following further submissions;

(i) First, that our law does not recognise the actio popularis. In other words, there is no right to vindicate a public interest unless there is harm to be visited on an applicant. Since the appellants had not alleged harm to themselves, they therefore had no locus standi to pray for the relief sought; and

(ii) Second, that the appellants were in fact seeking a mandamus. They have not alleged that section 31D of the former Constitution, as read with the 8^th Schedule of that Constitution, confers a right on them.

(iii) Third, that the second appellant, being a Trust, has no constitutional right which has been breached. In any event, the individual trustees have not alleged a breach of their rights under the Constitution. Therefore, the appellants have no direct personal interest in the administrative act complained of….,.

ISSUES FOR DETERMINATION

A number of issues arise for determination in this application. In the order in which they fall to be determined, the issues may conveniently be said to be the following;

(a) First, whether a point of law that is conceded or abandoned in a lower court can be reinstated and revisited on appeal.

(b) Second, whether the application was properly brought in terms of section 18(9) of the former Constitution.

(c) Third, whether both appellants had locus standi to launch the application and seek the relief they did a quo.

(d) Fourth, the correct interpretation to be given to the provision that “the Inter-party Political Agreement shall, during the subsistence of the…, agreement prevail notwithstanding anything to the contrary in the Constitution”; and

(e) Lastly, whether the appellants were entitled to the relief prayed for in their draft order a quo.

I relate to each of these in turn.

This is a chamber application for an order for direct access to the Constitutional Court (“the Court”) made in terms of Rule 21(2) of the Constitutional Court Rules, S.I.61 of 2016 (“the Rules”).

FACTUAL BACKGROUND

In 2014, the University of Zimbabwe awarded a Doctor of Philosophy degree to Mrs Ntombizodwa Grace Mugabe (nee Marufu) (“Mrs Mugabe”). The applicant was the Vice-Chancellor of the University at the time. The applicant stated that, to his knowledge, the degree was awarded in accordance with the University of Zimbabwe Act [Chapter 25:16] as well as the statutes and ordinances of the University. In February 2018, the applicant was arrested by members of the Zimbabwe Anti-Corruption Commission. He was charged with criminal abuse of office as defined in section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] on the allegation that he had improperly awarded the degree to Mrs Mugabe.

The applicant was arraigned before the Harare Magistrates Court on initial remand. He was suspended from his position as the Vice Chancellor of the University of Zimbabwe by the President pending finalisation of the criminal charges. On 23 July 2018 the second respondent issued authority to prosecute to the third and fourth respondents. He purported to do so in terms of section 259 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”). The third and fourth respondents are members of the Special Anti-Corruption Unit in the Office of the President and Cabinet (“the Unit”).

When the trial began, on 5 September 2018, the third and fourth respondents appeared as prosecutors in the case. The applicant objected to their right to prosecute at the public instance. The applicant raised three constitutional questions. The questions were –

“(i) Whether the grant of authority to prosecute to the third and fourth respondents, purportedly under section 259 of the Constitution, being persons other than employees of the National Prosecuting Authority, was ultra vires section 259 of the Constitution?

(ii) Whether the grant of the said authority is ultra vires section 263 of the Constitution and a wilful abdication of constitutional power by the Prosecutor-General, thereby infringing his rights aforesaid?

(iii) Whether, in any event, the grant of the said authority undermines the protective scheme of inherent prosecutorial independence afforded him by section 258 through to section 263 of the Constitution, and, as such, a breach of his rights aforesaid?”

The third and fourth respondents opposed the application, which they perceived to be an application for referral of the three constitutional questions to the Constitutional Court for determination.

They did not deny being employed by the Unit, but argued that the authority to prosecute was under section 5(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the CP&E Act”), and, as such, was lawful.

The court a quo found that while it was correct that the second respondent had no power, under section 259 of the Constitution, to grant prosecutorial authority, section 5(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] allowed him to delegate prosecutorial functions to any legal practitioner entitled to practise in Zimbabwe.

To put the reasoning of the court a quo and its decision into context, it is important to refer to the constitutional provisions and the law governing the delegation of authority to prosecute.

Section 259 of the Constitution provides generally for the Office of the Prosecutor-General and other officers of the National Prosecuting Authority (“the NPA”). Section 259(10) provides:

“(10) An Act of Parliament must provide for the appointment of a board to employ persons to assist the Prosecutor-General in the exercise of his or her functions, and must also provide -

(a) For the qualifications of those persons;

(b) For the conditions of service, conduct and discipline of those persons;

(c) That, in exercising their functions, those persons must be independent and impartial and subject only to the law and to the direction and control of the Prosecutor-General;

(d) For the structure and organisation of the National Prosecuting Authority; and

(e) Generally, for the efficient performance and well-being of the National Prosecuting Authority.”

Sections 260 and 261 of the Constitution entrench the independence of the Prosecutor-General and officers of the National Prosecuting Authority (NPA). They provide:

“260 Independence of Prosecutor-General

(1) Subject to this Constitution, the Prosecutor-General -

(a) Is independent and is not subject to the direction or control of anyone; and

(b) Must exercise his or her functions impartially and without fear, favour, prejudice or bias.

(2) The Prosecutor-General must formulate and publicly disclose the general principles by which he or she decides whether and how to institute and conduct criminal proceedings.

261 Conduct of officers of National Prosecuting Authority

(1) The Prosecutor-General and officers of the National Prosecuting Authority must act in accordance with this Constitution and the law.

(2) No officer of the National Prosecuting Authority may, in the exercise of his or her functions -

(a) Act in a partisan manner;

(b) Further the interests of any political party or cause;

(c) Prejudice the lawful interests of any political party or cause; or

(d) Violate the fundamental rights or freedoms of any person.

(3) Officers of the National Prosecuting Authority must not be active members or office-bearers of any political party or organisation.

(4) An Act of Parliament may make further provision to ensure the political neutrality of officers of the National Prosecuting