In this application, the applicant seeks permanent stay of prosecution of charges preferred against him in 2016.

The applicant was summoned to court on three counts of violating the Road Traffic Act [Chapter 13:11]. The first such appearance was 7 January 2016. Trial did not commence. According to the applicant, trial has failed to commence despite appearing before the court on numerous occasions. This is because witnesses would not attend. The applicant avers that every time he was summoned to court he would be told to go back home and await further summons. Thus, according to the applicant, there has been an unreasonable delay in his prosecution and this has resulted in prejudice.

The second respondent contends that the matter is not properly before the court. According to the second respondent, the matter should have been referred by the lower court.

In his submissions, counsel for the applicant argued that it is not correct that the application should have been made in the lower court. He pointed out that section 167A of the Criminal Procedure and Evidence Act [Chapter 9:07] allows a party to apply for permanent stay of prosecution. Counsel for the applicant further submitted that in the present case a record of proceedings was not even opened in the lower court. As to why this was not so, he submitted that this is because there were no witnesses. He further submitted that it is not the magistrate, but prosecutor, who initiates the opening of a record. In this respect he referred to section 140 of the Criminal Procedure and Evidence Act.

Why a record of proceedings was not opened from the onset when the applicant first appeared before the lower court is a mystery. The relevant provision is section 139 and not 140 of the Criminal Procedure and Evidence Act and it states that -

“Where a public prosecutor has, by virtue of his office, determined to prosecute any person in a Magistrates Court for any offence within the jurisdiction of that court, he shall forthwith lodge with the clerk of the court a statement, in writing, of the charge against that person, describing him by his forename, surname, place of abode, and occupation and setting forth shortly and distinctly the nature of the offence and the time and place at which it was committed.”

Therefore, the initial summoning of the applicant should have triggered the opening of a record of proceedings. If some other practice is obtaining in the Magistrates Court, it is not in keeping with the above provision.

Counsel for the applicant also submitted that there was no need to lead evidence as all facts are common cause. What is in dispute is the procedure. He insisted that the State has not demonstrated what evidence should have been led before the lower court.

Counsel the applicant also made an analogy with a dismissal for want of prosecution in terms of section 160(2) of the Criminal Procedure and Evidence Act. In support thereof he made reference to the case of S v Johannes Tomana HH531-17.

A quick check of S v Johannes Tomana HH531-17 showed that the judgment relates to recusal. There is nothing in that judgment about dismissal for want of prosecution.

In insisting that evidence ought to have been led before the lower court, counsel for the second respondent submitted that this was in order for the applicant to assert his rights. He further submitted that there is no supporting evidence to back the submissions made by counsel for the applicant. As such, counsel for the second respondent submitted that not sufficient information has been placed before the court on account of the incorrect procedure that was adopted.

Counsel for the second respondent submitted that the application should have been referred to this court by the lower court. Unfortunately he cited no provision that enjoins a lower court to adopt such a procedure. The referral of constitutional matters from Magistrates Courts is provided in the Constitution of Zimbabwe. In this respect section 175(4) of the Constitution provides that -

“(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.”

From the above provision it is apparent that the maxim expressio unius est exclusio alterius applies.

The submission that the matter should have been before this court by way of referral was made with subsection (4) in mind but it was overlooked that the provision does not encompass the High Court.

It is evident that the High Court has jurisdiction to determine constitutional matters that are not for the exclusive jurisdiction of the Constitutional Court. In this respect see section 171(1)(c) of the Constitution which provides that -

“(1) The High Court —

(a) Has original jurisdiction over all civil and criminal matters throughout Zimbabwe;

(b) Has jurisdiction to supervise magistrates courts and other subordinate courts and to review their decisions;

(c) May decide constitutional matters except those that only the Constitutional Court may decide; and

(d) Has such appellate jurisdiction as may be conferred on it by an Act of Parliament.”

The jurisdiction of this court having been established, the issue is whether the applicant has made a case for permanent stay of proceedings.

This is a chamber application for an order of leave for direct access to the Constitutional Court (“the Court”) in terms of section 167(5) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”), as read with Rule21(2) of the Constitutional Court Rules S.I.61/2016 (“the Rules”).

At the conclusion of his trial in the High Court, the applicant was convicted of murder, as defined in section 47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] (“the Criminal Law Code”). The first respondent presided over the trial. The applicant was sentenced to eighteen years imprisonment. He is dissatisfied with the manner in which his case was investigated prior to the trial.

The facts of the case are as follows.

The applicant was the second-in-command of the security forces tasked with the duty of protecting Chiadzwa Diamond Mine. It is averred that on 23 September 2011 four brothers were arrested in one of the “diamond fields”. They were detained in an open wire enclosure under police and army guard while awaiting transportation to the court in Mutare.

At 22:00 hours of the same day one of the brothers (hereinafter referred to as “the deceased”) was found dead, lying face down in the enclosure. As a result, the Zimbabwe Republic Police, Marange Criminal Investigations Department, attended the sudden death scene. Investigations were carried out by the third respondent. The applicant said that the third respondent transported the body of the deceased to the Mutare Hospital mortuary for a post-mortem to be carried out to establish the cause of death.

It is the applicant's case that the Zimbabwe Republic Police sent the “sudden death docket” to the second respondent, who was the prosecutor in the criminal trial, instead of transmitting the same to the resident magistrate for assessment, purportedly in terms of the Inquests Act [Chapter 7:07] (“the Inquests Act”). It is contended that the second respondent, not being authorised to process a sudden death docket, violated the applicant's right to a fair trial. The applicant submits that his prosecution before the High Court was instituted on a defective charge because the inquest proceedings had not been conducted in a manner that complied with the Inquests Act.

The applicant further avers that during the trial the State was afforded the opportunity to lead evidence from thirteen witnesses - yet he was allowed to call only one witness.

It is against this background that the applicant alleges that sections 68(1) and 69(1) of the Constitution were violated.

Section 68(1) of the Constitution provides as follows:

“68 Right to administrative justice

(1) Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.”

Section 69(1) of the Constitution guarantees the right to a fair trial. The section provides:

“69 Right to a fair hearing

(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.”

It is on the basis of the alleged failures by the second, the third, and the fourth respondents to observe pre-trial procedures that the applicant is of the view that the aforementioned constitutional provisions were violated.

The application for an order for direct access was opposed by the second and the fourth respondents (“the respondents”).

The respondents raised a preliminary point, in their opposing affidavit, to the effect that the application was not properly before the Court, as the applicant's affidavit reveals only a narration of a myriad of administrative actions he is aggrieved with. It was further contended that the applicant does not demonstrate how his rights have been infringed.

On the merits, it was contended, by the respondents, that inquests are held only to establish the identity of the deceased and whether he or she died of natural causes or death was a result of an unlawful act perpetrated by another person. It was argued that the provisions of the Inquests Act were not relevant to the proceedings before the trial court. They averred that the alleged irregularities should have been raised with the Supreme Court when the appeal was heard.

Consequently, the respondents prayed that the application be dismissed.

The applicant intends to bring the substantive application directly to the Constitutional Court in terms of section 85(1)(a) of the Constitution alleging an infringement of his fundamental rights. The relevant provision reads 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;…,. 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 above provision does not require the applicant to prove an actual violation of his rights. It will suffice for the applicant to merely allege an infringement of his fundamental rights for an application to be properly before the Court.

In Meda v Sibanda and Ors 2016 (2) ZLR 232 (CC)…, the Court held as follows in this regard:

“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.”…,.

The determination was reinforced by the Court in Denhere v Denhere (nee Marange) and Anor CC09-19…, where the Court held as follows:

“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.

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 Court for appropriate relief.

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.”…,.

The mere fact that the applicant has alleged an infringement of his fundamental rights is enough for the purposes of finding in the affirmative that the application is properly before the Court.

The requirements of applications for direct access to the Court are prescribed by Rule 21 of the Rules. Subrule (3) of Rule 21 sets out requirements which have to be complied with where an application for direct access is made to the Court. 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.”

In an application of this nature, it is of utmost importance that the applicant illustrates, clearly, in his or her or its founding affidavit, that it is in the interests of justice that an order for direct access be granted.

In Liberal Democrats and Ors v President of the Republic of Zimbabwe, ED Mnangagwa NO and Ors CC07-18…, the 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.”

The applicant has not stated, in his founding affidavit, that it would be in the interests of justice for direct access to the Court to be granted. He merely states numerous issues he desires the Court to determine. For instance, he states that he wishes the Court to establish whether the second respondent's conduct was inconsistent with the Inquests Act. The applicant consequently failed to establish a basis for the application.

In Sadziwani v Natpak (Pvt) Ltd and Ors CC15-19…, the Court found as follows in this regard:

“The applicant's founding affidavit does not state the basis upon which the Court should consider that it is in the interests of justice to grant the application. Such omission is fatal to the application because the application is not compliant with the Rules. The application has no basis. An application stands or falls on its founding affidavit.”

The Court can only entertain a direct application, in terms of section 85(1) of the Constitution, if the application raises a constitutional question or matter to be determined by the Court.

In Moyo v Sergeant Chacha and Ors CC19-17…, the Court said:

“The making of an application alleging infringement of a fundamental human right or freedom does not necessarily mean that the issue for determination is violation of a fundamental human right or freedom enshrined in the Constitution. The Constitutional Court still has to satisfy itself that the issue for determination is a constitutional matter or an issue connected with a decision on a constitutional matter involving the interpretation, protection or enforcement of the constitutional guarantee of the fundamental human right or freedom.”…,.

A matter does not become a constitutional matter and fall within the jurisdiction of the Constitutional Court merely because it is brought in terms of section 85(1) of the Constitution. The mere reference to constitutional provisions, or alleged infringement of constitutional rights, does not mean that a constitutional issue has been raised. See Magurure and Ors v Cargo Carriers International Hauliers (Pvt) Ltd t/a Sabot CC15-16.

The applicant's first allegation is that his right to a fair trial, as envisaged in section 69(1) of the Constitution was violated on the basis “that most procedures for a trial to commence were not followed.” This is premised on the allegation that the inquest procedures were not followed.

Fair trial rights will accrue when the object of the proceedings is to determine the guilt or innocence of the accused.

A person becomes an accused when he is charged with committing an offence. In National Director of Public Prosecutions v Phillips 2002 (1) BCLR 41 (W)…, the court held that “an accused person is someone called to answer a charge” in proceedings that culminate in a conviction.

Therefore, for rights in terms of section 69(1) of the Constitution to accrue to the applicant, he must have been charged.

In Du Preez v Attorney-General, Eastern Cape 1997 (2) SACR 375 (E)…, ZIETSMAN JP held that “a person is not 'charged' with an offence” until he or she “is advised by a competent authority that a decision has been taken to prosecute” him or her.

When the inquest proceedings were conducted, the applicant had not been charged, and, hence, was not an accused person. The right to a fair trial, as contemplated in section 69(1) of the Constitution, had not accrued to him and thus the manner in which the inquest proceedings were conducted cannot render the consequent trial unfair. This is even more so in the absence of any allegation stating that evidence from the inquest proceedings was adduced at the trial.

The question whether or not the inquest proceedings were conducted in a procedural manner does not involve the interpretation, protection, and enforcement of the Constitution in respect of the right to a fair trial. The question does not raise a constitutional matter and thus the Court cannot assume jurisdiction on the basis of these allegations. In any event, it should be noted that the reason for the prosecutor assessing the docket was merely to establish that, in the light of the cause of death, an inquest had to be done. It had more to do with the deceased than the applicant.

The applicant in the intended application further seeks to impugn the admission of evidence by the trial court, particularly with regard to evidence given by witnesses and the fact that there was no murder weapon or a conclusive post-mortem result.

Du PLESSIS, PENFOLD and BRICKHILL in “Constitutional Litigation” (1edn Juta & Co (Pty) Ltd, Cape Town 2013) remarked as follows…,:

“While the ambit of the phrase 'constitutional matter' is clearly very wide, it is not unlimited. Most significantly, the Constitutional Court has indicated that a purely factual matter does not amount to a constitutional matter. For example, in S v Boesak 2001 (1) SA 912 (CC) the appellant contended that the decision of the Supreme Court of Appeal upholding his conviction for fraud and theft contravened his right to a fair trial (and particularly the right to be presumed innocent) and to freedom and security of the person.

The basis for this contention was the allegation that the Supreme Court of Appeal erred in its evaluation of the evidence and in finding that Boesak's guilt had been proved beyond reasonable doubt. The Constitutional Court rejected this argument, holding that 'the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot itself be a constitutional matter' or, put differently, disagreement with the Supreme Court of Appeal's assessment of facts is not a breach of the right to a fair trial.

The court thus held that '[u]nless there is some separate constitutional issue raised…, no constitutional right is engaged when the appellant merely disputes the findings of fact made by the Supreme Court of Appeal.”…,.

The findings by the trial Judge, whether correct or not, do not result in the infringement of any constitutional rights of the applicant.

The Court, in Williams and Another v Msipha N.O. and Others 2010 (2) ZLR 552 (S) put the matter beyond any doubt. It held…, that:

“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.”…,.

If the applicant was aggrieved by the admission of, or refusal to admit, any evidence, as reflected by his founding affidavit, he ought to have articulated his grievances through the appeal procedure.

It has not been disputed by the applicant that the irregularities complained of were neither raised in nor dealt with by the Supreme Court.

Strangely, the applicant did not even make mention of the fact that the matter went on appeal to the Supreme Court (Joseph Chani v S SC43-17). It is only through the respondents' opposing papers that the Court was made aware of the fact that the matter was dismissed on appeal.

The fact that the applicant lost the non-constitutional case in the Supreme Court is fatal to the application. The Constitutional Court cannot inquire into the final decision of the Supreme Court.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18…, the Court said:

“A decision of the Supreme Court on any non-constitutional matter in an appeal is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling or opinion on a non-constitutional matter. The onus is on the applicant to allege and prove that the decision in question is not a decision on the non-constitutional matter.”

The law provides a clear remedy of an appeal where an applicant is not content with a decision of a lower court. An appeal procedure is a protection in itself. Competent relief on the irregularities alleged could have been granted by the Supreme Court. See Everjoy Meda v Maxwell Matsvimbo 2016 (2) ZLR 232 (CC)…,.

The protection of the right enshrined in section 68(1) of the Constitution has been given effect to, through the enactment of the Administrative Justice Act [Chapter 10:28] (“the AJA”), in accordance with section 68(3) of the Constitution. The applicant ought to have resorted to the remedy prescribed by the Administrative Justice Act (AJA) for the protection and enforcement of the right he claims was infringed by the administrative conduct of the second respondent.

In Zinyemba v Minister of Land and Rural Resettlement and Anor 2016 (1) ZLR 23 (CC)…, the Court said:

“Once an Act of Parliament, which gives effect to all the rights to just administrative conduct set out in subsections (1), (2) and (3) is enacted, section 68 of the Constitution takes a back seat.

The question whether any administrative conduct meets the requirements of administrative justice must be determined in accordance with the provisions of the Administrative Justice Act. Unless there is no Administrative Justice Act or the complaint is that the provisions of the Act do not give effect to the fundamental rights guaranteed under section 68(1) of the Constitution in the terms required by subsection (3), section 68 cannot found a complaint of its violation in terms of section 85 of the Constitution.

Where there is an Administrative Justice Act which gives full effect to all the substantive and procedural requirements for effective protection of the fundamental rights guaranteed under section 68, the Act must surely govern the process for the determination of the question whether a specific administrative conduct is in accordance with the standards of administrative justice. There cannot be an allegation in terms of section 85(1) of the Constitution of administrative conduct violating the fundamental right to administrative justice enshrined in section 68 of the Constitution when there is an Act of Parliament which validly gives full effect to the requirements for the protection of the fundamental right against the provision of which the legality of the administrative conduct must be tested.”

In South African National Defence Union v Minister of Defence and Others 2007 ZACC 10 (CC) the Constitutional Court of South Africa said:

“Where legislation is enacted to give effect to a constitutional right, a litigant may not bypass that legislation and rely directly on the Constitution without challenging that legislation as falling short of the constitutional standard.”

See also MEC for Education, Kwa-Zulu Natal and Others v Pillay 2008 (1) SA 474.

In the result, it is ordered that -

“The application be and is hereby dismissed with costs.”

This is a chamber application for an order of leave for direct access to the Constitutional Court (“the Court”) in terms of section 167(5) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”), as read with Rule 21(2) of the Constitutional Court Rules S.I.61 of 2016 (“the Rules”).

The applicant intends to approach the Constitutional Court in terms of section 85(1) of the Constitution, alleging that a decision by the first respondent refusing his request to refer “constitutional questions” to the Constitutional Court for determination as frivolous and vexatious violates his fundamental rights to equal protection of the law.

Should leave for direct access be granted, the applicant intends to place before the Constitutional Court the question whether section 8(6) of the Money Laundering and Proceeds of Crime Act [Chapter 9:24] (“the Act”) infringes his fundamental rights to equal protection of the law, personal liberty, fair trial, and to be presumed innocent until proven guilty, enshrined in sections 56(1), 49(1), 69(1) and 70(1)(a) of the Constitution respectively.

The Constitutional Court holds that the applicant failed to show that it is in the interests of justice that he be granted leave for direct access to the Court. The application is without merit and ought to be dismissed. The reasons for the decision now follow.

The applicant was employed by the Zimbabwe Consolidated Diamond Company (“ZCDC”) as an Acting Supervisor. In December 2018 he was arraigned before the Magistrate's Court (“the court a quo”) on a charge of contravening section 8(1)(a), as read with section 8(6), of the Money Laundering and Proceeds of Crime Act [Chapter 9:24]. It was alleged that between July 2018 and December 2018 the applicant stole diamonds and sold them to unknown dealers. He deposited the proceeds of the sale into his “Ecocash account”.

In May 2019 the applicant raised questions on the constitutionality of section 8(6) of the Money Laundering and Proceeds of Crime Act [Chapter 9:24]. He requested the trial magistrate to refer the questions to the Court for determination in terms of section 175(4) of the Constitution. The applicant alleged that section 8(6) of the Money Laundering and Proceeds of Crime Act did not define the term “some kind of criminal activity”. He said the section “relieved the State of the obligation to establish what the offence is, how it was committed and by whom”.

It was the applicant's contention that section 8(6) of the Money Laundering and Proceeds of Crime Act infringes on his fundamental rights and was therefore invalid.

The questions the applicant requested the trial magistrate to refer to the Constitutional Court for determination were these:

“(i) Whether section 8(6) of the Act is ultra vires sections 56(1), 69(1), 70(1)(a) and 49(1) of the Constitution, and, as such, unconstitutional and thus void.

(ii) If so, and whether the accused person's prosecution thereunder is not a breach of his constitutional rights to the protection of the law enshrined under section 56(1) and the right to liberty enshrined in section 49(1) of the Constitution.”

The application was opposed by the State.

It submitted that the request was frivolous and vexatious. The contention was that the facts were clear that the applicant was involved in the theft. It was argued that the request for referral of the questions to the Constitutional Court was meant to delay the criminal proceedings.

The court a quo held that the facts of the case did not give rise to a constitutional question. The request for referral of the constitutional questions framed by the applicant was refused on the ground that it was frivolous and vexatious. It was held that the application lacked seriousness and was only meant to delay proceedings.

The applicant was dissatisfied with the decision of the court a quo and filed the application for an order of leave for direct access on 8 August 2019. He asserted that the first respondent's ruling did not show that he applied his mind to the purpose, context, and spirit of the provisions of section 175(4) of the Constitution.

The applicant submitted that it was in the interests of justice that direct access be granted because the object of section 175(4) of the Constitution is to afford speedy access to the Constitutional Court, especially where access to the Constitutional Court is impeded in circumstances that breach provisions of the Constitution which protect fundamental human rights and freedoms.

Lastly, he contended that the questions he raised were at the heart of the right to a fair trial. He submitted that proceeding with the trial and raising the questions on a possible appeal would be contrary to the right to the protection of the law.

The application was opposed by the second respondent.

It was submitted that the applicant had adopted a wrong procedure and that he ought to have appealed against the decision of the court a quo. It was also submitted that, having adopted the referral procedure under section 175(4) of the Constitution, the applicant could not ditch this procedure and seek to file a direct application in terms of section 85(1) of the Constitution.

Direct access is a remedy which is granted only in exceptional cases and where compelling reasons are given.

The requirements of an application of this nature are set out in Rule 21(3) of the Constitutional Court Rules and are 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 success or failure of the application rests on the consideration of the question whether or not it is in the interests of justice that direct access be granted.

The issue that arises is whether the refusal of the request for referral was not within the confines of section 175(4) of the Constitution, to an extent that it violated the applicant's right to equal protection of the law.

Section 175(4) of the Constitution, which provides for referrals to the Constitutional Court, states that:

“(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.”…,.

This provision must be read with Rule 24 of the Constitutional Court Rules, which gives practical effect to section 175(4) of the Constitution. The Rule is to the effect that a judicial officer, upon satisfying himself or herself that a request is not frivolous or vexatious, shall refer the constitutional matter to the Constitutional Court.

The Supreme Court, sitting as a Constitutional Court, had occasion to deal with the question whether or not the refusal to refer a matter by a magistrate violated the fundamental right to equal protection of the law in Williams and Anor v Msipha N.O. and Ors 2010 (2) ZLR 552 (S)…,. It said:

“The answer lies in the examination of what the magistrate was required, by section 24(2) of the Constitution, to do and what he actually did as the basis of the refusal.

The right to an effective judicial protection of a fundamental human right or freedom requires that the judicial officer should act in accordance with the requirements prescribed by the Constitution for the protection of the particular right or freedom…,.

The procedural and substantial requirements with which the person presiding in a lower court is required…, to comply under section 24(2) of the Constitution are integral parts of the protection for the right of access to the Supreme Court given to any person who has raised, in the proceedings in that court, a question as to the contravention of a fundamental right or freedom and requested the judicial officer to refer the question to the Supreme Court.

The only restriction of the obligation imposed on the judicial officer is the discretion given to him or her to refuse a request for a referral when, in his or her opinion, the raising of the question is 'merely frivolous or vexatious'.…

A refusal of a request for a referral, based on an opinion formed in accordance with the procedural and substantive requirements prescribed under section 24(2) of the Constitution, constitutes a permissible denial of access to the Supreme Court. What all this means is that under the system governing the exercise of judicial power, the legal basis of an opinion does not follow from the choice of factors by the person presiding in the lower court alone but must rest upon objective factors prescribed by the law.”…,.

Regarding the procedure under section 175(4) of the Constitution, the Constitutional Court, in Nyagura v Ncube N.O. and Ors CC07-19…, stated that there must be a moment when the presiding person must address his or her mind to the factors that answer a number of questions, including whether the request to refer the matter to the Court is frivolous or vexatious, and whether the determination by the Court is necessary for the purposes of the proceedings before him or her.

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. The standard by which the facts on which the raising of a question is based must be measured is put so high so as to enable the person presiding in the lower court to stop legal proceedings that should not have been launched at all.

In Nyathi v The State CC16-19, the Constitutional Court also explained the importance of the procedure under section 175(4) of the Constitution…,:

“The importance of guarding the Court against the abuse of its process through the adjudication of matters that ought not to have passed the frivolity or vexatiousness test cannot be over-emphasised. The Court must protect its integrity and ensure that it only adjudicates that which it is constitutionally mandated to hear and determine.

Consequently, where the procedures of the Court are used to achieve purposes for which they are not intended that would amount to an abuse of process. It is in this context that presiding persons ought to exercise their minds when seized with a request for a referral to the Court.”

The meaning of the phrase “frivolous or vexatious” was explained in Williams and Anor v Msipha N.O. and Ors 2010 (2) ZLR 552 (S)…,:

“In S v Cooper and Ors 1977 (3) SA 475 at 476D, BOSHOFF J said that the word 'frivolous', in its ordinary and natural meaning, connotes an action or legal proceeding characterised by lack of seriousness as in the case of one which is manifestly insufficient.

The raising of the question for referral to the Supreme Court, under section 24(2) of the Constitution, would have to be found on the facts to have been obviously lacking in seriousness, unsustainable, manifestly groundless, or utterly hopeless and without foundation in the facts on which it was purportedly based.

In Martin v Attorney General and Anor 1993 (1) ZLR 153 (S) it was held that the ordinary and natural meaning of the words 'frivolous or vexatious', in the context of section 24(2) of the Constitution, had to be borne in mind and applied to the facts by the person presiding in the lower court to form the requisite opinion. GUBBAY CJ, at 157, said:

'In the context of section 24(2), the word 'frivolous' connotes, in its ordinary and natural meaning, the raising of a question marked by a lack of seriousness; one inconsistent with logic and good sense, and clearly so groundless and devoid of merit that a prudent person could not possibly expect to obtain relief from it.

The word 'vexatious', in contra–distinction, is used in the sense of the question being put forward for the purpose of causing annoyance to the opposing party in the full appreciation that it cannot succeed; it is not raised bona fide and a referral would be to permit the opponent to be vexed under a form of legal process that was baseless…,.'”

In dismissing the application, the court a quo stated as follows:

“The accused cannot, at this stage, before the trial has produced evidence, say that there is no evidence that he committed theft so he must be presumed innocent of theft of the diamonds.

The application can only be granted where it is not frivolous or vexatious…,.

The defence is clearly not serious when he says that his right to the presumption of innocence will be infringed yet he elects not to testify on why he makes such allegation.

The court therefore makes a finding that the application lacks seriousness and is meant only to delay proceedings.”…,.

Section 8 of the Money Laundering and Proceeds of Crime Act [Chapter 9:24] provides as follows:

“8 Money laundering offences

(1) Any person who converts or transfers property —

(a) That he or she has acquired, through unlawful activity, or knowing, believing, or suspecting that it is the proceeds of crime; and

(b) For the purpose of concealing or disguising the illicit origin of such property, or of assisting any person who is involved in the commission of a serious offence to evade the legal consequences of his or her acts or omission; commits an offence….,.

(6) In order to prove that property is the proceeds of crime, it is not necessary for there to be a conviction for the offence that has generated the proceeds, or for there to be a showing of a specific offence rather than some kind of criminal activity, or that a particular person committed the offence.”

The particulars of the applicant's charge were articulated as follows in the Charge Sheet:

“Contravening section 8(1)(a) as read with section 8 Part 6 of the Money Laundering and Proceeds of Crime Act Chapter 9:24

In that during the period extending from July 2018 to 14 December 2018, and at Zimbabwe Consolidated Diamond Company, Loverage Makoto was employed by Zimbabwe Consolidated Diamond Company, he stole diamonds and sold them to unknown dealers and obtained $34,246-00 of which he deposited into his Ecocash Account number…,.”…,.

Implicit from a reading of the Charge Sheet is that the applicant was charged under section 8(1) of the Money Laundering and Proceeds of Crime Act. Section 8(1) is the charge section. It is very specific and the crime alleged has both actus reus and mens rea.

Section 8(1) of the Money Laundering and Proceeds of Crime Act reveals that the State cannot charge a person under it unless it is convinced that an unlawful activity was committed. The State has the duty to show the actus reus. The State identified the actus reus in the case as “theft of diamonds”.

Section 8(6) of the Money Laundering and Proceeds of Crime Act, on the other hand, deals with the evidential burden imposed upon the State to prove the offence under section 8(1) and lessens the burden of proof on the State. It relates to proof of the crime and not the charge itself. It can only be resorted to if such necessity arises, that is, where the State will have failed to establish proof beyond a reasonable doubt under section 8(1) of the Money Laundering and Proceeds of Crime Act.

The alleged vagueness does not relate to the crime, but, instead, it relates to the burden of proof.

Sight must not be lost of the fact that in this case the State did not use section 8(6) of the Money Laundering and Proceeds of Crime Act in relation to the applicant. Hence, it is imperative that, when deciding whether or not a provision is unconstitutional, regard must be had, not only to the mere question itself, but also to the context or circumstances in which the question is being raised.

There being a possibility that the alleged theft of diamonds can be proved without resort to section 8(6) of the Money Laundering and Proceeds of Crime Act, the determination of the question becomes irrelevant.

Whether or not the State proves the case is of no importance to the Constitutional Court.

The question regarding the constitutionality of section 8(6) of the Money Laundering and Proceeds of Crime Act should be predicated on facts.

As aforementioned, the articulation of the charge, and particulars thereof, leave no room for ambiguity or uncertainness in interpretation. The State identified the proceeds (money) to have been obtained as a result of an unlawful activity, in particular theft of diamonds. The argument that section 8(6) of the Money Laundering and Proceeds of Crime Act is unconstitutional loses sight of the fact that the provision may be inapplicable as the unlawful act has been identified with precision. The applicant's case can be disposed of on factual findings and evidence to be led by the State under section 8(1) of the Money Laundering and Proceeds of Crime Act without the need to resort to the constitutionality of section 8(6) of the Money Laundering and Proceeds of Crime Act.

The applicant would have been in a stronger position had he been arguing his case after being convicted without direct evidence to prove the unlawful activity. He would also have been in a stronger position had he been arguing his case after the State secured a conviction following resort to section 8(6) of the Money Laundering and Proceeds of Crime Act.

That not being the case, the applicant is simply trying to put the cart before the horse.

Under section 85(1) of the Constitution, which provides for direct access to the Constitutional Court, for the Constitutional Court to determine the constitutional question a party has to show that he, she or it has an interest to protect and that the interest has been, is being, or is likely to be, violated.

The applicant's interest is not being or has not been violated, as he was properly charged under section 8(1) of the Money Laundering and Proceeds of Crime Act. The Court noted that the applicant did not challenge section 8(1). By this conduct, he accepted that he was properly charged in terms of section 8(1) of the Act and implicitly accepted its constitutionality.

Consequently, it is not in the interests of justice that direct access be granted.

There is no need to resort to section 8(6) of the Money Laundering and Proceeds of Crime Act to secure the applicant's conviction. The questions as to the constitutionality of section 8(6) should not have been taken in the abstract. In a referral, the questions should be premised on facts. Unless the State resorts to section 8(6) of the Money Laundering and Proceeds of Crime Act, no constitutional issue can arise in the matter.

More importantly, the determination of a question must be of benefit to a party.

It would be absurd for the Constitutional Court to pronounce on the constitutionality of section 8(6) of the Money Laundering and Proceeds of Crime Act and then state that, in the circumstances of the case, the finding is unnecessary.

This approach would render the whole determination an advisory opinion or a mere academic opinion.

The Court is loathe to offer opinions which at the end of the day do not assist in the resolution of disputes in the lower courts.

If a remedy is available to a party, whether it is a factual or a legal remedy, courts will not normally consider a constitutional question unless the existence of a remedy depends on it.

The determination of the constitutional question, before evidence has been led, is not necessary for the disposal of the proceedings in the court a quo, where the allegation is that the applicant stole and sold diamonds and converted the proceeds therefrom. The court a quo was therefore correct in holding that “the accused cannot, at this stage, before the trial has produced evidence, say that there is no evidence that he committed theft so he must be presumed innocent of theft of diamonds.”

From the foregoing, the Constitutional Court finds that the ruling by the first respondent was made within the confines of the law. The right to equal protection of the law was not infringed. The applicant failed to demonstrate that his prosecution under section 8(1), read together with section 8(6) of the Money Laundering and Proceeds of Crime Act is unconstitutional.

The alleged vagueness of section 8(6) of the Money Laundering and Proceeds of Crime Act does not relate to the unlawful activity or the crime - it relates to the burden of proof imposed on the State.

A reading of the first respondent's ruling shows that he was alive to the need to answer the question of whether or not the request was frivolous or vexatious.

The ruling demonstrates that the first respondent applied his mind to the spirit and purpose of section 175(4) of the Constitution. This emerges from the fact that the first respondent stated that “the application can only be granted where it is not frivolous or vexatious.”

The applicant was aggrieved by the refusal of the request for referral.

The law provides for the remedy of an appeal where one is aggrieved by a determination of a court. The appeal procedure is generally available only at the conclusion of the trial, as an Appellate Court should be slow to intervene in ongoing proceedings.

In the result, it is ordered as follows -

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

This is a referral in terms of section 175(4) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”) from the Magistrate's Court (“the court a quo”) sitting at Gwanda.

After hearing argument from both the applicant and the respondent, the Court issued the following order:

“By consent: The matter is struck off the roll with no order as to costs.”

The reasons for the decision now follow.

The applicant testified as an “unconvicted accomplice witness” in the trial of one Dumisani Nyathi (“Nyathi”), who was charged in the court a quo with stock theft in contravention of section 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). It was contended that Dumisani Nyathi had stolen fourteen head of cattle belonging to one Jethro Siziba.

All fourteen cattle were recovered from the applicant.

The applicant was arrested on 22 March 2018 on the same charges faced by Dumisani Nyathi and he appeared before the court a quo on 23 March 2018. The applicant alleges that he was released and served with a summons to appear in court on 29 March 2018. He also alleges that he was approached by the prosecutor, who requested him to testify against Dumisani Nyathi as an accomplice witness.

He said the prosecutor informed him that he would be given full immunity if he testified truthfully.

At the trial, the prosecutor indicated to the magistrate that the applicant was an accomplice in the commission of the offence charged against Dumisani Nyathi although he was still to be tried. He requested the court to warn the applicant in terms of section 267 of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the CPEA”).

The applicant was duly warned by the court a quo.

The applicant alleges that, after testifying for the State, he was told, by the prosecutor, that he no longer needed to attend court on 29 March 2018 as per the summons that he had been served with and that he was a free man.

After a full trial, Dumisani Nyathi was acquitted of the charges against him.

The court a quo found that the applicant's evidence, to the effect that Dumisani Nyathi sold him the cattle, needed corroboration and that Dumisani Nyathi's defence had not been sufficiently disproved by the prosecution. The court also held that there was doubt that the applicant bought the fourteen cattle from the accused person, as there was no documentary proof or witnesses to that effect. More importantly, it was found that “the issue of selling cattle to Perfect Nyathi is very crucial and failure to adequately buttress it vitiates the State case.”

