Before
CHIDYAUSIKUCJ, In Chambers:
In
this Chamber application the applicant seeks an order to depart from
the Supreme Court Rules in regard to the set down of a Constitutional
Court application made in terms of s24(1) of the Constitution of
Zimbabwe (hereinafter referred to as “the Constitution”).
In
other words, this is an application for the hearing of the Court
application on an urgent basis.
Both
counsel agree the matter is urgent.
I
accept that the matter is urgent. I, however, do not accept that the
matter should be set down because the Constitutional Court
application is fatally defective in that it does not comply with s24
of the Constitution.
Section
24 of the Constitution is peremptory.
This
Court has no discretion to condone a departure from compliance with
s24 of the Constitution. Consequently failure to comply with the
procedure set out in s24 of the Constitution is fatal to any Court
application made in terms thereof.
Although
the Court application does not, as it should, state explicitly that
it is being made in terms of s24(1) of the Constitution, it is quite
clear from the papers that it is being made in terms of that
subsection.
In
my view, the applicant cannot proceed in terms of s24(1).
The
Court application arises from proceedings in the magistrate's court
and the applicant should have proceeded in terms of s24(2) of the
Constitution. Put differently, the Court application should have come
to the Supreme Court by way of referral in terms of s24(2) as opposed
to a direct application in terms of s24(1) of the Constitution.
The
relevant part of s24 of the Constitution provides as follows:
“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 provisions 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 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).
(4)
The Supreme Court shall have original jurisdiction -
(a)
to hear and determine any application made by any person pursuant to
subsection (1) or to determine without a hearing any such application
which, in its opinion, is merely frivolous or vexatious; and
(b)
to determine any question arising in the case of any person which is
referred to it pursuant to subsection (2); and may make such orders,
issue such writs and give such directions as it may consider
appropriate for the purpose of enforcing or securing the enforcement
of the Declaration of Rights:
Provided
that the Supreme Court may decline to exercise its powers under this
subsection if it is satisfied that adequate means of redress for the
contravention alleged are/or have been available to the person
concerned under other provisions of this Constitution or under any
other law.”
Thus
s24 of the Constitution is very explicit in the following two
respects -
(1)
a party alleging violation of a guaranteed Constitutional right can
approach the Supreme Court directly in terms of s24(1); and
(2)
if the alleged violation of the guaranteed right has arisen in any
proceedings in the High Court or in any court subordinate to the High
Court, the Supreme Court can only adjudicate on the matter upon
referral by the lower court in terms of s24(2).
Thus,
when a matter is before the High Court or any court subordinate to
the High Court, such as the magistrate's court as in this case, the
question of the contravention of the guaranteed right should be
referred to the Supreme Court by the court mero
motu or
at the instance of any one of the parties to the proceedings. That
Constitutional question cannot be brought to the Supreme Court by way
of an application in terms of s24(1) of the Constitution.
Section
24(3) of the Constitution expressly prohibits that.
If
the lower court fails to act mero
motu or
refuses upon application to refer the matter to the Supreme Court for
reasons other than those permitted under s24 of the Constitution, an
applicant is then entitled to approach the Supreme Court in terms of
s24(1). See Martin
v Attorney-General 1993
(1) ZLR 153 (S).
Section
24(3) of the Constitution specifically prohibits the making of an
application in terms of s24(1) in respect of matters arising in any
proceedings in the High Court or in any court subordinate to the High
Court.
This
Court has drawn the attention of legal practitioners to this
provision in a number of cases.
MALABA
JA (as he then was) dealt with this issue in some detail in the case
of Morgan
Tsvangirai v Robert Gabriel Mugabe and Anor SC84/05.
The learned JUDGE OF APPEAL had this to say at pp10-12 of the
cyclostyled judgment:
“There
are, however, two separate procedures prescribed in ss24(1) and 24(2)
of the Constitution by which redress of a contravention of the
Declaration of Rights may be sought from the Supreme Court.
In
this case the question is whether the applicant ought to have used
the procedure prescribed in terms of s24(2) for the enforcement of
the protection of the rights he claimed were contravened in relation
to him.
