This case is about a permanent stay of a criminal prosecution because of torture and inhuman and degrading treatment to which the applicant was subjected by State security agents prior to being brought to Court on a criminal charge.

Jestina Mukoko (hereinafter referred to as (“the applicant”) appeared before a magistrate at Rotten Row Magistrates Court in Harare on 14 January 2009 in the case of Manuel Chinanzvavana & Eight Ors No.8801-5/08. She was charged with the offence of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as “the Act”). It was alleged that in the months of June and July 2008, the applicant and the co-accused persons “recruited or attempted to recruit or assisted in the recruitment of Ricardo Hwasheni to undergo military training in Botswana in order to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe.”

The applicant alleged, in the Magistrates Court, that she had been abducted from home and subjected to torture and inhuman and degrading treatment by State security agents. She requested the magistrate to refer the question of contravention of her fundamental rights to the Supreme Court (“the Court”).

Two grounds were used to justify the request:

(i) The first was that the institution of the criminal prosecution was rendered invalid by the pre-charge ill-treatment to which the applicant was subjected. It was argued that the manner in which she was apprehended by State security agents and treated in detention, prior to being brought to court on the charge, constituted a violation of the fundamental rights not to be arbitrarily deprived of personal liberty guaranteed under section 13(1) and not to be subjected to torture or to inhuman or degrading treatment protected by section 15(1) of the Constitution.

The argument was that the uncontested behaviour by State security agents, in kidnapping the applicant from her residence and subjecting her to torture, inhuman and degrading treatment whilst she was in their custody, rendered the institution of the criminal prosecution an abuse of legal process. It was also argued that the conduct of the State security agents offended the sense of what the judiciary expects as decent behaviour from law enforcement agents in the treatment of persons in their custody.

The contention was that the Court was obliged to refuse to countenance the bringing of the criminal prosecution in the circumstances.

(ii) The second ground was that the decisions made by the public prosecutor, to charge the applicant with the criminal offence and to bring the prosecution proceedings, were based solely on information or evidence of the crime obtained from her by infliction of torture, inhuman and degrading treatment.

It was argued that the institution of the criminal prosecution was rendered invalid by the use of inadmissible information or evidence.

The assumption was that section 15(1) of the Constitution contains a rule that prohibits the admission or use, in legal proceedings, by public officials responsible for the initiation and conduct of criminal prosecution, and judicial officers, of information or evidence of the crime obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment.

The contention was that reliance on information or evidence of the crime obtained from the applicant, or a third party, by torture, inhuman and degrading treatment was a breach of the exclusionary rule and unlawful.

It also engaged the responsibility of the State in the violation of section 13(1) of the Constitution.

The effect of the argument was that the decision to charge the applicant with the criminal offence, and the institution of the prosecution of it, was not based on a reasonable suspicion of her having committed the criminal offence. The criminal prosecution was therefore not authorized by section 13(2)(e) of the Constitution.

The magistrate was of the view that the raising of the question as to the contravention of the applicant's fundamental rights was not frivolous or vexatious. He referred the question to the Court for determination....,.

The facts on which the determination of the question as to the contravention of the fundamental rights referred to in the order was based, were conveyed by oral testimony given by the applicant in the Magistrates Court. They were also conveyed through the affidavit deposed to by her on 12 January 2009 as well as by the arguments addressed to the Court by counsel on behalf of the applicant.

Section 24(4) of the Constitution gives the Court a wide discretion as to the choice of a practical and effective remedy which can appropriately redress a violation of a fundamental human right or freedom....,.

In selecting an appropriate remedy under the Constitution, the primary concern of the Court must be to apply the measures that will best vindicate the values expressed in the Constitution and to provide the form of remedy to those whose rights have been violated that best achieves that objective. 

This flows from the Court's role as guardian of the rights and freedoms which are entrenched as part of the supreme law of the country: Osborne v Canada (1991) 82DLR (4th) 321…,.

After perusing the papers filed of record and hearing counsel, the court dismissed the application and indicated that the reasons for the order would follow in due course.

What follow are the reasons for that order.

FACTUAL BACKGROUND

The applicants appeared before a Magistrate at Nyanga on 18 February 2011 facing charges of public violence as defined in section 36 of the Criminal Law [Codification and Reform] Act [Chapter 9:23].

The applicants were legally represented. 

At the hearing, the applicants raised a number of complaints regarding the manner of their arrest. The matter was thereafter postponed on a number of occasions to enable the Court to deal with the various issues raised. On a date that is unclear on the record, but in May 2011, the applicants, without giving notice to the prosecution, applied to the magistrate for the matter to be referred to the Supreme Court in terms of section 24(2) of the former Constitution of Zimbabwe. They tendered a written application in which they chronicled various violations of their constitutional rights at the instance of the State and other persons.

In the application, the applicants raised the following issues:

(i) Whether or not the manner of their arrest violated their right to liberty protected by section 13(1) of the former Constitution.

(ii) Whether or not the failure by the police to apprehend the persons who had abducted, tortured and assaulted them violated their right to the protection of the law enshrined in section 18(1).

(iii) Whether or not the discretion to arrest bestowed upon the police was not improperly exercised.

(iv) Whether or not the assaults perpetrated upon them, as well as the subsequent torture and denial of medical attention, constituted inhuman and degrading treatment.

(v) Whether or not the failure by the State to cause investigations to be carried out into these complaints violated their rights under section 18(1) and 18(1)(a) of the Constitution.

(vi) Whether or not their detention at Nyamaropa and Nyanga Police Stations was under conditions that constituted inhuman and degrading treatment.

(vii) Whether or not section 121(3) of the Criminal Procedure and Evidence Act [Chapter 9:07], which provides that a person who has been granted bail by a court shall remain in custody for a period of up to 7 days once the Attorney-General indicates that he intends to appeal the decision, violates their right to the protection of the law.

During the hearing before the magistrate, the applicants did not lead any evidence to substantiate these claims.

In his response, the prosecutor indicated that the application for referral was opposed. He denied the suggestion that the police did not have a reasonable suspicion that a crime had been committed at the time they arrested the applicants.

In a terse judgment, the magistrate held that the issues of over-detention and alleged kidnapping of the applicants deserved “the attention of the Supreme Court which court would need to make a proper inquiry.” 

On that basis, he then referred the matter to the Supreme Court.

ISSUES FOR DETERMINATION BEFORE THIS COURT

In his submissions before us, counsel for the applicants submitted that the rights of the applicants have been violated in several respects. He therefore implored the court to issue various declaraturs, and, as consequent relief, an order permanently staying the criminal proceedings they were being subjected to.

On the other hand, counsel for the State urged this Court to find that no proper inquiry had been carried out before the Magistrates' Court, and, most importantly, the failure by the applicants to lead evidence to substantiate their allegations was fatal. He therefore prayed for the dismissal of the application.

WHETHER THE MATTER WAS PROPERLY REFERRED

The position is settled that a judicial officer faced with an application for referral has no option but to refer, unless, in the opinion of the Court, the raising of the question is frivolous and vexatious – Martin v Attorney-General 1993 (1) ZLR 153 (S)…,.

The magistrate at Nyanga did not, as he should have, ask himself whether the issues raised were not frivolous and vexatious. Indeed, it appears the magistrate was not sure as to what was required of him.  He made no finding that the application was not frivolous or vexatious. In justifying the referral of the issues to the Supreme Court, he stated:-

“Over-detention and alleged kidnapping of some of the accused persons would need the Supreme Court to look into the matter.

It is therefore clear as the issues complained of are also linked to the death of one of the accused persons. The Supreme Court would need therefore to make a proper enquiry (sic).

The court is of the decision that the issues raised concerning the declaration of rights are referred to Supreme Court for determination.”

The above remarks clearly demonstrate that the magistrate had no idea what he was supposed to do. He seemed to think that the factual inquiry was to be undertaken by the Supreme Court – clearly a misdirection on his part.

This misdirection resulted in an even more serious irregularity, to which I now turn.

The respondent has opposed the application objecting to the procedure adopted by the applicant of bringing a Constitutional challenge to this court instead of the Constitutional Court (then the Supreme Court).

I propose to tackle the issue of jurisdiction first.

That question has been complicated slightly by the coming into effect of a new constitution of Zimbabwe on 22 August 2013. The application itself was brought under the provisions of the old Constitution which was in place at the time of filing the application in February 2013. Subsequent to that, the Constitution of Zimbabwe Amendment (No.20) Act 2013 was promulgated on 22 May 2013 although all of its provisions did not come into operation until 22 August 2013 (the effective date) which was the date of the assumption of office by the President elected in terms of the new Constitution.

The fate of Constitutional matters pending in court at the time of the coming into effect of the new Constitution is dealt with in the 6^th Schedule to the new Constitution. Paragraph 18(1) of the 6^th Schedule defines a pending Constitutional case as:

“(a) An appeal, application or reference in which an alleged contravention of the Declaration of Rights contained in the former Constitution is in issue; or

(b) Any case in which a Constitutional matter, as defined in s332 of this Constitution, is in issue;

and which, immediately before the publication date, is pending before the Supreme Court of Zimbabwe constituted under the former Constitution.”

In terms of paragraph 18(8), any pending Constitutional case in which argument from the parties has not been heard before the publication date must be transferred to the Constitutional Court. These are matters which were pending before the Supreme Court which should simply be transferred to the Constitutional Court.

The present case is governed by paragraph 18(9) which provides:

“All cases, other than pending Constitutional cases, that were pending before any court before the effective date maybe continued before that court or the equivalent court established by this Constitution, as the case maybe, as if this Constitution had been in force when the cases were commenced; but – 

(a) The procedure to be followed in those cases must be the procedure that was applicable to them immediately before the effective date; and

(b) The procedure referred to in subpara (a) applies to those cases even if it is contrary to any provision of Chapter 4 of this Constitution.”

Counsel for the applicant submitted that as the application was commenced on 1 February 2013 it may be continued as if the new constitution had been in force when the application was filed but using the procedure that was applicable before 22 August 2013.

Counsel for the respondent agreed with that interpretation but added the rider that prior to 22 August 2013, this court did not have jurisdiction to strike down current legislation. In his view, it was upon a realisation that this court did not have jurisdiction, that the current Constitution has given it power in section 171(1)(c) which provides:

“The High Court may decide Constitutional matters except those that only the Constitutional Court may decide.” 

I do not agree with counsel for the applicant that the provisions of the new Constitution, conferring upon this court jurisdiction in Constitutional matters, apply to the present case. This is because paragraph 18(9)(a) of the 6^th Schedule makes it clear that the procedure to be followed is the procedure that was applicable to this case immediately before the effective date. What should be followed therefore is the procedure in terms of the old regime.

I agree with counsel for the respondent that, procedurally, this court, composed as it is of a single judge, could not strike down current legislation, which was a preserve of a full bench of the Supreme Court in terms of section 24(4) of the former Constitution. Counsel for the applicant urged me to dissociate myself from the judgment of NDOU J, relied upon by counsel for the respondent, in Nyamandlovu Farmers Association v Minister of Lands & Anor 2003 (1) ZLR 185 (H) mainly because it was a decision of a single judge of this court and not two (2).

I am unable to do that as I agree with the pronouncement of NDOU J…, that;

“In our case, it is clear that our Supreme Court sits as a Constitutional Court. When it does so, its composition is prescribed. It is only when it is so composed that it is in a position to deal with Constitutional matters. In my view, reference to the Supreme Court in s24 is consistent with the latter sitting as a Constitutional Court. With respect to GILLESPIE and DEVITTIE JJ (who decided in S v Chakwinya 1997 (1) ZLR 109 (H) and S v Kusangaya 1998 (2) ZLR 10 (H) that this court had jurisdiction) reference to the Supreme Court alone in s24 is a deliberate limitation of the inherent jurisdiction of the High Court. It is consistent with making Constitutional matters the domain of the Supreme Court sitting as a Constitutional Court. Section 24 does not mention the Supreme Court ex abundante cautela. It does so by design. Neither is it a procedural mechanism. The jurisdiction of this court in Constitutional matters is deliberately limited thereby. This is consistent with the creation of a special dispensation to deal with Constitutional matters as evinced by the fact that these matters are considered so fundamental that they can only be considered by the highest court in the country exercising original jurisdiction. When the matter ends up in the Supreme Court there is provision for a special composition to deal with it.”

In my view, that conclusion by NDOU J is consistent with that of the Supreme Court in Guwa & Anor v Willoughby's Investments (Pvt) Ltd 2009 (1) ZLR 380 (S)…, that:

“The High Court, on the other hand, has jurisdiction to hear all matters except where limitations are imposed by law. In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.”

It occurs to me that this court can, in the exercise of its inherent jurisdiction reposed to it by section 14 of the High Court Act [Chapter 7:06] issue declaraturs, but the law forbids the issuance of such declaraturs in Constitutional matters and specifically limited the power to strike down existing legislation to the Supreme Court sitting as a Constitutional Court. The newly found jurisdiction bestowed by the new Constitution does not come into it because we are proceeding in terms of the procedure that obtained prior to the effective date.

I conclude therefore that this court lacks jurisdiction….,.

1. The application for a declaration that section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27] is unconstitutional is hereby dismissed.

The second point in limine raised by the second respondent was that the applicant should have made the application to the Supreme Court and not to the High Court.

Objection in limine as to jurisdiction

The gravamen of the objection is that this court has no jurisdiction to review a decision made by a Magistrates Court pursuant to the provisions of section 24(2) of the Constitution of Zimbabwe.

It is trite that no written law has yet been made in terms of section 24(9) of the Constitution of Zimbabwe which provides –

“A written law may make provision with respect to the practice and procedure –

(a) Of the Supreme Court in relation to the jurisdiction and powers conferred upon it by or under this section; and

(b) Of subordinate courts in relation to references to the Supreme Court under subsection (2).”…,. 

As no written law has yet been made in terms of section 24(9) of the Constitution of Zimbabwe, the Supreme Court itself has indicated the procedures to be followed in relation to matters which are raised under the provisions of section 24 of the Constitution of Zimbabwe – Martin v Attorney General & Anor 1993 (1) ZLR 153 (S) and Tsvangirai v Mugabe & Anor SC84-05. These cases make it amply clear that the procedure to be followed in relation to applications brought in terms of section 24 of the Constitution of Zimbabwe is the procedure as announced by the Supreme Court itself in the absence of a written law prescribing such procedure.

The highlighted provisions of section 24(2) of the Constitution of Zimbabwe and the provisions of section 24(4) of the Constitution of Zimbabwe specifically mention the Supreme Court. There is no mention of such section 24 of the Constitution of Zimbabwe, references being made to the High Court. This reference to the Supreme Court alone in section 24 of the Constitution of Zimbabwe is a deliberate limitation of the inherent jurisdiction of the High Court – S v Mbire 1997 (1) ZLR 579 (S)…,; Mandirwhe v Minister of State 1981 (1) SA 759 (ZA)…,.; Catholic Commission for Justice and Peace in Zimbabwe v Attorney General & Ors 1993 (1) ZLR 242 (S)…, and Movement for Democratic Change & Anor v Chinamasa & Anor 2001 (1) ZLR 69 (S)…,.

This issue was discussed extensively in a judgment of this court in Nyamandlovu Farmers Assoc v Min of Lands & Anor 2003 (1) ZLR 185 (H)…,.

The applicant should, in such a Constitutional matter under section 24 of the Constitution of Zimbabwe, approach the Supreme Court directly for a speedy redress. A section 24 order is a distinct legal redress established by the Constitution itself to have important Constitutional issues decided directly by the final court in the land - without protracted litigation. The Supreme Court is the only court empowered to deal with this kind of application and has indeed done so in similar circumstances – Williams & Anor v Msipa & Ors SC22-10…,.; Martin v Attorney General & Anor 1993 (1) ZLR 153 (S) and Beattie Farms (Pvt) Ltd a.k.a Chigwell Estate v Mugova N.O. & Anor SC32-09. Section 24(2) of the Constitution of Zimbabwe is intended to give the magistrate power, in cases of this kind, to protect the Supreme Court from frivolous and vexatious litigation. A party who is not satisfied with the determination should approach the Supreme Court – Martin v Attorney General & Anor 1993 (1) ZLR 153 (S). 

The issue in this case is whether the magistrate “paid lip service to the interpretation of the words “frivolous or vexatious” in her interpretation of section 24(2) of the Constitution of Zimbabwe.

The prayer sought by the applicant is in the following terms:

“It is sought that 1^st respondent's decision of the 29^th of September 2009 be set aside and that the case be referred to the Supreme Court.” 

This is a case which should clearly have gone straight to the Supreme Court. The Supreme Court has dealt with such matters on an urgent basis if the circumstances so demand. The Supreme Court has granted a stay of proceedings where a case has been made for such relief – Mukoko v Commissioner General SC03-09 and Williams & Anor v Msipa & Ors SC22-10. In casu, it is not clear why the applicant chose this long and winding route when the Constitution affords him, in section 24 of the Constitution of Zimbabwe, the opportunity to obtain expeditious redress. When this objection was raised, the applicant should, with respect, have withdrawn this application and approached the Supreme Court directly. From the foregoing, the objection in limine has merit and should be upheld.

LOCUS STANDI

In his application, the applicant makes it clear that he brings the application in his capacity as a Cabinet Minister, Member of Parliament and citizen of Zimbabwe. As a Cabinet Minister, he does so in his capacity as Minister of Local Government, Rural and Urban Development and not on behalf of Cabinet. This is not a case, therefore, where Cabinet is suing Parliament but rather one where a Minister is suing in his capacity as such.

That an applicant approaching this Court in terms of section 24(1) of the Constitution must show that his individual right, or rights, have been infringed, or, put another way, that there has been a contravention of the Declaration of Rights in relation to himself is now settled. He has no right to seek redress on behalf of the general public or anyone else. In this regard, attention is drawn to the decisions of this Court in United Parties v Minister of Justice, Legal & Parliamentary Affairs & Ors 1997( 2) ZLR 254 (S)…,.; Capital Radio (Pvt) Ltd v Broadcasting Authority of Zimbabwe & Ors 2003 (2) ZLR 236 (S)…,.; Retrofit (Pvt) Ltd v PTC & Anor 1995 (2) ZLR 199 (S)…,.; Law Society of Zimbabwe v Minister of Justice & Anor 2006 (2) ZLR 19 (S)…,.

In this case, the applicant is the Minister of Local Government, Rural and Urban Development. In this capacity he is assigned the responsibility of administering various pieces of legislation that govern the activities of local government institutions. In particular, he is charged with the responsibility of administering the Urban Councils Act [Chapter 29:15]. The rationale for the introduction of the Bill is stated in the memorandum to the Bill as the need to reduce the powers of central Government over municipal and town councils. Municipal and town councils are local Government institutions that fall under the aegis of the Ministry of which the applicant is Minister and are accountable to the Minister for the way in which they carry out their activities. The Minister exercises considerable powers under the Urban Councils Act [Chapter 29:15] that enables him to control the management of these institutions. The stated intention to reduce the powers of central government suggests that the real intention was to reduce the powers of the applicant, as Minister of Local Government, Rural and Urban Development, over municipal and town Councils.

In my view, the applicant clearly has an interest in this matter as it is his powers, as Minister, which the Bill intended to proscribe. In a case, such as the present, where it is suggested that the process of introducing the Bill that seeks to reduce such powers is unconstitutional, the applicant would certainly be entitled to the protection of the law. He would be entitled to approach this Court and demand that the respondents act in accordance with the law. I conclude, therefore, that in his capacity as Minister of Local Government, Rural and Urban Development, the applicant has the same rights as everyone else where his fundamental rights are violated and consequently has the locus standi to approach this Court under section 24(1) of the Constitution….,.

The Applicant's Locus Standi

Section 85(1) of the Constitution delineates the categories of legal standing available for the enforcement of fundamental human rights and freedoms, as follows:

“(1) Any of the following persons, namely –

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests, of a group or class of persons;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members;

is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being, or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”

Counsel for the applicant submits that this application is instituted on two different bases recognised in section 85(1) of the Constitution.

(i) The first arises from paragraph (e) of that subsection, where the Tour Operators Business Association of Zimbabwe is acting in the interests of its members to protect their right to equal protection and benefit of the law, under section 56, and their freedom of profession, trade or occupation, under section 64.

(ii) The second basis accrues from paragraphs (c) and (d), where the Tour Operators Business Association of Zimbabwe is acting in the interests of a group or class of persons and in the public interest to protect the rights of foreign motorists and the general public to the freedom of contract, implicit in the freedom of association under section 58, so as to contract with insurers of their choice and thereby obtain cheaper insurance cover.

The fundamental rights and freedoms invoked by the Tour Operators Business Association of Zimbabwe are enunciated in the Constitution as follows:

“56. (1) All persons are equal before the law and have the right to equal protection and benefit of the law.”

“58. (1) Every person has the right to freedom of assembly and association, and the right not to assemble or associate with others.

(2) No person may be compelled to belong to an association or to attend a meeting or gathering.”

“64. Every person has the right to choose and carry on any profession, trade or occupation, but the practice of a profession, trade or occupation may be regulated by law.”

According to counsel for the applicant, the violation of the rights enshrined in these provisions stems from the monopolistic and restrictive arrangement between the Motor Insurance Pool and the Zimbabwe Revenue Authority, which hinders the members of the Tour Operators Business Association of Zimbabwe from obtaining insurance cover specifically for their foreign clients. It also operates to restrict access to insurance cover generally by members of the motoring public.

As regards the first basis proffered by the Tour Operators Business Association of Zimbabwe for its legal standing in this matter, it is necessary to consider the provisions of its own Constitution which was adopted on 17 August 2012. In terms of clause 3(a), the principal objective of the Association is to promote tourism activities in the country and the business interests of its members in the tourism industry. Its other objectives elaborate this principal objective and are essentially incidental to that objective. Under clause 4(a), the membership of the Tour Operators Business Association of Zimbabwe consists of companies, bodies or organisations and individuals that are in the tourism industry.

As is indisputably evident from the provisions of its Constitution, the objectives of the Tour Operators Business Association of Zimbabwe and the business of its members are confined to the tourism industry. They are not registered insurers or brokers or licensed insurance agents. They have no legal interest in the issuance of insurance or insurance brokering or in any other form of insurance activity. Their constituent instrument is entirely silent in that regard. To put it colloquially, insurance is none of their business. On this premise, it is not possible to ascribe to the Tour Operators Business Association of Zimbabwe any legal standing to enforce its members' right to equal protection and benefit of the law or their freedom to trade in the specific sphere of insurance.

As for the second basis of legal standing, it must be assumed that the freedom to contract is necessarily implied in the freedom of association guaranteed by section 58 of the Constitution. I am somewhat disinclined to accept the correctness of this proposition on my interpretation of that section as being concerned with the formation and membership of voluntary associations and corporations rather than the negotiation and conclusion of commercial contracts. In any event, the more critical question for present purposes is the applicant's claim to represent the interests of foreign motorists and the general motoring public.

Taking a liberal and charitable approach, I am prepared to accept that the Tour Operators Business Association of Zimbabwe is not simply a vexatious busybody and is genuinely concerned about the rights and interests of local and foreign motorists. However, what is absent in its founding and answering papers is any meaningful evidence to support its contention that these motorists have been, or are likely to be prejudiced by the 2010 agency agreement between the Motor Insurance Pool and the Zimbabwe Revenue Authority or that they are in any way aggrieved by that agreement. Very crucially, there is no affidavit or other evidence from any foreign or local motorist or from any organisation representing motorists to substantiate the allegations made by the Tour Operators Business Association of Zimbabwe. This deficiency is critical insofar as the Tour Operators Business Association of Zimbabwe purports, as it does, to represent the interests of the motoring public.

To sum up, I take the view that the applicant has dismally failed to establish the requisite locus standi to act in this matter in the interests of its own members or in the interests of any class of persons or in the public interest….,.

Disposition

To conclude, the applicant has no locus standi in judicio under section 85(1) of the Constitution, Additionally, the declaratory and other relief that it seeks cannot properly be granted by this Court. This application must accordingly fail on these procedural grounds. Given this conclusion, it is not necessary to delve into or determine the remaining substantive issue as to whether or not the impugned 2010 agency agreement operates to violate the constitutional rights of the Tour Operators Business Association of Zimbabwe, its members, and local or foreign motorists.

As for costs, I am inclined to the view that this application was manifestly ill-conceived, almost on the verge of amounting to an abuse of court process. Nevertheless, as none of the respondents have prayed for costs on the punitive scale, the order for costs will simply follow the cause on the ordinary scale.

Before considering the constitutional issues referred to this Court, I wish to make the following observations on issues which were inadvertently left open by the Supreme Court.