It ought to be noted, at this point, that the trial magistrate did not make a specific pronouncement as regards the applicant's liability to prosecution.

The respondent was dissatisfied with the outcome of the trial of Dumisani Nyathi and sought to appeal against the decision in the High Court. However, the official seized with prosecuting the matter was of the view that the appeal against Dumisani Nyathi's acquittal had no merit and that the State ought to pursue charges against the applicant instead.

On 8 November 2018, the applicant was summoned to appear in the court a quo on the charge of stock theft in contravention of section 114(2)(a) of the Criminal Law Code. It was now the State's case that the applicant, with the assistance of Dumisani Nyathi, had hatched a plan to steal the fourteen head of cattle.

On 4 January 2019, the applicant made an application to the court a quo for referral of the matter to the Constitutional Court. The basis of the application was that the applicant's right to a fair trial enshrined in section 69(1) of the Constitution would be infringed if the State was allowed to use him as an accomplice witness and thereafter turn against him and use the same evidence to secure a conviction against him.

It was also contended that the trial magistrate's failure to endorse the applicant's discharge on the record violated his right to a fair trial.

The respondent opposed the application on the basis that it was frivolous and vexatious.

It contended that the magistrate did not endorse on the record that the applicant be discharged from all liability to prosecution for the offence of theft of fourteen head of cattle because he was not satisfied that the applicant had fully answered all lawful questions put to him. The contention was that the applicant had not given evidence which tended to incriminate himself.

After hearing both parties, the magistrate said:

“The court also noted the fact that section 267(2) of the Criminal Procedure and Evidence Act is not clear on whether if immunity is not granted, should the same be endorsed on the record or not. Also, the court considered that there is nowhere in the Rules where it is stated that non-conviction in a matter where an accomplice witness gave evidence means that he/she did not answer fully to the satisfaction of the court and that immunity should be denied. The onus is, after all, on the State/prosecution to prove its case beyond a reasonable doubt and not on the accomplice witness to make sure that his/her testimony secures a conviction.”

It was also the court a quo's finding that the delay by the respondent in prosecuting the applicant was caused by the fact that the prosecutor believed that the applicant deserved immunity from prosecution.

The court a quo said that it was only after the failed attempt to appeal against Dumisani Nyathi's acquittal, and further pressure from the complainant, that the prosecution against the applicant was mounted.

The court a quo decided that the following question be referred to the Constitutional Court for determination:

“Whether the applicant's right to a fair hearing, as provided for in terms of section 169 (sic) of the Constitution, has been infringed by the respondent's decision to prosecute him on the same charges or cognate charges after using him as an un-convicted accomplice witness.”

Section 169 of the Constitution is concerned with the jurisdiction of the Supreme Court.

The section containing provisions on the right to a fair hearing is section 69.

Section 69 of the Constitution has four subsections making provision for different but related matters on the right to a fair hearing, such as having a fair trial within a reasonable time before an independent and impartial court, having access to the courts, and having access to legal representation.

The learned magistrate thought that a decision by the prosecutor to prosecute the applicant on charges in respect of which he had given evidence as an accomplice witness must, without more, give rise to a constitutional question on the alleged violation of the right of the applicant to a fair hearing of the charge he is to face.

The basis of the reasoning by the learned magistrate is not clear when regard is had to the fact that the decision to prosecute the applicant was influenced by the conduct of the trial court in terms of section 267(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

Where a trial court or a magistrate has not entered on the record of the proceedings the discharge of an accomplice witness from all liability to prosecution for the offence concerned in accordance with the requirements of section 267(2) of the Criminal Procedure and Evidence Act, the reasonable inference is that the trial court was not satisfied that the person answered fully all such lawful questions put to him or her as an accomplice witness. In the circumstances, the decision to prosecute the person for the offence concerned cannot be said to give rise to the constitutional question of violation of the person's right to a fair hearing of the charge.

Section 268 of the Criminal Procedure and Evidence Act protects such an accomplice by prohibiting the adduction of evidence against him or her in a prosecution for an offence in respect of which he or she gave evidence on behalf of the prosecution incriminating himself or herself at any trial in respect of the offence for which he or she is subsequently prosecuted.

The evidence is inadmissible against him or her at the trial.

Section 268 of the Criminal Procedure and Evidence Act is sufficient proof of the fact that mere giving of evidence for the prosecution at any trial in respect of an offence is no guarantee of immunity against prosecution for the same offence.

Although the applicant did not file a draft order before the Constitutional Court in terms of Rule 14(3) of the Constitutional Court Rules, 2016 (“the Rules”), the heads of argument filed on his behalf show that he seeks the following relief:

“1….,. An order declaring that his right to a fair hearing has been infringed by the respondent's decision to prosecute him on the same charges or cognate charges after he testified as an unconvicted accomplice witness in the case of S v Dumisani Nyathi CRB GNDP 249/18.

2….,. An order of permanent stay of prosecution in the case of S v Perfect Nyathi CRB GNDP 938/18 as the appropriate remedy for the infringement of his right to a fair trial alluded to above.”

The gravamen of the applicant's argument before the Constitutional Court was that the court a quo failed to appreciate the import of section 267 of the Criminal Procedure and Evidence Act and that its omission to make an endorsement regarding the applicant's liability after he testified was an irregularity. It was submitted that such irregularity does not take away the applicant's right to immunity from prosecution.

The allegation was also made that the applicant answered all questions to the satisfaction of the court a quo and was consequently deserving of discharge in terms of section 267 of the Criminal Procedure and Evidence Act.

As such, the failure to endorse the record was alleged to be an infringement of the applicant's constitutional right to a fair trial.

It is not clear which trial is referred to.

It is against this background that the applicant prayed for the aforementioned relief.

The respondent's argument was that there is no constitutional issue before the Constitutional Court because the applicant's rights were sufficiently protected by section 268 of the Criminal Procedure and Evidence Act.

The first issue for determination is whether or not the matter is properly before the Court.

The matter can be disposed of on this ground if the Court finds that the referral is not properly before it.

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.”…,.

Rule 24 of the Constitutional Court Rules is to the effect that:

“(2) Where the person presiding over a court of lesser jurisdiction is requested by a party to the proceedings to refer the matter to the Court and he or she is satisfied that the request is not frivolous or vexatious, he or she shall refer the matter to the Court.”…,.

A constitutional matter is defined, in section 332 of the Constitution, to mean a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution.

It must arise or be raised in the proceedings in the subordinate court.

The presiding person may, if he or she is of the view that the determination of the constitutional issue by the Constitutional Court is necessary for the purposes of the proceedings before him or her, mero motu refer the matter to the Constitutional 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 disposition of the controversy between the parties 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.

Regarding the meaning and content of the phrase “frivolous and vexatious”, the Court, in Williams and Anor v Msipha N.O. and Ors 2010 (2) ZLR 552 (S), stated the following…,:

“In S v Cooper & Ors 1977 (3) SA 475 (T) at 476D, BOSHOFF J said that the word 'frivolous', in its ordinary and natural meaning, connotes an action or legal proceeding characterised by lack of seriousness as in the case of one which is manifestly insufficient. The raising of the question for referral to the Supreme Court under section 24(2) of the Constitution would have to be found on the facts to have been obviously lacking in seriousness, unsustainable, manifestly groundless or utterly hopeless and without foundation in the facts on which it was purportedly based.

In Martin v A-G & Anor 1993 (1) ZLR 153 (S) it was held that the ordinary and natural meaning of the words 'frivolous or vexatious', in the context of section 24(2) of the Constitution, had to be borne in mind and applied to the facts by the person presiding in the lower court to form the requisite opinion. GUBBAY CJ, at 157, said:

'In the context of section 24(2), the word 'frivolous' connotes, in its ordinary and natural meaning, the raising of a question marked by a lack of seriousness; one inconsistent with logic and good sense, and clearly so groundless and devoid of merit that a prudent person could not possibly expect to obtain relief from it.

The word 'vexatious', in contra–distinction, is used in the sense of the question being put forward for the purpose of causing annoyance to the opposing party in the full appreciation that it cannot succeed; it is not raised bona fide and a referral would be to permit the opponent to be vexed under a form of legal process that was baseless.

See Young v Holloway & Anor [1895] P 87 at 90-91; Dyson v Attorney General [1911] I KB 410 (CA) at 418; Norman v Mathews (1916) 85 LJ KB 857 at 859; S v Cooper & Ors 1977 (3) SA 475 (T) at 476DG; Fisheries Development Corporation of SA Ltd v Jorgensen & Anor 1979 (3) SA 1331 (W) at 1339E-F.'”

As said in Nyagura v Ncube N.O. and Ors CC07-19…, there must be a moment in the procedure set out in section 175(4) of the Constitution when the presiding person must address his or her mind to factors that answer a number of questions, including whether the request to refer the matter to the Constitutional Court is frivolous or vexatious, and whether the determination by the Constitutional Court is necessary for the purpose of the proceedings before him or her.

Therefore, the position of the law is that it is a request for referral that ought to be considered frivolous or vexatious and not the constitutional question itself.

In Nyagura v Ncube N.O. and Ors CC07-19, the Constitutional Court held as follows…,:

“It is not compliance with the requirements of the procedure of referral of a constitutional matter to the 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 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.”…,.

In casu, the court a quo said the following in referring the matter to the Constitutional Court:

“It is the court's finding that there is nothing frivolous or vexing about the applicant seeking to get an answer as to what happened to the handicap that the respondent initially felt encumbered it before proceeding against it (sic).

Also, can a fair trial be held when there are some issues left un-clarified, like the issue of what interpretation is to be given to the non-endorsement of whether immunity was granted or not and would it be fair for such to be left unclarified and open to any interpretation by any party, which will obviously interpret it to serve its own purpose and support its case or argument?

The court cannot shrug away a possible violation of one of the fundamental rights enshrined in the Constitution based on assumptions that the trial court in S v Dumisani Nyathi meant this or that, and, if such assumptions raise questions which neither of the parties can fully answer with confidence, then, it is this court's view that it is proper for the matter to be referred on the following question…,.”

It is therefore apparent that the court a quo did not make a finding as to whether the applicant's request for a referral was frivolous or vexatious. Instead, it appears that the court a quo found that the constitutional question itself was not frivolous and vexatious and that it deserved the attention of the Constitutional Court.

The court a quo sought to interpret the provisions of section 267(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] to mean that a trial court which has heard evidence of an accomplice witness called by the prosecution ought to enter on the record of proceedings the fact that the person did not answer fully to its satisfaction all such lawful questions put to him or her.

According to the court a quo, a decision to prosecute the accomplice for the offence in respect of which he or she had given evidence for the prosecution, where the trial court has not entered on the record of proceedings the fact that it is not satisfied that the accomplice had fully answered all lawful questions put to him or her in respect of the offence, would constitute a violation of the right of the accomplice to a fair hearing.

Needless to say, the interpretation sought to be placed on the provisions of section 267(2) of the Criminal Procedure and Evidence Act, by the court a quo, is not borne out by the clear and unambiguous language of the provision.

A determination of whether or not the request is frivolous or vexatious is not a finding to be undertaken by the Constitutional Court on behalf of the referring court. It is an exercise which must be carried out by the presiding person during the course of proceedings in the lower court. The presiding person ought to apply his or her mind to the request and make an assessment, based on the evidence presented, whether or not the request is frivolous or vexatious.

The standard by which the facts on which the raising of a question is based must be measured is put so high so as to enable the person presiding in the lower court to stop legal proceedings that should not have been launched at all; Williams and Anor v Msipha N.O. and Ors 2010 (2) ZLR 552 (S).

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.

The importance of guarding the Constitutional Court against the abuse of its process, through the adjudication of matters that ought not to have passed the frivolity or vexatiousness test, cannot be over-emphasised. The Constitutional Court must protect its integrity and ensure that it only adjudicates that which it is constitutionally mandated to hear and determine. Consequently, where the procedures of the Constitutional Court are used to achieve purposes for which they are not intended that would amount to an abuse of process.

It is in this context that presiding persons ought to exercise their minds when seized with a request for a referral to the Constitutional Court.

The court a quo failed to do so.

The facts of the matter raise an issue of grave concern to the Constitutional Court. This concern comes after a proper reading of the record and a careful analysis thereof.

It is common cause that the trial court did not make an endorsement on the record as regards the applicant's liability to prosecution after he had testified for the prosecution as an “un-convicted accomplice witness”. It is also common cause that the respondent expressed the intention to appeal against Dumisani Nyathi's discharge after the trial court had found him not guilty of the offence of stock theft. It was the respondent's case that the trial court ignored all evidence on record which proved beyond a reasonable doubt that Dumisani Nyathi had committed the offence of stock theft.

Owing to the conduct of certain officials representing the respondent, who were apparently in agreement with the findings of the trial court, the respondent did not pursue the appeal against that decision. Instead, the position was taken to channel the respondent's resources towards prosecuting the applicant, who had been found in possession of the stolen beasts.

The Constitutional Court finds the respondent's decision to abandon the appeal against Dumisani Nyathi's discharge unsettling at the very least. It appears that there is evidence on the record which might link Dumisani Nyathi to the said offence.

It is, however, not incumbent upon the Constitutional Court to point out such evidence or to make substantive or authoritative findings regarding the said evidence. Suffice to say that it appears to the Constitutional Court that the respondent, through those who acted on behalf of the Prosecutor-General, may have misdirected itself in electing not to pursue the appeal in these circumstances.

It is not without considerable reservation that the Constitutional Court makes the aforementioned observations.

To err on the side of caution, it must be emphasised that the Constitutional Court's sentiments ought not be taken as a direction to the respondent, but only as mere observations, that came about after a careful analysis of the record.

It is necessary that a copy of this judgment be brought to the attention of the Prosecutor General.

The applicant in this matter seeks a permanent stay of prosecution in respect of a charge that arose more than eight (8) years ago. He claims that his right to a fair trial within a reasonable time, as enshrined in section 18(2) of the former Constitution, has been violated.

The applicant was arrested in November 2005 on a charge of converting to his own use a sum of ZW$760,000,000= that was given to him by the complainant to purchase 30,000 litres of diesel and 8,000 litres of petrol. According to the submissions filed on his behalf before the Magistrates Court on 27 June 2011, he was detained but later released and then arrested again in November 2007. At the end of 2008 he was taken off remand because the State was not ready to proceed. Following his further arrest, in May 2011, he was summoned to appear in court on 20 June 2011, when he gave notice of his intention to apply for the matter to be referred to the Supreme Court in terms of section 24(2) of the former Constitution. The matter was then so referred by the Magistrates Court sitting at Harare on 8 July 2011.

It is averred, on behalf of the applicant, that the inordinate delay of six (6) years in bringing the matter to trial was due to the State's lack of preparedness. It is also averred that he has been prejudiced by the passage of time, the inflation of the Zimbabwe dollar, and the subsequent changeover to the United States dollar.

The State opposed the application for referral on the grounds set out in its response filed before the magistrate on 6 July 2011. It further opposed the request for permanent stay of proceedings in its heads of argument before this Court.

In essence, it is averred that the matter is not properly before this Court because it consists only of the submissions filed in the Magistrates Court. There was no affidavit or evidence adduced in that court, nor was any hearing conducted before it, to enable the magistrate to determine whether or not the application was frivolous or vexatious. Additionally, no documentation was attached to the application to support the applicant's averments as to what transpired between 2005 and 2011. Consequently, neither the prosecutor nor the magistrate could test the veracity of the applicant's allegations.

It is further argued, for the respondent, that this Court is handicapped by the lack of evidence in making a full inquiry into and determining whether or not the applicant's right to a fair trial has been violated.

Having regard to the respondent's position, the preliminary question to be decided is whether or not this matter is properly before this Court in light of the procedure adopted by the applicant's counsel in making the request for referral in the Magistrates Court. Flowing therefrom is the related question as to whether or not, on the basis of the evidence on record, this Court can properly make a determination on the alleged violation of the applicant's right to a fair and speedy trial as guaranteed by section 18(2) of the former Constitution.

Counsel for the applicant accepts that neither party filed affidavits or gave evidence before the Magistrates Court in relation to the factual and legal requirements to justify or negative a permanent stay of prosecution. The magistrate only considered the written submissions filed on behalf of the applicant before referring the matter to the Supreme Court. Nevertheless, counsel for the applicant contends that there are sufficient details in those submissions to enable this Court to assess the relevant facts and decide the constitutional question referred for determination. If this is not possible, the way forward would be to refer the matter back to the Magistrates Court to hear evidence from both parties.

Counsel for the respondent reiterates the position adopted by the State before the Magistrates Court, viz. that this Court, in the absence of the requisite evidence on record, cannot properly make any finding as to the reasons for the delay in commencing trial, whether or not the applicant asserted his rights, and the nature of the prejudice, if any, occasioned by the delay. She submits, however, contrary to the stance taken in the respondent's heads of argument, that the application should not be dismissed. Instead, the matter should be referred to the Magistrates Court for a full inquiry to hear evidence and make proper findings of fact in order to determine whether or not the application for referral is frivolous or vexatious.

Where an accused person alleges any infringement of his or her right to a fair trial within a reasonable time, the factors that are to be ventilated and determined are now well settled. They are:

(i) The length of the delay;

(ii) The reason or explanation and responsibility for the delay;

(iii) The assertion of his or her rights by the accused; and

(iv) Prejudice to the accused arising from the delay.

See In re Mlambo 1991 (2) ZLR 339 (S); S v Nhando & Others 2001 (2) ZLR 84 (S); S v Nkomo SC52-06.

In order to enable a proper evaluation of the above-mentioned factors it is essential that evidence be led, primarily by the accused person, as to what transpired from the date of the charge to the date when referral of the alleged violation of rights is sought. The reasons for this were clearly articulated by GUBBAY CJ in S v Banga 1995 (2) ZLR 297 (S)…, as follows:

“Regrettably, the manner in which the legal practitioner requested the referral was totally misconceived. It was wholly insufficient to make a statement, from the bar, and then to point solely to the length of the delay. He was obliged to call the applicant to testify to the extent to which, if at all, the cause of the delay was his responsibility; to whether at any time before 16 August 1994, he had asserted his right to be tried within a reasonable time; and, even more importantly, to whether any actual prejudice had been suffered as a result of the delay. Such a fundamental omission on the part of the defence is fatal to the success of the application….,.

Moreover, the absence of viva voce evidence completely disables findings to be made that the long delay has been the cause of mental anguish and disruption to the business and social activities of the accused, particularly where, as here, his liberty was not interfered with; and that it has impaired his ability to exonerate himself from the charge due to the death, disappearance or forgetfulness of potential witnesses. See In re Mlambo supra at 352G and 354D-E; S v Demba SC194-94; S v Marisa supra at p9.

I trust that I have made it clear that it is essential for an accused, who requests a referral to this court of an alleged contravention of the Declaration of Rights, to ensure that evidence is placed before the lower court. It is on that evidence that the opinion has to be expressed as to whether the question raised is merely frivolous or vexatious. It is on that record that the Supreme Court hears argument and then decides if a fundamental right had been infringed. Only in exceptional circumstances will an applicant be permitted to supplement the record of the proceedings before the lower court by the production of affidavits. Cogent reasons will have to be provided as to why the further evidence was not presented to the lower court.”

This reasoning has been subsequently adopted and applied by the Supreme Court on several occasions; see Sivako v Attorney-General 1999 (2) ZLR 271 (S); S v Njobvu 2007 (1) ZLR 66 (S), and, more recently, by this Court in Sengeredo v The State CC11-14, per CHIDYAUSIKU CJ.

I advert, firstly, to the notice of application for referral, filed on 27 June 2011, wherein it is stated that “the applicant's affidavit and annexures will be used in support of the application.” It is common cause that no such affidavit was ever filed. All that was attached to the notice were the submissions prepared by his legal practitioners, the request for remand, a bail deposit receipt, the charge sheet, and the complainant's statement.

Following the application cum submissions, the State filed its opposing response, dated 6 July 2011, highlighting the procedural and evidential deficiencies besetting the application.

Despite this, on 8 July 2011, the learned trial magistrate proceeded to issue his ruling (comprising a total of 4 lines) granting the application for referral to the Supreme Court. He did this without hearing argument from the parties or affording them an opportunity to present evidence on the factual circumstances bearing upon the application.

The only “evidence” from the applicant that was before the Magistrates Court consisted of the allegations and assertions contained in the written submissions attached to the application.

According to those submissions, the applicant was first charged in November 2005 and only summoned to court for trial in June 2011.

The obvious implication is that he was available to attend trial throughout that period.

As against this are the averments contained in the complainant's statement, dated 8 May 2011, to the effect that the applicant had run away to South Africa in 2005 and only returned to Zimbabwe in 2011. As pointed out by counsel for the respondent, this appears to tally with the police docket which shows that the applicant could not be located between 2005 and 2011.

There can be no doubt that all of the above assertions and counter-assertions should have been ventilated through viva voce evidence in order to determine the reasons and responsibility for the delay in bringing the applicant to trial.

Equally necessary was the evidence necessary to demonstrate that the applicant did in fact assert his right to a speedy trial, that he has been prejudiced by the delay, and the specific manner in which he has been prejudiced. Moreover, in respect of all of these factors, the State should have been given the opportunity to test the veracity of the applicant's position through cross-examination, in addition to being given the opportunity to adduce its own evidence to rebut that position.

It is abundantly clear from the foregoing that this Court would be severely handicapped, on the basis of the evidence on record, in attempting to make any meaningful finding on the relevant issues so as to determine the alleged violation of the applicant's right to a fair and expeditious trial. The evidentiary deficiencies in casu are fatal to the propriety of the proceedings before the Magistrates Court and its ruling referring the matter for determination by this Court.

In short, the application is fundamentally and fatally defective.

Moreover, because it was defective as from its inception, I take the view that it is incurably defective and cannot be regularised. That being so, I do not think it appropriate, as proposed by both counsel, to remit the matter to the trial court for it to conduct the necessary inquiry into the relevant facts. It is, of course, open to the applicant, should he so deem fit, upon proper advice, to institute a fresh application before that court in compliance with the established procedural requirements.

In the result, the application is dismissed. There shall be no order as to costs, none having been sought by the respondent.

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

The applicant intends to file the substantive application with the Constitutional Court in terms of section 85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”).

The substantive application the applicant intends to make, in terms of section 85(1)(a) of the Constitution, should leave for direct access be granted, alleges that the decision of the Supreme Court, dismissing an appeal against a decision of the High Court upholding his conviction and sentence of imprisonment for bribery violated his right to a fair trial enshrined in section 69(1) of the Constitution.

The applicant had to show that it is in the interests of justice for an order for direct access to be granted.

The applicant was employed by the Zimbabwe Republic Police as the Officer-In-Charge of Guruve Criminal Investigation Department.

On 24 October 2014 he was arraigned before the Magistrate's Court facing a charge of bribery, as defined in section 170(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). It was the respondent's case that on 3 April 2014 the applicant unlawfully and intentionally received $200 from one Biggie Chipfunde in order to influence investigations in a criminal case involving the latter as an accused. The criminal case was pending before the Magistrate's Court.

The applicant denied the charge of bribery. He said that he received the money from Biggie Chipfunde, genuinely believing that it was a donation to a fundraising campaign.

After a full trial, the applicant was convicted of bribery. He was sentenced to twelve months' imprisonment, of which four months were suspended for a period of five years on conditions of good behaviour.

The applicant noted an appeal to the High Court against the conviction and sentence. The grounds of appeal against conviction were that the trial magistrate ignored glaring inconsistencies in the evidence of the respondent's witnesses; that the respondent failed to prove its case beyond a reasonable doubt; and that the authority to organise entrapment had not been properly obtained.

The ground of appeal against sentence was that a non-custodial sentence was more appropriate given the circumstances of the case.

The High Court upheld the conviction. The appeal against sentence was also dismissed by the High Court.

The applicant noted an appeal to the court a quo against the judgment of the High Court. The court a quo found that the appellant's grounds of appeal, against conviction, did not emanate from the High Court's ratio decidendi. It held that no proper grounds of appeal had been placed before it. The court a quo also upheld the sentence, after finding no misdirection on the part of the High Court. The appeal was dismissed in its entirety.

It is against this background that the applicant filed the application for leave for direct access to the Constitutional Court. He alleged that the court a quo breached his fundamental right to a fair trial.

The contention was that the proceedings in the Magistrate's Court were tainted with gross irregularities which resulted in a substantial miscarriage of justice. He alleged that the trial magistrate “deliberately ignored analysing and evaluating the defence case and its documentary exhibits which rebutted all essential averments in the State case.”

The applicant further alleged that the subsequent upholding of the trial magistrate's decision, by the High Court, was irregular, as that court relied on section 170(2) of the Criminal Law (Codification and Reform) Act (the Code) as the basis for dismissing the appeal when the trial magistrate did not rely on the provision in question to convict him.

He alleged that section 170(2) of the Criminal Law (Codification and Reform) Act is invalid. He argued that the section is an unconstitutional provision which casts a reverse onus on the applicant to prove his innocence, thereby breaching section 70(1)(a) of the Constitution which guarantees an accused person the right to be presumed innocent until proven guilty.

Lastly, the applicant averred that the court a quo omitted to exercise its review powers provided for under section 25(2) of the Supreme Court Act [Chapter 7:13]. He contended that failure to exercise the powers provided for by law was an infringement of his right to have the case reviewed by a higher court, guaranteed under section 70(5)(a) of the Constitution.

The applicant averred that granting leave for direct access to the Constitutional Court would be in the interests of justice as it would vindicate his right to a fair trial guaranteed under section 69(1) of the Constitution.

The application was opposed by the respondent.

Counsel for the respondent submitted that the court a quo properly evaluated the evidence adduced by the State and concluded that the High Court had reached the correct decision in dismissing the appeal against conviction and sentence. The applicant was not happy with the manner in which the evidence was assessed by the court a quo. That does not mean that the decision of the court a quo is in violation of the applicant's fundamental rights.

The jurisdiction of the Constitutional Court is provided for under section 167(1) of the Constitution.

The Constitutional Court is the highest court in all constitutional matters. It decides only constitutional matters and issues connected with decisions on constitutional matters. The Constitutional Court has the power to make the final decision on the question whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.

Direct access is an extraordinary procedure which is granted only in deserving cases and has been sparingly granted. Before a party can be granted leave to approach the Constitutional Court directly, in terms of section 85(1)(a) of the Constitution, he or she or it has to satisfy all the requirements set out in Rule 21(3) of the Constitutional Court Rules. The requirements are 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.”

It is peremptory for an applicant to set out facts or grounds, in the founding affidavit, the consideration of which would lead to the conclusion that it is in the interests of justice to have the matter placed before the Constitutional Court directly.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Ltd and Anor CC11-18, the Court had occasion to deal with the requirements to be satisfied in an application of this nature. It held as follows…,:

“The Court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied.

The first is that the applicant must state facts or grounds, in the founding affidavit, the consideration of which would lead to the finding that it is in the interests of justice to have the constitutional matter placed before the Court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction.

The second factor is that the applicant must set out, in the founding affidavit, facts or grounds that show that the main application has prospects of success should direct access be granted.”

Where the jurisdiction of the Constitutional Court is sought to be invoked on the allegation that the decision of a subordinate court, on a non-constitutional matter, violated a fundamental human right, the applicant must show that the violation was a result of failure by the subordinate court to act in accordance with the law governing the proceedings concerned leading to an arbitrary decision.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Ltd and Anor CC11-18 the Court held as follows…,:

“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.”

What amounts to a constitutional matter is defined in section 332 of the Constitution as meaning a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution.

In Moyo v Sergeant Chacha and Ors CC19-17, the Court explained the import of section 332 of the Constitution in the following words…,:

“The import of the definition of 'constitutional matter' is that the Constitutional Court would be generally concerned with the determination of matters raising questions of law, the resolution of which require the interpretation, protection or enforcement of the Constitution.

The Constitutional Court has no competence to hear and determine issues that do not involve the interpretation or enforcement of the Constitution or are not connected with a decision on issues involving the interpretation, protection or enforcement of the Constitution.”…,.

The mere allegation that a fundamental human right enshrined in Chapter 4 of the Constitution has been infringed does not mean that a constitutional issue has arisen from a decision of a subordinate court.

A decision of a subordinate court, on any matter within the ambit of its jurisdiction, would not be found to have given rise to a constitutional matter on the basis of a founding affidavit complaining about an alleged incorrectness of the decision of the subordinate court.

The question of whether or not the court a quo correctly assessed and evaluated the evidence before it is a factual matter that does not involve the interpretation, protection or enforcement of the Constitution.

A contention that the court a quo did not take some evidence into account in reaching its decision cannot be used as a ground to allege that the applicant's right to a fair trial, enshrined in section 69(1) of the Constitution, was violated.

In General Council for the Bar of South Africa v Jiba and Others [2019] ZACC 23 it was held as follows…,:

“The apparently incorrect determination of facts by the majority in the Supreme Court of Appeal and the erroneous application of the three-stage test to those facts also do not raise a constitutional issue. This is because the standard is well established and the determination of facts, whether right or wrong, does not amount to a constitutional issue.”

Du PLESSIS, PENFOLD and BRICKHILL, Constitutional Litigation, 1edn, Juta & Co Ltd, Cape Town, 2013 state as follows…,:

“While the ambit of the phrase 'constitutional matter' is clearly very wide, it is not unlimited. Most significantly, the Constitutional Court has indicated that a purely factual matter does not amount to a constitutional matter.

For example, in S v Boesak 2001 (1) SA 912 (CC) the appellant contended that the decision of the Supreme Court of Appeal upholding his conviction for fraud and theft contravened his right to a fair trial (and particularly the right to be presumed innocent) and to freedom and security of the person.

The basis for this contention was the allegation that the Supreme Court of Appeal erred in its evaluation of the evidence and in finding that Boesak's guilt had been proved beyond reasonable doubt.

The Constitutional Court rejected this argument, holding that 'the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot itself be a constitutional matter' or, put differently, disagreement with the Supreme Court of Appeal's assessment of facts is not a breach of the right to a fair trial.

The court thus held that '[u]nless there is some separate constitutional issue raised…, no constitutional right is engaged when the appellant merely disputes the findings of fact made by the [Supreme Court of Appeal].'”…,.

No constitutional issue can arise from a contention that evidence was incorrectly assessed by the subordinate court.

The Constitutional Court does not assume jurisdiction when it is being called upon to reverse factual findings of the court a quo on non-constitutional issues. The remedy of an appeal is available to a litigant who is dissatisfied with an outcome of a matter on the merits. A litigant defines the boundaries of the appeal through the grounds of appeal.

This is a clear remedy which was available to the applicant.

In defining his appeal before the court a quo, the applicant raised five grounds against the conviction and one ground against the sentence.

The judgment of the court a quo shows that three of the grounds of appeal against conviction were abandoned. The abandoned grounds attacked the correctness of the High Court's decision on the allegation that proof beyond a reasonable doubt had not been led by the respondent. The abandoned grounds of appeal also raised the issue regarding the lawfulness of the entrapment authority.

At the hearing of the application, the applicant sought to argue that the court a quo should have detailed the reasons why he abandoned some of the grounds of appeal. The allegation was that the grounds were not voluntarily abandoned by his legal practitioner.

The legal practitioner acted in the interests of his client.

Having abandoned some of the grounds of appeal, the applicant could not seek to revive those grounds of appeal in an application to the Constitutional Court, alleging that there are irregularities which amounted to a substantial miscarriage of justice.

Once a party abandons some of the grounds of appeal, he or she or it cannot seek to attack the Appeal Court for accepting the abandonment.

On the basis of the grounds of appeal that remained, the court a quo made a finding that the applicant was properly convicted on the basis of the evidence that was led in the Magistrate's Court. The court a quo held that the High Court upheld the conviction of the applicant for the offence charged on the basis of the assessment of the evidence which was adduced in the Magistrates Court.

This is contrary to the applicant's averment that the High Court relied on section 170(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code) as a yardstick to validate his conviction.

In Mukondo v The State HH277-17…, the High Court said:

“The evidence shows that it was the appellant who solicited the bribe. The learned magistrate demonstrated the length to which the appellant went in order to make sure that he personally received the money from the complainant. See S v Fisher 1971 (1) SA 745 (RA); S v Kamtande 1983 (1) ZLR 302.

There is, in my view, no basis to interfere with the conviction by the magistrate as it is proper. The appellant, in any event, failed to discharge the reverse onus set out in section 170(2) above.”

It is apparent that the ratio decidendi applied by the High Court, in dismissing the appeal, was that there was sufficient direct evidence adduced by the prosecution to prove the guilt of the applicant beyond reasonable doubt. Reference to section 170(2) of the Criminal Law (Codification and Reform) Act is not evidence of the factors which the court took into account and which influenced its mind in making the determination it made. Reference to section 170(2) of the Criminal Law Code was made after the court had reached the conclusion, based on the analysis of the evidence adduced by the State, that the applicant had been properly convicted of the offence of bribery, as the evidence had proved his guilt beyond reasonable doubt.

The court a quo was also alive to the issue of the effect of the reference by the High Court to section 170(2) of the Criminal Law (Codification and Reform) Act.

The court a quo noted that the High Court commented on section 170(2) of the Criminal Law (Codification and Reform) Act. The court a quo found that the issue regarding the section in question was a red herring because the conviction was not predicated on that provision.

At p5 of the cyclostyled judgment in Mukondo v The State SC44-19 the court a quo said:

“It is clear from a reading of the record that the remarks by the court a quo were made mero motu and were not based on any submissions that had been made for and on behalf of the respondent before that court. Secondly, the remarks were incorrect as far as they purported to confirm a position that the trial court had taken on the matter. The trial court did not make any finding on the reverse onus that is created by section 170(2). Finally, and more importantly, the remarks by the court a quo, on section 170(2), were made after the court had concluded that the conviction of the appellant was proper on the basis of the weight of the evidence that the State had led against him.

Thus, the ratio decidendi of the court a quo was its finding that it could not interfere with the factual findings of the trial court, which findings were that the State had led overwhelming evidence against the appellant.

