AN
APPLICATION FOR AN ORDER OF LEAVE FOR DIRECT ACCESS TO THE
CONSTITUTIONAL COURT
GARWE
JCC:
[1] This
is an application for an order of leave for direct access to the
Constitutional Court (“the Court”) in terms of section 167(5) of
the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“The
Constitution”) as read with Rule 21(2) of the Constitutional Court
Rules S.I. 61/2016 (“the Rules”). In the event that such leave is
granted, the applicant intends to bring an application before the
Court in terms of section 85 of the Constitution seeking an order to
the effect that the definition of a “marriage” provided in
section 2 of the Matrimonial Causes Act [Chapter
5:13]
(“the Act”) is constitutionally invalid because it deliberately
discriminates against unregistered customary unions.
[2]
The applicant accepts that the first respondent introduced a
Marriages Bill (HB 7, 2019) (“the Bill”) in Parliament and that
according to its long title its objectives are, inter
alia,
to
consolidate the law relating to marriages, to provide for the
recognition and registration of customary law unions, to provide for
the recognition of civil partnerships and to amend several statutes,
including the Matrimonial Causes Act. At the hearing of this matter
the Bill apparently had been transmitted to the Senate. A copy of the
Bill was not made available to the Court. It was, however, common
cause that the Bill was still to be debated in the Senate and that
the processes provided for in Part 6 of Chapter 6 as read with the
Fifth Schedule of the Constitution were still to be undertaken.
[3] In
these circumstances, it is unknown at this stage what the final fate
of the Bill will be. It would therefore be most inappropriate for
this Court to make any definitive pronouncement on a matter that is
still under debate by Parliament. As the matter is not ripe for
consideration by this Court, it would not be in the interest of
justice that leave be granted for the applicant to approach this
Court directly.
FACTUAL
BACKGROUND
[4] The
applicant is a universitas
whose
objectives, inter
alia,
include
dealing with all matters affecting the professional interests of
women lawyers and promoting the legal status and rights of women and
children. The application in respect of which direct access is sought
is an application for a declaration of rights in terms of section 85
of the Constitution. The applicant contends that the definition of
what constitutes a marriage under section 2 of the Act is
unconstitutional in three respects. First, it excludes unregistered
customary law unions. Therefore the safeguards that ensure fairness
and equity in the division of property amongst spouses upon divorce
are not available to women married under this regime. This amounts to
discrimination and violates section 56(1) of the Constitution as the
needs of the spouses and their indirect contributions during the
subsistence of the union are not taken into account. Secondly, the
failure to treat unregistered customary unions as valid also violates
the rights of the spouses to language and culture (section 63) and,
third, human dignity (section 51).
[5] The
applicant accepts that the Bill has been transmitted to the Senate.
Although it engaged Parliament in order to include a clause
recognising the validity of unregistered customary unions, it alleges
that its proposals were not taken up. If given leave it will seek a
declaration that section 2 of the Act is constitutionally invalid. It
will also seek an order that pending the process of remedying the
defect, section 2 of the Act be read to include an unregistered
customary law union.
SUBMISSIONS
BEFORE THIS COURT
[6] Asked
during oral submissions whether the matter was ripe for adjudication
by the Court and whether this was not a matter for Parliament,
counsel for the applicant, whilst acknowledging that no-one can tell
at this point in time what the fate of the Bill in the Senate will
be, as well as thereafter, argued that the matter is ripe for
determination by this Court. She stated that there is nothing to stop
this Court from determining whether section 2 of the Act, in its
current form, is compliant with the Constitution. She accepted,
however, that it was still possible for an amendment to be effected
by Parliament in the current Bill.
[7] In
her submissions, counsel for the first and second respondents, whilst
conceding that section 2 of the Act excludes customary law unions in
its definition of what constitutes a marriage, argued that the
applicant is asking this Court to usurp Parliament's law-making
functions. She further argued that the applicant can continue to
lobby Parliament to amend the Bill to include unregistered customary
marriages. Further, there is no guarantee that the President will
assent to the Bill in its current form. Counsel, therefore, submitted
that the applicant has no prospects of success because what it is
asking this Court to do is take over Parliament's legislative
function.
