MAKARAU
JCC AND PATEL JCC:
MAKARAU
JCC: This
is an application in terms of section 175(3) of the Constitution of
Zimbabwe, for the setting aside in its entirety, of a High Court
declaratory order handed down on 15 May 2021. The order, issued in
respect of two distinct and separately filed applications,
invalidated certain conduct by the President as unconstitutional.
This it allegedly did in the first of its two parts.
Background
We
summarise the facts giving rise to this application from the two
applications that were filed in the High Court under case numbers
HC2128/21 and HC2166/21, respectively. The facts are not complex.
The
facts of this application coalesce, and relevantly so, around 15 May
2021 when the Chief Justice, Judge Malaba, reached the age of
seventy. A few days before that date, on 7 May 2021 to be precise,
the Constitution of Zimbabwe Amendment (No.2) Act (No.2 of 2021) came
into force.
Among
other provisions, it amended section 186 of the Constitution to
provide for the tenure of judges in the following terms:
“(1)
The Chief Justice and the Deputy Chief Justice hold office from the
date of their assumption of office until they reach the age of
seventy years, when they must retire unless before they attain that
age they elect to continue in office for an additional five years;
Provided
that such election shall be subject to the submission to, and
acceptance by the President, after consultation with the Judicial
Service Commission, of a medical report as to their mental and
physical fitness so to continue in office.
(2)
Judges of the Constitutional Court are appointed for a non-renewable
term of not more than fifteen years; but
(a)
they must retire earlier if they reach the age of seventy unless,
before they attain that age, they elect to continue in office for an
additional five years:
Provided
that such election shall be subject to the submission to, and
acceptance by the President, after consultation with the Judicial
Service Commission, of a medical report as to their mental and
physical fitness so to continue in office.
(b)
after the completion of their term, they may be appointed as judges
of the Supreme Court or the High Court, at their option, if they are
eligible for such appointment.
(3)
Judges of the Supreme Court hold office from the date of their
assumption of office until they reach the age of seventy years, when
they must retire unless, before they attain that age, they elect to
continue in office for an additional five years:
Provided
that such election shall be subject to the submission to, and
acceptance by the President, after consultation with the Judicial
Service Commission, of a medical report as to their mental and
physical fitness so to continue in office.
(4)
Notwithstanding subsection (7) of section 328, the provisions of
subsections (1), (2) and (3) of this section shall apply to the
continuation in office of the Chief Justice, the Deputy Chief
Justice, Judges of the Constitutional Court and Judges of the Supreme
Court.”
Acting
in accordance with the provisions of section 186, as amended, the
Chief Justice exercised the option to extend his tenure of office
beyond the age of seventy for an additional five years.
By
letter dated 11 May 2021, the seventh respondent, the President,
accepted a medical report as to the mental and physical fitness of
the Chief justice to continue in office.
The
third, fourth and fifth respondents formed the firm view that the
seventh respondent, by accepting the medical report that the Chief
Justice was mentally and physically fit to so continue in office, had
subverted the correct constitutional position.
They
filed the two applications in the High Court that we have detailed
above, challenging the continuation in office of the Chief Justice
for an additional five years beyond 15 May 2021.
In
his application, the third respondent, in addition to the Chief
Justice, cited as respondents all the judges of the Supreme Court and
some judges of the High Court.
At
the time of the filing of the application, the five judges of this
Court, other than the Chief Justice and the Deputy Chief Justice,
were Supreme Court judges, acting as Supreme Court judges and were
cited as such. Substantive appointments to this Court were made
subsequent to the filing of the applications a
quo
but before the hearing of this application.
Whilst
materially and correctly so, the third respondent averred in his
application that the Chief Justice had opted to exercise the option
introduced by the amendment, no such averment was made in respect of
any or all of the other judges who were cited as respondents under
case number HC2128/21.
We
revert to this fact in detail later.
The
primary relief sought in the applications a
quo
was a declaration that the amendment to the Constitution in section
186 did not apply to the Chief Justice and the judges cited as
respondents. Specifically, it was claimed that the amendment did not
have any force and effect on the tenure of the Chief Justice and the
cited judges as such an interpretation would fall foul of the
provisions of section 328(7) of the Constitution.
Section
328(7) of the Constitution provides that:
“(7)
Notwithstanding any other provision of this section, an amendment to
a term–limit provision, the effect of which is to extend the length
of time that a person may hold or occupy any public office, does not
apply in relation to any person who held or occupied that office, or
an equivalent office, at any time before the amendment.”
The
two applications, both brought urgently, were opposed on truncated
dies
induciae
in accordance with the terms of a case management meeting order to
which all the parties agreed.
At
the end of the hearing of the applications, as indicated above, the
court a
quo
issued a singular order in the following terms:
“IT
IS DECLARED THAT:
1.
The second respondent in HC2128/21 who is also the second respondent
in HC2166/21 ceased to hold the office of the Chief Justice of
Zimbabwe and judge by operation of law on 15 May 2021 at 4:00 hours.
2.
The extension of the length of time in the office of the judge beyond
the age of seventy provided for in section 186 of the Constitution
does not apply to the second to fourteenth and eighteenth
respondents.
3.
There shall be no order as to costs.”
The
respondents a
quo,
including
the judges of this Court, were aggrieved by the order.
Under
separate and different covers, they filed notices of appeal in the
Supreme Court challenging the correctness of the decision.
It
is not necessary that we set out the grounds of appeal of each
appellant in full. As and when it is it necessary to do so, we shall
advert to the notices of appeal.
The
applicant, strongly believing that the effect of the first part of
the order was to declare constitutionally invalid the letter of 11
May which constituted the legal authority for the Chief Justice to
continue in office, filed this application in terms of section 175(3)
of the Constitution.
As
indicated above, he sought the setting aside of the entire order.
This
he did notwithstanding that on its mere reading, the High Court order
did not in any way refer to the conduct of the seventh respondent as
constitutionally invalid.
We
observe at this stage that the interpretation of the High Court order
by the applicant in this regard was conceded as correct by the fourth
and fifth respondent's counsel during the hearing of the
application.
We
shall advert to this concession in detail in due course.
The
Application in terms of section 175(3) of the Constitution
It
is common cause that the applicant was not a party to either of the
two applications that were determined by the High Court. He brought
this application in the first instance. In the application he alleged
that he is an adult Zimbabwean who is asserting his right to access
this Court directly to defend and protect the Constitution.
Arguing
that the state of affairs in the country following the issuance of
the High Court order was undesirable as there should never in any
jurisdiction be doubt as to who the Chief Justice is, the applicant
made two basic contentions:
(i)
Firstly, he contended that the juristic act by the seventh respondent
of accepting a medical report as to the mental and physical fitness
of the Chief Justice to remain in office for an additional five years
after attaining age seventy was valid and the High Court orders
purporting to hold such as constitutionally invalid had to be set
aside.
(ii)
Secondly, he contended that section 328(7) of the Constitution relied
upon by the third, fourth and fifth respondent as precluding the
amendment of the Constitution from applying to the Chief Justice and
other sitting judges was not applicable as section 186(4) was the
applicable section.
The
third, fourth and fifth respondents opposed the application.
The
first, second, sixth and seventh respondents were content to keep a
watching brief during the hearing of the application.
The
third respondent opposed the application on the basis of a sole
preliminary point. It was his position that this court should refrain
from exercising jurisdiction in the matter.
Put
differently, it was his position, edified during the proceedings by
an oral application, that this Court should recuse itself. In his
view, since the second part of the High Court order declared that the
judges of this and the Supreme Court could not extend their
respective terms of office beyond the age of seventy, the order under
scrutiny in the confirmation proceedings affects the judges of this
Court directly.
In
this regard, he was keen to highlight and place it on record that the
judges of this Court had not only participated in the proceedings
before the High Court but had since filed a notice of appeal against
the High Court order.
It
was therefore the mainstay of his exception and position that the
judges of this Court were completely non-suited to hear this
application on account of their positions as active litigants who
were already seeking the vacation of the High Court order by way of
appeal.
In
his further view, the determination of the application by this Court
as constituted would in the circumstance of the matter implicate a
breach of the common law principle nemo
judex in sua causa.
In
opposing the application, the fourth and fifth respondents raised a
number of issues:
(i)
Firstly, they challenged the competence of this Court to determine
the application. They also sought the recusal of the entire bench of
this Court on the same ground that the third respondent had relied
upon.
(ii)
Secondly and before a competently constituted Court, the fourth
respondent took issue with the locus
standi
of the applicant to bring the application in the manner that he did.
In essence, it was the fourth respondent's position that the
applicant, not having obtained any rights under the High Court order,
could not purport to challenge the order.
(iii)
Thirdly and regarding the merits of the matter, the fourth respondent
challenged the procedural steps taken and leading to the acceptance
by the seventh respondent of a medical report as to the mental and
physical fitness of the Chief Justice to continue in office for an
additional five years after his seventieth birthday.
Thus,
broadly speaking, the application raised for determination three
distinct issues. The second issue would only become relevant and fall
for determination if the respondents were not successful on the first
issue and the third issue would only require determination if the
respondents failed on the second issue.
(i)
The first issue was whether this Court should recuse itself;
(ii)
If the Court did not recuse itself, the second issue would be whether
the applicant had locus
standi
to bring the application under section 175(3) of the Constitution;
and
(iii)
Finally, if he did have the requisite standing, whether the
application had merit.
After
hearing submissions from counsel on the first issue, this Court
dismissed the application for its recusal on the turn and indicated
that full reasons would be availed in the main judgment.
We
now set these out.
The
Application for Recusal
The
third, fourth and fifth respondents applied for this Court, in its
entirety, to recuse itself. In making the application, they relied
solely on the fact that the third respondent had cited all the judges
of this Court as respondents in the application before the High
Court.
We
again pause to note that whilst the third, fourth and fifth
respondents went further to point out that judgment was given against
all the judges of this Court who subsequently caused a notice of
appeal to be noted on their behalf, these and other averments in the
same vein are of no independent legal import. They all stem from the
fact that the judges were cited as respondents before the High Court
and all ensuing proceedings depend for their validity on that fact.
It
stands to reason that if the citation of the judges was legally
inept, nothing valid would flow from it.
The
observations that we make above apply with equal force to the
argument that was advanced on behalf of the fourth and fifth
respondents, erroneous as it was, that due to the order that was
granted against them, the judges of this Court are disenfranchised
from exercising the right to extend their respective tenures of
office.
We
say erroneous because the order that was granted by the High Court
was against the judges of this Court in their acting and not in their
substantive capacities as judges of this Court.
The
same applies to the further argument by the fourth and fifth
respondents that the application before this Court must be seen as
pre-empting the Supreme Court decision in that the draft order in the
present application seeks to achieve in essence that which the judges
of this Court seek to achieve in their notice of appeal before the
Supreme Court.
The
Law of Recusal
The
law of recusal is entrenched in this jurisdiction. It is settled. It
has found expression in many words some of which reflect approval of
decisions of other jurisdictions. It is the law against bias and
where after investigation it is established that the judicial officer
or decision maker was biased, the ensuing decision is afflicted and
must be vacated.