The issues are not constitutional issues. They therefore fall outside the jurisdiction of this Court.

The defendant appealed against the judgment of the court a quo on the following grounds:

“1. The learned Judge a quo erred in holding that the Appellant was liable to compensate the Respondent for selling her property by Public Auction.

2. The learned Judge a quo misdirected himself on a point of law by finding that the parate executie did not apply in this matter when in fact the parties, upon concluding the contract, had agreed that it shall apply.

3. The learned Judge a quo erred in the exercise of his discretion in holding that the respondent was entitled to damages in the sum of US$20,000= in circumstances where the respondent had miserably failed to prove her claim.

4. The appellant will pray that the appeal be allowed with costs and that the judgment of the High Court be set aside and substituted in place thereof by an order that the respondent's claim against the appellant be and hereby dismissed with costs, including costs of two (2) counsels where two (2) counsels are employed.”

The defendant's argument, in simple terms, is that the plaintiff's pleadings establish no cause of action, in that the claim for damages cannot be founded on a breach of contract. If anything, it was the plaintiff who was in breach of the contract, which led the defendant to enforce the contract and sell the goods by public auction in terms thereof. The defendant further contended that the plaintiff's cause of action could not be founded in delict, as the pleadings did not set out the requirements for a delictual action.

The defendant's contention appears unassailable.

Counsel for the plaintiff did not make any meaningful submissions to the contrary. He virtually conceded the point and predicated his case on the unconstitutionality of the parate executie clause in the contract.

It is not for this Court to determine issues raised before the Supreme Court that are not constitutional. Those issues are for the Supreme Court to determine. The Supreme Court has the final word on those issues. Ideally, the Supreme Court should have determined those issues and thereafter referred the issue of the constitutionality of parate executie to this Court if so persuaded.

The magistrate was satisfied that the raising of the question of the violation of the applicant's constitutional right was not frivolous. He referred the matter to this Court.

The referral was improper. 

This Court has so stated time and time again. As far back as 1995, it was said:

“It seems to me, also, that before permitting an accused person to raise the question of not having been brought to trial within a reasonable time, the lower court should be satisfied that ample written notice has been given to the State, with a copy filed of record, of the intention to advance the complaint. The prosecution is entitled to be afforded the time and opportunity to investigate the cause of the delay and to be ready to adduce evidence as to the reasons therefor, if it is considered necessary to do so”.

See S v Banga 1995 (2) ZLR 297….,.

The prosecutor must be given written and adequate notice of the accused person's intention to make the application. The magistrate must hear evidence from the applicant and the prosecutor must be given an opportunity to cross examine the applicant and to lead any evidence it considers necessary after which the magistrate must make a ruling based on the evidence. 

The magistrate was satisfied that the raising of the question of the violation of the applicant's constitutional right was not frivolous. He referred the matter to this Court.

The referral was improper. 

This Court has so stated time and time again. As far back as 1995, it was said:

“It seems to me, also, that before permitting an accused person to raise the question of not having been brought to trial within a reasonable time, the lower court should be satisfied that ample written notice has been given to the State, with a copy filed of record, of the intention to advance the complaint. The prosecution is entitled to be afforded the time and opportunity to investigate the cause of the delay and to be ready to adduce evidence as to the reasons therefor, if it is considered necessary to do so”.

See S v Banga 1995 (2) ZLR 297….,.

The prosecutor must be given written and adequate notice of the accused person's intention to make the application. The magistrate must hear evidence from the applicant and the prosecutor must be given an opportunity to cross examine the applicant and to lead any evidence it considers necessary after which the magistrate must make a ruling based on the evidence. 

Section 85(1) of the Constitution, in terms of which the application was made, grants locus standi to the persons listed therein who allege that a fundamental right enshrined in Chapter 4 has been, is being, or is likely to be infringed.

Section 291 is in Chapter 16 of the Constitution. Its provisions do not enshrine a fundamental right.

It provides that any person who immediately before the effective date of the new Constitution was using or occupying, or was entitled to use or occupy any agricultural land by virtue of a lease or other agreement with the State continues to be entitled to use or occupy that land on or after the effective date in accordance with the lease or other agreement. The provision was intended to put beyond doubt the fact that the coming into effect of the new Constitution did not terminate existing rights to occupy, or use agricultural land. It clearly did not interfere with the rights and obligations of the parties under the lease or any other agreement governing the occupation and use of State land.

This matter is brought by way of referral in terms of section 24(2) of the former Constitution of Zimbabwe (“the former Constitution) which provides as follows:

“24 Enforcement of protective provisions

(1)…,.

(2) If, in any proceedings in the High Court or in any court subordinate to the High Court, any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and, if so requested by any party to the proceedings, shall, refer the question to the Supreme Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.”

The questions referred for decision concern the constitutionality of section 79 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”).

The applicants claim, that, section 79 of the Criminal Law (Codification and Reform) Act violates their right to protection of the law as well as their right not to be discriminated against in terms of sections 18 and 23, respectively, of the former Constitution.

LOCUS STANDI

The applicant states his standing to bring this application as follows:

”9.1 I believe that as an ordinary citizen, and, more importantly, as a Member of Parliament, I have a right to bring this application before this Honourable Court. The issue of devolution is key and central in the part of the country I come from and in the Constituency I represent. I was chosen to represent my Constituency which expects me to serve in the Bulawayo Metropolitan Council and represent their interests. I want to serve in this important institution so that it can perform and execute its developmental roles as defined by the Constitution.

9.2 Moreover, I believe that any citizen has and should have a general right to bring any application before this Honourable Court where the Government of the day, or any other Constitutional body, is disobeying or disrespecting or not enforcing or implementing any mandatory provision of the Constitution. This right exists and should exist whether or not that breach or omission is outside Chapter 4, of the Constitution of Zimbabwe. Put in simple terms, a citizen's right to approach this Honourable Court cannot and should not be restricted to a complaint founded on breach of the declaration of rights that are set out in Chapter 4 of the Constitution of Zimbabwe.

9.3 Besides, to the extent that I have in fact alleged a breach of a fundamental right, I have a right to approach this Honourable Court as I hereby do in terms of Section 85 of the Constitution of Zimbabwe. Section 85(1)(a) and (d), being the specific legs that I bring this application should it be restricted to the narrow question of breach of declaration of the rights defined in Chapter 4 of the Constitution of Zimbabwe.”

The applicant's stance is thus twofold.

(i) Firstly, he, as a Member of Parliament, is automatically entitled to be a member of the Bulawayo Metropolitan Province. By virtue of section 269(1)(c), all members of the National Assembly whose constituencies fall within the Metropolitan Province concerned, are automatic members of the Metropolitan Council. Thus, his constitutional right, as bestowed by section 269, has been denied by the respondents' failure to enact the legislation in question. More specifically, the applicant has been denied the “responsibility and duty for the social and economic development activities in the province. This includes the right to co-ordinate and implement Governmental programs in the province, the right to plan and implement measures for the conservation, implementation and management of natural resources in the province, and, of course, the right to promote tourism in the province.”

Accordingly, so the applicant avers, he has the right to approach this Court for the constitutional mandamus sought in the draft order because the respondents are in breach of “not only the provisions of Chapter 14 by default, but are acting against the concept of a paradismic State as defined and captured in s 8 of the Constitution.”

(ii) The second ground on which he bases his locus standi is that in denying him the benefit of Chapter 14 of the Constitution, the respondents are “in fact breaching not only Article 56(1) of the Constitution in so far as it protects the applicant but also denigrating the supremacy of the Constitution.”

At page 7 of the application he avers:

“In any event, to the extent that Provincial governance, as covered by Chapter 14 (of  the Constitution), is a right and expectation given to me and other citizens by law, the respondents, by their inaction, are denying me equal protection and benefit of the law. This therefore means that their inactions are in breach of my constitutional right to equal protection and benefit of the law as defined by s 56(1) of the Constitution of Zimbabwe.

I would therefore pray that this honourable court must respectfully compel the respondents to respect my right covered under 56(1) of the Constitution, by obliging the same to gazette and bring before Parliament a Bill as covered by the aforesaid sections 267 and 273(1) of the Constitution of Zimbabwe. This is the second leg and basis of my constitutional application to this Honourable Court.”

In terms of section 85 of the Constitution, certain persons may approach a court directly for the vindication of a fundamental right allegedly infringed or likely to be infringed. It provides as follows:

“85 Enforcement of fundamental human rights and freedoms

(1) Any of the following persons, namely:

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests, of a group or class of persons;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members;

is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being, or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.

(2) The fact that a person has contravened a law does not debar them from approaching a court for relief under subsection (1).

(3) The rules of every court must provide for the procedure to be followed in cases where relief is sought under subsection (1), and those rules must ensure that:

(a) The right to approach the court under subsection (1) is fully facilitated;

(b) Formalities relating to the proceedings, including their commencement, are kept to a minimum;

(c) The court, while observing the rules of natural justice, is not unreasonably restricted by procedural technicalities; and

(d) A person with particular expertise may, with the leave of the court, appear as a friend of the court.

(4) The absence of rules referred to in subsection (3) does not limit the right to commence proceedings under subsection (1) and to have the case heard and determined by a court.”

The submission by the respondents, in their heads of argument, that at the time of the hearing the applicant was no longer a Member of Parliament is common cause.

I agree with the submission on behalf of the respondents that the applicant could not found his locus standi on his former status as a Member of Parliament.

The applicant, however, faces a more serious hurdle. The right allegedly infringed is not a fundamental right enshrined in Chapter 4 of the Constitution. Accordingly, an approach in terms of section 85 to vindicate the alleged infringement of sections 267, 270 and 273 is not available to the applicant.

I find no merit in the applicant's averment, in paragraph 9.2 of his founding affidavit (quoted above)…., that anyone should be allowed to bring any constitutional application before this Court.

To allow this totally unrestricted approach would be a violation of the Constitution which has restricted the direct approach to the vindication of fundamental rights (see section 85(1)) and has itself outlined other methods (see, for example, section 175) of approach to this Court.

Thus, to use the words of the applicant, 'the first leg' on which the application is based cannot stand.

Insofar as the applicant alleges an infringement of his fundamental right enshrined in Chapter 4 of the Constitution, he may, in the absence of the rules referred to in section 85(3), be permitted to access this Court directly. On this basis, he has, prima facie, the locus standi to bring his application in terms of section 85(1)(a). But he cannot, as he has sought to do, act in his own interest as well as the public interest. This point was emphasized in Loveness Mudzuri & Anor v Minister of Justice, Legal & Parliamentary Affairs N.O & 2 Ors CC12-15, where MALABA DCJ, delivering the judgment of the Court, held that an applicant should confine himself to one of the capacities set out in section 85(1). At page 8 of the judgment the learned judge said:

“What is in issue is the capacity in which the applicants act in claiming the right to approach the court on the allegations they have made. In claiming locus standi under s 85(1) of the Constitution, a person should act in one capacity in approaching a court and not act in two or more capacities in one proceeding.”

And at page 9:

“The rule requires that the person claiming the right to approach the court must show, on the facts, that he or she seeks to vindicate his or her own interest adversely affected by an infringement of a fundamental right or freedom. The infringement must be in relation to himself or herself as the victim or there must be harm or injury to his or her own interests arising directly from the infringement of a fundamental right or freedom of another person. In other words, the person must have a direct relationship with the cause of action.”…,.

Accordingly, the only question properly before the Court for determination, and which I deal with hereunder, is whether there has been an infringement of the applicant's fundamental right enshrined in section 56(1) to equal protection and benefit of the law.

Counsel for the first respondent conceded that the matter was properly before the Court and should be determined on the merits.

The concession was made on the basis that the learned trial magistrate had misdirected himself by dismissing the application for referral on the ground that it was a waste of time without applying his mind as to whether or not the application was frivolous and vexatious.

In this application, referred to this court pursuant to the provisions of section 175(4) of the Constitution, the applicant seeks the following order:

1. It is declared that the prosecution of the applicant, Jabulani Sibanda, in respect of his address to war veterans and others at Herbert Mine, Mutasa District, on 27 October 2014 is unlawful in that it is in violation of sections 60 and 61 of the Constitution of Zimbabwe.

2. No propagation and expression of one's ideas and opinions should be subjected to prosecution under section 33(2)(b) of the Criminal Law (Codification and Reform) Act.

3. That the court issues such order as it deems appropriate in terms of its powers under section 175 of the Constitution.

In heads of argument filed with this court, the State has taken the preliminary point that the matter was not properly referred by the court a quo.

After hearing submissions from both counsel, this court reserved judgment on the preliminary point raised and postponed the hearing of the matter on the merits.

FACTUAL BACKGROUND

The applicant was the chairperson of the War Veterans Association at the time of the alleged commission of the offence. On 27 October 2014, he addressed a gathering of war veterans at Herbert Mine in the Mutasa District of Manicaland Province. The war veterans had gathered at the mine shaft to exhume the bodies of deceased war veterans and thereafter re-bury them.

It is alleged by the State that at about 14:00 hours on that day, the applicant, in a lengthy speech, uttered words to the effect that the President of Zimbabwe and his wife were plotting a bedroom coup to remove the State Vice-President from both the party and Government and replace her with Dr Grace Mugabe, the President's wife. He was quoted as further saying that power “was not sexually transmitted” and that he was going to mobilise youth, women and war veterans to march to State House and confront the President of Zimbabwe. 

The applicant denies making these utterances.

On a date that is either 30 November 2014 or 1 December 2014, the applicant appeared before the court of a Provincial Magistrate at Harare Magistrates' Court facing a charge of contravening section 33(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. More specifically, it was alleged by the State that in uttering the words in question he had insulted the office and person of the President.

During the initial remand proceedings, the applicant's lawyer…, made two applications, one for bail pending trial and another for the referral of the matter to the Constitutional Court. 

The application for bail merits no further comment as it is not germane to the determination of the issues that arise in the present application.

PROCEEDINGS IN THE COURT A QUO

Counsel for the applicant requested the court to refer the matter to this Court. The request was from the bar. No written application was filed. The applicant was not called to give evidence. He did not file an affidavit in support of the request. There was no specific indication how, in the particular case of the applicant, section 33 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] infringed his Constitutional rights. Counsel for the applicant addressed the court thus:

“I request the court, in terms of section 175 of the Constitution to refer this matter to the Constitutional Court on the grounds that:

(1) It is humbly submitted that the charge presented by the State contravening (sic) section 33(2)(b) of the Code of insulting or undermining authority of the President has the effect of infringing on the rights of the accused person. The rights are fundamental rights. These rights are enshrined in section 60 of the Constitution which deals with freedom of conscience, which, at 60(1)(a) (sic), include freedom of thoughts (sic), opinion and section 61 of the Constitution deals with freedom of expression and freedom of the media. Every person has the right to freedom of expression which includes;

(a) Freedom to seek, receive, and communicate ideas and other information.

I concede that this is not the first time the issue has been raised in these courts. I am aware of 3 cases brought to the courts challenging this very section of the Code.

I refer you to the case of Owen Maseko v the Attorney General. The State withdrew the case…,. The State conceded that the provisions are not proper. The provisions contravene the Constitution.

May the court refer to Constitutional Court.”

The State prosecutor opposed the application.

He urged the court to dismiss the request and to proceed with “the remand issues.” He said nothing about the factual dispute; whether or not the applicant had indeed uttered the words alleged. Nor did he comment on the validity of the charge, viz section 33(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in the light of the provisions of sections 60 and 61 of the Constitution.

The court a quo determined that the “application” should be referred to the Constitutional Court, it being not frivolous or vexatious. The court then referred the matter to this court, hence the present proceedings.

SUBMISSIONS BY THE RESPONDENT

Both in heads of argument and oral submissions, the State raised the preliminary point that the matter had not been properly referred to this court. It further made the following submissions; 

(i) The applicant should have been called to give viva voce evidence. 

(ii) It was insufficient for the applicant's counsel to tender a very short and generalised submission on the legal provisions without first establishing a factual basis for such argument. 

(iii) Further, the trial magistrate does not appear to have appreciated the need to establish the facts and the constitutional issue that arose from those facts before deciding to refer the matter.

SUBMISSIONS BY THE APPLICANT

In his submissions, counsel for applicant argued that there was no compelling reason to lead evidence.  What was in issue was the constitutionality of section 33(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was in respect of the constitutionality of the section that he had addressed the court a quo.

ISSUES FOR DETERMINATION

Two issues therefore fall to be decided by this court. These are;

(i) Firstly, whether the applicant should have given viva voce evidence, and, if he did not, whether his request is, for that reason alone, fatally defective.

(ii) Secondly, whether the magistrate a quo properly referred this matter to this court.

WHETHER APPLICANT SHOULD HAVE ADDUCED EVIDENCE

The first question that arises is whether the failure by the applicant to lead evidence in support of the application is fatal.

It is correct, as the respondent points out, that in various decisions, this court has stressed the need for an applicant seeking a referral, to lead viva voce evidence in support thereof, and for the prosecution to be given the opportunity, not only to cross examine witnesses called by the applicant to give evidence, but also to lead evidence in rebuttal. Indeed, cases such as S v Njobvu 2007 (1) ZLR 66; S v Banga 1995 (2) ZLR 297; Sivako v AG 1999 (2) ZLR 279; and, more recently, Douglas Mwonzora & 31 Others v The State CC09-15, stress this point.

These cases, however, were decided in the context of an application for a permanent stay of criminal proceedings. In such an application, an applicant has to traverse various factors such as the length of the delay, the reasons for such delay, the question of prejudice in the conduct of the trial and whether the applicant asserted his right to a speedy trial.

In Mutsinze v Attorney General of Zimbabwe CC13-15, this court went further to look at other considerations such as the interest of society in having persons alleged to have committed criminal offences tried and a verdict given, the general principle that a permanent stay is granted only in very limited circumstances where the court does not want to involve itself in an illegality and that, where a record of proceedings goes missing in very suspicious circumstances, there is need for such record to be reconstructed. Further, that it is in very rare cases that a permanent stay would be granted owing to the disappearance of a court record.

For the above factors to be properly considered by a court, evidence will, almost invariably, be required.  Questions such as whether the applicant asserted his right to a speedy trial and whether he has suffered prejudice in the conduct of his case will, no doubt, require viva voce evidence and cross-examination, before they can be determined.

The present case is different.

The applicant is alleged to have made certain remarks, which remarks offend the provisions of section 33(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The applicant, however, denies making those remarks. That notwithstanding, the applicant is saying that the section under which he was charged is not constitutional. He did not give evidence on the circumstances surrounding his arrest, whether the words he is alleged to have uttered are correct and what constitutional issue arises from his arrest and remand.

Section 24 of the Constitutional Court Rules, 2016 has made provision for the procedure to be followed in referrals of matters to this court, whether by a court mero motu or at the request of a party to the proceedings. Rule 24(4) thereof further provides that where there are factual issues involved, the court seized with the matter shall hear evidence from the parties and determine those factual issues. Where there are no disputes of fact, the parties are required to prepare a Statement of Agreed Facts. Further, the record of the proceedings is required to contain evidence led by both parties and the specific findings of fact made by the judicial officer and the issue or question for determination by this court.

The Constitutional Court Rules, 2016 were promulgated on 10 June 2016.

The decision to refer this matter to this court was made on 16 March 2016 i.e. just over three months before the Rules came into operation.

The promulgation of the Rules has not brought into existence new requirements. The Rules have simply incorporated various sentiments expressed by this court in various cases that have come before it.

In my view, notwithstanding that there were no Rules in operation at the time the request for referral was made, and, notwithstanding the fact that the cases cited by the respondent refer to instances where a permanent stay is sought, there is need, in general terms, in applications for a referral to this court, for an applicant to give evidence on the circumstances surrounding his arrest and why he alleges that his arrest on a particular charge contravenes a particular right given to him by the Constitution. The trial magistrate before whom the application is made must be afforded all the information necessary so that he is in a position to determine, firstly, the factual position giving rise to the request for referral and thereafter, whether the facts give rise to a constitutional question, and, importantly, what the constitutional question is that should be referred to this court.

I readily accept that there are cases where the leading of evidence will not be necessary, particularly where the facts giving rise to the request are common cause. In such a case, it would serve no meaningful purpose for the parties to be required to give viva voce evidence. Where, however, the facts are not common cause, the parties must, as a general rule, be required to give evidence.

In the particular circumstances of this case, my considered view is that it was not, strictly speaking, necessary for the applicant to give evidence. The facts giving rise to the request for referral were not in dispute. His legal practitioner appears to have been simply saying his prosecution on a charge of contravening section 33(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] was violative of his rights under sections 60 and 61 of the Constitution.

I have used the word “appears” deliberately as counsel for the applicant was not very clear on this aspect when he addressed the court a quo - an aspect I deal with next.

WHETHER THE COURT A QUO PROPERLY REFERRED THE MATTER

The second question is whether the court a quo properly referred the matter to this court. It is apparent from the record of the proceedings that the request made by counsel for the applicant was unclear. He submitted that “the charge presented by the State contravening s 33(2)(b) of the Code infringed on the fundamental rights of the accused person.” It is not clear from the record exactly what he was referring to.  Was he saying the charge contravened section 33(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]? Or was he saying the charge of contravening section 33(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] infringed his fundamental rights? 

No one can say for sure.

In case it was the latter, counsel for the applicant did not indicate how, in the case of the applicant, section 33(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] violated his fundamental rights. The presiding Magistrate did not help matters by not specifically indicating, in his reasons for referral, what he understood the request to be.

In deciding to refer the matter to the Constitutional Court, the trial magistrate reasoned thus:

“I will now turn to the issue of the referral of the matter to the Constitutional Court. Mr Sobusa Gula-Ndebele, for the defence, cited 3 cases of a similar nature. My comment in this regard is that the Constitutional Court has not made any ruling or passed judgment in such matter. In other words, no application has been decided on the merits…,.

The law or guiding principles governing applications for referral to the Constitutional Courts are very clear.  The underlining (sic) factor is whether the application for referral is frivolous or vexatious or not. Once established that it is frivolous and vexatious, the court a quo will to dismiss the application (sic). On the contrary, if the application is not frivolous and vexatious, the court a quo has to refer the matter to the Constitutional Court.

I would like to point out that our jurisprudence has not been developed in this regard and especially on the provision being challenged which the accused is being charged under. We definitely need guidance from the superior court of the land.

The application made by the accused is not frivolous and vexatious and I don't hesitate to refer it to the Constitutional Court…,.”

The trial magistrate was correct in restating the requirement that the court must refer the question unless it considers that the request is merely frivolous or vexatious. However, in deciding to refer the matter, he did not explain why he was of the opinion that the request was not frivolous or vexatious.

He did not consider how section 33(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] may contravene the Constitution. He did not explain which sections of the Constitution may be violated if an accused person undergoes a trial on a charge of contravening section 33(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In short, he was under the impression that simply regurgitating the provision was sufficient. 

In this, he was wrong.

In Jennifer Williams and Another v P. Msipha N.O. and Ors SC22-10, the Supreme Court, sitting as a Constitutional Court, made the following pertinent remarks at pages 17-18 of the cyclostyled judgment:-

“…,. The opinion which the person presiding in the lower court is required to form is a particular opinion in the sense that he or she is expected to form it by reference to specific criteria. The raising of a question in a court of law is an action or legal proceeding which includes all material facts required to be proved by the party raising the question to entitle him or her to relief…,.

The judicial officer is required to have knowledge of the ordinary and natural meaning of the words “frivolous and vexatious,” which constitutes the standard which he or she must conscientiously and objectively apply to the facts on which the question as to the contravention of the fundamental human right or freedom is raised.”

I agree entirely with the above remarks.

A lower court must consider the facts of the case and determine, on the basis of those facts, what provision in the Constitution may be violated and the specific question that requires determination by the Constitutional Court.

In the present case, there was no such analysis of the facts and the Constitutional provisions that may be violated. There is little doubt that the magistrate did not properly apply his mind to the principles of referral. He appears to have been uncertain as to what was required of him. Nor is it clear from his reasons what question exactly he referred for determination by this court. 

It follows, therefore, that the matter was not properly referred….,.

CONCLUSION

On 31 March 2009, this Court issued the following order in this matter:

"IT IS DECLARED THAT:

I find it pertinent and of interest to address the other ground upon which the respondent premised its argument that this matter is not properly before this Court.

This was that the application does not raise a constitutional question.

