PATEL
AJCC:
This
is an application for direct access to the Constitutional Court made
in terms of section 167(5)(a) of the Constitution of Zimbabwe.
The allegation is that the conduct of the respondents violated the
applicant`s fundamental rights as enshrined in sections 69(1) and
70(1)(d),(e) and (f) of the Constitution.
The
Background
The
brief facts of the matter are as follows.
In
2017 the applicant was arraigned before the magistrates court at
Harare facing charges of fraud as defined in section 136 of the
Criminal Law (Codification and Reform) Act [Chapter
9:23].
Three separate trials were held before the first, second and third
respondents and he was convicted and sentenced to three separate
terms of imprisonment.
It
is the applicant`s allegation that during the conduct of the trial
proceedings the first and second respondents violated his right to
legal representation because they did not advise him of that right at
the commencement of the trial.
This
is alleged to be a violation of section 70(1)(d), (e) and (f) of the
Constitution.
In
the same respect, it is also alleged that the first and second
respondents “failed to take heed to the laws governing the
commencement of criminal trials” and therefore violated section
163A(1) and (2) of the Criminal Procedure and Evidence Act [Chapter
9:07]
(the CP&E Act).
It
is further alleged that such conduct infringed the applicant`s right
to a fair trial as entrenched in section 69(1) of the Constitution.
As
regards the third respondent, it is averred that the magistrate did
advise the applicant of his right to legal representation in terms of
section 191 of the CP&E Act, but then failed to make an enquiry
as to whether or not the applicant had understood those provisions.
This
is said to have led to unfair proceedings in violation of sections
69(1) and 70(1)(d),(e) and (f) of the Constitution.
Allegations
are also made against the fourth respondent in that it failed to
assist the applicant in protecting his fundamental rights as
aforementioned.
Consequent
to these alleged violations, the applicant has approached this Court
for relief.
The
application is opposed by the fourth respondent.
It
contends that the applicant has not demonstrated that it is in the
interests of justice that he be granted direct access to the court.
It is also argued that the mere reference to constitutional
provisions does not mean that a constitutional matter has been
raised.
It
is important to note that the fourth respondent concedes that the
proceedings before the first, second and third respondents were
irregular, but nevertheless avers that competent relief could have
been granted by the High Court or the Supreme Court thus obviating
the need to approach the court directly.
In
fact, it is alleged that the applicant has since approached the High
Court for relief under Case No. HC7066/20.
It
is prayed that the application be dismissed as it is without merit.
Requirements
for Direct Access
An
application for direct access is regulated by the Constitutional
Court Rules and an applicant must satisfy all the requirements
contained therein. Compliance with the Rules is not a mere formality.
As
was stated in Liberal
Democrats & Ors v The President of the Republic of Zimbabwe E.D.
Mnangagwa N.O. & Ors
CCZ 7/18, at p10 of the judgment:
“Direct
access to the Constitutional Court is an extraordinary procedure
granted in deserving cases that meet the requirements prescribed by
the relevant rules of the Court.”
Rule
21(3) of the Rules contains the requirements that ought to be
satisfied in an application of this nature. It states the following:
“(3)
An application in terms of subrule (2) shall be filed with the
Registrar and served on all parties with a direct or substantial
interest in the relief claimed and shall set out —
(a)
the grounds on which it is contended that it is in the interests of
justice that an order for direct access be granted; and
(b)
the nature of the relief sought and the grounds upon which such
relief is based; and
(c)
whether the matter can be dealt with by the court without the hearing
of oral evidence or, if it cannot, how such evidence should be
adduced and any conflict of facts resolved.”
Rule
21(8) itemises some of the factors to be taken into account in
determining whether it is in the interests of justice for a matter to
be brought directly to this Court. These include the prospects of
success if direct access is granted, the availability of an
alternative remedy and whether there are disputes of fact in the
matter.
