This
is a chamber application for an order for leave for direct access to
the Constitutional Court (“the Court”) in terms of section 167(5)
of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the
Constitution”), as read with Rule 21(2) of the Constitutional Court
Rules S.I. 61/2016 (“the Rules”).
The
applicant intends to place before the Constitutional Court a matter
relating to the constitutional validity of a decision of the Supreme
Court (“the court a quo”) in a case involving non-constitutional
issues. The allegation is that the decision of the court a quo in
Thousand Sadziwani v Natpak (Pvt) Ltd SC06-17 infringed the
applicant's fundamental rights to equal protection of the law, the
right to fair labour standards and practices, the right to
administrative justice, and the right to a fair hearing, enshrined in
sections 56(1), 65(1), 68(1) and 69(1) of the Constitution,
respectively. The main application is intended to be made in terms of
section 85(1)(a) of the Constitution.
The
Court holds that the applicant has failed to demonstrate that a
constitutional issue was raised before and determined by the court a
quo. The Constitutional Court cannot exercise its constitutional
jurisdiction over non-constitutional matters. It is not in the
interest of justice to grant leave for direct access to the
applicant. The application is without merit and ought to be dismissed
with costs. The reasons for the decision are set out below.
The
applicant was employed by the first respondent as a Production
Controller. In March 2013 he was suspended from work on allegations
of theft, it being alleged that he had stolen salt-bags from the
third respondent, which was a client of the first respondent. In
April 2013, a disciplinary hearing was conducted and the applicant
was convicted of theft and subsequently dismissed from the first
respondent's employ. Dissatisfied with the dismissal, the applicant
appealed to the first respondent's Appeals Committee, which
confirmed his conviction and upheld the penalty of dismissal.
Aggrieved,
the applicant noted an appeal to the Labour Court challenging his
dismissal. He alleged that there had been procedural irregularities
that vitiated the disciplinary proceedings which had culminated in
his dismissal. The Labour Court dismissed the appeal and held that
there was no basis for interfering with the Appeals Committee's
decision.
The
applicant appealed against the judgment of the Labour Court to the
court a quo. The court a quo upheld the Labour Court's findings,
which were to the effect that the alleged procedural irregularities
did not vitiate the correctness of the findings of the disciplinary
proceedings. The applicant's failure to cross-examine the first
respondent's witnesses during the disciplinary proceedings was also
held against him. Consequently, the appeal was dismissed with costs.
On
2 November 2018, the applicant filed the current application for
“leave of direct access to the Constitutional Court in terms of
section 167(5) of the Constitution of Zimbabwe, as read with Rule
21(2) of the Constitutional Court Rules 2016”.
He
alleged that there was an infringement of his rights under section 56
of the Constitution. He said that he was discriminated against when
charges of theft were preferred against him, whilst the casual
workers he was working with were not charged. The applicant further
alleged that his right to fair labour standards, under section 65 of
the Constitution was violated because his dismissal was unfair. He
also alleged that the right to fair administrative conduct, enshrined
in section 68(1) of the Constitution, was violated by the court a
quo. The contention was that the court a quo ought not to have held
that the applicant should have cross examined the witnesses who
testified against him at the disciplinary hearing.
The
court a quo was also alleged to have violated the applicant's right
to a fair trial enshrined in section 69(1) of the Constitution. An
allegation was also made that the court a quo was biased against the
applicant. The applicant further alleged that the charge of theft was
never proved, thus his rights in terms of section 70(1) of the
Constitution were violated. Lastly, the applicant claimed that there
was an infringement of section 162 of the Constitution, it being
alleged that the first respondent's disciplinary committee ought
not to have charged him with theft when he had been acquitted of the
same charge by a Magistrate's Court.
The
application for an order for direct access was opposed by the first
and the third respondents. They argued that no constitutional issues
arose before the court a quo. They further contended that the
application was in fact an appeal against the decision of the court a
quo on a labour matter disguised as an application for an order for
direct access. They prayed that the application be dismissed with
costs.