The respondent contends that the applicants seek to have declared unconstitutional, conduct that was done in terms of an extant legal provision whose constitutionality the applicants do not challenge. The provision in question is section 45(1)(b) of the Labour Act and reads as follows:-

“45 Considerations relating to registration or variation, suspension or rescission of registration of trade unions or employer's organizations

(1) In any determination of the registration of a trade union or employers' organization or of the variation, suspension or rescission thereof, the Registrar shall -

(a)…,.; and

(b) Ensure compliance with the following requirements -

(i) A trade union shall not represent employers;

(ii) An employers' organization shall not represent employees other than managerial employees;

(iii) The constitution of a trade union or employers' organization shall not be inconsistent with this Act….,.

(2)…,.”

While the section as a whole is concerned with the actions of the Registrar of Trade Unions and the considerations that he must take into account in relation to the registration, variation, suspension and rescission of the registration of a trade union, it is evident that subparagraphs (i) - (iii) of its section (1)(b) also restate the legal position relating to who a particular trade union may or may not represent. They also distinguish employers from employees (both as defined in the Labour Act), in terms of who or what should represent them.

I do not find that the respondent's conduct, impugned by the applicants, was properly guided by its interpretation of this section.

The respondent attached to its papers evidence (in the form of a letter) of the first applicant's promotion to “the IBDC Managerial Team” as a Loans Officer. The same document contains a paragraph reading as follows:-

“EMPLOYMENT STATUS

In terms of IDBZ's structure, you are considered to be a managerial employee.”

In its definitions section, the Labour Act defines 'employer' thus, in relevant part:-

“employer means any person whatsoever who employs or provides work for another person and remunerates and expressly undertakes to remunerate him, and includes -

(a) The manager, agent or representative of such person who is in charge or control of the work upon which such other person is employed;

(b) - (e)…,.”

The dispute in casu concerns whether the first applicant fits into this definition of employer, and, if he does not, whether the respondent's refusal to allow him to participate in the affairs of the second applicant constituted a violation of his labour rights guaranteed under section 65(2) of the Constitution. It should be noted in this respect that the respondent is not said to have refused the first applicant permission to join or involve himself in the affairs of an employer's organization.

The applicants allege the same violation of the first applicant's labour rights even if it is determined that he falls into the category of “employer” as defined. The applicants in this respect allege in their heads of argument that the second applicant, as a trade union, does not represent the interests of non-managerial employees only, but that it also has within its membership, employees said to be “managerial” like the first applicant. In addition, they argue that the second applicant's Constitution does not rule out this circumstance.

The evidence before the court shows that the respondent, having promoted the first applicant to a position ranked by it as managerial, and relying on the plain meaning of the words 'a trade union shall not represent employers', contained in section 45(1)(b)(i) of the Labour Act, engaged in the conduct complained of.

They refused the first applicant permission to involve himself in the activities and affairs of a trade union. The respondent therefore did no more than interpret (correctly in my view) the literal meaning of the provision in question and based its conduct on such an understanding. It appears to me that the applicants wished the respondent to read into the same words, a meaning that is not apparent from a plain reading thereof. I am not persuaded that there was a legal basis for them to do so.

As contended for the respondent, the applicants are attacking the wrong victim. In this respect, the respondent, in my view, correctly, argues as follows:-

“…, the applicants do not challenge the constitutionality of the provisions of the Labour Act which, we submit, permit the respondent's refusal of permission for first applicant's absence. A litigant may not bypass legislation and rely directly on the Constitution without challenging the provision in question. It is trite that conduct permitted by a law is not unlawful unless the law has been declared invalid.”

I find this to be a persuasive argument.

The learned authors of the book “Constitutional Litigation,” 1^st Ed…, MAX du PLESSIS, GLENN PENFORD and JASON  BRICKHILL define a constitutional question thus:-

“The quintessential example of a constitutional matter is one that involves the direct application of the Bill of Rights, that is, a constitutional challenge to law or conduct based on an unjustified infringement of a fundamental right…,.”

The applicants in casu challenge the conduct of the respondent that was informed by the explicit language of an extant legal provision ie, section 45(1)(b) of the Labour Act. If, by such conduct, the respondent, in the view of the applicants, violated a perceived fundamental right of theirs, then the appropriate action to take would have been to challenge the constitutional validity of the law in question. For it would be that law, and not conduct based on it, that would be based on an unjustified infringement of a perceived fundamental right. It hardly needs mentioning that the striking down of such a law would have the result of nullifying the conduct complained of.

Accordingly, and based on the above definition, I find that the application does not raise a constitutional question.

On this ground, too, I find that the application is not properly before the court and ought to be struck off the roll.

The applicant approached this Court in terms of section 85(1)(a) of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 (“the Constitution”), alleging that the respondents infringed the following of her fundamental rights:

(i) The right to dignity;

(ii) The right not to be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment; and

(iii) The right not to have a health condition disclosed.

The allegation was that these rights, which are enshrined in the Constitution, were violated when the first respondent subjected the applicant to disciplinary proceedings for alleged misconduct arising from her alleged failure to disclose her HIV status in a form she completed when applying for employment with the first respondent.

The allegation was that the disciplinary proceedings were based on a failure to complete a form that compelled her to disclose the condition of her health.

She alleged, that, by subjecting her to the disciplinary proceedings by which she was found guilty of the misconduct charged, resulting in her dismissal from employment, the first respondent infringed her rights.

The applicant seeks an order in the following terms:

“(a) The first respondent's conduct, in requiring that the applicant discloses her health condition, is declared unconstitutional and in breach of sections 57(e); 51 and 53 of the Constitution.

(b) The disciplinary proceedings conducted by the first respondent relating to the applicant's failure to disclose her health condition are accordingly set aside. Any appeal in relation to the said disciplinary proceedings is permanently stayed.

(c) Section 8 of Schedule 4 of the Employment Code of Conduct for the NEC for Welfare and Educational Institutions, which penalises a failure by an employee to disclose their medical status when undergoing a medical examination at the instance of the employer, is hereby declared unconstitutional.

(d) The first respondent is hereby ordered to reinstate the applicant to the post of Ward Manager, or, alternatively, to pay her damages as quantified by the Labour Court for unfair dismissal.

(e) The first respondent and the second respondent are hereby ordered to pay the applicant $30,000 as constitutional damages to compensate her for the violation of her privacy and dignity and for causing the applicant to suffer inhuman and degrading treatment.

(f) The first respondent is hereby ordered to pay costs of suit on a legal practitioner and client scale.”

The facts which gave rise to the application are these:

The applicant was diagnosed with Human Immune-Deficiency Virus (HIV) in 2003 while she was employed at the Avenues Clinic as a nurse. She later resigned in 2006 when her health condition deteriorated. Her health condition later improved, and, in 2010, she applied for a job with the first respondent. She was interviewed for a post of a General Nurse and successfully passed the interview.

The applicant was required to complete a medical examination form before commencing employment.

The medical examination form required her to indicate whether she had suffered from any serious illness or injury. She indicated that she had not suffered from any serious illness. She also failed to disclose that she had once retired from her previous employment on medical grounds.

The applicant proceeded to enter into a contract of employment with the first respondent as a General Nurse.

The applicant was again interviewed in March 2011. She succeeded and was appointed to the post of Ward Manager.

In September 2012, the applicant suffered a stroke and went on sick leave from 21 September 2012. When the applicant resumed work, on 2 December 2012, she was referred to one Dr Ngwende, who advised the first respondent's Human Resources Manager that she had made some progress and could resume her duties. The doctor recommended that the applicant should perform light duties.

The first respondent was not pleased with the health condition of the applicant and served her with an investigation notice, in which it alleged that the applicant had given false information when she completed the medical examination form.

The applicant was suspended from employment on allegations that she contravened Schedule 4(8) of the Employment Code of Conduct for the National Employment Council for the Welfare and Educational Institutions (“the Code of Conduct”) which provides, that, supplying false information or knowingly omitting relevant information in an application for employment, or when undergoing a medical examination, is an act of misconduct.

The applicant was charged with that misconduct, it being alleged, that, she had supplied false information or knowingly omitted relevant information when she completed the medical examination form, in that she said she had not suffered from any serious illness when she knew that the statement was false.

A disciplinary hearing was conducted and the applicant was found guilty as charged. The disciplinary committee found that the applicant committed an act of dishonesty, which is a serious offence as the relationship between an employer and employee is based on honesty and trust.

A penalty of dismissal was imposed.

Aggrieved by the decision of the disciplinary committee, the applicant appealed to the third respondent's Appeals Committee (“the NEC Appeals Committee”). The appeal was allowed. The decision of the first respondent's disciplinary hearing committee was set aside and substituted with an order that the applicant be reinstated to her former position without loss of salary and benefits from the date of dismissal.

The first respondent noted an appeal against the decision of the NEC Appeals Committee to the Labour Court. At the same time, the applicant brought an application for review of the proceedings of the first respondent's disciplinary committee before the Labour Court.

Whilst both matters were pending before the Labour Court, the applicant made this application in terms of section 85(1) of the Constitution.

The applicant alleges, that, the respondents have breached her right to privacy as enshrined in section 57(e) of the Constitution, which provides that:

“Every person has the right to privacy, which includes the right not to have —

(a)-(d)…,.;

(e) Their health condition disclosed.”

The applicant further alleges, that, her right to dignity (section 51 of the Constitution) and her right to protection against inhuman and degrading treatment (section 53 of the Constitution) were violated by the first respondent's conduct in conducting the disciplinary proceedings.

It was the applicant's submission, that, the disciplinary proceedings were designed to compel her to disclose her medical condition, in particular her HIV status.

A preliminary point was raised as to whether the application was properly before the Court, considering that there was a pending appeal and an application for review before the Labour Court.

Counsel for the applicant submitted that what was in the Labour Court was an appeal against the decision of the third respondent. She also submitted that there was nothing constitutional pending before the Labour Court. As such, there is no rule which prevented the applicant from approaching the Constitutional Court in terms of section 85(1)(a) of the Constitution. She went further and argued, that, the Labour Court has no power to issue a declaratur.

It was on that basis that the applicant argued that the matter was properly before the Court.

Counsel for the first and second respondents submitted, that, the application was an abuse of court process as there was a pending appeal before the Labour Court.

Counsel for the third respondent made submissions to the same effect.

He further submitted, that, the ground on which the application was brought was that the first respondent compelled the applicant to disclose her health condition. The matter before the Labour Court involved the determination of the question whether the applicant was compelled to disclose her health condition. The ground on which the application was brought to this Court, alleging the violation of the fundamental rights referred to in the founding affidavit, is the same as the ground on which the appeal before the Labour Court is to be determined.

In determining the question whether the first respondent acted lawfully when it charged, convicted, and dismissed the applicant for giving false information or knowingly omitting relevant information when she completed the medical examination form for employment purposes, the Labour Court would ipso facto decide the question whether the applicant's rights were infringed.

It is important to note, that, the purpose of the disciplinary proceedings was not to compel the applicant to reveal her health condition. The purpose was to determine the question whether she had given false information when she answered in the negative the question whether she had suffered from any serious illness.

If she was honest, she needed only to answer the question in the affirmative.

The application is not only ill-conceived, it is procedurally improper, as an application cannot be made directly to the Constitutional Court in terms of section 85(1) of the Constitution alleging a violation of a fundamental right in respect of conduct, the lawfulness of which is a subject of inquiry in proceedings pending before a subordinate court.

If a question of violation of a fundamental right arises in proceedings before a subordinate court, the correct procedure for bringing the matter to the Constitutional Court is the one set out in section 175(4) of the Constitution.

The applicant ignored the procedure she was obliged to follow if she wanted to have the question of the infringement of her fundamental rights brought to the Constitutional Court for determination.

The application is dismissed with costs.

The opposing affidavit deposed to by Mr Pondo on behalf of the Zimbabwe Anti-Corruption Commission shows that even if there would have been a constitutional matter, the Constitutional Court would not have been in a position to determine it because of the existence of a material dispute of facts….,.

The Constitutional Court has no jurisdiction to determine a matter which is not a constitutional matter.

In any case brought before the Constitutional Court, it has to ensure that the issue for determination is a constitutional matter or an issue connected with a decision on a constitutional matter.

The Constitution defines “constitutional matter” in section 332 as follows:

“'constitutional matter' means a matter in which there is an issue involving the interpretation, protection or enforcement of this Constitution;”

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 applicant's contention that the definition of “lawful authority” in the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] is ultra vires the Constitution raises a constitutional issue.

Once a constitutional issue arises in any proceedings in an inferior court, it should be referred to the Constitutional Court unless such an application is frivolous or vexatious.

The contention that section 2 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] is ultra vires section 16B(6) of the Constitution is a constitutional issue that arose during the proceedings in the court a quo. This constitutional issue is neither frivolous nor vexatious. The court a quo was therefore required, in terms of section 24(2) of the Constitution, to refer this matter to the Constitutional Court. The court a quo's failure to refer the constitutional issue raised to the Constitutional Court constitutes a violation of the applicant's constitutional right to protection of the law guaranteed in terms of section 18(1) of the Constitution. Such violation entitles the applicant to approach the Constitutional Court in terms of section 24(1) of the Constitution.

I am therefore satisfied that this application is properly before this Court and this Court is at large to consider the constitutional issues raised in the application to this Court as if it were the court of first instance.

In this regard, see Martin v Attorney-General and Anor 1993 (1) ZLR 153 (S)…, wherein the Court had this to say:

The court did not hear argument on the merits of this application, but determined it on the preliminary point of whether or not the matter had been properly brought before the Constitutional Court. At the end of the hearing the court issued the following order:-

“The application be and is hereby dismissed with costs on the legal practitioner and client scale.”

It indicated that the full reasons for this order would follow in due course. 

These are they.

At the hearing of this matter, counsel for the applicant…, was asked to address the court on the basis upon which the matter had been brought before the court in view of the following;

(i) According to its Notice, the application was brought directly to this court, purportedly in terms of section 167(1) and 176 of the Constitution and not section 85(1) or other constitutional provisions that provide for such direct approach;

(ii) It was neither an appeal against the judgment of the Supreme Court, nor was it referred by that court in terms of section 175(4) of the constitution; and

(iii) The matters that he wished the court to determine were neither raised before, nor determined by the Supreme Court, as constitutional issues.

In short, the court wished to hear from the applicant whether he had established a basis for approaching the Constitutional Court with the application in question.

Counsel for the applicant conceded all the three points raised by the court. He further conceded that the papers before the Supreme Court did not properly challenge the constitutionality of sections 13 and 16 of the Criminal Procedure and Evidence Act [Chapter 9:01]. Doing so would have entitled the applicant to either appeal to this Court, if the Supreme Court had ruled against him, or seek a referral of the matter to this Court in terms of setion 175(4)) of the Constitution. He also conceded that, consequently, the application had “no leg to stand on,” as it were….,.

Despite not having filed any heads of argument, Mr Uriri, the amicus curiae, was allowed to briefly address the court.

He emphasised the need for parties wishing to apply directly to the Constitutional Court, to do so only upon establishing a proper basis for such an approach. This would insulate the court against a potential flood of undeserving cases at the instance of parties who may be disgruntled at decisions of lower courts, including the Supreme Court.

Even though this matter was not heard on the merits, I consider it necessary nevertheless to set out the backdrop to the order that the court issued. This necessitates a cursory look at some of the papers presented before the court.

The applicant aptly summarised the background to this application as follows in its heads of argument;

“1. On 28 January 2014, the Supreme Court handed down its judgment in the matter of Telecel Zimbabwe (Pvt) Ltd v Attorney General SC01-14. The judgment directed and ordered the Attorney General (as he then was) to issue a certificate Nolle Prosequi to Telecel Zimbabwe (Pvt) Ltd. Dissatisfied with the judgment, the applicant approached the Constitutional Court for an order setting aside the Supreme Court judgment on the basis that same (sic) interferes with the independence of his office and as such it is ultra vires provisions of s 260 of the Constitution of Zimbabwe.”

Section 260 of the Constitution provides as follows:-

“260 Independence of Prosecutor General

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

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

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

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

The order of the Supreme Court that the applicant sought to impugn was to the following effect:

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

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

3. The respondent shall pay the costs of this application.”

The applicant explained the nature of the application in paragraph 3 of his founding affidavit:-

“3. This is an application calculated at upholding the independence of my office as guaranteed by s 260 of the Constitution of Zimbabwe. This Honourable Court is implored to exercise its inherent jurisdiction and powers in terms of s 167(1) and 176 of the Constitution and declare as follows:-…,.”

The declaratory orders that he wished to seek before this Court are outlined in his draft order and included the following:

“Whereupon, after reading documents filed of record and hearing counsel, it is hereby ordered as follows:-

(1)…,.

(2)…,.

(3)…,.

(4) The order of the Supreme Court in the matter between Telecel Zimbabwe (Private) Limited v Attorney-General No. SC01-14 be and is hereby set aside.”

For the reasons outlined below, the court found that counsel for the applicant properly made the concessions referred to.

1. Direct approach to the Constitutional Court

The applicant sought to bring this application before the Court, in terms of section 167(1(a) as read with section 176 of the constitution. A closer look at these two provisions suggests that he could not have properly done so.

Section 167(1) 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 s 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.”

Section 176 provides as follows:-

“176 Inherent powers of Constitutional Court, Supreme Court and High Court

The Constitutional Court, the Supreme Court and the High Court have inherent power to protect and regulate their own process and to develop the common law or the customary law, taking into account the interests of justice and the provisions of this Constitution.”…,.

As is evident from a reading of section 167(1), all that it does is state that the Constitutional Court is the highest (and final) court in all constitutional matters, and that it decides such matters only.

“All constitutional matters,” in my view, refers to matters properly brought before this Court in accordance with the Constitution.

Except for the specific instances stipulated in section 167(1)(b) and section 167(2)(b,(c) and (d), section 167 does not elaborate as to who, on what conditions, or how, a party may approach the court for it to exercise the jurisdiction conferred upon it by that provision. These details are to be found in other provisions of the Constitution. Thus, section 167(1), apart from the paragraphs mentioned, does not confer on anyone the right to approach the Constitutional Court directly, even if they have, or perceive themselves to have, a constitutional matter needing the court's determination.

In order to give full effect to section 167(1), in relation to any constitutional matter sought to be brought before the court, the provision must be read in conjunction with the various provisions that do confer a right to approach the Constitutional Court directly or indirectly through another process.

Section 176…, is not one of such provisions.

Thus, the applicant's attempt to file this application in terms of this section is based on a mis-apprehension of the meaning and effect of section 167(1).

Direct applications to the Constitutional Court are to be made only in terms of the provisions referred to above, as well as in terms of and as provided for in section 85(1). The specialised nature of the applications referred to in section 167(1)(b) and section 167(2)(b,(c) and (d), however, makes these provisions irrelevant to this case.

Therefore, the only way the applicant could have validly brought an application directly to this court would have been in terms of section 85(1).

As conceded by his counsel, the applicant did not do so, but sought to rely on the two provisions mentioned.

Section 85 is entitled “Enforcement of fundamental human rights and freedoms” and stipulates as follows in its subsection (1);

“85(1) Any of the following persons, namely -

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests, of a group or class of persons;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members;

is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”…,.

What is clearly evident from this provision is that the relief sought and to be granted by the court in terms of this section must relate to fundamental rights and freedoms enshrined in the relevant Chapter - and nothing else. Such relief may include a declaration of the rights said to have been or about to be violated.  The applicant did not allege that the right he alleges was violated by the Supreme Court was an enshrined fundamental right.

The applicant also sought to rely on section 176 of the Constitution in an attempt to bring the application within the jurisdictional parameters of the Constitutional Court. His position seems to be that the inherent power conferred on the court by this section should have been invoked in his favour, and specifically to allow his application to be brought directly to this Court.

This Court, being a creature of statute, can only operate within the confines of its Constitutional mandate.

It is evident that section 176 confers inherent powers on the court to do the various acts listed therein. However, what the section does not do is vest the court with the power to arrogate to itself jurisdictional authority that reaches outside and beyond the limits imposed in the Constitution. In other words, the court, in the exercise of the powers conferred on it in this section, is restricted to the ambit of its constitutionally mandated jurisdiction. The words “taking into account the provisions of this Constitution,” in my view, put this fact beyond any doubt. This is thus not a section that can be read together with section 167(1)(a) in order to avail to litigants the right of direct access to the Constitutional Court.

The applicant's papers, therefore, did not demonstrate a constitutional basis for the direct approach that he sought to adopt in bringing the application before this court. To that extent, the concession made for him that the application 'had no leg to stand on' was validly made.

Neither a referral nor an appeal

In relation to the referral to this court that the applicant concedes was not requested from the court a quo, the relevant provision is section 175 which deals with the powers of courts in Constitutional matters. It specifically provides, in section 175(4), that;

“If a Constitutional matter arises in any proceedings before a court, the person presiding over that court may, and if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request merely frivolous or vexatious.”

Because no constitutional matter was raised in the Supreme Court, and none was referred, this provision is not relevant to the matter at hand.

With regard to an appeal, the applicant correctly conceded that, on the face of it, the issues that he sought this Court to determine were also not brought before it as an appeal against the decision of the Supreme Court. However, because he sought to impugn a decision of that court, it is pertinent to quote section 169 of the Constitution, which reads 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.”…,.

My reading of section 169(1) suggests that while the Supreme Court can make a decision on a constitutional matter, such decision is not final, since only the Constitutional Court can make a final decision on that matter in terms of section 167(1)(a.

In other words, an appeal lies to the Constitutional Court against an order of the Supreme Court only on a constitutional matter determined by it.

Another type of appeal to the Constitutional Court could be one in terms of section 175(3).

This is a position that this Court confirmed in its recent decision in the case of Don Nyamande & Anor v Zuva Petroleum CC08-15. ZIYAMBI CCJ stated as follows;

“In my view, such a right (of appeal) may be read into s 175(3) of the Constitution which applies where an order of constitutional invalidity of any law has been made by a court. Failing that, a right of appeal could only arise where the Supreme Court makes a decision on a constitutional matter.

Since no constitutional case was determined by the Supreme Court, no appeal can lie against its decision.”

In that case, the applicants, who had not raised a constitutional issue before the Supreme Court, sought leave to appeal against its decision, purportedly (and erroneously) in terms of section 167(5) of the Constitution. The application was dismissed with the court correctly holding as follows:-

“Section 167(5) relates to rules of procedure regulating the manner of approach to this Court on appeal from lower courts. It does not confer a right to appeal to the Constitutional Court on a litigant who has no right of appeal.”…,.

The court thus effectively affirmed the finality of the Supreme Court judgment on a matter that was not determined by that court as a constitutional issue. By that token, the matter was not one that fell into the category of those over which the Constitutional Court had jurisdiction. As already stated, these are matters that are properly brought to the Constitutional Court.

I find the dicta cited above to be eminently apposite in casu.

This is because while the applicant did not specifically state so in his application, in reality, the matter was an appeal brought to this Court under the guise of an application. This is abundantly evident from the relief that is outlined in his draft order. It is even more evident from his summary of the background to the intended application, as already indicated. He indicated that he wished to approach this Court;

“For an order setting aside the Supreme Court judgment on the basis that it interferes with the independence of his office and, as such, it is ultra vires provisions of s 260 of the Constitution of Zimbabwe…,.”

Like in the case referred to above, the issue that I have underlined, and others that the applicant sought to bring before this Court, similarly 'arose' after the Supreme Court judgment was pronounced. They could not have been, and, in fact, were not, raised before the Supreme Court and needless to say, not determined by it as constitutional matters. The issues therefore did not meet the requirement for inclusion into “matters over which the Constitutional Court has jurisdiction.”

On the basis of the authority cited above, and upon a proper interpretation of the relevant provisions alluded to in this context, the judgment of the Supreme Court on these matters, which the applicant sought to have reversed, was final and definitive. It is a decision that may not be interfered with by this Court.

Thus, in as much as the application failed to meet the test for a direct approach to this Court, it meets the same fate in relation to any notion (expressed or implied) of an appeal against the decision of the Supreme Court….,.

HAS THE APPLICANT BROUGHT ITSELF WITHIN THE LAW TO ENABLE THIS COURT TO HEAR THE CONSTITUTIONAL CHALLENGE ON THE MERITS?

The respondents contend that the applicant is still in contempt of both the law and this Court and its court application challenging the constitutionality of several sections of the Access to Information and Protection of Privacy Act [Chapter 10:27] should not be heard on the merits until the applicant has purged itself of the contempt. In particular, it was submitted that:

(1) The day after the judgment of this Court, namely, on 12 September 2003, the applicant continued publishing its newspapers.