The
importance of the requirement that an applicant should show that it
is in the interests of justice that the application be granted is
explained by Currie and de Waal: The
Bill of Rights Handbook
(6th
ed. 2013) at p128. The learned authors state as follows:
“Direct
access is an extraordinary procedure that has been granted by the
Constitutional Court in only a handful of cases.… The
Constitutional Court is the highest court on all constitutional
matters. If constitutional matters could be brought directly to it as
a matter of course, the Constitutional Court could be called upon to
deal with disputed facts on which evidence might be necessary, to
decide constitutional issues which are not decisive of the litigation
and which might prove to be of purely academic interest, and to hear
cases without the benefit of the views of other courts having
constitutional jurisdiction. Moreover,… it is not ordinarily in the
interests of justice for a court to sit as a court of first and last
instance, in which matters are decided without there being any
possibility of appealing against the decision given.”
Jurisdiction
of the Court
It
is settled law that the jurisdiction of the court is triggered only
where a constitutional issue arises or where an issue connected with
a decision on a constitutional matter arises.
Section
332 of the Constitution defines a constitutional matter as a matter
in which there is an issue involving the interpretation, protection
or enforcement of the Constitution.
In
Moyo
v Chacha & Ors
2017 (2) ZLR 142 (CC), the court defined a constitutional matter in
the following words, at 150D:
“The
import of the definition of a 'constitutional matter' is that the
Constitutional Court would be generally concerned with the
determination of matters raising questions of law, the resolution of
which require the interpretation, protection or enforcement of the
Constitution.
The
Constitutional Court has no competence to hear and determine issues
that do not involve the interpretation or enforcement of the
Constitution or are not connected with a decision on issues involving
the interpretation, protection or enforcement of the Constitution.”
Also
germane in the present context are the twin doctrines of
constitutional avoidance and subsidiarity which ordinarily operate to
militate against the assumption of jurisdiction by this Court, even
where a constitutional question or matter might otherwise arise for
determination. This position was articulated succinctly in Zinyemba
v Minister of Lands and Rural Resettlement & Anor 2016
(1) ZLR (23) CC, at 274F:
“Two
principles discourage reliance on the constitutional rights to
administrative justice. The first is the principle of avoidance which
dictates that remedies should be found in legislation before
resorting to constitutional remedies. The second principle is one of
subsidiarity which holds that norms of greater specificity should be
relied upon before resorting to norms of greater abstraction.”
Whether
the matter is properly before the court
In
casu,
the circumstances of the case demand that an analysis of whether the
matter is properly before the Court ought to be made before any
enquiry into the merits.
In
his founding affidavit, the applicant purports to bring the present
application before the court in terms of section 167(5)(a) of the
Constitution.
This
is clearly irregular as such an application cannot be brought before
the court in terms of that provision.
Section
167(5)a) of the Constitution provides as follows:
“(5)
Rules of the Constitutional Court must allow a person, when it is in
the interests of justice and with or without leave of the
Constitutional Court —
(a)
to bring a constitutional matter directly to the Constitutional
Court;”
The
above provision clearly makes reference to the Rules of the
Constitutional Court in terms of which a litigant must approach the
court. Section 167(5)(a) cannot be read as a standalone provision
independent of other constitutional provisions and the Rules that it
mentions.
As
pointed out by GWAUNZA JCC in Prosecutor
General, Zimbabwe v Telecel Zimbabwe (Pvt) Ltd
2015
(2) ZLR 422 (CC), at 425H:
“…section
167 does not elaborate as to who, on what conditions or how, a party
may approach the court for it to exercise the jurisdiction conferred
upon it by that provision.”
The
Court went further to explain the true status of the provision, at
426A:
“In
order to give full effect to section 167(1) in relation to any
constitutional matter sought to be brought before the court, the
provision must be read in conjunction with the various provisions
that do confer a right to approach the Constitutional Court directly
or indirectly through another process.”
Whilst
the above remarks were made in relation to section 167(1) of the
Constitution, they apply with equal force to the circumstances in
casu.
Section
167(5)(a) of the Constitution, in terms of which the applicant seeks
to approach this Court, must be read together with other provisions
of the Constitution and the Rules which were enacted to give effect
to that provision.
In
that regard, section 85(1) of the Constitution and Rule 21 of the
Rules are pertinent.
Section
85(1) of the Constitution provides as follows:
“85(1)
any of the following persons, namely -
(a)
any person acting in their own interests;
(b)
any person acting on behalf of another person who cannot act for
themselves;
(c)
any person acting as a member, or in the interests, of a group or
class of persons;
(d)
any person acting in the public interest;
(e)
any association acting in the interests of its members;
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.”
