MAKARAU AJCC:
Introduction
On 31 March 2020, this Court handed down judgment number CC04-20, disposing of two applications made by the first and second respondents against the applicants and the third and fourth respondents under cases number CCZ57/2017 and 58/2017 respectively.
The two applications, filed separately, and on different dates, were brought in terms of section 167(2)(d) of the Constitution as read with Rule 27 of the Constitutional Court Rules 2016, alleging, that, the second applicant had failed to fulfil the obligation to pass Constitutional Bill (No.1) of 2017 in accordance with the Constitution.
The first application was filed in September 2017, before Constitutional Amendment Bill (No.1) of 2017 was presented to the President for assent, whilst the second application was filed in December 2017, after the Bill had been assented to and had been gazetted as an Act of Parliament.
In view of the fact, that, the allegations made in the two applications were the same and raised the same issues for determination, the applications were consolidated and heard as one.
No import was attached to the different legislative stages through which the amendment Bill passed as the singular order that was issued by the Constitutional Court, under judgment number CC04-20, in respect of both applications, reads:
“(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside, for the reason that a two-thirds majority vote was not reached in that House.
(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017, in para 1(a), shall become final.
2. The applicant's allegations, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.
3. The applicant's allegation, that, a two thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.
4. There is no order as to costs.”
The one hundred and eighty days stipulated in paragraph (b) of the order commenced to run on 1 April 2020 and expired on or about 28 September 2020.
The directive in that order was not complied with for reasons that are set out in the applicants founding affidavit.
On 25 September 2020, upon realising that the one hundred and eighty days would expire shortly thereafter, the applicants filed an urgent ex parte chamber application in this Court, securing, on 28 September 2020, a provisional order extending the period and concomitantly further suspending the coming into effect of the order of invalidity of the amendment to a date following the determination of this application.
On 6 October 2020, the provisional order was confirmed with the consent of the parties.
Simultaneously with the urgent ex parte application referred to above, the applicants filed this application, seeking an order for the extension of the 180 days within which the second applicant had to comply with the directive of the court.
The draft order did not seek an extension of the suspension of the order of invalidity of Constitutional Amendment Bill (No.1) of 2017.
The application was set down before us for determination....,.
The Application
In the founding affidavit, the applicants made one material averment.
They averred, that, the judgment of the court, number CC04-20, was handed down one day before a national lockdown was imposed in response to the threat of and to contain the spread of the corona virus.
They further averred, that, the Regulations that were enacted to enforce the lock-down, initially, banned the sittings of the Senate totally as the second respondent was not classified as an essential service provider. It was barred from convening at all for any business.
Later, the Regulations were relaxed to allow the second applicant to convene for business, but, restricted the number who could lawfully attend any one sitting to less than 50 Senators, a number below the requisite quorum for the passing of a Constitutional Amendment Bill.
As a result, the applicants averred, that, the Senate could not sit to comply with the directive of the court within the period stipulated in the order.
Only the first respondent opposed the application.
On 20 October 2020, counsel for the third and fourth respondents wrote to the Registrar of this Court advising that he did not file opposing papers for the third and fourth respondents as they did not intend to oppose the order sought by the applicants.
The letter was a courtesy to the Court.
In addition to opposing the application on its merits, the first respondent raised two preliminary issues:
(i) It was contended, firstly, that, the applicants had no locus standi to procure the relief sought.
It was argued, both in the opposing affidavit and in the oral submissions by counsel, that, the passage of Constitutional Bills in the Senate is, in accordance with the principles of the separation of powers among the three arms of State, the prerogative of the Executive, which is given the function to prepare, initiate, and to implement national legislation by section 110 of the Constitution.
The argument proceeded to urge us to hold, that, the applicants, representing the Legislative organ of State, could not procure the relief sought as they lacked the mandate to initiate national legislation.
(ii) Secondly, it was argued, again in limine, that, the order sought in this application is unconstitutional, as it will offend against the provisions of section 147 of the Constitution.
