GUVAVA
JA:
(1)
This
is an appeal against the entire judgment of the High Court sitting
at Masvingo dated 13 March 2019. In this case the court a
quo
granted a declaratory order sought by the 1st
respondent in the following terms:
“The
National Peace and Reconciliation Commission that is established in
terms of section 251 of the Constitution shall have a tenure
of life of ten (10) years deemed to have commenced on the 5th
of January 2018 with the gazetting as law of the National Peace and
Reconciliation Act [Chapter
10:32].”
Aggrieved
by the order the appellants have appealed to this court for relief.
BACKGROUND
FACTS
2.
The 1st
respondent filed an application for a declaratory order on the 8th
October 2018 before the court a
quo
in
terms of section 85(1)(a) of the Constitution of Zimbabwe, 2013. The
1st
respondent grounded her application on an alleged violation of
section 56(1) of the Constitution of Zimbabwe, 2013. She alleged that
her fundamental right to equal protection of the law had been
violated by the conduct of the appellants who had failed to enact the
NPRC Act in time and thus curtailed the life of the commission by
five years. As a result of the alleged breach she sought an order
that it be declared that the 2nd
respondent's life tenure of ten years be deemed to have commenced
from the 5th
of January 2018 when the NPRC Act was promulgated into law.
3.
In the application the 1st
respondent's founding affidavit was divided into three parts. The
first part related to the history and formation of the 2nd
respondent. The 1st
respondent averred that the Constitution of Zimbabwe Amendment
(No.20) Act 2013 ('the Constitution')
introduced a number of key and revolutionary changes chief amongst
them being the creation of several commissions. It was the 1st
respondent's argument that the 2nd
respondent was one of the commissions that was created. It was to
operate for not more than ten years and had the mandate, in the main,
of investigating human rights violations that were alleged to have
occurred in 2008 in Zimbabwe.
4.
The 1st
respondent further averred that the Government of Zimbabwe had
unilaterally amended section 251 of the Constitution by failing to
ensure that the 2nd
respondent was established as soon as possible after the coming into
operation of the Constitution thereby resulting in the Commission
only being established after the NPRC Act was enacted into law on the
5th
of January 2018. This was five (5) years after the coming into
operation of the Constitution. It was the 1st
respondent's contention that this resulted in the 2nd
respondent having an existence of only five (5) years that is to
August 2023. It was also the 1st
respondent's averment that the failure by the Government of
Zimbabwe to ensure that the effective date of the establishment of
the 2nd
respondent immediately after the coming into effect of the
Constitution amounted to a breach of her fundamental right to equal
protection of the law as enshrined in the Constitution under section
56.
5.
The second part of the founding affidavit dealt with the issue of
whether or not the 1st
respondent had locus
standi
to make the application and the legal basis upon which the
application was before the court a
quo.
The 1st
respondent averred that she was a national executive member of the
Movement for Democratic Change (MDC) Alliance for Mashonaland West.
She further averred that she was making the application in terms of
section 85(1)(a) of the Constitution, acting in her own interest, to
ensure peace and reconciliation in Zimbabwe. She further alleged
that her rights in terms of section 56(1) of the Constitution had
been violated. She thus alleged that she had the requisite interest
in the matter to bring the application in terms of section 85(1)(a)
of the Constitution.
6.
The last part of the founding affidavit dealt with an alleged
ordeal that the 1st
respondent and her family suffered in the hands of state security
agents. She alleged that after the 2008 harmonized election,
violence erupted in Zimbabwe and left many (including the 1st
respondent
and her family) displaced or dead. As a result of this violence, the
1st
respondent and her husband allegedly fled from their home in
Mashonaland West to Harare and stayed at Harvest House and at other
MDC Alliance activists homes. The 1st
respondent further alleged that she and her husband and other MDC
activists were taken to Braeside Police Station and were detained for
fifty-five (55) days. It was in the hands of the said police officers
that the 1st
respondent, her husband and other activists were subjected to torture
and abuse.
7.
The 1st
respondent further alleged that they were subsequently taken to Ahmed
House where they were charged with terrorism, sabotage and
insurgence. The 1st
respondent and others were taken to Harare Magistrates Court where
they were remanded in custody. It was also alleged that the 1st
respondent, her husband and other activists were released after one
Jestina
Mukoko,
successfully filed an application to the Constitutional Court and the
Court ordered that they be released as their original arrest was
unlawful.
It
was on this basis that the 1st
respondent sought a declaratory order that the 2nd
respondent has life tenure with effect from 5 January 2018 to 5
January 2028 so that it could look into the alleged atrocities
alleged in the founding affidavit.
8.