THE
LAW ON DIRECT ACCESS
[8] Direct
access to the Constitutional Court is an extraordinary procedure
granted in deserving cases that meet the requirements prescribed by
the relevant rules of the court. Rule 21(3) of the Rules prescribes
what must be contained in an application of this nature. It provides
as follows:
“(3)
An application in terms of subrule (2) shall be filed with the
Registrar and served on all parties with a direct or substantial
interest in the relief claimed and shall set out –
(a)
the grounds on which it is contended that it is in the interests of
justice that an order for direct access be granted; and
(b)
the nature of the relief sought and the grounds upon which such
relief is based; and
(b)
whether the matter can be dealt with by the Court without the hearing
of oral evidence or, if it cannot, how such evidence should be
adduced and any conflict of facts resolved.”
[9] Rule
21(8) of the Rules goes on to provide:
“(8)
In determining whether or not it is in the interests of justice for a
matter to be brought directly to the Court, the Court or Judge may,
in
addition to any other relevant consideration,
take the following into account:
(a)
the prospects of success if direct access is granted;
(b)
whether the applicant has any other remedy available to him or her;
(c)
whether there are disputes of fact in the matter.” (Underlining is
my own)
[10]
It follows from sub-rule (8) above, that the three factors itemised
therein are not the only factors that may be taken into account. The
rule is clear that, in addition, there may be other relevant
considerations that this Court may take into account in deciding
whether or not direct access should be granted.
[11]
Rule 21(1) of the Rules provides for matters that fall within the
exclusive jurisdiction of the court. In respect of those matters, no
other court other than this Court has jurisdiction. The court,
however, shares concurrent jurisdiction with lower courts in respect
of the remaining constitutional matters that may require
determination. It is in respect of those matters that leave to
approach the court directly is required. An applicant seeking direct
access must show that it is in the interests of justice that the
matter be heard directly by this Court at first instance. This is
because direct access is by its very nature an extraordinary remedy
that is granted in very few cases. As I Currie and J de Waal in The
Bill of Rights Handbook,
6ed,
p128 point out, constitutional matters cannot be brought directly to
the court as a matter of course. If this were to be allowed, the
court could get bogged down in cases in which there may be disputes
of fact on which evidence might be necessary or may be called upon to
decide constitutional issues which are not decisive of the litigation
and which might prove to be of purely academic interest. It is also
not ordinarily in the interests of justice for any court, including
this Court, to sit as a court of first instance without there being
the possibility of appealing against the decision taken.
[12]
This Court, in various cases, has stressed that an applicant for
direct access must satisfy two requirements. He must, firstly, show
why it is in the interests of justice to have the matter determined
directly by the court. Secondly, he must show that the main
application has prospects of success.
DOCTRINE
OF AVOIDANCE, RIPENESS
[13]
It is not in dispute that, as the law currently stands, unregistered
customary law unions have very limited recognition at law. In terms
of section 3 of the Customary Marriages Act [Chapter
5:07]
they are recognised as valid only for the purposes of legitimacy of
the children born thereto and for the distribution of property upon
the death of a spouse.
[14] The
doctrine of constitutional avoidance dates back to the United States
of America Supreme Court decision in Ashwander
v Tennesse Valley Authority,
297
US 288 (1936). In that decision the court formulated the doctrine as
consisting of seven rules, namely:
“1.
The Court will not 'pass upon' the constitutionality of
legislation in a friendly, non-adversary, proceeding.
2.
The Court will not anticipate a question of constitutional law in
advance of the necessity of deciding it.
3.
The Court will not formulate a rule of constitutional law broader
than is required by the precise facts to which it is to be applied.
4.