Thus,
the law of recusal is an expression at a very general level of the
principle that justice must not only be done but must appear to have
been done. This is so because justice is rooted in confidence and
confidence is destroyed when right thinking people go away thinking
that the court was biased or conflicted.
It
is in keeping with this general principle that at all times, courts
must conduct their affairs in such a way that the court's
open-mindedness, its impartiality and fairness are manifest to all
those who follow the proceedings and review the outcome.
This
Court has recognized this broad principle in the case of Konson
v S
7/15 where it referred with approval to the remarks of TROLLIP AJA in
S
v Rall
1982 (1) SA 828, who, in dealing with the limit to which a court can
go in questioning an accused person during a criminal trial, had this
to say in part:
“……..the
judge must ensure that 'justice is done'. It is equally
important, I think, that he should ensure that justice is seen to be
done. After all, that is a fundamental principle of our law and
public policy. He should therefore so conduct the trial that his
open-mindedness, his impartiality and his fairness are manifest to
all those who are concerned in the trial and its outcome, especially
the accused (see, for example, S
v Wood
1964
(3) SA 103 (O) at 105G; Rondalia
Versekeringskorporasie van SA Bpk v Lira
1971 (2) SA 586 (A) at 589G; Solomon
and Anor NNO v De Waal 1972
(1) SA 575 (A) at 580H).
The
judge should consequently refrain from questioning any witness or the
accused in such a way that, because of its frequency, length, timing,
form, tone, content or otherwise conveys or is likely to convey the
opposite impression (cf Greenfield
Manufacturers (Temba) (Pty) Ltd v Royton Electrical Engineering (Pty)
Ltd
1976 (2) SA 565 (A) at 570E-F; Jones
v National Coal Board
(1957) 2 All ER 155 (CA) at 159F).”
As
correctly submitted by counsel for the respondents, the law of
recusal also finds expression in our supreme law, where it is part
and parcel of the bundle of rights that make up the right to a fair
hearing as guaranteed in section 69 of the Constitution.
The
law provides in section 69(2) of the Constitution that in the
determination of their civil rights and obligations, every person has
a right to a fair, speedy and public hearing within a reasonable time
before an independent and impartial court.
It
is self-evident that at the heart of the principle of recusal is the
need to protect the right to a fair hearing, which in turn lies at
the heart of the rule of law. Put differently, an application for
recusal is invariably an allegation that the litigant's right to a
fair hearing, as constitutionally guaranteed, is under threat of
violation.
The
law of recusal therefore seeks to re-assert the independence and
impartiality of the court that is demanded by section 69 of the
Constitution. It further seeks to enhance the notion of even
handedness, the universal standard that is required from all those
who dispense justice.
It
then presents itself to us that, conceptually, an application for
recusal is largely an exchange between the court and the litigant who
is apprehensive that his or her right to a fair hearing is under
threat. There is hardly room or comfort for that matter, and
self-evidently so, for the adversary litigant to fight in the corner
of the court and show by way of submissions or evidence that the
court is not biased towards it or does not have some interest in the
matter. See Associated
Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance
Company (Pvt) Ltd
2001 (1) ZLR 226, at 233.
Having
made the observation we remain grateful for the submissions that were
made on behalf of the applicant.
But
the above is not all.
The
law of recusal is not concerned solely with the rights of the
apprehensive litigant. It is concerned with the fairness of the
hearing in its totality.
It
therefore stands to reason that the law of recusal and the guarantees
in section 69(2) require some degree of reciprocity of fairness and
good faith from the apprehensive litigant. In other words, a litigant
alleging a violation of his or her right to a fair trial must not
have created or contributed to the dire circumstances that he or she
finds himself or herself in.
Put
differently, the application for recusal must be brought on genuine
grounds and must not be contrived merely for the purposes of
embarrassing the court. But above all, the apprehensive litigant must
bring the application for recusal on tenable positions at law. The
application must be based on sound and sustainable positions at both
the adjectival and the substantive law.
Analysis
Applying
the law then to the facts of this matter:
Firstly,
it is common cause in
casu
that the third respondent did not give any prior notice that he
intended to sue all the judges of this Court as is required by the
Rules of the High Court 1971.
Thus,
Rule 18 of the High Court Rules was not complied with.
This
is a procedural rule that is not dependent on the cause of action
intended to be brought. Its purpose is not only to give the judge
concerned notice of the intended suit, but to also act as a sieve. It
has a gate-keeping function that keeps unmeritorious suits out of
court.
We
deal with this aspect in greater detail later in the judgment.
Secondly,
it is further common cause that the third respondent did not, and
correctly so, allege that any of the judges of this Court, in their
respective capacities as Acting Constitutional Court judges, or as
substantive judges of this Court for that matter, had exercised the
option, as had the Chief Justice, to continue in office for an
additional five years after they each attained the age of seventy.
Perchance,
for a myriad of reasons, some of the judges may not exercise the
option.
Clearly
there was no evidence placed before the High Court that one or more
of the judges had an intention of so doing at the time the
application
a
quo was filed.
A
necessary and material averment to complete the cause of action
against the judges, other than the Chief Justice, was therefore
missing.
Thus,
whilst the cause of action against the Chief Justice may have been
complete, it was not in respect of the other judges even for the
declaration of any future or contingent rights of the judges.
In
the absence of a sustainable cause of action against the judges, the
citing of the judges and the order sought against them was not only
unwarranted but was also incompetent and undeserved.
Thirdly,
we observe, common cause as it is, that although the two applications
a
quo
were brought on a certificate of urgency, such urgency was not
demonstrated regarding the issuance of the second part of the order.
The
third respondent made no averment in his application that the judges
had indicated by word or by deed, that they were about to exercise
the option to remain in office for an additional five years at the
same time that the Chief Justice did, or immediately thereafter.
It
was clearly not the position of the third respondent a
quo
that the harm sought to be cured or arrested by the second part of
the order a
quo
was imminent or needed the urgent attention of the court.
Fourthly,
there is a discernible disconnect between the manner in which the
judges were cited and the relief that was sought against them. Whilst
the judges of this Court were cited nomine
officio
as Supreme Court judges, albeit acting as Constitutional Court
judges, the relief sought was claimed against them personally and
individually. Indeed the order sought has since followed them
individually and collectively to this Court.
Furthermore,
we emphasise the point that at the time when the orders a
quo
were handed down, i.e.
on 15 May 2021, five of the judges of this Court were substantive
judges of the Supreme Court while acting as judges of the
Constitutional Court. Subsequently, they were appointed as
substantive judges of this Court on 20 May 2021, after section 186 of
the Constitution was amended and after the above-mentioned orders
were handed down.
Consequently,
as of that date, the judgment and orders a
quo
would have ceased to have been applicable to or binding upon them in
their personal capacities. There was therefore no legitimate basis
for seeking their recusal in the present matter as their personal
rights and interests, then or in the future, could no longer have
been in issue.
Finally
and in any event, an interpretation of section 186 of the
Constitution in a suit against the Chief Justice alone would have
been binding on all other similarly circumstanced judges.
This
is a trite position at law.
The
relief sought a
quo
was an interpretation of the Constitution which is binding on all
persons as it is a declaration of what the law is. There was thus no
need to cite in addition to the Chief Justice, the judges of this
Court, or any other judge for that matter, in the application a
quo.
On
the basis of the above, we venture to suggest that the legally
inelegant citation of the judges a
quo
and the subsequent application for the recusal of this entire bench
on the basis of such, was not made in good faith but merely to place
this court in an exceedingly embarrassing position.
We
find, therefore, that the citing of the judges of this Court a
quo
was both procedurally and substantively maladroit.
Because
of the number of procedural and substantive law lapses and errors
that were attendant upon it, such citing cannot be a basis for the
recusal of the judges of this Court.
The
recusal of this Court cannot be granted on the basis of an untenable
legal position.
To
seek the recusal of the entire court on an untenable legal position
is synonymous with seeking the recusal on no grounds at all.
It
makes the application frivolous.
We
further observe in this regard that, when questioned as to which
persons should properly constitute the bench to hear the merits of
this matter, in the event that all the incumbent judges of the
Constitutional Court and Supreme Court were to recuse themselves, and
which authority could be called upon to legitimately appoint such
persons to that bench, both counsel for the respondents were
studiously unable to enlighten the Court with any meaningful answers
to those very pertinent questions.
In
Bernert
v Absa Bank
2011 (3) SA 92 (CC),
Ngcobo
CJ repeated the position earlier on taken by that court in President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
1999
(4) SA 147 (CC), that the judicial function, together with the oath
of office that judges subscribe to, creates a presumption of
impartiality in favour of the Constitutional Court.
By
the same reasoning as emerges from the South African cases, there is
a presumption of impartiality in favour of this Court, for we do
carry out similar judicial functions and subscribe to a similar oath.
It
is our finding that in
casu,
the presumption that this Court is impartial was not displaced.
Had
the application for recusal been validly taken, we may have proceeded
to determine whether the common law doctrine of necessity, an
exception to the nemo
judex in sua causa
principle,
was of any application.
It
is not necessary that we encumber this judgment with a discussion of
the principle and its applicability in this jurisdiction. Suffice it
to say that, where it is applicable, it operates to obviate a
situation of administrative or judicial paralysis where no person
other than the biased decision maker can make a decision in the
matter.
For
the above reasons, we dismissed the application for recusal.
PATEL
JCC: It
is pertinent at this juncture, before addressing the substance of the
matter, to make an observation concerning the conduct of the third
respondent.
Even
though he was primarily instrumental in initiating the proceedings a
quo,
he deliberately chose not to address any issue other than that of
recusal, either in his opposing affidavit or in his heads of
argument.
Equally
curiously, at the end of the proceedings on the question of recusal,
he and his counsel elected not to appear in any further proceedings
before the Court. In the event, the matter proceeded in the absence
of the third respondent and without the benefit of his submissions on
the substantive merits of the matter.
The
relief sought by the applicant in this matter is essentially
threefold:
(i)
The first is a declaratur
to the effect that paras 1 and 2 of the operative part of the High
Court judgment No.264-21, handed down on 15 May 2021, are orders of
constitutional invalidity within the contemplation of section 175(1)
of the Constitution.
(ii)
The second is a further declarator to the effect that the aforesaid
High Court orders have no force unless confirmed by this Court.
(iii)
Lastly, the applicant seeks a substantive order declining to confirm
and setting aside the impugned High Court orders.
My
learned sister, Makarau JCC, in addressing the application for
recusal, has earlier outlined the broad issues raised by this
application. Having regard to the averments contained in the
affidavits filed by the parties and the arguments presented before
us, the specific issues that now arise for determination in this
matter are as follows:
(i)
Whether the applicant has the requisite locus
standi
to institute this application.
(ii)
The effect of the failure by the applicant in the proceedings a
quo
(i.e.
the third respondent herein) to seek and obtain leave to sue all the
judges that were cited as respondents in that matter.
(iii)
Whether the orders of the court a
quo
are orders of constitutional invalidity requiring the confirmation of
this Court.
