Urgent Chamber Application
MAKONI J:
BACKGROUND FACTS
On 25 February 2016 a citizen, by
the name Rooney Kanyama (Kanyama), filed a Constitutional Court
application wherein he sought the following order;
“IT IS DECALRED THAT:
1. The order of the
Constitutional Court granted under case number CCZ8/15 on the 28th
October 2015 was granted contrary to provisions of the Constitution
and the law and violates by that circumstance applicant's right to
protection of the law as set out under section 56(1) of the
Constitution of Zimbabwe.
ACCORDINGLY, IT IS ORDERED THAT:
2. The order of the
Constitutional Court granted under case number CCZ8/15 on the 28th
October 2015 be and is hereby set aside in its entirety.
3. There shall be no order as to
costs.”
On the same day, the applicant
filed the present application under a Certificate of Urgency I
arrived at the conclusion that the citizen's application was filed
first and then the applicant's application filed later as the
applicant's application places reliance on the application by
Kanyama.
In the urgent chamber
application, the applicant seeks, in the interim, the stay of the
process for his possible removal from office which has been
instituted by the first respondent. In the final, he seeks a
declaratur to the effect that the process for his removal from office
commenced by the first respondent pursuant to its meeting on 11
February 2016 and communicated to him in terms of a letter dated 12
February 2016 is a nullity. He also seeks costs as against the first
respondent.
His basis for seeking such relief
is that the letter is based on two judgments one by Constitutional
Court in the Prosecutor General of Zimbabwe On The Question Of The
Constitutional Independence and Protection From The Direction And
Control Of Anyone CC 28/15and the other by Mathonsi J in Professor
Charles Muchemwa Nherera v Jayesh Shah HH845/15 both of which he
considers to be invalid.
He averred that the
Constitutional Court judgment is invalid for the following reasons.
(i) The Constitutional Court had
no jurisdiction to deal with the issue of contemplated court orders.
The orders emanated from the Supreme Court and High Court and could
only be enforced by the High Court. Contempt proceedings were
actually pending in the High Court at the time of the order of the
Constitutional Court.
(ii) Declaration of the question
of the independence of his office. He was not heard as his legal
practitioners did not have interest on the matter.
(iii) The Constitutional Court
which made the order was not properly constituted as the Deputy Chief
Justice did not sit in the matter.
(iv) A citizen, Rooney Kanyama,
has filed a constitutional application challenging the validity of
the order. The applicant challenges the judgment by Mathonsi J for
the following reasons;
(i) He was not a party in the
matter which was the subject of the judgment.
(ii) The findings made by the
court related to the plaintiff's case only. The court did not
consider the defendant's case as the court granted absolution from
the instance.
(iii) He was not bound by that
judgment on matters that related to his person.
(iv) The judgment is not in rem
but in personam.
(v) He was not involved in the
Nherera case when he was the Attorney General.
He further averred that the
position contemplated by the first respondent is void. His basis for
challenging the process is as follows:
1. (a) That the first respondent
misread the provisions of section 259(a) and 187 of the Constitution.
The first respondent's view
that it has a supervisory role over his conduct and can activate
disciplinary proceedings against him is contrary to section 260 of
the Constitution.
(b) He is head of the Prosecution
Authority in the same manner that the Chief Justice is the head of
the Judiciary. Process for his removal can only be activated by the
President and not by Judges.
2. (a) The serious conflict of
interest of the first respondent and certain of its officials. The
head of the first respondent sat in the matter which resulted in the
Constitutional Court judgment in issue. He is also the one who has
written to him enforcing his order.
(b) The Chairman of the first
respondent is the one who raised the issue of his possible contempt
and its implications on the Constitution ex mero motu. He, the
applicant wrote to the first respondent requesting the reasons for
the order made by the Constitutional Court. He received the response
on 24 February 2010 and the response reflected the following:
(a) The active involvement of the
Chair of the first respondent. He was aware that the first respondent
did not sit to adopt the position communicated in that letter.
(b) That the applicant must
respond before being furnished with the reasons.
(c) The letter records that the
first respondent would want to be satisfied whether he actually
disobeyed the court orders. It records that a court has found that as
a fact. He is therefore being asked to address on a matter of fact
which the first respondent considers irrelevant.
(d) The letter takes a very clear
position that he is guilty. The process is accordingly a charade.
3. The Constitutional Court order
is under challenge. Due process requires that the issue of the
validity of the order be executed first before reliance can be placed
on it.
4. Reliance on the Mathonsi J to
which he says had nothing to do with him. He was not heard in the
matter. He suggested that if the first respondent wishes to put
certain functional conspectus to him they should do so and he will
respond. He cannot respond where findings have already been made.
The applicant then goes on to
address the requirements for the grant of an interim interdict. He
averred that he had a right to due process and to constitutional
validity. This right is being harmed by the process which has been
commenced by the first respondent. The balance of convenience favours
him as the first respondent waited for a period in excess of four
months after the Constitutional Court judgment before taking any
action. There is no other remedy available to him except to seek the
interdict.
On 25 February 2016, the
Registrar wrote to Messrs Garikayi and Company, the applicant's
legal practitioners. The letter reads:
“RE: ROONEY KANYAMA VS
MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS AND PROSEUCTOR
GENERAL OF ZIMBABWE HONOURABLE JOHANNES TOMANA
Reference is made to the above
matter.
Your application was placed
before Chief Justice who commented as follows;
“Your papers are not in order.”
On the same date, the first
respondent filed its Notice of Opposition. On 2 March 2016, the
applicant then addressed a letter to the Registrar advising that he
would seek the recusal of all presently sitting judges of the High
Court of Zimbabwe which includes myself from the matter and that the
matter should be heard by a retired Judge, or a Judge from outside
the jurisdiction.
It is important at this stage to
set out the terms of that letter in extensor. It reads as follows:
“RE: JOHANNES TOMANA v
JUDICIAL SERVICES COMMISSION AND ANOTHER Case Number HC 1913/16
Kindly place this minute before
her Ladyship Mrs Justice MAKONI.
1. We advise that first
respondent served its opposing papers on the 1st
of March 2016 contrary to the directive you had issued. That
presented problems for us given that counsel had been on standby to
settle the Answering affidavit in the evening of the 29th
February 2016. When the papers were served upon us in the morning of
the 1st
of March 2016, we managed to do so after hours on the 1st
of March 2016.
2. The opposing papers have now
been considered. Regrettably a clear breach of applicant's right to
a fair hearing as set out under section 69 of the Constitution of
Zimbabwe had been noted. The breach arises in this manner.
3. To the opposing affidavit is
attached a letter of the 25th
February 2016 authored by the Registrar of the Constitutional Court.
It is addressed to those who represent Mr Rooney Kanyama. The letter
reads in material particular “Your papers are not in order.”
4. We have become aware that on
the day Mr Kanyama filed his application before the Constitutional
Court, Constitutional Court Registry officials frantically tried to
have him bring back the application before effecting service. It was
advised that the Registry officials had been in error in accepting
the application. As far as we understand the law, every citizen has
the right to approach the Constitutional Court and decisions on
applications are made by the full court.
