MAKARAU
AJCC:
Introduction
On
31 March 2020, this Court handed down judgment number CCZ 4/2020,
disposing of two applications made by the first and second
respondents against the applicants and the third and fourth
respondents under cases number CCZ 57/2017 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 Court under judgment number CCZ4/2020 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 para (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
Jurisdiction of this Court
Whilst
the issue of the jurisdiction of this Court did not arise, I wish to
explain in passing that notwithstanding that this application relates
to an order that was issued by the full bench of this Court, this
Court, as presently constituted, has jurisdiction in the matter.
Prior
to 22 May 2020, the Constitution required the full bench of this
Court to sit in all constitutional cases. Paragraph 18(2) of the 6th
schedule to the Constitution, which was the governing provision then
and which provided for the transition between the repealed
constitution and the current Constitution, provided that:
“Notwithstanding
section 166, for seven years after the publication date, the
Constitutional Court consists of the Chief Justice and the Deputy
Chief Justice; and seven other judges of the Supreme Court; who
must sit together as a bench to hear any constitutional case.”(The
emphasis is mine)
The
above provision gave way to section 166 of the Constitution,
temporarily held in abeyance by the transitional provisions of the
Constitution cited above, which in subs (3) grants this Court the
requisite jurisdiction by providing as follows:
“Cases
before the Constitutional Court -
(a)
concerning alleged infringements of a fundamental human right or
freedom enshrined in the Constitution in Chapter 4, or concerning the
election of a President or Vice President, must be heard by all the
judges of the court;
(b)
other than the cases referred to in paragraph (a), must be heard by
at least three judges of the court;….”
It
is further common cause that section 176 of the Constitution, grants
inherent jurisdiction to this Court to protect and regulate its own
processes in addition to developing the law in the interests of
justice and in accordance with the Constitution.
This
application, being an application to extend the lifespan of an order
given earlier by the Court, is an incident of the exercise of the
inherent jurisdiction of this Court to control and regulate its own
processes.
I
return to the application.
The
Application
In
the founding affidavit, the applicants made one material averment.
They averred that the judgment of the court number CCZ4/2020 was
handed down one day before a national lock-down 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 Locus
Standi
The
first respondent invoked the application of the principle of
separation of powers as the sole basis upon which to challenge the
standing of the applicants to bring this application.
He
correctly observed that the Constitution recognises and provides for
the separation of powers among the organs of state.
He
further drew the Court's attention to the provision of the
Constitution which reposes in the executive the function to prepare,
initiate and implement national legislation. He argued that the
applicants, representing the legislature, had no such function and
therefore did not have the necessary mandate to enable them to comply
with the court order.
It
was the essence of the first respondent's argument that Parliament,
particularly the Senate as a chamber of Parliament, could not be
foisted with the power of piloting a Bill through the house as that
would blur the lines demarcating the mandate of the legislature from
that of the executive in violation of the doctrine of the separation
of powers.
To
complete the argument, it was pressed upon us that the third
respondent, who was a party to the proceedings under cases number
CCZ57/17 and 58/17 respectively, ought to have filed the application
seeking to extend the period within which to cure the defect
attendant upon the passing of Constitutional Amendment Bill (No.1) of
2017 as the executive, not Parliament, was in charge of the
constitutional amendment agenda.
In
the words of counsel, the applicants could not be dominus
litis
in this application but the third respondent could and ought to have
been.
It
presents itself clearly to me that had this application been an
application to this Court at first instance, without any background
to it, wherein the applicants were seeking an order granting them
leave or power to pass Constitutional Amendment No.1 Bill, or any
other legislation for that matter through the Senate, the first
respondent's argument might have detained us.
It
is common cause that this application is not an application at first
instance.
It
is not laying out a new cause for our determination. It is based on
the two applications that I referred to above. It is seeking to
extend the lifespan of part of the order that was given in those
earlier proceedings.