The
application was also opposed by the second respondent…,. On the
merits, the second respondent argued that the cause of action was an
alleged unfair dismissal, which did not raise constitutional
questions for determination by the court a quo. He argued that the
application was a disguised appeal against the decision of the court
a quo on non-constitutional issues. He prayed that the application be
dismissed with no order as to costs.
An
application for an order for direct access is regulated by the
Constitutional Court Rules. An applicant has to satisfy all the
requirements set out in the relevant Rules. Compliance with the Rules
is not a mere formality. As was stated in Liberal Democrats and Ors v
The President of the Republic of Zimbabwe, E.D. Mnangagwa N.O. and
Ors CC07-18…,;
“Direct
access to the Constitutional Court is an extraordinary procedure
granted in deserving cases that meet the requirements prescribed by
the relevant Rules of the Court.”
Rule
21(3) of the Rules contains the requirements that ought to be
satisfied in an application of this nature. It states the following:
“(3)
An application in terms of subrule (2) shall be filed with the
Registrar and served on all parties with a direct or substantial
interest in the relief claimed and shall set out -
(a)
The grounds on which it is contended that it is in the interests of
justice that an order for direct access be granted; and
(b)
The nature of the relief sought and the grounds upon which such
relief is based; and
(c)
Whether the matter can be dealt with by the Court without the hearing
of oral evidence or, if it cannot, how such evidence should be
adduced and any conflict of facts resolved.”
Subrule
(2) of Rule 21 of the Rules requires that an application for an order
for direct access should be supported by an affidavit setting out the
facts upon which the applicant relies for relief.
The
importance of the requirement that an applicant should show that it
is in the interests of justice that the application be granted has
been explained by CURRIE I and de WAAL J in “The Bill of Rights
Handbook” (6ed, Juta & Co (Pty) Ltd, Cape Town, 2013)…,. The
learned authors said:
“Direct
access is an extraordinary procedure that has been granted by the
Constitutional Court in only a handful of cases….,. The
Constitutional Court is the highest court on all constitutional
matters. If constitutional matters could be brought directly to it as
a matter of course, the Constitutional Court could be called upon to
deal with disputed facts on which evidence might be necessary to
decide constitutional issues which are not decisive of the litigation
and which might prove to be of purely academic interest, and to hear
cases without the benefit of the views of other courts having
constitutional jurisdiction. Moreover…, it is not ordinarily in the
interests of justice for a court to sit as a court of first and last
instance in which matters are decided without there being any
possibility of appealing against the decision given.”
In
Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd
and Anor CC11-18, the Constitutional Court stated the factors that
have to be taken into account in considering whether an applicant in
an application for an order for direct access has shown that it is in
the interests of justice that he, she or it be granted the relief
sought. The Court held as follows…,:
“The
Court turns to determine the question whether the applicant has shown
that direct access to it is in the interests of justice. Two factors
have to be satisfied. The first is that the applicant must state
facts or grounds, in the founding affidavit, the consideration of
which would lead to the finding that it is in the interests of
justice to have the constitutional matter placed before the Court
directly, instead of it being heard and determined by a lower court
with concurrent jurisdiction. The second factor is that the applicant
must set out, in the founding affidavit, facts or grounds that show
that the main application has prospects of success should direct
access be granted.”
It
is essential that an applicant demonstrates in his or her or its
founding affidavit that it is in the interests of justice that direct
access be granted. In Liberal Democrats and Ors v The President of
the Republic of Zimbabwe, E.D. Mnangagwa N.O. and Ors CC07-18, the
Court found as follows…,:
“It
is imperative for an applicant for an order for leave for direct
access to indicate that it is in the interests of justice that an
order for direct access be granted. Where the affidavit does not
satisfy the requirement, the application has no basis. Rule 21(3)(a)
requires that the founding affidavit should have regard to the
matters that show why the interests of justice would be served if an
order for direct access is granted. Mr Chihambakwe correctly pointed
out that the applicants' founding affidavit was wanting in that
regard. The applicants did not provide the factual foundation on
which the Court could make its decision whether the application, if
granted, would be in the interest of justice. There was therefore no
compliance with Rule 21(3)(a).”…,.