It was averred, and not seriously disputed, that had the police not stopped the applicant from publishing its newspapers it would have continued doing so despite this Court's ruling that in doing so the applicant was acting illegally. It was also averred, and not disputed, that the applicant made disparaging remarks about the judgment of this Court. This, it was argued, demonstrated the applicant's persistent contempt of the law and this Court; and

(2) On 25 September 2003, the applicant, again, published its newspapers, despite the explicit language of the judgment of the Administrative Court that the applicant was to submit its application for registration in terms of section 66 of the Access to Information and Protection of Privacy Act [Chapter 10:27] and that that application was to be considered by a newly re-constituted Commission as soon as possible and that, in the event of the newly constituted Commission failing to register the applicant by 30 November 2003, the applicant was to be deemed registered.

It was also argued for the respondents that the publication of the applicant's newspaper on 25 September 2003 was unlawful and constituted contempt of the law and the Administrative Court.

The reasons advanced by the applicant for this unlawful conduct were;

(i) Firstly, that it did not understand the full import of the two judgments, namely, that of this Court and the Administrative Court; and

(ii) Secondly, that the violation was not intentional.

With respect to the applicant, I find this explanation spurious and without substance.

It was also submitted by the respondents, and not seriously disputed by the applicant, that it was finally stopped from publishing its newspapers illegally only when the journalists working for the applicant refused to continue working for it until their accreditation, in terms of section 79 of the Access to Information and Protection of Privacy Act [Chapter 10:27], had been finalised.

Whilst the conduct of the applicant is not condoned, the fact that it was not in contempt of court at the time the application was brought before the Court entitled it to be heard on the merits especially when regard is had to the fact that the cessation of the illegal publication of newspapers was as a result of the refusal by journalists to continue acting without accreditation, that is to say, outside the law.

The applicant requested that I refer, I assumed this matter, to the Constitutional Court.

I say “assume” because the applicant was not able to articulate what it is that she wanted referred. In her submissions, she stated that her dispute had taken long to resolve and therefore her rights were being violated. I was at pains to understand the applicant's submissions. The respondent was equally constrained to respond, suffice to submit that the applicant had not made a case for the matter to be referred to the Constitutional Court. It was not clear which matter she wanted referred. In one breath she submitted that she wanted this application referred. In another breath she said she wanted the main matter referred.

In the absence of a clear indication of exactly what she wanted, I was of the view that there was no issue before me to refer to the Constitutional Court.

The first respondent…, took a number of preliminary points, among them that the application is improperly before the court as it appears to be a response to the judgment of the High Court.

The proper recourse the applicant should have taken was to appeal the High Court judgment and not to mount a direct application to this Court.

The second preliminary point taken is that the cause of action is res judicata….,.

Whether or not the application is properly before the court

The first and second preliminary points raised by the first respondent will be addressed under the same heading above.

The first respondent, in his opposing affidavit, takes the point that the application is improperly before this Court. The basis of this argument is that the application was brought in response to the judgment of the High Court per Mr Justice MANGOTA in Anjin Investments (Private) Limited v The Minister of Mines & Mining Development & Ors HH228-16.

Could it be said that the application this Court is seized with is a disguised appeal which should have been brought in terms of section 167(5)(b) of the Constitution?

It would appear so, and for a very good reason that a proper appeal could not have been validly pursued from the High Court proceedings.

Before the court a quo was an application for interim relief. No constitutional question was decided by the court a quo which the applicant could have appealed against in terms of section 167(5)(b) of the Constitution. Hence this disguised attempt to reverse the High Court decision.

The second preliminary point taken is that the cause of action is res judicata.

The principle of res judicata precludes the court from re-opening a case that has been litigated to finality. The principle was aptly defined in the case of Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A)…,. The South African Appellate Division had this to say:

“If a cause of action has been finally litigated between the parties, then a subsequent attempt by one to proceed against the other on the same cause for the same relief can be met by an exceptio rei judicatae vel litis finitae.”

The immediate question then is whether the same cause, for the same relief, between the same parties or their privies has been pursued by the applicant in casu after the matter has been finally determined?

To be successful, where res judicata is raised, all the requisites for the plea must exist. These requisites were didactically stated in the case of African Wanderers Football Club (Pty) Ltd v Wanderers Football Club 1977 (2) SA 38 (A)…, as follows:

“There is, nevertheless, no room for this exception (of res judicata) unless a suit which had been brought to an end is set in motion afresh between the same persons, about the same matter, and on the same cause for claiming so that the exception falls away if one of these three things is lacking.”

What was before the court a quo was an urgent application for interim relief with the effect of reinstating the applicant to the status quo ante. In the present case, the applicant is seeking a declaration that certain of its fundamental rights have been violated. In the event that this Court is to agree with the applicant, it seeks an order that has the effect of restoring the status quo ante, that is, the applicant retains powers to mine in Chiadzwa. Although the basis of the application has changed with the introduction of the Constitutional question, the effect of the relief sought remains the same.

Whether this disjuncture between the bases upon which relief is sought while the effect remains the same negates the plea of res judicata at all or only in specific circumstances I will leave open for now as there are other less disputable grounds upon which this matter may be resolved.

Similarly, although the parties in the High Court are not identical to current ones, they are similar as indicated earlier and, in my view, may be taken as privies of those now before this Court.

Perhaps it bears re-iteration for the benefit of legal practitioners in particular and litigants in general that this Court is mandated to deal with constitutional matters only, that is, matters in which there are issues or aspects of the interpretation, protection or enforcement of the Constitution.

Litigants must disabuse themselves of the tendency to invariably seek direct access to the Constitutional Court whenever their causes of action have a mildly constitutional flavour. There are a myriad and often more efficacious and speedier other avenues that the litigants can use, and, certainly, such avenues existed which the current applicant could have adequately used to address its cause without raising a Constitutional question.

On 1 March 2018, the applicants filed a chamber application for leave for direct access to the Constitutional Court in terms of Rule 21(2) of the Constitutional Court Rules S.I.61 of 2016 (“the Rules”).

The first and second applicants are political parties represented by the third and fourth applicants respectively. The fifth applicant is a political activist. He is not a member of any of the political parties. It is not explained in the papers why the political parties were joined with him in the making of the application.

From an affidavit of service deposed to by the fourth applicant, service of the application was effected on all the respondents (President of the Republic of Zimbabwe, Vice President of the Republic of Zimbabwe, the Zimbabwe Defence Forces, Speaker of the National Assembly and Robert G. Mugabe) on 2 March 2018. The fourth respondent (Speaker of the National Assembly) filed the notice of opposition on 12 March 2018. The hearing of the matter was set down for 24 May 2018 at 11:00am. The notices of set down of the matter for hearing were sent out on 14 May 2018. On that day, the applicants filed what they called a notice of withdrawal of the application. The parties had been directed to file heads of argument by not later than 4pm on 18 May 2018. The fourth respondent had filed heads of argument on 17 May 2018.

On 17 May 2018, the fourth applicant, in no uncertain terms, disclaimed the notice of withdrawal which was filed with the Registrar on 14 May 2018. Speaking on behalf of all the applicants, through an article published in a local newspaper, she made serious allegations of improper conduct against the registry staff at the Constitutional Court. The allegations were that the officials had colluded with State security agents and caused the papers relating to the case to disappear. The allegations were made despite the fact that the matter was still on the Court's roll pending hearing on 24 May 2018. The Court had not, at any time, indicated a change in the scheduled hearing of the case.

On 23 May 2018, the Registrar received a letter written on behalf of the first applicant confirming that the application had been withdrawn “to allow individuals to pursue their interests independently.”

On the day of the hearing of the matter, all the applicants were in default. There was also no appearance for the first second, third and fifth respondents (President of the Republic of Zimbabwe, Vice President of the Republic of Zimbabwe, the Zimbabwe Defence Forces and Robert G. Mugabe).

Satisfied that all the parties had been served with the notice of set down, the Court proceeded to hear submissions from counsel for the fourth respondent (Speaker of the National Assembly) who asked the Court to look into the merits of the application. After hearing submissions on behalf of the fourth respondent judgment was reserved.

FACTUAL BACKGROUND

The main application the applicants intended to place before the Court was premised on the interpretation of the circumstances of the termination of the fifth respondent's presidency. The applicants accept that the presidency came to an end as a result of the written notice of resignation from office addressed to the Speaker of the National Assembly by the fifth respondent on 21 November 2017.

According to the applicants, the resignation from office by the former President was a direct result of the military action of 14 November 2017 known as “Operation Restore Legacy.” The applicants allege that it was the presence of military vehicles in the streets of Harare between, 14 and 21 November 2017, that caused the former President to resign from office. Their contention was that the resignation was not a result of exercise of free will.

The applicants were also of the view that the impeachment proceedings commenced by the joint sitting of the Senate and the National Assembly for removal of the former President from office were not in accordance with the Constitution. They said the impeachment process was intended to aid and abet takeover of power by the military. The contention was that the events connected with the transfer of State power following the resignation of the former President, including assumption by the first respondent of the office of President, were constitutionally invalid.

The relief sought in the main application would be by an order in the following terms:

“AFTER READING DOCUMENTS FILED OF RECORD

IT IS HEREBY ORDERED THAT:

1. The deployment of the third respondent by the second respondent or any of his subordinates in pursuance of orders issued by the second respondent in the streets of Harare and other places in Zimbabwe, including the Zimbabwe Broadcasting Corporation, the fifth respondent's residence and other key Government sites on the 14^th and 15^th of November 2017 was unlawful and is in contravention of the Constitution of the Republic of Zimbabwe.

2. That the forced takeover of the State of Zimbabwe by the third respondent as announced by same through a broadcast on Zimbabwe Broadcasting Corporation on the 15^th November 2017 is unlawful and in contravention of the Constitution of the Republic of Zimbabwe.

3. That any further or subsequent actions taken by any of the second and third respondents in pursuance of their objectives here-stated or not and the installation of the first respondent as President and all such following actions in forming a Government are unconstitutional and not in the spirit of the Constitution of Zimbabwe.

4. That the current Government headed by the first respondent cannot preside over the forthcoming elections or continue any other day in office considering the unlawfulness and unconstitutionality of their actions but that such occupation of Government by the above mentioned be set aside and the Constitutional Court order the formation of a Transitional Authority by all political players in Zimbabwe with equal participation for a given period of time to lead the country into elections having addressed the pertinent issues of electoral reforms and patronage appointments in strategic institutions of governance which has always been a thorny issue in the country.

5. That such Transitional Authority, as appointed, should last for an adequate period of time to address the issues above and such period to be between twelve and twenty-four months.

6. That the fourth respondent failed to perform its duties in terms of section 119 of the Constitution of -

(i) Protecting the Constitution and promoting democratic governance.

(ii) Ensuring that the provisions of the Constitution are upheld and all institutions and agencies of Government, at every level, act constitutionally and in the national interests in that it:

(b) Did not challenge the actions of the army in November 2017 and beyond that.

(c) Participated and allowed the swearing in of the First respondent as President.

(d) It allowed the swearing in of army personnel into Ministerial positions against army not serving in civilian institutions.

(e) It allowed, without challenging, the illegal and unconstitutional change of Government by the first respondent, the second respondent and itself, the fourth respondent, represented by its head.

7. There is no order of costs.”…,.

In opposing the application, the fourth respondent took, as a point in limine, the fact that the applicants had failed to comply with the requirements of Rule 21(3)(a) and (c) of the Rules. The Rule requires that an application for direct access should state the grounds on which it is alleged that it is in the interests of justice that an order for direct access be granted. An application for direct access must also indicate whether the matter can be dealt with by the Court without hearing of oral evidence. If the matter cannot be dealt with without hearing oral evidence, the applicant must show how such evidence would be adduced and any conflict of facts resolved.

The point on the failure by the applicants to indicate whether the matter could be dealt with without hearing of oral evidence was taken in the light of the applicants' allegation that the impeachment process was commenced at the behest of the military….,.

Counsel for the fourth respondent argued that there was lack of seriousness on the part of the applicants in the making of the application. He said any reasonable person would have appreciated the fact that the application could not produce an order for the establishment of a Transitional Authority if the resignation of the former President was declared unconstitutional. The status quo ante the resignation would have had to be restored. He argued that a litigant who abuses court process by pursuing a frivolous and vexatious cause should be punished with an order of costs on a legal practitioner and own client scale. He prayed for the dismissal of the application for an order for direct access to the Court with costs on the punitive scale….,.

WHETHER IT IS IN THE INTERESTS OF JUSTICE THAT THE APPLICATION FOR DIRECT ACCESS BE GRANTED

An application for direct access is regulated by the Rules. An applicant has to satisfy all the requirements of the Rules.

The Court found that the applicants failed to comply with the Rules in this regard. There has to be actual compliance with the contents of the provisions of the applicable Rule. It is not a question of mere formality. 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 prescribes what must be contained in an application of this nature. It provides as follows:

“(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.”

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” (6^th ed, Juta & Co (Pty) Ltd 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.”

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.

Counsel for the fourth respondent 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).

Rule 21(8) goes on to provide as follows:

“(8) In determining whether or not it is in the interest of justice for a matter to be brought directly to the Court, the Court or Judge may, in addition to any other relevant consideration, take the following into account -

(a) The prospects of success if direct access is granted;

(b) Whether the applicant has any other remedy available to him or her;

(c) Whether there are disputes of fact in the matter.”

After considering all the circumstances of the case, the Court came to the decision that the application had no prospects of success.

Du PLESSIS M, PENFOLD G and BRICKHILL J, “Constitutional Litigation” (1ed, Juta & Co Ltd, Cape Town, 2013)…, explain the requirement that there be prospects of success in an application for direct access. They say:

“Another relevant consideration in deciding on direct-access applications is the prospects of success of a claim. This inquiry inevitably involves a degree of delving into the merits of the case and is, in many respects, similar to the inquiry that is conducted in relation to an appeal…,. An applicant for direct access must make out at least a prima facie case on the merits of the matter…,. Of course, predictably, the court will not be inclined to grant direct access to an applicant who is unlikely to be successful on the substantive issues raised as to do so would waste judicial resources. It should be also borne in mind that reasonable prospects of success are necessary for direct access to be granted but that good prospects are not, in themselves, a sufficient basis to be granted direct access.”…,.

As indicated earlier, the main application hinges on three issues;

(i) The first is whether the former President's resignation was done under duress.

(ii) The second is whether the impeachment process against him was instituted at the behest of the military. In particular, the applicants alleged that the impeachment proceedings were a direct result of “Operation Restore Legacy.”

(iii) The third issue is whether the assumption by the first respondent of the office of President was unconstitutional.

The applicants failed to make out a prima facie case on the merits of each of the issues.

The applicants made assertions of the facts which the fourth respondent denied. Consistent with the general rule that the person who makes an affirmative assertion of facts which are not self-evident must prove them, the onus was on the applicants to prove the facts they asserted. Nyahondo v Hokonya and Ors 1997 (2) ZLR 457 (S)…,.

The Court turns to show that the applicants had no factual basis for the allegations they made on each issue.

The applicants have approached this Court under section 85(1) of the Constitution in their own interests as citizens of Zimbabwe and as members of Parliament and of the Parliamentary Legal Committee (the PLC). They aver, on this basis, that their locus standi is beyond dispute….,.

Locus Standi of the Applicants

The second respondent contests the legal standing of the applicants in instituting this application on the basis that they both participated in the process of enacting the impugned Bill. They had called for a division on the Bill in the National Assembly and had lost that vote. Thus, so it is argued, the decision that they seek to overturn is also their decision and they cannot challenge their own process. They therefore have no standing to attack legislation that they themselves were involved in passing.

In Doctors for Life International v Speaker of the National Assembly & Ors 2006 (6) SA 416 (CC)…, NCGOBO J recognised the need to find a proper balance between avoiding improper intrusions into the domain of Parliament and ensuring that Constitutional provisions are sufficiently justiciable so as not to be rendered nugatory. The latter consideration, in my view, behoves this Court to adopt a liberal and generous approach to locus standi in matters involving constitutional rights and obligations. This is so notwithstanding the constitutional and statutory independence enjoyed by Parliament in the control of its own affairs.

See Smith v Mutasa N.O. & Anor 1989 (3) ZLR 183 (SC)…,.; See also Mudzuru & Anor v Minister of Justice, Legal and Parliamentary Affairs N.O. & Ors CC12-15…, where this Court, per MALABA DCJ…, eschewed the narrow traditional conception of locus standi in favour of a broad and generous approach to standing in Constitutional matters.

In casu, both applicants are not only citizens of Zimbabwe but also members of Parliament. They have a general right, qua citizens, to be involved in the proceedings of Parliament. They also have a specific and special right, qua members of Parliament, to ensure that parliamentary procedures are duly adhered to and that constitutional obligations are not flouted, particularly where they relate to the passage of proposed legislation. This is clearly recognised by section 119(1) of the Constitution which enjoins Parliament, and, by necessary implication, its constituent members, to protect the Constitution and to promote democratic governance in Zimbabwe.

In my view, the applicants have an unquestionable right, both as citizens and as legislators, to vindicate any perceived violation of the Constitution. The fact that they only participated in the challenged proceedings under protest means that they cannot be held to have waived their right to approach this Court for appropriate relief. In any event, any such alleged waiver cannot be lightly presumed given the overarching supremacy of the Constitution and the invalidity of any law, practice, custom or conduct inconsistent with the Constitution.

In short, there can be no doubt that the applicants are endowed with ample locus standi to institute this application.

Jurisdiction of the Court

The present application has been mounted in terms of section 167(2)(d) of the Constitution. As is expressly stipulated in that provision, this Court is endowed with exclusive jurisdiction to determine whether the President or Parliament has failed to fulfil a Constitutional obligation.

Counsel for the applicants submits that the merits of the matter have no bearing on whether a constitutional question has been raised to found the jurisdiction of this Court. All that the applicants need to do is to demonstrate the existence of a constitutional obligation and to allege that the obligation in question has not been fulfilled. The merits of the application fall into an entirely different sphere. In this regard, section 167(2)(d) does not differentiate between procedural and substantive obligations.

Counsel for the second respondent accepts that the applicants have raised a constitutional question. He contends, however, that it does not fall within the exclusive jurisdiction of this Court. The applicants have challenged the manner in which the impugned Local Government Amendment Act No.8 of 2016 was passed. Relying on pronouncements in King & Ors v Attorneys Fidelity Fund Board of Control & Anor 2006 (1) SA 474 (SCA)…, to the effect that procedural requirements that are prerequisites to validity do not impose constitutional obligations. Counsel for the second respondent submits that the manner of enacting legislation falls within the doctrine of legality in relation to which the High Court enjoys review jurisdiction. It is therefore that court that the applicants should have approached in the first instance.

What must be determined in order to found the jurisdiction of this Court is whether the proceedings in casu raise a constitutional question within the exclusive jurisdiction of the Court.

The first aspect is not disputed.

The applicants allege that three specific constitutional obligations were breached in the passage of the impugned legislation:

(i) The Bill in question was not gazetted;

(ii) The Bill was not examined by the Parliamentary Legal Committee (the PLC); and

(iii) There was no public participation, as required by the Constitution, before the Bill was passed by Parliament.

There can be no doubt that these are constitutional questions pertaining to the fulfilment or otherwise of Constitutional requirements.

The next critical aspect is whether these constitutional questions fall within the exclusive jurisdiction of this Court. Do they revolve around the fulfilment of purely procedural requisites that are susceptible to the review jurisdiction of the High Court or possibly the Supreme Court, and, therefore, outside the sole domain of this Court? Or do they concern the failure to fulfil Constitutional obligations within the contemplation of section 167(2)(d) of the Constitution so as to render them amenable to the exclusive jurisdiction of this Court?

In King & Ors v Attorneys Fidelity Fund Board of Control & Anor 2006 (1) SA 474 (SCA), which is strenuously relied upon by counsel for the second respondent, the Supreme Court of Appeal drew a clear distinction between procedural pre-requisites and Constitutional duties. The court contrasted:

“Legal limitations that arise from procedural pre-requisites and from other limitations of legislative power with those that derive from the imposition of duties.”…,.

In Doctors for Life International v Speaker of the National Assembly & Ors 2006 (6) SA 416 (CC), the Constitutional Court of South Africa was seized with the complaint that, during the legislative process leading to the enactment of certain health legislation, the National Council of Provinces and the provincial legislatures did not comply with their Constitutional obligations to facilitate public involvement in their legislative processes. The court proceeded…, on the premise that the phrase “a constitutional obligation” in section 167(4)(e) of the Constitution, the equivalent of our section 167(2)(d), should be given a narrow meaning. In any event, only the Constitutional Court could intrude into the domain of Parliament. As was held per NCGOBO J:

“The principle underlying the exclusive jurisdiction of this Court, under section 167(4), is that disputes that involve important questions that relate to the sensitive areas of separation of powers must be decided by this Court only. Therefore, the closer the issues to be decided are to the sensitive area of separation of powers, the more likely it is that the issues will fall within section 167(4). It follows that where a dispute will require a court to decide a crucial political question, and thus intrude into the domain of Parliament, the dispute will more likely be one for the exclusive jurisdiction of this Court.” [at paragraph 24].

“A review by a court of whether Parliament has complied with its obligation under section 72(1)(a) calls upon a court to intrude into the domain of a principal legislative organ of the State. Under our Constitution, this intrusion is reserved for this Court only.” [at paragraph 26].

“A construction of section 167(4)(e) which gives this Court exclusive jurisdiction to decide whether Parliament has complied with its constitutional obligation to facilitate public involvement in its legislative processes is therefore consistent with the principles underlying the exclusive jurisdiction of this Court. An order declaring that Parliament has failed to fulfil its Constitutional obligation to facilitate public involvement in its legislative process and directing Parliament to comply with that obligation constitutes judicial intrusion into the domain of the principle [sic] legislative organ of the State. Such an order will inevitably have important political consequences. Only this Court has this power.” [at paragraph 27].

“The question whether Parliament has fulfilled its obligation under section 72(1)(a) therefore requires this Court to decide a crucial separation of powers question and is manifestly within the exclusive jurisdiction of this Court under section 167(4)(e) of the Constitution.” [at paragraph 28].

I now turn to the relevant provisions of the Constitution of Zimbabwe.

Section 139(1) deals with the regulation of the proceedings of the Senate and the National Assembly by Rules known as Standing Orders. In terms of section 139(2) of the Constitution:

“Standing Orders may provide for -

(a) The passing of Bills;

(b)…,.;

(c)…,.;

(d)…,.;

(e)…,.;

(f)…,.; and

(g) Generally, the regulation and orderly conduct of business and proceedings in and between the Houses.”

The broad objectives of Standing Orders are lucidly spelt out in section 139(3) as follows:

“The procedures and processes of Parliament and its committees, as provided for in Standing Orders, must promote transparency, must encourage the involvement of members of all political parties in Parliament and the public, and must be fair and just.”

Section 141 of the Constitution makes provision for public access to and involvement in Parliament. It declares that:

“Parliament must -

(a) Facilitate public involvement in its legislative and other processes and in the processes of its committees;

(b) Ensure that interested parties are consulted about Bills being considered by Parliament, unless such consultation is inappropriate or impracticable; and

(c) Conduct its business in a transparent manner and hold its sittings, and those of its committees, in public, though measures may be taken -

(i) To preserve order in parliamentary proceedings;

(ii) To regulate public access, including access of the media, to Parliament and its committees;

(iii) To exclude the public, including the media, from sittings of committees; and

(iv) To provide for the searching of persons, and, where appropriate, the refusal of entry to Parliament or the removal of any person from Parliament;

but those measures must be fair, reasonable and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.”

Section 152 of the Constitution governs the formation, composition and functions of the Parliamentary Legal Committee (the PLC). In terms of section 152(3)(a):

“The Parliamentary Legal Committee must examine…, every Bill, other than a Constitutional Bill, before it receives its final vote in the Senate or the National Assembly…, and must report to Parliament…, whether it considers any provision in the Bill…, contravenes, or, if enacted, would contravene any provision of this Constitution.”

Having regard to the decisions in King & Ors v Attorneys Fidelity Fund Board of Control & Anor 2006 (1) SA 474 (SCA) and Doctors for Life International v Speaker of the National Assembly & Ors 2006 (6) SA 416 (CC), I have no doubt that the obligation of Parliament to secure public access to and involvement in its legislative and other processes, as enjoined by section 141 of the Constitution, is not merely a procedural prerequisite pertaining to form and manner. Rather, it is a substantive Constitutional obligation within the contemplation of section 167(2)(d) which is fundamental to the lawful passage of every legislative enactment. It is a constitutional duty that must be complied with by Parliament in a fair, reasonable and justifiable manner.

By the same token, the duty vested in the Parliamentary Legal Committee (the PLC), by the peremptory provisions of section 152(3), to examine every Bill, for the purpose of considering whether it contravenes or would, if enacted, contravene any provision of the Constitution, is not a mere procedural pre-requisite. In my view, it is a critical substantive obligation imposed upon the Parliamentary Legal Committee (the PLC) to ensure that Parliament is fully apprised of any Constitutional defect in proposed legislation to enable it to rectify such defect in order to secure due conformity with the Constitution.

