On
30 June 2017 I gave the following order:
“WHEREUPON,
after reading documents filed of record and hearing counsel, BY
CONSENT, IT IS ORDERED THAT: The application be and is hereby
dismissed with no order as to costs.“
Notwithstanding
the fact that the matter was disposed of on the basis of an order by
consent, a written
judgment was necessary to clarify the law on the issue behind the
application.
The
chamber application was made ostensibly in “terms of Rules 32(2)
and 12 of the Constitutional Court Rules, 2016” (“the Rules”).
The applicant sought an order for leave to appeal from the ruling of
a magistrate denying him a referral to the Constitutional Court (“the
Court”) of four questions for determination.
Rule
32(2) of the Rules provides that “a litigant who is aggrieved by
the decision of a subordinate court on a constitutional matter can
apply to the Constitutional Court for leave to appeal against such
decision.”
The
applicant stood before the magistrate accused of stock theft, it
being alleged that he stole 145 cattle some time in 2002. He was
first brought to trial in 2005, under CRB1662/05. The Regional
Magistrate who presided over the case resigned before completing the
trial. The High Court later quashed the proceedings and ordered a
trial de novo before a different magistrate. The trial de novo
commenced.
The
applicant applied for a discharge at the end of the case for the
State. The application was dismissed. The applicant was aggrieved by
the dismissal of his application. He approached the High Court for a
review of the proceedings. He made an urgent application in the
Magistrate's Court for a stay of the proceedings pending the
determination of the application for review. The State consented to
the granting of the order staying the proceedings pending the
determination of the application for review.
The
High Court, once again, set aside the proceedings in the Magistrate's
Court and ordered a trial de novo before a different magistrate, in
the event that the State decided to pursue the matter further. At the
commencement of the trial de novo, the applicant requested the
presiding magistrate to refer to the Court the question whether or
not his right to a fair trial within a reasonable time had been
violated. The request for referral was granted on 28 November 2014.
The Constitutional Court dismissed the matter for the reason that the
referral had not been properly made.
When
the applicant's trial resumed at the Magistrate's Court, he
requested the presiding magistrate, in terms of section 175(4) of the
Constitution, to refer to the Constitutional Court for determination
four questions. These were:
“1.
Whether or not the accused person's right to a fair trial within a
reasonable time has been infringed or violated?
2.
Whether or not the accused person's right to protection of the law
has been violated?
3.
Was the accused person's right to a fair, lawful, prompt and
impartial administrative action violated or infringed?
4.
Whether or not the intended third criminal trial infringes/violates
the accused person's constitutional right to remain silent and not
to testify or be compelled to give evidence in a third criminal
trial?”
The
magistrate determined the questions she was requested to refer to the
Constitutional Court. She made the factual finding that the rights of
the applicant had not been violated, as alleged by him. The
magistrate also said she considered the request for the referral of
the questions to the Constitutional Court to be frivolous and
vexatious. She dismissed the application for referral.
The
applicant made a chamber application, seeking an order for leave to
appeal against the decision of the court a quo that the request to
have the four questions referred to the Constitutional Court was
frivolous and vexatious.
The
magistrate used the finding that the fundamental rights had not been
infringed to support the finding that the request for referral was
frivolous and vexatious. The question raised by the application was
whether or not a subordinate court, after making a decision that a
right was not violated, can go on to determine the question whether
the request for the referral of the question it was requested to
refer to the Constitutional Court, under section 175(4) of the
Constitution, is frivolous or vexatious.
The
grounds of the intended appeal also attack the correctness of the
decision that the applicant's right to a fair trial within a
reasonable time was not violated.
The
applicant's intended grounds of appeal are:
“1.
The presiding magistrate in the court a quo (having been requested by
the appellant to refer four (4) constitutional issues or questions to
the Constitutional Court for determination, namely, whether or not
the appellant's rights to a fair trial within a reasonable time,
protection of the law, fair, lawful, prompt and impartial
administrative justice both substantively and procedurally and to
remain silent and not to testify or be compelled to give evidence in
a Third Criminal Trial, were infringed or violated) erred and
misdirected herself by ruling that the said rights were not violated
or infringed;
2.