The
applicant's founding affidavit does not state the basis upon which
the Constitutional Court should consider that it is in the interests
of justice to grant the application. Such omission is fatal to the
application because the application is not compliant with the Rules.
The application has no basis. An application stands or falls on its
founding affidavit.
It
is settled law that the jurisdiction of the Constitutional Court is
triggered only where a constitutional matter arose in the court a quo
and was decided by that court. Section 332 of the Constitution
defines a constitutional matter as “a matter in which there is an
issue involving the interpretation, protection or enforcement of this
Constitution”. The jurisdictional effect of the definition of a
constitutional matter was discussed in Moyo v Sergeant Chacha and Ors
CC19-17…, as follows:
“The
import of the definition of 'constitutional matter' is that the
Constitutional Court would be generally concerned with the
determination of matters raising questions of law, the resolution of
which require the interpretation, protection or enforcement of the
Constitution.
The
Constitutional Court has no competence to hear and determine issues
that do not involve the interpretation or enforcement of the
Constitution or are not connected with a decision on issues involving
the interpretation, protection or enforcement of the Constitution.”
It
also ought to be noted that the mere citation of constitutional
provisions or alleged infringements of constitutional rights does not
mean that a constitutional issue has been raised.
In
Magurure and Ors v Cargo Carriers International Hauliers (Pvt) Ltd
t/a Sabot CC15-16 the Constitutional Court had occasion to deal with
this aspect. It stated as follows…,:
“Have
the applicants brought to the Court for determination a matter in
which there is an issue involving the interpretation, protection or
enforcement of the Constitution? The fact that the applicants allege
that the respondent has, by the conduct it is alleged to have
committed, infringed their fundamental right to fair and safe labour
practices enshrined in section 65(1) of the Constitution does not
mean that they have raised a constitutional matter. It is for the
Court to decide whether the determination of the legality of the
conduct of the respondent, if proved, would require the
interpretation and application of section 65(1) of the Constitution.”
Du
PLESSIS M, PENFOLD G and BRICKHILL J, Constitutional Litigation, 1ed,
Juta & Co Ltd, Cape Town, 2013…, discuss the scope of what
constitutes a constitutional matter. They state that:
“While
the ambit of the phrase 'constitutional matter' is clearly very
wide, it is not unlimited. Most significantly, the Constitutional
Court indicated that a purely factual matter does not amount to a
constitutional matter. For example, in S v Boesak 2001 (1) SA 912
(CC) the appellant contended that the decision of the Supreme Court
of Appeal, upholding his conviction for fraud and theft, contravened
his rights to a fair trial (and particularly the right to be presumed
innocent) and to freedom and security of the person. The basis for
this contention was the allegation that the Supreme Court of Appeal
erred in its evaluation of the evidence and in finding that Boesak's
guilt had been proved beyond reasonable doubt. The Constitutional
Court rejected this argument, holding that 'the question whether
evidence is sufficient to justify a finding of guilt beyond a
reasonable doubt cannot in itself be a constitutional matter' or,
put differently, disagreement with the Supreme Court of Appeal's
assessment of the facts is not a breach of the right to a fair trial.
The court thus held that 'unless there is some separate
constitutional issue raised…, no constitutional right is engaged
when the applicant merely disputes the findings of fact made by the
Supreme Court of Appeal.'”
The
above remarks are apposite. The applicant in casu merely challenged
the correctness of the factual findings by the court a quo and no
constitutional issues arise therefrom.
In
The Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14
(CC)…, the Constitutional Court discussed the test to be applied in
determining whether or not the court a quo determined a
constitutional matter. It held as follows:
“The
principles to be applied in the determination of the question whether
the Supreme Court determined a constitutional matter are clear. It is
not one of those principles that the court against whose judgment
leave to appeal is sought should have referred to a provision of the
Constitution. There ought to have been a need for the subordinate
court to interpret, protect or enforce the Constitution in the
resolution of the issue or issues raised by the parties. The
constitutional question must have been properly raised in the court
below. Thus, the issue must be presented before the court of first
instance and raised again at or at least be passed upon by the
Supreme Court, if one was taken.”…,.