Initially, the appellants had only opposed the application based
on a preliminary objection to the application without addressing the
merits of the matter. The objection was to the effect that the
declaratory order sought by the 1st
respondent was incompetent at law as she sought to amend the
Constitution through a court order. The court
a
quo
however
directed the appellants to file an opposing affidavit on the merits.
9.
In opposing the application, the appellants denied the averments
made by the 1st
respondent in her founding affidavit with regards to the
establishment of the 2nd
respondent.
Further, it was denied that the appellants amended section 251 of
the Constitution as the 2nd
respondent was established and was in existence from the effective
date when the Constitution was promulgated notwithstanding the
absence of the NPRC Act.
10.
In dealing with the application, the court a
quo
dismissed the appellants preliminary objection. On the merits, the
court invoked various techniques of statutory interpretation and
found that an interpretation of section 251(1) of the Constitution
showed that reference to ten (10) years was in relation to the life
of the 2nd
respondent after the effective date and not the period within which
it had to be established. With that, the court held that the 2nd
respondent ought to have been established immediately after, or as
soon as practicable, after the effective date. As a result of this
interpretation, the court found that the 1st
respondent was entitled to the declaratory order sought and granted
the order that I have already set out above.
SUBMISSIONS
BEFORE THIS COURT
11.
Mr Chimiti,
for the appellants, motivated the appeal, in the main, on the basis
that the court a
quo
erred in granting the declaratory order as it had the effect of
amending section 251(1) of the Constitution.
12.
Before the 1st
respondent replied to the submissions by Mr Chimiti,
the Court directed Mr
Biti,
counsel for the 1st
respondent,
to address it on two issues that were not apparent from the judgment
made by the court a
quo.
The first issue related to the manner in which the 1st
respondent's right to equal protection of the law was violated.
Secondly, whether the court a
quo
made a determination, that such right was indeed violated or was in
danger of being violated.
13.
Mr Biti
submitted that the 1st
respondent made the application in terms of section 85(1)(a) of the
Constitution on the basis that her fundamental right in terms of
section 56(1) had been violated. He further submitted that in making
the application, the 1st
respondent's right also emanated from section 324 of the
Constitution and as such, the right had to be protected in terms of
section 56(1). He however conceded that the court a
quo
did not make a finding that the fundamental right had been violated.
He submitted that since the court had granted the declaratur
sought, it could be assumed that the court had found that the 1st
respondent's rights had been or were likely to be violated. It was
also his submission that once the court found that the appellant had
acted unlawfully then, it was incumbent upon the court to grant the
declaratur
as the court could not ignore a constitutional invalidity in terms of
section 324 of the Constitution.
Mr
Biti
further argued that the argument by the appellants that the 2nd
respondent came into effect after the promulgation of the
Constitution in 2013 was devoid of merit as such argument meant that
the life period of the Commission was curtailed by five (5) years.
ANALYSIS
14.
It appears to me from the submissions made that the
determination of a single issue will potentially have the effect of
resolving the matter. The issue for determination by this Court is
whether or not the court a
quo
erred in granting the declaratory order sought by the 1st
respondent without first finding whether or not the 1st
respondent's rights in terms of section 56(1) of the Constitution
had been violated.
15.
It is quite apparent from the founding affidavit by the 1st
respondent that she approached the court in terms of section 85(1) of
the Constitution seeking a declaratory order on the basis that her
constitutional right enshrined in section 56(1) had been violated. At
paragraph 26 of the founding affidavit, the applicant stated thus:
“I
therefore contend that my Constitutional right to equal protection of
the law as protected by section 56(1) of the Constitution has been
breached by appellant's actions in failing to ensure that the
Commission was in existence and would operate effectively for the ten
(10) years envisaged in section 251 of the Constitution.”
At
para 78 the applicant again reiterates that she is bringing the
application in terms of section 85(1)(a) of the Constitution on the
basis that her rights under section 56(1) of the Constitution have
been violated. It is therefore necessary at the outset to establish
whether or not the applicant approached the court correctly in terms
of section 85(1)(a) and thereafter assess whether or not the court
found that her rights had been violated.
16.
Section 85(1) of the Constitution provides:
“Any
of the following persons, namely:
(a)
any person acting in their own interests;
(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.” (emphasis is my own)
17.
A proper interpretation of the above provision is that once a
person approaches a court on the basis of section 85(1)(a) of the
Constitution, the court must make a determination on the following
issues:
(i)
That the person approaching the court has an interest in the matter;
and
(ii)
That the person is alleging that a fundamental right in Chapter 4
has been, is being or is likely to be violated in respect to her.
See
Meda
v Sibanda & Anor
2016 (2) ZLR 232 (CC) at 263.
18.