Without placing due weight and consideration on the relevant facts,
averments, and submissions contained in the appellant's papers and
documents filed of record and placed before her, the magistrate in
the court a quo erred and misdirected herself by descending into the
arena and responded (to) the appellant's application for and on
behalf of the State which legally conceded and accepted almost all
the appellant's facts in support of his application.
3.
The presiding magistrate in the court a quo erred and misdirected
herself by ruling that the appellant's request for the referral of
the matter to the Constitutional Court was frivolous, vexatious and
baseless and that the appellant's constitutional rights (supra)
were and are subject to limitation in terms of section 86(3) of the
Constitution of Zimbabwe.”
The
relief sought is worded as follows:
“WHEREFORE,
the appellant prays that the appeal should succeed and that the
presiding magistrate's ruling or decision in the court a quo be set
aside entirely and be replaced or substituted with the following
order:
(i)
That the appeal succeeds;
(ii)
The ruling or decision of 20 April 2017 of the court a quo issued
under case number CRB7520/16 be and is hereby set aside;
(iii)
The appellant's request for the referral of the constitutional
issues or questions for determination before this Court be and is
hereby granted with no order as to the costs of suit."
The
right of appeal is a right that is availed by the Constitution and
regulated, in part, by the Rules. Before one can be granted leave to
appeal, one has to show that the appeal one intends to bring relates
to a decision by the court a quo on a constitutional matter or is
against an issue connected with a decision on a constitutional
matter.
In
The Cold Chain (Private) Limited t/a Sea Harvest v Makoni 2017 (1)
ZLR 14 (CC)…, the requirements to be satisfied in an application
for an order for leave to appeal to the Constitutional Court were set
out as follows:
“The
requirements for leave to appeal to the Court from a subordinate
court are these:
(a)
Firstly, there must be a constitutional matter for determination by
the Constitutional Court on appeal. The reason is that in terms of
section 167(1) of the Constitution the Constitutional Court is the
highest court in all constitutional matters and decides only
constitutional matters and issues connected with decisions on
constitutional matters.
Rule
32(2) of the Constitutional Court Rules makes it clear that only a
litigant who is aggrieved by the decision of a subordinate court, on
a constitutional matter only, has a right to apply for leave to
appeal to the Constitutional Court….,. Rule 32(3)(c) of the
Constitutional Court Rules requires that the application for leave to
appeal should contain or have attached to it 'a statement setting
out clearly and concisely the constitutional matter raised in the
decision'. In other words, there must have been a constitutional
matter raised in the subordinate court by the determination of which
the dispute between the parties was resolved by that court. If the
subordinate court had no constitutional matter before it to hear and
determine, no grounds of appeal can lie to the Constitutional Court
as a litigant cannot allege that the subordinate court misdirected
itself in respect of a matter it was never called upon to decide for
the purposes of the resolution of the dispute between the parties.
See
Nyamande and Anor v Zuva Petroleum 2015 (2) ZLR 351 (CC).
Under
section 332 of the Constitution, a constitutional matter is one in
which there is an issue involving the interpretation, protection or
enforcement of the Constitution. Absence of an issue raised in the
proceedings in the subordinate court requiring the interpretation,
protection or enforcement of a provision of the Constitution in its
hearing and determination would invariably be sufficient evidence of
the fact that no constitutional matter arose in the subordinate
court.
(b)
Secondly, the applicant must show the existence of prospects of
success for leave to be granted.
In
Nehawu v University of Cape Town 2003 (2) BCLR 154 (CC), the
Constitutional Court of South Africa held that the applicant must
show that there are reasonable prospects that the Constitutional
Court 'will reverse or materially alter the judgment if permission
to bring the appeal is given'.”
Section
175(4) of the Constitution provides:
“(4)
If a constitutional matter arises in any proceedings before a court,
the person presiding over that court may, and, if so requested by any
party to the proceedings, must refer the matter to the Constitutional
Court unless he or she considers the request is merely frivolous or
vexatious.”