Similarly, while it might be argued that the requirements of Standing Orders made under section 139 are primarily designed to regulate the procedural aspects of parliamentary business, I do not think that they are solely concerned with purely procedural matters. Insofar as they regulate the gazetting of Bills and the attendant dissemination of proposed legislation in pursuit of participatory democracy, they implicate the involvement of all political parties represented in Parliament as well as the general public, as is explicitly recognised in section 139(3). They therefore necessarily impact upon the Constitutional obligations envisaged in section 141.

In the premises, I am satisfied that the three constitutional questions raised for determination in this matter call for the adjudication of primarily political questions that intrude into the domain of Parliament and thus impinge upon the separation of powers between the judiciary and the legislature.

Accordingly, I take the view that these questions relate to the fulfilment of Constitutional obligations that are subject to the exclusive jurisdiction of this Court within the contemplation of section 167(2)(d) of the Constitution.

Whether the application is properly before the Court

The respondents took several points in limine including that the application filed by the applicant was not properly before the Court. This was because, although filed within seven days, as is stipulated by section 93 of the Constitution, the application was served on the respondents on the eighth day in violation of Rule 23(2) of the Rules of the Constitutional Court 2016 (“the Rules”).

The Constitution does not refer to week days but days. This is to be taken to mean seven calendar days and includes Saturdays and Sundays.

In terms of Rule 23(2) of the Constitutional Court Rules, 2016, the application shall be lodged with the Registrar and shall be served on the respondent within seven (7) days of the declaration of the result of that election.

The first respondent was declared the duly elected President on 3 August 2018. In terms of section 93(1) of the Constitution as read with Rule 23(2) of the Constitutional Court Rules, the applicant had until 10 August 2018 to file and serve the application on the respondents.

The applicant appears to have been cognizant of the reckoning of days and time limitations prescribed by the Constitution and waited until the last day to file his application shortly before close of the Constitutional Court Registry on 10 August 2018.

He was entitled by law to do so.

Having done so, the applicant was then faced with a further obligation to serve the process on all the respondents on the same day. The applicant could only do so through the Sheriff of Zimbabwe in terms of Rule 9(7) of the Constitutional Court Rules.

The applicant indicates that he did so. The Sheriff had until 10pm that same evening to effect service in compliance with the Rules. The affidavits submitted by the respondents show that the applicant had, in fact, attempted service in his own capacity and without assistance of the Sheriff on 10 August 2018.

It is common cause that the application was eventually served on the respondents on 11 August 2018, outside of the timeframes stipulated in the Constitution and contrary to the provisions of the Constitutional Court Rules.

The same limitation applied to the respondents who were served with the application on Saturday 11 August 2018. The notices of opposition would have been due within three days from that date being 14 August 2018.

In terms of section 336(2) of the Constitution of Zimbabwe:

“Subject to this Constitution, whenever the time for doing anything in terms of this Constitution ends or falls on a Saturday, Sunday or public holiday, the time extends to and the thing may be done on the next day that is not a Saturday, Sunday or public holiday.”

The dies induciae having expired on 14 August 2018, a public holiday in Zimbabwe, the notices of opposition both had to be filed on the next business day thereafter, being 15 August 2018. They were duly and properly lodged with the Registrar in terms of the law.

The applicant clearly breached the Rules of the Court and filed a defective application.

However, due to the importance of the matter and the public interest, the Court has the power to condone the non-compliance with the Rules in the interests of justice. An application for condonation of this non-compliance, albeit opposed by the respondents, was made for the applicant.

This Court is prepared to, and does, grant the application due to the importance of the matter and the public interest involved.

The Constitutional argument was.., not raised properly in terms of the procedures laid down for that purpose.

A referral to the Constitutional Court is provided in section 175 of the Constitution which states that -

“If a Constitutional matter arises in any proceedings before a court, the person presiding over that court may and, if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request is merely frivolous or vexatious.”

Counsel for the respondents submitted that there is no matter before me for referral to the Constitutional Court. This is because a provisional order has already been granted. The applicants can only make such a request on the return date.

On the other hand, counsel for the applicants submitted that the court is still seized with such a matter and can make such a referral. He further submitted that the court retains the right to regulate its own process….,.

At the time of hearing the present application, I was not presiding over proceedings in HC2259/15.

One only has to look at the words; “If a constitutional matter arises in any proceedings before a court, the person presiding over that court may, and, if so requested by any party to the proceedings…,.”

The relief that was granted in HC2259/15 awaits confirmation or discharge on the return date. The applicants may exercise their right to request a referral on that occasion.

Alternatively, the applicants are not precluded from making a direct application to the Constitutional Court….,.

This is a chamber application for leave for direct access to the Constitutional Court (“the Court”) in terms of Rule 21 of the Constitutional Court Rules, S.I.61 of 2016 (“the Rules”). The applicant intends to file the main application with the Court should leave for direct access be granted….,.

The question is whether the validity of a decision of the Supreme Court, in a case involving a non-constitutional matter, can be challenged on the ground that it has infringed a fundamental right or freedom enshrined in Chapter IV of the Constitution.

Does a litigant have a right, under section 85(1) of the Constitution, to approach the Court for appropriate relief, alleging infringement of a fundamental right or freedom by a decision of the Supreme Court in a case not involving a Constitutional matter?

The question has arisen because section 169(1) of the Constitution and section 26(1) of the Supreme Court Act [Chapter 7:13] (“the Act”) are to the effect that a decision of the Supreme Court, on a non-Constitutional matter, is final and not appealable.

On 16 July 2015, the applicant filed an application in the High Court for leave to institute a class action in terms of section 3 of the Class Actions Act [Chapter 8:17]. The application was dismissed on 19 January 2017.

The applicant accepts that the judgment of the High Court was based on the finding that the pending case it had against the first respondent constituted a bar to the application. The only question before the High Court was whether a party with a pending case before a court can institute a class action on the same cause without withdrawing the pending case. It was a question of law which the High Court answered in the negative.

In dismissing the application, the High Court said, at pages 5-6 of the cyclostyled judgment number HH35-17:

“Taking such a position cannot be correct because the applicant herein is the one that instituted the earlier proceedings to protect its interests. It should have occurred to the applicant that it is not the only one in this predicament and not proceeded on its own. Alternatively, withdrawal of proceedings may have been ideal if it then intended to apply for Class Action. The applicant is the driver of that process. The applicant has to decide what it is it wants. The applicant's initial case is in limbo whilst it chases other persons' interests. Indeed, the law allows the good and concerned to institute class actions, but, given the applicant's circumstances, it is not the court's view that the applicant can be allowed another bite at the cherry. It seems the applicant, by making this application, wants to draw others to its cause. This, in other words, would be an attempt at joinder proceedings via the back door. The courts cannot be clogged by matters by the same entity, pertaining to the same respondent, on a similar matter where a decision can clarify an issue and put (an) end to the legal point. The applicant's case, pertaining to breach of contract by the respondent, is still before the court. In my view, the decision that the court will make will be binding in similar cases where the facts point to breach of contract arising out of failure to provide loan amounts agreed to despite paying the requisite facility fees. Thus, if the applicant succeeds in its initial claim, those that the applicant seeks to protect would derive legal benefit from the precedence set.

It lies within the court's discretion to grant leave sought. I am not satisfied that the applicant's circumstances warrant the granting of leave sought. It is due to the aforegoing reasons that leave to institute Class Action is denied.”

The applicant appealed against the judgment of the High Court on 7 February 2017. The Supreme Court dismissed the appeal on 11 July 2017.

The applicant says it was “shocked” to hear the Supreme Court conclude, in an ex tempore judgment, that the High Court had resolved the application on the merits.

The applicant accepts that the decision of the Supreme Court is on the sole issue that was for its determination. The legal basis of its alleged dis-satisfaction with the decision is not clear.

The applicant, nonetheless, states that the Supreme Court went beyond the “mistakes of law it is permitted to make”. According to it, the decision of the Supreme Court is so “outrageous” that no reasonable court can make such a decision. The complaint is that “the Supreme Court cannot hide behind its status as a final court of appeal while making determinations that are outrageous in their defiance of acceptable canons of legal reasoning”. The contention is that the Supreme Court misconstrued the appeal. In the founding affidavit, the applicant avers that:

”12. Where a court makes a determination so wrong that no reasonable court, applying its mind to the facts and the law, could ever have made such a determination, the right to protection of the law is infringed.”

The applicant states, further, that it is bothered by the question whether the Supreme Court is free to make “outrageously wrong decisions” on non-constitutional matters merely because it is the highest court of appeal in such cases. The applicant further contends that the Supreme Court is not supreme. It is the Constitution which is supreme. As such, where the Supreme Court makes a decision that infringes a fundamental right or freedom an application for redress ought to lie to the Court under section 85(1) of the Constitution.

Section 85(1) of the Constitution provides:

“85 Enforcement of fundamental human rights and freedoms

(1) Any of the following persons, namely-

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests, of a group or class of persons;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members;

is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”

The relief sought in the main application intended to be filed, should leave for direct access be granted, is of an order in the terms that:

“IT IS DECLARED:

1. That the applicant's right to equal protection of the law, enshrined in section 56(1) of the Constitution of Zimbabwe, was infringed by the Supreme Court of Zimbabwe, sitting at Harare on 11 July 2017, in the matter of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Limited, SC45/17 in that the Supreme Court completely misconstrued the appeal before it.

2. That the applicant's right to a fair hearing, enshrined in section 69(2) of the Constitution of Zimbabwe, was infringed by the Supreme Court of Zimbabwe, sitting at Harare on 11 July 2017, in the matter of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Limited SC45/17 in that the Supreme Court completely misconstrued the appeal before it.

ACCORDINGLY, IT IS ORDERED:

3. That the judgment of the Supreme Court, in SC45/17, be and is hereby declared null and void and of no force and effect and is set aside. That the Registrar of the Supreme Court be and is hereby directed to set down for hearing, before a differently constituted panel of judges, the appeal in SC 45/17.”

The applicant accepts that the judgment of the Supreme Court cannot be appealed against. The founding affidavit states in part:

“There is no other remedy. This is because the Supreme Court is the final court of appeal in matters not raising Constitutional issues. There was no Constitutional matter in SC45/17. So there is no room for appeal.”

The applicant did not attempt to show that the utterances made by the Supreme Court show that it failed to act in terms of the objective standards prescribed by the procedural and substantive laws governing the proceedings before the court. There was nothing in the founding affidavit in support of the application for direct access suggesting that, because of the alleged utterances, the Supreme Court disabled itself from making a decision on the non-Constitutional matter.

The words used by the applicant in the founding affidavits, in support of the main application intended to be filed with the court and the application for leave for direct access, show that the applicant is disgruntled with the decision of the Supreme Court. The reason is that the appeal upheld the decision of the High Court on the non-Constitutional matter before it.

The application for direct access is opposed by the first respondent.

The first respondent argued that it is in the interests of justice to have finality to litigation of disputes brought on appeal to the Supreme Court. The contention was that the Court should not be turned into a third tier Appellate Court. It further argued that the applicant was afforded a chance to be heard by the Supreme Court. There is no basis for the claim of an infringement of the right to a fair hearing.

The first respondent avers that the decision of the Supreme Court is constitutional and did not breach any of the fundamental rights the applicant alleges it infringed. The contention is that whatever language the applicant chooses to express its grievance against the judgment it does not alter the fact that the Supreme Court upheld the decision of the High Court on a non-Constitutional matter.

The fact of the filing of the application for leave for direct access and reference to the main application intended to be filed show that the applicant believes that it has a right, under section 85(1) of the Constitution, to approach the Court for appropriate relief, alleging that the decision of the Supreme Court infringed its fundamental right to equal protection of the law and to a fair hearing.

Consideration of the relevant constitutional provisions supports the view that the validity of a decision of the Supreme Court, in proceedings involving non-Constitutional matters, may be challenged on the ground that it has infringed a fundamental right or freedom enshrined in Chapter IV of the Constitution. The basis of the right of a party to the proceedings to challenge the validity of a decision of the Supreme Court in the circumstances is the Constitution itself. The right given to a litigant, under section 85(1) of the Constitution, to approach the Court for appropriate relief on the allegation stated, is correlative to the constitutional obligation imposed on the Supreme Court as a body exercising public authority.

The Constitution provides, in section 2(1), that any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency. Conduct is inconsistent with the Constitution when it violates any of its operative provisions.

Considering that the Constitution is the supreme law of the land, it follows that any conduct, including a decision of the Supreme Court, which has the effect of infringing a fundamental right or freedom enshrined in Chapter IV of the Constitution would be inconsistent with the Constitution and therefore invalid. The broad statement of principle recognises acceptable limitations to derogable fundamental rights and freedoms to achieve legitimate objectives.

Respect for fundamental rights and freedoms is one of the foundational values and principles set out in section 3 of the Constitution. It is a foundational value which must be upheld by any body exercising public authority. Section 3 of the Constitution sets out the objective principles which underscore the importance of fundamental human rights and freedoms and the mechanisms for their protection in the exercise of power under public or private law. What is done in terms of the provisions of the Constitution is supposed to uphold and give effect to the foundational values and principles of the Constitution.

Section 44 of the Constitution makes specific provision for the protection of fundamental rights and freedoms enshrined in Chapter IV. It provides that the State and every person, including juristic persons and every institution and agency of the Government, at every level, must respect, protect, promote and fulfil the fundamental rights and freedoms set out in Chapter IV. The obligation carries with it the duty not to infringe the fundamental rights or freedoms concerned.

The constitutional obligation to protect fundamental rights and freedoms, in its general application, binds the Supreme Court in the exercise of judicial power in a case involving non-constitutional matters. Respect for and protection of fundamental rights and freedoms is everyone's duty. In other words, fundamental human rights and freedoms are not just defenses against State authority. They are also objective values and principles to be adhered to as acceptable standards of behaviour in social, economic and political relations.

Section 45(1) of the Constitution puts the matter of the obligation on the Supreme Court to respect and protect fundamental rights and freedoms enshrined in Chapter IV in the context of the performance of its judicial function in the type of cases under discussion beyond any doubt. It expressly provides that Chapter IV “binds the State and all executive, legislative and judicial institutions and agencies of Government at all levels.”

Conduct which is an expression of a claim to public authority must be lawful. The decision of the Supreme Court must be lawful in the sense that it must be a decision on a non-constitutional matter.

The law of constitutional jurisdiction is contained in the specific provisions of the Constitution. According to this law, the constitutional jurisdiction aims to ensure the supremacy of the Constitution, the rule of law and protection of the fundamental human rights and freedoms amongst other values and principles set out in section 3 of the Constitution.

For the protection of the fundamental rights and freedoms and enforcement of the corresponding obligations to respect, protect, promote and fulfil them, the Constitution established identifiable remedies. It gave power to the courts, particularly the Constitutional Court, the Supreme Court and the High Court, to hear and determine constitutional matters. They include allegations of infringement of fundamental rights and freedoms.

The definition of a “constitutional matter” is that it is a matter involving an issue, the determination of which requires the interpretation, protection or enforcement of the Constitution. The nature and scope of the jurisdiction is not defined by reference to the subject the validity of which would be challenged. It is defined in terms of the obligation to protect and enforce the Constitution. The reason is that the subject the validity of which is challenged is the cause of the invocation of the mechanisms designed for the protection and enforcement of the foundational values and principles on which the Constitution and its order are based.

The Court is a specialised institution, specifically constituted as a Constitutional Court, with the narrow jurisdiction of hearing and determining constitutional matters only. It is the supreme guardian of the Constitution and uses the text of the Constitution as its yardstick to assure its true narrative force. It uses constitutional review predominantly, albeit not exclusively, in the exercise of its jurisdiction.

The specialisation of constitutional review is intended –

(a) To strengthen the protection of fundamental human rights and freedoms;

(b) To ensure the supremacy of the Constitution;

(c) To promote a modern and rational constitutional adjudication; and

(d) To favour an active constitutional decision-making process.

The Constitution gives any person who alleges infringement of a fundamental human right or freedom which adversely affected or affects his or her or its interests or the public interest the right to approach a court for appropriate relief.

The remedy of individual constitutional complaint, enshrined in section 85(1) of the Constitution, for the protection and enforcement of all of the fundamental rights and freedoms, is a simple and prompt procedural remedy. The essence of the remedy is the allegation of infringement of a fundamental right or freedom. The existence of fundamental human rights and freedoms influenced the choice of the procedure for their enforcement.

The right of access to the remedy created under section 85(1) of the Constitution is given to and reserved for a person who alleges that a fundamental right or freedom has been, is being or is likely to be infringed. The remedy is a means carefully designed for the achievement of the constitutional objective of ensuring respect for the foundational values and principles of the supremacy of the Constitution, the rule of law, and the fundamental rights and freedoms enshrined in Chapter IV of the Constitution.

The individual constitutional complaint against infringement of fundamental rights and freedoms is a procedure for constitutional review that is separate from but additional and complementary to the other constitutional remedies. These include referrals under section 175(4) of the Constitution; confirmation of orders of invalidity under section 175(3) of the Constitution; and the applications specified under sections 167(1)(b) and 167(2)(b), (c) and (d) of the Constitution.

The Constitution gives a comprehensive idea of justice.

The scope of the right to approach the Court for appropriate relief under section 85(1) of the Constitution is not limited by specific objects against which the allegations of infringement of a fundamental right or freedom can be made. A constitutional complaint provided for under section 85(1) of the Constitution can be lodged against any act of public authority. A decision of the Supreme Court, in a case involving a non-constitutional issue, would fall within the category of acts the constitutional validity of which may be challenged on the grounds prescribed under section 85(1) of the Constitution.

The Supreme Court is under the obligation, as the custodian of the Constitution, to protect fundamental rights and freedoms. It does so by enforcing, through appropriate adjudicatory processes, the obligations borne by others when exercising power under public or private law. It is itself under the constitutional obligation not to violate fundamental rights or freedoms when performing judicial functions in cases involving non-constitutional issues. In other words, the protection of the exercise of jurisdiction in non-constitutional matters is subject to due compliance with the obligation to protect fundamental rights or freedoms, the infringement of which would disable the Supreme Court from making a decision on the non-constitutional issue.

A party to a case involving a non-constitutional matter may approach the High Court or the Constitutional Court, alleging that the decision of the Supreme Court, in those proceedings, infringed his or her or its fundamental right or freedom and move the court for appropriate relief. The party has the right to make the allegation of infringement of his or her or its fundamental right or freedom.

The allegation made under section 85(1) of the Constitution, that a decision of the Supreme Court has infringed the fundamental right or freedom of the complainant in a case involving a non-constitutional issue, raises a constitutional matter. It does not mean that fundamental human rights are not implicated in a case involving a non-constitutional issue. They are. The difference is that infringement of a fundamental right or freedom is not alleged as the direct cause of action in a case involving a non-constitutional matter.

The matter in dispute which gives rise to the application under section 85(1) of the Constitution is the alleged infringement of a fundamental right or freedom by the decision of the Supreme Court in a case involving a non-Constitutional matter.

The only restrictive condition to the exercise of the right, apart from issues of locus standi, is that direct access to the Court would have to satisfy the admissibility requirements prescribed under Rule 21 of the Rules.

Rule 21 of the Rules requires that direct access to the Court, in terms of the procedure prescribed under section 85(1) of the Constitution, should be with leave of the Court or Judge. Accessibility of the Court is limited to cases where direct access is in the interests of justice.

Rule 21(3) of the Rules requires that an application for leave for direct access to the Court must show that it is in the interests of justice for the matter to be brought directly. The Rule provides that for the purpose of meeting the test the application should set out the following:

“(a) The grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b) The nature of the relief sought and the grounds upon which such relief is based; and

(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”

Rule 21(8) of the Rules provides that in determining whether or not it is in the interests of justice for a matter to be brought directly to the Court, the Court or Judge may, in addition to any other relevant consideration, take the following into account:

“(a) The prospects of success if direct access is granted;

(b) Whether the applicant has any other remedy available to him or her;

(c) Whether there are disputes of fact in the matter.”

The purpose of the admissibility requirements prescribed under Rule 21(3) and Rule 21(8) of the Rules is to ensure that only well-founded challenges to the constitutional validity of decisions of the Supreme Court in cases involving non-constitutional matters are brought directly to the Court.

The obligation on the Court to protect and enforce the Constitution includes the duty to give effect to remedies designed for the protection and enforcement of the fundamental human rights and freedoms enshrined in Chapter IV. There is no doubt that, in terms of the Constitution, the Court has the power to protect fundamental human rights and freedoms. The power to hear and determine a cause followed by the granting of an appropriate relief pre-supposes that those who have the causes falling within the jurisdiction of the Court have the right to approach the Court with their causes to be heard and determined.

Section 85(1) of the Constitution deliberately narrows the category of potential litigants to those persons who allege that a fundamental human right or freedom enshrined in Chapter IV has been, is being, or is likely to be infringed. The process inevitably involves adversarial litigation.

The recognition of the existence of the remedy under section 85(1) of the Constitution against decisions of the Supreme Court, in cases involving non-Constitutional matters, does not open floodgates to cases alleging infringement of fundamental rights or freedoms by the Supreme Court. The filtering mechanism for leave for direct access effectively prevents abuse of the remedy.

The Rules requiring leave for direct access ensure that the power of constitutional review is exercised by the Court in reviewable cases only.

The case law of the Court on the subject already supports the proposition advanced by counsel for the applicant that the remedy under section 85(1) of the Constitution is available for the protection of fundamental rights and freedoms against infringement by decisions of the Supreme Court in cases involving non-constitutional matters.

The case of Martin v Attorney-General 1993 (1) ZLR 153 (S) is authority for the general principle that a party to proceedings can approach the Court for appropriate relief on the allegation that the decision of the lower court violated his or her or its fundamental right to the equal protection of the law.

The relevance of the case lies in the fact that it shows the existence of a remedy in the former Constitution involving the exercise of original jurisdiction by the Supreme Court, sitting as a Constitutional Court, to protect and enforce fundamental rights and freedoms against infringement by judicial decisions.

See also: Catholic Commission for Justice and Peace v Attorney-General and Ors 1993 (1) ZLR 242 (S)…,.

In Matamisa v Mutare City Council (Attorney-General Intervening) 1998 (2) ZLR 439 (S), the Supreme Court, sitting as a Constitutional Court, proceeded on the basis that a party to proceedings could approach the Court directly in terms of section 18(1) of the former Constitution, alleging that a decision of the Supreme Court violated his or her or its fundamental right to the protection of the law. The Court accepted that it had original jurisdiction to hear and determine such an application. Upon consideration of the merits of the case, the Court held that the application was, in reality, a disguised appeal against a final judgment of the Supreme Court.

In Williams and Anor v Msipha and Ors 2010 (2) ZLR 552 (S), the Supreme Court, sitting as a Constitutional Court, acknowledged the fact that a party may challenge the constitutional validity of a judicial decision on the ground that it infringed his or her or its fundamental right to the protection of the law, enshrined in section 18(1) of the former Constitution. The Supreme Court said:

“The Constitution guarantees to any person the fundamental right to the protection under a legal system that is fair but not infallible. Judicial officers, like all human beings, can commit errors of judgment. It is not against the wrongfulness of a judicial decision that the Constitution guarantees protection….,.

It is the failure by the judicial officer to comply with the requirements of the protection provided by the law of the fundamental human right or freedom which results in the violation or likelihood of violation of the right or freedom against which the Constitution guarantees to the litigant the right to the protection of the law. It is, therefore, important in every case of an alleged violation by a judicial officer of a fundamental human right or freedom to understand what it is that the judicial officer was required by the law to do and what he did, in order to decide whether there was failure of judicial protection which caused a violation of the fundamental human right or freedom concerned.”…,.

In Prosecutor General Zimbabwe v Telecel Zimbabwe (Pvt) Ltd 2015 (2) ZLR 422 (CC), the applicant sought to approach the Court in terms of sections 167(1) and 176 of the Constitution. He sought an order setting aside a judgment of the Supreme Court directing him to issue a certificate of nolle prosequi to Telecel Zimbabwe (Pvt) Ltd.

No constitutional matter had been raised before the Supreme Court. The applicant approached the Court because he was dissatisfied with the judgment. He did not approach the Court in terms of section 85(1) of the Constitution.

The Court dismissed the application because the applicant had failed to establish the basis on which he sought to approach it directly seeking an order setting aside a Supreme Court judgment on a non-constitutional matter. One of the preliminary points on which the application was dismissed was that it was not brought in terms of “s85(1) or other constitutional provisions that provide for such direct approach.”