5. This gives our client great
cause for concern. You will notice that the pendency of the
application filed by Mr Kanyama is an integral component of the
application before you. We however, now have the following situation:
(a) A directive bearing on that
Constitutional Court application has been issued which is calculated
to and does undermine our client's application.
(b) We wonder how first
respondent came by this directive and would demand an explanation on
that aspect of the matter.
(c) It has become clear that
contrary to all acceptable standards, the application by Mr Kanyama
was placed before a judge of the Constitutional Court when it was
less than a day old. An ambiguous remark has been given without
jurisdiction.
(d) You will notice that the
actions of the very same officials involved in the generation of this
objectionable letter are also at the core of the application before
you.
(e) It does not help matters that
for all intents and purposes the very same officials are the
superiors of all Judges of the High Court which regrettably Judge,
also includes yourself.
(f) The developments put you on a
direct collision course with your superiors. Alternatively, it ties
your hands at the instance of your superiors who are party to the
matter before you.
(g) Whilst your integrity is not
doubted and must be publicly vouched for, it would be foolhardy for
anyone to ignore these developments. Matters would have been
different if the officials involved had allowed this matter to be
heard without taking this kind of step.
6. It has consequently become
imperative that this matter be dealt with by a Judge who is not
presently sitting in the High Court of Zimbabwe. The Constitution of
Zimbabwe allows for the appointment of an Acting Judge. Precedent
also shows that in related matters, Judges have been appointed from
outside the jurisdiction. Because of the nature of the issues
transversed herein, we have taken the trouble to copy the honourable
JUDGE PRESIDENT.
7. Regrettably it has become
imperative that we argue for the adoption of this course. We see no
point in ignoring these developments. We take the very strong view
that arguing before you in light of this background would be an
abdication of our duty both to the court and to our client. As you
will appreciate, this has been a very difficult decision particularly
for counsel who is required to advance these contentions. Our request
puts both you and counsel into an unenviable situation but
regrettably we have been left with no option.
8. We consequently ask whether it
may please you Judge to hear the parties on this aspect of the matter
earlier than the set down time. We will procure the attendance of the
respondents for that purpose.
9. On a related note, we also
wish to advise that our client's counsel of choice is involved in
the Diamonds saga which unfortunately was set prior to the present
matter. An indulgence would have been sought anyway on that basis.
We thank you for taking time to
consider this minute.”
On the same day the first
respondent filed a supplementary affidavit deposed to by the Acting
Chief Registrar in which he was responding to the concerns raised by
the applicant in the above letter. In it, he explained the practice
in the Constitutional Court where an application appears to be
patently defective. Such an application is placed before the Chief
Justice for directions. He explained that the practice is based on
Practice Direction No. 2 of 2013 and that it has been employed in
various other cases. He cited two examples of such cases. He further
explained that this is so because there are currently no Rules of
Court in the Constitutional Court and the Registrar is enjoined to
consult the Chief Justice for directions. In Kanyama's case, he had
not stated, in the application, in terms of which section of the
Constitution he was approaching the Constitutional Court. He put in
issue the fact that the Registrar sought to have the application
returned after it had been issued.
The matter was set down for
hearing on 2 March 2016. At the hearing the applicant expressed his
intention to make an oral application for my recusal. Mr Chinake
argued that such an application should be in writing whereby the
applicant deposes to an affidavit giving a basis for the recusal. The
applicant indicated that he would file the application or some other
court process.
On 7 March 2016, the applicant
filed a Chamber Application for referral to the Constitutional Court
in terms of section 175(4) of the Constitution of Zimbabwe. In it he
seeks to enforce his rights to fundamental justice as set out under
section 69(1) of the Constitution of Zimbabwe. He seeks an Order in
the following terms:
(1) The application for referral
to the Constitutional Court be and is hereby granted.
(2) The following question is
referred to the Constitutional Court for its determination. Whether
applicant can, consistent with the standard set out under section
69(1) of the Constitution of Zimbabwe, receive a fair hearing if the
application filed under case number HC1913/16 is dealt with by a
presently sitting Judge of the High Court of Zimbabwe.
(3) Cost be in the cause.
At the resumption of the hearing
of the matter on 8 March 2016, the first respondent indicated that it
needed 10 days to respond to the application. The request was not
opposed. It was therefore granted. I then gave directions regarding
the time frames within which any further papers were to be filed.
The first respondent was to file its Notice of Opposition by 10 March
2016. On 16 March 2016 the first respondent, instead, filed a notice
headed “1st
Respondent's Notice Of Intention To Make An Application In Terms Of
Section 175(4) Of The Constitution Of Zimbabwe 2013 (The Notice).”
The preamble to the Notice reads as follows:
“Take Notice that the 1st
respondent on the resumption of the hearing under case number
HC1913/16 intends to make the following application in terms of
Section 175(4) of the Constitution of Zimbabwe 2013.”
The Notice then goes on to relate
to the thirteen constitutional points that the first respondent
contends arose from the proceedings. The thirteen points are listed
hereunder.
1. Constitutional
Issue No. 1: Whether
the exercise by the first respondent of the legal right granted to it
in terms of section 187(3) as read with section 259(7) of the
Zimbabwean Constitution, 2013 in the circumstances of this case,
violates applicant's right under section 160(1) of the Constitution
of Zimbabwe, 2013?
2. Constitutional
Issue No. 2: Whether
constitutionally, the office of the Prosecutor General is at par with
the Chief Justice?
3. Constitutional
Issue No.3: Whether
the provisions of section 259(7) of the Constitution of Zimbabwe,
2013 relating to the removal of a judge from office to apply to the
removal of a Prosecutor General from office?
4. Constitutional
Issue No. 4: 4.1
Whether under the Constitution of Zimbabwe, 2013, an inferior Court
can set aside a determination made by the Constitutional Court. 4.2
In the alternative whether the decision of the Constitutional Court
is binding on all Courts in Zimbabwe?
5. Constitutional
Issue No. 5: Whether
the Constitutional Court of Zimbabwe has Constitutional authority to
review its own decisions either mero motu or at the instance of any
applicant before the Court.
6. Constitutional
Issue No. 6: Whether
any proceedings or process instituted by the first respondent
pursuant to section 259(7) of the Constitution of Zimbabwe, 2013 can
be stayed pending the determination of any separate Criminal or
other administrative proceedings against the General?
7. Constitutional
Issue No. 7: Whether
section 259 of the Constitution of Zimbabwe, 2013 violates section
260 of the Constitution of Zimbabwe.
8. Constitutional
Issue No. 8: Whether
the Constitutional Court of Zimbabwe is properly constituted in
circumstances where the Chief Justice and the Deputy Chief Justice do
not sit concurrently in hearing any matter?
9. Constitutional
Issue No. 9: Whether
any Order issued by the Constitutional Court in circumstances where
the Chief Justice and the Deputy Chief Justice did not concurrently
hear the matter together is a nullity.