It
was the applicant's allegation that he was unfairly discriminated
against by the first respondent, in that charges of theft were
preferred against him and not the casual workers he was working with.
He further alleged that there was no basis for such differential
treatment.
On
that allegation, he claimed that his fundamental right to equal
protection of the law enshrined in section 56(1) of the Constitution
was violated.
The
position of the law is that an employer has a discretion to choose
whom to discipline out of a group of employees who may have committed
an act of misconduct. The basis of the discretion is the principle of
privity of contract. Once an employer takes a serious view of an
employee's misconduct, the employer can institute disciplinary
proceedings against that employee. As a matter of law, it matters not
that others, believed by the affected employee, to be equally guilty
of the act of misconduct charged against him or her are not charged.
It is the consideration of the individual employee's own alleged
acts of misconduct which influences the decision by the employer
whether to charge him or her with misconduct.
In
Zimbabwe Banking Corporation Ltd v Mbalaka SC55-15, the court…,
expressed the following view:
“The
Labour Court also relied on the dicta in Lancashire Steel (Private)
Limited v Mandevana & Ors SC29-95, wherein the court stated:
'Arguments
may be addressed ad misericordiam as to how unfair it is that the
four respondents out of a number of forty workers who participated in
the collective unlawful job action should have been selected for
punishment, but, such arguments cannot absolve them of their breach
of their statutory duty not to participate in such action. It is not
uncommon for the alleged ringleaders in any unlawful gathering or
action to be singled out for punishment. If they are guilty it is not
in law relevant that others may also have been guilty.'…,.
It
is beyond doubt that the Labour Court was alive to the discretion
that is reposed in the employer in the application of this principle
in disciplining an employee for an alleged misconduct as appears in
the following statement by the court a quo:
'This
does put to rest the argument about perceived selective punishment
and victimisation. The respondent should face the consequences of his
actions and cannot be allowed to hide behind others.'”
See
also Mashonaland Turf Club v Mutangadura 2012 (1) ZLR 183 (S).
The
question whether or not the applicant's right to equal protection
and benefit of the law was infringed would not have arisen from the
fact that the employer decided to prefer a charge of theft against
him to the exclusion of the casual workers with whom he had been
working.
It
was also the applicant's contention that his fundamental right to
fair labour standards, enshrined in section 65(1) of the
Constitution, was violated by the first respondent. It was alleged
that his dismissal from the first respondent's employ was unfair.
In support of this allegation, the applicant narrated a number of
alleged procedural irregularities, ranging from the composition of
the first respondent's disciplinary committee and appeals
committee to sinister motives of the Chairman of the latter.
The
applicant did not deny the alleged commission of the offence.
The
principle of law is that labour matters ought not to be decided on
technicalities. A guilty party ought not to escape the consequences
of his or her actions owing to procedural technicalities. See Air
Zimbabwe (Pvt) Ltd v Mnensa and Anor SC89-04.
The
unfairness or otherwise of the applicant's dismissal is a matter
that fell entirely in the realm of Employment Law. Section 12B of the
Labour Act [Chapter 28:01] (“the Labour Act”) regulates matters
of unfair dismissals.
A
litigant cannot challenge the conduct of a decision-maker as
breaching a fundamental right under the Constitution without first
utilising the remedies offered by the legislation that gives effect
to that right. Where there is legislation giving life to a
fundamental right, a litigant cannot found a cause of action directly
on the Constitution without attacking that statute as being
unconstitutional.
In
Zinyemba v Minister of Lands & Rural Settlement and Anor 2016 (1)
ZLR 23 (CC)…,, the Constitutional Court stated the following:
“Two
principles discourage reliance on the constitutional rights to
administrative justice. The first is the principle of avoidance which
dictates that remedies should be found in legislation before
resorting to constitutional remedies. The second principle is one of
subsidiarity which holds that norms of greater specificity should be
relied on before resorting to norms of greater abstraction.