(iv)
The correctness of the judgment of the court a
quo -
(a)
in its interpretation of sections 186 and 328 of the Constitution;
and
(ii)
as regards the alleged violation of the right to equal protection of
the law and the right of access to the courts.
(v)
Whether this Court should decline to confirm and accordingly set
aside the orders granted by the court a
quo.
I
propose to address and determine the foregoing issues ad
seriatim.
The
Applicant's Legal Standing
Section
175 of the Constitution regulates the powers of the courts in
constitutional matters. Of particular relevance in the present matter
are subsections (1) and (3) of section 175 which provide as follows:
“(1)
Where a court makes an order concerning the constitutional invalidity
of any law or any conduct of the President or Parliament, the order
has no force unless it is confirmed by the Constitutional Court.
(2)……..
.
(3)
Any person with a sufficient interest may appeal, or apply, directly
to the Constitutional Court to confirm or vary an order concerning
constitutional validity by a court in terms of subs (1).
(4)……..
.
(5)……..
.
(6)……..
.”
I
shall address the significance of section 175(1) later in this
judgment when dealing with the import and effect of the High Court
orders that are the subject of scrutiny in
casu.
For
the present, it is first necessary to consider the applicant's
locus
standi in judicio
to institute the application before us.
By
virtue of section 175(3), it is incumbent upon the applicant to show
that he is “a person with a sufficient interest” in an order
concerning constitutional validity.
In
paras 27 to 29 of his founding affidavit, the applicant asserts that
he is a person with sufficient interest within the contemplation of
section 175(3) of the Constitution. He avers that, as a citizen by
birth, he has a sufficient interest in defending and protecting the
Constitution and that section 175(3) exists for his protection as a
citizen.
He
further elaborates the factors which give rise to his particular
interest as an ordinary citizen.
These
include his belief that the President acted constitutionally in
approving Justice Malaba's election to continue in office as Chief
Justice for an additional 5 years and that he is in office in
accordance with the Constitution following the President's
approval. The applicant further believes that all persons who were
judges of the Supreme Court and those acting as judges of the
Constitutional Court as at 7 May 2021 are entitled to elect to retire
at the age of 75 years in accordance with section 186(4) of the
Constitution and that the High Court cannot contradict that position
without also declaring section 186(4) of the Constitution to be
constitutionally invalid.
The
applicant takes issue with the fact that the Registrar of the High
Court has not acted in terms of Rule 31(1) of the Constitutional
Court Rules 2016, to place the record of proceedings in that court
before this Court for confirmation.
The
High Court orders will therefore remain as if they are orders
unaffected by section 175(1) of the Constitution and the respondents
are acting as if section 175(1) is not in issue.
The
applicant accordingly affirms that he is entitled to a correct and
final pronouncement on these issues in keeping with his right to the
protection of the law coupled with his duty as a citizen to observe
the Constitution and respect its institutions.
He
is of the strong view that the third, fourth and fifth respondents
have a well thought out strategy to avoid section 175(1) and that the
first, second and sixth respondents appear not to have realised the
impact of that strategy.
However,
he is very alert as a citizen and this is the source of his
sufficient interest because every citizen of Zimbabwe has automatic
standing to challenge any attempt to render redundant the provisions
of the Constitution, such as section 175(1).
Mr
Madhuku,
for the applicant, submits that the applicant, as a citizen, has a
sufficient interest and the right to approach this Court to vindicate
and protect the Constitution. The common law requires a direct and
substantial interest in order to found locus
standi,
but that is not the test to be applied in
casu.
It does not matter that the applicant was not a party to the
proceedings a
quo.
He is entitled to defend the Constitution as a citizen so as to avoid
overreach by a subordinate court within the separation of powers
framework.
Mr
Madhuku
further
argues that citizenship is a key element in giving rise to a
sufficient interest within the meaning of section 175(3) of the
Constitution and that every citizen has an automatic and sufficient
interest in any matter relating to the Constitution.
Apart
from being a citizen by birth, the applicant also has a sufficient
interest by reason of being concerned and aggrieved by the conduct of
the Registrar of the High Court and the strategy of avoidance adopted
by the third, fourth and fifth respondents.
Mr
Dracos,
for the fourth and fifth respondents, submits that section 175(3) of
the Constitution, as read with Rule 35 of the Constitutional Court
Rules, requires the demonstration of a right to approach this Court.
The present matter is a review relating to a dispute between the
parties to the proceedings a
quo
and the applicant was not a party to those proceedings. Section 85(1)
of the Constitution is different from section 175(3) which goes
further to require a sufficient interest. The applicant's claim is
based on his personal views and not on any sufficient interest. He
therefore lacks the requisite locus
standi in casu
because he was not cited in the proceedings a
quo.
Per
contra, Mr Zhuwarara, the amicus curiae
in this matter, submits that this Court has an investigative role in
confirmation proceedings. Consequently, the question of locus
standi
pales into insignificance.
In
any case, a citizen has a sufficient interest in questions relating
to judicial authority by virtue of section 162 of the Constitution
which states that judicial authority derives from the people and is
vested in the courts.
What
is more important is the role of this Court on questions relating to
the invalidity of any law. Any declaration of a subordinate court is
subject to the overarching jurisdiction and supervisory role of the
Court, irrespective of the locus
standi
of any applicant.
The
critical question to be determined is this: What is the meaning to be
assigned to the phrase “any person with a sufficient interest” as
used in section 175(3) of the Constitution?
The
word 'interest' qua
legal interest, is employed variously in the Constitution.
It
appears in section 85(1) with reference to litigation 'in any
person's own interests' or 'in the interests of a group or
class of persons' or 'in the public interest' or by 'any
association acting in the interests of its members' alleging that a
fundamental right or freedom has been, is being or is likely to be
infringed.
It
also appears in section 113(7) which enables 'any interested
person' to approach this Court to determine the validity of a
declaration or extension of a state of public emergency.
Again,
section 167(5) provides that the Rules of the Court must allow a
person 'when it is in the interests of justice' to approach the
Court in relation to any constitutional matter or any issue connected
with a decision on a constitutional matter.
The
foregoing enumeration is obviously not exhaustive. Nevertheless, it
serves to illustrate that the use of the word 'interest' and its
derivatives in the Constitution is variegated and that its specific
meaning depends upon the particular context in which it appears. The
instances cited also demonstrate that the provisions in question are
designed to preserve the integrity of the Constitution through the
conferment of broad and expansive legal standing in the determination
of constitutional questions and matters.
Reverting
to section 175(3), it is necessary to have regard to the point that
the word 'interest' is coloured and qualified by the use of the
word 'sufficient'. The latter is defined in various dictionaries
as 'enough to meet the needs of a situation or a proposed end' or
'enough for a particular purpose'. These definitions underscore
the need to have regard to the specific purpose for which sufficiency
is required.
In
the context of section 175(3), the central objective that is to be
attained is the confirmation or variation of a court order concerning
the constitutional invalidity of any law or any conduct of the
President or Parliament.
What
this means is that in order to assess the sufficiency of any person's
legal interest in the matter, it is necessary to ascertain the
particular purpose which has actuated that person to approach this
Court to seek the confirmation or variation of the order made by the
subordinate court concerning constitutional validity.
Under
the common law, legal standing in civil suits is ordinarily confined
to persons who can demonstrate a direct or substantial interest in
the matter. See Zimbabwe
Teachers Association & Ors v Minister of Education
1990 (2) ZLR 48 (HC), at 52F-53B. However, it is now well established
that the test for locus
standi
in constitutional cases is not as restrictive but significantly
wider.
This
approach was aptly articulated in Ferreira
v Levin N.O. & Others
1996 (1) SA 984 (CC), at 1082G-H:
“……..
I can see no good reason for adopting a narrow approach to the issue
of standing in constitutional cases. On the contrary, it is my view
that we should rather adopt a broad approach to standing. This would
be consistent with the mandate given to this court to uphold the
Constitution and would serve to ensure that constitutional rights
enjoy the full measure of the protection to which they are entitled.”
The
broad approach to locus
standi
in constitutional cases was also affirmed by this Court in Mawarire
v Mugabe N.O. & Ors
2013 (1) ZLR 469 (CC), where the applicant's standing was endorsed
on the basis that he had invoked the jurisdiction of the Court on a
matter of public importance.
The
position advanced on behalf of the fourth and fifth respondents is
that the applicant lacks the requisite sufficient interest in
casu
because he was not a litigant in or party to the proceedings a
quo.
This
position is palpably unsustainable for several very compelling
reasons.
(i)
First and foremost is the wording of section 175(3) itself.
The
reference to 'any person' with a sufficient interest makes it
abundantly clear that it is not confined to litigants or parties
before the subordinate court that has rendered the order of
constitutional invalidity.
This
is fortified by the fact that confirmation proceedings under section
175(3) to confirm or vary the order can be brought to this Court not
only by way of appeal but also by means of an application.
This
clearly signifies that locus
standi
is extended to any person with a sufficient interest, even if he or
she has not been a party to the proceedings a
quo.
(ii)
Secondly, unlike the position that obtains under section 85(1) of the
Constitution, a person invoking the Court's jurisdiction under
section 175(3) is not required to allege and prove any infringement
of his or her own fundamental rights or those of any other person.
See in this regard Ferreira's
case, supra,
at para. 235; M
& Anor v Minister of Justice, Legal and Parliamentary Affairs
N.O. & Ors
2016 (2) ZLR 45 (CC); Mudzuru
& Anor v Minister of Justice, Legal and Parliamentary Affairs &
Ors
CCZ 12/15.
What
is more important in assessing the requisite sufficient interest is
the nature, substance and gravity of the constitutional matter that
has prompted the person concerned to apply to this Court for a
determination and consequential relief.
(iii)
Thirdly, it is pertinent to have regard to the provisions of Rule 31
of the Constitutional Court Rules.
This
rule governs the procedure for confirmation of an order of
constitutional invalidity.
Rule
31(2) relates specifically to the filing of heads of argument by the
parties to the proceedings before the court a
quo,
where the registrar or clerk of that court has, acting in terms of
Rule 31(1), filed with the Registrar of this Court the relevant
record of proceedings, including the court order for confirmation.
On
the other hand, Rule 31(3) entitles "any person or entity of
State” to appeal against an order of constitutional invalidity,
while Rule 31(5) enables 'a person or entity of State' to apply
for the confirmation of any such order.
Both
subrules require the appellant or applicant in question to be
“entitled to do so” i.e.
to appeal or apply, as the case may be.
What
is not provided for, and what is obviously a casus
omissus,
is the recourse to an appeal or application to vary an order
concerning constitutional validity, as is expressly envisaged by
section 175(3) of the Constitution.
In
any event, what is self-evident from the provisions of Rule 31 is
that the prescribed procedures for confirmation or otherwise are not
confined to the parties or litigants a
quo
but extend as well to any person or State entity that is entitled to
appeal or apply by reason of being vested with a sufficient interest
in the matter.
The
submission made on behalf of the applicant is that every citizen has
a sufficient interest under section 175(3) of the Constitution to
approach this Court to vindicate and protect the Constitution.