10. Constitutional
Issue No. 10: Whether
the provisions of section 259(7) as read with section 187 of the
Constitution of Zimbabwe, 2013 are subservient to any other
provisions of the Constitution?
11. Constitutional
Issue No. 11: Whether
the Constitution of Zimbabwe 2013 allows the ad hoc appointment of a
“foreign Judge” to determine any process instituted in terms of
section 259(7) as read with section 187 of the Constitution of
Zimbabwe?
12. Constitutional
Issue No. 12: Whether
the fact that all Judges of the Constitutional Court and all other
inferior Courts in Zimbabwe are subordinate, constitutionally, to
the Chief Justice of the Republic of Zimbabwe, raises a presumption
of bias and prejudice on the facts or at law sufficient to require
the wholesale recusal of all Zimbabwean Judicial Officers appointed
under the Constitution of Zimbabwe from determining the urgent
application filed by the applicant in casu and further whether the
hearing of such matter by any Judicial Officer subordinate to the
Chief Justice of Zimbabwe violates the applicant's constitutional
rights.
13. Constitutional
Issue No. 13: Whether
the Constitutional Court established in terms of the Constitution of
Zimbabwe, 2013 has the inherent jurisdiction to enforce compliance of
Court Orders within Zimbabwe and whether such rights includes the
right to commit any offender to a term of imprisonment or order the
payment of a fine?
In the Notice, at p 5, are first
respondent's submissions in detail. In them, the first respondent
contends that the constitutional issues arose ex facie the record and
that there are neither frivolous nor vexatious. It then sought the
referral of the thirteen constitutional matters for determination by
the Constitutional Court. In the penultimate paragraph of that Notice
the applicant prays for an Order referring the matters referred to in
section (b) of the Notice to the Constitutional Court for
determination.
PROPRIETY OF THE NOTICE FILED
BY THE FIRST RESPONDENT
At the hearing on 5 April 2016 Mr
Mpofu moved that an Order be granted in terms of the Order attached
to the applicant's application on the basis that the application
had not been opposed. He further submitted that, the first
respondent, instead of fling a Notice of Opposition had filed the
Notice above. That Notice was not a pleading and that the first
respondent should file a chamber application. He said that the
applicant will not insist on 10 days that the first respondent had
once insisted on previously.
The first respondent's position
regarding the filing of the Notice was twofold.
1. It did not oppose the referral
of the matter to the Constitutional Court in terms of the request
made by the applicant but denies that the correct procedure was
followed. Mr Chinake submitted that it was not necessary in terms of
Section 175(4) to make either a court or a chamber application. In
other words it was not necessary to file a formal court application.
The section says that a party can request that a constitutional
matter be referred to the Constitutional Court. It does not say that
a party shall file a court application. The simple requirements in
terms of Section 175(4) are that;
(i) The constitutional issue must
arise in that matter.
(ii) The person must make a
request for a referral.
(iii) If the court finds that the
request is not frivolous and vexatious it is bound to refer the
matter to the Constitutional Court .
He further submitted that the
request can be made orally or in writing. It is within the discretion
of the litigant to choose. Out of an abundance of caution, the first
respondent had given notice of its intention to make such a request
to all the parties well before the date of the hearing.
Mr Chinake then concluded by
submitting that the applicant's application to have the one issue
referred to the Constitutional Court is not opposed. He further
submitted that the first respondent was making its own application
for the thirteen points that arose in the matter to be referred to
the Constitutional Court. He then moved that the thirteen points be
referred to the Constitutional Court in terms of Section 175(4).
Mr Mpofu objected to the Notice
on the basis of two substantive points. On the first one, Mr Mpofu
submitted that these are application proceedings. The rules under
which the notice is filed is not set out. If an application is filed,
as in casu, the procedure for the respondent to follow is set out
under Rule 229(A) of the High Court Rules 1971. This is what the
first respondent should have done. Section 175(4) provides for a
request and the request should be made in terms of the law. The
Constitutional Court has pronounced itself on the law on how a
request should be made and the form it must take. He referred to the
case of Mwonzora and 31 others v The State CCZ 9/15 in particular
para 15 where it was stated that it was insufficient to make a
statement from the bar as the applicant's legal practitioner in
that matter had done. It was further stated that the applicant in
that matter should have been called to testify under oath. He
referred, further, to para 16 where it was stated that the absence of
oral evidence can be fatal to an application of this nature and that
the rationale is that the court hearing the application makes
findings of fact and then refers the matter to the Constitutional
Court.
Mr Mpofu then went on to give
examples of the disputes of fact that might arise in this matter. He
related to the first Constitutional point number 1 of the first
respondent which reads as follows: “Whether the exercise by the
1st
respondent of the legal right granted to it in terms of section
187(3) as read with section 259(7) of the Zimbabwean Constitution
2016 in the circumstances of this case violates applicant's right
under section 169(1) of the Constitution of Zimbabwe 2013.”
Mr Mpofu submitted that it makes
reference to “the circumstances of this case.” The applicant's
position is that the first respondent had actually not exercised any
right in the circumstances of this case. It is not the first
respondent's process. The facts on which he makes the argument
cannot be dealt with by the Constitutional Court. The Constitutional
Court may be presented with a dispute of fact which it cannot deal
with. That is if the first respondent does not put its factual
position regarding that point. He also related to constitutional
point number 11 which talks about a foreign Judge. He submitted that
it is not clear where the first respondent gets the idea of a foreign
Judge from. The applicant's evidence was that either a retired
Judge or a Zimbabwean Judge who is serving elsewhere has to come and
deal with the matter. Evidence on the point has to be lead either on
affidavit or in whatever manner.
He also referred to
constitutional point number 12 and that it raises disputes of facts
in that the applicant's point is that the objectivity or
independence of the Judges of this court is not in issue but what is
in issue is the circumstances, considered from the particular facts
of this matter, as to what findings if at all, a Judge of this court
is expected to or can make in the circumstances of this matter. This
is a factual enquiry. He further submitted that the issue of evidence
can only be dispensed with in circumstances where the facts are
common cause.
Related to the above point, Mr
Mpofu asked how the applicant was expected to respond to the Notice
filed by the applicant and whether a respondent can be barred in
terms of that Notice.
The second substantive point
raised by Mr Mpofu was that the questions asked by the first
respondent are not constitutional matters. He submitted that a
constitutional matter is a matter as to what the Constitution says
with regards to an alleged contravention of the Declaration of
Rights. In other words section 175 only permits a party who alleges a
violation of a right set out in the Declaration of Rights to make a
request of its referral to the Constitutional Court. He relied, in
support of his contention, on the case of the Prosecutor General of
Zimbabwe v Telecel Zimbabwe (Pvt) Limited, CCZ 10/15 (Telecel
matter). He submitted that the request by the first respondent is
not properly before the court and moved that it be dismissed.
The matter was postponed to allow
the second respondent's counsel, who had not been served with the
Notice to take instructions on the matter from the second respondent.