The
applicant is not challenging the constitutional validity of any
provision of the Administrative Justice Act [Chapter 10:28] nor is
she seeking to use the constitutional rights to administrative
justice to interpret the provisions of the Administrative Justice
Act. The exceptional circumstances in which an applicant can rely on
the constitutional rights to administrative justice do not apply to
the applicant. She ought to have used the remedies provided for under
the Administrative Justice Act to enforce her rights to just
administrative conduct.”
It
was the applicant's allegation that his right to administrative
justice, as enshrined in section 68(1) of the Constitution, was
violated. The applicant based the allegation on the court a quo's
finding that he ought to have cross-examined witnesses who gave
evidence against him at the disciplinary hearing. In this regard, the
court a quo…, said:
“We
note, in particular, that the appellant declined to cross-examine the
witnesses who gave evidence against him, which linked him to the
alleged theft. In our view, the evidence of the witnesses in question
remained uncontroverted.”
The
applicant averred that the court a quo took a rigid approach and it
ought to have held that tribunal procedures should adopt an
inquisitorial approach as opposed to adversarial ones. This argument
must fail for two reasons;
(i)
Firstly, the applicant was the driver of his own case before the
court a quo and other previous tribunals. As such, he had a positive
duty to prosecute his case to the maximum of his ability. His failure
to cross-examine witnesses had legal consequences - which
consequences were recognised by the court a quo.
(ii)
Secondly, and most importantly, the right to administrative justice,
as enshrined in section 68(1) of the Constitution, does not cover
judicial decisions.
Section
68 of the Constitution is given effect by the Administrative Justice
Act [Chapter 10:28], section 2 of which defines 'administrative
action' and 'administrative authority'. Administrative action
is taken to mean “any action taken or decision made by an
administrative authority and the words 'act', 'acting' and
'actions' shall be construed and applied accordingly”. An
administrative authority is defined as follows:
“'administrative
authority' means any person who is -
(a)
An officer, employee, member, committee, council, or board of the
State or a local authority or parastatal; or
(b)
A committee, or board appointed by or in terms of any enactment; or
(c)
A Minister or Deputy Minister of the State; or
(d)
Any other person or body authorised by any enactment to exercise or
perform any administrative power or duty;
and
who has the lawful authority to carry out the administrative action
concerned.”
A
proper reading of these provisions shows that courts of law do not
fall under the category of administrative authorities. Neither do
their decisions constitute administrative actions. The reliance by
the applicant on this section is misplaced, and no constitutional
question relating to the violation of section 68(1) of the
Constitution could have arisen in the court a quo on the facts before
it.
In
respect of section 69(1) of the Constitution, the applicant alleged
that his right to a fair hearing was violated, in that the court a
quo made findings that were contrary to the presented evidence. In
fact, the applicant, in his founding affidavit, made allegations of
bias against the court a quo. However, it ought to be noted that
these allegations are not substantiated by any evidence. It is a
basic principle of procedural and evidential law that the party who
makes allegations against another bears the burden of proving the
allegations. The absence of evidence to substantiate the allegation
of bias does not take the allegation beyond the making of it.
The
question of what legal effect flowed from the fact of the failure by
the applicant to put questions to witnesses who gave evidence against
him in the disciplinary proceedings was not a constitutional matter.
Lastly,
the applicant took issue with the fact that he was convicted of theft
by the first respondent's disciplinary committee when he had been
acquitted of the same charge by the Magistrate's Court. It was
averred that the current law allows the decision of a Magistrate's
Court to be rendered useless by a “mere disciplinary committee”.
The contention was that there was a gap in the law which called for
“substantial alteration of existing law”.