It
is also contended that any citizen has an automatic and sufficient
interest in any matter relating to the Constitution.
It
is therefore necessary, so it is argued, to draw a distinction
between citizens and non-citizens.
This
position, in my view, is not entirely tenable.
While
I agree that being a citizen by birth is a relevant factor, I do not
think that citizenship per
se
can invariably be regarded as an automatic and exclusive criterion in
order to establish legal standing under section 175(3).
It
is perfectly conceivable that a non-citizen and even a foreign
resident might be entitled to approach this Court as having the
requisite sufficient interest in the matter.
Each
case will depend upon the terms and ramifications of the court order
that is the subject of confirmation proceedings as well as the
personal attributes and circumstances of the individual applicant
concerned.
The
fact that he or she is not a citizen, whether by birth or otherwise,
does not preclude him or her from approaching this Court in order to
either vindicate or challenge an order concerning constitutional
validity made by any subordinate court.
As
I have postulated earlier, in assessing “sufficient interest” in
the context of section 175(3), it is of critical importance to have
regard to the purpose for which the person in question has appealed
or applied to this Court to confirm or vary the order of
constitutional invalidity rendered by the lower court.
Turning
to the applicant in
casu,
the reasons that he proffers for mounting the present application
revolve around the nature and effect of the orders made by the court
a
quo
and what has transpired thereafter.
To
recapitulate, he firmly believes that the President acted
constitutionally in extending the tenure of office of the incumbent
Chief Justice for a further 5 years. He also believes that judges of
the Supreme Court and those acting as judges of the Constitutional
Court are entitled to elect to retire at the age of 75 years.
He
is concerned by the fact that the Registrar of the High Court has
failed to process the orders of the court a
quo
in conformity with the Rules of this Court, thereby leaving them
intact and unaffected by the requirements of section 175(1) of the
Constitution.
He
is also aggrieved by what he perceives to be the deliberate strategy
adopted by the third, fourth and fifth respondents to avoid and
subvert the requirements of section 175(1) and the failure of the
first, second and sixth respondents to realise the impact of that
strategy.
He
accordingly claims that he is entitled to a correct and final
pronouncement on the matter so as to avoid the relevant provisions of
the Constitution being rendered redundant.
As
against this, none of the respondents in
casu
has questioned the veracity of the applicant's convictions, other
than to ridicule them as the subjective views of a mere “busybody”.
In
the event, his averments and assertions remain substantially
unchallenged and I see no cogent reason to discredit or discount
them.
As
an “alert citizen” he wishes to ensure that the strictures of the
Constitution are duly complied with and that its integrity is
appropriately preserved. He also wishes to defend the conduct of
Parliament in the enactment of section 186 of the Constitution as
well as the conduct of the President extending the tenure of the
incumbent Chief Justice pursuant to that section.
All
in all, I am of the considered view that the applicant is motivated
in instituting the present application both by his own interest as a
concerned citizen and in the general public interest in a matter of
paramount public importance.
In
short, he is actuated by the desire to vindicate the provisions of
the Constitution pertaining to judicial tenure.
In
these circumstances, I am of the considered opinion that the
applicant has put forward a very compelling case for establishing the
requisite “sufficient interest” within the contemplation of
section 175(3) of the Constitution, for the purpose of contesting the
propriety of the orders rendered by the court a
quo
under judgment No. HH264-21 on 15 May 2021.
It
follows that the preliminary objection to the applicant's locus
standi in judicio
is without merit and cannot be sustained. It is accordingly
dismissed.
Ultimately,
what must be borne in mind is that the respective positions and
contentions of the parties in confirmation proceedings do not
constitute any valid limitation to the wide and relatively unfettered
review jurisdiction conferred upon this Court by the provisions of
section 175 of the Constitution.
As
was appositely observed in S
v Chokuramba
CCZ 10/19, confirmation proceedings require this Court to conduct a
thorough investigation of the matter at hand “irrespective of the
finding of constitutional invalidity by the lower court and the
attitude of the parties” (at p 6).
This
is because “the involvement of the Constitutional Court in the
process of determination of the constitutionality of the law or the
conduct of the President or Parliament through confirmation
proceedings is mandatory” (at pp 2-3).
Absence
of Leave to Sue Respondent Judges
It
is common cause that, before instituting proceedings in the court a
quo,
the third respondent herein did not seek and obtain leave to sue the
second to the eighteenth respondents in that matter, who were at that
time the Chief Justice, Deputy Chief Justice, Acting Judges of the
Constitutional Court, Judges of the Supreme Court and Acting Judges
of the Supreme Court.
The
court a
quo
reasoned that such leave to sue was unnecessary for a variety of
reasons:
(i)
The first was that the relevant rule of court only applied to actions
instituted by way of summons and not to application proceedings.
(ii)
The second was that the applications before the court were made in
terms of section 85 of the Constitution and there was no requirement
for leave to be granted in an application made in terms of that
section.
(iii)
Lastly, the court opined that the respondents in question were cited
in their official capacities and had not filed any opposing papers
challenging their citation without leave.
In
the event, the court found that the failure to obtain the leave of
the court to sue the judges in question did not nullify or render the
entire proceedings fatally defective.
Rule
18 of the High Court Rules 1971 stipulates as follows:
“No
summons or
other civil process
of the court may be sued out against the President or against any of
the judges of the High Court without the leave of the court granted
on court application being made for that purpose.” (my emphasis)
It
is not in dispute that both the Chief Justice and the Deputy Chief
Justice are also judges of the High Court by operation of section
170(a) of the Constitution.
In
my view, it must also be accepted that Rule 18 of the High Court
Rules applies as well to judges of the Supreme Court by dint of Rule
73 of the Rules of the Supreme Court 2018.
The
latter rule provides that in any matter not dealt with in the Rules
of the Supreme Court the practice and procedure of that court shall
follow, as closely as may be, the practice and procedure of the High
Court in terms of the High Court Act [Chapter
7:06]
and the High Court Rules.
Thus,
any suit lodged in the Supreme Court against a judge of that court
would be subject to the grant of leave to sue in accordance with Rule
18, as applied by extension to the practice and procedure of the
Supreme Court.
That
being so, it would be highly illogical and irregular if a suit
instituted in the High Court against a judge of the Supreme Court
were to be excluded from the protective ambit of Rule 18.
Having
regard to the purpose underlying Rule 18, viz.
to shield and safeguard judges against frivolous or vexatious
litigation, it seems to me that the rule must perforce be extended
and construed so as to embrace and protect all judges of the superior
courts, in addition to judges of the High Court, irrespective of the
court in which they may be sued.
At
the relevant time, the fourth to the eighteenth respondents in the
proceedings a
quo
were substantive judges of either the Supreme Court or the High
Court.
It
follows that Rule 18 of the High Court Rules would have been
applicable to any “summons or other civil process…….. sued out
against” the second and third respondents as well as the fourth to
the eighteenth respondents in the proceedings a
quo.
Mr
Dracos
defends the stance taken by the third respondent, qua
applicant a
quo,
and the position adopted by the court a
quo
in that regard.
He
submits that an application made under section 85 of the Constitution
does not require leave to sue any judge in terms of Rule 18 of the
High Court Rules. He relies for this proposition on the decision in
Zimbabwe
Lawyers for Human Rights & Anor v President of the Republic of
Zimbabwe
2000 (1) ZLR 274 (SC) (the ZLHR
case).
Rule
18 is designed to avoid frivolous or vexatious suits against sitting
judges or the President and this aspect, so he argues, is already
catered for in section 85 of the Constitution.
Mr
Dracos
accepts that the court a
quo
did not address or consider whether the citation of the judges was
frivolous or vexatious. However, so he contends, the consideration of
that question was not necessary or relevant given the relief that was
sought from the High Court.
As
against this, Mr Zhuwarara
distinguishes the decision in the ZLHR
case on the basis that the judgment in that case did not relate to
section 85 of the Constitution but turned on the absence of any
equivalent to Rule 18 of the High Court Rules in the Supreme Court
Rules that were in force at that time.
He
submits that the rationale behind Rule 18 is to protect the President
and sitting judges against frivolous and vexatious proceedings.
He
further relies upon Nicolle
v Minister of Lands & Anor
2003 (1) ZLR 280 (H) for the submission that the intention behind
Rule 18 is that leave to sue must be sought and obtained first before
proceedings are filed for substantive relief against a judge.
Before
valid proceedings could eventuate in the matter a
quo
it was imperative that a separate application be instituted
beforehand to obtain leave to sue the judges concerned.
Consequently,
the decision of the court a
quo
was a nullity because the court proceeded without regard to Rule 18
and therefore lacked the necessary jurisdiction to deal with the
matter. This renders the proceedings a
quo
susceptible to summary negation by this Court for want of
jurisdiction.
Accordingly,
so it is argued, there is no need for this Court to relate to the
merits of the present disputation.
As
there were no valid proceedings a
quo,
it follows that the constitutional issues therein were improperly
determined. Therefore, this Court, employing its supervisory review
powers, should set aside the impugned orders a
quo
and substitute them with an order dismissing the application for want
of leave to institute proceedings.
Mr
Uriri,
for the applicant, agrees that the court a
quo
misdirected itself in finding that Rule 18 of the High Court Rules
does not apply to applications but only to actions by way of summons.
This was contrary to the rationale of Rule 18.
Although
the court took the view that the judges were sued in their official
capacity, the substance of the suit was against the judges in their
personal capacity. Consequently, the proceedings a
quo
were a nullity for want of jurisdiction.
Nevertheless,
Mr Uriri
submits that the matter should not end there.
This
is because the substance of the present proceedings is fundamental to
the integrity of the Constitution and the meaning of section 186(4)
of the Constitution must be pronounced upon.
Because
of the effect of the orders a
quo
on the application of section 186(4), there must be a decision by
this Court to ensure finality in this matter. This is so despite the
nullity of the proceedings a
quo.
As
I have explained earlier, the court a
quo
rejected the objection to its assumption of jurisdiction on three
grounds:
(i)
That Rule 18 of the High Court Rules did not apply to applications;
(ii)
That there was no requirement for leave to sue to be granted in
applications under section 85 of the Constitution; and
(iii)
that the respondents in question were cited in their official
capacities only.
For
the reasons set out below, I am of the view that the court a
quo
manifestly misdirected itself in all three respects.
Dealing
firstly with the last aspect, there can be no doubt that the second
to the eighteenth respondents a
quo
were cited nomine
officio,
i.e.
in their official capacities.
However,
it is equally evident that those respondents were cited on the basis
that they would or might benefit personally, either immediately or in
the indeterminate future, from the amendments to section 186 of the
Constitution.
In
any event, the court a
quo
nonetheless proceeded to issue two distinct declarators:
(a)
The first declared that the second respondent, the incumbent Chief
Justice, ceased to hold office by operation of law.
(b)
The second declared that the extension of judicial tenure provided
for in section 186 of the Constitution did not apply to the second to
the fourteenth and the eighteenth respondents. (The exclusion of the
fifteenth, sixteenth and seventeenth respondents from the latter
declaratur
appears to have been premised on the finding that they were High
Court judges who were “just acting judges” of the Constitutional
Court and/or the Supreme Court).