Having
regard to the above provision, it is apparent that the applicant
ought to have approached the Court in terms of section 85(1) of the
Constitution, claiming the vindication of his fundamental rights.
Section
167(5)(a) in
se
does not confer upon anyone the right to approach the Constitutional
Court directly, even where there is a constitutional matter for
determination.
It
is also necessary to point out that the applicant has not attached a
draft of the substantive application which he intends to place before
the Court should direct access be granted.
This
is a requirement in terms of Rule 21(4) of the Rules which provides
as follows:
“(4)
The applicant shall attach to the application a draft of the
substantive application he or she seeks to file with the court.”
It
is trite that, generally speaking, the use of the word “shall” is
indicative of the legislature`s intention to make the provision under
scrutiny peremptory or imperative rather than merely directory or
permissive. See Shumba
& Anor v The Zimbabwe Electoral Commission & Anor 2008
(2) ZLR 65 (S), at 80E-81C.
The
consequences of a failure to comply with a mandatory provision are
explained by Francis Bennion: Statutory
Interpretation,
at p22, as follows:
“Where
the relevant duty is mandatory, failure to comply with it invalidates
the thing done. Where it is merely directory the thing done will be
unaffected (though there may be some sanction for disobedience
imposed on the person bound).”
The
applicant`s failure to attach a draft of the substantive application
that he intends to file with the court should direct access be
granted is a clear violation of Rule 21(4) of the Rules.
In
the absence of such a draft application, the court is severely
hamstrung as regards the assessment of the merits of this
application.
A
determination of whether or not it is in the interests of justice to
grant direct access is made impossible without the court having sight
of that draft application.
Furthermore
and finally, the applicant`s founding affidavit, in contravention of
the peremptory provisions of Rule 21(3)(c) of the Rules, does not
indicate whether the matter can be dealt with by the court without
the hearing of oral evidence or, if it cannot, how such evidence
should be adduced and any conflict of facts resolved.
Irregularities
before the Magistrates Court
There
is a further disconcerting aspect of this matter that we think it
necessary to comment upon before it is disposed of.
This
relates to the mandatory provisions of sections 163A and 191 of the
CP&E Act which enjoin the courts in criminal cases to advise
accused persons of their right to legal representation at the
commencement of criminal trials.
The
nub of the applicant's case is that the first and second
respondents violated this crucial procedural requirement and thereby
denied him the right to proper legal representation.
As
for the third respondent, it is averred that he did advise the
applicant of this right but then failed to make the further enquiry
as to whether or not the applicant had understood the import of the
governing provisions.
The
fourth respondent quite correctly concedes that in the trials before
the first and second respondents there was no compliance with section
163A of the CP&E Act. The State also concedes that the third
respondent failed to record the exchange with the applicant
pertaining to his right to legal representation and his comprehension
or otherwise thereof.
It
is openly acknowledged by counsel for the fourth respondent that
these omissions on the part of the first, second and third
respondents constituted gross irregularities.
Nevertheless,
the State appears to have displayed a dogged reluctance to take heed
of these irregularities or the applicant's justifiable grievances
in that regard.
Regrettably,
unlike the High Court and the Supreme Court, this Court is not
presently endowed with any statutory powers of review that might be
invoked and exercised mero
motu
to address or redress these patent irregularities.
Nevertheless,
we think it necessary in the interests of justice to bring them to
the attention of the Judge President to enable him to refer the
matter to a judge of the High Court for review.
The
Registrar of this Court is accordingly directed to submit a copy of
this judgment to the Judge President for appropriate action to be
taken.
Disposition
Having
considered the totality of the aforementioned circumstances apropos
the present application itself, the inescapable conclusion is that it
is fraught with fundamental irregularities and is therefore not
properly before the court. The gravity of the irregularities marring
the application precludes and obviates the need to assess and
determine the merits thereof.
It
is accordingly ordered that the
application, being improperly before the court, be and is hereby
struck off the roll with no order as to costs.
GOWORA
AJCC: I
agree
HLATSHWAYO
AJCC: I
agree
National
Prosecuting Authority,
respondents legal practitioners