A reading of the judgment of the court a
quo
shows that the court did not make a determination on the above
issues. The court a
quo
clearly did not consider that the case before it was a section 85(1)
application which required that the 1st
respondent satisfies the court that she was properly before it and
that she had the requisite interest. This point was emphasized in
Loveness
Mudzuru & Anor v Minister of Justice, Legal & Parliamentary
Affairs N.O. & 2 Ors
CCZ
12/2015 where MALABA DCJ (as he then was) stated at p9 of the
cyclostyled judgment that:
“The
person claiming the right to approach the court must show on the
facts that he or she seeks to vindicate his or her own interest
adversely affected by an infringement of a fundamental right or
freedom. The infringement must be in relation to himself or herself
as the victim or there must be harm or injury to his or her own
interests arising directly from the infringement of a fundamental
right or freedom of another person.”
19.
On the basis of the above, I find with respect, that the court a
quo
grossly misdirected itself in failing to consider the cause of action
of the case that was before it. The full judgment of the court a
quo
makes no reference at all to the basis upon which the application was
made. There is no reference to the application being a section 85(1)
application. Instead, the court a
quo
launched into the rules of statutory interpretation without applying
its mind to the case before it or making any specific finding of
whether or not the applicant before it had the requisite interest to
launch the application.
20.
It is of importance to note that in her founding affidavit the 1st
respondent averred that her legal interest in bringing the
application was founded on the basis of a violation of a fundamental
right under section 56(1) of the Constitution.
It
is trite that the interest that an applicant must allege in section
85 of the Constitution is a legal interest in the matter not just
that of a busy body who wants to poke their nose into any matter that
does not concern them. I note in passing that the court made no
finding whether or not the 1st
respondent was properly before it.
21.
Turning to the crux of the matter before me it is my view that the
matter turns on a determination of whether or not the court made a
finding that the 1st
respondent's rights under section 56(1) had been violated. It is
trite that where a litigant approaches the court under section 85(1)
alleging that her rights have been violated it is incumbent upon the
court to
make a
determination
on this point. In other words, a section 85(1) application requires
the applicant to allege and prove an infringement of his or her
fundamental right. The making of such a determination is what
triggers the remedy that the court will eventually make in order to
grant relief to the applicant. In other words, a declaratory order
made in terms of section 85(1) of the Constitution cannot be made in
the air. It must be based upon a finding that the applicant's
rights had been or were likely to be breached.
Section
56 of the Constitution upon which the 1st
respondent founded her claim reads as follows:
“56
Equality and non-discrimination
(1)
All persons are equal before the law and have the right to equal
protection and benefit of the law.
(2)
Women and men have the right to equal treatment, including the right
to equal opportunities in political, economic, cultural and social
spheres.
(3)
Every person has the right not to be treated in an unfairly
discriminatory manner on such grounds as their nationality, race,
colour, tribe, place of birth, ethnic or social origin, language,
class, religious belief, political affiliation, opinion, custom,
culture, sex, gender, marital status, age, pregnancy, disability or
economic or social status, or whether they were born in or out of
wedlock.
(4)
A person is treated in a discriminatory manner for the purpose of
subsection (3) if -
(a)
they are subjected directly or indirectly to a condition, restriction
or disability to which other people are not subjected; or
(b)
other people are accorded directly or indirectly a privilege or
advantage which they are not accorded.
(5)
Discrimination on any of the grounds listed in subsection (3) is
unfair unless it is established that the discrimination is fair,
reasonable and justifiable in a democratic society based on openness,
justice, human dignity, equality and freedom.
(6)
The State must take reasonable legislative and other measures to
promote the achievement of equality and to protect or advance people
or classes of people who have been disadvantaged by unfair
discrimination, and —
(a)
such measures must be taken to redress circumstances of genuine need;
(b)
no such measure is to be regarded as unfair for the purposes of
subsection (3).”
22.
Section 56 of the Constitution is a non-discriminatory provision.
It guarantees equality before the law. In other words for a person to
prove a violation under this provision he or she must not only prove
unequal or different treatment but also that others in a similar
position were afforded such protection. In the case of Samuel
Sipepa Moyo v Minister of Local Government, Rural & Urban
Development & 2 Ors
CCZ
6/2016, the court had reason to interpret the meaning and application
of this provision. At p8 of the judgment, the court stated:
“In
order to found his reliance on this provision the applicant must show
that by virtue of the application of a law he has been the recipient
of unequal treatment or protection that is to say that certain
persons have been afforded some protection or benefit by a law, which
protection or benefit he has not been afforded; or that persons in
the same or similar position as himself have been treated in a manner
different from the treatment meted out to him and that he is entitled
to the same or equal treatment as those persons.”
23.