The Court will not pass upon a constitutional question, although
properly presented by the record, if there is also present some other
ground upon which the case may be disposed.
5.
The Court will not pass upon the constitutionality of a statute
unless the plaintiff was injured by operation of the statute.
6.
The Court will not pass upon the constitutionality of a statute at
the instance of one who has availed himself of its benefits.
7.
Even if 'serious doubt[s]' concerning the validity of an act of
Congress are raised, the court will first ascertain 'whether a
construction of the statute is fairly possible by which the question
may be avoided.'”
[15]
Rule 2 as formulated in the above cited case constitutes what has
come to be referred to as ripeness. The rule in essence postulates
that there can be no anticipation of a constitutional issue in
advance. The principle of ripeness is therefore part of the doctrine
of avoidance. The basic rationale of the ripeness principle is to
prevent the courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over administrative
policies and to protect the agencies from judicial interference until
an administrative decision has been formalised and its effect felt in
a concrete way by the litigating parties – Abbot
Laborates v Gardner
387 US 136 1967.
[16]
Hoexter,
Administrative Law in South Africa,
2nd
ed 2012 at p585 describes the doctrine in the following terms:
“The
idea behind the requirement of ripeness is that the complainant
should not go to court before the offending action or decision is
final, or at least ripe for adjudication. It is the opposite of the
doctrine of mootness, which prevents a court from deciding an issue
when it is too late. The doctrine of ripeness holds that there is no
point in wasting the courts' time with half-formed decisions whose
shape may yet change, or indeed decisions that have not yet been
made.”
[17]
In Ferreira
v Levin N.O. & Ors, Vryehoek v Powell N.O. & Others
1996
(1) SA 984 CC, 199 KRIEGLER J pertinently remarked as follows:
“The
essential flaw in the applicant's cases is one of timing or, as the
Americans and, occasionally the Canadians call it 'ripeness'.
That term has a particular connotation in the constitutional
jurisprudence of those countries which need not be analysed now.
Suffice it to say that the doctrine of ripeness serves the useful
purpose of highlighting that the business of a court is generally
retrospective, it deals with situations or problems that have already
ripened or crystallised, and not with prospective or hypothetical
ones. Although, as Professor Sharpe points out and our Constitution
acknowledges, the criteria for hearing a constitutional case are more
generous than for ordinary suits, even cases for relief on
constitutional grounds are not decided in the air. And the present
cases seem to me, as I have tried to show in the parody above, to be
pre-eminent examples of speculative cases. The time of this Court is
too valuable to be frittered away on hypothetical fears of corporate
skeletons.”
[18]
Ripeness therefore entails consideration of the timing of a
constitutional challenge. Where a constitutional issue can be dealt
with more conveniently at a later stage and the applicant will get no
tangible advantage from an earlier ruling, the doctrine of ripeness
requires the applicant to wait until the court can ground its
decision in a concrete relief. A court will not entertain a matter if
it is premature in the sense that rights or interests have not been
infringed or threatened. The term may also be used where alternative
remedies have not been exhausted or an issue can be resolved without
recourse to the Constitution. Whilst the concept is not precisely
defined, the position appears settled that, if it is possible to
decide any case, civil or criminal, without reaching a constitutional
issue, that is the course that should be taken – Max
du Plessis et al, Constitutional Litigation,
at p38.
[19]
That avoidance and ripeness are part of the law of this country,
there can be no doubt – see for example the decision of this Court
in Berry
(Nee Ncube) & Anor v The Chief Immigration Officer & Anor
2016 (1) ZLR 38 (CC); Katsande
& Anor v Infrastructure Development Bank of Zimbabwe
CCZ 9/17; Chawira
& Ors v Minister of Justice, Legal and Parliamentary Affairs &
Ors 2017
(1) ZLR 117 (CC).
THE
FACTS OF THIS CASE
[20] It
is common cause that one of the objectives of the Marriages Bill is
to provide for the recognition and registration of customary law
unions and to amend several statutes, including the Matrimonial
Causes Act. During the hearing of this matter, this Court was advised
by counsel for the applicant that the Bill had since been passed by
the National Assembly and had now been transmitted to the Senate.