Section 147 of the Constitution provides, that, upon the dissolution of Parliament, all proceedings pending at the time of dissolution are terminated and every Bill, motion, petition or other business lapses.
It was thus pressed upon us, that, Constitutional Amendment Bill (No.1) of 2017 lapsed when the 8th Parliament was dissolved to make way for the general elections of 2018.
The argument concluded by urging us to find, that, the Bill cannot be legitimately voted into an Act of Parliament by the 9th Parliament which is currently in session.
Regarding the merits of the application, the first respondent argued, that, the Senate had more than twenty sittings between the date of the judgment and the expiry of the stipulated one hundred and eighty days and could have, had it so desired, complied with the order of the Court during any one of these sittings.
The dates of such sittings, and the number of Senators in attendance at each sitting, were given.
It was thus argued, that, the restrictions imposed by the lock down regulations on the business of the Senate were but an excuse for the indifference of the Senate to the court order.
The Issues
The issues that arise for determination in this application are clear cut. Two arise in limine. These are:
(i) Firstly, whether the applicants have locus standi to bring this application; and
(ii) Secondly, whether the order of extension sought in this application is unconstitutional.
On the merits, there is only one issue. This is whether the applicants have made out a case for the extension of paragraph (b) of the order.
I now turn to discuss the issues in seriatim....,.
Whether the Applicants have made out a case for the extension of time within which the Senate is to vote Constitutional Amendment Bill (No.1) in accordance with the Constitution
The applicants case is simple. It is based on facts that are largely common cause.
The order of this Court was handed down on 31 March 2020. A national lockdown, in response to the coronavirus pandemic took effect on 1 April 2020. The Senate commenced sitting on 5 May 2020, after the second applicant was declared to be an essential service. The Regulations in force then did not allow gatherings of more than 50 persons.
On the basis of these facts, the applicants seek for more time within which to comply with the directive.
An application for time within which to comply with an order of court is akin to an application for extension of time within which to comply with a rule of court.
The factors that a court takes into consideration are well known. They include the length of the delay and the reasonableness of the explanation for the delay.
The argument by the first respondent, that the Senate did meet with the requisite quorum on a number of days, loses sight of the fact, that, the relevant Regulations did not permit such meetings, and, any business transacted at such meetings risked being challenged as being in violation of the law.
This court cannot recognise that Parliament could have met in violation of the law.
In my view, the delay by the applicants was not inordinate and the explanation for the delay is reasonable.
The extension must be granted.
Regarding costs, there appears to be no justification for departing from the general rule against making an order of costs in constitutional matters. None has been pressed upon us by the applicants.
Disposition
In view of the delay that has already ensued in deciding the fate of Constitutional Amendment Bill No.1 of 2017, it is not desirable that the uncertainty in the supreme law remains for much longer. A period of ninety days will be sufficient to enable the second applicant to put its house in order regarding the proper constitutional procedures to adopt in the circumstances of this matter.
Accordingly, I make the following order:
1. The application is granted.
2. The period referred to in paragraph (b) of the order handed down on 31 March 2020 is extended by a further ninety days from the date of this order.
3. Each party shall bear its own costs....,.
GOWORA AJCC:
I have perused the judgment of my learned sister MAKARAU AJCC. I do not intend to set out the facts pertaining to the application before the court as she has set those facts out succinctly.
I am constrained to disagree with my learned sister judge on certain aspects of the application and the conclusions she has reached in respect of the same.
I agree with her conclusions as to the jurisdiction of the court as constituted to hear the matter. In my view, her conclusions, as to the jurisdiction of the court as constituted, is in accordance with the provisions of section 166 of the Constitution.
I turn to the substance of the matter.
The first respondent raised two points in limine:
(i) The first being, that, the applicants herein lack the requisite the locus standi to bring the application.
(ii) The second point in limine raised was to the effect, that, the application is itself unconstitutional.
MAKARAU AJCC found, that, the applicants do in fact have the necessary locus standi to bring the application and I have no further comments to make on that issue.
As to the second point, my learned sister dismissed the challenge to the constitutionality of the application and went on to find, that, the applicants had made out a case for the grant of the application.