It is our finding that the remarks constitute an obiter dictum and had no effect on the court's ratio decidendi. Being such, the remarks cannot form the basis of an appeal. This is the trite position at law.”

The Constitutional Court does not interfere with non-constitutional findings of the lower courts, which findings are arrived at after a careful assessment of the evidence as a whole.

Even if it is assumed that the court a quo erred in the assessment of the evidence before it, that would not amount to a violation of the right to a fair trial. The Constitution could not possibly have sought to protect litigants against 'wrong decisions'.

In Lane and Fey NNO v Dabelstein and Ors 2001 (2) SA 1187 (CC) the Constitutional Court of South Africa 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.”

In Williams and Anor v Msipha N.O. and Ors 2010 (2) ZLR 552 (S)…, the Supreme Court, sitting as a Constitutional 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. 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 399D–H; Boordman v Attorney General [1996] 2 LRC 196 at 205I–206B.”

A reading of the judgment of the court a quo shows that it did not make any determination on a constitutional issue.

The court a quo held that the constitutional question which the applicant purportedly intended to raise in his grounds of appeal had no basis. The reason was that the High Court had not confirmed the applicant's conviction on the basis of section 170(2) of the Criminal Law (Codification and Reform) Act (the Criminal Law Code). The court a quo also noted that the constitutionality of section 170(2) of the Criminal Law Code was not an issue before the trial court. Neither had the presumption of a contravention of section 170(2) of the Criminal Law Code, upon proof by the State of the fact of obtaining, accepting or soliciting a gift or consideration, been relied upon in convicting the applicant.

Counsel for the applicant conceded, in the court a quo, that the provision had not been relied on.

The court a quo correctly held that there was no basis for seeking to raise, as a question of any relevance in the hearing and determination of the appeal against the decision of the High Court, the applicability of the provisions of section 170(2) of the Criminal Law (Codification and Reform) Act.

A perusal of the papers before the Constitutional Court shows that the applicant is basically dis-satisfied with the manner in which the evidence was assessed and evaluated by the trial court. He is further dissatisfied by the fact that the court a quo did not set aside the conviction and sentence on account of alleged irregularities.

The Court finds the application for an order for direct access to be a disguised appeal against the decision of the court a quo which upheld the conviction and the sentence. This can be gleaned from the applicant's founding affidavit, where he states that:

“…, if leave for direct access is granted, I seek for a relief to set aside the proceedings conducted under case number B1361/14, and the subsequent upholding of the foregoing proceedings under case numbers HH935/14 and SC820/17 as being inconsistent with the right to a fair trial guaranteed under section 69(1) of the Constitution of Zimbabwe.

I further pray for remittal of the case for trial de novo to Guruve Magistrate Court before a different magistrate.”

The relief sought is the same as the relief that was sought on appeal to the Supreme Court.

In Prosecutor General v Telecel Zimbabwe 2016 (2) ZLR 422 (CC)…, 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…,.'.”

The applicant is seeking to appeal against the dismissal of the appeal by the Supreme Court.

The application is hereby dismissed with no order as to costs.

In August 1999, three nationals of the United States of America, Gary George Blanchard, Joseph Wendell Pettijohn, and John Lamonte Dixon, were jointly indicted with the commission of two offences:

(i) The first was a contravention of section 7(1)(a) of the Aircraft (Offences) Act [Chapter 9:01], as read with section 360(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], in that on 7 March 1999 they had attempted to place aboard an aircraft dangerous goods, namely, various revolvers, pistols, rifles, knives, and ammunition.

(ii) The second was a contravention of section 37(2) of the Law and Order (Maintenance) Act [Chapter 11:07], in that on the same day they were in unlawful possession of arms of war and offensive materials, consisting of a variety of pistols, revolvers, rifles, firearms, ammunition, knives, teargas, and electric shock devices.

The trial, which was protracted, was presided over by ADAM J and assessors, in the High Court, at Harare. Judgment was delivered on 10 September 1999. The three accused were convicted on both Counts. On 13 September 1999, the learned judge sentenced them to six months' imprisonment with labour on the first Count; and, on the second, to twenty-one months' imprisonment with labour, of which period nine months were conditionally suspended for five years, and six months were to run concurrently with the sentence imposed on Count One.

The effective punishment of six months' imprisonment with labour was then back-dated to 7 March 1999, being the day when the incarceration of the accused as remand prisoners began.

The judgment, on both conviction and sentence, is now reported, sub. nom. S v Blanchard & Ors, in 1999 (2) ZLR 168 (H).

On 15 September 1999, a statement, made by the applicant, then the Attorney-General for Zimbabwe, and presently the Minister of Justice, Legal and Parliamentary Affairs, was published in The Herald newspaper under the headings: “US gunmen's sentence causes outrage, Attorney-General's office expresses shock at court's trivialisation of offence.”

The article that followed reported that:

“The Attorney-General's Office is shocked and outraged by the effective six month jail term imposed on the three Americans convicted for illegal possession of weapons and attempting to take them on board an aircraft. It intends to appeal to the Supreme Court against the sentence which it said had trivialised the seriousness of the crime. In a statement yesterday, the Attorney-General, Mr Patrick Chinamasa, said the sentence handed down by High Court Judge, Justice Adam, 'induces a sense of shock and outrage in the minds of all right-thinking people.'

He said Gary George Blanchard, Joseph Wendell Pettijohn, and John Lamonte Dixon were convicted of offences which were treated as serious by all civilised countries worldwide, including America, which was in the forefront of fighting terrorism and gun-running.

'By imposing sentences which do not match the seriousness of the offences, Justice Adam has in effect trivialised crimes of unlawful possession of arms and has seriously erred in doing so.

The Attorney-General's Office is left bemused by the meaninglessness of it all.

The nation should know and be told that the leniency of the sentences constitutes a betrayal of all civilised and acceptable notions of justice and of Zimbabwe's sovereign interests.

Mere unlawful transiting of firearms through the territory of Zimbabwe is in itself a serious and gross violation of the sovereign and security interests of Zimbabwe.'

Mr Chinamasa said the attitude taken by the court, in meting out sentences which did not match the severity of the crimes committed, came against the backdrop of repeated complaints made to him by his Law Officers of hostility and verbal abuse directed at them and their submissions by the Bench during proceedings. All these developments erode the office's confidence in the administration of criminal justice.”

Reaction to the article led to the issuance of a citation for contempt of court. It was served on the applicant on 28 September 1999. In its amended form the citation reads:

“TAKE NOTICE THAT on the 28th day of September 1999 The Honourable Mr Justice Adam caused a citation to be issued against you whereby YOU ARE TO APPEAR in person before the High Court of Zimbabwe in Harare on the 1st day of October 1999 at 10:00am or soon thereafter to show cause why an Order of Contempt should not be made for the wilful and intentional contemptuous statement issued by you, which statement you caused to be published or alternatively was published in the issue of the 15th September 1999 of THE HERALD, as appears more fully from the attached copy entitled 'US gunmen's sentences causes outrage'.”

The hearing of the proceedings initiated by the citation was assigned to BLACKIE J. He immediately appointed a legal practitioner in private practice to appear as amicus curiae to present the complaint against the applicant.

On 1 October 1999, the learned judge held a pre-hearing conference at which the parties agreed to a time-frame for the filing of a Defence Outline by the applicant and written heads of argument by both him and the amicus curiae. The matter was then postponed for a week.

At the commencement of the proceedings, on 8 October 1999, the amicus curiae particularised the passages in the reported words of the applicant which were considered to contain the contempt alleged against him. These were:

(a) The statement that the sentence handed down “induces a sense of shock and outrage in the minds of all right-thinking people.”

(b) The statement that: “By imposing sentences which do not match the seriousness of the offences, Justice Adam has, in effect, trivialised crimes of unlawful possession of arms and has seriously erred in doing so. The Attorney-General's Office is left bemused by the meaninglessness of it all. The nation should know and be told that the leniency of the sentences constitutes a betrayal of all civilised and acceptable notions of justice and of Zimbabwe's sovereign interests.'”;

(c) The statement that: “All these developments erode the office's confidence in the administration of criminal justice.”

Thereafter, counsel for the applicant, acting in terms of section 24(2) of the Constitution of Zimbabwe, requested the court to refer to the Supreme Court for determination a number of questions in respect of which it was contended that the proceedings were in contravention of the Declaration of Rights.

The questions, subsequently re-drafted and re-presented to the Court, were these:

“1. Whether the High Court and/or counsel appearing amicus curiae, can, before the High Court, present allegations of contempt of court in the light of the provisions of section 76 and section 18(2) of the Constitution.

2. Whether the choice and assignment to deal with this matter, by the Judge who passed the sentence which was commented upon in the alleged contemptuous statement of the presiding judge, and the selection of counsel to appear amicus curiae by the assigned judge, violates the Attorney-General's right to appear before an independent and impartial court established by law as provided in section 18 of the Constitution.

3. Whether the order issued by the High Court, on 1 October 1999, which order was issued in the presence of the Attorney-General, and, in respect of which the Attorney-General, when invited, elected to make no submissions:

(a) Violates the Attorney-General's right not to be compelled to give evidence as provided for in section 18(8) of the Constitution, given that he was ordered to file a Defence Outline;

(b) Violates the Attorney-General's right to be given adequate time to prepare his defence as provided for in section 18(3) of the Constitution, in circumstances where the Attorney-General, at no stage, applied for or requested an extension of time, nor did he, at any time, object to the time limits set out in the said order, and, in circumstances where the Attorney-General requested a postponement to 6 October 1999 and then 8 October 1999, to enable him to travel to Zambia on Government business, both requests being granted;

(c) Violates the Attorney-General's rights to examine witnesses as provided for in section 18(3)(e) of the Constitution, in circumstances where he was ordered to file argument relating to the facts and the law before the hearing.

4. Whether the procedure in terms of which the Registrar can issue a court application, which is not supported by any affidavit as to facts, as is provided in Order 43 Rule 389, violates the Attorney-General's right to a fair trial as is provided for in section 18 of the Constitution.

5. Whether the citation issued on 28 September 1999, which calls upon the Attorney-General to show cause why an order of contempt should not be made, violates the presumption of innocence of the Attorney General and unfairly places the onus to prove innocence on the Attorney-General in contravention of section 18 of the Constitution.

6. Whether the contempt proceedings, as particularised, violate the Attorney-General's freedom of expression, that is to say, his right to hold opinions and to express such opinions without interference as is provided for in section 20 of the Constitution.”

After reserving his decision on the questions raised, BLACKIE J ruled that it had not been shown to his satisfaction that question 1 concerned a breach of the Declaration of Rights; and that questions 3 and 4 were frivolous and vexatious within the meaning attributed to the phrase in Martin v Attorney-General & Anor 1993 (1) ZLR 153 (S)…,.

He therefore declined to refer these three questions. His Lordship's detailed reasons for so concluding are to be found at 297B-298A and 299E-300D of the judgment, which is reported in 1999 (2) ZLR 291 (H).

However, the request to refer questions 2 and 6 (as modified in the judgment), as well as question 5, was acceded to.

Added thereto was the further question of whether a person charged with contempt of court falls under the protections provided to a person charged with a criminal offence under section 18 of the Constitution.

The learned judge recast the questions in the following manner:

“1. Whether a charge of contempt of court is a charge of a criminal offence entitling the person charged to the protections afforded by the provisions of section 18 of the Constitution.

2. If the answer to question 1 is in the affirmative:

(a) Whether the procedure whereby a person charged with contempt of court is tried by the court which complains about the contempt violates the right of a person, in terms of section 18 of the Constitution, to be tried by an independent and impartial tribunal.

(b) Whether the citation issued on 28 September 1999, which called upon the accused person to show cause why an order of contempt should not be made against him, violates the presumption of innocence on the part of an accused person in contravention of section 18 of the Constitution.

3. Whether the law of contempt of court, as contained in the common law of Zimbabwe, is such as cannot be shown 'to be reasonably justifiable in a democratic society', and, therefore, is incompatible with the provisions of section 20 of the Constitution.”

The applicant felt aggrieved by the refusal of BLACKIE J to refer questions 1, 3 and 4 to this Court. He lodged a Notice of Appeal against that part of the judgment, setting out several grounds in which it was claimed the learned judge had erred.

In seeking to appeal against the refusal of the High Court to refer the aforementioned questions to the Supreme Court, the applicant obviously overlooked the limitation expressed in section 24(3) of the Constitution. It is there provided:

“Where, in any proceedings such as are mentioned in subsection (2), any such question as is therein mentioned is not referred to the Supreme Court, then, without prejudice to the right to raise that question on any appeal from the determination of the court in those proceedings, no application for the determination of that question shall lie to the Supreme Court under subsection (1).”

The purport of section 24(3) of the Constitution was considered by this Court in S v Mbire 1997 (1) ZLR 579 (S) where…, it was stated:

“It is clear from the wording of this provision that where a referral has been refused by the High Court or by any court subordinate to it, albeit the opinion that the raising of the constitutional question was merely frivolous or vexatious was manifestly erroneous, there is to be no interruption in the proceedings. They are to continue to the stage of determination, which, in a criminal case, is when the accused is convicted and the final sentence delivered: see R v Mhosva 1980 ZLR 74 (G) at 75C; S v Morrisby 1995 (2) ZLR 270 (S) at 271C.

Thereafter, the right to raise the Constitutional question, as a ground of appeal, against such determination becomes permissible.

Quite apart from there being no provision in the Constitution permitting an appeal to the Supreme Court against a refusal to refer to it a question raised under section 24(2) thereof, there is no right of appeal given in either the Magistrates Court Act [Chapter 7:10] or the Supreme Court Act [Chapter 7:13] against such a ruling.

To repeat the self-evident words of KENNEDY LJ in National Telephone Co. Ltd v His Majesty's Postmaster-General [1913] 2 KB 614 (CA) at 621:

'The creation of a right of appeal is an act which requires legislative authority. Neither the inferior nor the superior tribunal, nor both combined, can create such a right, it being essentially one of the limitation and of the extension of jurisdiction.'”

See also Muchero & Anor v Attorney-General S-107-00, SC107-00…,.

It follows that any determination of the three questions which were not referred may only be made by this Court in the event of an appeal brought before it against a finding by the High Court that the applicant was guilty of contempt.

It is common cause that before launching the present application to this Court the applicants approached the High Court and the Electoral Court. Both courts declined to hear the matter on the ground that they had no jurisdiction.

In the case of the High Court, the court erroneously ruled that it lacked jurisdiction because this was a matter for determination by the Electoral Court in terms of section 46(19) of the Electoral Act.

The Electoral Court declined jurisdiction because the matter had prescribed in terms of the Electoral Act.

Counsel for the respondent's contention, as I understand it, is that the basis of the applicants' complaint in both the High Court and the Electoral Court was the conduct of the second respondent during nomination proceedings. The same conduct of the second respondent is the basis of the present application. The only difference, he submitted, is that in the High Court and the Electoral Court the applicants categorised the second respondent's conduct as unlawful, while, in the present application, the applicants categorize the second respondent's conduct as violating the applicants' rights.

On this basis, he further argued, the present application is a matter that arose during proceedings in the High Court and the Electoral Court. The applicants' right to approach this Court, in terms of section 24(1) of the Constitution, had they not first approached the High Court and/or the Electoral Court cannot be disputed.

The issue for determination is: Does the applicants' approach to the High Court and the Electoral Court make this application a matter arising from the proceedings in the High Court or the Electoral Court within the meaning of section 24(2) of the Constitution, thus barring the applicants from directly approaching this Court in terms of section 24(1) of the Constitution?

In the case of Tsvangirai v Mugabe and Anor S-84-05, SC84-05 this Court had occasion to consider what constitutes a matter arising from proceedings in the High Court in terms of section 24(2) of the Constitution.

The facts of that case were as follows:

The applicant was the petitioner in an election petition brought following the Presidential Election held in March 2002. Amongst the grounds on which the petition was based was the allegation that section 158 of the Electoral Act and certain statutory instruments enacted thereunder, in terms of which the election was conducted, were constitutionally invalid.

Several months after the petition was lodged, and after urging from the applicant, a pre-trial conference was held, at which the parties agreed that the trial of the election petition would deal first with submissions and argument on the constitutional validity of section 158 and the statutory instruments and orders made under its authority.

The trial finally commenced about a year later, after the applicant had obtained a writ of mandamus compelling the Registrar of the High Court to set the matter down for trial.

The Judge heard submissions and argument on the constitutional issues and reserved judgment on these issues.

Seven months after judgment was reserved, the Judge issued an order in terms of which the contentions advanced on behalf of the applicant were dismissed. No reasons were given in spite of a promise to do so within two weeks.

There was no appeal noted by the applicant against the order within fifteen days of the date it was given, as required by Rule 30 of the Rules of the Supreme Court.

A month later, the resumed trial was set down for a date in September 2004.

In August 2004, the applicant asked for a postponement of the trial because it was necessary to examine ballot papers and other election material, the production of which had been ordered by the court.

In the meantime, the applicant continued to seek the Judge's reasons for his decision, although it was not until February 2005 that it was made clear that he was seeking the Judge's reasons in order to decide whether or not to appeal.

No reasons having been forthcoming by July 2005, the applicant approached the Supreme Court for redress in terms of section 24(1) of the Constitution, alleging that the rights to protection of the law and to a fair hearing within a reasonable time, guaranteed to him and protected against infringement under sections 18(1) and 18(9) of the Constitution, respectively, had been contravened by the High Court.

He sought an order setting aside the Judge's order and putting the matter before the Supreme Court for decision.

It was argued, on behalf of the first respondent, that the matter was not properly before the Supreme Court because the constitutional question arose in the proceedings in the High Court, and, as such, the applicant was obliged to comply with the procedure prescribed in section 24(2) of the Constitution.

The applicant argued that there were no proceedings in the High Court, the only proceedings being the hearing on the constitutional argument, and, thus, he was not obliged to request the Judge to refer the constitutional issue to the Supreme Court in terms of section 24(2) of the Constitution. In addition, as the Judge was accused of being the principal cause of the delay, by reason of his continued failure in the hearing and determination of the election petition by failing to give reasons, he would have become a judge in his own cause in breach of the rules of natural justice.

This Court held:

“(1) The word 'proceedings' in section 24(2) is a general term, referring to the action or application itself and the formal and significant steps taken by the parties in compliance with procedures laid down by the law for the purpose of arriving at a final judgment on the matter in dispute.

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.

There was no need to limit the very general words of section 24(2) by saying that the question as to the contravention of the Declaration of Rights arises only when the court is actually sitting.

The proceedings in the High Court were still pending.

Whilst the request for the reference of the question to the Supreme Court must be made to the Judge whilst he is actually sitting in court, the question itself does not have to arise when the court is sitting. It may arise on the pleadings or from the circumstances of the case.

The applicant should have had the application for reference of the question set down for hearing by the Judge.

(2) The argument that the Judge would have become a judge in his own cause had the request been made of him to refer the question to the Supreme Court for determination ignores the fact that compliance with the procedure prescribed in section 24(2) is mandatory.

If the Judge had, out of selfish interest and in bad faith, held that the raising of the question by the applicant was merely frivolous or vexatious, he would have infringed the applicant's right to the protection of the law guaranteed under section 18(1). The applicant would then have been entitled to apply to the Supreme Court for redress in terms of section 24(1) of the Constitution. He would have discharged his duty to comply with the procedure prescribed in section 24(2).”

Thus, it would appear, from Tsvangirai v Mugabe and Anor S-84-05, SC84-05 that once proceedings are commenced in the High Court, or any subordinate court, and a constitutional point arises from the pleadings or circumstances of the case, the constitutional point has arisen from proceedings in that court.

In casu, there is no doubt that an application was made to the High Court and the Electoral Court. The High Court heard submissions from counsel but did not adjudicate on the merits of the matter because it concluded that it had no jurisdiction. Similarly, the matter was commenced in the Electoral Court. The Electoral Court did not adjudicate on the merits of the application because the application or appeal was out of time.

On these facts, can it be contended that the constitutional point arose from proceedings in the High Court or the Electoral Court within the meaning of section 24(2) of the Constitution?

The present case is distinguishable from Tsvangirai v Mugabe and Anor S-84-05, SC84-05 in two significant respects:

(i) Firstly, both the High Court and the Electoral Court declined to entertain the matter on the merits on the basis that they had no jurisdiction.

Can it be said that there are proceedings in a court that has declined jurisdiction?

The court dealing with Tsvangirai v Mugabe and Anor S-84-05, SC84-05 had jurisdiction.

(ii) Secondly, in respect of Tsvangirai v Mugabe and Anor S-84-05, SC84-05 the High Court proceedings had not concluded.

In the present case, the proceedings of both the High Court and the Electoral Court were concluded in the sense that both courts had made a final determination that they had no jurisdiction.

Given the facts set out above, can it be said that the application before this Court arose from proceedings in the High Court or the Electoral Court within the meaning of section 24(2) of the Constitution?

There is no doubt that it was open to the applicants to apply to the High Court or the Electoral Court to refer this case to the Supreme Court.

I, however, do not think that the mere existence of an opportunity to apply for a referral creates an obligation on the applicants to comply with section 24(2) of the Constitution and bars them from approaching this Court in terms of section 24(1) of the Constitution.

Common sense dictates that where a court has declined jurisdiction there cannot be proceedings before it thereafter.

It seems to me that one of the objects of section 24(2) and section 24(3) of the Constitution is to prevent parallel proceedings in two courts and the possibility of two conflicting outcomes.

Where the one court has concluded that it has no jurisdiction that possibility is eliminated.

It also appears to me incongruous to hold that a matter arises from a proceeding in another court when that other court has declined jurisdiction.

In Tsvangirai v Mugabe and Anor S-84-05, SC84-05 the court had yet to determine the matter on the merits.

In the present case, both the High Court and the Electoral Court had made a final determination that they had no jurisdiction.

I also find nothing in the language of section 24 of the Constitution, and in particular in subsection (3), which suggests that the Legislature intended to bar a litigant whose matter cannot be determined on the merits by the High Court, or other adjudicating authority, because of lack of jurisdiction, from approaching this Court directly in terms of section 24(1) of the Constitution.

On the facts of this case, I am satisfied that the applicants can approach this Court in terms of section 24(1) of the Constitution.

In the result, counsel for the respondents contention that the applicants are barred from approaching this Court in terms of section 24(3) of the Constitution fails.

This is an application in terms of section 85(1)(a) of the Constitution and the background to the matter is as follows:-

The applicants are all citizens of, but are not resident in, Zimbabwe. They give different reasons for their absence, with the first applicant citing political reasons. The second applicant cites economic reasons, while the third applicant alleges his absence is premised on economic and political reasons.

The applicants state that they wish to participate in the country's harmonized general elections due later this year, 2018, but are precluded from doing so by certain sections of the relevant law. They accordingly seek the following relief:-

“IT IS DECLARED THAT:

1. The failure to afford voting facilities to the applicants and similarly placed Zimbabweans based abroad be and is hereby declared unconstitutional in that it violates applicants' rights as enshrined in section 67 and 56 of the Constitution.

ACCORDINGLY, IT IS ORDERED THAT:

1. Section 23 of the Electoral Act [Chapter 2:13] be and is hereby declared constitutionally invalid as far as it excludes citizens not resident in Zimbabwe from registering as voters in contravention of section 67(3) as read with paragraph 2 of the 4th Schedule to the Constitution of Zimbabwe.

2. Section 72 of the Electoral Act [Chapter 2:13] is hereby declared constitutionally invalid as far as it excludes citizens of Zimbabwe who are not in Government service from exercising their right to vote in contravention of sections 56(1), 56(3), 56(4) and 67(3) of the Constitution of Zimbabwe.

3. The respondents are hereby ordered to put in place all appropriate measures to enable the applicants and any other Zimbabweans based abroad to participate in the 2018 Presidential, Parliamentary, and Local Authority elections as voters.”...,.

Before I consider the real dispute between the parties, I consider it pertinent to comment on a part of the relief sought by the applicants, that is, paragraph 1 of the draft order. The applicants purport to seek relief on their own behalf and that of 'other Zimbabweans living and working abroad…,.'

This application has been filed in terms of section 85(1)(a) of the Constitution, not under section 85(1)(c) or (d), which permit an applicant to seek relief on behalf of other persons besides him or herself.

During the hearing, counsel for the applicants properly conceded that the applicants could not validly seek this relief.

At the end of hearing argument for both parties, the Court dismissed this application with no order as to costs. It was indicated at the time that reasons for the decision would follow in due course. These are they.

The applicant approached the Court in terms of section 24(1) of the former Constitution of Zimbabwe (“the Constitution”) which gave any person alleging that the Declaration of Rights has been, is being, or is likely to be contravened in relation to himself, the right to apply to the Supreme Court for redress.

The applicant challenged the constitutional validity of sections 23(3) and 71 of the Electoral Act [Chapter 2:31] (“the Act”) as interfering with his right to vote as enshrined in section 23A(2) of the Constitution. More specifically, the applicant alleged that section 23(3) of the Electoral Act, which required that a voter be resident in a constituency in order to vote, and, that, if such voter was absent from the constituency for a period of over twelve months his or her name be removed from the voters roll, infringed his right to vote.

The applicant further contended that section 71 of the Electoral Act, limiting the right to postal voting to any person who, on all polling days in the election, would be outside Zimbabwe on duty in the service of the Government or as the spouse of such a person and would be unable to vote at a polling station in his or her constituency, violated his right to vote.

Section 85 of the Constitution is very clear as to the nature of the rights and freedoms that can be enforced pursuant to its provisions. It provides:

“85 ENFORCEMENT OF FUNDAMENTAL RIGHTS AND FREEDOMS

(1) Any of the following persons, namely –
(a)–(e)…,. (not relevant)
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 section states, in no uncertain terms, that, an application in terms of that section must allege that a fundamental right or freedom enshrined in that Chapter has been, is being, or is likely to be infringed.

The corollary to this is that other rights that are not fundamental rights or freedoms can be enforced through other provisions of other laws, but not in terms of section 85 of the Constitution.

Indeed, the Constitutional Court of Zimbabwe has stressed this position in a number of decisions. For example, in M & Anor v Minister of Justice Legal & Parliamentary Affairs N.O. & Others 2016 (2) ZLR 45, 55 G-H (CC) the Constitutional Court stated:

“Section 85(1) of the Constitution is the cornerstone of the procedural and substantive remedies for effective judicial protection of fundamental rights and freedoms and the enforcement of the constitutional obligation imposed on the State and every institution and agency of government at every level to protect the fundamental rights in the event of proven infringement….,.

The fundamental principle is that every fundamental human right or freedom enshrined in Chapter 4 is entitled to a full measure of effective protection under the Constitutional obligation imposed on the State…,.”

Further, in Prosecutor General of Zimbabwe v Telecel Zimbabwe (Pvt) Ltd CC10-15, the court also remarked at p10 of the judgment:

“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….,.”

Despite attempts by the appellants counsel, both a quo and in this court, to urge this Court to accept that the application before the court a quo was not made in terms of section 85(1) of the Constitution, the papers on record reveal clearly, that, in fact, the appellants approached the court a quo in terms of that section.

For example, in its founding affidavit, in paragraph 4, the first appellant, as first applicant stated:

“The first applicant thus has a public interest in housing and asserting the right to housing. It is this same reason, which is the basis of this application by which this application is brought in terms of section 85(1)(d)…,. It seeks, in this case, to assert the existence of the right to housing for its members thereof.”

The second appellant (Tawonga Saving Scheme), as second applicant, in paragraph 13 of its founding affidavit, also stated:

“We thus bring this application, on behalf of our members in terms of section 85(1)(e) of the Constitution of Zimbabwe.”

Likewise, the third appellant (Ngwaru Masanza), as third applicant, also stated in paragraph 52 of his founding affidavit:

“As a resident of Haydon Farm and a victim of the respondents unlawful actions, I bring this action in my own right to protect my interest as defined in section 85(1)(a) of the Constitution of Zimbabwe.”

There thus can be no doubt that the appellants approached the court a quo in terms of section 85(1) of the Constitution. They were alleging a violation of their right to shelter, which is not a fundamental right.

In the circumstances, the finding by the court a quo, that section 85(1) of the Constitution was not available to them was correct.

At the end of hearing argument for both parties, the Constitutional Court (“the Court”), with the consent of the parties, dismissed the application with each party bearing its own costs.

It was indicated that reasons for the decision would follow in due course. These are they.

This is a purported referral of constitutional questions by the Labour Court (“the court a quo”) in terms of section 175(4) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

Section 175(4) of the Constitution provides, 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 Court unless he or she considers that the request is merely frivolous or vexatious.

Sometime during the period between 21 July 2015 and 14 August 2015, the applicant terminated, on notice, the contracts of employment of seventeen of its employees.

Through the Automotive and Allied Workers Union of Zimbabwe, the aggrieved former employees demanded, from the applicant, payment of retrenchment packages in terms of section 12C(2) of the Labour Act [Chapter 28:02] (“the Act”).

Section 12C(2) of the Labour Act [Chapter 28:01] provides, that, unless better terms are agreed between the employer and the employees concerned or their representatives, a package (“the minimum retrenchment package”) of not less than one month's salary or wages for every two years of service as an employee (or the equivalent lesser proportion of one month's salary or wages for a lesser period of service) shall be paid by the employer as compensation for loss of employment (whether the loss of employment is occasioned by retrenchment or by virtue of termination of employment pursuant to section 12(4a) (a), (b) or (c)), by no later than the date when the notice of termination of employment takes effect.

The applicant did not respond to the request.

The aggrieved former employees approached the National Employment Council for the Motor Industry with a complaint that the applicant had failed to pay their retrenchment packages and their long service awards in line with company policy.

On 22 September 2015, the National Employment Council for the Motor Industry requested the respondent, a Designated Agent, to redress the dispute.

On 12 October 2015, the aggrieved former employees filed a Statement of Claim before the respondent, who, at that point, was referred to as “the conciliator”.

The aggrieved former employees claimed, that, although their contracts of employment had been terminated in terms of section 12(4)(a) of the Labour Act, the applicant had failed to pay their retrenchment packages despite demands having been made to that effect. They jointly claimed the sum of US$139,896=13, being the total of their various retrenchment packages.

The applicant opposed the claims.

It stated, that, when it terminated the aggrieved former employees contracts of employment on notice, it exercised its common law right to do so following the Supreme Court decision in Nyamande and Anor v Zuva Petroleum (Pvt) Ltd 2015 (2) ZLR 186 (SC).

The applicant argued, that, section 12C(2) of the Labour Act was unconstitutional, as it took away its vested right. In that regard, the applicant stated, that, the aggrieved former employees could not have made a claim for packages that the applicant viewed to be illegal.

The applicant indicated, that, it would seek to have the matter referred to the Court for a determination of the question whether section 18 of the Labour Amendment Act (No.5) 2015 was constitutional.

Section 18 of the Labour Amendment Act (No.5) of 2015 gave section 12C(2) of the Labour Act retrospective effect.

In view of that position, the applicant stated, that, the respondent could not grant the claim that its former employees sought.

A Designated Agent, exercising his or her jurisdiction in terms of the Labour Act, would have no power to determine a constitutional matter.

The disputes of rights that fall within his or her jurisdiction arise from employment relationships. They are not constitutional matters.

The applicant appreciated the fact, that, the constitutionality of section 12C(2) of the Labour Act was not a matter the respondent had to concern herself with.

It accepted the fact, that, the dispute before the respondent was over the quantum of the retrenchment packages payable to the former employees in terms of section 12C(2) of the Labour Act.

The applicant did not raise the question of the constitutionality of section 12C(2) of the Labour Act before the court a quo.

The respondent found, that, since no better terms had been agreed between the applicant and its former employees, the applicant had to pay the minimum retrenchment packages as stipulated in section 12C(2) of the Labour Act.

Although contained in a decision dated 8 April 2016, the respondent “ordered” the applicant to pay its former employees the various amounts that she had specified as retrenchment packages for each of them by 31 July 2016.

It is important to emphasise the fact that the respondent conducted a hearing of the matters raised by the parties in the proceedings before her and produced a determination of those matters.

On 5 July 2016, the respondent applied to the court a quo, on affidavit, purportedly acting in terms of section 93(5a) of the Labour Act. She prayed that her order against the applicant, to pay its former employees retrenchment packages, be confirmed.

In opposition, the applicant challenged the constitutionality of section 93(5a) and section 93(5b) of the Labour Act, alleging that the provisions violated its rights to equal protection of the law and to administrative justice, as contained in sections 56(1) and 68(1) of the Constitution respectively.

The applicant's case was that by virtue of section 93(5a) and section 93(5b) of the Labour Act, the Designated Agent becomes an active litigant in a matter where the aggrieved former employees stand to benefit.

The applicant contended, that, allowing the Designated Agent to institute process on behalf of the opposing party is discriminatory in effect.

The argument was that the aggrieved employees were accorded, directly or indirectly, a privilege or advantage which the applicant did not stand to enjoy.

The applicant alleged, that, its right to equal benefit of the law, as provided for in section 56(1) of the Constitution, had been violated.

The applicant further contended, that, it would bear the costs of the proceedings in the court a quo whilst the former employees would not need to pay the same costs, as the Designated Agent's costs are payable by the Government as her employer.

It was further alleged, that, section 93(5a) and section 93(5b) of the Labour Act created a situation where the Designated Agent, who is expected to be impartial, ends up descending into the arena and taking sides with one of the parties.

In this regard, it was alleged, that, section 93(5a) and section 93(5b) of the Labour Act violated the applicant's right to equal protection of the law.

It is for these reasons, that, the applicant requested that the matter be referred to the Court for determination of the question whether or not section 93(5a) and section 93(5b) of the Labour Act violate its rights to equal protection and benefit of the law and the right to administrative justice, as protected by sections 56(1) and 68(1) of the Constitution respectively.

The applicant sought an order striking down section 93(5a) and section 93(5b) of the Labour Act should the application be successful.

The court a quo granted the request, stating that “the application” was not frivolous or vexatious.

Section 93 of the Labour Act provides as follows:

“93 Powers of Labour Officers

(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation, or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.