At p426B-C of the judgment, GWAUNZA JCC…, said:

“Direct applications to the Constitutional Court are to be made only in terms of the provisions referred to above, as well as in terms of and as provided for in s85(1). The specialised nature of the applications referred to in s167(1)(b) and s167(2)(b), (c) and (d), however, makes these provisions irrelevant to this case.

Therefore, the only way the applicant could have validly brought an application directly to this Court would have been in terms of s85(1). As conceded by his counsel, the applicant did not do so, but sought to rely on the two provisions mentioned.”

After quoting section 85(1) of the Constitution, HER LADYSHIP went on to say:

“What is clearly evident from this provision is that the relief sought and to be granted by the court, in terms of this section, must relate to fundamental rights and freedoms enshrined in the relevant Chapter - and nothing else. Such relief may include a declaration of the rights said to have been or about to be violated. The applicant did not allege that the right he alleges was violated by the Supreme Court was an enshrined fundamental right.”

The authorities show that the question whether a decision of the Supreme Court, in a case involving a non-constitutional issue has violated or is violating a fundamental right or freedom enshrined in Chapter IV of the Constitution, is a matter falling within the original jurisdiction of the Court. The question can be brought directly to the Court for determination in terms of section 85(1) of the Constitution when doing so is in the interests of justice.

The question whether direct access is in the interests of justice arises because the same question can be placed before a lower court sharing concurrent jurisdiction with the Court.

The fact that upon consideration of the merits an applicant fails to satisfy the requirements for leave for direct access to the Court does not mean that he or she or it had no right to approach the Court alleging that the decision of the Supreme Court has violated his or her or its fundamental right or freedom. The right to approach the Court is a constitutional right not dependent on the strength of the merits of the application.

Recognition of the availability of the remedy under section 85(1) of the Constitution against a decision of the Supreme Court, which allegedly violated or is violating a fundamental right or freedom, gives effect to the inner unity of the values forming the basis of the constitutional order characteristic of a democratic society. The principle of finality, enshrined in section 169(1) of the Constitution, as read with section 26 of the Supreme Court Act [Chapter 7:13], does not protect a decision of the Supreme Court from constitutional review when the allegation is that it has violated or is violating a fundamental right or freedom and direct access to the Court is in the interests of justice. To hold otherwise would undermine the supremacy of the Constitution and the rule of law as foundational values and principles of the constitutional order.

The fact that a decision of the Supreme Court is the subject, the validity of which is challenged, cannot be a reason for claiming that a party cannot approach the Court in terms of section 85(1) of the Constitution, alleging that the decision has violated or is violating his or her or its fundamental right or freedom. The cause of action is the alleged infringement of the fundamental right or freedom which the Court is under the constitutional obligation to protect.

There is no exclusion of decisions of the Supreme Court in cases involving non-constitutional issues from the individual constitutional complaint system enshrined in section 85(1) of the Constitution. Constitutional rights conferred without express limitation should not be cut down by reading implicit limitations into them.

What is of importance is not the nature of the object against which the complaint of constitutional invalidity is made. It is the kind of effect the matter is alleged to have had or to be having on the fundamental right or freedom concerned that determines the cause of action. In other words, the determinant juristic fact is the alleged infringement on the fundamental right or freedom as the prohibited effect, as opposed to the effect of promotion of the right or freedom concerned. So the decision of the Supreme Court becomes a subject of the exercise of the right to approach the Court for relief in terms of section 85(1) of the Constitution by reason of the allegation that it has infringed or is infringing a fundamental right or freedom enshrined in Chapter IV of the Constitution.

It is important to emphasise the fact that the right to approach the Court, the procedure to be followed, and the grounds on which the right is to be exercised, are provided for by the Constitution itself.

The Constitution itself has restricted the right to approach the Court directly under section 85(1) of the Constitution to the vindication of fundamental rights or freedoms no matter the source of the infringement of the right or freedom concerned. The Constitution binds the Court to recognise the right and its exercise in the manner prescribed - provided the requirements for leave for direct access are met. To take no notice of the right would be a breach by the Court of its obligation to protect fundamental rights and freedoms enshrined in Chapter IV of the Constitution.

Section 85(1) of the Constitution enables the Court to perform its obligation under the Constitution. It gives effect to the principle of accountability in terms of which, where there is an allegation of infringement of a fundamental right or freedom, the judicial process is available to investigate the complaint and redress the infringement - if proved.

It is clear from the consideration of the objective for the establishment of the remedy under section 85(1) of the Constitution that the possibility of an individual having direct access to the Court for the protection of fundamental rights and freedoms is consistent with the general spirit of the Constitution, which strongly affirms the central role of human dignity and fundamental rights and freedoms.

Counsel for the applicant took the view that in an application for direct access all one needed to do was to allege the violation of a constitutional right. The applicant asserted that the mere alleging of infringement of a constitutional right means a constitutional matter has been raised for jurisdictional purposes.

Counsel for the applicant buttressed the contention by reference to Meda v Sibanda & Ors 2016 (2) ZLR 232 (CC) where…, the Court said:

“It is clear from a reading of s85(1) of the Constitution that a person approaching the Court in terms of the section only has to allege an infringement of a fundamental human right for the Court to be seized with the matter. The purpose of the section is to allow litigants as much freedom of access to courts on questions of violation of fundamental human rights and freedoms with minimal technicalities.”

The institution of an application for leave for direct access to the Court presumes that there is a constitutional matter over which the Court has concurrent jurisdiction with a lower court. The purpose of the application would be to show that it is in the interests of justice that the constitutional matter concerned be heard and determined by the Court directly as the court of first and final instance.

The parties proceeded on the basis of the existence of the constitutional question; which is whether the decision of the Supreme Court, in the case involving the non-constitutional matter, infringed the applicant's fundamental rights to equal protection of the law and to a fair hearing.

This is an application brought in terms of section 85(1) of the Constitution of Zimbabwe (hereinafter called 'the Constitution'). The applicants seek an order declaring the employment of serving members of the security services, as prosecutors, to be unconstitutional....,.

Section 85(1) of the Constitution, in terms of which the applicants brought this application, provides as follows:

“85 Enforcement of fundamental human rights and freedoms

Any of the following persons, namely:-

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests, of a group or class of persons;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members;

is entitled to approach a court alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”…,.

The applicants.., submit that the employment of serving members of the security services, as prosecutors, is a threat to the right of accused persons to a fair trial as the independence of the officers is not guaranteed.

The first applicant is the Zimbabwe Law Officers Association, an un-incorporated voluntary organization, governed by its constitution (hereinafter referred to as the Association). The Association represents the interests of public prosecutors in Zimbabwe. The Association is represented, in the application, by its Secretary General, Derek Charamba, who is a Public Prosecutor. He is also the second applicant….,.

Although counsel for the respondents had raised, as a point in limine, that the applicants were not properly before the Court, they conceded that the matter is of public importance calling for resolution on the merits.

I agree with this approach….,.

It seems to me that, even though the applicants had made a two-pronged argument before the court and argued that their fundamental rights had been infringed, I am of the view that for the purpose of disposing of the application it is not necessary to delve into the question of whether or not the applicant's rights have been violated. I take this view as it is apparent from the facts of this case that the applicants have not shown that their fundamental rights have been infringed. The first applicant does not represent rights of accused persons as it is an association to protect the interests of prosecutors. The second applicant is a public prosecutor not an accused person. He does not have the mandate to represent accused persons.

In this respect, I find comfort in Herkpoort Environmental Preservation Society & Another v Minister of Land Affairs 1998 (1) SA 349 (CC) where the Constitutional Court of South Africa held that there may be cases where the circumstances are so exceptional, and in the public interest or good governance, or are of such overriding importance that the Court may decide not to be detained by procedural irregularities and grant access to the parties. Although the court in Herkpoort Environmental Preservation Society & Another v Minister of Land Affairs 1998 (1) SA 349 (CC) was dealing with a question of disputes of facts, I am of the view that the basic principle is applicable to the facts of this case. A similar approach was adopted in the Kenyan case of Westmond Power (K) Ltd v Commissioner of Income Tax Nairobi (Nairobi Civil Appeal No.28/06).

THE ISSUE

Whether the matter was properly referred to this Court

The matter came before this Court as a purported referral in terms of section 175(4), which provides as follows:

“(4) If a constitutional matter arises in any proceedings before a court, the person presiding over that court may, and if so requested by any party to the proceedings, must, refer the matter to the Constitutional Court unless he or she considers the request is merely frivolous or vexatious.”…,.

The 'proceedings' before the court a quo, at the time the application for referral was made, consisted only of the founding papers related to the respondent's application for eviction of the applicants in casu. Without any opposing papers having been filed, the court was presented with an application, which it entertained and granted, for referral of certain questions to this Court. The question as to what constitutes 'proceedings' for purposes of section 24(2) of the former constitution (section 175)(4) of the current Constitution) was authoritatively answered in Tsvangirai v Mugabe & Anor 2006 (1) ZLR 148 (S)…, where the court held as follows:

“Section 24(2) of the Constitution only applies when there is a question arising in the proceedings in the High Court or in the court subordinate to the High Court….,. The words “in any proceedings in the High Court” mean proceedings that have come to be or have been instituted in the High Court…,. There are proceedings in being in the High Court from the moment an action is commenced or an application made until termination of the matter in dispute, or withdrawal of the action or application.”

When the above is applied to the circumstances of this case, and by parity of reasoning, there can be no doubt that the questions referred to this Court properly arose during proceedings in the court a quo. What remains to be determined is whether or not the magistrate should have referred the matter to this Court at all.

The applicants were faced with an application for their eviction. In terms of laid down procedure they ought to have opposed that application in the manner prescribed in the Magistrates' Court Rules. They ought, in particular, to have filed an affidavit in opposition to the application in terms of Order 22 Rule 2 subrule 3(b) of the Magistrates' Court Rules which provides as follows:

“Statement in response to application

(1) The respondent may, not less than forty-eight hours before the time stated in such application, deliver a statement in writing in which he either -

(a) Consents to the order mentioned in the application; or

(b) Opposes the granting of such order.

(2) Where the respondent consents to the order -

(a) The order shall be deemed to be granted from the time mentioned in the application;

(b) It shall not be necessary for either party to appear.

(3) Where the respondent opposes the order, his statement shall -

(a) Set out the grounds on which he opposes the order;

(b) If he denies the facts set out in the application or seeks to place additional facts before the court, be supported by affidavit.”…,.

The applicants clearly wished to deny the facts set out in the application for eviction and to place additional facts before the court. They were therefore required to lay out the factual basis for their defence in an opposing affidavit and thereafter request the magistrate to refer an identified constitutional question arising therein to this Court. At that stage, it would have been shown that the determination of the constitutional question would be the basis of their defence to the application for eviction in the Magistrates' Court.

This they did not do. For this reason, the basis for the referral was not apparent on the papers before the court.

A perusal of the presiding magistrate's ruling shows that she did not make any findings of fact in referring the matter to this Court. That is a serious misdirection. A constitutional question does not arise in a vacuum. It is an issue that arises from the facts of a particular matter. Put differently, for the court to find that there is a constitutional matter that warrants a referral to this Court, the question must arise from the facts before the referring court. This is particularly important considering that there are many instances where an analysis of the facts would make it palpably apparent that no constitutional matter would have arisen. Factual findings and their relevance to the alleged constitutional violation are crucial in the determination of whether the request for referral is frivolous or vexatious. In Martin v Attorney-General & Anor 1993 (1) ZLR 153 (SC)…, the court had the following to say:

“Faced with the request to refer the question raised on the applicant's behalf to the Supreme Court, the magistrate had no option but to act in accordance therewith, unless of the opinion that the question was, as characterised in section 24(2) of the Constitution, 'merely frivolous or vexatious.' In order to be satisfied that it was not he obviously had to consider, to some extent, the merits of the argument.”…,.

The applicants categorically stated, in their ill-conceived application, that they were employed by Mr Van Resberg and that they were given accommodation at the farm on the basis of such employment. They alleged that their employment had not been terminated hence they could not be evicted from the farm. In this respect, the applicants stated that they were employed by Mr Van Resberg and not the farm.

Before referring the matter to this Court, the magistrate ought to have satisfied herself that there was indeed a relationship between the farm and the applicants. In the applicants' papers before the court a quo, it was common cause that the applicants were employed by the farmer as farm labourers. No attempt was made by the magistrate to establish the relationship between the applicants, the land, and Mr Van Resberg before determining the application, in order to understand and contextualise the request for referral. Had the magistrate made the effort to call evidence on the required facts, and to make specific findings of fact in that respect, it would have been apparent that the only claim that the applicants had to the land was through their employment with Mr Van Resberg. Since Mr Resberg had ceased to occupy the farm, it fell to reason that such employment had come to an end.

The magistrate, therefore, ought to have, on this basis, considered whether there was any basis for referral of the matter to this Court. The applicants had, under the law applicable, lost the right to continue staying on the farm. In this regard, the findings of the Court in Dhlamini and Another v The State CC01-14 become apposite.

It found, in part:

“Section 24(2) of the Constitution clearly precludes a situation where the question is referred to the Supreme Court in respect of a matter which is no longer necessary for resolution by the lower court in the determination of the dispute before it. If that were to be permitted it would mean that the Supreme Court would not be rendering a decision on the question as a court of first instance in the exercise of original jurisdiction. It was no longer necessary for the High Court to place the applicants on remand and ipso facto to consider whether or not placing them on remand was likely to violate their right to personal liberty, the decision to place the applicants on remand having already been made by the Magistrates' Court. The applicants were before the High Court for trial on the basis of the decision that there was a reasonable suspicion of their having committed the offences with which they were charged.”

The facts in this case are almost on all fours with the facts in Yoramu and Others v The State CC02-16. The only difference is that while in this case the respondent elected to sue the applicants for eviction, in Yoramu and Others v The State CC02-16, the decision had been taken to prosecute the accused persons under section 3(2)(a) as read with section 3(3) of the Gazetted Lands (Consequential Provisions) Act. This Court, on referral of the matter from the Magistrates' Court, was ultimately tasked with dealing with the question of whether the prosecution of the applicants in the Magistrates' Court, under section 3(2)(a) as read with section 3(3) of the Gazetted Lands Act, constituted a violation of their right to the protection of the law,.GARWE JCC found:

“Even on the merits, it is clear that there was no transfer of an undertaking following the acquisition of the farm and its subsequent allocation to a number of beneficiaries. The Constitution itself makes it clear that anyone who possesses or occupies gazetted land without lawful authority may be guilty of a criminal offence. What constitutes lawful authority is defined in the Act. The applicants have no such authority. In these circumstances, there can be no question of the applicants having remained employees of, or the farming operations having been transferred to, the new beneficiaries.”

The magistrate in casu was dealing with an application for eviction. The question before him was therefore whether the applicants had the authority to remain in occupation of the farm. In other words, did they have a valid defence to the eviction claim? The dispute was between the applicants and the respondent as between themselves. In this regard, the magistrate ought to have considered that question only. The magistrate, knowing that it was an application for eviction, ought to have satisfied herself that the alleged constitutional question would, if successful, clothe the applicants with lawful authority. It could not. The applicants simply did not have lawful authority to continue staying on the farm.

Accordingly, the Constitutional Court cannot give them what is not provided for in the law….,.

A constitutional question worthy of referral is a question that is necessary to be answered by the Constitutional Court in order that the referring court may dispose of the dispute before it. In this regard, BARON JA in Mandirwhe v Minister of State 1986 (1) ZLR 1 (S)…, reasoned:

“The basis on which we declined to entertain this reference was that, since the determination of the question of an alleged contravention of the Declaration of Rights was unnecessary for the purposes of the order the learned Judge had decided to make, it was not competent for him to refer that question to this Court.”

In order to find that the question that is raised is one that is relevant for the resolution of the main dispute between the parties, the court has to be informed by findings of fact. It is from those findings that the court will consider whether the question raised is consistent with the proven facts. In referring the questions to this Court, without following the procedure laid out above, the court a quo grossly misdirected itself.

The question referred, therefore, had no bearing on the dispute that stood to be resolved between the parties in the Magistrates' Court. Once a dispute can be resolved without recourse to the Constitution, no constitutional questions would have arisen and the matter, in that form, would not be properly before the Constitutional Court. See Magurure & 63 Others v Cargo Carriers International Hauliers (Pvt) Ltd t/a Sabot CC15-16; Berry & Another v Chief Immigration Officer & Another CC04-16.

Had the magistrate considered the request for referral properly, she would have found that for these reasons, such request was frivolous and vexatious.

In the result, I make the following order:

The matter be and is hereby struck off the roll.

The first applicant stated that, as a taxpayer, he is prejudiced by such unlawful appointments, and, as a citizen of Zimbabwe, he is entitled to demand that the Constitution be respected and that the rule of law be upheld. The second applicant, on the other hand, indicated that it is a Trust established by notarial deed whose objective is to promote democracy, transparency and accountability to ensure that institutional structures and processes uphold the rights of citizens.

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

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

(i)…,.

(ii)…,.

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

The question remained whether or not they had locus standi to seek the relief prayed for…,.

Asked by the court to state precisely in terms of what provision of the Constitution the appellants had approached the court, counsel for the appellants told the court that they had done so pursuant to the provisions of section 18(1)(a) of the Constitution and that this section, to some extent, restores the actio popularis.

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

The applicant intends to approach the Constitutional Court in terms of section 85(1) of the Constitution. Section 85(1) of the Constitution provides as follows:

“85 Enforcement of fundamental human rights and freedoms

(1) Any of the following persons, namely -

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests, of a group or class of persons;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members;

is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”...,.

The second, third and fourth respondents opposed the application for leave for direct access. The grounds of opposition were the following -

1. The application is not properly before the Court as it does not cite the Office of the President and Cabinet which, according to the applicant, made the appointments.

2. There are no prospects of success if direct access is granted in view of the fact that there are no constitutional issues raised in the application.

3. The applicant has other remedies available to him. The issues complained of are procedural issues of “Plea” covered by section 180(g) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The principle of subsidiarity dictates that those issues be dealt with in the lower court.

4. There are disputes of fact in the matter. The second respondent disputes the allegation that the third and fourth respondents were appointed by the Office of the President and Cabinet to carry out prosecutorial duties. The second respondent stated that he delegated his prosecutorial functions to the third and fourth respondents in terms of the law….,.

Counsel for the second, third and fourth respondents submitted that the application was not properly before the Court. He argued that the applicant did not cite the President, whom he alleged made the appointments of the third and fourth respondents. The second, third and fourth respondents denied that the appointments were made by the President. They averred that the appointments were made by the Prosecutor-General who issued certificates of authority to prosecute on his behalf. He submitted that the authority to prosecute was lawfully given as the conduct of the Prosecutor-General was within the terms of section 5(2) of the Criminal Procedure and Evidence Act [Chapter 9:07]. In his view, the fact that the third and fourth respondents were members of the Special Anti-Corruption Unit in the Office of the President and Cabinet (the Unit) did not disqualify them from being appointed as prosecutors. Counsel for the second, third and fourth respondents argued that the law authorised the Prosecutor-General to appoint a legal practitioner to conduct a prosecution on his behalf. The authority was not limited to legal practitioners employed in specific institutions.

WHETHER THE MATTER IS PROPERLY BEFORE THE COURT

Section 175(4) of the Constitution provides as follows:

“(4) If a constitutional matter arises in any proceedings before a court, the person presiding over that court may, and, if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request is merely frivolous or vexatious.”...,.

A constitutional matter, as defined in section 332 of the Constitution, must arise or be raised in the proceedings in the subordinate court. The person presiding may, if he or she is of the view that the determination of the constitutional issue by the Court is necessary for the purposes of the proceedings before him or her, mero motu refer the matter to the Court. If the matter is raised by any party to the proceedings, there must be a request by that party, or any other party, that the matter be referred to the Constitutional Court for determination.

If the presiding person is of the view that the determination of the constitutional matter by the Constitutional Court is necessary for the purposes of the proceedings and that the request for a referral is not frivolous or vexatious, he or she is obliged to refer the matter to the Constitutional Court for determination. If the presiding person is of the opinion that the request for a referral is frivolous or vexatious, he or she shall refuse the request.

It is not compliance with the requirements of the procedure of referral of a constitutional matter to the Constitutional Court, prescribed under section 175(4) of the Constitution, to say the constitutional question was raised and the presiding person declined to refer it to the Constitutional Court. The reason is that it is the request to refer a constitutional question to the Court which must have been found to be frivolous or vexatious. It is not the constitutional matter itself that has to be found to be frivolous or vexatious.

The reasons for approaching the Constitutional Court, set out in the applicant's founding affidavit, do not make mention of a request for referral being made to the court a quo. In paragraph 8 of the applicant's founding affidavit the applicant stated that:

“8. I set out the facts upon which the application is founded below. In short, I raised constitutional questions in criminal proceedings pending before the first respondent. The first respondent declined to refer the said constitutional questions that arose before him to this Court on the basis that the said constitutional questions were frivolous and vexatious in circumstances wherein, with respect, the questions raised were neither frivolous nor vexatious. Such refusal was, therefore, a breach of my right to the equal protection and benefit of the law....,.

37. In short, the first respondent did not even attempt to consider the submissions made before him. It was not sufficient, with respect, to simply hold that 'the application is frivolous and vexatious' without illustrating that he had applied his mind to it and found the same frivolous and vexatious for given reasons. In the ABSENCE of a reasoned and considered ruling that the application was frivolous and vexatious, the refusal to refer to this Court the questions raised was a breach of the provisions of section 175(4) which oblige the first respondent to refer an application of this nature to this Court upon a consideration of the request in accordance with set criteria…,.”

An application for leave for direct access to the Constitutional Court on an application in terms of section 85(1) of the Constitution, alleging that the refusal by a presiding person to refer a constitutional matter is a violation of a fundamental right enshrined in Chapter 4, must comply with the requirements of section 175(4) of the Constitution.

An applicant for leave for direct access to the Constitutional Court who seeks relief on the ground that the refusal by the presiding person to refer a matter is a violation of his or her or its fundamental right or freedom must show compliance on his or her or its part with the requirements of section 175(4) of the Constitution in the proceedings before the court a quo.

The applicant accepts that the court a quo decided that the constitutional questions raised were frivolous and vexatious. According to him, the decision violated his right to equal protection of the law in terms of section 56(1) of the Constitution. The applicant does not take issue with the fact that the court a quo did not determine the question whether the “request” for referral of the constitutional questions, if it was made, was frivolous or vexatious.

The case intended to be placed before the Constitutional Court, in terms of section 85(1) of the Constitution, is that the decision by the court a quo that the constitutional questions were frivolous and vexatious violated the applicant's right to equal protection of the law. The allegation is that the decision was made in the context of section 175(4) of the Constitution. For the right of access to the Constitutional Court, under section 85(1) of the Constitution, to achieve the intended purpose, it must be shown that in the exercise of its power the court a quo violated the applicant's right to equal protection under section 175(4) of the Constitution.

What is clear from the papers is the fact that the court a quo did not proceed in terms of section 175(4) of the Constitution. The court a quo decided the constitutional questions on the merits. The record of proceedings shows that the court a quo addressed its mind to the issue of the legality of the authority to prosecute given to the third and fourth respondents forming the subject of the constitutional questions. The court a quo decided that the authority to prosecute given to the third and fourth respondents was lawful as it fell within the terms of section 5(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The controversy between the parties arising from the question of the legality of the authority given to the third and fourth respondents terminated with the decision that gave victory to the Prosecutor-General.

There was no consideration of the question whether a request for a referral of the constitutional questions raised by the applicant was frivolous or vexatious.

The jurisdiction of a subordinate court, under section 175(4) of the Constitution, is mandatory and especially focused, in that it has to be exercised in respect of a specific question whether a request for a referral of a constitutional matter to the Constitutional Court is merely frivolous or vexatious. At the time the decision is made, the subordinate court must be engaged with the question.

In this case, the evidence shows that the court a quo was not engaged with that question. It was, instead, engaged with the question whether the authority to prosecute was lawfully given to the third and fourth respondents. It looked at the merits of the question and decided that the authority to prosecute was lawfully given in terms of section 5(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The purpose of the exercise of the jurisdiction of a subordinate court, under section 175(4) of the Constitution, is to protect the process of the Constitutional Court against frivolous or vexatious litigation. Section 175(4) of the Constitution does not authorise a subordinate court to determine the constitutional matter on the merits. If the subordinate court exercises its general power to determine the constitutional matter on the merits, it does so on the basis of some other law - not section 175(4) of the Constitution. The determination of a constitutional question by a subordinate court is of itself a judicial protection, unless the court has no jurisdiction over the matter. The remedy for the enforcement of the law prescribing the standard of jurisdiction is the appeal.