At the resumption of the hearing Mrs Chimbaru, for the second
respondent, indicated that the second respondent was not opposed to
the requests by both the applicant and the first respondent for the
constitutional matters they raised to be referred to the
Constitutional Court.
Mr Chinake, in rebuttal to the
submissions made in the objections to the filing of the Notice,
related to two issues.
The first point was that section
175(4) is clear and unambiguous. It expressly says that a party may
make a request. It does not say a party may apply. He asked whether
if he had made an oral application at the hearing requesting the
constitutional matters to be referred to the Constitutional Court,
that request would not be a request as contemplated in terms of
section 175(4). He submitted that the Mwonzora and the Telecel cases
referred to by the applicant related to the question of notice to
other parties if a party intends to take a constitutional point. In
casu notice was given seven (7) days prior to the set down of the
matter. He submitted that he could still make a viva voce application
from the bar.
The second point was that the
current Constitution, in terms of section of 332, defined what a
constitutional matter is. The submission by the applicant that only
matters where there is an alleged breach of a fundamental right can
be referred to the Constitutional Court cannot be sustained. He
submitted that the applicant has put in issue various points relating
to the interpretation of the Constitution and that the first
respondent can refer those matters to the Constitutional Court. He
gave the Mbuya Chinake scenario where she would have been arrested
and detained for eight (8) days by the police and then brought before
a Magistrate. Just before she gets into court she gets to know that
she was supposed to have been detained by the Police for only 48
hours. He asked whether the Magistrate would ask Mbuya Chinake to
stand down and file an application. His view was that he cannot find
support for that proposition anywhere in the Constitution.
He also made the point that the
cases referred to by Mr Mpofu were distinguishable from the present
matter in that:
(1) They are criminal matters.
(2) They deal with the abrogation
of the Constitutional rights.
(3) All were in the Magistrates
Court.
(4) The Constitutional Court
focused on two issues;
(i) What a Judicial Officer faced
with an application should do.
(ii) What evidence is to be
placed before the court when such applications are made.
In Mbuya Chinake' scenario he
asked whether her giving evidence would not have been sufficient to
meet the requirements for a request. And that if it was a represented
accused Counsel could lead evidence from the accused person. He
further submitted that the applicant seems to ignore the record which
already exists. He then took the court through the founding
affidavits of the applicant in both the main matter and the chamber
application for referral. He pointed out instances where the
applicant makes constitutional points in those affidavits for example
on p 5 para 5 where the applicant seeks a declarator on the
invalidity of the process which has been commenced by the first
respondent. He submitted that this is what is related to by the first
respondent in its constitutional point number 1 and number 10. He
concluded by saying that he is making a request, on notice, for the
constitutional points to be referred to the Constitutional Court,
which points arise from the papers already before the court. On
the interpretation of section 332 of the Constitution Mr Mpofu
submitted that whilst a litigant can raise whatever question on the
interpretation, protection or any enforcement of the Constitution,
the proper raising of the question, in a matter which gives
Constitutional Court jurisdiction, is where the problem arises from
the protection, the interpretation and the enforcement is infused
with a question of a violation of right set out under Chapter (4) of
the Constitution.
In determining this matter I will
start with the second point raised by Mr Mpofu which raises the
issue: What is a constitutional matter.
Section 332 of the Constitution,
which is under the definition section, provides;
“Constitutional matter means a
matter in which there is an issue involving the interpretation,
protection or enforcement of this Constitution.”
In my view the section is clear
and unambiguous and should be given its literal and grammatical
meaning. There is no need to employ any tools of interpretation as
giving any other meaning would lead to an absurdity, or some
repugnancy inconsistent with the rest of the instrument. See Chahava
& Anor v Mapfumo NO & Anor CCZ 6/15 p 6.
Section 332 can be broken down
into three categories, i.e .The constitutional matter in which there
is an:
(i) Issue involving
interpretation.
(ii) Issue involving protection.
(iii) Issue involving
enforcement.
The interpretation adopted by Mr
Mpofu, in my view, relates to only one aspect of that section, which
is enforcement, and ignores the other two categories which are
interpretation and protection. Mr Mpofu might have misunderstood the
import of the Telecel judgment (supra). In that case and at p 7 para
3 of the cyclostyled judgment Gwaunza JA started by quoting the
provisions of section 85(1) of the Constitution which is titled
“Enforcement of Fundamental Human Rights and Freedoms.” She then
went on to say:
“What is clearly evident from
this provisions is that the relief sought and to be granted by this
court in terms of this section must relate to fundamental rights and
freedoms enshrined in the relevant chapter and nothing else, such a
relief may include a declaration of the rights, said to have been or
about to be violated. The applicant did not allege that the right he
alleges was violated by the Supreme Court once was an enshrined
fundamental right.” (my own underlining)
That case is distinguishable from
the present matter in that, on that particular part of the judgment
on p 7 para 3, Gwaunza JA was dealing with an issue of how the
applicant, in that matter, could have brought an application directly
to the Constitutional Court, which would have been in terms of
section 85(1). She was not dealing with an application in terms of
section 175(4) of the Constitution. If one were to have regard to
the first respondent's constitutional points number 2 and number 3,
could it be said that they cannot be raised as constitutional matters
as they do not allege an abrogation of an enshrined fundamental
right. Constitutional point number 2 reads as follows:
“Whether constitutionally the
office of the Prosecutor General is at par with the office of the
Chief Justice.”
Constitutional point number 3
reads as follows:
“Whether the provisions of
section 259(7) of the Constitution of Zimbabwe 2013 relating to the
removal of a Judge from office apply to the removal of a Prosecutor
General from the office.”
My view is that these points
could be raised as constitutional matters as they require an
interpretation of the Constitution and that is provided for in terms
of section 175(4). I would agree with the definition of a
constitutional matter as advanced by the first respondent.
The next issue for determination
is: How is the request in terms of section 175(4) made. What form
should it take?
Section 175(4) provides:
“(4) If a constitutional matter
arises in any proceedings before a court, the person presiding over
that court may and, if 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.”
This issue was related to by the
Constitutional Court in the Mwonzora case (supra). That Judgment is
paragraphed and my view is that that was deliberate so that each
point could clearly stand out. It was meant to provide a guideline to
a court faced with an application such as the present one. What comes
out of that judgment is that:
(i) It is insufficient to make a
statement from the bar as the applicant's legal practitioner in
that matter did, see paragraph 15 of that judgment.
(ii) The absence of oral evidence
can be fatal to an application of this nature as it completely
disables findings of fact to be made on the complaints raised, see
para 16 of that judgment. The point is, in my view, the request,
whatever form it takes, either a written or an oral application, must
not be made from the bar by an applicant's legal practitioner.
Secondly it must place evidence before the court laying a basis for
the referral of the constitutional matter to the Constitutional
Court. In other words, findings of fact which the court takes into
account in deciding whether or not to refer the issue raised to the
Constitutional Court can only be made from the evidence placed before
the court.