(3) If the dispute or unfair labour practice is not settled within thirty days after the labour officer began to attempt to settle it under subsection (1), the labour officer shall issue a certificate of no settlement to the parties to the dispute or unfair labour practice.

(4) The parties to a dispute or unfair labour practice may agree to extend the period for conciliation of the dispute or unfair labour practice referred to in subsection (3).

(5) After a labour officer has issued a certificate of no settlement, the labour officer, upon consulting any labour officer who is senior to him or her, and to whom he or she is responsible in the area in which he or she attempted to settle the dispute or unfair labour practice —

(a) Shall refer the dispute to compulsory arbitration if the dispute is a dispute of interest and the parties are engaged in an essential service, and the provisions of section 98 shall apply to such reference to compulsory arbitration; or

(b) May, with the agreement of the parties, refer the dispute or unfair labour practice to voluntary arbitration if the dispute is a dispute of interest; or

(c) May, if the dispute or unfair labour practice is a dispute of right, make a ruling that, upon a finding, on a balance of probabilities, that —

(i) The employer or other person is guilty of an unfair labour practice; or

(ii) The dispute of right or unfair labour practice must be resolved against any employer or other person in a specific manner by an order —

A. Directing the employer or other party concerned to cease or rectify the infringement or threatened infringement, as the case may be, including the payment of moneys, where appropriate;

B. For damages for any loss or prospective loss caused either directly or indirectly, as a result of the infringement or threatened infringement, as the case may be; whereupon the provisions of subsections (5a) and (5b) shall apply.

(5a) A labour officer who makes a ruling and order in terms of subsection (5)(c) shall as soon as practicable —

(a) Make an affidavit to that effect incorporating, referring to, or annexing thereto any evidence upon which he or she makes the draft ruling and order; and

(b) Lodge, on due notice to the employer or other person against whom the ruling and order is made ('the respondent'), an application to the Labour Court, together with the affidavit and a claim for the costs of the application (which shall not exceed such amount as may be prescribed), for an order directing the respondent by a certain day (the 'restitution day') not being earlier than thirty days from the date that the application is set down…, for hearing (the 'return day' of the application) to do or pay what the labour officer ordered under subsection (5)(c)(ii) and to pay the costs of the application.

(5b) If, on the return day of the application, the respondent makes no appearance, or, after a hearing, the Labour Court grants the application for the order, with or without amendment, the labour officer concerned shall, if the respondent does not comply fully or at all with the order by the restitution day, submit the order for registration to whichever court would have had jurisdiction to make such an order had the matter been determined by it, and, thereupon, the order shall have effect, for purposes of enforcement, of a civil judgment of the appropriate court.”

The sole issue for determination was whether there was a proper referral of the matter to the Constitutional Court by the court a quo.

The Court found, that, the court a quo erred by referring a matter which arose in proceedings that were improperly before it.

The starting point is the construction of section 175(4) of the Constitution.

Referrals to the Constitutional Court are made in terms of section 175(4) of the Constitution. For ease of reference, the section 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 case before the Court necessitates an explanation of the importance of the phrase “in any proceedings before a court” as emphasised above.

The reason is that a proper interpretation of section 175(4) of the Constitution leads to the conclusion, that, the proceedings in which a constitutional matter arises in respect to which a request for referral of the question to the Court is made would have to be validly before the subordinate court.

In Tsvangirai v Mugabe and Anor 2006 (1) ZLR 148 (S) the Supreme Court, sitting as a Constitutional Court, considered the meaning of the phrase “in any proceedings” as used in section 24(2) of the former Constitution. At 158D-159A the court said:

“The words 'in any proceedings in the High Court' mean proceedings that have come to or have been instituted in the High Court. They are proceedings that have found existence in the High Court, in the sense, that, that court has been called upon, through a method prescribed by law, to exercise the judicial functions of the State over the matter in dispute between the parties and it is in control of the conduct and progress of the proceedings.

The word 'proceedings' has a wider meaning in section 24(2) of the Constitution than 'goings-on' in court.

There are no proceedings without an action or case. Proceedings ordinarily progress in steps. The word is, therefore, a general term, referring to the action or application itself and the formal and significant steps taken by the parties in compliance with procedures laid down by the law for the purpose of arriving at a final judgment on the matter in dispute.

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: see Re: Appleton French & Scrafton Ltd [1905] 1 ChD 749 at 753; Mundy v The Butterley Co Ltd [1932] 2 ChD 227 at 233; Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 at 219.

There is, therefore, no need to limit the very general words of section 24(2) of the Constitution and say that the question as to the contravention of the Declaration of Rights arises only when the court is actually sitting.

The words 'if in any proceedings in the High Court any question arises as to the contravention of the Declaration of Rights' imply that proceedings may take place in the High Court without any such question arising.

In this case, the proceedings commenced in the High Court on 12 April 2002 when the election petition was presented. The election petition, as the special procedure required by the statute to be used, defined the stages of the proceedings in the High Court in that it set out the relief sought and the grounds for it.
Until the question whether the President was duly elected or not duly elected was determined, the proceedings were pending in the High Court.”

The ratio decidendi of Tsvangirai v Mugabe and Anor 2006 (1) ZLR 148 (S) is that the action or application by which proceedings are commenced before a court of law must be a process in respect of which the law provides that it may be used to bring the matters in dispute before the court concerned for it to exercise its jurisdiction to hear and determine them.

The Labour Court is a creature of statute. The nature, content, and scope of the court's jurisdiction are determined by reference to the specific provisions of the statute creating the court. It would be those provisions which confer on the court the necessary powers to hear and determine the class of matters brought before it in accordance with the prescribed procedure.

The creating statute ordinarily prescribes a court's jurisdiction by reference to subject matter and procedure for bringing the matters to the court.

A court can have, and exercise jurisdiction, over a matter prescribed by statute as falling within its competence, provided the matter is brought before it in accordance with the prescribed procedure.

Proceedings in a court would be those formal steps that relate to a matter falling within the jurisdiction of the court and brought before it in accordance with the procedure prescribed for bringing such a matter for hearing and determination.

Section 93(1) of the Labour Act makes provision for conciliation.

It is the statutorily compulsory method for the resolution of all disputes and unfair labour practices referred to a labour officer.

The adoption of compulsory conciliation, as the procedure for the resolution of disputes arising from employment relationships referred to a labour officer, underscores its importance. It is an expression, on the part of the Legislature, of faith in conciliation as an effective process for consensus–seeking as a first step before the disputes become subjects of arbitration or adjudication.

In terms of section 93(1) of the Labour Act, all disputes properly referred to a labour officer must first be subjected to the process of conciliation before they are referred to arbitration or adjudication, depending on the nature of the dispute.

Although the Labour Act does not require a party to allege a cause of action, it is necessary to allege a dispute within the jurisdiction of the labour officer.

The following jurisdictional facts must be asserted or must appear when referring a dispute in terms of section 93(1) of the Labour Act to a labour officer –

(a) There must be a dispute;

(b) The dispute should have arisen within an employment relationship;

(c) The dispute should fall within the powers of a labour officer;

(d) The issue in dispute should not be subject to proceedings under the employment code (section 101(5), as read with section 101(6) of the Labour Act);

(e) The parties should not be subject to an employment council with jurisdiction. In other words, a Designated Agent should not be seized with the dispute (section 63(3b) of the Act); and

(f) The referral should be timeous (section 94(1) of the Labour Act).

The jurisdictional facts must actually exist. They cannot be created by consent of the parties.

Employment relationships are based on contracts. Conciliation is a process that does not involve the use of power in the resolution of a dispute between parties, as adjudication does. The purpose of the procedure of conciliation is to afford the parties to the dispute the opportunity to resolve the dispute by agreement. The settlement of the dispute must be reached through voluntary participation in the discussion and consideration of the matters in dispute with the assistance of a third party.

Conciliation enables the parties to be in control of the outcome of the dispute resolution process.

It ensures expeditious resolution of disputes relating to and arising from employment relationships. It is an ideal objective method of dispute resolution where the parties have no desire to talk to one another or where the parties cannot find a solution to the dispute themselves.

Compulsory conciliation, provided for under section 93(1) of the Labour Act, is based on the presumption that the labour officers, and the parties, will appreciate the obligation placed on them to act in accordance with the procedure of conciliation.

The parties are required to act in good faith and to do everything within their capacities to resolve the dispute by agreement.

The first duty of a labour officer, in conciliation proceedings, is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle it. The labour officer must determine a process to attempt to resolve the dispute. The process may include mediation of the dispute, conducting a fact-finding exercise, and making proposals to the parties on how the dispute may be resolved.

The labour officer should, however, generally, undertake the process of fact finding and recommend proposed solutions to the parties in order to guard against perceptions of bias.

A conciliator should not judge.

The labour officer is under an obligation to do all that can reasonably be done by a conciliator to assist the parties to resolve the dispute by agreement without imposing the solution on them. The parties remain the masters of the process. The terms of any settlement must remain the responsibility of the parties.

That entails acquisition of the necessary skills in conducting conciliation.

The process of conciliation itself is largely dependent on the parties willingness to settle. There must be evidence that the parties engaged in serious and bona fide discussion of matters over which they disagreed. There must be evidence that the labour officer understood his or her role as a conciliator and actively exercised his or her functions.

If a labour officer engages in anything that is not conciliation, it is a nullity.

The Minister has power, under section 127(2) of the Labour Act, to make rules regulating the practice and procedure for the resolution of disputes through conciliation.

A labour officer engaged in conciliation must follow a systematic approach in the process in seeking consensus between the parties on the matters in dispute. It is important for the labour officer to remember, that, under section 93(1) of the Labour Act, he or she has a duty to attempt to resolve the dispute between the parties through conciliation. That means that he or she must adopt measures which are conducive to the resolution of the disputes through conciliation.

As a statutory conciliator, under section 93(1) of the Labour Act, the labour officer has the power to hold the parties in the conciliation process for at least thirty days. It must be clear, that, within the thirty days, the labour officer has been engaging the parties in an attempt to resolve the dispute through conciliation. During that period, the parties are expected to attend conciliation proceedings and participate in the process by answering questions put to them by the labour officer and giving the information he or she would have asked for.

This means the labour officer and the parties must prepare adequately for the conciliation process.

Conciliation is the statutorily prescribed method by which the labour officer must attempt to settle the dispute referred to him or her in terms of section 93(1) of the Labour Act. The Labour Act does not specify the acts the labour officer has to do to facilitate the conciliation process. The duty to attempt to settle the dispute through conciliation, imposed on the labour officer by section 93(1) of the Labour Act, is wide enough to be interpreted to mean, that, it confers on the labour officer powers which are necessary to enable him or her to discharge the duty imposed on him or her.

The duty on the labour officer, to attempt to settle the dispute through conciliation, means that he or she is at large with regard to the choice and use of the steps and procedures ordinarily associated with the process of conciliation as a method of dispute resolution.

The conciliation process which a labour officer may follow may be divided into distinct steps. The following of the steps will depend on the circumstances of the case. The overall process, however, usually involves four broad stages. These are:

(i) Introduction;

(ii) Story-telling;

(iii) Dispute analysis; and

(iv) Problem solving.

The labour officer must take time, before commencement of the conciliation process, to have a preliminary understanding of the nature and possible causes of the dispute between the parties.

The duty imposed on the labour officer, by section 93(1) of the Labour Act, is premised on the fact of the existence of a dispute relating to or arising from an employment relationship.

The Labour Court may not adjudicate a different dispute from the one which was conciliated by the labour officer.

The reason is that no attempt to settle such a dispute through conciliation would have been made.

The requirement that the labour officer must be clear in his or her mind of the nature of the dispute to be conciliated is important.

A dismissal dispute, for example, cannot be referred to the labour officer as an unfair labour practice and an attempt to resolve it through conciliation made. The issue in dispute would be unfair dismissal. It must be a dispute covered by the Labour Act. A labour officer would have no jurisdiction to attempt to settle a dispute not covered by the Labour Act through conciliation.

The labour officer, as conciliator, must ensure that there are facilities that can keep the parties in the dispute apart from each other, in separate rooms, to give them the opportunity to let off steam. The separation is important whether the parties are able to talk to each other directly or not.

The venue for the conciliation should be appropriate.

There should be a single room large enough to comfortably seat the parties and the conciliator in joint proceedings. There should also be break-away rooms large enough to accommodate each party for side-meetings. The rooms must be at a distance apart or well insulated to ensure that parties do not overhear one another when in side meetings.

Throughout the conciliation, the labour officer should consider separating the parties into side-meetings if he or she considers that a joint meeting is not conducive to securing consensus.

Under normal circumstances, the labour officer may commence the process by having the parties in a joint meeting.

Choice of the most effective procedure to be employed is an important aspect of conciliation.

The labour officer must choose procedures which would enable him or her to resolve the dispute as quickly as is practical in the circumstances without jeopardising fairness, effectiveness, and perceptions of independence.

It is important for a labour officer, who is involved in a statutorily compulsory conciliation process, to appreciate that the parties would not have contributed to his or her appointment as the conciliator in their dispute. He or she must therefore take time to introduce himself or herself to the parties.

The purpose of this step of introduction is for the labour officer, as the conciliator, to begin to develop trust and rapport with the parties and to deal with all essential preliminary matters.

The labour officer must make the parties feel confident that he or she is independent of them and has no interest in the matters in dispute.

The side-meetings with each party, at the initial stage of the conciliation, are very important.

After introducing himself or herself to the party in the side meeting, the labour officer must explain the conciliation process to the party to ensure that he or she, or it, has a basic understanding of the process. In particular, the parties need to understand the difference between conciliation, as a consensus building process, and adjudication process.

The parties need to understand that the labour officer will not impose the outcome upon them. He or she must explain that his or her role is primarily to help the parties reach a mutually acceptable agreement.

He or she must lay down the ground rules for the conciliation process.

For the conciliation process to be successful, the parties need to have sufficient confidence in the labour officer to raise issues or to make concessions: see National Union of Metalworkers of SA and Ors v Cementation Africa Contracts (Pty) Ltd (1998) 19 ILJ 1208 (LC)…,. (the “NUMSA” case).

During the side-meetings, the labour officer must endeavour to get as much information from the parties as possible. He or she must let the party give his or her or its side of the dispute in detail and probe the party concerned to get the relevant information.

In a conflict situation, parties are usually eager to state their case. The sooner that this opportunity is given, and anger and emotion is released, the better for effective dispute resolution.

The labour officer should thereafter invite each party to address him or her on the dispute to be conciliated by stating as much about the dispute as the party is comfortable to disclose at this stage. This should include the background to the dispute, the issues that each party considers to be in dispute, and its position in each issue.

The labour officer must try to use the effective inter-personal skills, such as building rapport, listening, paraphrasing, summarising, dealing with emotion, including anger and threats, and helping people save face: see GROGAN “Labour Litigation and Dispute Resolution” 1ed Juta…,.; BRAND et al “Labour Dispute Resolution” 5ed Juta…,.; and DARCY du TOIT et al “Labour Relations Law A Comprehensive Guide” 6ed LexisNexis…,.

The labour officer may use the side-meeting to promote the settlement-seeking process.

He or she may use the meeting to explore options, develop propositions, and to challenge the parties.

Once he or she has obtained information from one party on the matters in dispute in a side meeting, the labour officer should move to the other party and do the same.

He or she may move from one party to the other extracting information with which he or she confronts the parties in side-meetings until he or she is satisfied that the parties can be brought together in a joint-meeting.

In the process of discussing matters in dispute in side-meetings, the labour officer must ascertain, from the party, which information he or she has been given is intended by the party to be strictly confidential. He or she should ascertain what information can be conveyed from one side meeting to another. He or she must obtain clear authority in this regard before making disclosure from one side-meeting to another.

Parties are more likely to be prepared to disclose information to the labour officer, purely for purposes of resolving the dispute, if they are confident that the process is confidential.

The process has to be confidential in order for the labour officer to be able to assist the parties to resolve the dispute.

During conciliation proceedings, the conciliator must assist the parties obtain admissions of fact and of documents relevant to the dispute.

He or she must assist the parties in holding any necessary inspections or examinations and exchange reports or other useful and relevant documents, if any.

If further particulars pertaining to the dispute or unfair labour practice are required, the conciliator should ensure that the parties give these to each other and also share them with the conciliator.

Once the labour officer has collected preliminary information from the parties, he or she must analyse it to further understand the dispute. He or she must seek to appreciate the underlying causes of the dispute. He or she must be clear in mind as to what the real issues between the parties are, the position of the parties on each issue, and their expectations. He or she must ascertain the real fears, concerns, and interests underpinning the parties positions and expectations.

Understanding these matters is often the key to a resolution of a dispute.

At the same time, it is important for the labour officer to ascertain the value that the parties place on their positions and needs and what priority they attach to each issue.

The labour officer should then bring the parties together in a joint-meeting where he or she goes through the analysis of the dispute in the context of the information gathered from them.

The analysis of the dispute is probably one of the most important steps in conciliation.

If the labour officer and the parties do not have a detailed understanding of these aspects of the dispute, it is difficult to break deadlocks creatively. What often happens, instead, is that the parties and the conciliator become trapped in a superficial and adversarial exchange of demands and concessions. Much conflict is occasioned by misunderstanding and posturing: see BRAND et al “Labour Dispute Resolution” 5ed Juta …,.

At this stage, the labour officer may challenge the parties to state what best alternatives to a mutually agreed resolution of the dispute there are.

It is often only when the parties really appreciate what the real prospects of a failure to settle a dispute may be that they realise the limitations of their bargaining positions.

Confronting the reality of adjudication frequently encourages parties to be more flexible than initially indicated.

This stage seeks to get to the essence of the dispute.

To achieve this purpose, the labour officer should ask the parties probing and testing questions to establish the causes, positions, expectations, needs, values, and priorities which the parties place on the position.

The labour officer may, however, not pressurise a party to settle by warning him or her, or it, of the consequences of losing the case in the Labour Court. He or she may ask the parties to think of the consequences of not settling the dispute by agreement. At the end of the day, the parties are the masters of the conciliation process.

The next step is for the labour officer to explore options for settlement.

The purpose of the step is for the labour officer to assist the parties develop and consider a wide and creative range of options for a possible agreement. He or she assists the parties to consider moderation of their positions and expectations, harmonise their needs, and to find joint gains and mutually beneficial needs.

The aim is to make the parties achieve win/win outcomes. These are those which meet the respective needs of the parties as much as is practically possible.

The labour officer should then assist the parties to agree to a solution of the dispute which is practical, cost-effective, and maximises the mutual satisfaction of the parties needs.

As a result of the pursuit of such options, the parties reach an agreement as the settlement of their dispute through conciliation.

The primary function of a conciliating labour officer is to assist the parties in a dispute to reach agreement.

As a conciliator, the labour officer is entitled to offer advice to the parties. He or she should, however, avoid browbeating the parties into a settlement of the dispute. He or she should not pronounce on the merits of the respective cases of the parties, even if the pronouncement is in the form of advice. All he or she should do is to seek to steer the parties to a mutually agreed outcome.

Whilst he or she must be flexible in approach, he or she must remain impartial.

It is clear that the conciliation to be embarked upon by the labour officer to achieve the purpose which is prescribed under section 93(1) of the Labour Act is not a mechanical chairing of the meetings between the parties in dispute by an independent third party. It is a process which involves active participation by the labour officer, who has to intervene in the thought processes of the parties in an attempt to resolve the dispute: see National Union of Metalworkers of SA and Ors v Cementation Africa Contracts (Pty) Ltd (1998) 19 ILJ 1208 (LC)…,.

After properly discharging his or her functions as a conciliator, in terms of section 93(1) of the Labour Act, a labour officer can issue a certificate of no settlement to the parties to the dispute or unfair labour practice in terms of section 93(3) of the Labour Act.

A certificate of no settlement is issued to the parties to the dispute or unfair labour practice when conciliation has failed, or, at the end of the thirty-day period or any further period agreed between the parties.

The expiry of the period of thirty days from the date of referral of the dispute, or the agreed extension thereof, automatically terminates the labour officer's conciliation jurisdiction.

The certificate of no settlement should be issued within a reasonable time of the expiry of the period of thirty days or the agreed extension thereof.

It is important that labour officers appreciate the legal effects of a certificate of no settlement issued to the parties.

The issuance of the certificate is evidence that the parties engaged in a genuine process of conciliation with the active assistance of the labour officer. It would not be compliance with the requirements of a compulsory process of conciliation, provided for under section 93(1) of the Labour Act as a pre-condition for the issuance of a certificate of no settlement, to call upon the parties to submit statements of claims and responses followed by submission of heads of argument before a certificate of no settlement is issued.

Such a certificate of no settlement is not in accordance with section 93(3) of the Labour Act. No attempt would have been made by the labour officer to settle the dispute between the parties through conciliation.

A properly issued certificate of no settlement has legal effect.

The law prescribes the next method of resolution of the dispute or unfair labour practice to be employed on the basis of the presumption of the existence of a validly issued certificate of no settlement.

The effect of a certificate of no settlement is to establish the fact, that, the attempt to settle the dispute through conciliation has failed. In other words, it certifies, that, on the date it was issued, the dispute referred to the labour officer for conciliation remained unresolved.

Once a certificate of no settlement is issued to the parties to a dispute of right, or unfair labour practice involving a dispute of right, the matter cannot be referred to arbitration. It must be the subject of the adjudication process before the Labour Court.

The certificate of no settlement is the legal document that determines, by its nature, the disputes to be the subjects of the process of adjudication. It also provides the rationale for the adoption of adjudication as the next stage in the dispute resolution process.

Only disputes of interest are referable to arbitration after a certificate of no settlement has been issued in terms of section 93(3) of the Labour Act.

Where the parties in a dispute of interest are engaged in an essential service, the labour officer must refer the dispute to compulsory arbitration. Where the parties in a dispute of interest are not engaged in an essential service, the labour officer may refer the dispute to voluntary arbitration with the agreement of the parties.

The rule prescribed by section 93(3), as read with section 93(5) of the Labour Act is therefore that the only methods for the resolution of disputes of right and unfair labour practices involving disputes of right referred to a labour officer in terms of section 93(1) of the Labour Act are conciliation and adjudication.

The decision to base the system of resolution of disputes of right or unfair labour practice involving disputes of right on the two methods of conciliation and adjudication, to the exclusion of arbitration, is a matter of policy determined by the Legislature.

Courts would not seek to question the wisdom of the decision.

The adjudication process is marked by procedures necessary for the proper exercise of judicial power by the Labour Court.

Section 89(1)(a) of the Labour Act provides that the Labour Court shall exercise the function of hearing and determining 'applications' and appeals “in terms” of the Act. The procedures necessary for the exercise of judicial power by the court a quo, in the process of adjudication, are prescribed for the first time under the system for dispute resolution enacted by section 93 of the Labour Act in section 93(5)(c).

Section 93(5a) of the Labour Act prescribes the matters to be brought before the court a quo and the procedure to be followed in bringing them to the court after the making of the draft ruling and order in terms of section 93(5)(c) of the Labour Act.

Parties cannot agree to have a dispute of right dealt with other than in terms of section 93(5)(c) of the Labour Act. The reason is that section 93(5)(c) of the Act places the responsibility of making a “draft ruling” on the labour officer.

He or she is required to make a “draft ruling” on the merits of the dispute as gathered from the conciliation process and after issuing a certificate of no settlement.

At that stage, the matter would no longer be entirely in the hands of the parties whom the labour officer would have been assisting to reach a settlement of the dispute by agreement. At this stage, the labour officer directs that the employer, or anyone who is found guilty of an unfair labour practice, must cease or rectify the infringement by paying a certain amount of money.

The ruling has no legal force at this stage.

An employee cannot enforce a “draft ruling”. Both the employer and the employee cannot seek a review or appeal against the ruling at this stage since it will still be a “draft”. It is a suspended ruling, which must not be taken as a direction that the money be paid there and then.

It is an interlocutory ruling in abeyance and not a final ruling.

It is a ruling that is made pending the decision of the court a quo, which may subsequently give final legal effect to the “draft ruling”.

The matters in issue remain open, depending on the conduct of the party at whom the “draft ruling” is directed. The court a quo also gives the return date in the event that there is non-compliance with the labour officer's ruling on the restitution day.

If, on or before the restitution day, the respondent complies with the order, then, the matter ends there.

It is only where a labour officer's “draft ruling” is made in terms of section 93(5)(c) of the Labour Act that the provisions of sub-sections (5a) and (5b) of section 93 of the Labour Act apply.

It is these two subsections that provide for the procedures for the institution of proceedings in the Labour Court by a labour officer for the confirmation of a “draft ruling” that would have been made in terms of section 93(5)(c) of the Labour Act.

They are the provisions that reflect the rationale for the connection between the process of conciliation, on the one hand, and that of adjudication on the other. The provisions of subsections (5a) and (5b) of section 93 of the Labour Act underscore the fact that both processes, of conciliation and adjudication, aim at delivering a just and fair resolution of the dispute between the parties.

The prescription of “application” as the process for bringing the matters for determination by the court a quo is consistent with the provisions of section 89(1)(a) of the Labour Act.

The ability of a labour officer to comply with the provisions of section 93(5)(c) of the Labour Act and do what is prescribed for the purpose of the adjudication process before the Labour Court will depend on the conduct of the parties and the labour officer. If they all engaged in a genuine conciliation process, as envisaged in section 93(1) of the Labour Act, leading to a certificate of no settlement being issued to the parties and a “draft ruling” made, the application for confirmation of the “draft ruling” would institute valid proceedings.

A certificate of no settlement, as evidence of compliance by the labour officer with the provisions of section 93(3) of the Labour Act would be sufficient proof that an attempt has been made to settle the dispute through conciliation.

An employee in whose favour a draft ruling is made by a labour officer has a legal right to be joined as a party to an application before the court a quo for confirmation of that draft ruling by a labour officer because he or she has a vested legal interest in the matter: see Drum City (Pvt) Ltd v Brenda Garudzo SC57-18.

Conciliation, as a method of dispute resolution, is different from adjudication, which involves the use of power by the third party to resolve the dispute between the parties.

Procedures such as the hearing of oral submissions, or the production of written submissions by the parties, and determination of the matters in dispute, typical of the adjudication process, are alien to the conciliation process.

During the conciliation process, the labour officer collects information and attempts to settle the dispute between the parties in a friendly manner. It is neither a trial nor a hearing.

The court a quo referred to a labour officer, who performs the functions under section 93 of the Labour Act, as an “adjudicator”. It said:

“The respondent's submissions were that the dispute was between the respondent and its employees, the applicant being the adjudicator. However, after making a ruling in terms of section 93(5a) and (5b) she becomes an applicant in a matter she was an adjudicator. The adjudicator becomes a litigant who fights in one party's corner against the other party against whom she made a ruling.”

A correct reading of the provisions of section 93 of the Labour Act shows that they do not give the labour officer any powers of adjudication.

A labour officer cannot be referred to as an adjudicator when he or she performs the functions of conciliation in accordance with the procedures prescribed for the process. He or she cannot be referred to as an adjudicator when he or she makes the “draft ruling” in terms of section 93(5)(c) of the Labour Act.

A misconception of the nature and scope of the functions of a public officer under a statute cannot found a valid application to a court alleging that the statute infringes a fundamental right.

The judgment of the Supreme Court in Drum City (Pvt) Ltd v Brenda Garudzo SC57-18 has been used as authority for the proposition, that, section 93(5)(c) (i) and (ii) violates the right of an employee to equal protection of the law enshrined in section 56(1) of the Constitution.

The allegation is that the Supreme Court held, in Drum City (Pvt) Ltd v Brenda Garudzo SC57-18, that, a “draft ruling” in terms of section 93(5)(c) (i) and (ii) cannot be made against an employee.

The passage relied on in the judgment in Drum City (Pvt) Ltd v Brenda Garudzo SC57-18 reads:

“[12] It is to be noted from the above, that only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in sections (5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee. That this is the case is left in no doubt by the wording of section 93(5)(c)(ii) which specifically provides for a ruling, like the one in casu, in circumstances where the labour officer finds that the dispute of right in question 'must be resolved against any employer or other person in a specific manner…,.'”

A “draft ruling” within the meaning of section 93 of the Labour Act can only be made in terms of section 93(5)(c).

One would have thought, that, once a finding of the fact that a “draft ruling” has been made against an employee, compliance by the labour officer with the procedure of making an application for confirmation of the “draft ruling” would follow as a matter of obligation.

The critical words at the end of section 93(5)(c) of the Labour Act, connecting the making of the “draft ruling” and the remedy of application for confirmation are “whereupon the provisions of subsections (5a) and (5b) shall apply”.

Sub-section (5a) then opens with the following provision, which imposes an obligation:

“(5a) A labour officer who makes a ruling and order in terms of subsection (5)(c), shall, as soon as practicable…,.”…,.

A “draft ruling” does not determine the dispute between the parties.

Whether made against an employer or employee, it does not confer any right until it is confirmed by the Labour Court.

It is not clear why a procedure providing access to the Labour Court should, by construction, be made available to one party in a dispute of right which has not been resolved and not to the other party.

The best that may be said of section 93(5)(c) of the Labour Act is that there is an element of vagueness lurking behind the use of the words “employer or other person.”

Statutory ambiguity or vagueness is a matter of interpretation of the statute. It is not a matter of constitutional validity of the statute concerned.

The principle which has found expression in section 46(2) of the Constitution is that, when interpreting a statutory provision, a court must promote fundamental human rights.

The elementary rule is that every reasonable construction must be resorted to in order to save a statute from unconstitutionality.

A statute must, where possible, be construed in conformity with fundamental human rights.

One cannot interpret Drum City (Pvt) Ltd v Brenda Garudzo SC57-18 as authority for the proposition, that, it would only be cases where a “draft ruling” has been made against the employer that confirmation proceedings would ensue.

The remarks were made as an obiter dictum.

The ratio decidendi of that case is that an employee must be joined in confirmation proceedings.

At paragraph [30] of the cyclostyled judgment, the court said:

“When all is said and done, and, in view of the foregoing, it is my finding that there was a fatal non-joinder of the employee, Ms Khan, to the proceedings a quo. Such proceedings can therefore not be allowed to stand.”

Section 93(5a) of the Labour Act gives the protection and benefit of the law, as the labour officer's ruling has no force until it is confirmed by the Labour Court. All parties appearing before the labour officer are protected.

Confirmation of a draft ruling is a legal process.

The judicial officer in the Labour Court is tasked with applying the principles of the law to the facts. He or she is not merely rubber-stamping the “draft ruling” of the labour officer. The judicial officer is required to thoroughly investigate the matter. A judicial officer is bound by the law of confirmation. He or she must research the procedure and the applicable law.

It has been contended, that, section 93(5a) of the Labour Act violates the right of access to the courts, enshrined in section 69(3) of the Constitution.

Conciliation does not contemplate a hearing as envisaged in adjudication. The term “hearing” is a familiar term, generally understood to mean a judicial examination of the issues between the parties, whether of law or of fact. Conciliation is less formal than a hearing and is designed to settle the dispute between the parties in a quicker and more friendly manner.

Once a hearing is conducted, there must be a determination which is capable of execution or enforcement.

A determination is a decision on an issue in favour of one party and against the other party, with the effect of bringing an end or finality to the cause of action or controversy between the parties by the authority to whom it is submitted under a valid law for disposal.

If what is done by the authority concerned does not have the effect of bringing the dispute to an end as between the parties, their rights and obligations remain undetermined.

The procedure provided for in section 93(5a) of the Labour Act is based on the making of a “draft ruling” by the labour officer. The “draft ruling” is not capable of enforcement until it has been confirmed by the Labour Court.

A “draft ruling” is not a determination, as it is not preceded by a hearing.

The purpose of making an application, supported by an affidavit, is to place the matter in dispute and the evidence before the Labour Court for hearing and determination.

A perusal of section 93(5b) of the Labour Act is reflective of the fact, that, a hearing commences when the matter goes for confirmation before the Labour Court. It is not coincidental that the term “hearing” appears for the first time in the same section in terms of which the matter is brought to the Labour Court for confirmation.

The exercise of judicial power ordinarily does not begin until some tribunal, which has to give a binding and authoritative decision (whether subject to appeal or not), is called upon to take action.

Adjudicative facts of the dispute of right or unfair labour practice involving a dispute of right can be gathered only by judicial process. The labour officer would not have ascertained the facts which could be ascertained only by resorting to judicial process. Only by being first ascertained through legal procedure are facts brought into the sphere of law.

The Labour Court, as the competent organ under the statutory scheme for the resolution of the type of disputes prescribed under section 93(3) of the Labour Act, is the organ to legally create the adjudicative facts.

It is clear from the provisions of section 93(5a) of the Labour Act, that, the matters over which the Labour Court would have jurisdiction, if they are brought to it in terms of the requirements of the prescribed procedure, are products of strict compliance by the labour officer with the procedural and substantive requirements of sections 93(1), 93(3) and 93(5)(c) of the Labour Act.

The procedure in section 93(5a) of the Labour Act is not to be read independently of the preceding procedures provided for in these sub-sections. This means, that, a matter that is not a product of compliance with the procedural and substantive requirements of these provisions would not fall within the class of matters over which the Labour Court would have jurisdiction in terms of section 93(5a) of the Labour Act.

It would not be a matter which would be the subject of the procedure for bringing such matters to the court a quo, as prescribed under section 93(5a) of the Labour Act.

Bringing such a matter to the court a quo, under the guise of invoking the procedure prescribed in the subsection, would not validly institute proceedings in that court in terms of section 93(5a) of the Labour Act. The court a quo would not have a valid matter over which to exercise jurisdiction.

Where the intention of the Legislature is to confer on a labour officer the power to determine a matter referred to him or her, the empowering provision does so in express terms.

Section 101(1c) of the Labour Act, for example, provides that where an employment council refuses to approve an employment code drawn up by a works council, the works council may refer the matter to a labour officer, and, the determination of the labour officer on the matter shall be final unless the parties agree to refer it to voluntary arbitration.