The
applicant failed to demonstrate the exact constitutional provision
that is offended by the instigation of disciplinary proceedings after
an accused person has been acquitted of the same charge by a
Magistrate's Court. In the founding affidavit, the applicant
acknowledged that disciplinary proceedings can be conducted even
after a person has been acquitted of a charge in a criminal trial. At
law, an employer can institute disciplinary proceedings against an
employee who has been acquitted of an alleged offence in criminal
proceedings.
It
is trite that the burden of proof in criminal proceedings is proof
beyond reasonable doubt, whilst, in civil proceedings, it is a
balance of probabilities. The differentiation of civil from criminal
proceedings means that they are mutually exclusive. They are
independent of each other.
A
reading of section 162 of the Constitution, on the alleged violation
of which the applicant sought to found the implied obligation on an
employer not to institute disciplinary proceedings against an
employee in respect of conduct which formed the particulars of a
charge of which he or she has been acquitted in criminal proceedings,
shows that the section does not grant a fundamental right to a
person. It is not part of Chapter 4 of the Constitution, which
relates to the Declaration of Rights. The provision relates to the
judicial authority vested in the numerous courts identified by the
Constitution. No constitutional issues could have arisen from the
provision, as it makes a simple declaration of the fact that judicial
authority derives from the people of Zimbabwe and is vested in the
courts comprising those listed.
From
a reading of the applicant's papers, it appears that he is
dissatisfied with the findings of the court a quo pertaining to his
dismissal from the first respondent's employ. Although the
applicant stated, in his founding affidavit, that he is not appealing
against the judgment of the court a quo, his papers suggest
otherwise.
In
Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd
and Anor CC11-18, the Constitutional Court had the following to
say…,:
“A
principle has developed out of the consideration of applications
seeking
to
attack final decisions of the Supreme Court on the ground that they
violate the right to equal protection of the law. The applications
have invariably been dismissed on the ground that they are appeals
disguised as applications for constitutional review. In that way, the
integrity of the jurisdiction of the Court, on constitutional
matters, and that of the Supreme Court, on non-constitutional
matters, is preserved.”
See
also Prosecutor General, Zimbabwe v Telecel Zimbabwe (Pvt) Ltd 2015
(2) ZLR 422 (CC).
The
gravamen of the applicant's attack on the court a quo's decision
evinces a classic dissatisfaction with the findings of the court and
nothing more. The result is that no constitutional issues arise by
virtue of the alleged infringements of the applicant's
constitutional rights. The remarks in Chiite and Ors v The Trustees
of the Leonard Cheshire Homes Zimbabwe Central Trust CC10-17 are apt.
The Constitutional Court held….,:
“What
the Court has before it are disgruntled litigants who have attempted
to try and obtain redress under the guise of an appeal on a
constitutional matter. Their criticism of the judgment of the Supreme
Court, set out in what purports to be grounds of appeal, is no more
than a raging discontent over the factual findings of the Supreme
Court. The grievances of the losers in the Supreme Court have all the
hallmarks of a mere dissatisfaction with the factual findings by that
Court. See De Lacy and Anor v South African Post Office 2011(a) BCLR
905 (CC) paras 28 and 57.”
That
the applicant is merely dissatisfied with the decision of the court a
quo on non constitutional issues is further apparent from the relief
that he intends to seek in the substantive application. The relief
reads as follows:
“WHEREUPON
after reading documents filed of record and/or hearing parties:
IT
IS DECLARED THAT:
1.
Appeals Committee hearing on same merits dismissed by Magistrate's
Court infringed on section 162 [Judicial Authority] of Constitution
of Zimbabwe.
2.
Composition of Appeals Committee infringes on section 65 of
Constitution of Zimbabwe.
3.
Supreme Court hearing SC6/17 by GWAUNZA JA & Labour Court hearing
LC/JDT/MT/49/14 deprived applicant on (sic) constitutional right to
access to court.
IT
IS ORDERED THAT:
1.
Supreme Court order SC 6/17 by GWAUNZA JA & Labour Court hearing
LC/JDT/MT/49/14 be and are hereby set aside and replaced with an
order directing the first respondent to reinstate applicant to
original position without loss of benefits or damages in lieu of
reinstatement from date of this order.