The rationale for that judgment
is laid down in para 16 of that case where it is stated that it is
the basis of those findings that the Constitutional Court is called
upon to deal with the allegations raised and where necessary afford
the appropriate relief.
The first respondent, in making
its request for referral, did not provide a factual basis for the
constitutional matters that it raised. It is only in rebuttal to the
objections made by Mr Mpofu that the first respondent's factual
basis was put before the court and from the bar. No evidence was led
either in the form of an affidavit, or viva voce. This presents
challenges to the court in view of the disputes of facts pointed out
by Mr Mpofu in his submissions which I have already made reference
to. The first respondent's constitutional point number 1 which
talks about “the circumstances of this case.” What circumstances
are being referred to? Are the parties agreed on the circumstances?
If not how is the Constitutional Court supposed to deal with that
factual position? Mr Mpofu also referred to constitutional point
number 11 where reference to the appointment of a foreign Judge is
mentioned. The applicant's position is he does not know where that
issue of a foreign Judge comes from. He did not seek the appointment
of a foreign judge. The applicant's evidence makes reference to
either a retired Judge or a Zimbabwean Judge serving elsewhere. This
dispute needs to be resolved.
In constitutional point number 12
the issue is what findings, if at all, a Judge of this court is
expected to or can make in the circumstances of this matter. This
again is a factual enquiry where findings of fact need to be made.
How can the court make findings of fact on the above aspects in the
absence of evidence from the first respondent? Would the parties not
get to the Constitutional Court and start setting out different
factual conspectus from the one that the other part has or from the
ones that I would have contemplated in dealing with the matter?
A related issue is how does the
other part respond to such a notice.
My view is that for a litigant
who would have had an opportunity to make a written application he or
she should do so. In this case the first respondent filed a Notice of
intention to make an application seven (7) days before the hearing of
the matter. It should have proceeded to file a formal application as
had been indicated in its Notice. Or, if the first respondent's
choice was to make an oral application such, an application should
have been made and evidence lead in court relating to the factual
issues.
In the example of Mbuya Chinake
who would have been made aware of her rights just before going into
court, an oral application would be available to her and is proper.
She would have to then lead oral evidence of her ordeal and that
would entail moving over from the dock to the witness stand. That
evidence would be tested by the State through cross examination and
thereafter the Magistrate would then make findings of fact.
While section 175(4) provides for
a request for referral to be made, one must bear in mind that this
provision is in a Constitution. The Constitution provides a broad
framework which creates fundamental rights for one to seek
enforcement, protection and interpretation of those rights. One would
have to go through certain processes provided for by the law in
either an Act of Parliament and in the rules of the court. In terms
of the rules of the High Court, as they stand now, a party with a
request such as the present one can either make an application or in
very rare circumstances, approach the court by way of action. The
application can be oral or written. The first respondent did not do
either. In the result, it is my view that the first respondent's
request is not properly before me and is hereby dismissed. I will
proceed to consider the applicant's chamber application for
referral.
BACKGROUND FACTS
I will start by setting out the
factual basis for making that application, which has not been
opposed, except on one point relating to whether the applicant seeks
the appointment of a foreign judge or not. I say it has not been
opposed on the basis that neither of the respondents presented
contrary factual positions to those presented by the applicant.
At the initial hearing of the
matter, the applicant, through his counsel, intimated that an
application for the recusal of the presiding judge would be made. The
applicant did not pursue the application. He explained that his
counsel, for personal reasons, did not wish to make submissions that
might have had to be made in that application. The applicant
respected his counsel's, position since he wanted his
representation. He was then advised by his counsel that the
application, as presently formulated, catered for the “delicate
interests of everyone involved” and accords him the relief that he
seeks. The factual conspectus upon which the applicants seeks relief
is set out in his letter dated 2 March 2016 which I quoted in extenso
at the beginning of the judgment, which letter he adopted as if
specifically pleaded in this application.
The applicant then made the
following clarifications and additional points in para 10 of the
founding affidavit;
“(a) Upon further reflection,
it has occurred to counsel that even if her Ladyship were to recuse
herself from hearing the matter that would leave the problem
unresolved. Ordinarily the matter must then go to another Judge who
would then be asked to recuse him/herself as well. This course
ensures however, that the nub of the problem is addressed.
(b) Once the Constitutional Court
makes the determination I crave it, the administrative authorities
would then decide how they want to proceed. They may appoint a
retired judge. They may appoint Zimbabwean born Judges sitting in
other jurisdictions. The bottom line is that it is an order of the
Constitutional Court which would ensure that practical effect is
given to the relief that I seek.
(c) I must also point out that
this application has nothing to do with my lack of confidence in the
Judiciary in Zimbabwe. It is however, a recognition of the fact that
it is a misnomer for a Judge of the High Court to make findings
criticizing or upholding what had been done by the head of the
Judiciary.
(d) I trust to reiterate that
Judges as a matter of practice decline to sit when they are required
to make findings in favour of or against their peers. It is unheard
of that a Judge could make findings in favour of or against their
superior. That puts in issue the integrity of the whole process.”
He then approached this court
seeking a referral. He averred that it was a serious request and by
law the court is enjoined to uphold it.
I might as well at this stage
settle the issue of whether the applicant seeks the appointment of a
foreign judge or not.
The applicant relates to this
issue in para 6 of the recusal letter and in para 10(b) of the
Founding Affidavit to the Chamber Application. Paragraph 6 talks
about the appointment of an Acting Judge.
An acting Judge is appointed in
terms of section 181 of the Constitution. Such an appointment is
limited to a former judge and for a limited period, as provided for
in section 181 (3).
My view is that if para 6 of the
recusal letter was not clear as to what the applicant meant by “…..
Judges having been appointed from the outside jurisdiction,” the
position is clarified in para 10(b) of the founding affidavit of the
Chamber Application. He suggests the appointment of a retired judge
or Zimbabwean born judges sitting in other jurisdictions.”
Whether The Constitutional
Questions Arise From The Urgent Chamber Application
In their consent to have the
question posed by the applicant to be referred to the Constitutional
Court, it appears the parties, overlooked the issue of whether the
question arose from the urgent chamber application. I have set out,
in detail, what relief the applicant seeks in the urgent chamber
application and the basis thereof above.
The issue is whether the question
that the applicant seeks referral to the Constitutional Court arises
from the urgent chamber application.
THE LAW
The issue was dealt with in
Tsvangirai v Mugabe & Anor 2006 (1) ZLR 148 (S) where Malaba JA
(as he then was) at p 159 H and 10 A-B in dealing with, whether the
question for referral can only arise when the court is sitting, he
made the following remarks:
“It is clear from the
provisions of section 24(2) that, whilst the request for the
reference of the question to the Supreme Court for determination must
be made to the judge whilst he or she is actually sitting in court,
the question itself does not have to arise when the court is sitting.