In
Mandirwhe
v Minister of State 1986
(1) ZLR 1 BARON JA said that compliance with the procedure prescribed
in s24(2) of the Constitution was mandatory where there was
litigation in progress and the determination of the question as to
the contravention of the Declaration of Rights by the Supreme Court
had a bearing on the decision by the High Court or the court
subordinate to it on the matter in dispute in the proceedings in that
court.
The
learned JUDGE OF APPEAL said at 7F-8D:
'The
purpose of s24 is to provide, in a proper case, speedy access to the
final court in the land. The issue will always be whether there has
been an infringement of an individual's fundamental rights or
freedoms, and frequently will involve the liberty of the individual;
constitutional issues of this kind usually find their way to this
Court, but a favourable judgment obtained at the conclusion of the
normal, and sometimes very lengthy, judicial process could well be of
little value. And even where speed is not of the essence there are
obvious advantages to the litigants and to the public to have an
important constitutional issue decided directly by the Appellate
Division [now the Supreme Court] without protracted litigation.
Subsection
(1) contemplates the situation in which it is clear from the outset
that the existence of a remedy depends on whether there has been (or
is likely to be) a contravention of the Declaration of Rights, when
the person alleging to be aggrieved is given the right to go direct
to the Appellate Division.
Subsection
(2) deals with a different situation; it contemplates that
proceedings have been commenced in the General Division [now the High
Court] or in a subordinate court in circumstances in which it was not
anticipated that the question of a contravention of the Declaration
of Rights would necessarily arise, since otherwise one expects subs
(1) to be invoked. The question having arisen, the subsection
provides a speedy procedure for the determination by the Appellate
Division of, in effect, a constitutional point of law without the
necessity first to conclude the trial in the court of first instance
and to come to this Court by way of appeal.
When
the question is referred to this Court, the proceedings are merely
interrupted; this Court answers the question but the matter must be
concluded in the court a
quo.
The subsection does not authorise the proceedings to be transferred
to this Court.'
Section
24(2) of the Constitution only applies when there is a question
arising in the proceedings in the High Court or in the court
subordinate to the High Court.”
The
learned JUDGE OF APPEAL went on to explain in some detail what
constitutes a question arising in proceedings. The following is what
he said at pp12-13 of the judgment:
“The
question is whether there were proceedings in the High Court at the
time that (the) question as to a contravention of the Declaration of
Rights arose.
My
view of the facts is that I must answer the question in the
affirmative.
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 s24(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 Ch.D 749 at 753; Mundy
v the Butterley Co Ltd [1932]
2 Ch.D 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 s24(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.”
The
judgment in Tsvangirai's
case
supra
was
followed in Dr
Daniel Shumba and Ano v The Zimbabwe Electoral Commission and Ano
SC11/08
where, after referring to the above passage of MALABA JA, I had this
to say at p15 of the cyclostyled judgment:
“Thus,
it would appear from Tsvangirai's
case
supra
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.”
The
facts of this case are that the applicant was placed on remand by the
fifth respondent. The Court takes judicial notice of what constitutes
a remand.
It
is the first formal procedure by a court to commence a criminal
trial. There has to be a sufficient legal basis for a court to place
an accused person on remand.
The
applicant contends that there was no legal basis to place her on
remand.
She
makes the following averment in para 6 of the founding affidavit:
“(The
fifth) respondent is Mishrod Guvamombe, the Provincial Magistrate at
Rotten Row Magistrates Court who is cited herein in his official
capacity as the magistrate who I believe unlawfully purported to
remand me in custody without considering the unlawful circumstances
that led to my appearance before him. His address for service is care
of Rotten Row Magistrates Court, Harare.”
The
applicant cites the fifth respondent in his official capacity as the
person who presided in proceedings as a result of which the applicant
was remanded in custody. The applicant contends that remanding her in
custody was unlawful and violated her constitutionally guaranteed
right.
On
these facts, clearly the question of the alleged violation of the
applicant's constitutional guaranteed rights, in particular
the allegation of unlawful remand, arises from the proceedings in the
magistrate's court before the fifth respondent.