2.
First respondent to pay the costs.”…,.
Essentially,
what the applicant intends to seek in the substantive application is
reinstatement into the first respondent's employ, or,
alternatively, damages in lieu thereof. Such relief is
non-constitutional. It substantiates the fact that the applicant is
aggrieved by the court a quo's findings on non-constitutional
issues which fell into the realm of Labour Law. The resolution of the
labour dispute did not involve the interpretation, protection or
enforcement of the Constitution.
Absent
a constitutional issue that was raised before and determined by the
court a quo, the applicant cannot successfully approach the
Constitutional Court for an order for leave for direct access. The
institution of an application for an order for leave for direct
access to the Constitutional Court pre-supposes that there is a
constitutional matter over which the Constitutional Court has
concurrent jurisdiction with a lower court. The purpose of the
application would be to show that it is in the interests of justice
that the constitutional matter concerned be heard and determined by
the Constitutional Court directly as the court of first and final
instance.
See
Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd
and Anor CC11-18.
Having
found that no constitutional issue was placed before the court a quo,
it follows that its decision was not on a constitutional matter. This
means that the decision is final and cannot be appealed against. As
already found above, the applicant seeks to clandestinely appeal
against the judgment of the court a quo on non-constitutional
matters. He cannot do so.
In
this regard, section 169(1) of the Constitution becomes paramount.
The provision gives constitutional recognition to the principle of
finality in litigation in non-constitutional matters. It states as
follows:
“169
Jurisdiction of Supreme Court
(1)
The Supreme Court is the final court of appeal for Zimbabwe except in
matters over which the Constitutional Court has jurisdiction.”
The
provision was interpreted as follows in Lytton Investments (Pvt) Ltd
v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18 …,:
“A
decision of the Supreme Court on any non-constitutional matter in an
appeal is final and binding on the parties and all courts except the
Supreme Court itself. No court has power to alter the decision of the
Supreme Court on a non-constitutional matter. Only the Supreme Court
can depart from or overrule its previous decision, ruling or opinion
on a non-constitutional matter. The onus is on the applicant to
allege and prove that the decision in question is not a decision on
the non-constitutional matter.”
In
Rushesha and Ors v Dera and Ors CC24-17, GWAUNZA JCC…, commented on
the scope of section 169(1) of the Constitution and…, said:
“The
import of this provision needs no elaboration. Only where the Supreme
Court determines a constitutional issue may one appeal to this Court
for a final determination. Because the Supreme Court in this matter
did not determine any constitutional issue, the decision it rendered
was final and not appealable. Since courts are not expected to, and
invariably do not, render judgments that cannot be put into effect -
which are in other words a brutum fulmen - a purported appeal against
the effect of a judgment of the Supreme Court, on a
non-constitutional issue, is, in reality, an appeal envisaged in
section 169(1). That is, a final judgment that is not appealable no
matter how well disguised any such purported appeal may be. It does
not escape notice that in seeking to have the Supreme Court judgment
overturned under the guise of an appeal to this Court, the appellants
are, in effect, attempting to revive, and reinstate, the judgment of
the High Court, which was in their favour. What is sought would be
both manifestly irregular and bad at law.”
Section
26(1) of the Supreme Court Act [Chapter 7:13] re-affirms the above
position. It provides:
“26
Finality of decisions of Supreme Court
(1)
There shall be no appeal from any judgment or order of the Supreme
Court.”
Section
169(1) of the Constitution and section 26(1) of the Supreme Court Act
must be read together with section 167(1) of the Constitution, which
provides as follows:
“167
Jurisdiction of Constitutional Court
(1)
The Constitutional Court -
(a)
Is the highest court in all constitutional matters and its decisions
on those matters bind all other courts;
(b)
Decides only constitutional matters and issues connected with
decisions on constitutional matters, in particular, references and
applications under section 131(8)(b) and paragraph 9(2) of the Fifth
Schedule; and
(c)
Makes the final decision whether a matter is a constitutional matter
or whether an issue is connected with a decision on a constitutional
matter.”…,.