It may arise on the pleadings. See Granger v Minister of State 1984
(1) ZLR 194 at 199 H, or from the circumstances of the case, as
happened in Mandirhwe's case supra, and Zinyemba v Minister of
Public Service & Anor 1989 (3) ZLR 351 (S), provided that the
existence of the remedy sought in the proceedings depends on the
determination of the question as to the contravention of the
Declaration of Rights by the Supreme Court. Raising a question, the
determination of which has no bearing on the relief sought in the
proceedings, amounts to an abuse of the process of the Supreme
Court.” (my own underlining)
In the Zinyemba case (supra)
Gubbay JA (as he then was) quoted with approval Baron JA in Mandirwhe
v Minister of State (1981 (1) SA 759 (ZA) at 764 H where he made the
following remarks:
“Since therefore the
proceedings must finally be concluded in the court in which they were
commenced, it follows that a reference under section (2) may be made
mero motu by the person presiding only if the determination of the
question is in his opinion necessary to enable him to reach a
decision on the redress sought; unless the answer to the question is
sought for this purpose the court a quo is simply seeking an academic
opinion, which is not a proper exercise of the discretion given by
the sub-section.” (my own underlining)
In other words, the party would
be saying in the matter pending before the court, a constitutional
issue worthy the consideration of the Constitutional Court, and which
affects the rights of a litigant, has arisen and its determination
will have an impact on the issues which the court must decide.
My view is that the question
being raised by the applicant is not necessary to enable me to reach
a decision on the relief that he seeks in the urgent chamber
application. The issue that I am required to determine in the urgent
chamber application is whether the applicant would have established
the requirements of a stay of proceedings. It is thus clear, from the
above analysis that the question the applicant seeks to refer, is not
necessary for the determination of the matter before me. For the
court to refer such a question to the Constitutional Court would be
tantamount to the scenario described by Baron JA in Mandirwe (supra)
where the court will simply be seeking an academic opinion from the
Constitutional Court. This would not be a proper exercise and use of
the discretion conferred upon this court in such matters. I am
fortified in my views by the fact that the applicant is quite happy
for me to determine whether the question that he raises can be
referred to the Constitutional Court. If he thought otherwise he
would have sought my recusal in the referral matter. Assuming I am
wrong on the point I will then go on to consider whether the question
is frivolous or vexations.
Whether The Application Is
Frivolous Or Vexatious
The question that the applicant
seeks to be referred to the Constitutional Court is as follows;
“Whether the applicant can,
consistent with standard set out under section 69(1) of the
Constitution of Zimbabwe receive a fair hearing if the application
filed under case number HC1913/16 is dealt with by a presently
sitting Judge of the High Court of Zimbabwe.”
What the applicant seeks in the
urgent matter is the stay of the process that was initiated by the
first respondent and a declaratur that the process is a nullity.
Mr Mpofu, in motivating the
applicant's request, started by making the point that the request
itself is not opposed by both the respondents. The attitude of the
respondents is fundamental. There is an issue that they assert must
be determined by the Constitutional Court. For the court to find that
the request is frivolous it would have to override the views of the
parties to the dispute. He concluded by saying that it should be an
exceptional step which the court ought not to take.
The second point he made was that
the process in issue, is a process whose cause of action arose from
the first respondent who took the issue from a judgment issued by the
Constitutional Court, of which they do not have reasons. The judgment
is unprecedented in that a litigant had approached the Constitutional
Court seeking a definition of his rights. The court then says “there
is some order that it granted which you did not obey it,
notwithstanding that there were contempt proceedings pending in the
High Court and that you have not come to deal with the issue.” The
court commits that person for contempt. He submitted that the first
respondent has personnel who sit in both the Constitutional Court and
the High Court. If the applicant is not happy with what he termed
“Judge induced process, or a judge instigated process” who does
he turn to. This is fundamental to section 69(1) regarding the right
to a fair hearing before an independent tribunal. He contended that
there is a way for the Constitutional Court to find that, though not
deliberately, a situation has been created which makes reasonable
people question whether justice can be served. He submitted that
when the applicant filed the urgent application he was prepared “to
brave the cold weather”. Circumstances then occurred which the
applicant could not ignore. The application by Kanyama, on which the
urgent application, inter alia, placed reliance on, was negated
through correspondence. The correspondence was authored by the Head
of the first respondent. It was upon sight of this correspondence
that the applicant filed the request. Such correspondence was quickly
made available to the first respondent who then file a notice of
opposition arguing that there was no application in the
Constitutional Court upon which the applicant places reliance. He
stressed that he did not impute deliberateness, malice or ill will
but was making a point on what pertains on the ground.
His next point was that though
independent, Judges of the High Court are subordinates to the Head of
the Judiciary. When interviews for elevation come up, judges of the
High Court appear before the Head of the Judiciary. If a judge of
this court were to say that the Head of Judiciary erred it would
appear as if, as Mr Mpofu put it “the gloves are off”. If he or
she were to hold that he was correct, then it will look like there is
deference. When these circumstances are considered then the issue of
recusal arises.
The complication that the
applicant faces is that if I were to recuse myself, the matter will
be referred back to the Judge President who will appoint another
judge. That the judge will be met with the same objections. He
submitted that, that's why he adopted the current position.
On the test for recusal Mr Mpofu
relied on Mcmillan & Ors v Provincial Magistrate Harare & Ors
2004 (1) ZLR 17 H, Goy and Masimba v R & Jackison WO 1963 R &
N 318 (FS).
THE LAW
The wording of section 175(4) of
the Constitution is such that it leaves a judicial officer with no
option but to act in accordance with the provision unless he or she
forms an opinion that the question was merely frivolous or vexatious.
When is a question considered to
be frivolous and vexatious?
This was clearly set out in
Williams & Anor v Msipha 2010 (2) ZLR 552 (S) at 568 C – G
where Malaba DCJ stated:
“In S v Cooper & Ors 1977
(3) SA 475 (T) at 476 D, BOSHOFF J said that the word “frivolous”
in its ordinary and natural meaning connotes an action or legal
proceeding characterised by lack of seriousness as in the case of one
which is manifestly insufficient. The raising of the question for
referral to the Supreme Court under section 24(2) of the Constitution
would have to be found on the facts to have been obviously lacking in
seriousness, unsustainable, manifestly groundless or utterly hopeless
and without foundation in the facts on which it was purportedly
based.
In Martin v A-G 1993 (1) ZLR 153
(S) it was held that the ordinary and natural meaning of the words
“frivolous or vexatious” in the context of section 24(2) of the
Constitution had to be borne in mind and applied to the facts by the
person presiding in the lower court to form the requisite opinion.
GUBBAY CJ at 157 said:
'In the context of section
24(2) the word 'frivolous' connotes, in its ordinary and natural
meaning, the raising of a question marked by lack of seriousness; one
inconsistent with logic and good sense, and clearly so groundless and
devoid of merit that a prudent person could not possibly expect to
obtain relief from it. The word 'vexatious', in
contradistinction, is used in the sense of the question being put
forward for the purpose of causing annoyance to the opposing party in
the full appreciation that it cannot succeed; it is not raised bona
fide and a referral would permit the opponent to be vexed under a
form of legal process that was baseless.