It is the finding of the constitutionality of the application, and the consequential grant of the order sought, that I respectfully disagree with.
In my respectful view, the application is unconstitutional, as argued, and the grant of the application consequent thereto cannot be sustained.
My reasons for dissenting with my learned sister are the following.
It is not in dispute, that, on 31 March 2020, the Constitutional Court, sitting as a full Bench, declared that the passing of Constitutional Amendment Bill No.1 of 2017, by the Senate, on 1 August 2017, was inconsistent with the provisions of the Constitution.
The proceedings by the Senate, of the day in question, were set aside.
The Senate was directed to conduct a vote in accordance with the procedure for amending the Constitution within one hundred and eighty days from the date of the order.
This was not done; which is the reason for the application to court for an extension of time to conduct the vote….,.
In my view, the order of 31 March 2020 is not an issue for determination before the court. What is critical is the effect that section 147 of the Constitution has on the application before us.
In its judgment of 21 March 2020, the full Bench found, as a fact, that, Amendment Bill Number 1 had not been passed in accordance with the requirements of the Constitution. The required number of votes to pass the Bill were short resulting in the Bill failing to pass the test. As a result, the Bill did not become law.
The first respondent has raised, as a point in limine, the application of section 147 of the Constitution to this application.
He contended, that, as the Bill never became law, in essence, it must be considered as a pending Bill under section 147 of the Constitution.
On a proper construction of the section, once it is accepted, that, it was pending; did not pass into law; it therefore stands to reason, so the argument goes, that, the Bill must have lapsed when Parliament was dissolved in July 2018.
It is common cause, that, Parliament was dissolved in July 2018 to make way for general elections which took place on 31 July 2018.
Section 147 of the Constitution, which the first respondent relies on the argument that the order sought is unconstitutional, reads as follows:
“147 Lapsing of Bills, motions, petitions and other business on dissolution of Parliament
On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition, and other business lapses.”
As a result of the declaration of invalidity by this Court, Constitutional Amendment Bill No.1 never became law. By parity of reasoning, it would then revert to a Bill pending before the Senate for the conduct of a proper vote as directed by this court.
It was inevitably affected by the dissolution of Parliament in that it automatically lapsed.
I am not dwelling on when the order was granted. It was invalid by process of law from not having been passed in accordance with the Constitution. Thus, there is no Bill to debate and vote on. The Senate would have to commence the process afresh following the setting aside of the proceedings by which the invalid votes were garnered.
Section 147 of the Constitution must be given effect to.
There is no Bill left to debate. Any attempt by the Senate to debate and vote a Bill that has lapsed, by operation of law, is in violation of the Constitution itself. The Constitution protects itself.
Section 2 of the Constitution tells us so in clear and unequivocal terms. It provides:
“2 Supremacy of Constitution
(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.
(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of government at every level, and must be fulfilled by them.”
On a proper construction of the above section, if Senate is availed the opportunity to sit, debate, and vote on a Bill that is no longer in existence would be to violate the Constitution itself.
A vote on a Bill that has been declared, by section 147 of the Constitution, as having lapsed by virtue of the dissolution of Parliament, would, in my view, be inconsistent with section 147 of the Constitution.
I wish to quote, with respect, the view expressed by PATEL JA in Judicial Services Commission v Zibani & Ors SC68-17 to the following effect:
“Supremacy of the Constitution
It is axiomatic that Zimbabwe is a constitutional in contradistinction to a parliamentary democracy: see Biti & Anor v Minister of Justice Legal and Parliamentary Affairs & Anor 2002 (1) ZLR 177 (S) at 190A-B. This fundamental principle and its concomitant legal ramifications and obligations are codified in section 2 of the Constitution as follows:
'(1) This Constitution is the supreme law of Zimbabwe, and, any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.
(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of government at every level, and must be fulfilled by them.'