A determination by a subordinate court of a constitutional matter on the merits cannot be taken as a failure to provide the applicant with the judicial protection provided under section 175(4) of the Constitution. The determination of a constitutional matter on the merits cannot provide a ground for approaching the Constitutional Court alleging a violation of the right to equal protection of the law.

Section 175(4) of the Constitution applies to cases where the constitutional matter raised is to be decided upon by the Constitutional Court. The subordinate court decides the question whether a request to refer the constitutional question to the Constitutional Court is merely frivolous or vexatious.

Once the subordinate court decides the constitutional question on the merits, section 175(4) of the Constitution ceases to be applicable. In other words, the alleged violation of the right to equal protection of the law, forming the ground on which the substantive application is intended to be filed with the Constitutional Court, in terms of section 85(1) of the Constitution, should leave for direct access be granted, cannot, in the circumstances, be based on alleged failure to act in terms of section 175(4) of the Constitution.

The court a quo could not have addressed its mind to the question whether a request for referral of the constitutional questions was merely frivolous or vexatious after determining the constitutional questions itself.

There is a discordance between what happened and the relief sought. The relief sought is based on the allegation that there was refusal by the court a quo to refer the constitutional questions to the Court. There was no refusal. There was a determination of the constitutional questions on the merits. The decision terminated the controversy between the parties on the question whether the authority to prosecute was lawfully given to the third and fourth respondents by giving victory to the Prosecutor-General. The applicant was bound by the decision of the court a quo and had to stand trial.

The Court can only exercise its jurisdiction to interpret, protect and enforce the Constitution in respect of matters that reach it from lower courts through the procedures prescribed by the Constitution and given effect to by the relevant provisions of the Rules. The substantive and procedural requirements of the relevant constitutional provisions must be complied with. It must be shown that the matter sought to be brought before the Constitutional Court for determination falls within the ambit of matters for which the constitutional provisions invoked were designed.

The applicant invoked a wrong remedy in a bid to redress the decision of the court a quo on the constitutional questions he raised in the criminal proceedings in that court.

In Mutero and Anor v Attorney-General 2000 (2) ZLR 286 (S), it was held that it was incompetent for the court a quo to consider the issue of frivolity or vexatiousness of a request for a referral of a constitutional matter to the Constitutional Court when it had already determined the question on the merits. It was held that once a subordinate court rendered a decision on the constitutional question, the dispute arising therefrom could only be resolved by way of appeal.

If the applicant was of the view that the decision by the court a quo was wrong, he had the remedy of appeal for the redress of the decision. A wrong judicial decision does not, however, give rise to a ground for an alleged violation of the right to equal protection of the law. No law provides protection to a litigant against the possibility of a judicial officer making a wrong decision.

DISPOSITION

In the result, it is ordered as follows:

“The application be and is hereby dismissed with no order as to costs.”

Section 85(1)(a) of the Constitution of Zimbabwe, Amendment (No.20) 2013 (“the Constitution”)…, provides that any person who alleges that any of the fundamental rights and freedoms enshrined in Chapter 4 of the Constitution has been, is being or is likely to be infringed, may, in his or her own interests, approach a court seeking appropriate relief, which the court has a discretion to grant.

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

FACTUAL BACKGROUND

The applicant was the defendant in a divorce action instituted by the first respondent in the High Court. The action culminated in a judgment in which the High Court granted an order of divorce, coupled with the distribution of the assets of the spouses, maintenance, and an order governing custody of and access to two minor children.

The applicant was aggrieved by the judgment of the High Court on the distribution of property and appealed to the Supreme Court (“the court a quo”). The first respondent cross-appealed. The applicant's main argument, in the main appeal, was that the High Court failed to properly exercise its discretion in terms of section 7(4) of the Matrimonial Causes Act [Chapter 5:13] (“the Matrimonial Causes Act”), which provides for the circumstances which a court may have regard to when considering the issues of the division, apportionment or distribution of the assets of the spouses and the payment of maintenance. He argued that the High Court failed to act in accordance with the principle laid down in Takafuma v Takafuma 1994 (2) ZLR 103 (S). In that decision the Supreme Court said:

“…, the court does not simply lump all the property together and then hand it out in as fair a way as possible. It must begin, I would suggest, by sorting out the property into three lots, which I will term 'his', 'hers' and 'theirs'. Then it will concentrate on the third lot marked 'theirs'. It will apportion this lot using the criteria set out in section 7(3) of the Act. Then, it will allocate to the husband the items marked 'his' plus the appropriate share of the items marked 'theirs', and the same to the wife.”

The court a quo found that the High Court had acted in accordance with the provisions of section 7(4) of the Matrimonial Causes Act, and, as such, had not erred. It dismissed both the appeal and the cross-appeal on the basis that they had no merit. On the question of the applicability or otherwise of the principle enunciated in Takafuma v Takafuma 1994 (2) ZLR 103 (S), the court a quo…, in Simon Denhere v Mutsa Denhere SC51-17, said:

“…, the court, in Takafuma's case (supra), was setting out an approach on the correct way of achieving an equitable distribution. The factors that a court had to take into account in the distribution are set out in the Act. The principle itself is found in the Act. The appellant fails to appreciate that what Takafuma prescribes is a formula and it is not one that is applicable in every situation. It is erroneous, in my view, to suggest that the court a quo should have strictly followed the formula as set out by mcnally ja.. In this case, the court found that all the property, with the exception of the stand in Chitungwiza, was acquired during the union. In such a case one cannot speak of piles. They do not exist as all the property is matrimonial property and falls for distribution.

The court a quo did not create three lots of the matrimonial estate. That is not to say that its approach was incorrect. Having found that theirs was a marriage of equals, there were no baskets in which to place the properties. It became unnecessary to do so.”

The applicant was aggrieved by the decision of the court a quo and filed the application for an order for direct access to the Constitutional Court. He seeks to approach the Constitutional Court in terms of section 85(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”), alleging that the court a quo breached his right to equal protection of the law enshrined in section 56(1) of the Constitution.

The applicant argued that the High Court erred by not following the law, as pronounced in Takafuma v Takafuma 1994 (2) ZLR 103 (S); a judgment binding on it according to the doctrine of stare decisis. He argued that the failure to apply the formula enunciated in Takafuma v Takafuma 1994 (2) ZLR 103 (S) imposed on the court a quo the obligation to set aside the judgment of the High Court on appeal. The basis of the applicant's argument was that the court a quo, in dismissing the appeal, failed to protect his right to equal protection of the law, as it was obliged to correct the error and set aside the judgment of the High Court. The contention was that it was in the interests of justice to grant the order of direct access for the Constitutional Court to vindicate the rule of stare decisis, which is an important aspect of the rule of law.

The first respondent opposed the application and raised three preliminary points;

(i) The first point was that the court a quo did not decide a constitutional matter. The applicant could not approach the Constitutional Court to have the judgment of the court a quo set aside.

(ii) The second point was that the applicant sought to appeal against the decision of the court a quo on a non-constitutional matter under the guise of an application in terms of section 85(1) of the Constitution. The contention was that the applicant lacked locus standi as a result of section 26(2) of the Supreme Court Act [Chapter 7:10] (“the Act”), which provides that Supreme Court judgments are final and no appeal can be noted against them.

(iii) The third point relates to the alleged incompetency on the part of the applicant in seeking, as part of the relief sought, the vacation of the whole judgment of the court a quo - including the part in his favour. The part of the judgment in his favour relates to the dismissal of the cross-appeal.

On the merits, the first respondent argued that, in the absence of a constitutional matter decided by the court a quo, no constitutional remedy is available to the applicant.

At the hearing of the application, counsel for the applicant submitted that the determination of the application must be based on the principle that underlies section 167(5)(a) of the Constitution. The principle is to the effect that the Rules of the Constitutional Court must allow a person, when it is in the interests of justice, and with or without leave, to bring a constitutional matter directly to the Constitutional Court. He submitted that the principle should be understood in the context of the Constitution as a whole and the role and place of the Constitutional Court in the constitutional framework.

Counsel for the applicant conceded that the Constitutional Court is a specialised court which decides constitutional matters only and that where such a matter is not raised the Constitutional Court has no jurisdiction. He argued that the applicant's substantive application is intended to be brought under section 85(1)(a) of the Constitution to enforce fundamental rights enshrined in sections 56(1) and 69(2) of the Constitution.

Counsel for the applicant argued that the making of an allegation of an infringement of a fundamental right enshrined in Chapter 4 of the Constitution means that a constitutional matter has been raised for the Constitutional Court to be seized with the matter. He supported the proposition by citing the Constitutional Court's decision in Meda v Sibanda & Ors 2016 (2) ZLR 232 (CC)...,.. The Constitutional Court said:

“It is clear from a reading of section 85(1) of the Constitution that a person approaching the Court in terms of the section only has to allege an infringement of a fundamental human right for the Court to be seized with the matter. The purpose of the section is to allow litigants as much freedom of access to courts on questions of violation of fundamental human rights and freedoms with minimal technicalities.”

Counsel for the applicant also made reference to Fredericks v MEC Education and Training, Eastern Cape 2002 (2) SA 693 (CC) [11] for the proposition that, for the purposes of the right of access to the Constitutional Court, a matter is a constitutional matter if the applicant's case stands or falls on the argument that the State's conduct has violated the Bill of Rights. He quoted a portion of the judgment where o'regan j stated as follows:

“Whether the applicants' claim has merit or not can have no bearing on whether their claim raises a constitutional matter.”

Counsel for the applicant cited Fraser v ABSA Bank Limited 2007 (3) SA 484 (CC) [40] to the effect that, for the purposes of access to it, an acknowledgement by the Constitutional Court that an allegation of an infringement of a fundamental right or freedom enshrined in Chapter 4 of the Constitution is a constitutional matter does not have to result in a finding on the merits that is in favour of the party who raised it.

The contention was that once a constitutional matter is raised, section 167(5)(a) of the Constitution insists on consideration of the existence of the interests of justice as the single criterion in deciding whether or not to grant leave for direct access to the Constitutional Court. He acknowledged that the “interests of justice” is a concept that is incapable of precise definition, but stated that courts are familiar with the concept and use their discretion to determine, on a case by case basis, what it means. The point made was that the determination of the question whether it is in the interests of justice to grant leave for direct access involves a careful weighing and balancing of all relevant factors. Each case must be considered in the light of its own facts.

Counsel for the applicant argued that one of the factors to be taken into account in deciding whether it is in the interests of justice to grant leave for direct access to the Constitutional Court is whether the matter is of general public importance. He argued that, in addressing the question whether the matter is of general public importance, in this case, the Constitutional Court has to take into account the fact that the State institution whose conduct is under scrutiny is the Supreme Court. The contention was that what was being sought to be constitutionally reviewed made the case an exceptional one and therefore of public importance. He argued that, in appropriate circumstances, it has been held that the interests of justice require a court to decide a constitutional matter for the benefit of the broader public or to achieve legal certainty. He noted that this may be done even where the decision has no practical value to the litigants themselves. He cited the case of Radio Pretoria v Chairperson, Independent Communications Authority of South Africa and Anor 2005 (4) SA 319 (CC)...,.

Counsel for the applicant then dealt with prospects of success and argued that the applicant is merely required to make out a prima facie case on the merits. In respect of section 56 of the Constitution, he argued that the section has a broad sweep and that when properly construed it incorporates “the right to the protection of the law.” He took the view that equality before the law is merely a component of the right to the protection of the law. He made reference to Mudzuru & Anor v Minister of Justice & Ors 2016 (2) ZLR 45 (CC)..., where the Constitutional Court remarked:

“The purpose of interpreting a provision contained in Chapter 4 must be to promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom, and, in particular, the values and principles set out in section 3 of the Constitution.”

Counsel for the applicant argued that where the State, or any of its organs, act outside the law the right enshrined in section 56(1) of the Constitution is infringed. He argued that the same principle applies in instances where the judiciary misconstrues the law. In such a case it acts outside the law. He referred to Martin v Attorney-General & Anor 1993 (1) ZLR 153 (S) for the proposition that if a court misconstrues the law, or applies it incorrectly, there is a prima facie infringement of the right to equal protection of the law. He argued that where that occurs in a lower court the remedy would be an appeal and that accords with the doctrine of constitutional avoidance. He contended that where the court is the Supreme Court, the constitutional remedy is always available under section 85(1) of the Constitution when there is an alleged infringement of a fundamental right. He also argued that section 2 of the Constitution is clear that it is the Constitution which is supreme and not the courts or any other arm of the State.

Counsel for the applicant contended that the court a quo patently misconstrued the doctrine of stare decisis by failing to hold that the High Court was bound by the decision in Takafuma v Takafuma 1994 (2) ZLR 103 (S). He argued that the Supreme Court was supposed to correct the High Court. It did not. Counsel for the applicant read into the case of Matamisa v Mutare City Council (AG Intervening) 1998 (2) ZLR 439 (S) the proposition that it is trite that where the Supreme Court misconstrues an appeal before it or adopts a wrong approach it infringes the right to a fair hearing. On that basis, he submitted that the substantive application sought to be filed has reasonable prospects of success if an order for direct access to the Constitutional Court is granted.

Counsel for the first respondent, on the other hand, took the view that the court a quo did not decide a constitutional matter. As a result, the Constitutional Court has no jurisdiction to entertain the question whether it is in the interests of justice to grant an order for direct access to it. He argued that it was not open to a litigant who loses a case in the Supreme Court to simply “whip up a constitutional argument ex post facto” to seek audience with the Constitutional Court. He argued that a jurisprudence which allows such an approach renders the Supreme Court nugatory and negates the principle of finality to litigation. He argued, further, that nothing would then stop a litigant from alleging that a Constitutional Court judgment is itself a breach of the Constitution. Such a litigant would then bring fresh litigation before the Constitutional Court.

Counsel for the first respondent cited Nyamande & Anor v Zuva Petroleum & Anor (Pvt) Ltd 2015 (2) ZLR 351 (CC)..., where ziyambi jcc said:

“The applicants have not alleged that section 175(3) of the Constitution applies in their case. Since no constitutional issue was determined by the Supreme Court, no appeal can lie against its decision. The same is provided in section 169(1).”

He also cited the case of Prosecutor-General v Telecel Zimbabwe (Pvt) Ltd 2015 (2) ZLR 422 (CC)..., where the Constitutional Court said:

“..., while the applicant did not specifically state so in his application, in reality, the matter was an appeal brought to this Court under the guise of an application. This is abundantly evident from the relief that is outlined in his draft order. It is even more evident from his summary of the background to the intended application as already indicated. He indicated that he wished to approach this Court 'for an order setting aside the Supreme Court judgment on the basis that it interferes with the independence of his office, and, as such, it is ultra vires provisions of section 260 of the Constitution of Zimbabwe...,.' Like in the case referred to above, the issue that I have underlined, and others that the applicant sought to bring before this Court, similarly 'arose' after the Supreme Court judgment was pronounced. They could not have been, and in fact were not, raised before the Supreme Court, and, needless to say, not determined by it as constitutional matters. The issues therefore did not meet the requirement for inclusion into 'matters over which the Constitutional Court has jurisdiction'.

On the basis of the authority cited above, and upon a proper interpretation of the relevant provisions alluded to in this context, the judgment of the Supreme Court on these matters, which the applicant sought to have reversed, was final and definitive. It is a decision that may not be interfered with by this Court.”

On the strength of the two authorities, counsel for the first respondent prayed for the dismissal of the application, arguing that the court a quo's judgment on the issues between the parties is final and definitive. He argued that the remarks in Matamisa v Mutare City Council (AG Intervening) 1998 (2) ZLR 439 (S), on the finality of judgments of the Supreme Court, are apposite.

Counsel for the first respondent argued, further, that both the High Court and the court a quo correctly found that the applicant had lied and that the applicant did not dispute such finding - even in the court a quo. He contended that this application was aimed at finding a way to extricate the applicant from the consequences of his lie. He relied on Beckford v Beckford 2009 (1) ZLR 271 (S) to argue that a litigant who lies must live with the consequences of his lie. He said the High Court found that the marriage was a marriage between equals and the court a quo upheld that position. The contention was that distribution of assets of spouses at the dissolution of marriage by divorce is a matter of discretion, which takes into account many considerations including the fact that a spouse lied about the assets for distribution. He argued that the applicant had failed to demonstrate that the judgment of the court a quo was palpably wrong and constituted a total failure of justice.

Counsel for the first respondent submitted that the applicant sought an order setting aside the entire judgment of the court a quo while the judgment made findings for both parties. The applicant prayed for the vacation of an order which finds for him. He argued that an application which sought such an awkward relief cannot be said to enjoy prospects of success.

DETERMINATION OF THE ISSUES

WHETHER THE APPLICANT CAN APPROACH THE COURT

The issue for determination is whether a party to proceedings before the Supreme Court, which involve a non-constitutional matter, may approach the Court in terms of section 85(1) of the Constitution, alleging that the decision of the Supreme Court has violated his or her or its fundamental rights enshrined in Chapter 4 of the Constitution.

Section 85(1) of the Constitution provides as follows:

“85 Enforcement of fundamental human rights and freedoms

(1) Any of the following persons, namely -

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests, of a group or class of persons;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members;

is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”

The provision entitles any person to approach the courts and seek relief where he or she or it alleges that a fundamental right has been violated. It raises three important factors;

(a) The first factor is that the provisions of section 85(1) of the Constitution do not limit the right of approach to vindicate a fundamental right or freedom to a specific court. The present application is based on an allegation of violation of fundamental rights. The applicant correctly approached the Constitutional Court for appropriate relief.

(b) The second point is that section 85(1) of the Constitution requires that a person with the stated interests in the protection and enforcement of a fundamental right or freedom enshrined in Chapter 4 only has to allege infringement of the right or freedom to have the right of access to a court to seek appropriate relief. In Meda v Sibanda & Ors 2016 (2) ZLR 232 (CC) the Constitutional Court said:

“It is clear from a reading of section 85(1) of the Constitution that a person approaching the Court in terms of the section only has to allege an infringement of a fundamental human right for the Court to be seized with the matter. The purpose of the section is to allow litigants as much freedom of access to courts on questions of violation of fundamental human rights and freedoms with minimal technicalities. The facts on which the allegation is based must, of course, appear in the founding affidavit.

Whether or not the allegation is subsequently established as true is a question which does not arise in an enquiry as to whether the matter is properly before the Court in terms of section 85(1). In this case, the applicant alleged, in the founding affidavit, that her right to property had been infringed. Whether her allegation is true or not is not the issue. What matters is that she alleged a violation of a fundamental human right, and, as such, the Court was properly seized with the matter. The question of the veracity of the allegation would have been tested on the basis of evidence placed before the Court.”

(c) The third factor is that constitutional provisions are binding and the Court ought to be guided accordingly.

Section 2 of the Constitution makes the Constitution the supreme law of the land. In this regard, section 3 of the Constitution provides for the values and principles which should guide all institutions and persons in Zimbabwe. Section 85(1) ought, therefore, to be understood in the context of section 3 of the Constitution. The most relevant principles to the present matter are the supremacy of the Constitution, the rule of law, and fundamental human rights and freedoms.

These principles are central to the approach that courts ought to take when adjudicating all matters. The Constitution itself protects fundamental rights and freedoms and further provides that all institutions, including the judiciary, are bound to comply with its provisions. In this regard, the rule of law demands that there be accountability before the law by all persons and institutions exercising public authority. The requirement for accountability speaks to the need to respect fundamental human rights and freedoms through procedural fairness and regularity in the administration of justice - the Supreme Court is included.

Where a decision of the Supreme Court is challenged on the basis that it violated a fundamental right or freedom, a party has the right to approach the Constitutional Court. If section 85(1) of the Constitution is not interpreted in this way, it would mean that the Supreme Court is put outside the scope of sections 44 and 45 of the Constitution. That would be in violation of the principle of legality by which all bodies and institutions exercising public authority are bound.

In Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18, the Constitutional Court noted..., that:

“Consideration of the relevant constitutional provisions supports the view that the validity of a decision of the Supreme Court, in proceedings involving non-constitutional matters, may be challenged on the ground that it has infringed a fundamental right or freedom enshrined in Chapter 4 of the Constitution. The basis of the right of a party to the proceedings to challenge the validity of a decision of the Supreme Court in the circumstances is the Constitution itself. The right given to a litigant under section 85(1) of the Constitution to approach the Court for appropriate relief on the allegation stated is correlative to the constitutional obligation imposed on the Supreme Court as a body exercising public authority...,.

The scope of the right to approach the Court for appropriate relief under section 85(1) of the Constitution is not limited by specific objects against which the allegations of infringement of a fundamental right or freedom can be made. A constitutional complaint provided for under section 85(1) of the Constitution can be lodged against any act of public authority. A decision of the Supreme Court, in a case involving a non-constitutional issue, would fall within the category of acts, the constitutional validity of which may be challenged on the grounds prescribed under section 85(1) of the Constitution.”

In this regard, section 44 of the Constitution falls under the Bill of Rights and provides that everyone must respect, protect, promote and fulfil the rights provided for in the Bill of Rights. Section 45(1) of the Constitution also falls under the Bill of Rights and binds the State and all institutions and agencies - including the Supreme Court.

This, in turn, means that a finding that the present application for an order for direct access on the allegation that the decision of the court a quo violated a fundamental right is not properly before the Constitutional Court would amount to a breach of sections 44 and 45 of the Constitution. The applicant can rightfully seek redress through section 85(1) of the Constitution.

IS IT IN THE INTERESTS OF JUSTICE TO GRANT DIRECT ACCESS?

The requirements for an application of this kind are set out in Rule 21(3) of the Rules as follows:

“(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.”

Further, in elaborating Rule 21(3)(a), Rule 21(8) provides as follows:

“(8) In determining whether or not it is in the interest of justice for a matter to be brought directly to the Court, the Court or Judge may, in addition to any other relevant consideration, take the following into account –

(a) The prospects of success if direct access is granted;

(b) Whether the applicant has any other remedy available to him or her;

(c) Whether there are disputes of fact in the matter.”

The underlying requirement is that the application ought to clearly illustrate that it is in the interests of justice that an order for direct access be granted. As was noted by the Constitutional Court, in Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18, the filtering mechanism for leave for direct access effectively prevents abuse of the remedy.

In Liberal Democrats & Ors v President of the Republic of Zimbabwe E D Mnangagwa NO & Ors CC07-18…, the Constitutional Court noted that:

“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.”

In Zimbabwe Development Party & Anor v President of the Republic of Zimbabwe and Ors CC03-18…, the Constitutional Court remarked that:

“Absent the grounds on which it is claimed that it is in the interests of justice that direct access be granted, the Court or Judge has no basis on which to decide whether or not to grant direct access. A finding has to be made by the Court or Judge of the existence of the interests of justice requiring that a decision that direct access be granted be made….,.

The correct approach, in dealing with an application for an order of direct access to the Court, is one that accepts the principle that all relevant factors required to be taken into account must be made available for consideration. The Court or Judge must consider all the relevant factors in deciding the question whether the interests of justice would be served by an order granting direct access to the Court. The weight placed on the different factors, in the process of decision-making, will depend on the circumstances of each case and the broader interests of a society governed by the rule of law.”

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;

(i) The first is that the applicant must set out 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 matter of the complaint against the decision of the Supreme Court placed before the Constitutional Court directly for determination.

(ii) The second factor is that the applicant must set out, in the founding affidavit, facts or grounds that show that the substantive application has prospects of success should an order for direct access be granted.

In Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18...., the Constitutional Court said:

“The facts must show that there is a real likelihood of the Court finding that the Supreme Court infringed the applicant's right to judicial protection. The Supreme Court must have failed to act in accordance with the requirements of the law governing the proceedings or prescribing the rights and obligations subject to determination. The failure to act lawfully would have to be shown to have disabled the court from making a decision on the non-constitutional issue.

The theory of constitutional review of a decision of the Supreme Court, in a case involving a non-constitutional matter, is based on the principle of loss of rights in such proceedings because of the court's failure to act in terms of the law thereby producing an irrational decision. There must, therefore, be proof of the failure to comply with the law. The failure must be shown to have produced an arbitrary decision.

Arbitrariness and inconsistencies threaten the claim to judicial authority. The remedy under section 85(1) of the Constitution is not for the protection of fundamental rights and freedoms in the abstract. Concrete review requires that there be clear and sufficient evidence of the facts on the basis of which allegations of infringements of fundamental rights or freedoms are made.”