It
is abundantly clear that the substantive impact of both declarators
had a definitive impact on the rights and interests of the
respondents in question.
Accordingly,
although they were cited in their official capacities, they were
substantively affected by the orders of the court a
quo
in their personal capacities. This serves to fortify the point that
leave to sue them should have been obtained before they were cited in
the proceedings a
quo.
As
regards the scope of Rule 18 of the High Court Rules, the court a
quo
patently misinterpreted the provisions of that rule.
There
is absolutely nothing in the wording of Rule 18 or any other rule to
justify the purported distinction between actions by way of summons
on the one hand and suits by way of application on the other.
Nor
is there anything in Rule 18 to support the curtailment of the
obvious breadth of the phrase “other civil process” so as to
exclude applications from its scope of coverage.
This
finding is reinforced by having regard to the rationale behind the
rule, to wit, to shield the Head of State as well as judges from
being harassed by frivolous or vexatious claims. See Gluck
v The Governor
1947 SR 143 at 146, cited with approval in the
ZLHR case,
supra,
at 277.
This
is an aspect that the court a
quo
pointedly overlooked in determining the preliminary objection before
it.
It
thereby failed to properly exercise its discretion in the matter.
If
it had applied its mind to the question, it would undoubtedly have
found that the blanket citation of all the sitting judges of the
Constitutional Court and Supreme Court was nothing less than
deliberate and gratuitous vexation.
I
now turn to examine the proposition, which was advanced by the
applicants a
quo
and endorsed by the court a
quo,
to the effect that there is no requirement for leave to sue to be
granted in an application made in terms of section 85 of the
Constitution.
The
judgment of the full bench of the Supreme Court in the ZLHR
case, supra,
appears to support this position.
In
considering the provisions of section 24 of the former Constitution
(the precursor to section 85 in the current Constitution), Gubbay CJ
stated as follows, at 277-278:
“The
fundamental purpose behind section 24(1) of the Constitution is to
afford anyone who has lawful cause for complaint to come directly
before the Supreme Court. Yet the right to do so is subject to
certain in-built limitations.
First,
where the question as to a contravention of the Declaration of Rights
was not referred by the High Court or a court subordinate to the High
Court in terms of section 24(2), no application for the determination
of such question will lie to the Supreme Court under subs (1).
Second,
the Supreme Court in the exercise of its original jurisdiction may,
by virtue of section 24(4)(a), determine without a hearing any such
application, which, in its opinion, is merely frivolous or
vexatious.…….. .
This
stricture is a sufficient protection against the possibility of
harassment being caused to the cited respondent. Where therefore the
relief claimed is against the office of the President, the aim of
Rule 18 is recognised and implemented in subsection (4)(a).
Third,
in accordance with the proviso to section 24(4) the Supreme Court
may, in the exercise of its discretion, decline to entertain an
application under section 24(1), or a referral under section 24(2),
if satisfied that adequate means of redress for the contravention
alleged are or have been available to the person concerned under
other provisions of the Constitution or under any other law. ……..
. This is precisely the same consideration material to an application
for leave under Rule 18.”
The
first in-built limitation referred to above is not directly relevant
in
casu,
but the second and third limitations are obviously pertinent.
They
demonstrate that section 24(4) of the former Constitution contained
specific safeguards against any direct application that was merely
frivolous or vexatious or which could be resolved through the
availability of other adequate means of redress. These safeguards
rendered it unnecessary to invoke Rule 18 of the High Court Rules or
any equivalent provision in any matter involving an application made
under section 24(1) of the Constitution.
Turning
to section 85 of the current Constitution, one finds that it does not
incorporate any similar safeguards against applications that are
afflicted with frivolity or vexatiousness or which are susceptible to
resolution through alternative remedies.
What
this means is that the application of Rule 18 or any other equivalent
is not rendered unnecessary or redundant in the context of section
85.
Therefore,
the contention that there is no need for leave to sue in an
application in terms of section 85, because it is already catered for
in that provision, is patently erroneous.
It
follows that the decision in the
ZLHR case,
predicated on a provision which is materially different in certain
respects from the present section 85, is clearly distinguishable and
inapplicable in
casu.
It
also follows that the requirement of prior leave to sue stipulated by
Rule 18 of the High Court Rules remains fully operative and
enforceable in relation to any application made in terms of section
85.
Additionally,
it is necessary to underscore the point that access to this Court or
any subordinate court under section 85 is subject to regulation by
rules of court. This is made explicitly clear by section 85(3) which
dictates that the rules of every court must provide for the procedure
to be followed in cases where relief is sought under section 85(1).
It is also spelt out in section 167(5) of the Constitution vis-a-vis
direct access to the Constitutional Court.
One
cannot institute an action or application in the High Court, or any
other court, without due observance of and compliance with the Rules
of that court.
The
Rules inform a litigant of what is required of him to access the
court concerned. If he fails to observe or comply with those Rules,
he will inevitably be non-suited.
To
conclude this aspect of the matter, I am satisfied that the
proceedings a
quo
were fatally defective and constitute a nullity for failure to comply
with Rule 18 of the High Court Rules and consequential lack of
jurisdiction by the court a
quo.
That,
however, does not signal the end of the matter.
The
question that remains is whether or not, despite the nullity of those
proceedings, this Court should nevertheless proceed to canvass the
merits of the application before us.
I
am of the considered opinion that it is necessary for the Court to
address and determine the merits of the application for the following
very compelling reasons:
(i)
First and foremost, it cannot be disputed that the matter is one of
paramount public importance.
Whether
or not the incumbent Chief Justice should continue in office to
perform the functions of that office for a further 5 years is
undoubtedly a question of critical public significance. The publicity
surrounding that question bears ample testimony to that fact. By the
same token, it is equally important that the possible extension of
tenure availed to other senior judges by section 186 of the
Constitution be resolved in order to obviate future controversy in
that regard.
The
obvious objection is that the substantive correctness of the judgment
a
quo
is currently pending before the Supreme Court on appeal from the
court a
quo.
In
my view, however, the pendency of that appeal and the possibility of
its being pre-empted should not detract from the overarching
supervisory jurisdiction of this Court, by virtue of section 167(3)
of the Constitution, in critical constitutional matters.
Ultimately,
it is this Court that makes the final decision as to whether or not
any law or conduct of the President or Parliament is constitutional.
And it is this Court that must confirm any order of constitutional
invalidity made by another court before that order has any force or
effect.
In
exercising its jurisdiction under section 175(3), the Court is not
confined to purely procedural or preliminary issues that may arise
for determination. In confirmation proceedings, the Court is
duty-bound to adjudicate all the relevant issues. These include not
only the procedural propriety of the proceedings a
quo
but also, more importantly, the juridical correctness of the
substantive findings of the subordinate court.
Moreover,
section 176 of the Constitution endows this Court with the inherent
power to protect and regulate its own process, taking into account
the interests of justice and the provisions of the Constitution.
In
all the circumstances, I am of the firm view that this Court should
proceed to address and determine the merits of this matter, not only
in order to bring it to finality but also in the interests of
justice.
Orders
of Constitutional Invalidity Requiring Confirmation
As
already stated, the court a
quo
issued two declaratory orders:
(i)
The first declared that the second respondent (the Chief Justice)
ceased to hold that office by operation of law.
(ii)
The second declared that the extension of office beyond the age of 70
years provided for in section 186 of the Constitution does not apply
to the second to the fourteenth and the eighteenth respondents (the
senior judges).
The
question that arises for determination is whether or not these
declarators amount to orders concerning constitutional invalidity
within the meaning of section 175(1) requiring the confirmation of
this Court in terms of section 175(3) of the Constitution.
Mr
Uriri
submits that this question must be answered in the affirmative and
that the orders made a
quo
have no effect unless confirmed by this Court.
The
nature of a judgment is not determined by its characterisation but by
its dictates and effects. One must look at its substance and true
nature and not at its form.
The
court a
quo
stated that the purported extension of office of the incumbent Chief
Justice remains a nullity and was void ab
initio.
In
effect, the court found that the election to continue in office made
by the Chief Justice, as approved in writing by the President, was
invalid. The court also found, albeit indirectly, that section 186(4)
of the Constitution was invalid and ineffective.
The
effect of both orders was to render invalid the conduct of the
President as well as that of Parliament.
There
was clearly a declaration of invalidity within the meaning of section
175(1) and it requires confirmation under section 175(3) of the
Constitution.
In
response, Mr Dracos
concedes that the orders of the court a
quo
declared the conduct of the President and Parliament to be invalid
without directly citing them.
Mr
Zhuwarara
notes that this concession on behalf of the fourth and fifth
respondents is correct.
One
must look to the reasons and orders of the court a
quo
to determine the effect of their substance.
These
orders invalidated the decision of the President to allow the
extension of office of the incumbent Chief Justice as well as the
conduct of Parliament in enacting section 186 of the Constitution.
They
are therefore subject to confirmation by this Court.
There
can be no doubt that, in terms of section 175(1) of the Constitution,
the High Court, as a subordinate court, is perfectly competent to
make an order of constitutional invalidity. However, any such order
will have no force or effect unless it is confirmed by this Court.
This
is because section 167(3) and section 175(1) explicitly declare that
an order of constitutional invalidity made by another court has no
force before and unless that order is confirmed by the Constitutional
Court.
Section
167(3) also makes it clear that this Court makes the final decision
as to whether an Act of Parliament or conduct of the President or
Parliament is constitutional.
Sections
175(1) and 167(3) serve distinct yet harmonious purposes, emphasising
the express oversight of this Court over orders of constitutional
invalidity made by subordinate courts. See Makamure
v Minister of Public Service, Labour and Social Welfare & Anor
CCZ 01/20, at p2.
Thus,
section 175(3) vests in this Court the exclusive competence to
preside over confirmation proceedings, in which proceedings the Court
makes the final determination as to whether any law or conduct of the
President or Parliament is consistent or inconsistent with the
Constitution.
Turning
to the two orders made by the court a
quo,
it will be seen that they contain no direct reference to the concept
of constitutional invalidity.
Nevertheless,
it is a settled principle of law that the true nature of a court
order is a matter of substance and not form.
Thus,
to determine whether an order is an order of constitutional
invalidity, one must look to the substance of the order. See
President
of the Republic of South Africa v SARFU
1999 (2) SA 14 (CC); Eke
v Parsons
2015 (2) BCLR 1319 (CC).
A
closer reading of the orders in
casu
and their substance shows the following:
The
first order declares that the incumbent Chief Justice ceased to hold
that office by operation of law.
The
inescapable effect of that order was to declare as invalid the
conduct of the President, as per
his letter of 11 May 2021, which conduct validated the extension of
tenure of the Chief Justice.
As
a result, the court a
quo,
in substance, held that the conduct of the President was invalid as
being contrary to the provisions of the Constitution.
Turning
to the second order, by holding that section 186 of the Constitution
did not apply to all the judges who were cited as respondents, the
court a
quo
effectively declared that section 186(4) was invalid.