Section 3 of the Constitution enshrines the founding values and principles of Zimbabwe. In its relevant parts it provides that:
'(1) Zimbabwe is founded on respect for the following values and principles —
(a) Supremacy of the Constitution;
(b) The rule of law;
(c) Fundamental human rights and freedoms;
(d)…,.;
(e)…;
(f)…;
(g)…;
(h) Good governance; and
(i)….;
(2) The principles of good governance, which bind the State and all institutions and agencies of government, at every level, include —
(a)…;
(b)…;
(c)…;
(d)…;
(e) Observance of the principle of separation of powers;
(f) Respect for the people of Zimbabwe, from whom the authority to govern is derived;
(g) Transparency, justice, accountability and responsiveness;
(h)…;
(i)…;
(j)…;
(k)…; and
(l)….'
By virtue of the foregoing principles, the Constitution demands strict compliance with its substantive provisions and all laws enacted under its aegis. It also demands meticulous adherence to the procedures and processes prescribed under the Constitution. These principles bind everyone, including the appellant, which, as an executive institution, is expressly bound to comply with the substantive and procedural requirements of the Constitution.”
When one has regard to the comments of PATEL JA above, it becomes obvious, that, the Constitution demands strict compliance with all its provisions and one such provision is section 147.
It impacts on procedures in Parliament.
Where processes demanded of Parliament are found not to be in strict adherence with the requirements of the Constitution, then, those processes must be adjudged as having been inconsistent with the Constitution.
CURRIE & De WAAL, The Bill of Rights Handbook 6ed…, in discussing section 2 of the South African Constitution, an exact replica of section 2 of our own Constitution, make the observation that:
“The first principle, constitutional supremacy, dictates, that, the rules and principles of the Constitution are binding on all branches of the State and have priority over any other rules made by government, the legislature, or the courts. Any law or conduct that is not in accordance with the Constitution, either for procedural or substantive reasons, will therefore not have the force of law. Section 2 of the Constitution gives expression to the principle of Constitutional supremacy. It states, that, the 'Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.'”
The process by which the Senate passed Amendment Bill No.1 of 2017 was found, by the Court, as having been in violation of the strict requirements of the Constitution.
In this instance, to order the Senate to conduct “a vote on Bill No.1 of 2017” would be to order, as a court, the doing of conduct which the Constitution itself has proscribed as being inconsistent with its own provisions.
In effect, it would be a negation of the principle of constitutional supremacy.
There is no Bill to debate or conduct a vote on.
Section 2(2) of the Constitution requires that all persons, including judicial institutions, observe and abide by the obligations set out in the Constitution.
Therefore, to the extent, that, the court would be inclined to grant an order extending the time frame in which the Senate is given leave to debate a Bill that is no longer in existence by virtue of section 147 of the Constitution would be to give effect to an order that is inconsistent with section 147 of the Constitution.
This, in my view, is impermissible.
Turning to the issue of the finality of orders of the court, I would not disagree with my learned sister on her conclusions.
The orders of the court are final.
However, in this instance, the order of 31 March 2020, by this court, is not an issue for debate. Neither party sought to depart from the order. The applicants approached the court seeking an indulgence for the due performance by them of certain directions emanating from the order in question.
The contention, on the part of the first respondent, as I understand it, is that the direction can no longer be given effect to by virtue of the lapse of the Bill by operation of law. The order is not being interfered with in any manner. It is extant. The time-frame within which the applicants could have availed themselves of the lifeline given to them under the order having elapsed, and the Bill itself having lapsed, the direction cannot be given effect to.
This application cannot resuscitate something that has expired.
The first respondent has not touched on the order itself. All that has been argued is that the indulgence sought can no longer be granted due to the provisions of section 147 of the Constitution. Therefore, the contention made is that the grant of the indulgence is itself inconsistent with the Constitution.
I must agree with the first respondent.
The order of invalidity, as regards the Bill cannot be ignored. This is the first premise in the consideration of the application. It was adjudged as being invalid. That said, the Bill cannot be resuscitated through this application. It lapsed by operation of law. The grant of the application, in these circumstances, would be inconsistent with the Constitution. A refusal to grant the application has no impact on the order of 31 March 2020.