At pp 21-22 of the same judgment the Constitutional Court stated as follows:

“A litigant who approaches the Court in terms of section 85(1) of the Constitution alleging an infringement of a fundamental right or freedom by the Supreme Court would have to allege, and prove, that, in the exercise of its jurisdiction, the Court would not be involved in the examination and determination of the non-constitutional issue which was before that court on appeal. The determination of such an issue is reserved exclusively for the Supreme Court by the Constitution.”

A finding that the decision of the Supreme Court is on a non-constitutional matter should bring the inquiry to an end. The rationale for this proposition of the law is set out by Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18...,. The Constitutional Court said:

“The law of finality of decisions of the Supreme Court, on non-constitutional matters, applies to all litigants equally, whether they become winners or losers in the litigation process. The declaration of finality of a decision of the Supreme Court, on a non-constitutional matter, is itself a protection of the law. Once a decision is, as a matter of fact, a decision of the Supreme Court, on a non-constitutional matter, no inquiry into its legal effect can arise. There would be no proof of infringement of a fundamental right or freedom as a juristic fact. It is enough for the purposes of the protection of finality and therefore correctness that the decision is on a non-constitutional matter.”

The question which was before the court a quo for determination was whether or not the decision of the Supreme Court in Takafuma v Takafuma 1994 (2) ZLR 103 (S), on the formula that a court faced with the task of the division, apportionment or distribution of the assets of the spouses upon dissolution of marriage by divorce can use to secure an equitable distribution, applied in every case regardless of the circumstances.

The court a quo considered the wide discretion given to a court faced with the task of the division, apportionment or distribution of the assets of the spouses upon dissolution of marriage by divorce under section 7(4) of the Matrimonial Causes Act. It took into account the fact that the object of the exercise of jurisdiction by the court is to secure equitable distribution of the property. The court a quo concluded that the decision in Takafuma v Takafuma 1994 (2) ZLR 103 (S), on the formula enunciated therein, applied to similar cases and not to every case.

The effect of the decision of the court a quo on the issue before it for determination was that the applicability of the decision in Takafuma v Takafuma 1994 (2) ZLR 103 (S) as a binding precedent in a case depended on the facts of that particular case. It reasoned that the High Court, being faced with a case the facts of which were entirely different from those that formed the basis of the decision on the point of law in Takafuma v Takafuma 1994 (2) ZLR 103 (S) was faced with a new controversy calling for a different decision.

The applicant's contention was that the court a quo's decision “trashed” the rule of stare decisis, which is of fundamental importance to the rule of law. The argument was that the court a quo ought to have reached the conclusion that the High Court was bound by the decision of the Supreme Court in Takafuma v Takafuma 1994 (2) ZLR 103 (S) on the formula for the distribution of the assets of spouses upon dissolution of marriage by divorce enunciated in that case. The contention was that failure by the court a quo to hold the High Court to the obligation to follow the decision in Takafuma v Takafuma 1994 (2) ZLR 103 (S) on the point of law pronounced upon in that case violated the applicant's fundamental right to equal protection of the law enshrined in section 56(1) of the Constitution….,.

The rule of stare decisis does not require decision-makers to comply with a decision which is a precedent on a particular point of law in every case regardless of the circumstances. The language of the decision is to be construed not as a statement of abstract propositions without limitation. It must be construed in connection with the particular facts of the case and the specific matters that were in view when the language was used. In other words, every rule of precedent has a set of juristic facts which it governs. The rule of stare decisis does not require adherence to a decision on a point of law in a case in which the state of facts is entirely different from the juristic facts governed by the precedent.

The court a quo took into account the requirements of the rule of stare decisis. It concerned itself with the possible results of compliance with the decision in Takafuma v Takafuma 1994 (2) ZLR 103 (S) when the facts of the case were essentially different from the juristic facts at the heart of the precedent. The decision of the court a quo that the decision in Takafuma v Takafuma 1994 (2) ZLR 103 (S) was not applicable in the case on appeal was consistent with the rule of stare decisis, which demands that lower courts ought to adhere to previous decisions of the higher courts on points of law in similar cases.

The conclusion reached by the court a quo, and the reasons for it, had nothing to do with disobeying the rule of precedent. The issue for determination was whether the case on appeal was a similar case for which the precedent in Takafuma v Takafuma 1994 (2) ZLR 103 (S) was intended.

The matter for determination by the court a quo was not a constitutional matter. The applicant was aware of the fact that the court a quo decided a non-constitutional issue. Had it decided a constitutional matter, the applicant would have appealed to the Constitutional Court. An application to the Constitutional Court, in terms of section 85(1) of the Constitution, which the applicant intends to place before the Constitutional Court should an order for direct access be granted, is evidence of acceptance of the fact that the court a quo made a decision on a non-constitutional issue. The applicant is seeking to challenge the correctness of the decision of the court a quo.

CHALLENGING THE ALLEGED WRONGNESS OF THE SUPREME COURT DECISION

The remarks in Meda v Sibanda & Ors 2016 (2) ZLR 232 (CC) do not in any way suggest that once a person has alleged the infringement of a constitutional right, all the other provisions governing access to the Constitutional Court are side-lined. What this entails is that the mere allegation of a violation of a fundamental right has to be considered in conjunction with other principles governing direct access to the Constitutional Court. The applicant has to show that the Supreme Court, in the process of determination of the issues before it, failed to act in accordance with the law governing the proceedings to the extent that it was disabled from rendering a decision on a non-constitutional issue it was required to decide. The reason is that a decision on a non-constitutional matter cannot constitute an infringement of the right to equal protection of the law, as it is a decision on a matter within the exclusive jurisdiction of the Supreme Court. The decision is protected by section 169(1) of the Constitution, as read with section 26(1) of the Supreme Court Act.

The applicant claimed that the judgment of the Supreme Court violated his right to equal protection of the law in terms of section 56(1) of the Constitution. In the founding affidavit, the applicant said:

“Where a court makes a determination so wrong that no reasonable court, applying its mind to the facts and the law, could ever have made such a determination, the right to the protection of the law enshrined in section 56(1) of the Constitution is infringed.”

The applicant's complaint is that the Supreme Court judgment is not correct at law. This is buttressed by the following critical excerpts from the applicant's main application:

“15.6 The position by the Supreme Court that Takafuma is not applicable in every situation is a new position that was not the law at the time the High Court determined the matter in HC2951/13. The Supreme Court's new position could only have been utilised by the Supreme Court itself and not to condone a breach of stare decisis by the High Court. The Supreme Court was obliged to set aside the High Court judgment.

16.0 Counsel has advised that where the Supreme Court itself infringes a fundamental right, an aggrieved party has a right, under section 85 of the Constitution, to approach this Court.”

The applicant confirmed the fact that the court a quo was not presented with a constitutional matter for determination. The alleged question of the violation of the principle of stare decisis arose out of the decision of the court a quo on a non-constitutional matter. The issue for determination by the court a quo was whether the High Court had erred in not strictly applying the principles enunciated in Takafuma v Takafuma 1994 (2) ZLR 103 (S) in the distribution of the assets of the spouses.

The issue revolves around the correctness of the judgment of the court a quo. The relief sought in the main application is also telling. It reads, in part:

“IT IS DECLARED:

1. That the applicant's right to the protection of the law enshrined in section 56(1) of the Constitution of Zimbabwe was infringed by the Supreme Court of Zimbabwe in Judgment No. SC51-17 in the matter of Simon Shonayi Denhere v Mutsa Denhere (nee Marange), SC664/14, in that the Supreme Court completely failed to appreciate that it was obliged to set aside the High Court Judgment No. HH685-14 on the basis of the doctrine of stare decisis.

ACCORDINGLY, IT IS ORDERED:

2. That the Judgment No. SC51-17 of the Supreme Court in SC664/14 be and is hereby declared null and void and of no force and effect and is set aside.

3. That the portion of the High Court Judgment No.685-14 in HC2951/13 appealed against in SC664/14 be and is hereby declared null and void and of no force or effect and is set aside.

4. That the Registrar of the High Court be and is hereby directed to set down before a different judge the matter in HC2951/13 for a distribution of the assets of the parties in accordance with the formula in Takafuma v Takafuma 1994 (2) ZLR 103 (S).

5. That the respondents (if they oppose this application) jointly and severally pay the costs of this application the one paying the other to be absolved.”

The former Constitution provided for the right to protection of the law in section 18(1). In Williams & Another v Msipha NO & Others 2010 (2) ZLR 552 (S)…., the Supreme Court, sitting as a Constitutional Court, considered the scope of the right in relation to judgments of the courts and said the following:

“The Constitution guarantees to any person the fundamental right to the protection under a legal system that is fair but not infallible. Judicial officers, like all human beings, can commit errors of judgment. It is not against the wrongfulness of a judicial decision that the Constitution guarantees protection. A wrong judicial decision does not violate the fundamental right to the protection of the law guaranteed to a litigant because an appeal procedure is usually available as a remedy for the correction of the decision. Where there is no appeal procedure there cannot be said to be a wrong judicial decision because only an Appeal Court has the right to say that a judicial decision is wrong. See Maharaj v AG of Trinidad & Tobago (No.2) (PC) [1979] AC 385 at 399 D–H; Boordman v Attorney General [1996] 2 LRC 196 at 205i–206b.

It is the failure by the judicial officer to comply with the requirements of the protection provided by the law of the fundamental human right or freedom which results in the violation or likelihood of violation of the right or freedom against which the Constitution guarantees to the litigant the right to the protection of the law. It is, therefore, important in every case of an alleged violation by a judicial officer of a fundamental human right or freedom to understand what it is that the judicial officer was required by the law to do and what he did in order to decide whether there was failure of judicial protection which caused a violation of the fundamental human right or freedom concerned.”…,.

See also Rushesha & Others v Dera & Others CC24-17.

The right under section 18(1) of the former Constitution itself did not constitute a right to a correct judicial decision. The same principle applies to section 56(1) of the Constitution. The applicant's rights could not have been violated by the “wrongness” of the decision of the court a quo. The Constitutional Court cannot inquire into the correctness of the decision of the Supreme Court on a non-constitutional matter.

In Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18, the Constitutional Court…, said:

“The applicant misconceived the effect of the principle of finality of decisions of the Supreme Court on non-constitutional matters enshrined in section 169(1) of the Constitution, as read with section 26(1) of the Act. It believed that the purpose of the principle was to protect 'correct' decisions of the Supreme Court. According to the applicant, 'wrong' or 'outrageously wrong' decisions of the Supreme Court are an infringement of the fundamental right to equal protection of the law. The contention is that section 85(1) of the Constitution provides an aggrieved litigant with the remedy for the redress of such an infringement. The reasoning is flawed because it starts from the premise that there can be 'correct' and 'wrong' decisions of the Supreme Court on non-constitutional matters…,.

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.”

It is only an Appeal Court that can make a declaration on the correctness or otherwise of a judgment. In the absence of the right to appeal, the judgment cannot be said to be wrong. Just because a party thinks a judgment is wrong, that does not make it so. No judicial authority can pronounce on the correctness or otherwise of decisions of the Supreme Court on non-constitutional matters.

The South African courts have also stated that the Constitution does not ensure protection of litigants against wrong decisions. In the case of Lane and Fey NNO v Dabelstein and Others 2001 (2) SA 1187 (CC) [4] the court held:

“Even if the [Supreme Court of Appeal] erred in its assessment of the facts, that would not constitute the denial of the ['right to a fair trial and to fair justice']. The Constitution does not, and could hardly, ensure that litigants are protected against wrong decisions. On the assumption that section 34 of the Constitution does indeed embrace that right, it would be the fairness and not the correctness of the court proceedings to which litigants would be entitled.”

When the Supreme Court, like any other court, sits to decide an appeal, all it is required to do is to dispose of the matter in a manner which is consistent with the law. A judicial decision is the end result of a process that is regulated by law. In other words, a person has a right to a fair judicial process.

The rationale behind the principle of finality of judgment was explained in Indian Council for Enviro-Legal Action v Union of India (2011) 8 SCC 161, where dalveer bhandari j noted that this is because, more often than not, one party or the other will always be aggrieved by a judgment of a court. There is only a right to a judgment which is a culmination of a lawful process. his lordship said:

“114. The maxim 'interest Republicae ut sit finis litium' says that it is for the public good that there be an end of litigation after a long hierarchy of appeals. At some stage, it is necessary to put a quietus. It is rare that in an adversarial system, despite the judges of the highest court doing their best, one or more parties may not remain unsatisfied with the most correct decision. Opening the door for a further appeal could be opening a floodgate which will cause more wrongs in the society at large at the cost of rights.

115. It should be presumed that every proceeding has gone through filtration several times before the decision of the Apex Court. In the instant case, even after final judgment of this court, the review petition was also dismissed. Thereafter, even the curative petition has also been dismissed in this case. The controversy between the parties must come to an end at some stage and the judgment of this court must be permitted to acquire finality. It would hardly be proper to permit the parties to file application after application endlessly. In a country governed by the rule of law, finality of the judgment is absolutely imperative and great sanctity is attached to the finality of the judgment. Permitting the parties to reopen the concluded judgments of this court by filing repeated interlocutory applications is clearly an abuse of the process of law and would have a far-reaching adverse impact on the administration of justice.”

DISPOSITION

In the result, it is ordered that -

“The application be and is hereby dismissed with costs.”

On 30 June 2017 I gave the following order:

“WHEREUPON, after reading documents filed of record and hearing counsel, BY CONSENT, IT IS ORDERED THAT: The application be and is hereby dismissed with no order as to costs.“

Notwithstanding the fact that the matter was disposed of on the basis of an order by consent, a written judgment was necessary to clarify the law on the issue behind the application.

The chamber application was made ostensibly in “terms of Rules 32(2) and 12 of the Constitutional Court Rules, 2016” (“the Rules”). The applicant sought an order for leave to appeal from the ruling of a magistrate denying him a referral to the Constitutional Court (“the Court”) of four questions for determination.

Rule 32(2) of the Rules provides that “a litigant who is aggrieved by the decision of a subordinate court on a constitutional matter can apply to the Constitutional Court for leave to appeal against such decision.”

The applicant stood before the magistrate accused of stock theft, it being alleged that he stole 145 cattle some time in 2002. He was first brought to trial in 2005, under CRB1662/05. The Regional Magistrate who presided over the case resigned before completing the trial. The High Court later quashed the proceedings and ordered a trial de novo before a different magistrate. The trial de novo commenced.

The applicant applied for a discharge at the end of the case for the State. The application was dismissed. The applicant was aggrieved by the dismissal of his application. He approached the High Court for a review of the proceedings. He made an urgent application in the Magistrate's Court for a stay of the proceedings pending the determination of the application for review. The State consented to the granting of the order staying the proceedings pending the determination of the application for review.

The High Court, once again, set aside the proceedings in the Magistrate's Court and ordered a trial de novo before a different magistrate, in the event that the State decided to pursue the matter further. At the commencement of the trial de novo, the applicant requested the presiding magistrate to refer to the Court the question whether or not his right to a fair trial within a reasonable time had been violated. The request for referral was granted on 28 November 2014. The Constitutional Court dismissed the matter for the reason that the referral had not been properly made.

When the applicant's trial resumed at the Magistrate's Court, he requested the presiding magistrate, in terms of section 175(4) of the Constitution, to refer to the Constitutional Court for determination four questions. These were:

“1. Whether or not the accused person's right to a fair trial within a reasonable time has been infringed or violated?

2. Whether or not the accused person's right to protection of the law has been violated?

3. Was the accused person's right to a fair, lawful, prompt and impartial administrative action violated or infringed?

4. Whether or not the intended third criminal trial infringes/violates the accused person's constitutional right to remain silent and not to testify or be compelled to give evidence in a third criminal trial?”

The magistrate determined the questions she was requested to refer to the Constitutional Court. She made the factual finding that the rights of the applicant had not been violated, as alleged by him. The magistrate also said she considered the request for the referral of the questions to the Constitutional Court to be frivolous and vexatious. She dismissed the application for referral.

The applicant made a chamber application, seeking an order for leave to appeal against the decision of the court a quo that the request to have the four questions referred to the Constitutional Court was frivolous and vexatious.

The magistrate used the finding that the fundamental rights had not been infringed to support the finding that the request for referral was frivolous and vexatious. The question raised by the application was whether or not a subordinate court, after making a decision that a right was not violated, can go on to determine the question whether the request for the referral of the question it was requested to refer to the Constitutional Court, under section 175(4) of the Constitution, is frivolous or vexatious.

The grounds of the intended appeal also attack the correctness of the decision that the applicant's right to a fair trial within a reasonable time was not violated.

The applicant's intended grounds of appeal are:

“1. The presiding magistrate in the court a quo (having been requested by the appellant to refer four (4) constitutional issues or questions to the Constitutional Court for determination, namely, whether or not the appellant's rights to a fair trial within a reasonable time, protection of the law, fair, lawful, prompt and impartial administrative justice both substantively and procedurally and to remain silent and not to testify or be compelled to give evidence in a Third Criminal Trial, were infringed or violated) erred and misdirected herself by ruling that the said rights were not violated or infringed;

2. Without placing due weight and consideration on the relevant facts, averments, and submissions contained in the appellant's papers and documents filed of record and placed before her, the magistrate in the court a quo erred and misdirected herself by descending into the arena and responded (to) the appellant's application for and on behalf of the State which legally conceded and accepted almost all the appellant's facts in support of his application.

3. The presiding magistrate in the court a quo erred and misdirected herself by ruling that the appellant's request for the referral of the matter to the Constitutional Court was frivolous, vexatious and baseless and that the appellant's constitutional rights (supra) were and are subject to limitation in terms of section 86(3) of the Constitution of Zimbabwe.”

The relief sought is worded as follows:

“WHEREFORE, the appellant prays that the appeal should succeed and that the presiding magistrate's ruling or decision in the court a quo be set aside entirely and be replaced or substituted with the following order:

(i) That the appeal succeeds;

(ii) The ruling or decision of 20 April 2017 of the court a quo issued under case number CRB7520/16 be and is hereby set aside;

(iii) The appellant's request for the referral of the constitutional issues or questions for determination before this Court be and is hereby granted with no order as to the costs of suit."

The right of appeal is a right that is availed by the Constitution and regulated, in part, by the Rules. Before one can be granted leave to appeal, one has to show that the appeal one intends to bring relates to a decision by the court a quo on a constitutional matter or is against an issue connected with a decision on a constitutional matter.

In The Cold Chain (Private) Limited t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC)…, the requirements to be satisfied in an application for an order for leave to appeal to the Constitutional Court were set out as follows:

“The requirements for leave to appeal to the Court from a subordinate court are these:

(a) Firstly, there must be a constitutional matter for determination by the Constitutional Court on appeal. The reason is that in terms of section 167(1) of the Constitution the Constitutional Court is the highest court in all constitutional matters and decides only constitutional matters and issues connected with decisions on constitutional matters.

Rule 32(2) of the Constitutional Court Rules makes it clear that only a litigant who is aggrieved by the decision of a subordinate court, on a constitutional matter only, has a right to apply for leave to appeal to the Constitutional Court….,. Rule 32(3)(c) of the Constitutional Court Rules requires that the application for leave to appeal should contain or have attached to it 'a statement setting out clearly and concisely the constitutional matter raised in the decision'. In other words, there must have been a constitutional matter raised in the subordinate court by the determination of which the dispute between the parties was resolved by that court. If the subordinate court had no constitutional matter before it to hear and determine, no grounds of appeal can lie to the Constitutional Court as a litigant cannot allege that the subordinate court misdirected itself in respect of a matter it was never called upon to decide for the purposes of the resolution of the dispute between the parties.

See Nyamande and Anor v Zuva Petroleum 2015 (2) ZLR 351 (CC).

Under section 332 of the Constitution, a constitutional matter is one in which there is an issue involving the interpretation, protection or enforcement of the Constitution. Absence of an issue raised in the proceedings in the subordinate court requiring the interpretation, protection or enforcement of a provision of the Constitution in its hearing and determination would invariably be sufficient evidence of the fact that no constitutional matter arose in the subordinate court.

(b) Secondly, the applicant must show the existence of prospects of success for leave to be granted.

In Nehawu v University of Cape Town 2003 (2) BCLR 154 (CC), the Constitutional Court of South Africa held that the applicant must show that there are reasonable prospects that the Constitutional Court 'will reverse or materially alter the judgment if permission to bring the appeal is given'.”

Section 175(4) of the Constitution provides:

“(4) If a constitutional matter arises in any proceedings before a court, the person presiding over that court may, and, if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request is merely frivolous or vexatious.”

The purpose of the procedure for referral is to facilitate the determination of a constitutional question by the Constitutional Court which is necessary for resolution of the dispute before the court which is being asked to refer the question. In other words, the person presiding is being asked to decide whether the request for referral of the constitutional matter is frivolous or vexatious, as defined in Martin v Attorney General 1993 (1) ZLR 153 (S)…,.; Williams and Anor v Msipha and Others 2010 (2) ZLR 552 (S)…,.; and Tomana v JSC and Anor HH281-16.

The decision intended to be appealed against, should an order for leave to appeal to the Constitutional Court be granted, is that the request for the referral of the constitutional questions raised by the applicant in the proceedings in the court a quo to the Constitutional Court for determination was frivolous and vexatious.

The facts show that the constitutional questions, as to the contravention of the fundamental rights of the applicant, raised in the proceedings in the subordinate court were not referred to the Constitutional Court because the court a quo determined the constitutional questions on the merits.

In terms of section 85(1) of the Constitution, a Magistrate's Court has jurisdiction to determine the question of an alleged infringement of a fundamental right or freedom enshrined in Chapter 4.

Whilst the definition of a “constitutional matter”, under section 332 of the Constitution, includes matters beyond the jurisdiction of a Magistrate's Court, the mechanism for the protection and enforcement of fundamental human rights and freedoms enshrined in Chapter 4 of the Constitution includes the jurisdiction of the Magistrate's Court.

Section 85(1) of the Constitution gives the persons listed thereunder the right to approach a court, alleging that a fundamental right or freedom enshrined in Chapter 4 “has been, is being or is likely to be, infringed and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”

On the basis of section 85(1) of the Constitution, the Constitutional Court enjoys concurrent jurisdiction with a Magistrate's Court in respect of a constitutional matter arising from alleged infringement of a fundamental right or freedom enshrined in Chapter 4.

Whether or not the court a quo erred in finding that the fundamental rights alleged by the applicant to have been infringed by the State were not in fact violated, the determination of the constitutional questions on the merits had the effect of disposing of the questions.

The procedure for referral of constitutional questions to the Constitutional Court for determination, in terms of section 175(4) of the Constitution, aborted. There were no longer constitutional questions, the frivolity or vexatiousness of the request for the referral of which would have to be decided by the court a quo in terms of the procedural requirements of section 175(4) of the Constitution.

It must follow that once the constitutional questions were determined by the court a quo on the merits there was no longer a request for a referral of the constitutional questions to the Constitutional Court for determination. The determination of the question whether a request for referral of a constitutional question to the Constitutional Court for determination is merely frivolous or vexatious is an essential step for a subordinate court to undertake in compliance with the requirements of the procedure prescribed under section 175(4) of the Constitution. The court a quo could not relate to the question of the frivolity or vexatiousness of a request for referral of constitutional questions that had been determined by it on the merits. There cannot be a decision on a matter that does not exist.

The applicant proceeded on the assumption that the court a quo's operative decision was that the request for referral of the constitutional questions to the Constitutional Court was frivolous and vexatious. A determination of a constitutional matter by a subordinate court on the merits, in the exercise of its own jurisdiction, cannot be the same as a decision that a request to refer the same constitutional matter to the Constitutional Court for determination is frivolous or vexatious. The two are mutually exclusive. A determination of the constitutional questions on the merits by the subordinate court would extinguish the request for referral of the constitutional questions to the Constitutional Court, effectively removing a cause for a decision on the frivolity or vexatiousness of the request for referral of the constitutional questions.

The applicant does not allege that the decision of the court a quo, on the merits of the constitutional questions, violated any of his fundamental rights. All he suggests in this regard is that the court a quo should not have made the determination.

That cannot be a matter for serious consideration in the light of section 85(1) of the Constitution.

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 28^th 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 CC08-15 on the 28^th 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 Rooney 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 the Constitutional Court in the Prosecutor General of Zimbabwe on The Question of The Constitutional Independence and Protection From The Direction And Control Of Anyone CC28/15 and 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 judgment 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 HC1913/16

Kindly place this minute before her Ladyship Mrs Justice MAKONI.

1. We advise that first respondent served its opposing papers on the 1^st 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 29^th February 2016. When the papers were served upon us in the morning of the 1^st of March 2016, we managed to do so after hours on the 1^st 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 25^th 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 Rooney 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. Counsel for the first respondent 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 “1^st 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 1^st 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 the 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?