The
provisions of section 186 give the judges in question the option to
elect to retire upon reaching the age of 70 years or to continue in
office until they reach the age of 75 years.
The
court a
quo
arrived at the decision that the election to extend tenure did not
apply to sitting judges upon its finding that Parliament had amended
a term limit provision and thereby violated the provisions of section
328(7) of the Constitution.
There
can be no doubt that the judgment of the court a
quo
made, in effect, a finding of constitutional invalidity of the
conduct of Parliament in enacting section 186 in violation of section
328(7).
By
doing so, it also rendered otiose the provisions and purpose of
section 186(4).
The
substance and effect of the orders in
casu
are unquestionably tantamount to orders of constitutional invalidity
within the contemplation of section 175(1) of the Constitution.
As
was spelt out in S
v Chokuramba
CCZ10/19, only the Constitutional Court has the final say concerning
the constitutionality or otherwise of any law or conduct of the
President or Parliament.
To
the extent that the court a
quo
effectively invalidated section 186(4) as well as the conduct of the
President and Parliament, the final authority to confirm or vary the
orders of that court rests with this Court.
Moreover,
the involvement of the Court in the process of determining the
constitutionality of any law or conduct of the President or
Parliament through confirmation proceedings is mandatory.
There
can therefore be no doubt that this Court is properly seized with the
matter insofar as it pertains to questions of constitutional
invalidity. Inasmuch as the matter is within its exclusive
jurisdiction, the Court cannot renounce or abdicate its
constitutional duty.
To
sum up, the impugned orders of the court a
quo
constitute orders concerning constitutional invalidity as
contemplated in section 175(1) and they are therefore subject to
confirmation or variation in accordance with section 175(3) of the
Constitution.
Correctness
of Judgment of Court a
Quo
The
determination of this matter on its merits hinges upon the
correctness of the judgment a
quo,
firstly, in its interpretation of section 186 and section 328 of the
Constitution and, secondly, in its findings on the alleged violation
of the right to equal protection of the law and the right of access
to the courts.
As
regards the first aspect, the court a
quo
found that sections 186 and 328 were not in conflict but must be read
together and with the Constitution as a whole.
The
court concluded that section 186 was a term limit provision and that
it had the effect of extending the length of time that a person may
hold office as a judge of the Constitutional Court and the Supreme
Court. The court reasoned that tenure has to do with term of office
and term of office has to do with time. Both fixed term and age-based
term have to do with time and, therefore, the inescapable conclusion
is that varying retirement age amounts to varying a term limit.
With
reference to section 186(4), the court found that its explicit
reference to section 328(7) would be rendered superfluous or nugatory
if it is found that section 186 is not a term limit provision.
The
court also relied on the decision in Justice
Alliance of South Africa v President of the Republic of South Africa
& Others
2011 (5) SA 388 (CC) (the JASA
case), at para 91, as confirming that age is an indifferent criterion
which can and does define and can be used to extend a term of office,
as was the case with section 186.
In
reading section 186(4) together with section 328(7), the court
concluded that the former does not apply to judges of the
Constitutional Court and Supreme Court who held office before the
amendment of section 186. Section 186(4) must therefore be understood
as being applicable to persons who are appointed to those judicial
offices subsequent to the amendment.
As
regards the right to equal protection of the law, the court held that
the continued occupation of office by the incumbent Chief Justice
after he had turned 70 years old violated the applicants right as
enshrined in section 56(1) of the Constitution. The applicants were
entitled to the protection and benefit of the law in the sense of
having public office occupied in accordance with and not in violation
of the provisions of the Constitution.
As
for the right of access to the courts, it was observed that the rule
of law affords the right to litigate before an impartial and
independent court. If judicial officers have their age limit extended
contrary to the express provisions of the Constitution which prevent
incumbents from having their terms of office extended for them while
they are in office, questions will reasonably abound as to the extent
to which the courts can be independent.
Additionally,
the election of a judge to continue in office is subject to
acceptance by the President and this has the effect of subjecting the
term of office or its extension to the control of the Executive.
Consequently,
the court held that if any extension of office is afforded to the
judges in question, then there would be a violation of the applicants
right as protected by section 69(3) of the Constitution.
The
current section 186, which replaced its precursor in its entirety,
was introduced by section 13 of the Constitution of Zimbabwe
Amendment (No.2) Act (No.2 of 2021) promulgated in May 2021.
Subsections
(1), (2) and (3) provide that the Chief Justice, Deputy Chief
Justice, and judges of the Constitutional Court and Supreme Court
hold office until they reach the age of 70 years when they must
retire unless, before they attain that age, they elect to continue in
office for an additional 5 years.
Subsection
(2), which deals with judges of the Constitutional Court, is somewhat
different in that those judges are appointed for a non-renewable term
of not more than 15 years, but they must retire earlier if they reach
the age of 70 years, unless they elect to continue in office for a
further 5 years.
Under
all three subsections, the election to continue in office is subject
to the acceptance by the President, after consultation with the
Judicial Service Commission, of a medical report as to the mental and
physical fitness of the judges concerned to continue in office.
Subsection
(4), the seemingly controversial provision, stipulates that
subsections (1), (2) and (3) shall apply to the continuation in
office of the judges referred to in those subsections,
notwithstanding the provisions of subsection (7) of section 328.
Subsection
(5) provides that judges of the High Court and all other judges hold
office until they reach the age of 70 years, when they must retire.
Subsection
(6) enables the appointment of judges for a fixed term, but
stipulates that such judges cease to hold office upon reaching the
age of retirement, even if their term of appointment has not expired.
Subsection
(7) provides for a judge to continue in office, even though he or she
has reached the age of retirement or reached the end of his or her
term of office, for the purpose of dealing with any proceedings
commenced while he or she was a judge.
Subsection
(8) enables a judge to resign from office at any time.
Lastly,
subsection (9) declares that the office of a judge must not be
abolished during his or her tenure of office.
Section
328 of the Constitution governs the manner in and conditions under
which the Constitution may be amended.
By
virtue of section 328(6), where a Constitutional Bill seeks to amend
any provision of Chapter 4 or Chapter 16, it must be submitted to a
national referendum for approval.
Section
328(7) stipulates that “an amendment to a term-limit provision, the
effect of which is to extend the length of time that a person may
hold or occupy any public office, does not apply in relation to any
person who held or occupied that office, or an equivalent office, at
any time before the amendment”.
The
phrase 'term-limit provision' is defined in section 328(1) to
mean “a provision of this Constitution which limits the length of
time that a person may hold or occupy a public office”.
Section
328(8) states that subsections (6) and (7) must not be amended in the
same Bill and that amendments to both those subsections may not be
subjected to the same referendum.
Lastly,
section 328(9) provides that section 328 may be amended only by
following the procedures set out in subsections (3), (4), (5) and
(6), as if section 328 were contained in Chapter 4.
The
critical question that arises for determination in
casu
is whether the court a
quo
correctly analysed the provisions of section 186 (as amended) and
section 328 in arriving at the conclusion that there is no meaningful
legal difference between age limits and term limits.
Mr
Uriri
submits that subsections (1), (2) and (3) of section 186 extend the
age limit of retirement to 75 years but do not extend any term limit
as envisaged in section 328(7). Thus, the term of 15 years prescribed
in section 186(2) is a term limit but is subject to the age limit of
70 or 75 years. Parliament did not extend any term limit but only
amended the age limit. A term of office is different from the
conditions to which it is subjected.
Mr
Dracos
accepts that there is a difference between an age limit and a term
limit.
However,
he relies upon the JASA
case, supra,
to support the judgment of the court a
quo.
As
regards section 186(4), he submits that it attempts to amend section
328(7) and refers to section 332 of the Constitution which defines
the word “amend” very broadly to include 'vary, alter, modify,
add to, delete or adapt'. Section 186(4) modifies and amends
section 328(7) and is therefore subject to approval by a referendum
in accordance with section 328(6).
Mr
Uriri
counters that section 186(4) creates a non
obstante
clause and, if there is any inconsistency between section 186(4) and
section 328(7), then it is section 186(4) that prevails.
In
any event, so he submits, section 186(4) does not amend section
328(7) but operates to supersede its provisions in relation to the
application and effect of section 186.
In
arriving at its decision, the court a
quo
appears to have relied fairly heavily on the judgment in the JASA
case, supra.
In particular, it cited the following passages, at paras 75 and 91
respectively:
“……..
it must be borne in mind that the extension a term of office,
particularly one conferred by the Executive or by Parliament, may be
seen as a benefit. The judge or judges upon whom the benefit is
conferred may be seen as favoured by it. While it is true, ……..
that the possibility of far-fetched perceptions should not dominate
the interpretive process, it is not unreasonable for the public to
assume that extension may operate as a favour that may influence
those judges seeking it.
The
power of extension
in
section 176(1) must therefore, on general principle, be construed so
far as possible to
minimise
the risk that its conferral could be seen as impairing the
precious-won
institutional
attribute of impartiality and the public confidence that goes with
it.”
[para 75] (my emphasis)
“It
follows that in exercising the power to extend the term of office of
a Constitutional
Court
judge, Parliament may not single out the Chief Justice.
The
provision does not allow any member of the category of Constitutional
Court judge to be singled out, whether on the basis of individual
characteristic, idiosyncratic feature or the incumbency of office.
Age
is an indifferent criterion that may be applied in extending the term
of office of a Constitutional Court judge.
Age
is an attribute that everyone attains.
Previous
judicial service is another criterion that may be indifferently
applied to all the judges of this Court.
The
Act provides that a Constitutional Court judge whose 12-year
term of office expires
before he or she has completed 15 years active service as a judge
must, subject
to attaining the age of 75 years,
serve for 15 years in this Court.” [para 91] (my emphasis)
In
order to assess the relevance and import of these passages, it is
necessary to contextualise the decision of the Constitutional Court
of South Africa.
The
application before the court arose from a decision by the President
of that country to extend the term of office of the Chief Justice for
5 years. The three applicants in the matter challenged the
constitutionality of the law that authorised the process by which the
term of office of the Chief Justice was extended and, if the law was
found to be valid, they put in issue the constitutional validity of
the conduct of the President in the process of extending that term of
office. The governing constitutional provision, section 176(1),
stipulated as follows:
“A
Constitutional Court judge holds office for a
non-renewable term of 12 years,
or until
he or she attains the age of 70,
whichever occurs first, except where an Act of Parliament extends the
term of office of a Constitutional Court judge.” (my emphasis)
Section
4 of the relevant Act, the Judges Remuneration and Conditions of
Employment Act 2001, provided that a Constitutional Court judge,
whose 12 year term of office expired or who reached the age of 70
years before completing 15 years active service, must continue in
office until the completion of 15 years active service or until that
judge attained the age of 75 years, whichever occurred the sooner.
Section
8(a) of the Act permitted the further extension of the term of office
of the Chief Justice exclusively. It allowed a Chief Justice, whose
12 year term of office was to expire and who would have completed 15
years active service, to remain as the Chief Justice at the request
of and for a period determined by the President.
The
court noted, at para 92, that section 4 of the Act entailed that to
receive a full judicial pension on retirement a judge must have
completed at least 15 years active service, subject to attaining the
age of 75 and to a minimum 12 year term in the Constitutional Court.