Section 101(6) of the Labour Act provides, that, where disciplinary proceedings instituted under the employment code are notified to a person alleged to have breached the code are not determined within thirty days of the date of notification, the employee or employer concerned may refer such matter to a labour officer. The labour officer may then determine the matter or otherwise dispose of the matter in accordance with section 93 of the Labour Act….,.

These provisions show, that, the power to determine a matter is different from the power to attempt to settle a dispute in terms of section 93(1) of the Labour Act.

As indicated earlier, the National Employment Council for the Motor Industry requested the respondent to redress the dispute of non-payment of retrenchment packages.

Section 62(1(a) of the Labour Act gives an employment council the power to settle disputes that have arisen or may arise between employers and employees within the undertaking or industry in respect of which it is registered.

The registered employment council exercises the power and performs the function to settle disputes referred to it in section 62(1)(a) of the Labour Act through its designated agents, appointed and authorised by the Registrar of Labour in terms of section 63(3a) of the Labour Act.

Section 63(3a) of the Labour Act allows a Designated Agent, upon authorisation by the Registrar of Labour, to either redress or attempt to redress any dispute which is referred to the Designated Agent or has come to his or her attention.

That is the case where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered.

Section 63(3b) of the Labour Act expressly ousts the jurisdiction of a labour officer where a Designated Agent is authorised to redress any dispute or unfair labour practice in terms of section 63(3a) of the Labour Act.

A labour officer has no jurisdiction to conciliate a dispute which should have been referred to a Designated Agent in terms of section 63(3a) of the Labour Act.

The labour officer must not simply decline to entertain the dispute. He or she must redirect the dispute to the correct forum.

What is key in understanding what a Designated Agent can or cannot do is to understand the meaning of the phrase “redress any dispute” used in section 63(3a) of the Labour Act.

When used as a verb, the word “redress” according to the Oxford English Dictionary means to remedy or set right an undesirable or unfair situation.

A Designated Agent, authorised by the Registrar of Labour, redresses a dispute referred to him or her. He or she offers a remedy or sets right an unfair situation.

The meaning of section 63(3a), as read with section 63(3b) of the Labour Act is that where the Designated Agent redresses a dispute, by making a final decision as to the rights of the parties, section 93 of the Labour Act does not apply.

The decision of the Designated Agent, at that stage, is final. There is no need for it to be confirmed in terms of section 93(5a) and section 93(5b) of the Labour Act for purposes of execution.

The party that is aggrieved by the decision made in terms of section 63(3a) of the Labour Act can only appear before the Labour Court by way of an appeal or review. The Labour Court can then exercise its powers over that matter in terms of section 89(1) of the Labour Act.

A Designated Agent may only exercise one power over a dispute.

He or she may redress the dispute or attempt to redress it. He or she cannot do both. If he or she chooses to redress the dispute by hearing and determining the issues in dispute, he or she cannot, at the same time, attempt to redress the dispute.

It is clear from the provisions of section 63(3a), as read with section 93(1) of the Labour Act that a Designated Agent can only proceed in terms of section 93 of the Labour Act if he or she has not redressed the dispute. He or she would be attempting to settle the dispute through conciliation. There can be no attempt to settle a dispute which has been redressed.

The provisions of section 93 of the Labour Act would apply when the power to be exercised by the Designated Agent is an attempt to redress the dispute through conciliation.

The Designated Agent does not have to consult a senior, as is required by section 93(5) of the Labour Act in the case of a labour officer. Section 63(3a) of the Labour Act provides that the provisions of section 93 of the Labour Act would apply to a Designated Agent “with the necessary changes”.

The process explained above was, however, not what caused the parties to appear before the court a quo.

A final decision was made by a Designated Agent after hearing evidence on the dispute from the parties.

It was a decision made by an impartial arbiter after hearing evidence from both parties. It disposed of the issue for determination. A certificate of no settlement, which is an essential step in the procedure provided for under section 93(3) of the Labour Act, could not be issued.

It is on the basis of the certificate of no settlement that the “draft ruling” made under section 93(5)(c) of the Labour Act is endowed with validity.

At the point the final decision was made by the Designated Agent, no dispute remained to be resolved by way of conciliation. On that basis alone, the subsequent proceedings before the court a quo were a nullity.

Section 93 of the Labour Act does not create an avenue for the validation of a final decision that is made by a Designated Agent in terms of section 63(3a) of the Labour Act. It only creates an avenue where a Designated Agent adopted the process of attempting to settle the dispute through conciliation in accordance with the provisions of section 93 of the Labour Act.

Be that as it may, no conciliation proceedings were conducted.

As already indicated, it is necessary that conciliation be attempted in the first instance for the procedure in section 93(5a) and section 93(5b) of the Labour Act to be properly adopted. This is so because in conciliation proceedings the labour officer, acting in terms of section 93(1) of the Labour Act, helps the parties to a dispute to reach a settlement.

It is common cause, that, the dispute between the applicant and its former employees was a dispute of right.

The aggrieved former employees claimed their retrenchment packages in terms of section 12C(2) of the Labour Act. The provision enjoins an employer who terminates contracts of employment on notice to pay the affected employees a minimum retrenchment package.

The respondent ought to have first attempted to settle that dispute through conciliation if that was the method by which she would have decided to resolve the dispute referred to her.

According to the respondent's determination, the applicant was under an obligation to pay the sums claimed by the former employees whose contracts were terminated on notice. No certificate of no settlement was issued by the respondent.

Absence of the certificate is evidence of the allegation that she did not preside over a conciliation process.

However, section 93(5) of the Labour Act makes it clear, that, it is upon the issuing of a certificate of no settlement that a labour officer, acting in terms of section 93(1) of the Labour Act, may direct that there be payment of money by an employer in order to rectify an unfair labour practice.

At that point, the labour officer merely makes a “draft ruling” which has no legal effect until it is confirmed by the Labour Court.

Without the certificate of no settlement, a labour officer cannot purport to act in terms of section 93(5)(c) of the Labour Act. To that end, the respondent could not have approached the court a quo in terms of section 93(5a) of the Labour Act.

The court a quo could not have assumed jurisdiction over the matter in terms of section 93(5b) of the Labour Act.

The respondent's determination ordered the applicant to pay retrenchment packages to the affected former employees by 31 July 2016. That order was not based on any of the provisions of section 93 of the Labour Act.

Section 93(5a) and section 93(5b) of the Labour Act state, that, the exercise of such power is the prerogative of the Labour Court upon application for confirmation of a “draft ruling” by the labour officer.

Where a final decision has already been made on the dispute in question, there cannot be any conciliation to speak of in terms of section 93 of the Labour Act.

Conciliation, by nature, is an alternative form of dispute resolution, which cannot be resorted to once the dispute has been resolved.

The analysis shows, that, there is a difference in the legal treatment of a party who has already obtained a final decision on a claim and one who has obtained “a draft ruling” in terms of section 93(5)(c) of the Labour Act. The two parties are not similarly situated.

The difference in the remedy available to them is justified by the nature and effect of the procedure adopted for the resolution of the dispute of right or unfair labour practice involving a dispute of right.

There were no proceedings before the court a quo, in terms of section 93(5a) of the Labour Act [Chapter 28:01], which would have entitled the court a quo to exercise its jurisdiction under section 175(4) of the Constitution in respect of questions of the constitutionality of section 93(5a) and section 93(5b) of the Labour Act.

This is an application for direct access to the Constitutional Court made in terms of section 167(5)(a) of the Constitution of Zimbabwe. The allegation is that the conduct of the respondents violated the applicant's fundamental rights as enshrined in sections 69(1) and 70(1)(d),(e) and (f) of the Constitution.

The brief facts of the matter are as follows:

In 2017, the applicant was arraigned before the magistrates court at Harare facing charges of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Three separate trials were held before the first, second, and third respondents and he was convicted and sentenced to three separate terms of imprisonment.

It is the applicant's allegation, that, during the conduct of the trial proceedings, the first and second respondents violated his right to legal representation because they did not advise him of that right at the commencement of the trial.

This is alleged to be a violation of section 70(1)(d), (e) and (f) of the Constitution.

In the same respect, it is also alleged, that, the first and second respondents “failed to take heed to the laws governing the commencement of criminal trials” and therefore violated section 163A(1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP&E Act).

It is further alleged, that, such conduct infringed the applicant's right to a fair trial as entrenched in section 69(1) of the Constitution.

As regards the third respondent, it is averred, that, the magistrate did advise the applicant of his right to legal representation in terms of section 191 of the Criminal Procedure and Evidence Act, but, then failed to make an enquiry as to whether or not the applicant had understood those provisions.

This is said to have led to unfair proceedings in violation of sections 69(1) and 70(1)(d),(e) and (f) of the Constitution.

Allegations are also made against the fourth respondent in that it failed to assist the applicant in protecting his fundamental rights as aforementioned.

Consequent to these alleged violations, the applicant has approached this Court for relief.

The application is opposed by the fourth respondent.

It contends, that, the applicant has not demonstrated, that, it is in the interests of justice that he be granted direct access to the court. It is also argued, that, the mere reference to constitutional provisions does not mean that a constitutional matter has been raised.

It is important to note, that, the fourth respondent concedes that the proceedings before the first, second, and third respondents were irregular, but, nevertheless, avers that competent relief could have been granted by the High Court or the Supreme Court thus obviating the need to approach the court directly.

In fact, it is alleged that the applicant has since approached the High Court for relief under Case No. HC7066/20.

It is prayed that the application be dismissed as it is without merit.

An application for direct access is regulated by the Constitutional Court Rules and an applicant must satisfy all the requirements contained therein.

Compliance with the Rules is not a mere formality.

As was stated in Liberal Democrats & Ors v The President of the Republic of Zimbabwe, E.D. Mnangagwa N.O & Ors CC07-18…,:

“Direct access to the Constitutional Court is an extraordinary procedure granted in deserving cases that meet the requirements prescribed by the relevant rules of the Court.”

Rule 21(3) of the Constitutional Court Rules contains the requirements that ought to be satisfied in an application of this nature. It states the following:

“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out —

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

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

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

Rule 21(8) of the Constitutional Court Rules itemises some of the factors to be taken into account in determining whether it is in the interests of justice for a matter to be brought directly to this Court. These include, the prospects of success if direct access is granted; the availability of an alternative remedy; and whether there are disputes of fact in the matter.

The importance of the requirement that an applicant should show, that, it is in the interests of justice that the application be granted is explained by CURRIE and De WAAL: The Bill of Rights Handbook (6th ed. 2013)…,. The learned authors state as follows:

“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 settled law, that, the jurisdiction of the Constitutional Court is triggered only where a constitutional issue arises or where an issue connected with a decision on a constitutional matter arises.

Section 332 of the Constitution defines a constitutional matter as a matter in which there is an issue involving the interpretation, protection, or enforcement of the Constitution.

In Moyo v Chacha & Ors 2017 (2) ZLR 142 (CC), the court defined a constitutional matter in the following words…,:

“The import of the definition of a 'constitutional matter' is that the Constitutional Court would be generally concerned with the determination of matters raising questions of law, the resolution of which require the interpretation, protection, or enforcement of the Constitution.

The Constitutional Court has no competence to hear and determine issues that do not involve the interpretation or enforcement of the Constitution or are not connected with a decision on issues involving the interpretation, protection, or enforcement of the Constitution.”

Also germane in the present context are the twin doctrines of constitutional avoidance and subsidiarity which ordinarily operate to militate against the assumption of jurisdiction by this Court - even where a constitutional question or matter might otherwise arise for determination.

This position was articulated succinctly in Zinyemba v Minister of Lands and Rural Resettlement & Anor 2016 (1) ZLR (23) CC…,.:

“Two principles discourage reliance on the constitutional rights to administrative justice. The first is the principle of avoidance which dictates, that, remedies should be found in legislation before resorting to constitutional remedies. The second principle is one of subsidiarity which holds, that, norms of greater specificity should be relied upon before resorting to norms of greater abstraction.”

In casu, the circumstances of the case demand, that, an analysis of whether the matter is properly before the Court ought to be made before any enquiry into the merits.

In his founding affidavit, the applicant purports to bring the present application before the court in terms of section 167(5)(a) of the Constitution.

This is clearly irregular as such an application cannot be brought before the court in terms of that provision.

Section 167(5)a) of the Constitution provides as follows:

“(5) Rules of the Constitutional Court must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court —

(a) To bring a constitutional matter directly to the Constitutional Court;”

The above provision clearly makes reference to the Rules of the Constitutional Court in terms of which a litigant must approach the court. Section 167(5)(a) of the Constitution cannot be read as a standalone provision independent of other constitutional provisions and the Rules that it mentions.

As pointed out by GWAUNZA JCC in Prosecutor General, Zimbabwe v Telecel Zimbabwe (Pvt) Ltd 2015 (2) ZLR 422 (CC) at 425H:

“…,. 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.”

The Court went further to explain the true status of the provision, at 426A:

“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.”

Whilst the above remarks were made in relation to section 167(1) of the Constitution, they apply with equal force to the circumstances in casu.

Section 167(5)(a) of the Constitution, in terms of which the applicant seeks to approach this Court, must be read together with other provisions of the Constitution and the Rules which were enacted to give effect to that provision.

In that regard, section 85(1) of the Constitution and Rule 21 of the Constitutional Court Rules are pertinent.

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

“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.”

Having regard to the above provision, it is apparent that the applicant ought to have approached the Court in terms of section 85(1) of the Constitution, claiming the vindication of his fundamental rights.

Section 167(5)(a) of the Constitution, in se, does not confer upon anyone the right to approach the Constitutional Court directly - even where there is a constitutional matter for determination.

It is also necessary to point out, that, the applicant has not attached a draft of the substantive application which he intends to place before the Constitutional Court should direct access be granted.

This is a requirement in terms of Rule 21(4) of the Constitutional Court Rules which provides as follows:

“(4) The applicant shall attach to the application a draft of the substantive application he or she seeks to file with the court.”

It is trite, that, generally speaking, the use of the word “shall” is indicative of the legislature's intention to make the provision under scrutiny peremptory or imperative rather than merely directory or permissive: see Shumba & Anor v The Zimbabwe Electoral Commission & Anor 2008 (2) ZLR 65 (S)…,.

The consequences of a failure to comply with a mandatory provision are explained by FRANCIS BENNION: Statutory Interpretation…, as follows:

“Where the relevant duty is mandatory, failure to comply with it invalidates the thing done. Where it is merely directory, the thing done will be unaffected (though there may be some sanction for disobedience imposed on the person bound).”

The applicant's failure to attach a draft of the substantive application that he intends to file with the court, should direct access be granted, is a clear violation of Rule 21(4) of the Rules.

In the absence of such a draft application, the court is severely hamstrung as regards the assessment of the merits of this application.

A determination of whether or not it is in the interests of justice to grant direct access is made impossible without the court having sight of that draft application.

Furthermore, and finally, the applicant's founding affidavit, in contravention of the peremptory provisions of Rule 21(3)(c) of the Constitutional Court Rules, does not indicate 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....,.

Having considered the totality of the aforementioned circumstances apropos the present application itself, the inescapable conclusion is that it is fraught with fundamental irregularities and is therefore not properly before the court. The gravity of the irregularities marring the application precludes and obviates the need to assess and determine the merits thereof.

It is accordingly ordered, that, the application, being improperly before the court, be and is hereby struck off the roll with no order as to costs.

This is an application for leave for direct access to the Constitutional Court made in terms of section 167(5) of the Constitution (“the Constitution”), as read with Rule 21(2) and (3) of the Constitutional Court Rules 2016 (“the Rules”).

The application is opposed.

The applicant and the respondent were involved in a labour dispute which ultimately found its way before the Supreme Court. The Supreme Court found in favour of the applicant and ordered the respondent to pay the applicant an amount of USD41,161=30 as damages for unlawful dismissal.

Pursuant to the order, the applicant caused a writ of execution to be issued out for the attachment of the movable property of the respondent in satisfaction of the judgment. She instructed the second respondent to execute the writ.

Upon service of the writ, on 15 January 2020, the first respondent paid through RTGS the sum of 43,495=37.

Notwithstanding such payment, the applicant caused the seizure of the respondent's movable property which prompted the latter to seek a provisional order to stay the execution of the writ.

The applicant was undeterred.

On 7 July 2020, she caused the issuance of an additional writ, this time against the movable and immovable property of the respondent.

On 28 July 2020, an immovable property of the first respondent was attached in execution pursuant to the second writ. The second respondent was instructed to sell the property. The sale was scheduled to take place on 2 October 2020.

The first respondent reacted.

It filed an urgent court application seeking the setting aside of the second writ of execution and the consequential attachment of the immovable property. The applicant was given five days to respond to the application.

Due to an error, the matter was treated as an urgent chamber application instead of a court application and referred to a judge in chambers.

The applicant had not, at that stage, filed any papers in response.

There was also no proof on record that the first respondent had served the court application on the applicant as required by the rules of court.

At the time, the dies induciae stated on the application had not expired and the matter was removed from the roll for urgent chamber applications.

After correspondence from the first respondent, to the High Court, pointing out the errors, was received, the error was rectified and the parties filed their papers in accordance with the Rules.

The applicant had grievances on how papers of the application were served on her.

She filed several letters in the record raising issues on how the matter was being dealt with by the first respondent and the conduct of the matter by court officials.

The first respondent also requested audience with the judge to whom the matter had been assigned. The learned judge acceded and set a date for the parties to appear before her.

On 28 September 2020, the parties appeared before a judge of the High Court, in chambers, for a case management meeting to prepare a road map for the disposal of the matter.

During the meeting, the first respondent requested that the applicant agree to a postponement of the judicial sale of the immovable property. The applicant would not agree, resulting in the former making an oral application for the suspension of the sale in execution.

Pursuant to that meeting, an order in the following terms, was issued:

“IT IS ORDERED THAT:

1. First respondent to be served with applicant's answering affidavit and heads of argument forthwith.

2. The first respondent shall, if she so wishes, file her heads of argument on or before 5 October 2020.

3. The matter HC4380/20 be set down on 8 October 2020.

4. The writ of execution in SC119/19 be suspended pending the decision of the court in HC4380/20.

5. Costs of the stay in execution incurred by the second respondent pending the decision of the court in HC4380/20 shall be borne by the applicant.”

On 7 October 2020, the applicant filed this application for direct access to the Court.

She attached a copy of the main application she wishes to file under section 85(1) of the Constitution in which she alleges that her rights had been violated by the order granted by the court a quo....,.

The Constitutional Court is a specialised court, and, in terms of section 167(1)(b) of the Constitution, decides only constitutional matters and issues connected with decisions on constitutional matters.

It thus exercises jurisdiction as a court of first instance and an appeal court.

In view of the limited jurisdiction of this Court, direct access to the court, for the exercise of its jurisdiction for the vindication of a fundamental right premised on section 85 of the Constitution, as a court of first instance, is granted to a litigant who is able to show, that, it is in the interests of justice for direct access to the court to be granted to such litigant.

The import of the principle for the requirement that an applicant for direct access show that it is in the interest of justice that the application be granted ought not to be minimized.

The requirement was explained by I CURRIE and J De WAAL in 'The Bill of Rights Handbook' 6ed…, as follows:

“Direct access is an extraordinary procedure that has been granted by the Constitutional Court in only a handful of cases….,.

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 interest of justice for a court to sit as a court of first instance in which matters are decided without there being any possibility of appealing against the decision given.”

A court that sits to decide whether or not it is in the interests of justice that direct access be granted may take into account a number of factors for consideration. Those factors are set out in Rule 21(8) of the Constitutional Court Rules 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.”

Within this jurisdiction, the requirement that an applicant shows prospects of success as regards the main application, as provided for in Rule 21(8) of the Constitutional Court Rules, was settled in Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18, wherein the court made the following remarks:

“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 state facts or grounds, in the founding affidavit, the consideration of which would lead to the finding that it is in the interests of justice to have the constitutional matter placed before the court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction.

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

In casu, it is common cause, that, the decision that the applicant alleges to be in violation of her rights is an interlocutory one.

It was the decision to suspend the sale of the first respondent's immovable property pending the determination of the matter on the substance. The suspension of the sale did not determine any rights of the respective parties. The decision served to preserve the rights of the parties until a decision on the merits had been made. The court reasoned thus:

“This Court is required to decide, on 8 October 2020, whether the payment by the applicant (first respondent herein), of $43,495=37, to the Deputy Sheriff, on 14 January 2020, sufficiently discharged its indebtedness to first respondent thus warranting a stay of execution and the setting aside of the writ issued on 7 July 2020. While first respondent is a self-actor she ought to understand, that, it is improper to insist on a sale in execution and thus render the decision of the court a brutum fulmen, particularly where the date of disposal of the matter has been agreed.

In any event, she suffers no prejudice as the property remains under attachment with costs for the suspension of the sale being to the charge of the applicant.

If she succeeds in opposing the application for stay of execution, she can continue with the execution, which is merely being suspended, and not set aside. However, if execution is allowed to continue and it transpires that the applicant had indeed settled the judgment debt in full, then, the harm to it would be irreparable as its property would have been sold to an innocent third party.

While it is understandable that the first respondent is frustrated at the delay in obtaining just satisfaction for the applicant, it cannot be reasonable to insist on the sale in execution as that makes the whole process an exercise in futility. Therefore, the balance of convenience favours the applicant.”

A consideration of the reasons by the learned judge in the lower court shows, that, the real dispute between the parties has not even been heard. Thus, the rationale for the applicant to insist on execution of the writ of 7 July 2020 has not yet been ventilated. There are issues of fact and law that have yet to be determined.

Indeed, if the applicant had not mounted these proceedings, the main dispute, which was scheduled for hearing on 8 October 2020, would have been decided by the High Court by now.

This means, that, there is not even an issue of the applicant not having exhausted her domestic remedies as there were no domestic remedies to resort to.

As explained by her ladyship in the judgment, the suspension of the sale was a reasonable intervention that would serve to achieve justice between the parties.

The court had to decide whether or not the first respondent had satisfied the judgment debt, and, in the interim, to ensure that the judgment would not be a brutum fulmen, the sale had to be suspended.

No prejudice ensued against either party; as the applicant, would, if successful, be able to have the sale continue and recover from the sale whatever the court would have decided was still owed.

As a consequence, the court is disabled from considering the first factor mentioned in the Rules, that of prospects of success. There is nothing to consider and determine due to the fact, that, the real dispute between the parties is pending before the court a quo.

The correct position is that proceedings between the parties are still pending in the High Court.

This, therefore, means that the application is ill-conceived and this court has, in several cases, pronounced on the imprudence of an applicant adopting this course of action.

The dicta in Chihava v Provincial Magistrate Mapfumo N.O. & Anor 2015 (2) ZLR 31…, are apposite. GWAUNZA JCC…, remarked:

“I, therefore, entertain no doubt, that, the certainty referred to above would be completely eroded were the courts to operate based on a literal and grammatical interpretation of section 85(1). This circumstance is not only highly undesirable, but it would also constitute an affront to the time-honoured common law principle, that, a superior court should be slow to intervene in ongoing proceedings in an inferior court, except in exceptional circumstances. This principle is persuasively articulated as follows in the case of Wahlhaus v Additional Magistrate, Johannesburg 1959 (3) SA 113 (A);

…,. A superior court would be slow to exercise any power upon the unterminated course of criminal proceedings in a court below, but, would do so in rare cases where grave injustice might otherwise result or where justice might not by other means be attained.”

See also Mushapaidze v St Anne's Hospital & Ors CC18-17.

The above remarks are apposite in this case.

The High Court is seized with a very critical issue between the parties, viz: whether or not the first respondent has met its obligations in terms of the judgment obtained by the applicant.

The court a quo is not aware of these proceedings, or the fact that its directive is being impugned by the applicant.

A perusal of the founding affidavit to the main application will tend to show, that, the applicant is aggrieved by the grant of the stay of execution concerning the sale scheduled for 2 October 2020.

I do not read, from the substance of the affidavit, an allegation that the court a quo conducted itself in a manner that could be considered a violation of the applicant's rights to a fair hearing.

The complaints emanating from the affidavit focus on procedural and substantive issues regarding the order suspending the sale in execution.

In Bruce v Fleecytex Johannesburg CC 1998 (2) SA 1143 (CC) [4], the Constitutional Court of South Africa, in considering an application for direct access, made the following remarks:

“…,. If Bruce is entitled to any relief, she can obtain it from the High Court. In effect, what she is now seeking to do through the application for direct access is to appeal against the decision of Wunsh J on an issue that was not raised in the proceedings before him, and to avoid the normal appeal procedure by launching proceedings for direct access to this Court.

[22] KENTRIDGE AJ made it clear in his judgment in S v Zuma and Others [26] that applications for direct access are to be entertained in exceptional circumstances and not merely to avoid the consequences of incorrect procedures that have been followed. If, notwithstanding the pending appeal, Bruce is entitled to raise the constitutionality of section 180(3) of the Insolvency Act in separate proceedings, she can initiate such proceedings in the High Court; but, if she is not entitled to do so, she cannot avoid the consequences of her earlier omission by applying to this court for relief.

[23] I am satisfied, that, grounds for direct access have not been established and that this is not a proper case for the granting of such relief.”

There is a suggestion, that, the learned judge had indicated that the matter was not urgent.

This does not appear to be supported by the learned judge's reasons for its removal from the roll.

In any event, it is of no moment as the matter was filed as an urgent court application and not an urgent chamber application.

There is a difference in the manner of treatment of the two by the Registrar and the court itself.

An urgent chamber application must be placed before the judge in chambers upon its filing; whereas, an urgent court application must comply with the dies induciae as stated on the face of the application. It must be placed on the roll after the respondent or respondents, as the case may be, have been availed an opportunity to file papers in opposition.

I do not find it necessary to consider whether or not the applicant has established whether or not there is no other remedy available or if the matter cannot be dealt with without the calling of evidence.

The application seeks to challenge interlocutory proceedings, and, this is not permissible in the light of the authorities referred to above.

From the aforegoing, the applicant has not established, that, it is in the interests of justice that the application be granted.

The application must fail.

The first respondent has prayed that the applicant be mulcted with an order for costs.

In constitutional matters, it is not the norm that costs be awarded against the unsuccessful litigant. The first respondent has not suggested that the applicant is guilty of vexatious conduct or an abuse of court process. Nor has it been suggested that the application is frivolous. In the premises, it is my view that an order for costs is not warranted.

Accordingly, it is ordered, that, the application be and is hereby is dismissed with no order as to costs.

The remarks of MALABA DCJ…, in Chiite and Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust CC10-17 are apposite. He stated the following…,:

“What the Court has before it are disgruntled litigants who have attempted to try and obtain redress under the guise of an appeal on a constitutional matter. Their criticism of the judgment of the Supreme Court, set out in what purports to be grounds of appeal, is no more than a raging discontent over the factual findings of the Supreme Court. The grievances of the losers in the Supreme Court have all the hallmarks of a mere dissatisfaction with the factual findings by that Court: see De Lacy and Anor v South African Post Office 2011(a) BCLR 905 (CC) paras 28 and 57.”

This is an application in terms of section 85(1)(a) of the Constitution of Zimbabwe.

The appellants allege that their constitutional rights, as enshrined in sections 70(1(b), 70(1)(d) and 70(1)(c), have been violated through the manner in which criminal proceedings against them were conducted in the Magistrates Court sitting at Chivhu.

They seek an order that the proceedings be quashed and a trial de novo ordered before a different magistrate.

The respondents raise a point in limine to the effect, that, the applicants are not properly before this Court.

They contend, that, the applicants should have approached this Court through a referral of the matter to it by the Magistrates Court in terms of section 175(4) of the Constitution. This is in view of the fact that the constitutional issue upon which the application is premised arose during the course of proceedings in the Magistrates Court.

It is not in dispute, that, the applicants took the opportunity availed by a postponement, granted by consent in the Magistrates Court proceedings, to approach this Court directly.

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

“Powers of courts in Constitutional Matters

“175(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 merely frivolous or vexatious.”

It is the respondents contention, in light of this provision, that, the applicants failure to approach this Court in terms of section 175(4) of the Constitution was 'fatal' to the application.

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 interest;

(b)…,.

(c)…,.

(d)…,.

(e)…,.
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 word “court” is not defined in section 332 of the Constitution, but, in the context in which it is used, appears to include the Constitutional Court.

It seems to me therefore, that, on a strict, literal reading of section 85(1)(a) of the Constitution, it could be argued, as the appellants briefly do in casu, that, beyond what is expressly stated therein, the wording does not place any restrictions on the type of person who may approach the Constitutional Court directly.

Firstly, the section is not prefixed with the words 'subject to…; or 'save as otherwise provided in terms of…,.'

These phrases are normally used in legislative drafting parlance to indicate that the provision in question does not have unfettered application but is to be applied only to the extent that it does not contradict the specific other provisions mentioned.

This is clearly not the case in casu.

Secondly, the applicants are clearly acting in their own interest, and are alleging a violation of their fundamental rights.

Thirdly, and more specifically, it could be argued, that, section 85(1) of the Constitution does not expressly exclude a direct approach to this Court where the violations alleged were perpetrated in the course of proceedings in a lower court.

This situation is to be contrasted with some provisions of section 24 of Zimbabwe's old Constitution, which effectively are the precursor to some parts of both sections 85 and 175 of the current Constitution.

Section 24 read as follows in relevant parts:

“24. Enforcement of protective provisions

(1) If any person alleges that the Declaration of Rights has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may, subject to the provision of subsection (3), apply to the Supreme Court for redress.

(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.

(3) Where in any proceedings such as are mentioned in subsection (2) any such question as is therein mentioned is not referred to the Supreme Court then, without prejudice to the right to raise that question or any appeal from the determination of the court in those proceedings, no application for the determination of that question shall lie to the Supreme Court under subsection (1).”…,.

In interpreting section 24(3) and its effect, a number of authorities ruled, that, it rendered the provisions of section 24(2) mandatory. In other words, any constitutional issue that arose during proceedings in a lower court, had to be referred to the Supreme Court (sitting as a Constitutional Court) in terms of section 24(2).

Section 175(4) of the current Constitution is an exact replica of the old section 24(2).

It was, for instance, held by MALABA JA…, in Tsvangirai v Mugabe and Anor 2006 (1) ZLR 148 (S) as follows;

“It is the duty of the party who wants a question as to the contravention of the Declaration of Rights arising in the proceedings in the High Court, or in a court subordinate to it, referred to the Supreme Court for determination, to ensure compliance with the provisions of section 24(2). The requirement to comply with the procedure prescribed thereunder is made mandatory by the provision of section 24(3).”

In the earlier case of Jesse v Attorney General 1999 (1) ZLR 121 (S), GUBBAY CJ…, had similarly stated as follows;

“Put differently, the question is whether an applicant may, during the course of proceedings in the High Court, as in any court subordinate to it, simply ignore the provisions of section 24(2), and utilise the procedure laid down in section 24(1). I entertain not the slightest doubt that the resort by the applicant to section 24(1) of the Constitution was impermissible.”

GUBBAY CJ went on to dismiss the application before him, for contravening section 24(3) of the Constitution.

It is thus evident, that, the application in casu would have been declared impermissible, and/or been dismissed, had it been brought in terms of the old section 24(1).

It should be noted, however, that, in the case of Martin v A-G & Anor (1993) (1) ZLR 153 (S) it was held, that, an exception to this general rule would arise in the situation where a lower court denied an application for referral in terms of section 24(2) of the old Constitution, for reasons other than those permitted under section 24.

See also Mukoko v Commissioner General of Police & Others 2009 (1) ZLR 21 (S).

In that case, the refusal to refer the matter to the Supreme Court was found to have been premised on a misunderstanding, by the Magistrates Court, of the meaning of the phrase 'frivolous or vexatious'. The court held, that, in such circumstances, the unsuccessful applicant was entitled to approach the Supreme Court directly in terms of section 24(1).

While this is not the situation that the case at hand is concerned with, it is nevertheless pertinent to note, that, an applicant, such as the one in Martin v A-G & Anor (1993) (1) ZLR 153 (S), would have had to initially make his application for referral to a lower court.

The last argument that could conceivably have been raised against a finding that the application in casu should suffer the same fate is that, despite subsection 175(4) repeating word for word, section 24(2) of the old Constitution, the section that followed it, that is section 24(3), was not similarly imported into section 175 of the current Constitution.

This is the subsection that the authorities cited above interpreted as outlawing a direct approach to the Supreme Court. In addition to this, reference to the same subsection, in the old section 24(1) also failed to find its way into the new Constitution.

The sum total of all this, it appears to me, could be interpreted as evincing an intention, by the Legislature, to remove completely any “bar” that an applicant in terms of section 24(1) might have confronted, arising from the fact that the constitutional issue in point arose during proceedings in a lower court.

It could further be interpreted as creating the impression, that, the options for redress that were open to an applicant envisaged in the old sections 24(2) (now section 175(4)) and 24(3) have been widened.

The critical questions that then arise, against this background, are:

1. Has the absence of restrictive provisions in both section 85 and section 175(4) (particularly the former), opened the door very widely, and given unfettered, direct access to the Constitutional Court, to any person who claims an existing, current, or impending violation of their constitutionally guaranteed fundamental rights?; and

2. Was this the intention of the Legistature?

These questions, in my view, can only be answered on a proper consideration of relevant rules governing the interpretation of statutes, generally, and of the Constitution in particular.

In this respect, it is pertinent to note, that, a Constitution is itself a statute of Parliament. Therefore, any rules of interpretation that are regarded as having particular relevance in relation to constitutional interpretation, can only be additional to the general rules governing the interpretation of statutes.

The starting point, in relation to the interpretation of statutes generally would be what is termed 'the golden rule' of statutory interpretation. This rule is authoritatively stated thus in the case of Coopers and Lybrand & Others v Bryant 1995 (3) SA 761 (A)…,.;

“According to the 'golden rule' of interpretation, the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity or some repugnancy or inconsistency with the rest of the instrument.”…,.