For the above reasons, it is my view, that, the application should be dismissed with no order as to costs....,.
PATEL AJCC:
I have read and carefully considered the lead judgment and dissenting opinion of my learned sisters, MAKARAU AJCC and GOWORA AJCC, respectively.
I find myself in the invidious position of having to agree with both, substantially in respect of the former, and partially as regards the latter.
The critical issue in contention concerns the second point in limine taken by the first respondent, to the effect, that, the order sought in this application is unconstitutional as it will offend the provisions of section 147 of the Constitution.
Section 147 of the Constitution stipulates that:
“On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses.”
In dismissing the second point in limine, MAKARAU AJCC concludes that “the constitutionality of the order sought in this application does not arise for determination in this matter, as, any such determination will entail revisiting and reviewing the earlier decision of this Court made in the same matter.”
On the other hand, GOWORA AJCC takes the position, that, the Constitution Amendment Bill (No.1) of 2017 “was inevitably affected by the dissolution of Parliament, in that, it automatically lapsed” and that “there is no Bill to debate and vote on.”
The learned judge accordingly concludes that “the Bill cannot be resuscitated through this application. It lapsed by operation of law. The grant of the application, in these circumstances, would be inconsistent with the Constitution.”
I cannot but agree with GOWORA AJCC, that, the supremacy of the Constitution, as enshrined in section 2 of the Constitution, dictates that any law, practice, custom, or conduct that is inconsistent with the supreme law is invalid to the extent of the inconsistency.
The ineluctable consequence of this principle, is that, anything done by Parliament that is contrary to the provisions of the Constitution, including section 147 of the Constitution, would be invalid and unconstitutional to the extent of such inconsistency.
Nonetheless, in the particular circumstances of this matter, despite the clear substantive implications of section 2 of the Constitution, I am inclined to concur with the predominantly procedural stance adopted by MAKARAU AJCC in the determination of this application.
I do so for the following reasons, and in accordance with the principles that she has fully and ably expounded.
It must be emphasised, that, the order granted by this Court, on 31 March 2020, is nothing less than a final order. As such, it may only be reviewed or overruled by this Court in a separate and distinct matter that might arise for determination in the future, where such departure is appropriate and justified.
It cannot be departed from in the same matter, as is the case with the application before us, wherein the original cause of action has remained unaltered.
In my view, the same considerations must also apply to any extension of the original order, founded on the same cause of action and granting essentially the same relief.
It follows, that, the constitutionality of the order sought by the applicants in casu cannot be challenged or debated in this particular application. It also follows, that, there is nothing to preclude the grant of the indulgence and relief sought by the applicants - which relief is apparently unassailable on the merits.
Having taken the position that I have, I am nevertheless constrained to caution, that, their success in this application does not constitute any licence for the applicants to violate the requirements of the Constitution or to disregard any of its provisions.
This point was aptly underscored in the case of Nkomo & Ors v T M Supermarkets (Private) Limited CC04-19, where this Court held, that, anything done in contravention of the Constitution is a nullity.
Therefore, any act or conduct by the applicants, in direct violation of the Constitution, will remain a nullity - even if carried out purportedly in compliance with the order of this Court.
Consequently, in the event that they decide to proceed with the Constitution Amendment Bill (No.1), they would be obligated to do so, not only in accordance with the voting requirements prescribed in section 328 of the Constitution, but, also in conformity with any other relevant and applicable constitutional injunction - including the legal ramifications of section 147 of the Constitution.
Finally, although this aspect is not directly pertinent in casu, I should point out, for the sake of completeness, that, certain provisions in the Constitution Amendment Bill (No.2) of 2019, relating to judicial appointments, under section 180 of the Constitution, are predicated on the provisions of the earlier Constitution Amendment Bill (No.1) having been duly enacted in their present form.
This is an aspect that the applicants would need to consider and take into account in proceeding with either or both of the Bills concerned.
To conclude, I would, for the aforestated reasons, grant the present application in accordance with the order made by MAKARAU AJCC as set out above.
