Before:
MALABA CJ, In Chambers
AN
APPLICATION FOR AN ORDER OF LEAVE FOR DIRECT ACCESS TO THE
CONSTITUTIONAL COURT
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”).
FACTUAL
BACKGROUND
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.
DETERMINATION
OF THE ISSUES
WHETHER
OR NOT THE APPLICATION IS PROPERLY BEFORE THE COURT
The
applicant intends to bring the substantive application directly to
the 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;…
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) at
236B-D 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 underlining
is for emphasis)
The
determination was reinforced by the Court in Denhere
v Denhere
(nee Marange) and Anor
CCZ9/19
at
p10 of the cyclostyled judgment, 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 underlining is for emphasis)
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.
IS
IT IN THE INTERESTS OF JUSTICE TO GRANT DIRECT ACCESS?
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
CCZ7/18
at
p11 of the cyclostyled judgment 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
CCZ15/19 at p6 of the cyclostyled judgment, 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
CCZ19/17 at p24 of the cyclostyled judgment 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.”
(the underlining is for emphasis)
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
CCZ15/16.
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)
at
paras [40] and [41], 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) at 382j-383a, 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 at pp23-24:
“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 underlining is for emphasis)
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 at 567B-C
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.”
(the underlining is for emphasis)
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 Court cannot inquire into the
final decision of the Supreme Court.
In
Lytton
Investments (Pvt) Ltd
v Standard
Chartered Bank Zimbabwe Ltd and Anor
CCZ11/18, at p22 of the cyclostyled judgment, 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) at p236E.
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 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) at 26D-F 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.
DISPOSITION
In
the result, it is ordered that -
“The
application be and is hereby dismissed with costs.”
MAKONI
JCC: I agree
BERE JCC:
I agree
National
Prosecuting Authority,
second and fourth respondents' legal practitioners