In his book 'Principles of Legal Interpretation - Statutes, Contracts and Wills' 1st Ed. At page 57, E A KELLAWAY echoes this statement as follows:

“The dominating Roman-Dutch law principle is that an interpretation which creates an absurdity is not acceptable (that is 'interpretatio quae parit absurdum non est admittenda): see, among other authorities, Exparte Fourie 1962 (3) SA 614 (O); S v Nyathi 1978 (2) SA 20 (B); and Canca v Mount Free Municipality 1984 (2) SA 870 (TK) 833).”

The learned author, at page 62, further states:

“Even if a (South African) court comes to the conclusion that the language is clear and unambiguous, it is entitled to reject the purely literal meaning if it is apparent from the anomalies which flow therefrom that the literal meaning could not have been intended by the legislature.”…,.

Apposite to the circumstances of this case, the learned author, after considering a number of authorities, makes the following remarks at page 61:

“While it is not permissible to speculate as to the purpose of an enactment, the legislative purpose may be sought from the subject matter of the Act, the enacting clauses in the whole enactment, the state of the law before the enactment was passed, and the surrounding circumstances: see Hunter v R 1907 TS 910; Dadoo Ltd v Krugersdorp Municipal Council 1920 AD 530;”…,.

And, lastly, at page 293, in reference to the maxim 'in pari materia' the learned author states:

“According to Roman-Dutch law, a later enactment not clear as to its meaning, which has analogous provisions with regard to, or clauses corresponding with, an earlier enactment, and particularly where the later enactment deals with the same subject matter, should, where feasible, be so interpreted that both provisions cohere, so that the contents of the earlier one can throw light on the later, unclear provision: see, among other authorities, Brink v Alfred McAlpine & Sons South Coast Regional Rent Board 1971 (1) SA 741 (A); Durban City Council v Shell and BP SA Petroleum Refineries (Pty) Ltd 1971 (4) SA 466.”

The principles set out in the dicta cited above can aptly and instructively be summarized as follows:

(i) The Legislature is presumed not to intend an absurdity, ambiguity, or repugnancy to arise out of the grammatical and ordinary meaning of the words that it uses in an enactment.

(ii) Therefore, in order to ascertain the true purpose and intent of the Legislature, regard is to be had, not only to the literal meaning of the words, but also to their practical effect.

(iii) In this respect -

(a) The words in question must be capable of an interpretation that is 'consistent' with the rest of the instrument in which the words appear;

(b) The state of the law in place before the enactment in question is a useful aid in ascertaining the legislative purpose and intention; and

(c) Where an earlier and later enactment (or provision) deals with the same subject matter, then, in the case of uncertainty, the two should be interpreted in such a way that there is mutual consistency.

Turning now to the additional considerations that are particular to the interpretation of the Constitution, I find the following dictum from the Namibian case of Minister of Defence, Namibia v Mwandinghi 1992 (2) SA 355 (Nm) to be both apposite and instructive;

See also, among others, Rattigan v Chief Immigration Officer & Others 1994 (2) ZLR 54 (S); Capital Radio (Pvt) Ltd v Broadcasting Authority of Zimbabwe 2003 (2) ZLR 236.

“…, The whole tenor of Chapter 111 (of its Constitution) and the influence upon it of international human rights instruments from which many of its provisions were derived, call for a generous, broad, and purposive interpretation that avoids the austerity of tabulated legalism.”…,.

These remarks are echoed in the following summation by the learned author EA KELLAWAY 'Principles of Legal Interpretation - Statutes, Contracts and Wills' 1st Ed…,.;

“The principle of interpretation of a state's Constitution, incorporating a bill of rights, may be stated thus:

An interpreter should follow the submitted triple synthesis of literalism, intentionalism, and purposiveness principle, as is done in the interpretation of any other statute….,.”

Thus, while a Constitution is to be interpreted in accordance with the rules relating to statutes, generally, the authorities suggest, that, a court called upon to interpret such a Constitution should give a generous and purposive construction to its provisions, particularly the entrenched fundamental rights and freedoms.

It appears to me, that, in this process, the purpose of the provision in question is to be given particular attention.

When all this is applied to the circumstances of this case, there is, in my view, no gainsaying the fact, that, a literal and grammatical meaning ascribed to section 85(1) would be inconsistent with section 175(4) of the Constitution.

This is to the extent, that, such meaning would give room to litigants, in proceedings underway in a lower court, to abandon such proceedings midstream, and, without any ceremony, in order to approach the Constitutional Court directly in terms of that section.

Such a meaning would thus introduce an absurdity and possible chaos to a process, that, in terms of the more expansive section 24 of the old Constitution, was free of such anomalies.

It is evident, that, the purpose of the old section 24, and, in particular, subsections (1) (2) and (3), was to inject order and certainty into the process by which constitutional issues arising during proceedings before the lower courts, were referred to the Constitutional Court order in the sense, that, the lower court had the opportunity to call and hear evidence on, and consider, the issue so as to determine whether it is not frivolous or vexatious.

Only then did the court refer the issue to the Constitutional Court.

Through this process, the Constitutional Court was shielded from a situation where frivolous and undeserving cases might have been directly brought to it.

There was certainty in the process in that the lower court, where it referred the matter, was fully informed as to both the reason for, and the effect of, such referral. The effect would be a formal deferment of the proceedings in that court, pending a Constitutional Court determination of the issues referred to it. More importantly, the risk of parallel proceedings being pursued in the Constitutional and the lower courts, on different aspects of the same case, but based on the same facts, was obviated.

It should be noted, that, the case at hand is an example of the absurdity that may arise from a strict, literal construction of section 85(1) of the Constitution.

The proceedings in the Magistrates Court were postponed by consent of the parties. The next thing that happened was a direct application to this Court, in which aspects of those proceedings are being impugned.

There is nothing on the record to suggest that the Magistrates Court was made aware of this development, or, if so, through what procedure and to what effect.

It may therefore be safe to assume, that, the lower court is still in the dark in this regard.

Further to this, it appears from the facts of the case, that, evidence should have been led in the lower court to enable the magistrate to determine whether or not the case merited a referral to the Constitutional Court.

The end result is that the latter court is seized with a matter that might not only have required viva voce evidence to be led, but may, for all intents and purposes, have been ruled frivolous or vexatious by the magistrate.

This Court is not able to call and hear viva voce evidence from the parties, and would thus be handicapped in terms of properly determining the matter.

I therefore entertain no doubt, that, the certainty order referred to above would be completely eroded were the courts to operate on the basis of a literal and grammatical interpretation of section 85(1) of the Constitution.

This circumstance is not only highly undesirable, it would also constitute an affront to the time honoured common law principle, that, a superior court should be slow to intervene in ongoing proceedings in an inferior court - except in exceptional circumstances.

This principle is persuasively articulated as follows in the case of Wahlhaus v Additional Magistrate, Johannesburg 1959 (3) SA 113 (A):

“…,. A superior court would be slow to exercise any power upon the unterminated course of criminal proceedings in a court below, but, would do so in rare cases where grave injustice might otherwise result or where justice might not, by other means, be attained.”

It seems to me, that, the ratio in the cases of Tsvangirai v Mugabe and Anor 2006 (1) ZLR 148 (S) and Jesse v Attorney General 1999 (1) ZLR 121 (S)…, was a re-affirmation of this principle, and that it found fortification in section 24(3) of the old Constitution.

Despite this 'fortification' not having found its way into the new Constitution, I am satisfied that the basic principle remains.

It is, in any case, trite that, a statute should, where possible, be construed in conformity with the common law rather than against it, except where the statute is clearly intended to alter the common law: see Johannesburg Municipality v Cohen's Trustees 1909 TS 811.

I do not find anything in the wording of section 85(1(a) of the Constitution that could be said to evince an intention to oust common law on the issue in point.

Sections 85(1) and 175(4) of the current Constitution and section 24 of the old Constitution, all deal with the same subject matter; that is, the methods by which matters may be brought to the Constitutional Court.

To that extent, I am satisfied no basis exists for interpreting the later provisions in such a way that they do not 'cohere' with the earlier provisions.

In other words, the provisions of the old section 24 should be taken as 'throwing light' on the provisions of section 85(1)(a) and 175(4) of the current Constitution.

I find, when all is told, that, the above expose and analysis of the law and authorities on statutory interpretation clearly favour a finding, in casu, that it was not the intention of the Legislature to oust a procedural regime that ensured order and certainty in the administration of justice in the courts, and to introduce in its place, one that would result in absurdity, disorder, and ambiguity.

Clearly, the anomalies that would flow from a literal meaning of section 85(1)(a) could not have been intended by the Legislature.

Consequently, and, except in circumstances akin to those in Martin v A-G & Anor 1993 (1) ZLR 153 (S), any constitutional issue that arises during proceedings in a lower court ought to and must be brought to this court only upon referral in terms of section 175(4) of the Constitution.

It follows from this, that, the instant application is not properly before this Court.

In the final result, I find that the point in limine raised by the respondents has merit and ought to be upheld.

In the result, it is ordered as follows:

1. The point in limine raised by the respondents be and is hereby upheld.

2. The application is struck off the roll.

3. There shall be no order as to costs.

It is necessary to underscore the point that access to this Court or any subordinate court under section 85 of the Constitution is subject to regulation by rules of court. 

This is made explicitly clear by section 85(3) which dictates that the rules of every court must provide for the procedure to be followed in cases where relief is sought under section 85(1). It is also spelt out in section 167(5) of the Constitution vis-a-vis direct access to the Constitutional Court.

One cannot institute an action or application in the High Court, or any other court, without due observance of and compliance with the Rules of that court.

The Rules inform a litigant of what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited.

This is an application for direct access to the Constitutional Court made in terms of section 167(5) of the Constitution as read with Rule 21 of the Constitutional Court Rules 2016 (“the Rules”).

The applicants intend to approach the Constitutional Court in terms of section 85(1) of the Constitution, seeking an order, that, the fundamental right of every person to form and join trade unions and employer-employee organisations of their choice and to participate in the lawful activities of those organisations, enshrined in section 65(2) of the Constitution of Zimbabwe 2013, has been and is being infringed by employers in respect of employees who are duly elected or appointed workers representatives and trade union leaders to the extent, that, the employers in question are permitted, by law, to dismiss such employees for acts performed bona fide and exclusively as the employee's duties and responsibilities as a workers representative and trade union leader.

The court finds, that, it is not in the interests of justice that direct access be granted in this matter. The reasons for so finding appear hereunder.

This application is borne of the Supreme Court judgment in ZB Bank Ltd v Marimo SC21-20. The background to that decision is set out hereunder.

The second applicant was employed by the third respondent as an Administrative Clerk and was also the chairperson of the workers committee. The management of the third respondent and the workers committee were engaged in a dispute over employees salary increments. The dispute was referred to a conciliator who was unable to get the parties to reach a consensus and issued a Certificate of No Settlement. Thereafter, between 8 and 15 September 2010, the second applicant sent out emails to his colleagues disclosing, through actual salary figures, the percentage adjustments that had been effected to the managerial employees salaries. He also stated that the workers committee had decided to embark on a collective job action to press their interests.

Pursuant to that conduct, the third respondent charged the second applicant with misconduct for contravening section 11(1) of SI 273 of 2000 (“the Code”). The allegations against him were that he had acted in a manner that was inconsistent with the fulfilment of the express or implied conditions of his contract. The premise to the charge was that the second applicant had generated offensive emails to a group of staff members contrary to the third respondent's standing policy contained in its Information Security Management Policy Document ('IT Policy Document'). It was also alleged, that, the contents of the e-mails were inflammatory and contained confidential information. The second applicant was found guilty of the misconduct and dismissed from employment.

He noted an appeal to the NEC Appeals Board, which held that the conduct complained of did not constitute an offence.

The Appeals Board further found, that, the third respondent had not substantiated the allegations relating to the charge preferred against the second applicant. Accordingly, it held that the charge preferred against the second applicant was inappropriate.

It stated, further, that, although the second applicant exceeded the limit of the number of emails allowed by the third respondent's IT Policy Document, thereby breaching the appellant's standing policy, the emails were neither inflammatory nor offensive, and that confidentiality had not been breached.

It also stressed, that, the second applicant's conduct was in pursuit of a right to represent workers and that the emails were meant to result in a call for collective job action or, at least, put pressure on the appellant to accede to the workers wage demands. The NEC Appeals Board consequently ordered the reinstatement of the second applicant.

Aggrieved by that decision, the third respondent appealed to the Labour Court.

It averred, that, the Appeals Board erred in failing to find that the second applicant had been properly charged and dismissed from employment, and, further, that the Appeals Board had erred in failing to afford to the third respondent an alternative to the reinstatement of the second applicant.

The Labour Court found, that, as the employees were considering going on strike over the wage dispute, the second applicant acted within the bounds of his official duties, as the chairperson of the workers committee, to communicate developments pertaining to the intended strike to his fellow employees. The court, however, stated, that, although the second applicant may have gone 'overboard' by breaching the appellant's Information Security Policy, the breach did not warrant a dismissal. Consequently, the third respondent's appeal was dismissed.

The third respondent subsequently noted an appeal to the court a quo.

Although three issues stood for determination, the relevant issue germane to the disposal of the present application was couched as follows:

“Whether the court a quo erred in failing to appreciate that the respondent's conduct in violating the standing regulations was a breach of his privileges as the representative of the workers committee and could therefore not be excused.”

It had been the third respondent's argument, that, in exercising his entitlement to champion employees rights, the second applicant did not have the right to breach the law - in this case, the standing policy in question.

It was the court a quo's finding that there was merit in that contention.

The court further held, that, the right to champion workers rights is not exercised in a vacuum but should be exercised within the confines of the law as dictated, in this case, by the relevant Code of Conduct.

Adherence to the law within the Code of Conduct would ensure that the delicate balance between the competing interests of the employer and those of the workers, through their representatives, is maintained. It was further held, that, the second applicant would not be able to hide behind his position as the chairperson of the workers committee should the conduct alleged against him be proved. The court a quo further held, that, the second applicant had indeed violated the third respondent's IT Policy Document by disclosing confidential information. The appeal was consequently allowed.

Aggrieved by that finding, the applicants filed the present application on 1 April 2021.

At the hearing of the application, the first respondent was barred for failure to file any opposing papers in the matter.

Thereafter, the Court indicated to the parties, that, notwithstanding the preliminary points raised by the third respondent, it would hear all the parties and make a determination on the merits.

The applicants make the following argument.

Every person enjoys a fundamental right to form and join trade unions and employee or employers organizations of their choice and to participate in the lawful activities of those unions or organisations. They contend further, that, this right has been and is being infringed by employers in respect of those employees who, as duly elected or appointed workers representatives and trade union leaders, are charged with misconduct and dismissed from employment under a Code of Conduct for acts performed bona fide and exclusively as the employee's duties and responsibilities as a workers representative and trade union leader.

The contention is also put forward, that, in having a law that permits an employer to dismiss from employment an employee for acts performed under the aforementioned circumstances, the State is infringing the fundamental right protected by section 65(2) of the Constitution.

Lastly, the allegation is made, that, the current Labour Law, as interpreted by the court a quo, as was done in the judgment a quo and others, is inconsistent with section 65(2) of the Constitution.

The applicants argued, that, two questions arose for determination and these related to:

(i) Whether or not the applicants were raising a constitutional matter; and

(ii) Whether or not it was in the interests of justice to grant direct access.

Counsel for the applicants further submitted, that, there was no doubt that the applicants sought to raise a constitutional issue and that it was in the interests of justice to approach the Constitutional Court because it was not desirable that they approach the High Court in order to impugn the decision of the Supreme Court with regards to trade union immunity.

They further submitted, that, the matter involved a critique of a Supreme Court decision, and, as such, it was not desirable for it to go before the High Court for determination.

The applicants also submitted, that, they had a prima facie or arguable case as the Supreme Court did not apply its mind to the long standing position on trade unions enjoying their immunity in terms of section 101 of the Labour Act [Chapter 28:01] (“the Labour Act”).

They argued, that, within the workplace, employers were regulating the way union leaders conduct themselves and that this was improper conduct on the part of employers generally.

In this light, the applicants submitted, that, there were prospects of success in that the Supreme Court's decision went too far in protecting the employer at the expense of the employee which aspect should be dealt with by a full bench of this Court.

The application was opposed by the third respondent.

In limine, it averred, that, the intended application is a disguised appeal against a final judgment of the court a quo. It was also contended, that, not having been a party to the proceedings a quo, the first applicant has no right to question the correctness of that judgment.

The submission is also made, that, the applicants are not clear as to the law which they seek to challenge.

The third respondent further submitted, that, the application is out of time because it was made ten months after the judgment a quo was handed down and that the applicants ought to have made an application for condonation.

On the merits, it was argued, that, section 65(2) of the Constitution did not support the applicants contention and that, further to the above, an employee has a duty to comply with the terms of their employment contract and that an employees representative must carry out their duties in a lawful manner.

The third respondent further queried the rationale behind its joinder to the present proceedings.

The third respondent also argued, that, the applicants were not challenging the validity of section 101 of the Labour Act but were actually challenging the common law. It submitted, that, the Supreme Court did not, anywhere in its judgment, refer to the Labour Act, but, rather, dealt with a position of the law embodied in the Code of Conduct.

Thus, argued the third respondent, there was no constitutional matter for adjudication before the Constitutional Court, and, that, the Constitutional Court, in terms of its jurisdiction, is restricted to determine constitutional issues only.

The third respondent, further to the above, also argued, that, an employee cannot hide behind a trade union and be free of the employer's disciplinary tentacles for breaching a Code of Conduct. This would lead to a situation wherein every employee would then want to be ascribed to the union in an effort to evade disciplinary proceedings for acts of misconduct. In this light, the third respondent stated that it had acted within its powers.

Consequently, it was submitted, that, the matter did not give rise to a constitutional matter. It was a matter that the High Court could deal with taking into account its original jurisdiction.

For that reason, it was contended, that, it was not in the interests of justice to grant direct access. It moved that the application be dismissed with costs....,.

The third respondent contends, that, the intended application is invalid because it is, inter alia, a disguised appeal against the definitive findings on appeal by the Supreme Court. The third respondent contends, that, the judgment of the Supreme Court is final and no appeal can lie against it.

The view of the Constitutional Court is that this argument is on the substance of the nature of the relief being sought in the main application. It is therefore an issue that should be determined on the merits as that is the basis upon which the applicants approach the court for an order for direct access.

The point is made however, that the applicants are not seeking leave to appeal....,.

The relief being sought in the draft order is set out to be the following:

“1. That, it be and is hereby declared that it is an infringement of the fundamental right protected by section 65(2) of the Constitution of Zimbabwe 2013 for an employment code of conduct registered in terms of section 101 of the Labour Act [Chapter 28:01] to permit an employer to dismiss from employment an employee for acts performed bona fide and exclusively as that employee's duties and responsibilities as a duly elected or appointed workers representative and trade union leader.

2. That, for the avoidance of doubt, and arising from the order in para 1, it is declared that the current labour law of Zimbabwe, contained in section 101 of the Labour Act [Chapter 28:01], and as interpreted by the Supreme Court of Zimbabwe in judgments such as ZB Bank Limited v Tirivanhu Marimo (Judgment No. SC21-20), namely, that, an employer may be permitted by a registered code of conduct to dismiss from employment an employee for acts performed bona fide and exclusively as that employee's duties and responsibilities as a duly elected or appointed workers representative and trade union leader, is inconsistent with the aforesaid section 65(2) of the Constitution and therefore invalid, null and void and of no force or effect.

1. That, section 101 of the Labour Act [Chapter 28:01] must be interpreted in a way that makes it not contemplate (sic) a registered code of conduct that permits an employer to dismiss from employment an employee for acts performed bona fide and exclusively as that employee's duties and responsibilities as a duly elected or appointed workers representative and trade union leader.

2. There shall be no order as to costs.”...,.

An argument raised by the third respondent, as a preliminary point, was to the effect, that, the intended application is a disguised appeal against the judgment of the Supreme Court, and that, for that reason, the application was not properly before the Court.

The argument by the applicants is that the Supreme Court is the highest court in relation to matters that do not raise a constitutional issue and no appeal lies against a decision of that court.

The additional argument made is that the order being sought is evidence of the nature of the application that they seek to bring.

It is correct, as contended by the third respondent, that, the Supreme Court is the highest court in this jurisdiction and that no appeal lies against its decisions unless the decision is on a constitutional matter.

However, it is settled that the law allows an attack against a judgment of the Supreme Court where certain requisites have been met on the premise of the attack.

In Denhere v Denhere CC09-19, the Constitutional Court set out the principle for an attack on a Supreme Court judgement in the following terms:

“In Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18, the Court noted at pp6-11 of the cyclostyled judgment 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.'”

That the applicants enjoy the right described above is not in doubt.

The test for challenging a judgment of the Supreme Court was established in the case of Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18 as follows:

“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.”

In the averments made by the applicants in this matter, there is no allegation that the Supreme Court failed to comply with the law.

Its compliance with the law is not only conceded - it is accepted.

It is in fact accused of complying with and upholding the provisions of codes of conduct in the workplace. There is thus no suggestion of arbitrariness on the part of the Supreme Court.

Further, there is no suggestion in the application itself that the decision of the Supreme Court is in any way inconsistent with the law thus justifying an attack on the decision on the basis that it has violated a fundamental right.

As stated by the Constitutional Court in Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18, the remedy under section 85 of the Constitution is not for the protection of fundamental rights in the abstract. An applicant must show the breach of the fundamental right.

As contended by the third respondent, correctly in my view, the applicants have brought to the Constitutional Court an application that is, to all intent and purposes, a disguised appeal against the judgment of the Supreme Court in ZB Bank Limited v Tirivanhu Marimo SC21-20....,.

This is an application for direct access to the Constitutional Court made in terms of section 167(5) of the Constitution as read with Rule 21 of the Constitutional Court Rules 2016 (“the Rules”).

The applicants intend to approach the Constitutional Court in terms of section 85(1) of the Constitution, seeking an order, that, the fundamental right of every person to form and join trade unions and employer-employee organisations of their choice and to participate in the lawful activities of those organisations, enshrined in section 65(2) of the Constitution of Zimbabwe 2013, has been and is being infringed by employers in respect of employees who are duly elected or appointed workers representatives and trade union leaders to the extent, that, the employers in question are permitted, by law, to dismiss such employees for acts performed bona fide and exclusively as the employee's duties and responsibilities as a workers representative and trade union leader.

The court finds, that, it is not in the interests of justice that direct access be granted in this matter. The reasons for so finding appear hereunder.

This application is borne of the Supreme Court judgment in ZB Bank Ltd v Marimo SC21-20. The background to that decision is set out hereunder.

The second applicant was employed by the third respondent as an Administrative Clerk and was also the chairperson of the workers committee. The management of the third respondent and the workers committee were engaged in a dispute over employees salary increments. The dispute was referred to a conciliator who was unable to get the parties to reach a consensus and issued a Certificate of No Settlement. Thereafter, between 8 and 15 September 2010, the second applicant sent out emails to his colleagues disclosing, through actual salary figures, the percentage adjustments that had been effected to the managerial employees salaries. He also stated that the workers committee had decided to embark on a collective job action to press their interests.

Pursuant to that conduct, the third respondent charged the second applicant with misconduct for contravening section 11(1) of SI 273 of 2000 (“the Code”). The allegations against him were that he had acted in a manner that was inconsistent with the fulfilment of the express or implied conditions of his contract. The premise to the charge was that the second applicant had generated offensive emails to a group of staff members contrary to the third respondent's standing policy contained in its Information Security Management Policy Document ('IT Policy Document'). It was also alleged, that, the contents of the e-mails were inflammatory and contained confidential information. The second applicant was found guilty of the misconduct and dismissed from employment.

He noted an appeal to the NEC Appeals Board, which held that the conduct complained of did not constitute an offence.

The Appeals Board further found, that, the third respondent had not substantiated the allegations relating to the charge preferred against the second applicant. Accordingly, it held that the charge preferred against the second applicant was inappropriate.

It stated, further, that, although the second applicant exceeded the limit of the number of emails allowed by the third respondent's IT Policy Document, thereby breaching the appellant's standing policy, the emails were neither inflammatory nor offensive, and that confidentiality had not been breached.

It also stressed, that, the second applicant's conduct was in pursuit of a right to represent workers and that the emails were meant to result in a call for collective job action or, at least, put pressure on the appellant to accede to the workers wage demands. The NEC Appeals Board consequently ordered the reinstatement of the second applicant.

Aggrieved by that decision, the third respondent appealed to the Labour Court.

It averred, that, the Appeals Board erred in failing to find that the second applicant had been properly charged and dismissed from employment, and, further, that the Appeals Board had erred in failing to afford to the third respondent an alternative to the reinstatement of the second applicant.

The Labour Court found, that, as the employees were considering going on strike over the wage dispute, the second applicant acted within the bounds of his official duties, as the chairperson of the workers committee, to communicate developments pertaining to the intended strike to his fellow employees. The court, however, stated, that, although the second applicant may have gone 'overboard' by breaching the appellant's Information Security Policy, the breach did not warrant a dismissal. Consequently, the third respondent's appeal was dismissed.

The third respondent subsequently noted an appeal to the court a quo.

Although three issues stood for determination, the relevant issue germane to the disposal of the present application was couched as follows:

“Whether the court a quo erred in failing to appreciate that the respondent's conduct in violating the standing regulations was a breach of his privileges as the representative of the workers committee and could therefore not be excused.”

It had been the third respondent's argument, that, in exercising his entitlement to champion employees rights, the second applicant did not have the right to breach the law - in this case, the standing policy in question.

It was the court a quo's finding that there was merit in that contention.

The court further held, that, the right to champion workers rights is not exercised in a vacuum but should be exercised within the confines of the law as dictated, in this case, by the relevant Code of Conduct.

Adherence to the law within the Code of Conduct would ensure that the delicate balance between the competing interests of the employer and those of the workers, through their representatives, is maintained. It was further held, that, the second applicant would not be able to hide behind his position as the chairperson of the workers committee should the conduct alleged against him be proved. The court a quo further held, that, the second applicant had indeed violated the third respondent's IT Policy Document by disclosing confidential information. The appeal was consequently allowed.

Aggrieved by that finding, the applicants filed the present application on 1 April 2021.

At the hearing of the application, the first respondent was barred for failure to file any opposing papers in the matter.

Thereafter, the Court indicated to the parties, that, notwithstanding the preliminary points raised by the third respondent, it would hear all the parties and make a determination on the merits.

The applicants make the following argument.

Every person enjoys a fundamental right to form and join trade unions and employee or employers organizations of their choice and to participate in the lawful activities of those unions or organisations. They contend further, that, this right has been and is being infringed by employers in respect of those employees who, as duly elected or appointed workers representatives and trade union leaders, are charged with misconduct and dismissed from employment under a Code of Conduct for acts performed bona fide and exclusively as the employee's duties and responsibilities as a workers representative and trade union leader.

The contention is also put forward, that, in having a law that permits an employer to dismiss from employment an employee for acts performed under the aforementioned circumstances, the State is infringing the fundamental right protected by section 65(2) of the Constitution.

Lastly, the allegation is made, that, the current Labour Law, as interpreted by the court a quo, as was done in the judgment a quo and others, is inconsistent with section 65(2) of the Constitution.

The applicants argued, that, two questions arose for determination and these related to:

(i) Whether or not the applicants were raising a constitutional matter; and

(ii) Whether or not it was in the interests of justice to grant direct access.

Counsel for the applicants further submitted, that, there was no doubt that the applicants sought to raise a constitutional issue and that it was in the interests of justice to approach the Constitutional Court because it was not desirable that they approach the High Court in order to impugn the decision of the Supreme Court with regards to trade union immunity.

They further submitted, that, the matter involved a critique of a Supreme Court decision, and, as such, it was not desirable for it to go before the High Court for determination.

The applicants also submitted, that, they had a prima facie or arguable case as the Supreme Court did not apply its mind to the long standing position on trade unions enjoying their immunity in terms of section 101 of the Labour Act [Chapter 28:01] (“the Labour Act”).

They argued, that, within the workplace, employers were regulating the way union leaders conduct themselves and that this was improper conduct on the part of employers generally.

In this light, the applicants submitted, that, there were prospects of success in that the Supreme Court's decision went too far in protecting the employer at the expense of the employee which aspect should be dealt with by a full bench of this Court.

The application was opposed by the third respondent.

In limine, it averred, that, the intended application is a disguised appeal against a final judgment of the court a quo. It was also contended, that, not having been a party to the proceedings a quo, the first applicant has no right to question the correctness of that judgment.

The submission is also made, that, the applicants are not clear as to the law which they seek to challenge.

The third respondent further submitted, that, the application is out of time because it was made ten months after the judgment a quo was handed down and that the applicants ought to have made an application for condonation.

On the merits, it was argued, that, section 65(2) of the Constitution did not support the applicants contention and that, further to the above, an employee has a duty to comply with the terms of their employment contract and that an employees representative must carry out their duties in a lawful manner.

The third respondent further queried the rationale behind its joinder to the present proceedings.

The third respondent also argued, that, the applicants were not challenging the validity of section 101 of the Labour Act but were actually challenging the common law. It submitted, that, the Supreme Court did not, anywhere in its judgment, refer to the Labour Act, but, rather, dealt with a position of the law embodied in the Code of Conduct.

Thus, argued the third respondent, there was no constitutional matter for adjudication before the Constitutional Court, and, that, the Constitutional Court, in terms of its jurisdiction, is restricted to determine constitutional issues only.

The third respondent, further to the above, also argued, that, an employee cannot hide behind a trade union and be free of the employer's disciplinary tentacles for breaching a Code of Conduct. This would lead to a situation wherein every employee would then want to be ascribed to the union in an effort to evade disciplinary proceedings for acts of misconduct. In this light, the third respondent stated that it had acted within its powers.

Consequently, it was submitted, that, the matter did not give rise to a constitutional matter. It was a matter that the High Court could deal with taking into account its original jurisdiction.

For that reason, it was contended, that, it was not in the interests of justice to grant direct access. It moved that the application be dismissed with costs....,.

The third respondent has argued, as a preliminary point, that, the applicant is out of time and ought to be dismissed.

I consider that this an issue for determination when the merits of the application are discussed....,.

The final issue for consideration is whether or not the application is out of time.

The Constitution does not prescribe a time frame within which an application premised on section 85 of the Constitution must be brought to court.

In turn, the Constitutional Court Rules do not provide for a time limit within which such application should be brought to court.

There is no suggestion, on the part of the third respondent, that, the time frame as to when an application should be mounted is an issue for consideration by the Court.

It is not one of the factors for consideration in the assessment of prospects of success vis-a-vis the application for direct access.

In any event, apart from a bald statement that the application was out of time, the third respondent did not attempt to provide the Constitutional Court with a proper argument on the substance for the submission.

The argument on this point is dismissed as having no merit.

This is an application for direct access to the Constitutional Court made in terms of section 167(5) of the Constitution as read with Rule 21 of the Constitutional Court Rules 2016 (“the Rules”).

The applicants intend to approach the Constitutional Court in terms of section 85(1) of the Constitution, seeking an order, that, the fundamental right of every person to form and join trade unions and employer-employee organisations of their choice and to participate in the lawful activities of those organisations, enshrined in section 65(2) of the Constitution of Zimbabwe 2013, has been and is being infringed by employers in respect of employees who are duly elected or appointed workers representatives and trade union leaders to the extent, that, the employers in question are permitted, by law, to dismiss such employees for acts performed bona fide and exclusively as the employee's duties and responsibilities as a workers representative and trade union leader.

The court finds, that, it is not in the interests of justice that direct access be granted in this matter. The reasons for so finding appear hereunder.

This application is borne of the Supreme Court judgment in ZB Bank Ltd v Marimo SC21-20. The background to that decision is set out hereunder.

The second applicant was employed by the third respondent as an Administrative Clerk and was also the chairperson of the workers committee. The management of the third respondent and the workers committee were engaged in a dispute over employees salary increments. The dispute was referred to a conciliator who was unable to get the parties to reach a consensus and issued a Certificate of No Settlement. Thereafter, between 8 and 15 September 2010, the second applicant sent out emails to his colleagues disclosing, through actual salary figures, the percentage adjustments that had been effected to the managerial employees salaries. He also stated that the workers committee had decided to embark on a collective job action to press their interests.

Pursuant to that conduct, the third respondent charged the second applicant with misconduct for contravening section 11(1) of SI 273 of 2000 (“the Code”). The allegations against him were that he had acted in a manner that was inconsistent with the fulfilment of the express or implied conditions of his contract. The premise to the charge was that the second applicant had generated offensive emails to a group of staff members contrary to the third respondent's standing policy contained in its Information Security Management Policy Document ('IT Policy Document'). It was also alleged, that, the contents of the e-mails were inflammatory and contained confidential information. The second applicant was found guilty of the misconduct and dismissed from employment.

He noted an appeal to the NEC Appeals Board, which held that the conduct complained of did not constitute an offence.

The Appeals Board further found, that, the third respondent had not substantiated the allegations relating to the charge preferred against the second applicant. Accordingly, it held that the charge preferred against the second applicant was inappropriate.

It stated, further, that, although the second applicant exceeded the limit of the number of emails allowed by the third respondent's IT Policy Document, thereby breaching the appellant's standing policy, the emails were neither inflammatory nor offensive, and that confidentiality had not been breached.

It also stressed, that, the second applicant's conduct was in pursuit of a right to represent workers and that the emails were meant to result in a call for collective job action or, at least, put pressure on the appellant to accede to the workers wage demands. The NEC Appeals Board consequently ordered the reinstatement of the second applicant.

Aggrieved by that decision, the third respondent appealed to the Labour Court.

It averred, that, the Appeals Board erred in failing to find that the second applicant had been properly charged and dismissed from employment, and, further, that the Appeals Board had erred in failing to afford to the third respondent an alternative to the reinstatement of the second applicant.

The Labour Court found, that, as the employees were considering going on strike over the wage dispute, the second applicant acted within the bounds of his official duties, as the chairperson of the workers committee, to communicate developments pertaining to the intended strike to his fellow employees. The court, however, stated, that, although the second applicant may have gone 'overboard' by breaching the appellant's Information Security Policy, the breach did not warrant a dismissal. Consequently, the third respondent's appeal was dismissed.