The
argument by the applicant's counsel that the issue of the
contravention of the Declaration of Rights was not specifically
raised
during those proceedings is simply untenable. Indeed a similar
argument was raised in Tsvangirai's
case
supra
and
was dismissed by this Court.
Thus,
quite clearly the Constitutional application should have been brought
to this court by way of referral in terms of s24(2) of the
Constitution and failure to do so is fatal to the application.
As
I have already stated, the parties are in agreement that this matter
is urgent. Mr Machaya
had
indicated that while he accepted that the matter was urgent, he had
intended to raise the issue of non-compliance with s24 of the
Constitution at the actual hearing of the Constitutional Court
application.
The
applicant's counsel indicated that they would prefer the matter to
be set down before the full Constitutional Court and the issue of the
non-compliance with s24 of the Constitution be determined then.
In
my view, following that course would not be in the best interest of
the applicant as that would lead to further unnecessary delay in the
determination of the issues that she raises.
The
previous decisions of this Court on this point are very clear and
setting this application down before a full Constitutional Court is
an exercise in futility.
Justice
will not be served by following a road that leads nowhere.
Indeed,
I would have considered setting down the matter in the Constitutional
Court for determination of the issue if the applicant's counsel had
wished to argue that both Tsvangirai's case
supra
and
Shumba's
case
supra
were
wrongly decided.
However,
that is not his stance.
The
applicant's counsel admitted that he has not read the above
judgments. He did not ask for an opportunity to familiarise himself
with those judgments and then reconsider his position.
Given
this attitude, setting this matter down for argument before the full
Constitutional Court will be, as I have already stated, an exercise
in futility and will cause a further delay in the finalisation of the
applicant's search for a determination by this Court.
If
the applicant wishes this matter to be determined by the Supreme
Court she should proceed in terms of s24(2) and not s24(1).
It
is a matter of regret that an opportunity to determine this
application on an urgent basis has been squandered by the crass
incompetence and sheer ineptitude of the applicant's
legal practitioners, who do not appear to have taken the trouble
to peruse the provisions of s24 of the Constitution before committing
pen to paper and drafted this application.
In
my view, the best way forward is to dismiss this Chamber application
and hopefully the applicant's legal practitioners will familiarise
themselves with the provisions of s24 of the Constitution and the
judgments of this Court before advising the applicant on the best
course to follow.
Before
concluding, I wish to make the following observation.
I
was advised from the Bar, following my enquiry, that the applicant
has not received proper medical examination despite Dr Frances Ann
Lovemore's affidavit that the applicant should be examined in
appropriate medical circumstances.
Doctor
Lovemore had this to say in para 3 of her affidavit:
“3.
I duly compiled an affidavit setting out my findings following the
examination and this is attached hereto as Annexure 'E'.
The
facilities at Chikurubi were rudimentary and I could not carry out
procedures requiring investigations where one needs equipment such as
x-rays. In addition, there was neither water nor electricity at the
facility where I examined the applicant.
In
my professional view, it is absolutely crucial that the applicant be
availed further medical investigations at a medical facility that is
properly equipped with back-up power and investigation facilities
such as the Avenues Clinic.
From
a medical point of view, I am extremely concerned that the applicant
has not been allowed to attend at (the) Avenues Clinic for these
further medical investigations and treatment and if permanent
physical harm is to be minimised, particularly to her feet and
general health, it is imperative that she be given access to these
medical facilities without delay, and that she thereafter be dealt
with as recommended by medical personnel on all issues associated
with her health.”
The
applicant should be afforded appropriate medical attention as a
matter of urgency.
Mr
Machaya
from
the Attorney-General's Office has undertaken to assist in the
facilitation of this.
The
Chamber application is dismissed.
The
applicant should comply with the provisions of s24 of the
Constitution before this matter can be set down as a Constitutional
application. There will be no order as to costs.
Mtetwa
& Nyambirai,
applicant's legal practitioners
Office
of the Attorney-General,
respondents' legal practitioners