However,
it was unanimously found that section 8(a) of the Act was
inconsistent with section 176(1) of the Constitution and was
therefore invalid. The court opined as follows, at paras 93 to 94:
“Unlike
the
criteria of age and service,
the offices of Chief Justice and Deputy Chief Justice are by
definition singular and person-specific. They can at any one time be
filled respectively by only one incumbent. Section
176(1) does not permit the holders of these offices to be singled out
individually for extension by virtue of their incumbency of office.
For this purpose, the holders of these offices are merely judges of
this Court. Their
terms, if they are to be extended, must be extended uniformly with
those of the other members of the Court.”
[para 93] (my emphasis)
“To
create a special category for the extension of the term of office of
the Chief Justice or Deputy Chief Justice would be in each case to
single out one judge. It
would be to single out a member of this Court on the basis of
incumbency of an office that is irrelevant to the delineation of the
members of this Court in section 176(1). This section 176(1) does not
license.”
[para 94] (my emphasis)
In
the event, the court declared section 8(a) of the Act and the
decision of the President to be inconsistent with the Constitution
and therefore invalid. The court further held the consequent
extension of the term of office of the Chief Justice to be of no
force and effect.
As
is evident from the above-cited passages, which I have deliberately
quoted in
extenso,
the principal issue for determination in the JASA
case was markedly different from the issue that this Court is called
upon to adjudicate.
In
that case, the question to be decided was whether the statutory
provision under scrutiny could validly single out the Chief Justice
for extension of office at the behest of the President.
The
court found that the Constitution did not allow Parliament to single
out the Chief Justice or the Deputy Chief Justice and that their
terms of office, if they were to be extended, had to be extended
uniformly with those of the other judges of the court.
What
was found to be objectionable was the unconstitutional
differentiation for the purpose of extension of office.
While
age and length of service were indifferent criteria that could
validly be applied in extending the term of office of judges,
incumbency of a particular office was not a constitutionally
permissible attribute for that purpose.
My
reading of the JASA
case evinces nothing to support the conclusion arrived at by the
court a
quo,
to wit, that there is no critical difference between age limits and
term limits in evaluating the proper interrelationship between
section 186 and section 328 of the Constitution.
The
court appears to have selectively decontextualized and misapplied the
passages that it cited from the JASA
case in order to bolster its own conclusion.
In
interpreting the Constitution, as is the case with any other
legislative enactment, it is necessary to have regard to the words
used and to deduce from them what the particular word, phrase or
section to be deciphered means. In doing so, one must take into
account the overall context in which it appears. Moreover, all
relevant provisions that bear on the subject for interpretation must
be considered together and as a whole, so as to give effect to the
objective of the Constitution, having regard to the nature and scope
of the rights, interests and duties that form the subject matter of
the provisions to be construed. See Hewlett
v Minister of Finance & Anor
1981 ZLR 571 (S); Tsvangirai
v Mugabe & Ors
CCZ 24/17.
Turning
to section 328(7) of the Constitution, the language used in that
subsection is relatively unambiguous as to the objective that it
seeks to achieve.
It
precludes the application of any amendment to a term-limit provision
“the effect of which is to extend the length of time that a person
may hold or occupy any public office” in relation to any person who
held or occupied that office at any time before the amendment came
into effect.
A
'term-limit provision' as defined in section 328(1), as one which
“limits the length of time that a person may hold or occupy a
public office”.
As
regards section 186 of the Constitution, a detailed analysis of that
section reveals the recognition, throughout its provisions, of a
specific distinction between various ages of retirement on the one
hand and non-renewable or fixed terms of office on the other.
Thus,
subsections (1), (2), (3) and (5) prescribe “the age of seventy
years” as being the standard age of retirement for the Chief
Justice, Deputy Chief Justice, judges of the Constitutional Court,
Supreme Court and High Court and any other judges.
In
contrast, subsection (2) specifically provides for the appointment of
judges of the Constitutional Court “for a non-renewable term of not
more than fifteen years”. It also provides for the option of their
appointment to the Supreme Court or the High Court “after the
completion of their term”.
Subsection
(6) enables the appointment of judges of the Supreme Court, High
Court or any other court “for a fixed term” subject to the
cessation of their office upon reaching “the age of seventy-five
years …….. or seventy years” even if “the term of [their]
appointment has not expired”.
Finally,
subsection (7) stipulates that, even though a judge “has resigned
or reached the age of retirement” or “reached the end of his or
her term of office” he or she may continue to sit as a judge for
the purpose of dealing with any prior uncompleted proceedings.
As
I understand the foregoing provisions, taken in their plain and
grammatical sense, they draw a clear distinction between tenure of
judicial office as delineated by specific ages of retirement and
tenure as defined by fixed or non-renewable terms of office.
In
certain instances, viz.
in subsections (2) and (6), the two forms of tenure are combined so
as to give precedence to the prescribed age of retirement over the
fixed term of office.
In
any event, the intention underlying all of these provisions, as I
perceive it, is to differentiate rather than assimilate the criteria
to be applied in determining judicial tenure of office.
The
crisp question to be determined is this: What is the meaning to be
ascribed to a “term-limit provision” in the context of section
328(7) vis-a-vis
the provisions of section 186 as amended?
The
definition of that phrase, in section 328(1), would suggest that it
refers to the limitation of a specific “length of time” as
opposed to the non-specific effluxion of time.
If
that is correct, it would follow that age, as a variable criterion,
does not fix any specific length of time for holding or occupying
public office, but determines tenure by reference to the varying ages
of the incumbents concerned.
This
would lead to the conclusion, which I take to be correct, that term
limits, as envisaged in section 328, are specifically provided for in
section 186 in only two distinct instances:
(i)
The first is section 186(2) which stipulates that judges of the
Constitutional Court are appointed “for a non-renewable term of not
more than fifteen years”; and
(ii)
the second is section 186(6) which enables the appointment of a judge
of the Supreme Court, High Court or any other court “for a fixed
term”.
In
these two instances, the prescribed term limits cannot be extended so
as to apply to sitting incumbents without contravening the provisions
of section 328(7).
Conversely,
the option to continue in office for an additional 5 years after
reaching the mandated retirement age of 70 years, as contemplated in
subsections (1), (2) and (3) of section 186, does not constitute the
extension of any term limit.
The
court a
quo
did not differentiate between age limits and term limits and
conflated them by ascribing a generalised meaning to term limit
provisions. Consequently, it misinterpreted and misapplied the
concept of a term limit in the context of judicial tenure under the
provisions of section 186.
The
new section 186, in subsections (1), (2) and (3), operated to amend
only the previously stipulated age limit for retirement, from 70 to
75 years. It did not have the effect of amending or extending the
non-renewable term limit of 15 years specified in section 186(2) or
the fixed term limits envisaged in section 186(6).
I
am fortified in this conclusion by having regard to the dictionary
definitions of the words 'term' and 'period'.
A
'term' is defined as “a fixed or limited period for which
something, for example, office, imprisonment or investment, lasts or
is intended to last” while a 'period' is defined to mean “a
particular length or portion of time”.
In
the light of these definitions, a term is a period of time, which is
ordinarily measured by using a particular unit of time, and which has
a known beginning and a determinable end.
Age,
being a variable attribute depending upon the age of a person at any
given time, does not and cannot denote any particular length or
portion of time.
To
illustrate this point, in a situation where two individuals, one aged
60 and the other aged 65, both enter into the same public office at
the same time and are required to retire upon attaining the age of
70, the latter would be obliged to retire 5 years earlier than the
former. This clearly negates the concept that an age limit
constitutes a specific and determinate length of time or term limit
for measuring tenure of office.
Thus,
a provision that prescribes an age limit for the holding or
occupation of a particular office is not a “term-limit provision”
within the meaning of subsections (1) and (7) of section 328 of the
Constitution. Any other interpretation would be contrary to the
ordinary and grammatical meaning of the phrase “term-limit”.
By
way of contrast, the Constitution abounds with a myriad of provisions
that unquestionably constitute specific term limit provisions within
the parameters of section 328:
First
and foremost, there is section 95(2) which expressly stipulates that
the term of office of the President is 5 years and coterminous with
the life of Parliament.
Then
there is section 197 which provides that an Act of Parliament may
limit the terms of office of chief executive officers or heads of
government-controlled entities and public enterprises owned or wholly
controlled by the State.
Again,
in terms of section 205(2), the term of office of a Permanent
Secretary is a period of up to 5 years and is renewable once only.
As
regards the Defence Forces, section 216(3) states that the Commanders
of the Defence Forces and their services are appointed for a term of
not more than 5 years, up to a maximum of two terms.
With
reference to the Police Service, the intelligence services and the
Prisons and Correctional Service, section 221(2), section 226(2) and
section 229(2) provide that the respective heads of these services
are appointed for a 5-year term which may be renewed once only.
Next
there is section 238(5), which stipulates that members of the
Zimbabwe Electoral Commission are appointed for a 6-year term and may
be re-appointed for one such further term.
Similarly,
by virtue of section 259(4), the term of office of the
Prosecutor-General is a period of 6 years and is renewable for one
further such term.
Finally,
section 310(3) provides that the term of office of the
Auditor-General is a period of not more than 6 years, up to one or
more periods not exceeding 12 years.
As
is self-evident, the tenure of all of the aforementioned public
offices is undoubtedly subject to a specific “term-limit provision”
within the meaning of section 328(1).
Consequently,
an amendment to any such provision, the effect of which is to extend
the length of time that a person may hold or occupy the public office
in question, falls squarely within the ambit of section 328(7).
Therefore,
by dint of the restriction imposed by section 328(7), such amendment
does not apply in relation to any person who held or occupied that
office, or an equivalent office, at any time before the amendment
came into force and effect.
I
now turn to consider the apparently problematic provisions of section
186(4) of the Constitution.
In
its consideration of this subsection and its relationship with
section 328(7), the court a
quo
quite correctly found that the former was not superfluous,
particularly in the light of the presumption against superfluity in
the interpretation of statutes. It also correctly opted to apply the
hallowed principle of interpretation which avoids any conflict in
constitutional provisions.
It
accordingly read section 186(4) and section 328(7) together to arrive
at the conclusion that section 186(4) did not apply to sitting
incumbents of the judicial offices referred to in subsections (1),
(2), and (3) of section 186 and that it must be understood as being
applicable only to persons who are appointed to those judicial
offices subsequent to the amendment of section 186.
With
great respect, I am constrained by fundamental principles of
legislative interpretation to reject the conclusion arrived at by the
court a
quo.
I
fully agree that different parts of the Constitution should, to the
extent that it is possible to do so, be harmoniously construed so as
to avoid any conflict between them. However, it is also an
established canon of construction that every legislative enactment
must be construed, unless otherwise expressed or necessarily implied,
as one that is “always speaking”.
In
other words, the enactment must be construed and applied to all
persons and circumstances that it governs, whether past, present or
future, in order to give effect to the enactment according to its
true spirit, intent and meaning.