In
a very broad sense, it can and ought to be regarded as a continuum
of
the earlier proceedings.
As
indicated above, the background and context to this application are
common cause.
The
applicants, together with the third and fourth respondents, were
respondents before this Court under cases number CCZ57/2018 and
CCZ58/2018 respectively. Their participation in those proceedings was
not and could not have been doubted or challenged as they had been
called upon to defend the allegation that the second applicant had
failed to fulfil a constitutional obligation.
They
had the right to be heard in defence of the second applicant in
fulfilment of the demands of the audi
alteram partem
rule, an integral principle of natural justice.
They
partially lost the case but by no means did they lose their standing
as parties in the suit.
Their
status as parties in those proceedings and in proceedings ancillary
and connected thereto did not terminate at any stage during or after
the proceedings.
Once
clothed with standing as respondents in the earlier suit, the
applicants retained such standing for the present application, which
as I have stated above, is a continuation of the cause between the
parties.
The
doctrine of separation of powers, solely raised in the first
respondent's opposing affidavit as the basis of the first point in
limine,
cannot operate to rob the applicants of standing in the circumstances
of this matter.
In
his written submissions and in oral argument before us, counsel for
the first respondent further challenged the locus
standi
of the applicants on the basis that there is no resolution of the
second applicant to bring this application on its behalf.
Whilst
the absence of a resolution to bring the application on behalf of the
second applicant would go towards the authority of the persons
purporting to represent it rather than the locus
standi of the second aplicant,
I dismiss this contention on the basis that the absence of a
resolution authorising the bringing of the application on behalf of
the second applicant was not raised in the first respondent's
opposing affidavit.
It
was only raised, and belatedly so, in the heads of argument.
It
is the time-honoured rule of procedure in our courts that to
guarantee a fair trial, the court shall not allow any party to take
the other by surprise by raising issues for determination other than
in the first appropriate proceeding filed in the suit.
For
the first respondent, such appropriate proceeding was the opposing
affidavit.
It
is therefore my conclusion and finding on the first point in
limine
that the applicants have the locus
standi
to bring this application.
I
turn to the next issue.
Whether
the Order Sought in this application is Unconstitutional
It
was contended, and spiritedly so, that this Court is hamstrung from
issuing the order sought as such an order would be unconstitutional
in that it would offend against the provisions of section 147 of the
Constitution.
Quite
clearly, the argument attacked the alleged constitutionality of the
extension sought.
It
correctly did not seek to attack the constitutionality of the order
made on 31 March 2020. This is because the order of the Court given
on 31 March 2020 is final, being a decision of an apex court on
constitutional matters. It is not subject to any further review or
appeal.
The
law protecting the integrity of decisions of apex courts is settled.
It
is an integral principle of the rule of law and is manifest in the
doctrine of judicial precedent or stare
decisis.
The rationale of the doctrine is basically the need to ensure
certainty in the law and finality in litigation.
In
section 167(1), the Constitution provides that this Court is the apex
court in all constitutional matters, while in section 169(1) it
provides that the Supreme Court is the final court of appeal save in
matters over which the Constitutional Court has jurisdiction.
I
digress briefly and for comparative purposes to note that the
provisions of 169(1) in turn form the basis of section 26 of the
Supreme Court Act which provides that:
“26
Finality
of decisions of Supreme Court
(1)
There shall be no appeal from any judgment or order of the Supreme
Court.
(2)
The supreme court shall not be bound by any of its judgments, rulings
or opinions nor by those of any of its predecessors.”
Discussing
the principles that emerge from the above provision, the Chief
Justice in Lyttton
Investments (Private) Limited v Standard Chartered Bank Zimbabwe
Limited and Another
SC CCZ 11/18 had this to say at p22 of the judgement:
“A
decision of the Supreme Court on any non-constitutional matter in an
appeal is final. 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 decisions, ruling or opinion
on a non-constitutional matter.”