That is all that is known about the Bill.
[21]
It is not known whether the National Assembly made any amendments to
the Bill. It is not known what its fate in the Senate will be. Even
if the Bill is passed by both houses and presented to the President
for his assent, he may refer it back to Parliament together with
detailed reasons for his reservations. See section 131(5) of the
Constitution. When that happens, the National Assembly must
reconsider the Bill or pass it with or without amendments before it
is once again referred to the President. If the President still has
reservations, he must refer the Bill to the Constitutional Court for
advice on its constitutionality. Further, in terms of Part 3 of the
Fifth Schedule to the Constitution, neither the National Assembly nor
the Senate may give a Bill its final reading unless a report of the
Parliament Legal Committee has been presented to the House. An
application can also be made to the Constitutional Court by a
Vice-President or a Minister for a declaration that the provision, if
enacted, would be consistent with the Constitution.
[22] Regard
being had to the above procedural requisites, it is unknown whether
the Bill will be passed into law and, if so, whether this will be
with or without amendments. Counsel for the applicant did concede
during the hearing that an amendment to the Bill is still possible to
include customary law unions in the definition of marriage.
MATTER
NOT RIPE FOR ADJUDICATION
[23] Clearly
therefore the matter is not ripe for adjudication by this Court. This
is a matter that currently is the subject of consideration by
Parliament and, perhaps thereafter, by the President. Indeed in
Doctors
for Life International v The Speaker of the National Assembly
CCT 12/05 NCOBO J, whilst dealing with the competence of the court to
interfere with the autonomy of Parliament to regulate its internal
proceedings, made the following pertinent remarks:
“(68)
Courts in other jurisdictions, notably in the Commonwealth
jurisdictions, have confronted this question. Courts have
traditionally resisted intrusions into the internal procedures of
other branches of government. They have done this out of comity and,
in particular, out of respect for the principle of separation or
powers. But at the same time they have claimed the right as well as
the duty to intervene in order to prevent the violation of the
Constitution. To reconcile their judicial role to uphold the
Constitution, on the one hand, and the need to respect the other
branches of government, on the other hand, courts have developed a
'settled practice' or general rule of jurisdiction that governs
judicial intervention in the legislative process.
(69)
The basic position appears to be that, as a general matter, where the
flaw in the law-making process will result in the resulting law being
invalid, courts take the view that the appropriate time to intervene
is after the completion of the legislative process. The appropriate
remedy is to have the resulting law declared invalid. However, there
are exceptions to this judiciary developed rule or 'settled
practice'. Where immediate intervention is called for in order to
prevent the violation of the Constitution and the rule of law, courts
will intervene and grant immediate relief. But intervention will
occur in exceptional cases, such as where an aggrieved person cannot
be afforded substantial relief once the process is completed because
the underlying conduct would have achieved its object.”
DISPOSITION
[24] The
conclusion is inescapable that the issue raised in this application
is not ready for adjudication by this Court. Until the fate of the
Bill is known, it would not only be inappropriate and unwise but also
premature for this Court to make a determination on the
constitutionality of the definition of marriage in section 2 of the
Matrimonial Causes Act. I find therefore that it is not in the
interest of justice that leave for direct access be granted to the
applicant.
[25]
On the question of costs, I find no reason to depart from the normal
practice of this Court not to award costs in constitutional
applications. In light of this conclusion, it becomes unnecessary to
determine whether or not the applicant has an alternative remedy at
its disposal.
[26] In
the result, the following order is made:
“The
application is dismissed with no order as to costs.”
MAKARAU
JCC: I
agree
GOWORA
JCC: I
agree
Atukwa
Attorneys,
applicant's legal practitioners
Civil
Division of the Attorney General's Office,
1st
and 2nd
respondent's legal practitioners