The
purpose of the procedure for referral is to facilitate the
determination of a constitutional question by the Constitutional
Court which is necessary for resolution of the dispute before the
court which is being asked to refer the question. In other words, the
person presiding is being asked to decide whether the request for
referral of the constitutional matter is frivolous or vexatious, as
defined in Martin v Attorney General 1993 (1) ZLR 153 (S)…,.;
Williams and Anor v Msipha and Others 2010 (2) ZLR 552 (S)…,.; and
Tomana v JSC and Anor HH281-16.
The
decision intended to be appealed against, should an order for leave
to appeal to the Constitutional Court be granted, is that the request
for the referral of the constitutional questions raised by the
applicant in the proceedings in the court a quo to the Constitutional
Court for determination was frivolous and vexatious.
The
facts show that the constitutional questions, as to the contravention
of the fundamental rights of the applicant, raised in the proceedings
in the subordinate court were not referred to the Constitutional
Court because the court a quo determined the constitutional questions
on the merits.
In
terms of section 85(1) of the Constitution, a Magistrate's Court
has jurisdiction to determine the question of an alleged infringement
of a fundamental right or freedom enshrined in Chapter 4.
Whilst
the definition of a “constitutional matter”, under section 332 of
the Constitution, includes matters beyond the jurisdiction of a
Magistrate's Court, the mechanism for the protection and
enforcement of fundamental human rights and freedoms enshrined in
Chapter 4 of the Constitution includes the jurisdiction of the
Magistrate's Court.
Section
85(1) of the Constitution gives the persons listed thereunder the
right to approach a court, alleging that a fundamental right or
freedom enshrined in Chapter 4 “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.”
On
the basis of section 85(1) of the Constitution, the Constitutional
Court enjoys concurrent jurisdiction with a Magistrate's Court in
respect of a constitutional matter arising from alleged infringement
of a fundamental right or freedom enshrined in Chapter 4.
Whether
or not the court a quo erred in finding that the fundamental rights
alleged by the applicant to have been infringed by the State were not
in fact violated, the determination of the constitutional questions
on the merits had the effect of disposing of the questions.
The
procedure for referral of constitutional questions to the
Constitutional Court for determination, in terms of section 175(4) of
the Constitution, aborted. There were no longer constitutional
questions, the frivolity or vexatiousness of the request for the
referral of which would have to be decided by the court a quo in
terms of the procedural requirements of section 175(4) of the
Constitution.
It
must follow that once the constitutional questions were determined by
the court a quo on the merits there was no longer a request for a
referral of the constitutional questions to the Constitutional Court
for determination. The determination of the question whether a
request for referral of a constitutional question to the
Constitutional Court for determination is merely frivolous or
vexatious is an essential step for a subordinate court to undertake
in compliance with the requirements of the procedure prescribed under
section 175(4) of the Constitution. The court a quo could not relate
to the question of the frivolity or vexatiousness of a request for
referral of constitutional questions that had been determined by it
on the merits. There cannot be a decision on a matter that does not
exist.
The
applicant proceeded on the assumption that the court a quo's
operative decision was that the request for referral of the
constitutional questions to the Constitutional Court was frivolous
and vexatious. A determination of a constitutional matter by a
subordinate court on the merits, in the exercise of its own
jurisdiction, cannot be the same as a decision that a request to
refer the same constitutional matter to the Constitutional Court for
determination is frivolous or vexatious. The two are mutually
exclusive. A determination of the constitutional questions on the
merits by the subordinate court would extinguish the request for
referral of the constitutional questions to the Constitutional Court,
effectively removing a cause for a decision on the frivolity or
vexatiousness of the request for referral of the constitutional
questions.
The
applicant does not allege that the decision of the court a quo, on
the merits of the constitutional questions, violated any of his
fundamental rights. All he suggests in this regard is that the court
a quo should not have made the determination.
That
cannot be a matter for serious consideration in the light of section
85(1) of the Constitution.