The third respondent subsequently noted an appeal to the court a quo.

Although three issues stood for determination, the relevant issue germane to the disposal of the present application was couched as follows:

“Whether the court a quo erred in failing to appreciate that the respondent's conduct in violating the standing regulations was a breach of his privileges as the representative of the workers committee and could therefore not be excused.”

It had been the third respondent's argument, that, in exercising his entitlement to champion employees rights, the second applicant did not have the right to breach the law - in this case, the standing policy in question.

It was the court a quo's finding that there was merit in that contention.

The court further held, that, the right to champion workers rights is not exercised in a vacuum but should be exercised within the confines of the law as dictated, in this case, by the relevant Code of Conduct.

Adherence to the law within the Code of Conduct would ensure that the delicate balance between the competing interests of the employer and those of the workers, through their representatives, is maintained. It was further held, that, the second applicant would not be able to hide behind his position as the chairperson of the workers committee should the conduct alleged against him be proved. The court a quo further held, that, the second applicant had indeed violated the third respondent's IT Policy Document by disclosing confidential information. The appeal was consequently allowed.

Aggrieved by that finding, the applicants filed the present application on 1 April 2021.

At the hearing of the application, the first respondent was barred for failure to file any opposing papers in the matter.

Thereafter, the Court indicated to the parties, that, notwithstanding the preliminary points raised by the third respondent, it would hear all the parties and make a determination on the merits.

The applicants make the following argument.

Every person enjoys a fundamental right to form and join trade unions and employee or employers organizations of their choice and to participate in the lawful activities of those unions or organisations. They contend further, that, this right has been and is being infringed by employers in respect of those employees who, as duly elected or appointed workers representatives and trade union leaders, are charged with misconduct and dismissed from employment under a Code of Conduct for acts performed bona fide and exclusively as the employee's duties and responsibilities as a workers representative and trade union leader.

The contention is also put forward, that, in having a law that permits an employer to dismiss from employment an employee for acts performed under the aforementioned circumstances, the State is infringing the fundamental right protected by section 65(2) of the Constitution.

Lastly, the allegation is made, that, the current Labour Law, as interpreted by the court a quo, as was done in the judgment a quo and others, is inconsistent with section 65(2) of the Constitution.

The applicants argued, that, two questions arose for determination and these related to:

(i) Whether or not the applicants were raising a constitutional matter; and

(ii) Whether or not it was in the interests of justice to grant direct access.

Counsel for the applicants further submitted, that, there was no doubt that the applicants sought to raise a constitutional issue and that it was in the interests of justice to approach the Constitutional Court because it was not desirable that they approach the High Court in order to impugn the decision of the Supreme Court with regards to trade union immunity.

They further submitted, that, the matter involved a critique of a Supreme Court decision, and, as such, it was not desirable for it to go before the High Court for determination.

The applicants also submitted, that, they had a prima facie or arguable case as the Supreme Court did not apply its mind to the long standing position on trade unions enjoying their immunity in terms of section 101 of the Labour Act [Chapter 28:01] (“the Labour Act”).

They argued, that, within the workplace, employers were regulating the way union leaders conduct themselves and that this was improper conduct on the part of employers generally.

In this light, the applicants submitted, that, there were prospects of success in that the Supreme Court's decision went too far in protecting the employer at the expense of the employee which aspect should be dealt with by a full bench of this Court.

The application was opposed by the third respondent.

In limine, it averred, that, the intended application is a disguised appeal against a final judgment of the court a quo. It was also contended, that, not having been a party to the proceedings a quo, the first applicant has no right to question the correctness of that judgment.

The submission is also made, that, the applicants are not clear as to the law which they seek to challenge.

The third respondent further submitted, that, the application is out of time because it was made ten months after the judgment a quo was handed down and that the applicants ought to have made an application for condonation.

On the merits, it was argued, that, section 65(2) of the Constitution did not support the applicants contention and that, further to the above, an employee has a duty to comply with the terms of their employment contract and that an employees representative must carry out their duties in a lawful manner.

The third respondent further queried the rationale behind its joinder to the present proceedings.

The third respondent also argued, that, the applicants were not challenging the validity of section 101 of the Labour Act but were actually challenging the common law. It submitted, that, the Supreme Court did not, anywhere in its judgment, refer to the Labour Act, but, rather, dealt with a position of the law embodied in the Code of Conduct.

Thus, argued the third respondent, there was no constitutional matter for adjudication before the Constitutional Court, and, that, the Constitutional Court, in terms of its jurisdiction, is restricted to determine constitutional issues only.

The third respondent, further to the above, also argued, that, an employee cannot hide behind a trade union and be free of the employer's disciplinary tentacles for breaching a Code of Conduct. This would lead to a situation wherein every employee would then want to be ascribed to the union in an effort to evade disciplinary proceedings for acts of misconduct. In this light, the third respondent stated that it had acted within its powers.

Consequently, it was submitted, that, the matter did not give rise to a constitutional matter. It was a matter that the High Court could deal with taking into account its original jurisdiction.

For that reason, it was contended, that, it was not in the interests of justice to grant direct access. It moved that the application be dismissed with costs....,.

The Constitutional Court is a specialised court with limited jurisdiction. It only determines constitutional matters. As a result, direct access to the Court is an extraordinary procedure that is availed only in deserving cases that meet the requirements prescribed by the Constitution and the rules of the Constitutional Court.

Section 167(5) of the Constitution provides:

“(5) Rules of the Constitutional Court must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court —

(a) To bring a constitutional matter directly to the Constitutional Court;

(b) To appeal directly to the Constitutional Court from any other court;

(c) To appear as a friend of the court.”

In turn, Rule 21(3) of the Constitutional Court Rules prescribes what ought to be contained in an application for direct access. It reads 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.”

Rule 21(8) of the Constitutional Court Rules goes on to provide:

“(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 primary task, therefore, is to determine whether it is in the interests of justice for direct access to be granted.

The main argument by the applicants is that the law that permits an employer to discipline an employee for acts done bona fide in the exercise by that employee of his or her duties and obligations as a worker or union representative violates a fundamental right and is an infringement of section 65(2) of the Constitution.

This section provides as follows:

“(2) Except for members of the security services, every person has the right to form and join trade unions and employee or employers organisations of their choice, and to participate in the lawful activities of those unions and organisations.”…,.

The applicants argue, that, the above section protects, in unequivocal terms, the actions of an employee in pursuit of the rights of the employees where such employee commits acts of misconduct bona fide in the pursuit of the rights of those he represents in the workplace. Therefore, so goes the argument, any law contained in codes of conduct that permits an employer to discipline an employee who acts bona fide and contrary to his contract of employment is an infringement of the right contained in section 65(2) of the Constitution above.

The applicants have not identified, with any specificity, the law that they intend to challenge.

In one breath they aver that they allege an infringement of section 65(2) of the Constitution by the law emerging from the interpretation by the Supreme Court of section 101 of the Labour Act. They contend, that, at the stage of the application for access to the Constitutional Court, the merits of the intended application are irrelevant.

They contend, that, by merely alleging an infringement of a constitutional right, they have shown that they are raising a constitutional matter for jurisdictional purposes.

They are mistaken.

It is now settled in this jurisdiction, that, in view of the position of the Constitutional Court as a specialized court, an applicant must show that it is in the interests of justice that access to the court be granted. One of the factors that a court may take into account is whether or not the application has prospects of success.

The locus classicus is Lytton Investments (Pvt) Ltd v Standard Chartered Bank Limited and Another CC11-18, where the Constitutional Court stated:

“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 state facts or grounds in the founding affidavit, the consideration of which would lead to the finding, that, it is in the interests of justice to have the constitutional matter placed before the Court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction.

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

The court holds, that, the applicants have failed to show that the application has prospects of success. The reasons for so holding are the following:

The application does not raise a constitutional matter for determination by the Constitutional Court. The relief being sought in the draft order is set out to be the following:

“1. That, it be and is hereby declared that it is an infringement of the fundamental right protected by section 65(2) of the Constitution of Zimbabwe 2013 for an employment code of conduct registered in terms of section 101 of the Labour Act [Chapter 28:01] to permit an employer to dismiss from employment an employee for acts performed bona fide and exclusively as that employee's duties and responsibilities as a duly elected or appointed workers representative and trade union leader.

2. That, for the avoidance of doubt, and arising from the order in para 1, it is declared that the current labour law of Zimbabwe, contained in section 101 of the Labour Act [Chapter 28:01], and as interpreted by the Supreme Court of Zimbabwe in judgments such as ZB Bank Limited v Tirivanhu Marimo (Judgment No. SC21-20), namely, that, an employer may be permitted by a registered code of conduct to dismiss from employment an employee for acts performed bona fide and exclusively as that employee's duties and responsibilities as a duly elected or appointed workers representative and trade union leader, is inconsistent with the aforesaid section 65(2) of the Constitution and therefore invalid, null and void and of no force or effect.

1. That, section 101 of the Labour Act [Chapter 28:01] must be interpreted in a way that makes it not contemplate (sic) a registered code of conduct that permits an employer to dismiss from employment an employee for acts performed bona fide and exclusively as that employee's duties and responsibilities as a duly elected or appointed workers representative and trade union leader....,.

2. There shall be no order as to costs.”

An analysis of the draft order does not lead to an order invalidating any law. The order sought seeks to create immunity for employees from disciplinary action within the workplace.

The Code of Conduct which, in this case, would be the offending law, has not been challenged.

It was conceded by the applicants counsel, that, the majority of codes of conduct are the product of negotiated collective bargaining agreements drawn up by the employers organisations and the employee organizations of the sector in respect of which the collective bargaining agreement relates to.

In my view, it is in the collective bargaining agreement that any immunity, if it is to be granted, must be provided for.

The contention by the applicants is that in a series of judgments, the last of which is ZB Bank Limited v Tirivanhu Marimo SC21-20, the Supreme Court has found that a union representative who commits an act of misconduct at his workplace, in an endeavour to further the interests of the membership of the union, is not immune from disciplinary proceedings. The applicants further contend, that, this position violates the right provided for in section 65(2) of the Constitution.

The right in the section is available to a person to participate in the lawful activities of a union.

My reading of the subsection does not suggest, by any stretch of the imagination, that employees are given carte blanche by the Constitution to breach their contracts of employment and provisions contained in codes of conduct and thus create havoc or anarchy within the workplace under the guise of furthering the interests of workers and the union.

The contention, that, the Supreme Court judgement cannot be subjected to scrutiny by the High Court is evidence of the argument by the third respondent that the intended application does not raise any constitutional issues and is, in point of fact, a disguised appeal.

In order to participate in the activities of a union, a person must be a member of such union.

The Constitution of the first applicant provides that “membership of the union shall be open to all employees in the financial services industry.”

It stands to reason, therefore, that one's route to union membership is firmly hinged on one's employment status. One must be an employee, but one must also be an employee in the relevant or appropriate employment sector. If one is not an employee one cannot be involved in union duties nor can one lawfully represent other employees in relation to labour rights.

Thus, the employer-employee relationship is the glue that connects an employee, on the one hand, and his capacity to act for a union within the industry, on the other.

The employer-employee relationship is sacrosanct and based on trust. The employee is therefore obliged to act in good faith and in a manner that is consistent with the interests of his or her employer.

The fact that an employee is a member of a trade union or is a workers representative does not sever the employment relationship. It does not qualify any of the obligations and duties that each owes the other under the contract of employment. The terms of the contract of employment define the ambit of the parties relationship. To place the employee's status as a union member or workers representative above that of the employment contract would be to subsume the contract of employment under such membership.

That cannot be a correct position of the law as it pertains to employment contracts.

Section 65(2) of the Constitution, upon which the applicants seek reliance for the alleged violation of the fundamental rights of employees in the workplace, does indeed protect the right of every person to form, join, and participate in the activities of a trade union or employer organisation.

The rider to the right is that such participation must be clothed with legality.

The applicants counsel was pressed on this issue and was constrained to concede that the activities protected under section 65(2) of the Constitution must be lawful.

It was pertinent to note, that, the applicants counsel admitted, that, the participation of the second applicant, or his colleagues, in an illegal strike would not be the lawful activities contemplated by the section for protection.

In my view, the concessions from counsel establish that the application does not enjoy prospects of success.

The employment relationship is a voluntary one and the employee is duty bound to honour it if he or she wishes to remain in the relationship.

Inherent in the contract of employment is the employer's right to discipline an employee for perceived acts of misconduct.

The applicants accept, that, codes of conduct that are registrable under section 101 of the Labour Act provide for disciplinary measures for misconduct in the workplace.

Thus, the Labour Act itself limits the right to engage in trade union activities unless such activities are lawful. The activities must be consistent with the law and the employer's interests.

The contention by the respondents, which contention finds favour with me, is that the applicants have not identified which law they seek to challenge.

They accept that disciplinary measures in the workplace are permitted in terms of section 101 of the Labour Act which not only provides for the registration of codes of conduct but sets out what a code of conduct may provide for.

They are not seeking to impugn this section.

What they suggest is that the proposition by the Supreme Court, to hold that an employee may be disciplined for those acts of misconduct done by an employee as a worker representative is in violation of section 65(2) of the Constitution.

The Constitution gives every person the right to participate in the “lawful activities” of a trade union. It does not give licence to members to breach the law. The right does not exist in a vacuum and the right must be balanced against the interests of the employer and taking into consideration the obligations that an employee owes his or her employer.

An argument raised by the third respondent, as a preliminary point, was to the effect, that, the intended application is a disguised appeal against the judgment of the Supreme Court, and that, for that reason, the application was not properly before the Court.

The argument by the applicants is that the Supreme Court is the highest court in relation to matters that do not raise a constitutional issue and no appeal lies against a decision of that court.

The additional argument made is that the order being sought is evidence of the nature of the application that they seek to bring.

It is correct, as contended by the third respondent, that, the Supreme Court is the highest court in this jurisdiction and that no appeal lies against its decisions unless the decision is on a constitutional matter.

However, it is settled that the law allows an attack against a judgment of the Supreme Court where certain requisites have been met on the premise of the attack.

In Denhere v Denhere CC09-19, the Constitutional Court set out the principle for an attack on a Supreme Court judgement in the following terms:

“In Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18, the Court noted at pp6-11 of the cyclostyled judgment 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.'”

That the applicants enjoy the right described above is not in doubt.

The test for challenging a judgment of the Supreme Court was established in the case of Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18 as follows:

“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.”

In the averments made by the applicants in this matter, there is no allegation that the Supreme Court failed to comply with the law.

Its compliance with the law is not only conceded - it is accepted.

It is in fact accused of complying with and upholding the provisions of codes of conduct in the workplace. There is thus no suggestion of arbitrariness on the part of the Supreme Court.

Further, there is no suggestion in the application itself that the decision of the Supreme Court is in any way inconsistent with the law thus justifying an attack on the decision on the basis that it has violated a fundamental right.

As stated by the Constitutional Court in Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18, the remedy under section 85 of the Constitution is not for the protection of fundamental rights in the abstract. An applicant must show the breach of the fundamental right.

As contended by the third respondent, correctly in my view, the applicants have brought to the Constitutional Court an application that is, to all intent and purposes, a disguised appeal against the judgment of the Supreme Court in ZB Bank Limited v Tirivanhu Marimo SC21-20.

A selective comparison may be drawn from South Africa where section 14(4) of the Labour Relations Act 66 of 1995 provides, that, a trade union representative has the right to perform various functions at the request of an employee in the workplace. Furthermore, item 4(2) of Schedule 8 of the Labour Relations Act 66 of 1995, as amended, also provides, that, discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.

In that context, the Labour Appeal Court said the following in BIFAWU & Another v Mutual & Federal Insurance Co Ltd (2006) 27 ILJ 600 (LAC)...,:

“That an employee, even when he or she is representing a fellow employee at a disciplinary enquiry or arbitration hearing, owes certain duties to an employer cannot be doubted. Among these is the duty to act honestly....,. After all, when an employee represents a fellow employee at a disciplinary enquiry or arbitration hearing, he or she does so precisely in that capacity, of being a fellow employee.

The fellowship does not transubstantiate the continuing employment relationship between the employer and the representing employee.

…,. The right and duty to represent a fellow employee to the best of one's ability is not an unbridled licence; it is constrained by the duty to do so honestly. Without honesty on the part of the representatives of the parties, the system would be unviable.”

It is the Court's view, that, a workers representative's actions, bona fide or mala fide, and whether carried out in furtherance of his or her duties as a trade unionist or employees representative, ought not to undermine the employer/employee relationship.

This is because the employment relationship is intrinsically both co-operative and antagonistic.

It is cooperative in as much as employers and employees are mutually dependent on one another to secure their goals. At the same time, it is antagonistic because of the different interests that the parties may hold....,.

The Court holds, that, the applicants have failed to demonstrate, that, it is in the interests of justice to grant leave for direct access. This is because the right to participate in the activities of a trade union, or act as a workers representative, cannot be exercised to undermine the employer/employee relationship.

In the result, the application be and is hereby dismissed with no order as to costs.

This is an application for an order of leave for direct access to the Constitutional Court (“the Court”) in terms of section 167(5) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“The Constitution”) as read with Rule 21(2) of the Constitutional Court Rules SI 61 of 2016 (“the Rules”).

In the event that such leave is granted, the applicant intends to bring an application before the Court in terms of section 85 of the Constitution seeking an order to the effect, that, the definition of a “marriage” provided in section 2 of the Matrimonial Causes Act [Chapter 5:13] (“the Act”) is constitutionally invalid because it deliberately discriminates against unregistered customary unions.

The applicant accepts, that, the first respondent (Minister of Justice, Legal and Parliamentary Affairs) introduced a Marriages Bill (HB 7, 2019) (“the Bill”) in Parliament and that according to its long title its objectives are, inter alia, to consolidate the law relating to marriages, to provide for the recognition and registration of customary law unions; to provide for the recognition of civil partnerships; and to amend several statutes, including the Matrimonial Causes Act.

At the hearing of this matter the Marriages Bill (HB 7, 2019) (the Bill) apparently had been transmitted to the Senate.

A copy of the Bill was not made available to the Court. It was, however, common cause that the Bill was still to be debated in the Senate and that the processes provided for in Part 6 of Chapter 6 as read with the Fifth Schedule of the Constitution were still to be undertaken.

In these circumstances, it is unknown, at this stage, what the final fate of the Marriages Bill (HB 7, 2019) (the Bill) will be.

It would therefore be most inappropriate for this Court to make any definitive pronouncement on a matter that is still under debate by Parliament.

As the matter is not ripe for consideration by this Court, it would not be in the interest of justice that leave be granted for the applicant to approach this Court directly.

The applicant is a universitas whose objectives, inter alia, include dealing with all matters affecting the professional interests of women lawyers and promoting the legal status and rights of women and children.

The application in respect of which direct access is sought is an application for a declaration of rights in terms of section 85 of the Constitution.

The applicant contends, that, the definition of what constitutes a marriage under, section 2 of the Matrimonial Causes Act, is unconstitutional in three respects:

(i) First, it excludes unregistered customary law unions. Therefore, the safeguards that ensure fairness and equity in the division of property amongst spouses upon divorce are not available to women married under this regime. This amounts to discrimination and violates section 56(1) of the Constitution as the needs of the spouses and their indirect contributions during the subsistence of the union are not taken into account.

(ii) Secondly, the failure to treat unregistered customary unions as valid also violates the rights of the spouses to language and culture (section 63 of the Constitution); and

(iii) Third, human dignity (section 51 of the Constitution).

The applicant accepts that the Marriages Bill (the Bill) has been transmitted to the Senate.

Although it engaged Parliament in order to include a clause recognising the validity of unregistered customary unions, it alleges, that, its proposals were not taken up. If given leave, it will seek a declaration that section 2 of the Matrimonial Causes Act is constitutionally invalid. It will also seek an order that pending the process of remedying the defect, section 2 of the Matrimonial Causes Act be read to include an unregistered customary law union.

Asked during oral submissions whether the matter was ripe for adjudication by the Constitutional Court, and whether this was not a matter for Parliament, counsel for the applicant, whilst acknowledging that no-one can tell at this point in time what the fate of the Marriages Bill (the Bill) in the Senate will be, as well as thereafter, argued that the matter is ripe for determination by this Court.

She stated, that, there is nothing to stop this Court from determining whether section 2 of the Matrimonial Causes Act, in its current form, is compliant with the Constitution.

She accepted, however, that it was still possible for an amendment to be effected by Parliament in the current Bill.

In her submissions, counsel for the first and second respondents, whilst conceding that section 2 of the Matrimonial Causes Act excludes customary law unions in its definition of what constitutes a marriage, argued, that, the applicant is asking this Court to usurp Parliament's law-making functions.

She further argued, that, the applicant can continue to lobby Parliament to amend the Bill to include unregistered customary marriages.

Further, there is no guarantee that the President will assent to the Bill in its current form.

Counsel, therefore, submitted that the applicant has no prospects of success because what it is asking this Court to do is take over Parliament's legislative function.

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 Constitutional Court 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.”

Rule 21(8) of the Constitutional Court Rules goes on to provide:

“(8) 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.”…,.

It follows from sub-rule (8) above, that, the three factors itemised therein are not the only factors that may be taken into account. The Rule is clear, that, in addition, there may be other relevant considerations that this Court may take into account in deciding whether or not direct access should be granted.

Rule 21(1) of the Constitutional Court Rules provides for matters that fall within the exclusive jurisdiction of the Constitutional Court.

In respect of those matters, no other court other than this Court has jurisdiction.

The Constitutional Court, however, shares concurrent jurisdiction with lower courts in respect of the remaining constitutional matters that may require determination. It is in respect of those matters that leave to approach the court directly is required.

An applicant seeking direct access must show that it is in the interests of justice that the matter be heard directly by this Court at first instance. This is because direct access is, by its very nature, an extraordinary remedy that is granted in very few cases.

As I CURRIE and J de WAAL in The Bill of Rights Handbook, 6ed…, point out, constitutional matters cannot be brought directly to the Constitutional Court as a matter of course. If this were to be allowed, the court could get bogged down in cases in which there may be disputes of fact on which evidence might be necessary or may be called upon to decide constitutional issues which are not decisive of the litigation and which might prove to be of purely academic interest.

It is also not ordinarily in the interests of justice for any court, including this Court, to sit as a court of first instance without there being the possibility of appealing against the decision taken.

This Court, in various cases, has stressed that an applicant for direct access must satisfy two requirements:

(i) He must, firstly, show why it is in the interests of justice to have the matter determined directly by the Constitutional Court.

(ii) Secondly, he must show that the main application has prospects of success.

It is not in dispute, that, as the law currently stands, unregistered customary law unions have very limited recognition at law. In terms of section 3 of the Customary Marriages Act [Chapter 5:07] they are recognised as valid only for the purposes of legitimacy of the children born thereto and for the distribution of property upon the death of a spouse.

The doctrine of constitutional avoidance dates back to the United States of America Supreme Court decision in Ashwander v Tennesse Valley Authority 297 US 288 (1936). In that decision, the court formulated the doctrine as consisting of seven rules, namely:

“1. The Court will not 'pass upon' the constitutionality of legislation in a friendly, non-adversary proceeding.

2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it.

3. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.

4. The Court will not pass upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed.

5. The Court will not pass upon the constitutionality of a statute unless the plaintiff was injured by operation of the statute.

6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.

7. Even if 'serious doubt[s]' concerning the validity of an act of Congress are raised, the court will first ascertain 'whether a construction of the statute is fairly possible by which the question may be avoided.'”

Rule 2, as formulated in the above cited case, constitutes what has come to be referred to as ripeness. The rule, in essence, postulates that there can be no anticipation of a constitutional issue in advance.

The principle of ripeness is therefore part of the doctrine of avoidance.

The basic rationale of the ripeness principle is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies and to protect the agencies from judicial interference until an administrative decision has been formalised and its effect felt in a concrete way by the litigating parties: see Abbot Laborates v Gardner 387 US 136 (1967).

HOEXTER, Administrative Law in South Africa, 2nd ed 2012…, describes the doctrine in the following terms:

“The idea behind the requirement of ripeness is that the complainant should not go to court before the offending action or decision is final, or, at least, ripe for adjudication. It is the opposite of the doctrine of mootness, which prevents a court from deciding an issue when it is too late. The doctrine of ripeness holds that there is no point in wasting the courts time with half-formed decisions whose shape may yet change, or indeed decisions that have not yet been made.”

In Ferreira v Levin N.O. & Ors; Vryehoek v Powell N.O. & Others 1996 (1) SA 984 CC 199 KRIEGLER J pertinently remarked as follows:

“The essential flaw in the applicant's cases is one of timing, or, as the Americans and, occasionally, the Canadians call it 'ripeness'.

That term has a particular connotation in the constitutional jurisprudence of those countries which need not be analysed now. Suffice it to say, that, the doctrine of ripeness serves the useful purpose of highlighting that the business of a court is generally retrospective; it deals with situations or problems that have already ripened or crystallised, and not with prospective or hypothetical ones.

Although, as Professor Sharpe points out, and our Constitution acknowledges, the criteria for hearing a constitutional case are more generous than for ordinary suits - even cases for relief on constitutional grounds are not decided in the air.

And the present cases seem to me, as I have tried to show in the parody above, to be pre-eminent examples of speculative cases. The time of this Court is too valuable to be frittered away on hypothetical fears of corporate skeletons.”

Ripeness therefore entails consideration of the timing of a constitutional challenge.

Where a constitutional issue can be dealt with more conveniently at a later stage and the applicant will get no tangible advantage from an earlier ruling, the doctrine of ripeness requires the applicant to wait until the Constitutional Court can ground its decision in a concrete relief.

A court will not entertain a matter if it is premature in the sense that rights or interests have not been infringed or threatened.

The term may also be used where alternative remedies have not been exhausted or an issue can be resolved without recourse to the Constitution.

Whilst the concept is not precisely defined, the position appears settled, that, if it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course that should be taken: see MAX du PLESSIS et al, Constitutional Litigation…,.

That avoidance and ripeness are part of the law of this country, there can be no doubt: see, for example, the decision of this Court in Berry (Nee Ncube) & Anor v The Chief Immigration Officer & Anor 2016 (1) ZLR 38 (CC); Katsande & Anor v Infrastructure Development Bank of Zimbabwe CC09-17; Chawira & Ors v Minister of Justice, Legal and Parliamentary Affairs & Ors 2017 (1) ZLR 117 (CC).

It is common cause, that, one of the objectives of the Marriages Bill is to provide for the recognition and registration of customary law unions and to amend several statutes - including the Matrimonial Causes Act.

During the hearing of this matter, this Court was advised by counsel for the applicant that the Bill had since been passed by the National Assembly and had now been transmitted to the Senate.

That is all that is known about the Marriages Bill.

It is not known whether the National Assembly made any amendments to the Bill. It is not known what its fate in the Senate will be.

Even if the Bill is passed by both houses and presented to the President for his assent, he may refer it back to Parliament together with detailed reasons for his reservations: see section 131(5) of the Constitution. When that happens, the National Assembly must reconsider the Bill or pass it with or without amendments before it is once again referred to the President. If the President still has reservations, he must refer the Bill to the Constitutional Court for advice on its constitutionality. Further, in terms of Part 3 of the Fifth Schedule to the Constitution, neither the National Assembly nor the Senate may give a Bill its final reading unless a report of the Parliament Legal Committee has been presented to the House. An application can also be made to the Constitutional Court by a Vice-President or a Minister for a declaration that the provision, if enacted, would be consistent with the Constitution.

Regard being had to the above procedural requisites, it is unknown whether the Marriages Bill will be passed into law, and, if so, whether this will be with or without amendments.

Counsel for the applicant did concede during the hearing that an amendment to the Bill is still possible to include customary law unions in the definition of marriage.

Clearly, therefore, the matter is not ripe for adjudication by this Court.

This is a matter that currently is the subject of consideration by Parliament, and, perhaps, thereafter, by the President. Indeed, in Doctors for Life International v The Speaker of the National Assembly CCT 12/05 NCOBO J, whilst dealing with the competence of the Constitutional Court to interfere with the autonomy of Parliament to regulate its internal proceedings, made the following pertinent remarks:

“(68) Courts in other jurisdictions, notably in the Commonwealth jurisdictions, have confronted this question. Courts have traditionally resisted intrusions into the internal procedures of other branches of Government. They have done this out of comity, and, in particular, out of respect for the principle of separation or powers. But, at the same time, they have claimed the right as well as the duty to intervene in order to prevent the violation of the Constitution. To reconcile their judicial role to uphold the Constitution, on the one hand, and the need to respect the other branches of government, on the other hand, courts have developed a 'settled practice' or general rule of jurisdiction that governs judicial intervention in the legislative process.

(69) The basic position appears to be, that, as a general matter, where the flaw in the law-making process will result in the resulting law being invalid, courts take the view, that, the appropriate time to intervene is after the completion of the legislative process. The appropriate remedy is to have the resulting law declared invalid. However, there are exceptions to this judiciary developed rule or 'settled practice'. Where immediate intervention is called for in order to prevent the violation of the Constitution and the rule of law, courts will intervene and grant immediate relief. But, intervention will occur in exceptional cases, such as where an aggrieved person cannot be afforded substantial relief once the process is completed because the underlying conduct would have achieved its object.”

The conclusion is inescapable, that, the issue raised in this application is not ready for adjudication by this Court. Until the fate of the Marriages Bill is known, it would not only be inappropriate and unwise, but also premature, for this Court to make a determination on the constitutionality of the definition of marriage in section 2 of the Matrimonial Causes Act.

I find, therefore, that, it is not in the interest of justice that leave for direct access be granted to the applicant.

On the question of costs, I find no reason to depart from the normal practice of this Court not to award costs in constitutional applications.

In light of this conclusion, it becomes unnecessary to determine whether or not the applicant has an alternative remedy at its disposal.

In the result, the following order is made:

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

This is an application for leave for direct access to the Constitutional Court brought in terms of section 167(5)(a) of the Constitution as read with Rule 21 of the Rules of the Constitutional Court 2016.

The applicants are a group of persons residing on a piece of land over which the second respondent claims ownership. They intend to approach the Constitutional Court, under section 24 of the Constitutional Court Act 2021, for the rescission of a judgment of the Constitutional Court issued under CC43-15.

The applicants are residents on a piece of land described as a certain piece of land situated in Hartley District, being Kingsdale of Johannesburg, measuring 161,8238 hectares.

In 2001, the State gazetted the land described above, and, through that process, compulsorily acquired it under the land reform programme. In support, the applicants have attached to their papers an Extraordinary Government Gazette dated 22 June 2001 confirming the acquisition. The applicants contend, that, consequently, title to the land is vested in the Government of Zimbabwe.

Further, the applicants claim, that, they were allocated stands on the piece of land under the programme. However, they have not produced any documents to the Court to sustain their claim.

The applicants claim, that, unbeknown to them, the first to ninth respondents (Minister of Agriculture, Lands, Water and Rural Resettlement, Maparahwe Properties (Pvt) Ltd, Kingsdale Housing Co-operative Society Ltd, Executor, Estate of Late Pieter Nicholas Nel, Hardwork Chiminya, Givemore Dube, Pretty Kurera, Spiwe Matambo and Executor, Estate of Late Sibangani Kokera) obtained an order by consent under CC43-15.

The second respondent (Maparahwe Properties (Pvt) Ltd) was permitted, in terms of that order, to obtain necessary permits have the land surveyed and to sell any Stands to any other party or parties. They allege, that, as a result of this, and contrary to their wishes, they entered into agreements of sale in respect of their individual Stands. Thus, the second respondent erroneously continues to hold itself as the owner of the piece of land to their prejudice.

The parties are agreed that the following facts are common cause.

In 2001, the piece of land described above was gazetted for acquisition under the land reform programme. It is common cause that the Administrative Court set aside the acquisition in 2003.

On 2 October 2013, this Court set aside the acquisition of the piece of land following its further gazetting in 2005. This order was followed by an order obtained by consent under CC43-15, the causa for the application in casu. This order, issued on 18 November 2015, was in the following terms:

“IT IS ORDERED BY CONSENT THAT:

1. Kingsdale Housing Cooperative Society Limited be and is hereby joined to these proceedings as the second respondent.

2. It is declared, that, the applicants right under section 68(1) of the Constitution of Zimbabwe to fair, just, and prompt administrative action has been violated.

3. It is declared, that, Kingsdale of Johannesburg, measuring 161,8238 hectares in the District of Hartley, is private land.

4. Consequently, it is ordered that:

4.1 The first respondent be and is hereby ordered to withdraw its acquisition of land aforesaid and shall cause the publication of such withdrawal in the Government Gazette and the Herald Newspaper within fourteen (14) days of this order.

4.2 The land aforesaid vests in the first applicant who shall proceed with urban development of the said land up to the issuance of title surveys in accordance with permits issued or to be issued by the relevant town planning authority.

4.3 Any agreement of sale between first applicant and any other person, as of 26 February 2015 (the date of purported acquisition), remains valid and enforceable.

4.4 All persons, with the exception of the second respondent's registered members as at 12 November 2013, in illegal occupation or possession of any portion of the said land forthwith vacate the land failing which the Sheriff of Zimbabwe or his lawful Deputy be and is hereby authorised to eject them.

4.5 The first applicant hereby donates to the Government of Zimbabwe twenty–one (21) hectares of land in the area covered by Garikai/Hlalani Kuhle Housing Scheme and ZESA Servitudes.

4.6 The first applicant shall develop the land in terms of para 4.2 above, and the members of the second respondent and persons referred to in para 4.3 above shall compensate the first applicant for the remaining land measuring 140 hectares at US$5 per square metre in accordance with the terms of a Deed of Settlement to be signed by the parties and incorporated into the order of the Administrative Court.

5. Each party to bear its own costs.”

It is common cause, that, the applicants have entered into separate agreements of sale in respect of the individual Stands that each applicant occupies.

The applicants contend, that, the judgment issued under CC43-15 should be set aside.