Applying the above to the facts of this case, I take the view
that it was incumbent upon the 1st
respondent to satisfy the court a
quo
that her rights had been or were in danger of being violated and that
others in a similar position had been treated differently. The court
a
quo
was
thus obliged to interrogate the evidence presented a
quo
and make a specific finding that her rights as enshrined in section
56(1) had been or were in danger of being violated. It was only after
making such a finding, that the court could make the order sought by
the applicant before it on the basis that it was granting relief in
terms of section 85 of the Constitution. Firstly, the 1st
respondent in her founding affidavit did not aver that she had
suffered from unequal treatment or differentiation. She did not
allege that she was denied protection whilst others in a similar
position as her had been afforded such protection. Secondly, a
reading of the judgment of the court a
quo
indicates that no finding of this important consideration was made.
This point was conceded by Mr Biti.
Indeed, he would have been hard pressed to argue otherwise as,
nowhere in the judgment, does the court refer either to section 85(1)
or to section 56(1) of the Constitution upon which the application is
founded. A finding on this point would have opened the door for the
relief sought by the 1st
respondent. The court a
quo
thus erred and misdirected itself in this respect.
24.
I was not persuaded by the argument by Mr Biti
that the court should find that in granting the declaratur it must
have found that that there was a violation of section 56(1) of the
Constitution as otherwise it would not have granted the relief
sought. However, it is my view that the matter cannot be resolved in
this way. A reading of the judgment shows that the Court was clearly
not concerned with this issue. Its only concern was interpreting
section 251 of the Constitution. It was also not apparent what law
was applied to make the declaratory order. A declaratory order is
generally made in terms of section 14 of the High Court Act [Chapter
7:06].
The
court a
quo
did not interrogate the requirements for the grant of a declaratory
order in this case. Whatever the basis of the relief granted, it
remained embedded in the mind of the court and was not reduced to
writing.
25.
I was also not persuaded that the court a
quo
correctly applied section 324 of the Constitution on the facts of
this case. The section provides as follows:
“All
constitutional obligations must be performed diligently and without
delay.”
I
come to this conclusion because it was never the 1st
respondent's
case before the court a
quo
that she was approaching the court on the basis of constitutional
invalidity arising from the conduct of Parliament in failing to enact
the NPCR Act with due speed. If that was the 1st
respondent's case she would not have approached the court in terms
of section 85 of the Constitution. An application in terms of section
85(1) relates only to the vindication of an alleged infringement
enshrined in Chapter 4 and not a violation of the Constitution under
section 324.
26.
It has been stated in a number of judgments that an application
stands or falls on its founding affidavit (See Yinus
Ahmed v Docking Station Safaris Private t/a CC Sales SC70/18;
Fuyana
v Moyo
SC54-06;
Muchini
v Adams & Ors
SC47-13;
and Austerlands
(Pvt) Ltd v Trade and Investment Bank Ltd & Ors
SC80-06.)
The 1st
respondent's founding affidavit bases her claim on section 85(1) of
the Constitution alleging a breach of a fundamental right. Her claim
was not based on a failure to comply with a Constitutional provision
as enshrined in section 324. Thus she could not rely on section 324
to procure the relief that she obtained.
27.
Having found that the court a
quo
erred and misdirected itself in failing to find whether or not
section 56(1) of the Constitution had been breached it is not
necessary for this court to determine whether or not the
interpretation given to section 251 of the Constitution was correct.
This issue would only have arisen if the court had found a breach of
section 56(1) of the Constitution.
COSTS
The
matter related to an infringement of fundamental rights. The point
has been made ad
nauseam
in
various decisions in this jurisdiction that access to the courts on
allegations of a breach of fundamental rights should never be impeded
in any way. In my view no order of costs on appeal should be awarded
against the losing party. This will ensure that access to the court,
in Constitutional matters, is not curtailed by issues of costs. In
any event the issue upon which this matter turned was not raised by
the appellants, but by the court itself.
DISPOSITION
28. With
respect, I find that the court a
quo
erred in granting the declaratory order sought by the 1st
respondent. The concession by Mr Biti
that the court a
quo
did not make the necessary determination on whether or not the 1st
respondent's rights under section 56(1) had been, or were in danger
of being violated, was the determining factor in this appeal.
The
decision of the court a
quo
cannot stand and must therefore be vacated.
In
the result, it is accordingly ordered as follows:
1.
The appeal is allowed with no order as to costs.
2.
The judgment of the court a
quo
is hereby set aside and substituted as follows:
“The
application be and is hereby dismissed with no order as to costs.”
GWAUNZA
DCJ: I
agree
BHUNU
JA: I
agree
Civil
Division of the Attorney General's Office,
appellants legal practitioners
Tendai
Biti Law,
1st
respondent's legal practitioners