Whilst
the Constitutional Court Act is yet to be promulgated, the absence of
the equivalent of section 26 of the Supreme Court Act for the
Constitutional Court is of no import.
The
words of the Chief Justice in the Lytton
Investments case (supra)
on the finality of decisions of the Supreme Court on
non-constitutional matters apply with equal force to the finality of
the decisions of this Court on all constitutional matters.
A
decision of the Constitutional Court on a constitutional matter is
final.
No
court has power to alter the decision of the Court. Only this Court
can depart from its previous decisions rulings or opinions.
I
venture to add for emphasis that only this Court, in
a future and appropriate constitutional matter,
may overrule or depart from its previous order.
This
application is not such a case where the court can overrule or depart
from its previous order.
Accepting
as we must, that the constitutionality or otherwise of the order made
by this Court on 31 March 2020 does not arise for debate and cannot
be debated by this Court in this application, the issue that then
exercises the mind is how to debate the constitutionality of the
order sought in this application without by implication reviewing and
debating the constitutionality of the order of 31 March 2020.
I
have not been able to find a legal principle by which this can be
achieved.
This
is so because the application before us is not for the issuance of a
new or fresh order. It is an application to extend the lifespan of
part of the order given on 31 March 2020.
Having
failed to find any principle in the circumstances of this application
that I can invoke to separate the order sought in this application
from the order that was made on 31 March 2020, I am constrained to
rule against the second point in
limine,
because it is incompetently raised.
Any
finding by this Court that the order sought in this application
violates the Constitution is by implication a finding that the order
of the Court as handed down on 31 March 2020 was unconstitutional.
I
refrain from making such a finding in deference to the principle
protecting the finality of the decisions of the Constitutional Court.
The integrity of the decisions of this Court on constitutional
matters must be preserved at all times and against all other
considerations.
I
come to the above conclusion notwithstanding the fact that this
Court, like the other organs of state, has an obligation to ensure
that the provisions of the Constitution are always venerated.
This
Court is the guardian of the Constitution. Its role in upholding the
rule of law must never be doubted.
In
this regard I have again been guided by the remarks by the Chief
Justice in Lytton
Investments (Private) Limited v Standard Chartered Bank Zimbabwe
Limited and Another
(supra) where he had this to say about the Constitutional Court:
“The
court is a specialised institution, specifically constituted as a
constitutional court with the narrow jurisdiction of hearing and
determining constitutional matters only. It is the supreme guardian
of the Constitution and uses the text of the Constitution as its
yardstick to assure its true narrative force. It uses constitutional
review predominantly, albeit not exclusively, in the exercise of its
jurisdiction.”
Whilst
being keenly aware of the challenges facing the order of this Court
as granted on 31 March 2020, the principle preserving the integrity
of the decisions of this Court and protecting the finality of
decisions of this Court as the apex court on constitutional matters,
itself a constitutional precept, must hold sway against all other
considerations in this matter.
In
adopting the stance that I have, I take solace from the fact that the
constitutionality of the order of 31 March 2020, whist not debatable
in this application, may be debated in an appropriate matter in the
future, where the interpretation of section 147 of the Constitution
is the cause of action.
The
order of 31 March 2020, whilst final, is not binding on this Court.
It
is therefore my conclusion in relation to the second preliminary
issue 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.
I
now proceed to determine the last issue.
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 corona virus 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,
the first being that the applicants herein lack the requisite the
locus
standi
to bring the application. 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.
(the emphasis is mine)
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 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.
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 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 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 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
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 as having lapsed
by virtue of the dissolution of Parliament would in my view be
inconsistent with section 147.
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,
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) 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 would
be to give effect to an order that is inconsistent with section 147.
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. 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 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, 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
CCZ 4/19, 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.
Chihambakwe
Mutizwa & Partners,
applicants legal practitioners
Tendai
Biti Law,
1st
respondent's legal practitioners
1.
The
Bill of Rights Handbook 6ed, p9