The
Constitutional Court is a specialised court endowed with the
purposefully narrow jurisdiction to determine constitutional matters
only. The language of section 167(1)(b) of the Constitution is clear
enough in this respect. The Constitutional Court is established in
terms of section 166 of the Constitution and section 167 provides for
the jurisdiction of the Court.
In
Lytton
Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor
CC11-18…, the
Constitutional Court emphasised the special jurisdiction of the Court
in the following terms:
“The
Court is a specialised institution, specifically constituted as a
Constitutional Court with the narrow jurisdiction of hearing and
determining constitutional matters only. It is the supreme guardian
of the Constitution and uses the text of the Constitution as its
yardstick to assure its true narrative force. It uses constitutional
review predominantly, albeit not exclusively, in the exercise of its
jurisdiction.”
Where
no constitutional issues are pertinent, the jurisdiction of the
Constitutional Court, under section 167 of the Constitution, is not
triggered.
In
Brink v Kitshoff NO 1996 (4) SA 197 (CC), the South African
Constitutional Court had the following to say…,:
“[28]
The jurisdiction of this Court is limited to the interpretation,
protection and enforcement of the provisions of the Constitution (in
terms of section 98(2) of the Constitution) and any other matter over
which it is expressly given jurisdiction. Neither the question of
when an estate becomes entitled to the proceeds of a life insurance
policy in terms of section 44, nor the question of when a concursus
creditorum will be initiated, are constitutional questions. This
Court accordingly does not have jurisdiction over such matters.”
The
Constitutional Court is a specialist court and not a court of general
jurisdiction. The principle of constitutional supremacy ensures that
the jurisdiction of the Court, as defined in section 167 of the
Constitution, is narrowly defined and given constitutional
protection. In addition, the very definition of a constitutional
matter itself, in terms of section 332 of the Constitution,
presupposes that not every matter is a constitutional matter. If the
resolution of a matter does not require the protection,
interpretation or enforcement of the Constitution, it is not a
constitutional matter and the Constitutional Court cannot assume
jurisdiction over it.
Jurisdiction
is the power or competence of a court to adjudicate on, determine,
and dispose of a matter.
In
this regard, the Constitutional Court is a creature of the
Constitution. The principle of constitutional supremacy, as enshrined
in section 2 of the Constitution, guarantees that the Constitutional
Court only exercises jurisdiction over matters which are specifically
set out in terms of section 167, as read with section 332, of the
Constitution. The principle also ensures that the jurisdiction of the
Court, as the highest court on constitutional matters and connected
issues, cannot be ousted by legislation.
The
Constitutional Court's power to adjudicate on constitutional
matters ought to be construed as a means by which life can be given
to the objectives set out in section 3 of the Constitution. The
Court, as the highest and most authoritative tribunal in
constitutional matters, is tasked with the responsibility of
safeguarding the values and objectives of the Constitution. It is
charged with the duty of ensuring that these objectives are realised
and given effect to.
Thus,
it is imperative that the Court is not unduly saddled with cases that
have no bearing on the interpretation, enforcement or protection of
the Constitution. It is incumbent upon the Constitutional Court to
guard its jurisdiction jealously and eliminate the abuse of its
powers. The integrity of the Constitutional Court is of utmost
importance and it ought to be protected.
The
deliberately narrow jurisdiction of the Constitutional Court is meant
to shield it from abuse and ensure that it only adjudicates upon that
which it is constitutionally mandated to adjudicate on.
From
the foregoing, it is apparent that no constitutional issue ever arose
before the court a quo. No constitutional question was clearly and
concisely raised before the court a quo and neither did it dispose of
any constitutional issue. The result is that the Constitutional Court
cannot assume jurisdiction, as a court of first and final instance,
over a matter which does not raise constitutional issues. It is not
in the interests of justice that the application for direct access be
granted.
DISPOSITION
It
is ordered as follows:
1.
The application be and is hereby dismissed.
2.
The applicant is to pay the first and the third respondents' costs.