They place reliance for this contention on section 24 of the Constitutional Court Act [Chapter 7:22] (“the Act”). They allege that the judgment was granted in their absence. They allege that the judgment was granted in error as the land is State land following its acquisition in 2001.

They further allege, that, they were forced, by circumstances, into purchasing from the second respondent the Stands allocated to them under the land reform programme pursuant to the judgment.

They contend that they have been, and continue to be, prejudiced by the erroneous order in CC43-15.

On the premises stated above, the applicants approach the Constitutional Court for leave to have the judgment under CC43-15 rescinded.

Rescission is sought on the basis, that, the judgment was erroneously sought or granted.

The applicants aver, that, the land in question was State land and remains State land under section 72(4)(a) of the Constitution due to its listing in Schedule 7 of the former Constitution in 2005. The parties erred in not bringing this fact to the attention of the Constitutional Court at the hearing.

The applicants contend, that, the judgment is unconstitutional as it is contrary to section 72(4)(a) of the Constitution.

They argue, that, none of them was party to the consent order under CC43-15.

The Constitutional Court is a specialised court with jurisdiction to hear only deserving cases. Direct access to the Court is an extraordinary procedure granted in deserving cases that meet the requirements set out in the rules of the Court.

Rule 21(3) of the Rules of the Constitutional Court 2016 requires that an applicant for leave for direct access to the Constitutional Court must show that it is in the interests of justice for access to be granted by the Court. Thus, Rule 21(3) of the Constitutional Court Rules 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.”

Rule 21(8) of the Constitutional Court Rules provides:

“(8) 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.”

In Zimbabwe Development Party & Anor v The President & Ors 2018 ZLR 485 (CC)…, MALABA CJ commented thus:

“In order for direct access to be granted, the applicants had to show that they had prospects of success in the main matter. In Transvaal Agricultural Union v Minister of Land Affairs and Another 1996 (12) BCLR 1573, 1997 (2) SA 621 (CC) at para [46], the Constitutional Court of South Africa said in part:

'[46] The applicant has failed to establish that this is a case in which the ordinary procedures ought not to have been followed. There are important issues which are within the jurisdiction of the Supreme Court and which need to be resolved by it before this Court is approached for relief. As far as the other issues are concerned, there is neither the urgency nor the prospects of success necessary to justify direct access to this Court. The application for direct access must therefore be dismissed.'”…,.

In Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC), 1998 (4) BCLR 415 (CC)…, CHAKALSON P remarked:

“[7] Whilst the prospects of success are clearly relevant to applications for direct access to this Court; there are other considerations which are at least of equal importance. This Court is the highest Court on all constitutional matters.

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.”…,.

It is common cause that the applicants are in occupation of individual Stands on the land, which is the subject of the dispute, under agreements of sale concluded between them and the second respondent. It is also common cause that the contracts of sale have not been cancelled in respect of some of the applicants.

The record shows, that, the second respondent obtained a judgment for the eviction of the first applicant from the Stand.

However, none of the applicants are claiming a right of occupation through the agreements of sale. Rather, their alleged right to occupation is premised on the allegation that they were allocated Stands under the land reform programme.

If granted access, the applicants seek an order in the following terms:

“1. That, it be and is hereby ordered that the judgment by this Court in CC43-15, handed down as an order on 18 November 2015, is rescinded for the reason that it was granted in error.

2. That, for the avoidance of doubt, and arising from the order in para 1, in the exercise of the Court's inherent powers under section 176 of the Constitution as read with section 175(6)(b) of the same Constitution, it is declared that certain piece of land known as Kingsdale of Johannesburg, in the district of Hartley, measuring 161,8238 hectares, is State land under section 72(4) of the Constitution of Zimbabwe.

3. The respondents (if they oppose this order) shall pay the costs of this application jointly and severally, the one paying the others being absolved.”

Submissions in relation to the two issues went as follows:

Counsel for the applicants contended, that, the High Court Rules are inapplicable in casu, and that the matter may be brought to the Constitutional Court by way of section 24 of the Constitutional Court Act. To that end, he argued, that, there was no question of delay in bringing the application for rescission as section 24 of the Constitutional Court Act did not make provision for a timeframe for filing the application.

He contended further, that, there were no time limits placed on alleged violation of the Constitution.

In so far it related to the locus standi of the applicants, counsel for the applicants argued, that, the applicants had an interest to protect. He further contended, that, they were absent from the process when the judgment was issued and have, therefore, the requisite locus standi in judicio.

Counsel for the second respondent (Maparahwe Properties (Pvt) Ltd) was of a contrary view.

He argued, that, whilst section 24 of the Constitutional Court Act restates the substantive power of the Constitutional Court, the procedural aspects are provided for in section 26 of the Constitutional Act.

In his view, section 24 of the Constitutional Court Act restates the substantive power of the Court. The procedural aspects of the exercise of that power are set out in section 26 of the Constitutional Court Act where the Chief Justice is empowered to promulgate rules of court to provide for the procedure the Constitutional Court is to follow.

He contended, that, the failure by the applicants to adhere to the rules of the Court was fatal to the application.

He suggested that the application was in fact a nullity.

Coming to the question of locus standi, counsel for the second respondent (Maparahwe Properties (Pvt) Ltd) submitted, that, the applicants had not established, on the papers, that they had locus standi to apply for the rescission of the judgment. They had not established that they had an interest that required protection through the setting aside of the judgement in question. He reiterated that interest, in the context of locus standi, must be personal as relates to the person seeking relief.

Counsel for the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel), on the other hand, made the following submissions:

He argued, that, it was not in the interests of justice for the application to be granted. The applicants had become aware, as early as July 2017, of the existence of the judgment. The application was filed after a period of four years and there was no attempt to explain the delay in bringing it to the Constitutional Court.

He contended, that, Rule 29 of the Rules of the High Court applied in casu, and, on the premises of the rule, the applicants were not entitled to the relief they were seeking.

There were no submissions on the question of locus standi by the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel).

I propose to consider the two issues ad seriatim.

In Liziwe Museredza & 385 Others v Minister of Agriculture, Lands, Water & Rural Resettlement & Ors CC11-21, the applicants approached the Constitutional Court for substantially the same relief as sought in the main application attached to this application. In the matter above, they approached the Constitutional Court under Rule 449 of the High Court Rules 1971 (now repealed). The Court considered the matter in terms of Rule 449 which provided in relevant part:

“449 Correction, variation and rescission of judgments and orders

(1) The Court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) That was granted as the result of a mistake common to the parties.

(2) The Court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

In that matter, the contention of the applicants was to the effect, that, an application under Rule 449 of the High Court Rules did not require leave as provided for in Rule 21 of the Constitutional Court Rules 2016.

Writing for the Constitutional Court, MAKARAU JCC commented as follows…,:

“As discussed above, an application to this Court in terms of Rule 449 of the High Court Rules as read with Rule 45 of the Rules is in the exclusive jurisdiction of this Court by operation of the law of practice and procedure. This is so because only this Court can correct or vary its own order sought or given in error and in the absence of a party adversely affected by the order.

Such an application is sui generis in a number of respects.

Whilst it is brought to set aside an extant order of the Court, it in essence seeks to bring before the court new facts or fresh legal argument for consideration. This is so because the applicants have perforce to allege that a material fact or law was not brought to the attention of the Court and was therefore not considered by it before it made the order that is under challenge.

In casu, evidence of the 'new' fact was sought to be led through the founding affidavit in the form of the Government Notice that listed the land in dispute. The new matter that the applicants wish the Court to determine is therefore the effect of this new evidence on the ownership of the land in dispute.

Secondly, the application is not between the same parties who were before the Court in the matter that resulted in the extant order. It is brought by applicants who, again, perforce have to allege that they were not before the Court when the order was granted.

It therefore introduces not only a new matter but new parties….,.

The practice of this Court, therefore, is that, where a litigant wishes to bring a new and fresh cause and the matter is not listed in Rule 21 as one for which leave is not required, then leave must be sought even if the matter is in the exclusive jurisdiction of the Court. The practice is based on and highlights the gate-keeping function of an application for leave.”

Pursuant to that judgment, the applicants have filed an application for leave for direct access.

Undoubtedly, the applicants require the leave of court to approach the Constitutional Court for relief. The intended application for rescission of judgment does not fall within the applications that are exempted from leave in terms of Rule 21(1) of the rules of the Constitutional Court.

Rule 21(1) of the Constitutional Court Rules provides:

“(1) The following matters shall not require leave of the Court —

(a) Disputes concerning an election to the office of President or Vice-President;

(b) Disputes relating to whether or not a person is qualified to hold the office of President or Vice-President;

(c) Referrals from a court of lesser jurisdiction;

(d) Determinations on whether Parliament or the President has failed to fulfil a constitutional obligation;

(e) Appeals in terms of section 175(3) of the Constitution against an order concerning the constitutional validity or invalidity of any law;

(f) Where the liberty of an individual is at stake;

(g) Challenges to the validity of a declaration of a State of Public Emergency or an extension of a State of Public Emergency.”

The law should be and the procedure for applying the law must work efficiently, inexpensively and effectively. This principle of fairness is provided for in the Constitution and the right of access to the Constitutional Court is a fundamental right. The Constitution of Zimbabwe 2013 has provided for access to the Constitutional Court in section 69(2) and (3) for the adjudication of civil rights. It provides:

“69 Right to a Fair Hearing

(2) In the determination of civil rights and obligations, every person has a right to a fair, speedy, and public hearing within a reasonable time before an independent and impartial court, tribunal, or other forum established by law.

(3) Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.”

However, the right of access to courts does not give a litigant the licence to unilaterally decide on the procedure for accessing the court. The procedure applicable is as a consequence rooted in fairness and this is concretised by the power of the Court to enact rules that delineate procedural requirements.

This Court has, in a plethora of authorities, emphasised the obligation of litigants to adhere to the law and adopt the process set out in rules.

In Kombayi v Berkout 1988 (1) ZLR 53 (S)…, the court in that matter emphasised the obligation by litigants and their legal practitioners to observe the rules of the respective courts wherein relief is sought.

The court said:

“Although this court is reluctant to visit the errors of a legal practitioner on his client, to whom no blame attaches, so as to deprive him of a re-hearing, error on the part of a legal practitioner is not by itself a sufficient reason for condonation of a delay in all cases. As STEYN CJ observed in Saloojee & Anor NNO v Minister of Community Development 1952 (2) SA 135 (A) at 141C:

'There is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the rules of the Court. Considerations ad misericordium should not be allowed to become an invitation to laxity.'

A duty is cast upon a legal practitioner, who is instructed to prosecute an appeal, to acquaint himself with the procedure prescribed by the Rules of the Court to which a matter is being taken on appeal. That no effort has been made to comply with the Rules of Court in the instant case is further exemplified by the failure of the applicant's attorney to satisfy the requirement of Rule 31(1) of the Supreme Court Rules: that an application for extension of time within which to appeal 'shall be accompanied by a copy of the judgment against which it is sought to appeal.'

The Notice of Appeal itself is defective, in that it does not comply with the mandatory provisions of Rule 29, sub-rules (a), (c) and (e) which require: (i) that the court by which the judgment appealed against was given be stated; (ii) that there be some indication as to whether the whole or part only of the judgment is appealed against; and (iii) that the exact nature of the relief sought be stipulated. There is almost a total disregard of the Rules.”

It is trite therefore, that, the rules form the backdrop of procedure, and that this serves to buttress the rules of natural justice that there be an equal playing field where every party is afforded a right to be heard in their cause: see Metsole v Chairman, Public Service Commission & Anor 1989 (3) ZLR 147 (S).

The roles that the Rules play was explained in Makaruse v Hide & Skin Collectors (Pvt) Ltd 1996 (2) ZLR 60 (S)…, as being:

“By virtue of the power conferred on this court by Rule 4 to condone any non-compliance with the rules, none of the provisions of the rules are strictly peremptory.

'The rules are, however, there to regulate the practice and procedure of the Court in general terms and strong grounds would have to be advanced, in my view, to persuade a court to act outside the powers provided for specifically in the Rules.' Per BOTHA J (as he then was) in Moulded Components v Coucourakis & Anor 1999 (2) SA 457 (W) at p462-3.

Thus, the inherent power to prevent abuse of the machinery of the court is a power which has to be exercised with great caution, and only in a clear case: Hudson v Hudson supra at 268.

Non-compliance of the rules will only be condoned upon good cause shown by the applicant.

There must be a reasonable and acceptable explanation for the failure to comply with the Rules, and the applicant for condonation must also show reasonable prospects of success: see General Accident Insurance Co. SA Ltd v Zampelli 1988 (4) SA 407 (C) at 411C-D.”

Rules of court are put in place to facilitate the expeditious and fair dispatch of cases.

The courts have an inherent power to regulate and protect their processes. This was reiterated in Mukaddam v Pioneer Foods (Pty) Ltd; Mukaddam v Pioneer Foods (Pty) Ltd 2013 (5) SA 89 (CC)…,

The Court made the following observations:

“[28] …,. Our Constitution guarantees everyone the right of access to courts which are independent of other arms of Government. But, the guarantee in section 34 of the Constitution does not include the choice of procedure or forum in which access to courts is to be exercised. This omission is in line with the recognition that courts have an inherent power to protect and regulate their own process in terms of section 173 of the Constitution, to which I shall turn in a moment.

[31] However, a litigant who wishes to exercise the right of access to courts is required to follow certain defined procedures to enable the court to adjudicate a dispute. In the main, these procedures are contained in the rules of each court. The Uniform Rules regulate form and process of the high courts. The Supreme Court of Appeal, and this court, have their own rules. These rules confer procedural rights on litigants and help in creating certainty in procedures to be followed if relief of a particular kind is sought.

[32] It is important that the rules of courts are used as tools to facilitate access to courts rather than hindering it. Hence, rules are made for courts and not that the courts are established for rules. Therefore, the primary function of the rules of courts is the attainment of justice. But, sometimes, circumstances arise which are not provided for in the rules. The proper course in those circumstances is to approach the court itself for guidance. After all, in terms of section 173, each superior court is the master of its process.

[42]…,. The language of the section suggests that each court is responsible and controls the process through which cases are presented to it for adjudication. The reason for this is that a court before which a case is brought is better placed to regulate and manage the procedure to be followed in each case so as to achieve a just outcome. For a proper adjudication to take place, it is not unusual for the fact of a particular case to require a procedure different from the one normally followed. When this happens, it is the court in which the case is instituted that decides whether a specific procedure should be permitted.”…,.

It goes without saying, that, rules of court serve an important purpose.

They must not, and, cannot be disregarded unless the court has been persuaded, on very strong grounds, to do so.

This is why a litigant who wishes to exercise the right to access the court is required to follow certain and specified procedures. In this context, rules of court not only ensure certainty of the processes of court proceedings, the litigants are also provided with a fair playing ground for the adjudication of disputes.

It is fair to state, that, the rules ensure that the interests of justice are served.

The Court holds, that, it is not in the interests of justice that the applicants be granted leave for direct access in this matter. The view of the Court is that, upon considering the matter, the applicants have not established that the application has prospects of success on the merits. The reasons for so finding are on two bases:

(i) The first is that the applicants have not made an application for the rescission in terms of the rules that entitle them to apply for rescission of the impugned judgment by the Constitutional Court in the exercise of its powers under the Constitutional Court Act. They have, instead, purported to rely on section 24 of the Constitutional Court Act, which provision does not provide for such an application.

(ii) The second, the more important basis, is that the applicants have not established the requisite locus standi in judicio to apply for rescission of the judgment.

The Court will proceed on the basis, that, this application is one in terms of section 24 of the Constitutional Court Act 5/2021 (“the Act”), which provides as follows:

“24 Correction, variation, and rescission of judgments or orders

(1) The Court may, in addition to any other power it may have, on its own initiative or upon the application of any party affected, correct, rescind or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) That was granted as the result of a mistake common to the parties.

(2) The Court shall not make any order correcting, rescinding, or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

In turn, section 26(1) of the Constitutional Court Act [Chapter 7:22] provides as follows in relevant part:

“26 Rules of Court

(1) Subject to subsections (2) and (3), the Chief Justice, after consultation with a
committee appointed by him or her, may make rules relating to any of the following matters —

(a) The manner and form of procedure before the Court; and

(b)…,.

(c)…,.

(d)…,.

(e)…,.

(f)…,.

(g)…,.

(h)…,.

(i) The time within which any requirement of the rules is to be complied with and the extension of such time; and

(j)…,.

(k)…,.

(l)…,.

(m)…,.

(n)…,.

(o)…,.

(p)…,.

(q)…,.

(r)…,.

(s) Generally, to give effect to the jurisdiction conferred upon the Court by any enactment; and

(t)…,.

(2) Rules shall have not effect until they have been approved by the Minister and published in a statutory instrument.

(3) The Constitutional Court Rules, 2016 published in Statutory Instrument 61 of 2016, shall continue to be in force until they have been repealed or amended.”

In casu, the applicants contend, that, the judgment was not only granted in error; additionally, it adversely affected their right to occupy the Stands as beneficiaries under the land reform programme.

In terms of section 24(1)(a) of the Constitutional Court Act, the Constitutional Court has the power to correct, rescind or vary any judgment that was erroneously granted in the absence of a party affected thereby.

On a proper construction of the provisions set out above, the Court's jurisdiction is invoked 'upon the application of a party affected'.

I do not understand the provisions to mean that a party may apply to court absent reference to a particular rule of court.

Section 24 of the Constitutional Court Act spells out the Court's substantive power once seized with an application. Section 24 of the Constitutional Court Act is not the procedural route one takes to make an application. It gives the Constitutional Court the jurisdiction to entertain such an application.

To enable a court to determine the application, an applicant must place reliance on the Rules of the Court promulgated to regulate access to that court.

The need for the adherence to Rules is a requirement even where the dispute sought to be adjudicated is rooted in Constitutional Law.

In Marx Mupungu v Minister of Justice, Legal & Parliamentary Affairs & Ors CC07-21, the Court observed:

“Additionally, it is necessary to underscore the point, that, access to this Court, or any subordinate court, under section 85 is subject to regulation by rules of court. This is made explicitly clear by section 85(3) which dictates, that, rules of every court must provide for the procedure to be followed in cases where relief is sought under section 85(1). It is also spelt out in section 167(5) of the Constitution vis-a-vis direct access to the Constitutional Court.

One cannot institute an action or application in the High Court, or any other subordinate court, without due observance of and compliance with the Rules of that court. The Rules inform a litigant what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited.”

Evidently, contrary to the argument by the applicants, the procedural aspects of approaching the Constitutional Court find expression in section 26 of the Constitutional Court Act which provides for the promulgation of rules of Court to regulate the processes of the Constitutional Court.

In subsection (1), provision is made for the manner and form of procedure before the Court as well as the time within which any requirement of the rules is to be complied with and the extension of such time.

It is trite that rules of court provide for the form, manner, and time frame for the bringing of litigation before a court. This is because courts have inherent jurisdiction to control their processes.

Rescission of judgments is one of the procedures that rules of court make specific provision for.

The applicants cannot seek a rescission merely on the premise of the power exercisable by the Court to set aside the judgment in issue. The Court must be requested to exercise its discretion as provided for in the rules.

That has not been done in this case.

It is a trite principle of the law of interpretation, that, statutory provisions in an Act of Parliament must be construed as a whole as opposed to individually. They must be read together. It stands to reason, therefore, that while section 24 of the Constitutional Court Act spells out the Court's power to correct, vary or rescind its judgments or orders, the procedural aspect of the exercise of that power can only be done in compliance with section 26 of the Constitutional Court Act. The rules of the Court have to prescribe the procedure for such exercise.

In terms of Rule 45 of the Rules of the Constitutional Court 2016, in any matter not dealt with in terms of the rules, the practice and procedure of the Court shall follow, as near as may be, the practice and procedure of the Supreme Court, or where the rules of the Supreme Court are silent, the High Court become the default rules.

It is trite, that, the rules of the Supreme Court do not provide for the rescission, correction, or variation of judgments but the High Court Rules so provide.

The High Court Rules, 2021 were promulgated on 23 July 2021.

Rule 29 of the High Court Rules, which provides for the variation and rescission of judgments, reads:

“(1) The court or a judge may, in addition to any other powers it or he or she may have, on its own initiative or upon the application of any affected party, correct, rescind or vary -

(a) An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) An order or a judgment in which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) An order or judgment granted as a result of a mistake common to both parties.

(2) Any party desiring any relief under this rule may make a court application, on notice to all parties whose interests may be affected by any variation sought, within one month after becoming aware of the existence of the order or judgment.”

Whilst the Constitutional Court Act makes provision for the invocation of its jurisdiction, the Rules provide for the procedure under which the Court exercises its jurisdiction.

The applicants have not, however, invoked the rules of court for an order for the rescission of the impugned judgment. They have sought reliance on section 24 of the Constitutional Court Act.

The Rules of the High Court have prescribed the procedure to be followed and are apposite in casu.

The applicants have not made an application in terms of the rules of court.

I am not persuaded that the Constitutional Court Act gives the applicant the right to approach the court for redress. Section 24 of the Constitutional Court Act spells out the power that a court may exercise upon the application of a party. The rules comprise procedural law and must form the premise of a litigant's approach to an appropriate court.

It is trite that courts insist on parties compliance with the rules and that where this has not been done, or is impossible, condonation for failure to adhere to the rules be sought and obtained.

Rule 449, in terms of which relief was sought in Liziwe Museredza & 385 Others v Minister of Agriculture, Lands, Water & Rural Resettlement & Ors CC11-21 is no longer in force.

Reliance should have been placed on Rule 29 of the High Court Rules 2021.

Rule 29(2) of the High Court Rules requires that an application under the rules be brought to Court within a month from the date that the applicant has knowledge of the judgment.

The first applicant, who has assumed a leading role in the litigation surrounding the dispute which is the subject matter of this application, has not stated in categorical terms when she became aware of the judgment. However, there is on record an affidavit deposed to by her on 27 July 2017 in which she makes reference to the judgment sought to be set aside.

This application was only filed on 25 August 2021, a period in excess of four years from when the record reveals the applicants would be taken as having had knowledge of the judgment.

According to Rule 29(2) of the Rules of the High Court 2021, which were promulgated on 23 July 2021, the applicants are out of time.

Even if the matter were to be considered in terms of Rule 449 of the High Court Rules, the applicants would still be out of Court.

It cannot be gainsaid that the applicants have not been vigilant in pursuing relief in casu. The application was not brought expeditiously.

I am fortified in this view by the remarks of GUBBAY CJ in Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361…, to the following effect:

“It was said by the appellants, that, they only became aware that the judgment had been erroneously granted when they received advice of that fact on 25 July 1997, some five years and six months later.

Such length of time, whatever the reason thereof, is unreasonable.

But, what made the appellants wholly undeserving of the Court's indulgence was that after being advised that aggregate interest had been awarded, they allowed a further ten weeks to pass before filing their application. And even when informed by the respondent's legal practitioners, on 27 August 1997, that it was not accepted that the judgment was in any way erroneous, it was five weeks before the necessary relief was sought.

I have, therefore, no hesitation in agreeing with the learned judge that the bringing of the application amounted to an abuse of the process of the Court and was not to be sanctioned.”

I believe that the remarks of the learned jurist are more than apposite in casu.

At the very least, the appellants in Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 attempted to explain the delay. In the instant case, the applicants have not found it necessary to advise the Court when they became aware of the judgment. This becomes necessary since what was sought is the Court's indulgence.

In the exercise of its discretion, the Court must weigh all the factors that require that an applicant act expeditiously. Unfortunately, the applicants have decided not to be candid with the Court and take it into their confidence.

The delay under Rule 29 of the High Court Rules 2021 or Rule 449 of the repealed rules is inordinate.

The delay, being obvious, condonation for their failure to adhere to the rules ought to have been applied for.

No condonation was sought. They were clearly mistaken in taking that position.

The applicants have failed to adhere to the rules of the Court. They have been unable to bring the application timeously, or, in any event, within the time limits prescribed by Rule 29(2) of the High Court Rules.

In the absence of an order of Court condoning the failure to abide by the rules means, that, the applicants are non-suited.

The court is of the view, that, in the absence of condonation, there is no valid application before the Court. Therefore, there are no prospects of success on the merits due to the failure to adhere to procedural precepts in casu.

I turn to the second issue for determination, that of locus standi in judicio.

For the Court to invoke its jurisdiction to exercise power granted under section 24 of the Constitutional Court Act, the applicants must establish that they are parties affected by the judgment.

It cannot be set aside on a mere whim.

The applicants have to show that some right has been prejudiced by the issuance of the judgment in question. Since they allege that the land is State land, it is incumbent that they establish locus standi in judicio to invoke the jurisdiction of the Court to exercise its power in their favour.

“In law, standing or locus standi, is a condition that a party seeking a legal remedy must show that they have by demonstrating to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.”…,.

In Sibanda & Ors v The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc SC49-18, HLATSHWAYO JA considered the principle of locus standi and stated the following:

“It is trite that locus standi is the capacity of a party to bring a matter before a court of law. The law is clear on the point, that, to establish locus standi, a party must show a direct and substantial interest in the matter: see United Watch & Diamond Company (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C) at 415A-C and Matambanadzo v Goven SC23-04.

In casu, it is common cause, that, the respondent is a branch of the parent church. However, the respondent is endowed with the power to sue and be sued in its own name. It is further common cause that the respondent is under the leadership appointed by the parent church. The Constitution of the respondent is approved by the mother church. The first appellant has been in control of the respondent's assets on the basis of being an overseer appointed by the mother church. The main allegation a quo was that the appellants were no longer members of the respondent and hence should cease to control the assets of the respondent.

The respondent, as a branch of the mother church, had an unfettered direct interest in the matter in that the first appellant purported to act on the respondent's behalf when he was on suspension. The first appellant had been divested of the power to act on behalf of the respondent. It is common cause that the first appellant was on suspension when he caused the letter of 3 February 2012 to be drafted. He purported to communicate to the mother church an incorrect position that the respondent was also the author of the letter in question. The respondent, who had not authored the letter in question, surely has a direct interest in a matter where its previous leader purports to act on its behalf without its authority. Therefore, the respondent's locus standi in the Court a quo cannot be gainsaid.”

It is settled, that, the principle of locus standi is concerned with the relationship between the cause of action and the relief sought. Thus, a party needs to show that they have a direct, personal, and substantial interest in the matter in contention.

In Zimbabwe Stock Exchange v Zimbabwe Revenue Authority SC56-07, MALABA JA..., said:

“The common law position on locus standi in judicio of a party instituting proceedings in a court of law is, that, to justify participation in the action, the party must show that he or she has a direct and substantial interest in the right which is the subject matter of the proceedings and the relief sought.”

The above authorities speak to the legal position as pertains to locus standi generally.

As this application is concerned with an alleged violation of the Constitution, it is only appropriate that the Court considers the issue of locus standi in the light of decided authority on constitutional matters.

This Court, in the case of Mawarire v R G Mugabe & Ors CC01-13, accepting the applicant's right to access the court stated:

“Even under the pre-2009 requirements, it appears to me, that, the applicant is entitled to approach this Court for relief. Certainly, this Court does not expect to appear before it only those who are dripping with the blood of the actual infringement of their rights or those who are shivering incoherently with the fear of the impending threat which has actually engulfed them. This Court will entertain even those who calmly perceive a looming infringement and issue a declaration or appropriate order to stave the threat, moreso under the liberal post-2009 requirements.”

This decision was followed by a long line of authorities that established a trend in which the Courts sought to broaden the principle that locus standi should not be strictly construed in constitutional matters. To otherwise and apply too strict a construction would result in deserving cases failing to see the light of day further prejudicing an applicant deserving protection in pursuit of a fundamental right properly protected under the Constitution.

The position is settled, that, the new Constitution has expanded the locus standi of persons seeking to approach the Constitutional Court for the enforcement of an alleged breach of a fundamental right. Accordingly, in Meda v Matsvimbo Sibanda & Ors CC10-16, MALABA CJ made the following pertinent remarks:

“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 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 the courts on questions of violation of fundamental human rights and freedoms with minimal technicalities.”

See also the dicta in Chirambwe v Parliament of Zimbabwe & Ors CC04-20 and Gonese & Anor v President of Zimbabwe & Ors CC10-18.

The applicants claim that they are beneficiaries to State land under the land reform programme.

While the acquisition of the land is provided for in the Constitution, the right to occupy gazetted land is provided for in the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. Thus, any right of occupation on the part of the applicants must be consistent with the rights set out in the relevant legislation, in this instance, the Gazetted Lands Act. In addition, a person claiming such right must show that he or she has lawful authority to occupy the land claimed.

Section 3(1) of the Gazetted Land (Consequential Provisions) Act reads:

“3 Occupation of Gazetted land without lawful authority

(1) Subject to this section, no person may hold, use or occupy Gazetted land without lawful authority.”

What is lawful authority?

The Gazetted Land (Consequential Provisions) Act sets out several categories of documents under which lawful authority may be granted. The Gazetted Land (Consequential Provisions) Act defines lawful authority as follows:

“'lawful authority' means —

(a) An offer letter; or

(b) A permit; or

(c) A land settlement lease; and 'lawfully authorised' shall be construed accordingly;

'offer letter' means a letter issued by the acquiring authority to any person that offers to allocate to that person any Gazetted land, or a portion of Gazetted land, described in that letter;

'permit' when used as a noun, means a permit issued by the State which entitles any person to occupy and use resettlement land;

'resettlement land' means land identified as resettlement land under the Rural District Councils Act [Chapter 29:13].

(2) Any word or expression to which a meaning has been assigned in the Land Acquisition Act [Chapter 20:10] shall have the same meaning when used in this Act.”

In addition, the Gazetted Land (Consequential Provisions) Act provides for land settlement leases described in the following terms:

“'land settlement lease' means a lease of any Gazetted land, or a portion of Gazetted land, issued by the State to any person, whether in terms of the Rural Land Act [Chapter 20:18] or the Agricultural Land Settlement Act [Chapter 20:01] or otherwise;”

The applicants needed to establish a real and substantial interest in the rescission of the judgment. They had to show that the judgment in issue directly affected their rights, interests, or potential rights or interests. They needed to show that the interests of justice favoured a finding of locus standi in judicio in their favour. Alternatively, they needed to establish a connection to and harm from the judgment sought to be rescinded.

They did not.

Apart from a bald statement in the founding affidavit that the applicants were beneficiaries under the land reform programme, no one has attached any document as proof of the claim.

To claim a right of occupation to Gazetted land under the programme, a person must exhibit any of the documents described as constituting lawful authority.

Neither the first applicant nor her cohorts have even alluded to having such lawful authority. Instead, what is before the Court are copies of agreements of sale between the applicants and the second respondent.

The agreements of sale are not the lawful authority contemplated under the Gazetted Land (Consequential Provisions) Act.

Any person claiming lawful authority to occupy or use State land must produce an offer letter, permit, or lease relating to the agricultural land in question: see Taylor-Freeme v The Senior Magistrate, Chinhoyi CC10-14; Zinyemba v The Minister of Lands & Rural Resettlement & Anor CC03-16.

The Constitutional Court has already settled what constitutes lawful authority under the Gazetted Land (Consequential Provisions) Act. In Taylor-Freeme v The Senior Magistrate, Chinhoyi CC10-14, the Court defined lawful authority as follows:

“'Lawful authority' means an offer letter, a permit and a land settlement lease. The documents attached to the defence outline are not offer letters, permits, or land settlement leases issued by the acquiring authority. They do not constitute 'lawful authority' providing a defence to the charge the applicant is facing.”

The Constitutional Court is of the view, that, the applicants lack the necessary locus standi to bring an application for the rescission of the judgment in CC43-15. They have failed to establish their claim to be beneficiaries under the land reform programme with lawful authority to occupy the land in question which they assert remains vested in the State. It follows, that, they cannot claim to be parties affected by the judgment that they seek to rescind within the meaning of section 24(1)(a) of the Constitutional Court Act.

The absence of locus standi, in this case, leaves the applicants without a paddle. It means that the application they intend to bring in the main matter has no prospects of success.

In the premises, for this additional reason, it is only appropriate that the Court makes a finding, that, it is not in the interests of justice for the applicants to be granted direct access to the Court.

The applicants have not adhered to the Rules of the Constitutional Court. The application they brought to Court was invalid and contrary to the adjectival law of our jurisdiction. Rule 29 of the High Court Rules required that an application be made within a month after a litigant obtains knowledge of the judgment.

They completely ignored its provisions and made no reference to the Rule.

In addition, the applicants have not established that they are parties who were or were affected by the judgment impugned. They have not shown any right that has been adversely affected by the judgment in question. They have in effect no legal interest in the decision at issue. Accordingly, they have no standing to have the judgment set aside.

The absence of locus standi militates against their prospects of success. They have no right to protect or enforce, and, as a consequence, they cannot be granted leave.

The issue of standing allows the Court an opportunity to determine whether a party is entitled to approach the Constitutional Court for appropriate relief. Where a party is disabled due to want of standing, it stands to reason, therefore, that application for leave is still born. It has no prospects of succeeding.

Accordingly, due to the above factors, the application is dismissed with no order as to costs.

Discussing the import of section 169(1) of the Constitution, GWAUNZA JCC…, in Rushesha & Ors v Dera & Ors CC24-17 had this to say:

“The import of this provision needs no elaboration. Only where the Supreme Court determines a constitutional issue, may one appeal to this Court for a final determination.

Because the Supreme Court, in this matter, did not determine any constitutional issue, the decision it rendered was final and not appealable. Since courts are not expected to, and invariably do not, render judgments that cannot be put into effect - which are, in other words, a brutum fulmen - a purported appeal against the effect of a judgment of the Supreme Court on a non-constitutional issue is, in reality, an appeal envisaged in section 169(1) of the Constitution.

That is, a final judgment that is not appealable no matter how well disguised any such purported appeal may be.

It does not escape notice, that, in seeking to have the Supreme Court judgment overturned, under the guise of an appeal to this Court, the appellants are, in effect, attempting to revive, and reinstate, the judgment of the High Court, which was in their favour. What is sought would be both manifestly irregular, and bad at law.”