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 Rule 21(2) of the Constitutional Court
Rules S.I.61/2016 (“the Rules”).
The
applicant intends to approach the 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
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 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
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.
FACTUAL
BACKGROUND
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 Act. 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 Act. 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 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 Act infringes on his fundamental rights and was therefore
invalid. The questions the applicant requested the trial magistrate
to refer to the 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 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
08 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 75(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 Court, especially
where access to the 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.
THE
LAW AND THE FACTS
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 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
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.”
(the underlining is for emphasis)
This
provision must be read with Rule 24 of the 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 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) at 566B-567A. 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.”
(the underlining is for emphasis)
Regarding
the procedure under section 175(4) of the Constitution, the Court in
Nyagura
v Ncube
N.O. and Ors
CCZ7/19, at pp9-10 of the cyclostyled judgment, 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 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 CCZ16/19,
the Court also explained the importance of the procedure under
section 175(4) of the Constitution at p10 of the cyclostyled
judgment:
“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 overemphasised. 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
the Williams
case supra
at 568C-F:
“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. gubbaycj
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.” (the
underlining is for emphasis)
Section
8 of the Act 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…
.” (the bold italics is for emphasis)
Implicit
from a reading of the charge sheet is that the applicant was charged
under section 8(1) of the 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 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 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
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 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 Act, the determination of the
question becomes irrelevant. Whether or not the State proves the case
is of no importance to the Court.
The
question regarding the constitutionality of section 8(6) of the 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) 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 Act without the need to resort to
the
constitutionality of section 8(6) of the 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 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 Court, for the 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 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 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 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 Court to pronounce on the constitutionality
of section 8(6) of the 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 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 Act is unconstitutional.
The
alleged vagueness of section 8(6) of the 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.
DISPOSITION
In
the result, it is ordered as follows -
“The
application is dismissed with no order as to costs.”
GOWORA
JA: I agree
HLATSHWAYOJA:
I agree
Makombe
and Associates,
applicant's legal practitioners
National
Prosecuting Authority,
second respondent's legal practitioners