This
time-honoured common law rule of interpretation is firmly codified in
section 11 of the Interpretation Act [Chapter
1:01].
What
this means in the context of subsection (4) of section 186 is that
the provisions of subsections (1), (2) and (3) apply to the
continuation in office of all the judicial officers referred to in
those subsections, including those judges who were incumbents of
their respective offices before section 186 was amended.
The
plain wording of section 186(4) makes it unambiguously clear that its
scope of coverage cannot be confined to apply to only those judges
who assume the offices in question after the amendment.
This
interpretation of section 186(4) does not, in my view, give rise to
any inconsistency, absurdity or superfluity.
The
only possible interpretive difficulty that might arise relates to the
application of the non
obstante
clause in section 186(4), i.e.
“notwithstanding subsection (7) of section 328”.
In
this regard, I do not agree with the submission by Mr Dracos
that this clause modifies and amends section 328(7). Nor do I accept
the contention by Mr Uriri
that it operates to supersede section 328(7), for that would result
in a glaring conflict between the provisions of section 186 and those
of section 328.
Rather,
I am inclined to construe subsection (4) of section 186 as having
been inserted in order to clarify and reinforce the position that
subsections (1), (2) and (3), in their amended form, do not
constitute amendments to any term-limit provision.
And
that being the case, they remain applicable to the continuation in
office of the incumbent judges identified in subs (4).
This
harmonised interpretation gives full meaning and substance to section
186(4), without occasioning any infringement of section 328(7) and
the restrictions on continuation in public office that its provisions
are designed to impose.
I
accordingly conclude that the provisions of section 186, taken in
their totality, do not operate to amend any term-limit provision as
contemplated by section 328.
The
reasoning and judgment of the court a
quo
to the contrary are insupportable and must therefore be vacated.
I
now turn to deal with the alleged violation of the right to equal
protection of the law and the right of access to the courts.
The
court a
quo
upheld the contentions of the third respondent in this regard and
consequently found that section 186 of the Constitution, as amended,
had the effect of violating the fundamental rights in question.
Section
56(1) of the Constitution declares that:
“All
persons are equal before the law and have the right to equal
protection and benefit of the law.”
Section
69(3) provides that:
“Every
person has the right of access to the courts, or to some other
tribunal or forum established by law for the resolution of any
dispute.”
As
regards section 56(1), the court a
quo
opined that this section is wider in its scope than the equivalent
section 18 in the former Constitution. This, so it reasoned, is
because it qualifies the protection and benefit of the law by the use
of the word “equal”.
Again
with the greatest of respect, this reasoning is fatally flawed.
The
use of the word 'equal' does indeed qualify the protection and
benefit of the law, but it does so by restricting rather than
broadening the scope of section 56(1).
What
this provision means is that all persons in a similar position must
be afforded equality before the law and the same protection and
benefit of the law.
As
was lucidly enunciated in Nkomo
v Minister of Local Government, Rural and Urban Development & Ors
2016
(1) ZLR 113 (CC), at 118-119:
“The
right guaranteed under section 56(1) is that of equality of all
persons before the law and the right to receive the same protection
and benefit afforded by the law to persons in a similar position. It
envisages a law which provides equal protection and benefit for the
persons affected by it. It includes the right not to be subjected to
treatment to which others in a similar position are not subjected. In
order to found his reliance on this provision the applicant must show
that by virtue of the application of a law he has been the recipient
of unequal treatment or protection, that is to say that certain
persons have been afforded some protection or benefit by a law, which
protection or benefit he has not been afforded; or that persons in
the same (or similar) position as himself have been treated in a
manner different from the treatment meted out to him and that he is
entitled to the same or equal treatment as those persons.”
In
essence, section 56(1) is a non-discrimination clause that guarantees
equality under the law.
The
applicant a
quo
(the third respondent in
casu)
did not make any allegation of unequal treatment or differentiation.
He did not demonstrate that he was denied the protection of the law,
while others similarly positioned were afforded such protection. He
failed to show that the enactment or amendment of section 186 of the
Constitution operated to discriminate against him in favour of others
in the same or similar position. He thereby failed to establish that
he had been denied equal protection and benefit of the law. In the
event, he entirely failed to establish any infringement of the rights
guaranteed by section 56(1).
It
follows that the court a
quo
misdirected itself in disregarding the third respondent's failure
to demonstrate any unequal treatment or differentiation between him
and other similarly positioned persons. Consequently, the court erred
in holding that the continued occupation of office by the incumbent
Chief Justice after he had turned 70 years old violated the third
respondent's rights as enshrined in section 56(1) of the
Constitution.
As
regards the right of access to the courts, it was found a
quo
that the right to litigate before an impartial and independent court
would be questioned if judicial officers were to have their age limit
extended contrary to the express provisions of the Constitution. It
was further observed that the acceptance by the President of the
election by judges to continue in office had the effect of subjecting
the process to the control of the Executive.
It
was accordingly found that there was a violation of the third
respondent's right as protected by section 69(3) of the
Constitution.
I
have already concluded that the election availed to sitting judges by
section 186 of the Constitution to extend their retirement age from
70 to 75 years does not involve the contravention of any express or
implied provision of the Constitution.
In
any event, and once again with all due respect, I am quite unable to
perceive how this extension of the prescribed retirement age, per
se,
could conceivably impinge upon the right to litigate before an
independent and impartial court.
On
the contrary, I would surmise that allowing presumably experienced
and seasoned judges of the superior courts to remain in office for a
longer period should, all other things being equal, serve to enhance
and optimise, rather than diminish or compromise, the delivery of
independent and impartial justice across the entire legal system.
As
for the supposed control of the Executive over the process of
extension of office, I fully endorse the dictum
in the JASA
case, supra,
which cautions against the risk of the power of extension of judicial
office being “seen as impairing the precious-won institutional
attribute of impartiality and the public confidence that goes with
it”.
However,
it must be borne in mind that this salutary warning was delivered in
a situation where the impugned statutory power entitled the South
African President, on his own initiative and at his own option, to
request the incumbent Chief Justice to remain in office for such
indefinite period as the President himself might determine.
Given
these characteristics, the unfettered power conferred upon the
President to extend the tenure of the Chief Justice might well be
perceived by the public as being akin to enabling the grant of a
sovereign boon specially bestowed upon a privileged subject, in
return for some unspecified favour or favours to be performed at some
stage in the foreseeable future.
In
the Zimbabwean situation, I do not think that the same criticism can
properly be levelled against the process of extension of judicial
office envisaged by section 186 of the Constitution.
The
process is subject to several crucial criteria:
(i)
First and foremost, it is the judge concerned who must elect to
continue in office for an additional 5 years, and it cannot possibly
be presumed that every judge would invariably elect to do so.
(ii)
Secondly, the judge is obliged to furnish a medical report as to his
or her mental and physical fitness to continue in office.
(iii)
Thirdly, the medical report so furnished must be accepted by the
President; and
(iv)
Lastly, the entire process is subject to consultation with the
Judicial Service Commission, an independent body established under
the Constitution and specifically mandated to secure and safeguard
the integrity of the judiciary.
(I
should note in passing that what must be accepted by the President is
the medical report as to the judge's mental and physical fitness as
opposed to his or her election to continue in office).
To
my mind, all of these requirements reflect what must be seen as a
measured and qualified process rather than one that is left to the
unbridled caprice of Executive whim.
For
all of the foregoing reasons, I am satisfied that the court a
quo
misconceived the provisions of section 186, as amended, and their
impact on the independence and impartiality of the judges concerned.
The court consequently erred in finding that section 186 violated the
third respondent's right of access to the courts as guaranteed by
section 69(3) of the Constitution.
To
conclude on the merits of this matter, it must be held, as I do, that
the court a
quo
fell into fundamental error concerning the interpretation and
constitutionality of section 186 of the Constitution.
Accordingly,
the judgment of the court and the declaratory orders made pursuant to
that judgment cannot be confirmed and must therefore be set aside.
Disposition
The
order sought by the applicant has three components:
(i)
The first is a declaration that the operative orders made by the
court a
quo
are orders of constitutional invalidity.
(ii)
The second is a declaration that these orders have no force unless
confirmed by this Court.
(iii)
The third is an order not confirming the orders a
quo
and setting them aside.
In
the latter respect, the applicant, in his heads of argument, submits
that an application under section 175(3) to vary an order necessarily
includes an application not to confirm an order of constitutional
invalidity. He relies upon the case of Mfundo
Mlilo v President of the Republic of Zimbabwe
SC179/20 as authority for that proposition.
Section
175(1) of the Constitution provides that an order concerning the
constitutional invalidity of any law or any conduct of the President
or Parliament has no force unless it is confirmed by this Court.
Section
175(3) enables any person with a sufficient interest to apply to this
Court to confirm or vary an order of constitutional invalidity made
by any court in terms of section 175(1).
As
was made clear in S
v Chokuramba
CCZ10/19, at p3, in proceedings pertaining to constitutional
invalidity, this Court is not bound by the subordinate court's
order of invalidity.
Pursuant
to a full review as to the correctness of that decision, the Court
may either confirm or vary it, taking into account all the relevant
facts and the applicable law. Having regard to the provisions of
section 175 taken as a whole, what is necessarily incidental to this
review is the power to refuse to confirm the order a
quo
and, where it is appropriate to do so, to set it aside.
As
has been concluded earlier, the orders made by the court a
quo
constitute orders of constitutional invalidity concerning the
validity of section 186 of the Constitution, as amended, the conduct
of Parliament in enacting that law, as well as the conduct of the
President relating to the extension of office of the incumbent Chief
Justice pursuant to that law.
I
have also concluded that the judgment of the court a
quo
is misdirected and erroneous in all three respects.
Consequently,
it cannot be confirmed and must be set aside.
The
applicant, being a person with sufficient interest, is therefore
entitled to the order that he seeks, albeit with appropriate
modifications.
As
regards costs, I see no reason to deviate from the general norm
applied in constitutional matters. This is that no party should be
penalised with an order of costs, save in exceptional circumstances.
I note as well that the applicant does not seek any costs in this
matter.
It
is accordingly ordered as follows:
1.
It is declared that paras 1 and 2 of the operative part of the
judgment of the High Court (No. HH264-21) are orders of
constitutional invalidity within the contemplation of section 175(1)
of the Constitution and have no force or effect unless confirmed by
this Court in terms of section 175(3) of the Constitution.
2.
It is hereby ordered that the aforesaid orders of the High Court,
being orders of constitutional invalidity, are not confirmed and are
hereby set aside.
3.
There shall be no order as to costs.
GWAUNZA
ACJ: I
agree
GARWE
JCC: I
agree
GOWORA
JCC: I
agree
HLATSHWAYO
JCC: I
agree
GUVAVA
AJCC: I
agree
Lovemore
Madhuku Lawyers,
applicant's legal practitioners
Civil
Division of the Attorney-General's Office,
first, sixth and seventh respondents legal practitioners
Kantor
and Immerman, second
respondent's legal practitioners
Zimbabwe
Human Rights NGO Forum,
third respondent's legal practitioners
Honey
and Blanckenberg, fourth and fifth respondents legal practitioners