See Young v Haloway & Anor
[1895] p 87 at 90-91; Dyson v A-G [1911] 1 KB 410 (CA) at 418; Norman
v Matthews (1916) 85 LJ KB 875 at 859; S v Cooper & Ors 1977 (3)
475 (T) at 476 D-G; Fisheries Development Corporation of SA Ltd v
Jogensen & Anor 1979 (3) SA 1331 (W) at 1339 E-F.”
Further down in the judgment at
569 A – B he provided guidance regarding the standard, by which the
facts on which the raising of the question is based, must be
measured. He states;
“The standard by which the
facts on which the raising of a question is based must be measured is
put so high to enable the person presiding in the lower court to stop
legal proceedings that should not have been launched at all. In other
words, refusal of a referral of a question as to the contravention of
a fundamental human right or freedom to the Supreme jurisdiction to
determine the matter, is an extraordinary remedy intended to be used
in clear and exceptional cases.”
From the above I can summarise,
regarding frivolity, into the following points:
(i) lack of seriousness;
(ii) manifestly groundless;
(iii) utterly hopeless and
without foundation in the facts on which it is purportedly based;
(iv) inconsistent with logic and
good sense;
(v) groundless and devoid of
merit that a prudent person could not possibly expect to obtain
relief from it.
In regard to vexatiousness:
(i) the question being put
forward for the purpose of causing annoyance for the opposing party
in the full appreciation that it cannot succeed.
(ii) It is not raised bona fide.
(iii) A referral would be to
permit the opponent to be vexed under a form of legal process that
was baseless.
The first point made by Mr Mpofu
in motivating the request was that the referral was not being opposed
by both respondents but on its own this is not decisive. The section
places a duty on the court to form an opinion that the raising of the
question is not frivolous or vexatious. This aspect is dealt with by
Malaba DCJ in the Williams case (supra) at 567 F when he said:
“The formation of the opinion
is made the pre–condition for the refusal of the referral. The
framers of the Constitution confided the power to form the opinion in
the person presiding over the proceedings in which the question is
raised. It must be his or her judgment and not that of the Supreme
Court.”
To that I would add that it
should not be the judgment of the parties. The fact that parties
agree does not necessarily mean that the request is not frivolous or
vexatious. It is for the court to decide and not for the parties.
Their agreement might sway the court to find that the question is not
frivolous or vexatious but that is as far as it can go.
Conflicted position of the
Chief Justice
It has been contended that the
Chief Justice sat in the Constitutional Court which made the order
for contempt of court that is in issue. He is the head of the first
respondent, which made the decision to initiate the process of his
removal from office based on that judgment. He wrote the letter of 12
February 2016 initiating the process. He dealt with the Kanyama
matter whereby he dismissed the application on which the applicant
relied on in his urgent chamber application.
Recusal of High Court Judges
The other point advanced by the
applicant in support of his request is the issue of recusal of all
sitting judges of the High Court including myself. The basis for the
contention is that the judges are subordinates to the Head of the
Judiciary who happens to be the Chairman of the first respondent,
which the first respondent has initiated the process for his removal
from office. It was contended that a judge presiding over his
application would have to make findings criticizing or upholding the
conduct of the Head of the judiciary. When interviews for elevation
come up the judge will appear before the same Head of the judiciary.
I must start by saying that this
is an unprecedented omnibus application for the recusal of all
currently sitting judges of the High Court because questions of
impartiality of the judges have been raised. Initially the
applicant's intention was to seek my recusal. On the advice of his
counsel, who “for personal reasons,” was not prepared to make the
submissions which would have to be made in the application, he chose
to make the current application for referral. I would want to make
the same observation that was made in President of the Republic of
South Africa & Ors v South Africa Rugby Football Union and Ors
1999 (4) SA 147 (CC) at para 10 wherein the court remarked thus,
citing with approval Moch v Nedtravel (Pty) Ltd t/a American Express
Travel Services 1996 (3) SA 1 A at 13 H:
“Where the grounds are
reasonable it is counsel's duty to advance the grounds without
fear. On the part of the judge whose recusal is sought there should
be a full appreciation of the admonition that she or he should 'not
be unduly sensitive and ought not to regard an application for his
[or her] recusal as a personal affront.'”
I associate myself fully with the
above remarks. A legal practitioner should not be constrained to
advance sound grounds for recusal. As Judges, we are obliged to
discharge our duties impartially and would not hold it against a
legal practitioner who would be representing a litigant who would
have sound grounds for one's recusal.
The Law on Recusal
I will start by examining the
South African position as it pertains there. In particular President
of the Republic of South Africa & Ors v South African Republic
Rugby Football Union & Ors 1999 (4) SA 147 (CC).
It is on all fours with the
present matter.
In that case, which was an appeal
from a decision of the High Court, the fourth respondent lodged an
application for recusal in which he stated that he had “a
reasonable apprehension” that every member of the Constitutional
Court would be biased against him and that as a result he might not
get a fair trial. The fourth respondent later limited his application
to five members of the Constitutional Court. The basis for his
application was that the five Constitutional Court judges had
political affiliations, as well as personal relationships and social
contacts with President Mandela who had appointed them to their
positions on the bench.
The test for bias was laid down
in para 38 which would be whether there is a reasonable apprehension
of bias. The court went on to find that two considerations were to be
built into the test itself and these are:
(1) The character of the judicial
officer i.e the test for the reasonable apprehension of bias by a
litigant would take into account the presumption in favour of a
judge's impartiality.
(2) The character of bias – i.e
that no person, judges included, is free of personal convictions and
philosophies which help shape their outlook on life. These
convictions would have to be curtailed by the need for impartiality
on the part of the judge.
After reviewing a number of
authorities and para 48, the court determined the test for judicial
bias as follows:
“It follows from the foregoing
that the correct approach to this application for the recusal of
members of this court is objective and the onus of establishing it
rests upon the applicant. The question is whether a reasonable,
objective and informed person would on the correct facts reasonably
apprehend that the judge has not or will not bring an impartial mind
to bear on the adjudication of the case, that is a mind open to
persuasion by the evidence and the submissions of counsel.
The reasonableness of the
apprehension must be assessed in the light of the oath of office
taken by the judges to administer justice without fear or favour; and
their ability to carry out that oath by reason of their training and
experience. It must be assumed that they can disabuse their minds of
any irrelevant personal beliefs or predispositions. They must take
into account the fact that they have a duty to sit in any case in
which they are not obliged to recuse themselves. At the same time, it
must never be forgotten that an impartial judge is a fundamental
prerequisite for a fair trial and a judicial officer should not
hesitate to recuse herself or himself if there are reasonable grounds
on the part of a litigant for apprehending that the judicial officer,
for whatever reasons, was not , or will not, be impartial.”
The position in our law is
settled that the test for bias is an objective one. See MacMillan &
Ors v Provincial Magistrate Harare and Others 2004 (1) ZRL where the
court quoted with approval the following passage is S v Roberts 1994
(4) SA 915 (SCA). 2.9. Apart from that, it is subject to the common
law bias test. Quite recently this court in Mcmillan & Ors v
Provincial Magistrate Harare & Ors quoted with approval the
following passage from S v Roberts;
“Bias in the sense of judicial
bias has been said to mean “a departure from the standard of even
handed justice which the law requires from those who occupy judicial
office”……… what the law requires is not only that a judicial
officer must conduct the trial open- mindedly, impartially and fairly
but that such conduct must be manifest to all those who are concerned
in the trial and its outcome, especially the accused……………..
It is settled law that not only
actual bias but also the appearance of bias disqualifies a judicial
officer from presiding (or continuing to preside) over judicial
proceedings. The disqualification is so complete that continuing to
preside after recusal should have occurred renders the further
'proceedings' a nullity…..”
The same point was made in
Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond
Insurance Co (Pvt) Ltd 2001 (1) ZLR 226 (H) at 238 E where it has
stated;
“In our jurisdiction, the test
for bias was stated in Leopard Rock Hotel Co (Pvt) Ltd & Anor v
Wallem Construction (Pvt) Ltd (supra) at 278A as an objective one,
i.e. whether “there exist circumstances which may engender a belief
in the mind of a reasonable litigant that in the arbitral proceedings
he would be at a disadvantage.”
It was further stated at 239E:
“Thus, the test contains a
two–fold objective element: the person considering the alleged bias
must be reasonable, and the apprehension of bias itself must also be
reasonable.”
The last point was restated and
explained further by Uchena J (as then was) in Matapo & Ors v
Blila & Anor 2010 (1) ZLR 321 H with particular reference to the
headnote on p 322 F – H wherein it is written:
“…….. that an application
for recusal must be based on a reasonable litigant's apprehension
of bias and the apprehension must itself be reasonable. Mere
apprehensiveness on the part of a litigant that a judge will be
biased – even a strongly and honestly field anxiety – is not
enough. The court must scrutinize the apprehension to determine
whether it is to be regarded as reasonable. In adjusting this court
superimposes a normative assessment on the litigant's anxieties. It
attributes to the litigant's apprehension a legal value and thereby
decides whether ti is such that it should be countenanced in law.”
See also JSC v Ndlocu & Ors
HB 172/13 and Mangenje v TB TC Investments (Pvt) Ltd & Anor HH
510/14. The applicant in casu is not relying on the presence of
actual bias but rather on the appearance of bias given the
circumstances, as he outlined, including the fact that the judges
will have to make findings regarding the conduct of the Head of the
Judiciary.
The Issue
The question to ask is whether
the applicant has established reasonable apprehension of bias and
whether the apprehension itself is reasonable.
The applicant's apprehension is
that all sitting judges of the High Court, who are subordinates to
the Head of the Judiciary, will not be able to criticize or uphold
the conduct of their head. The independence of a judge is
particularly protected in terms of the Constitution. Section 164(1)
of the Constitution provides:
“The courts are independent and
are subject only to this Constitutions and the law which they must
apply impartially, expeditiously act without fear, favour of
prejudice.”
The Constitution also provides
principles guiding the judiciary in the exercise of their judicial
authority. Of note is section 165(2) and (3) which read:
“(2) Members of the Judiciary,
individually and collectively, must respect and honour their judicial
office as a public trust and must strive to enhance their
independence in order to maintain public confidence in the judicial
system.
(3) When making a judicial
decision, a member of the judiciary must make it freely and without
interference or undue influence.”
Over and above that, the
reasonableness of the apprehension must be assessed in the light of
the oath of office taken by the Judges to administer justice without
fear or favour and their ability to carry out that oath by reason of
their training and experience. It must be assumed that they can
disabuse their minds of any irrelevant personal beliefs or
predispositions. See President of South Africa & Others (supra).
Further to the above, Judges “are
assumed to be people of conscience and intellectual discipline,
capable of judging a particular controversy fairly on the basis of
the circumstance.” See United States v Morgan 1941 USSC 123 quoted
in R v S (RD) 1997 118 CCC quoted with approval in President of RSA
para 40 (supra).
It must also be pointed out those
judges who are nominated for elevations do not appear before the Head
of the Judiciary for interviews. They appear before the Judicial
Service Commission which consists of a number of panelists. The Head
of the Judiciary is just but one of the panelists. He will be
carrying out his duties as mandated by the Constitution and one
assumes that he will do so impartially. To suggest that a Judge can
lose his or her integrity and independence because of the prospect of
an interview would be taking it too far. The absurdity of the
applicants' argument clearly comes out when one considers the
process of appointment of judges as provided for in terms of section
180 of the Constitution. Section 180(1) provides that all judges
including the Chief Justice, Deputy Chief Justice and the Judge
President are appointed by the President in accordance with that
section. Cases have been brought before the High Court for and
against the President, in his official capacity. Decisions have been
made for and against the President. There is no indication that the
central role of the president in the appointment of judges has led to
any bias in favour of or against him. In the same vein, a judge of
the High Court can deal with a matter involving the JSC and
indirectly the Chief Justice.
It does not assist the applicant
that he is a legal practitioner of some standing. He was, at one
point, the adviser to the Government before the National Prosecuting
Authority was made into an independent entity, which he now heads. He
is expected to understand;
(i) that cases are decided in
accordance with the law and evidence and not on the basis of some
other considerations or external factors.
(ii) that judges, in carrying out
their functions are independent and not subject to the direction
and/or control of anyone in the same manner that the applicant's
offices independence is constitutionally enshrined and protected.
When asked why he sought referral
to the Constitutional Court which is also manned by subordinates of
the Chief Justice, Mr Mpofu responded that it was a better of the two
evils and did not expand on that. He further submitted the
Constitutional Court will not be looking at its recusal but of that
of the High Court. It appeared he had not cogent reason to proffer.
With regard to the conflicted
position of the Chief Justice the applicant is falling into error of
conflating the two distinct functions of the Chief Justice as
provided for in the Constitution.
In one he will be exercising his
judicial powers as a Judge and in the other, administrative powers as
Head of the Judicial Services Commission. The decision he makes using
his administrative authority can be reviewed by any judge in the
ordinary way. In any event the issues that the applicant raises in
the urgent matter are legal issues. The applicant has failed to
establish reasonable apprehension of bias. In the result the
applicant has failed to establish a factual basis for his request for
referral to the Constitutional Court. The reasons he advanced are
groundless, utterly hopeless and without foundation in the facts on
which they are purportedly based. I will therefore make a finding
that the request is frivolous. Since the respondents were not
opposed to the order being sought by the applicant, I will not make
an order for costs. In the result I will make the following order.
(1) The application is dismissed.
(2) There will be no order as to
costs.
Mambosasa Legal Practitioners, applicant's legal practitioners
Kantor & Immerman, 1st respondent's legal
practitioners
National Prosecuting Authority, 2nd respondent's legal
practitioners
